State Consumer Disputes Redressal Commission
Branch Manager Magma Hdl General ... vs Shyam Singh Paikara & Anr. on 19 February, 2015
Daily Order Chhattisgarh State Consumer Disputes Redressal Commission Raipur Final Order First Appeal No. FA/14/452 (Arisen out of Order Dated 30/05/2014 in Case No. CC/13/86 of District Surguja) 1. Branch Manager Magma HDl General Insurance Co.Ltd. & Anr. Near Ambedakar Chouk, Behind S.B.I. ATM, Ambikapur Sarguja Sarguja Chhattisgarh ...........Appellant(s) Versus 1. Shyam Singh Paikara & Anr. Awas Grih no.F-12, Gandhi Chouk, Ambikapur, Ps Ambikapur Sarguja Chhattisgarh ...........Respondent(s) BEFORE: HONABLE MR. JUSTICE R.S.Sharma PRESIDENT HONABLE MS. Heena Thakkar MEMBER HONABLE MR. Dharmendra Kumar Poddar MEMBER For the Appellant: Shri N.K.Thakur, Advocate For the Respondent: Shri Anil Kumar Nande, Advocate ORDER CHHATTISGARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANDRI, RAIPUR (C.G). Appeal No.FA/14/452 Instituted on : 28.06.2014 1. Branch Manager, Magma HDI General Insurance Company Ltd., C/o Magma Fincorp Ltd. Near Ambedkar Chowk, Behind S.B.I. ATM, Ambikapur, District Surguja (C.G.) 2. Manager, Magma HDI General Insurance Co. Ld. Registered Office : Magma House, 24 Park Street, Kolkata, Pin - 700016 ... Appellants Vs. 1. Shyam Singh Paikra, S/o Late Chhattar Sai Paikra, Aged 50 years, R/o : Awas Grih No.F-12, Gandhi Chowk, Ambikapur, P.S. Ambikapur, District Surguja (C.G.) 2. Branch Manager, Magma Fincorp Ltd., Near Ambedkar Chowk, Behind SBI ATM, Ambikapur, District Surguja (C.G.) .... Respondents PRESENT : HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT HON'BLE MISS HEENA THAKKAR, MEMBER COUNSEL FOR THE PARTIES : Shri N.K. Thakur, for appellants. Shri Anil Kumar Nande, for respondent No.1. Shri Rakesh Puri, for respondent No.2. ORDER
DATED : 19/02/2015 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 30.05.2014, passed by District Consumer Disputes Redressal Forum, Surguja - Ambikapur (C.G.) (henceforth "District Forum") in Complaint Case No.2013/86. By the impugned order, the complaint has been partly allowed and the appellant no.2 (O.P.No.3) has been directed to pay within a period of 30 days a sum of Rs.5,06,250/- which is 75% of Insured Declared Value of the vehicle Rs.6,75,000/-. If the said amount is not paid by the appellant No.2 (O.P. No.3) within stipulated period, the respondent No.1 (complainant) will be entitled to get interest @ 14% p.a. till realisation on the said amount. The appellant No.2 (O.P.No.2) has further been directed to pay a sum of Rs.3,000/- a compensation for mental agony to the respondent No.1 (complainant).
2. As per the allegations as made in the complaint filed by the respondent No.1 (complainant) he was owner of Bolero vehicle, which was insured with the appellants (O.P. Nos.2 & 3) and during the force of the insurance policy, the respondent No.1 (complainant) lost vehicle as some unknown people took away with the vehicle. It was also pleaded that the aforesaid incident was reported to the concerned police station and also informed to the appellants (O.P.No.2 & 3), but appellants (O.P.No.2 & 3) did not settle his claim and rejected the same by mentioning reasons in their letter dated 16.09.2013 and hence the respondent No.1 (complainant) filed a complaint against the appellants (O.P.No.2 & 3) and respondent No.2 (O.P.No.1).
3. The appellants (O.P.No.2 & 3) filed their written statement and denied all the allegations leveled by the respondent No.1 (complainant) in the complaint. It was also pleaded that the complaint is not maintainable in the eye of law. The claim of the respondent No.1 (complainant) was not payable as per policy terms and conditions and hence the same was repudiated on the grounds mentioned in the letter of repudiation. The alleged incident is not covered under the definition of theft. The Police has registered a complaint punishable under Section 420 IPC. It was also pleaded that the vehicle in question was not registered in R.T.O. and the vehicle was insured for private purpose but the same was being used as a Taxi. It was also pleaded that such incident is not covered under the insurance policy.
4. The respondent No.2 (O.P.No.1) has also filed its written statement and averred that agreement has been executed between the respondent No.1 (complainant) and respondent No.2 (O.P. No.1) in which there is a clause in which it is mentioned that if any dispute arises between the parties then the same well be settled under Arbitration & Conciliation Act through appointed Arbitrator. As the dispute relate to the insured amount, therefore, the respondent No.1 (complainant) is not "consumer" of the respondent No.2 (O.P.No.1), therefore, the complaint is not maintainable.
5. Learned District Forum, after having considered the material placed before it by both the parties partly allowed the complaint and directed the appellants (O.P.NO.2 & 3) to pay compensation to the respondent No.1 (complainant) as mentioned in para 1 of this judgment.
6. The respondent No.1 (O.P.No.1) filed documents. Documents are photocopy of insurance policy, letter dated 24.11.2012 sent by Magma HDI General Insurance Company Ltd. to the respondent No.1 (complainant), photocopy of first information report (under Section 154 Cr. P.C.), Final Report under Section 173 Cr. P.C.), letter dated 22.03.2013 sent by the respondent No.1 (complainant) to Manager, Magma Fin Corp. Ltd. Ambikapur, khatma report dated 24.08.2013 of Superintendent of Police, District Surguja (C.G.), email sent, letter dated 30.07.2013 sent by Magma HD General Insurance Co. Ltd. to the respondent No.1 (complainant), statement of account, form 21 Sales Certificate, Form No.22 - Initial Certificate of Compliance with Pollution Standards Safety Standards of Components and Road Worthiness, vehicle clearance documents, private car package policy certificate of insurance cum schedule, receipt.
7. The respondent No.2 (O.P.No.1) has filed documents. Documents are statement of account, Hire Purchase Finance Agreement.
8. The appellant No.2 (O.P.3) has also filed documents. Documents are letter dated 09th July, 2013 sent by Magma HDI General Insurance Company Ltd. to the respondent No.1 (complainant), letter dated 30.07.2013 sent by Magma HDI General Insurance Co. Ltd. to the respondent No.1 (complainant), Private Car Package Policy Certificate of Insurance Cum Schedule issued by Magma HDI General Insurance Co. Ltd., photocopy of affidavit of the respondent No.1 (complainant), photocopy of affidavit of Khagesh Singh Paikra, First Information Report (Under Section 154 Cr. P.C.).
9. Shri N.K. Thakur, learned counsel appearing for the appellants (O.P.No.2 & 3) has argued that the impugned order passed by the District Forum by allowing the complaint of the respondent No.1 (complainant) is perverse and is not sustainable in law. The learned District Forum has failed to appreciate that the facts brought on record and has miserably failed to bring home the ingredients of the defining the "deficiency in service" and "unfair trade practice" by overlooking the facts of the case. The learned District Forum also found that the vehicle in question was being used for commercial purpose. The District Forum has overlooked the terms and conditions of the policy as well as provisions of the Motor Vehicles Act, 1988. The vehicle in question was insured for private use but on the date of alleged incident, it was being used as Taxi. Therefore, the vehicle was being used in contravention of policy conditions which was fundamental breach of the policy. The vehicle was unregistered and hence it was used in contravention of provisions of Section 39 of the Motor Vehicle Act, 1988 and violation of provisions of Motor Vehicles Act, 1988 amounts violation of policy conditions. The learned District Forum has overlooked the documents produced before it. He further argued that the First Information Report was lodged for offence punishable under Section 420 IPC. It appears that no case was registered under Section 379/380/381 IPC, therefore, incident of theft has not been proved. The vehicle was taken away by unknown persons. The respondent (complainant) failed to submit ignition key. He placed reliance on judgment dated 04.09.2014 of Hon'ble National Commission in Civil Appeal No.8463 of 2014 Narinder Singh vs. New India Assurance Company Limited and Others.
10. Shri Anil Kumar Nande, learned counsel appearing for the respondent No.1 (complainant) has supported the impugned order and submitted that it does not call for any interference by this Commission.
11. Shri Rakesh Puri, learned counsel appearing for the respondent No.2 (O.P.No.1) has argued that an agreement has been executed between the respondent No.1 (complainant) and respondent No.2 (O.P. No.1) in which there is a clause in which it is mentioned that if any dispute arises between the parties, then the same well be settled under Arbitration & Conciliation Act through appointed Arbitrator. As the dispute relate to the insured amount, therefore, the respondent No.1 (complainant) is not "consumer" of the respondent No.2 (O.P.No.1).
12. We have heard learned counsel for both the parties and have also perused the record of the District Forum.
13. It is not disputed that vehicle in question was insured with the appellants (O.P.No.2 & 3) for the period from 24.11.2012 to 23.11.2013. It is also not disputed that Khagesh Singh Paikra, was appointed as driver by the respondent No.1 (complainant) and he was driving the vehicle in question on the date of the incident.
14. The claim of the respondent No.1 (complainant) was repudiated by the appellants (O.P.No.2 & 3) on the ground that the at the time of incident the vehicle in question was not registered with R.T.O. and the vehicle was being used for commercial purpose in contravention of terms and conditions of the insurance policy.
15. In the instant case, the appellant No.1 (O.P.No.3) filed photocopy of affidavit dated 26.04.2013 of respondent No.1 (complainant) Shyam Sing Paikra in which he deposed that the amount for insurance and registration was not given in the show room and he get the vehicle insured with a person who is familiar to him and another person who is familiar to him was told for getting registration, but till the date of incident i.e. 20.03.2013 the said agent had not get the vehicle registered and had not deposited the charges regarding registration in the transport office.
16. It appears that at the time of incident, the vehicle in question was not registered with concerned R.T.O. in the name of the respondent No.1 (complainant) and the vehicle in question was being used by the respondent No.1 (complainant) without obtaining Certificate of Registration.
17. The appellant No.2 (O.P.No.3) has also filed photocopy of affidavit dated 26.04.2013 of Khagesh Singh Paikra in which he deposed that on 20.03.2013 Shri Shyam Singh Paikra was busy in his work. In the meantime, a call was received by him from Shri Sushil Mishra, who is director of Ambey Travel and he requested him to carry the bolero vehicle for local booking to Panchsheel Hotel for Rs.700/- and on diesel expenses and he informed regarding the said booking to Smt. Anita Paikra, who is wife of the respondent No.1 (complainant). He further deposed that after getting her permission he had taken two passengers from Panchsheel Hotel, Ambikapur and completed the local work from 12.00 noon to 6 p.m. and at 7 p.m. he informed Shri Paikra and met the above customers to him in the Hotel Panchsheel and stayed at the hotel with them. In the night they consumed liquor and due to excessive drinking of liquor he fell asleep and in the mean time two person who were consumed liquor with him take away the vehicle at about 11 to 12 mid night and he was confined in the room of the hotel. .
18. Provisions of Section 39 of The Motor Vehicles Act, 1988 runs thus :-
"39. Necessity for registration. - No person shall drive any motor vehicle and no owner or 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 carries 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."
19. Provisions of Section 43 (1) & (2) of The Motor Vehicles Act, 1988 run thus :-
"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 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."
20. Provisions of Section 56 of The Motor Vehicles Act, 1988 runs thus :-
"56. Certificate of fitness of transport vehicles.- (1) Subject to the provisions of Sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of Section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:
Provided that where the prescribed authority or the authorised testing station refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The "authorised testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.
(3) Subject to the provisions of sub-section (4), a certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained.
(5) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India."
21. In Narinder Singh vs. New India Assurance Company Ltd. and others, 2014 (7) Supreme 40, Hon'ble Supreme Court has observed thus :-
"14. Indisputably, a temporary registration was granted in respect of vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant owner of the vehicle either applied for permanent registration as contemplated under Section 39 of the Act or made any application for extension of period as temporary registration on the ground of some special reasons. In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of the policy contract."
15. In the aforesaid premises, we do not find any infirmity in the order passed by the State Commission and the National Commission."
22. In Bhagwat vs. The United India Insurance Company Limited, IV (2014) CPJ 698 (NC), Hon'ble National Commission has observed that petitioner never applied before Regional Transport Officer for getting permanent registration of the vehicle and for failure to meet statutory requirement regarding registration of the vehicle, the complainant was not entitled to get claim even on non-standard basis.
23. In Din Dayal vs. National Insurance Company Ltd. & Anr. I (2013) CPJ 10 (NC), Hon'ble National Commission has observed thus :-
"5. These arguments do not sound very convinced. Section 39 of the Motor Vehicles Act, 1988 lays down that the registration of the vehicle is mandatory requirement of law to drive the vehicle on any place or any other place. In support of his case, the State Commission has placed reliance upon the order of this Commission in the case of Kaushalendra Kumar Mishra v. Oriental Insurance Company Limited, I (2012) CPJ 559. Consequently, there was violation of Section 39 of the Motor Vehicles Act.
24. In Niranjan Kumar Yadav vs. National Insurance Co. Ltd. II (2011) CPJ 64 (NC), Hon'ble National Commission has observed thus :-
"4................ On the contention of the present revision petitioner that the registration was already applied for and was pending with the registering authority, the State Commission has made the following categorical observations :-
"If permanent registration cannot be done for the delay of the office of the registering authority then it must have temporary registration. Legality is the essence of all agreement. If it is violative of law, any contract or agreement is bound to fail, may there be otherwise expressed provision in the terms and condition of the agreement or not. The appellant failed to show any temporary registration number. He also failed to show any receipt of the application for registration to prove that he had applied for registration before the mishap."
5. In view of this observation of the State Commission, the claim of the Revision Petitioner/Complainant that the registration was pending before the Registering Authority, looses all credibility."
25. On the basis of affidavits of Shyam Singh Paikra, respondent No.1 (complainant) and Khagesh Singh Paikra, driver of the vehicle in question, and other materials filed by the Insurance Company, it is established that on the date of incident, , the vehicle in question was not registered with the concerned R.T.O. and vehicle in question was being plied by the respondent No.1 (complainant) without registration certificate and the vehicle in question was given on hire and reward by the respondent No.1 (complainant). Both breaches come within fundamental breach of policy conditions, therefore, the respondent No.1 (complainant) is not entitled to get compensation even on non-standard basis.
26. Therefore, the finding recorded by the learned District Forum is not sustainable and is liable to be set aside.
27. Hence, the appeal filed by the appellants (O.P.No.2 & 3), is allowed and the impugned order dated 30.05.2014, passed by the District Forum, is set aside. Consequently, the complaint is also dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) President Member /02/2015 /02/2015 [HONABLE MR. JUSTICE R.S.Sharma] PRESIDENT [HONABLE MS. Heena Thakkar] MEMBER [HONABLE MR. Dharmendra Kumar Poddar] MEMBER