State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Pawan Kumar on 26 March, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1394 of 2010.
Date of Institution: 09.08.2010.
Date of Decision: 26.03.2012.
Oriental Insurance Company Limited, Divisional Office, 4501, Bank Street,
Bathinda through authorized signatory, Chief Regional Manager, Oriental
Insurance Company Limited, Regional Office, SCO No.109-111, Surendra
Building, Sector 17-D, Chandigarh.
.....Appellant.
Versus
Pawan Kumar S/o Kishore Chand, R/o VPO Talwandi Sabo, near Old Post
Office, Tehsil and District Bathinda.
...Respondent.
First Appeal against the order dated
10.06.2010 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. Rahul Sharma, Advocate for
Mrs. V.A. Talwar, Advocate.
For the respondent : Sh. Achin Gupta, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Oriental Insurance Company Limited, appellant (In short "the appellant") has filed this appeal against the order dated 10.06.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum").
2. Facts in brief are that Sh. Pawan Kumar, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, pleading that he purchased one Hero Honda motorcycle from Kamal Enterprises on 11.09.2008 and got it insured from the appellant on the same day vide cover note no.503553 after making payment First Appeal No.1394 of 2010 2 of Rs.855/-. The vehicle was fully insured and was also hypothecated with Indusind Bank, Bathinda. Only the cover note was given to the respondent and no other separate terms and conditions were supplied.
3. On 15.10.2008, the vehicle of the respondent was stolen and FIR No.147 dated 31.10.2008 U/s 379 IPC was lodged at P.S. Talwandi Sabo, Bathinda and intimation was also given to the appellant regarding the theft on 16.10.2008. The appellant demanded copy of FIR, copy of RC and copy of non-traceable certificate and the respondent supplied all these documents within time, but the claim of the respondent was not decided and ultimately, it was rejected on 31.08.2009 on the ground that the vehicle was stolen on 15.10.2008, whereas it was registered on 04.11.2008.
4. The Registering Authority registered the vehicle after a gap of 20 days and for that, the respondent cannot be blamed and the appellant has illegally rejected the claim of the respondent. Due to wrong act and conduct of the appellant, the respondent suffered mental tension, harassment and he was made to pay Rs.8270/- as fine to the Indusind Bank from the date of theft of the vehicle and could not purchase the new vehicle and has to travel by rickshaw or by bus and there is deficiency in service on the part of the appellant and the respondent is entitled to Rs.80,000/- and Rs.10,000/- as litigation expenses. In the prayer clause, it was prayed that the appellant be directed to pay Rs.50,000/- as compensation for mental tension and harassment and Rs.10,000/- as litigation expenses.
5. In the reply filed on behalf of the appellant, preliminary objections were taken that the respondent purchased Hero Honda motorcycle from Kamal Enterprises on 11.09.2008 and the same was got insured with the appellant on the same day vide cover note no.503553 with temporary registration no.PB-03-Temp.7109. The respondent failed to get registered the vehicle with any registering authority upto the alleged theft i.e. 15.10.2008 and as per provisions of Section 39 of Motors Vehicles Act, 1988, no person can drive any motor vehicle or motorcycle without the same being registered First Appeal No.1394 of 2010 3 with the registering authority. The respondent violated the terms and conditions of the Motor Vehicles Act as well as terms and conditions of the policy and the appellant is not liable to pay any compensation.
6. The said insured vehicle was not got registered as per the provisions of Motor Vehicles Act, 1988 and the respondent committed negligence to take care of the vehicle and violated the terms and conditions of the policy. The questions of complicated law and facts are involved and the civil court is only competent. The complaint is bad for non-joinder and mis- joinder of necessary parties. The complaint is not maintainable and is liable to be dismissed.
7. On merits, purchasing of the Hero Honda motorcycle and insuring it with the appellant, was admitted. It was further submitted that after the issuance of cover note, the policy along with its terms and conditions was supplied to the respondent. There is a long delay in lodging FIR regarding the theft of the motorcycle and the information was given late, although it was required to be given within 48 hours of its occurrence and the claim is not payable if the theft is not reported to the appellant within 48 hours of its occurrence. It was admitted that the documents were supplied, but the same were supplied very late and the vehicle was not registered and claim was rightly repudiated on 31.08.2009. Denying all other allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum relied upon the authority "Rajinder Prasad Tiwary Vs New India Assurance Company & Ors.", I(2007) CPJ-391 and allowed the complaint with cost of Rs.2,000/- and awarded Rs.5,000/- as compensation. Appellant was further directed to settle the claim of the respondent within 45 days of receipt of copy of the order.
First Appeal No.1394 of 2010 4
10. Aggrieved by the impugned order dated 10.06.2010, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
12. Learned counsel for the appellant has laid much stress on the point that the vehicle in question was allegedly stolen on 15.10.2008, whereas the vehicle was registered on 04.11.2008 and at the time of said theft, the vehicle was unregistered. Section 39 of the Motor Vehicles Act provides the necessity for registration and without registration, the vehicle cannot be driven in the public place. It was further contended that as per Section 54 of the Motor Vehicles Act, the vehicle has to be produced for physical inspection before the Registering Authority and the Registering Authority without physically inspecting the same, cannot register the same. In the present case, the vehicle was stolen much prior to the registration and, as such, the registration number was granted without inspection and the insurance company rightly repudiated the claim, as the vehicle was not registered at the time the alleged theft was committed. After the loss, the matter was neither immediately reported to the appellant company, nor to the police and there is delay and for that also, the appellant is not liable to pay any claim.
13. On the other hand, it was contended that the vehicle was registered and the matter was reported to the police as well as to the appellant immediately. It has been further contended that the FIR was registered, which is Ex.C-3 and the violation of the Motor Vehicles Act and rules does not give any right to the appellant to dislodge the claim and to repudiate the same. Even in that case also, the respondent is entitled to claim on non-standard basis. The order of the District Forum is legal and valid and the appeal is liable to be dismissed.
First Appeal No.1394 of 2010 5
14. We have considered the respective submissions of the counsel for parties and have thoroughly gone through the whole record.
15. The vehicle in question was stolen on 15.10.2008 and on that day, the vehicle in question was not having any registration number which was later on given on 04.11.2008. It was for the authority under the Motor Vehicles Act, to comply with the provisions of Section-39 as well as Section- 54 of the Motor Vehicles Act and if the authority has violated the same, the insurance company cannot derive any benefit of that. In the eyes of law, on 15.10.2008, the vehicle in question was without registration number and it is violation of the provisions of the Motor Vehicles Act and not of the terms and conditions of the insurance policy. Hon'ble National Commission in case "National Insurance Company Limited Vs Prem Chand", II(2001) CPJ- 60(NC), allowed the claim on Non-standard Basis.
16. Very recently, this Commission in case "M/s Bharti AXA General Insurance Co. Ltd. Vs M/s Venus", F.A. No.446 of 2011 decided on 16.08.2011, in similar situation, allowed the claim.
17. The Hon'ble Madhya Pradesh State Commission in its latest judgment in case "Sanjay Gupta Vs Oriental Insurance Company Limited", 2011 (2) CPR-41, relying upon two authorities of the Hon'ble National Commission namely "Shiv Kumari Vs New India Assurance Company Limited", II (2007) CPJ-196(NC) and "Oriental Insurance Company Limited Vs Sanjeev Kumar", II(2009)CPJ-135(NC), allowed the claim on non-standard basis.
17. Accordingly, the appeal is partly accepted and impugned dated 10.06.2010 under appeal is modified to the extent that the respondent is entitled to recover the claim for the theft of the vehicle in question, on Non- standard Basis i.e. 75% of the insured amount from the appellant.
18. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent by way First Appeal No.1394 of 2010 6 of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
19. Remaining amount as per this order shall be paid by the appellant to the respondent within two months of the receipt of copy of the order.
20. The arguments in this appeal were heard on 15.03.2012 and the order was reserved. Now the order be communicated to the parties.
21. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member March 26, 2012.
(Gurmeet S)