State Consumer Disputes Redressal Commission
United India Insurance Company ... vs Ms. Saleena Rani on 13 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 305 of 2014 Date of Institution : 15.09.2014 Date of Decision : 13/10/2014 United India Insurance Company Limited, S.C.O. No.123-124, Sector 17-B, Chandigarh, through its Senior Divisional Manager. Now through Smt. Sunita Sharma, Deputy Manager, United India Insurance Company Limited, Regional Office, S.C.O. No.123-124, Sector 17-B, Chandigarh Appellant/Opposite Party No.1 V e r s u s 1. Ms. Saleena Rani wife of Gladwin Joseph, resident of 500/6, Vikas Enclave, Naya Gaon, District Mohali. ....Respondent No.1/complainant 2. Tata Motors Finance Limited, SCO No.139-140, Sector 9C, Chandigarh, through its Manager. .... Proforma Respondent/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by:Sh. D.P. Gupta, Advocate for the appellant.
Sh. Vinod Mahendru, Advocate for respondent No.1.
Service of respondent No.2, dispensed with vide order dated 16.09.2014.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 17.07.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent No.1), and directed Opposite Party No.1 (now appellant), as under:-
In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed. The same is accordingly allowed qua Opposite Party No.1 with the following directions:-
i) To pay the IDV of the vehicle i.e. Rs.4,99,235/- to Opposite Party No.2 as the vehicle was under hypothecation with it.
ii) To pay Rs.50,000/- to the complainant as compensation for mental agony and harassment caused to her;
iii) To pay Rs.7,000/- as costs of litigation to the complainant.
This order be complied with by Opposite Party No.1, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. However, the complaint qua Opposite Party No.2 was dismissed, by the District Forum, with the directions contained therein.
3. The facts, in brief, are that, on 09.06.2011, the complainant purchased an Indigo ECS (LX TC 111) car and got the same insured from Opposite Party No.1, for the period from 08.06.2011 to 07.06.2012, for the Insured Declared Value to the tune of Rs.4,99,235/-, on payment of premium of Rs.13,409/-. According to the complainant, the terms and conditions of the Policy were never supplied to her.
4. On 05.05.2012, the husband of the complainant went to Delhi, in the said car, with his friend namely Sh. S.K. Sharma. After dropping Sh. S.K. Sharma, the husband of the complainant, parked the said car, in front of the guest house, at about 9:45 P.M. and went to sleep. However, when he got up, at around 6:30 A.M., on 06.05.2012, he found that the car, in question, was missing. He immediately called the Police Control Room, whereupon, Police of Police Station Safdarjang Enclave came to the site, and registered FIR No.148 dated 06.05.2012, under Section 379 Indian Penal Code. It was stated that intimation about theft was duly given to Opposite Party No.1. Opposite Party No.1 appointed Mr. Sunil Jain, Investigator, to investigate the claim of the complainant. All the relevant documents were supplied, to the representative of Opposite Party No.1.
5. Opposite Party No.1, vide letter dated 30.04.2013, repudiated the claim of the complainant, on the ground, that the car, in question, was not registered with any Registering Authority, on the date of theft. It was further stated that the repudiation of genuine claim of the complainant was illegal and arbitrary. It was further stated that the aforesaid acts of Opposite Party No.1, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party No.1, to pay the Insured Declared Value of the vehicle, in question; compensation, to the tune of Rs.50,000/-, for mental agony, physical harassment, deficiency in rendering service, and adoption of unfair trade practice; interest @18% P.A., on the aforesaid amounts, from the date of loss, till realization; and cost of litigation, to the tune of Rs.22,000/-.
6. Opposite Party No.1, in its written reply, admitted that the vehicle, in question, was got insured from it, for the period from 08.06.2011 to 07.06.2012, for the Insured Declared Value to the tune of Rs.4,99,235/-, on payment of premium of Rs.13,409/-. It was also admitted that the vehicle, in question, was stolen on the night intervening 05/06.05.2012, from New Delhi. It was also admitted that the intimation of theft was received, after which an Investigator was deputed to investigate the matter, who submitted his report, on 25.10.2012. It was stated that after processing the report, submitted by the said Investigator, it came to light that the car, in question, was purchased on 09.06.2011. The temporary registration of the said car was valid for only one month i.e. till 08.07.2011. Thereafter, the complainant did not get the vehicle registered, with the concerned Registering Authority, which was in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988. It was further stated that the claim of the complainant was legally and validly repudiated, by Opposite Party No.1. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. Opposite Party No.2, in its written version, admitted that the complainant purchased the vehicle, in question, by taking loan, in the sum of Rs.4,09,000/-, from it, which was to be repaid in 48 equal monthly installments of Rs.11,108/- each. It was stated that loan agreement (Annexure OP-2/1) was executed between the parties, to this effect. It was further stated that after payment of 7 installments, the complainant defaulted, in making payment of the same. It was further stated that, as per the statement of account (Annexure OP-2/2), as on 28.04.2014, an amount of Rs.5,62,778.46Ps., was still outstanding against the complainant. It was further stated that Opposite Party No.2, had the first right to recover the outstanding dues, alongwith upto date interest and incidental charges. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. In the replication/rejoinder filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
9. The Parties led evidence, in support of their case.
10. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
11. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
12. Service of respondent No.2, who was Opposite Party No.2, in the District Forum, was dispensed with, for the purpose of this appeal.
13. We have heard the Counsel for the appellant, respondent No.1, and, have gone through the evidence, and record of the case, carefully.
14. The Counsel for the appellant/Opposite Party No.1, submitted that since the temporary registration of the car, in question, which was got insured by the complainant, from Opposite Party No.1, expired on 08.07.2011, it was required of her, to get the same registered, from the Registering Authority concerned. He further submitted that admittedly, the car, in question, had not been got registered, by the complainant, from the Registering Authority concerned, till the date of theft of the same. He further submitted that, as such, there was violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988. He further submitted that the terms and conditions of the Policy, in question, were supplied to the complainant. He further submitted that even if, it was assumed for the sake of arguments that the terms and conditions of the Policy were not supplied to the complainant, that hardly mattered, as she was guilty of violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, which took her case out of the protection of Policy. He further submitted that the claim of the complainant was, thus, legally and validly repudiated by Opposite Party No.1. He placed reliance on Narinder Singh Vs. New India Assurance Company Limited and others, Civil Appeal No.8463 of 2014, decided by the Apex Court, on 04.09.2014, Kaushalendra Kumar Mishra Vs. Oriental Insurance Co. Ltd. I (2012) CPJ 559 (NC), and Bharti Axa General Insurance Co. Ltd. and another Vs. B.A. Lokesh Kumar, III (2013) CPJ 528 (NC), decided by the National Consumer Disputes Redressal Commission, in support of his contention that breach of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, by the insured was sufficient to repudiate her claim, legally and validly. He further submitted that the District Forum did not take into consideration the principle of law, laid down, in the aforesaid cases, by the Apex Court, as also the National Consumer Disputes Redressal Commission, and thus, fell into a grave error, in accepting the complaint, in the manner, referred to above. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
15. On the other hand, the Counsel for respondent No.1/complainant, submitted that since the terms and conditions of the Insurance Policy, were not supplied to the complainant, she was not bound by the same, and, as such, her claim could not be legally repudiated, by invoking the same. He further submitted that, no doubt, temporary registration of the car, in question, expired on 08.07.2011. He further submitted that, undoubtedly, the complainant was not having any valid registration certificate, in respect of the car, in question, on the date of theft of the same. He further submitted that the mere fact that the car, in question, was not registered, on the date of its theft, in itself was not sufficient to repudiate the claim of the complainant, in toto. He further submitted that the principle of law, laid down, in Narinder Singh `s , Kaushalendra Kumar Mishra `s and Bharti Axa General Insurance Co. Ltd. `s cases (supra), referred to above, is not applicable to the facts and circumstances of the present case. He placed reliance on H DFC Chubb General Insurance Co. Ltd. Versus Ila Gupta & Ors. I (2007) CPJ 274 (NC), and Aroma Paints Ltd. & Anr. Versus New India Assurance Co. Ltd. & Ors., III (2013) CPJ 635 (NC), to support his contention that mere non-registration of a vehicle on the date of incident, could not constitute a valid ground to repudiate the claim of the insured. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
16. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the appellant, respondent No.1, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. The core question, that falls for consideration, is, as to whether, the Insurance Company could legally and validly repudiate the claim of the complainant/insured, in toto, in respect of the car, in question, merely on the ground that it was being used in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, meaning thereby that it was not having a valid registration certificate, at the time of theft. Admittedly, in the instant case, the car, in question, was purchased on 09.06.2011. It was granted temporary registration number, for one month, which expired on 08.07.2011. The car was stolen on 05.05.2012. Admittedly, when the car, in question, was stolen, it was not having a valid registration certificate. In other words, it was being used without a valid registration certificate, on the date of theft thereof. Sections 39 and 43 of the Motor Vehicles Act, 1988, which are relevant for the determination of controversy, read as under:-
39. Necessity for registration-
No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carriers a registration mark displayed in the prescribed manner.
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
43. Temporary registration-
(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary of temporary certificate of registration and a temporary registration mark.
(2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable.
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted with a body or any unforeseen circumstances beyond the control of the owner, the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.
(3) In a case where the motor vehicle is held under hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and prominently the full name and address of the person with whom such agreement has been entered into by the owner.
17. A bare perusal of Section 39 afore-extracted, reveals that no person shall use the motor vehicle in any public place without any valid registration granted by the Registering Authority, in accordance with the provisions of the Act. However, according to Section 43, the owner of the vehicle may apply to the Registering Authority, for temporary registration, and a temporary registration mark. If such temporary registration was granted by the Authority, the same shall be valid only for a period not exceeding one month. The proviso to Section 43 clarifies that the period of one month may be extended for such a further period, by the Registering Authority, only in a case, where a temporary registration was granted, in respect of chassis to which, body has not been attached, and the same was detained in a workshop, beyond the said period of one month, for being fitted with a body or unforeseen circumstances, beyond the control of the owner
18. In the instant case, as stated above, temporary registration certificate of the car, in question, expired on 08.07.2011. There is nothing on the record, that immediately thereafter, the complainant applied for registration of the vehicle, with the Registering Authority. As stated above, till the date of theft of the car, in question, it had not been registered with the Registering Authority. The car, in question, was thus, being used without any valid registration certificate, and had been taken to New Delhi, wherefrom it was stolen. Thus, the car was being used by the complainant, as also her husband, wholly and completely in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988. A similar question fell for decision in Narinder Singh`s case (supra). The Hon`ble Apex Court, in the aforesaid case, laid down the principle of law, to the effect that if the vehicle was being used without valid registration certificate, and damage to the same or loss thereof occurred, then the Insurance Company could legally and validly repudiate the claim of the insured, in toto. In Kaushalendra Kumar Mishra `s case (supra), it was also held that use of the vehicle, in violation of law itself will take it beyond the protection of the Policy. In Bharti Axa General Insurance Co. Ltd. `s case (supra), it was also held that if the loss of the vehicle occurs, when it was being used, in violation of the mandatory provisions of law, the insurer will be justified, to repudiate the claim of the insured. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since, the vehicle, in question, was being used, by the husband of the complainant, in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, at the time of theft thereof, the insurer was justified in legally and validly repudiating the claim of the complainant. There was, therefore, no deficiency, in rendering service, on the part of Opposite Party No.1, in repudiating the claim of the complainant. The findings of the District Forum, to the contrary, being incorrect, are reversed.
19. No doubt, in H DFC Chubb General Insurance Co. Ltd. `s and Aroma Paints Ltd. `s cases (supra), it was held that repudiation of the claim of the insured, merely on the ground that the vehicle was not having a valid registration certificate, at the time of loss of the same, or accident thereof, was not justified. However, it may be stated here that in view of the principle of law, laid down, in by the Hon`ble Apex Court in Narinder Singh`s case (supra), any principle of law, laid down to the contrary, on the same point, by the National Consumer Disputes Redressal Commission, in H DFC Chubb General Insurance Co. Ltd. `s and Aroma Paints Ltd. `s cases (supra), shall not hold the field. Under these circumstances, no help can be drawn, by the Counsel for the complainant, from H DFC Chubb General Insurance Co. Ltd. `s and Aroma Paints Ltd. `s cases (supra), in support of his contention.
20. Now coming the factum, regarding non-supply of the terms and conditions of the Policy, it may be stated here, that the car, in question, was got insured by the complainant, on 08.06.2011, whereas, theft thereof, was committed on 05.05.2012 i.e. after a period of about 11 months. Such a plea, regarding non- receipt of the terms and conditions of the Policy, was taken by the complainant, in paragraph number 2 of the complaint, for the first time. In reply to paragraph number 2, Opposite Party No.1, in its written version, in clear-cut terms, stated that before issuing the said Policy, all the terms and conditions of the same were duly conveyed to the complainant, and only after understanding the same, premium was paid by her. In case, the terms and conditions had not been received by the complainant, she could immediately, on receipt of the cover note, write a letter to Opposite Party No.1, for sending the same. There is nothing, on the record, to show that any letter was written by the complainant, to Opposite Party No.1, that she had not received the terms and conditions of the Policy, and the same be sent to her. It could not be believed that the complainant slept over the matter, for a period of about 11 months, from the date of insurance of the car, and, ultimately, for the first time, on 13.09.2013, when the complaint was filed by her, came up with the plea that the terms and conditions of the Policy were not received by her. Such a plea of non-receipt of the terms and conditions of the Policy, was just an afterthought, and could not be relied upon. The submission of the Counsel for respondent No.1/complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
21. Even if, it is assumed, for the sake of arguments, that the terms and conditions of the Policy were not received by the complainant, that hardly makes any difference, as far as the facts of the instant case are concerned. In the instant case, repudiation of the claim of the complainant was made by Opposite Party No.1, on the ground that her husband had been using the car, in question, without any valid registration certificate, when the theft thereof was committed. In other words, the claim was repudiated, on the ground that the car, in question, was being used by the husband of the complainant, in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988. It was not that by invoking the terms and conditions of the Policy, that the claim of the complainant was repudiated. It is settled principle of law that if there is a conflict between the terms and conditions of the Policy and the law, then the later will prevail over the former. In Kaushalendra Kumar Mishra `s case (supra), similar question, fell for decision. In that case, an argument was advanced by the Counsel for the Revision-Petitioner, that the State Commission had erred in raising the point of use of the vehicle, in violation of the mandatory Section 39 of the Motor Vehicles Act, 1988, on its own. It was also contended, by the Counsel for the Revision-Petitioner that the Insurance Company, nowhere, pleaded that at the time of loss, the insured should not have violated the provisions of the Motor Vehicles Act, 1988. While repelling the argument of the Counsel for the Revision-Petitioner, the National Consumer Disputes Redressal Commission, held that it was in complete agreement with the State Commission, that the use of vehicle, in violation of law, in itself will take it beyond the protection of the Policy. Similar principle of law was laid down, in Bharti Axa General Insurance Co. Ltd. `s case (supra). The facts of the instant case, are similar to the facts of Kaushalendra Kumar Mishra `s and Bharti Axa General Insurance Co. Ltd. `s case s (supra). As such, repudiation of the claim of the complainant, by Opposite Party No.1, on the ground that the car, in question, was being used, in violation of the mandatory provisions of Section 39 of the Motor Vehicles Act, 1988, though there may not be any condition, in the Policy, that at the time of theft, the claimant should not have violated the same, was legal and valid. The submission of the Counsel for respondent No.1/complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
22. No other point, was urged, by the Counsel for the appellant, and respondent No.1.
23. In view of the foregoing discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside. The complaint stands dismissed.
25. Certified copies of this order, be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion Pronounced.
October 13, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg