National Consumer Disputes Redressal
Ms. Saleena Rani vs United India Insurance Company ... on 8 December, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CIRCUIT BENCH AT U.T. CHANDIGARH REVISION PETITION NO.4235 OF 2014 (Against order dated 13.10.2014 in Appeal No.305 of 2014 of State Consumer Disputes Redressal Commission, UT Chandigarh) Ms. Saleena Rani W/o Gladwin Joseph, R/o 500/6, Vikas Enclave, Naya Gaon, District Mohali .Petitioner Versus 1. United India Insurance Company Limited, SCO No.123-124, Sector-17B, Chandigarh Through its Senior Divisional Manager, Now through Smt. Sunita Sharma, Deputy Manager, United India Insurance Company Regional Office, SCO No.123-124, Sector-17-B, Chandigarh. 2. Tata Motors Finance Limited, SCO No.139-140, Sector 9-C, Chandigarh Through its Manager ..Respondents BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner : Mr. Vinod Mahendru, Advocate Pronounced on : 8th December, 2014 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER This revision petition has been filed under Section 21(b) of the Consumer Protection Act,1986 (for short, Act) by the Petitioner/Complainant challenging order dated 13.10.2014, passed by Karnataka State Consumer Disputes Redressal Commission, UT Chandigarh (for short, State Commission) in (First Appeal No.305 of 2014).
2. Petitioner filed a consumer complaint before the District Consumer Disputes Redressal Forum-II, UT Chandigarh (for short, District Forum) against Respondents/Opposite Parties stating that she had purchased Indigo ECS (LX TC 111) vide Invoice dated 9.6.2011. Temporary Registration No.CH-0T 8341 was issued. Petitioner got her vehicle insured with Respondent No.1/Opposite Party No.1 valid from 8.6.2011 to 7.6.2012 after paying the premium of Rs.13,409/-. The copy of policy was supplied to the petitioner. However, no terms and conditions whatsoever were either supplied or explained to the petitioner. On 5.5.2012, husband of petitioner went to Delhi in the car. There parked the car in front of guest house at about 9.45 P.M. and went to sleep. When he got up at around 6.30 A.M, on 6.5.2012 he found that car was missing. He immediately called the Police Control Room, whereupon Police of Police Station Safdarjung Enclave came to the site and registered FIR No.148 dated 6.5.2012, under Section 379 Indian Penal Code. It was stated that intimation about theft was duly given to Respondent No.1, who appointed Mr. Sunl Jain, Investigator, to investigate the claim of the petitioner. All the relevant documents were supplied to the representative of Respondent No.1. Respondent No.1, vide letter dated 30.4.2013 repudiated the claim of the petitioner on the ground that the car in question, was not registered with any Registering Authority on the date of theft. It is stated that the aforesaid acts of respondent no.1, amounted to deficiency in rendering service as also indulgence into unfair trade practice. When grievance of petitioner was not redressed a complaint under Section 12 of the Act was filed praying for the Insured Declared Value of vehicle in question; Rs.50,000/-, for mental agony, physical harassment, deficiency in rendering service, and unfair trade practice; interest @ 18% P.A. from the date of loss till realization and cost of litigation to the tune of Rs.22,000/-.
3. Respondent No.1 in its written reply, admitted that vehicle in question was got insured from it, for the period from 8.6.2011 to 7.6.2012 to the tune of Rs.4,99,235/-. It also admitted that vehicle was stolen on the night intervening 05/06.05.2012, from New Delhi. It is further stated that the temporary registration of the car was valid for only one month i.e. till 8.7.2011. Thereafter, petitioner 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 Vehicle Act, 1988. Therefore, the claim of petitioner was legally and validly repudiated by it. Thus, there was no deficiency in rendering the service, on the part of respondent no.1 nor it indulged into unfair trade practice.
4. Respondent No.2 in its written version, admitted the purchase of the vehicle by taking loan for the sum of Rs.4,09,000/- from it. The petitioner after payment of 7 installments defaulted in making payment of the same. Hence, there was no deficiency in rendering service on its part nor it indulged into unfair trade practice.
5. District Forum vide order dated 17.7.2014, allowed the complaint qua respondent no.1 with 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.
6. Respondent No.1 filed appeal before the State Commission, which accepted the same and set aside the order of the District Forum and consequently, dismissed the complaint.
7. Hence, present revision.
8. We have heard ld. counsel for the petitioner and gone through the record.
9. It has been submitted by ld. counsel for the petitioner that vehicle was stationary at the time of loss. Section 39 of the Motor Vehicle Act 1988, specifically states that no person shall drive any motor vehicle and no owner of the motor vehicle shall call 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 the Registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displaced in the prescribed manner. This section specifically states that the vehicle should be in the process of moving whereas the stolen vehicle was a stationary vehicle. Hence plea taken by respondent no. 1 while repudiating the claim of the stationary vehicle, is not applicable at all.
10. Petitioner in the grounds of revision has pleaded;
As far as the non registration of the vehicle is concerned it is submitted that the same can be registered by the competent authority after imposing penalty upon the owner of the vehicle. The Insurance Company cannot dismiss claim of the petitioner under the guise of section 192 of the Motor Vehicle Act. It is mere negligence and inaction on the part of petitioner. Negligence on her part cannot be equated with mense rea. The petitioner did not obtain registration certificate for her own detriment.
11. As per petitioners own case, the temporary registration was valid only for a period of one month. Admittedly, petitioner did not get the vehicle registered with the concerned Authority, in accordance with the provisions of Motor Vehicles Act, 1988.
12. The State Commission, while dismissing the complaint in its impugned order observed;
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 Vehicle 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. Section 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 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, 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 Singhs case (supra). The Honble Apex Court, in the aforesaid case, laid down the principle of law, to the effect that if the vehicle was being used without valid registering 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. Similarly, 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 clam of the complainant. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Party No.1, in repudiating the claim of the complainant. The findings of the District Forum, to the contrary, being incorrect, are reversed.
13. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited. Under this section, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
14. Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. United India Insurance Company, 2011 (3) Scale 654 has observed;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
15. Thus, after going through the record, we do not find any infirmity or illegality in the impugned order passed by the State Commission, since petitioner itself in this case was at fault as after expiry of the temporary registration of the car in question, she did not apply for registration with the concerned Authority. Accordingly, present revision petition stand dismissed.
16. There shall be no order as to cost.
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(V.B. GUPTA,J) PRESIDING MEMBER ....
(VINAY KUMAR MEMBER sg/