State Consumer Disputes Redressal Commission
M/S Bubble Export vs Bajaj Allianz General Insurance on 3 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.55 of 2016
Date of institution : 24.02.2016
Date of decision : 03.05.2016
M/s Bubble Export D-140, Focal Point, Jalandhar, through its Partner
Taranbir Singh, aged 37 years.
....Complainant
Versus
1. Bajaj Allianz General Insurance Company Ltd., Second Floor,
Satnam Complex, near BMC Chowk, Jalandhar-144001,
through its Branch Manager.
2. M/s Joshi Auto Zone Pvt. Ltd., Narang Square NH-1, G.T. Road,
Paragpur, Jalandhar, through its Manager.
3. Mercedes Benz India Ltd.-E-3, MIDC Chakan Phase-3, Chakan,
Industrial Area, Kurali & Nighoje, Tal. Khed, Pune-410501,
Maharashtra (India), through its Director.
4. Rajesh Khanna, Surveyor-Loss Assessors, House No.71-B,
Jyoti Nagar, Cool Road, Jalandhar.
....Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the complainant : Shri Munish Goel, Advocate JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, M/s Bubble Export, which is a partnership firm, has filed the present complaint, through its partner, Taranbir Singh, under Section 17(1) (a) (i) of the Consumer Protection Consumer Complaint No.55 of 2016 2 Act, 1986, for the issuance of following directions to the opposite parties:
i) to pay amount of Rs.36,46,898/-, being the IDV, on account of the total loss and damage to the insured car due to the accident, on account of the deficiency in service and negligence on the part of the opposite parties;
ii) to pay interest at the rate of 12% per annum on the said amount from the date of accident till the date of actual payment;
iii) to pay Rs.25,00,000/-, as compensation/punitive damages; and
iv) to pay Rs.30,000/-, as cost of proceedings.
It has been alleged in the complaint that the complainant, through its partner, purchased one car make Mercedes Benz, for earning its livelihood by means of self-employment, from opposite party No.2, authorized dealer of opposite party No.3, on 28.08.2015, for total consideration of Rs.38,38,840/-. At that time, opposite party No.2 collected Rs.2,95,000/- from him in advance as registration fee of the car for getting the same registered with the Registering Authority, i.e. D.T.O. Jalandhar, as per the mandate of the Punjab State Government; which made it obligatory for that opposite party to collect and deposit the registration fee with the said Registering Authority. That amount was paid by him by means of cheque No.440426 dated 28.08.2015 drawn on Capital Local Area Bank, Jalandhar. The concerned official/Manager, after accepting that cheque, gave assurance that they would get the car registered with the Registering Authority, within the validity period of 30 days of the issuance of the Consumer Complaint No.55 of 2016 3 Temporary Registration number and that he should not worry on that account. It was warranted by opposite party No.2, after receiving that amount, that it was its liability to complete and comply with the requirements and formalities and that in case it does not get the vehicle registered, within 30 days, then it would indemnify him for the financial loss suffered by him and compensate him. It was at the behest of that opposite party that the car was got insured with opposite party No.1; as those opposite parties were having tie-up arrangements. The "Motor Vehicle Cover Note" dated 28.08.2015 was issued by opposite party No.1 for IDV of Rs.36,46,898/- for the period 28.08.2015 to 27.08.2016 after receiving Rs.1,10,595/-, as the premium. He visited opposite party No.2 on 08.09.2015, 18.09.2015 and 24.09.2015 for getting the Registration Certificate and had also been making inquiries on the telephone. Every time, the concerned official of opposite party No.2 put him off on one pretext or the other and always gave an assurance that the Registration Certificate would be delivered to him and he should not worry on that account. Opposite party No.1 failed to deliver the Policy documents; though it was mandatory and obligatory on its part to issue the same. The terms and conditions, including the exclusion clause of the Policy, were never communicated to him, nor the same were made known or explained to him at the time of issuance of said "Motor Vehicle Cover Note". Thus, the terms and conditions were never part of the Policy. Therefore, opposite party No.1 violated the mandatory and statutory provisions of I.R.D.A. (Protection of Policyholder's Interest) Regulations, 2002. The Policy was to be forwarded to him and he was to be informed that Consumer Complaint No.55 of 2016 4 there was "Free Look Period" of 15 days for exercising the option for review of the terms and conditions of the Policy. On 07.10.2015 at about 3.00 P.M., he had gone to Ludhiana in the said car; which was being driven by Guddu Singh, driver. While they were returning to Jalandhar and reached near opposite Pepsi Factory, G.T. Road, Phillaur, at about 8.00 P.M., suddenly a stray animal came in front of the car and the driver, in order to avoid the impact with that animal, applied the brakes. As a result thereof, the car overturned and after rolling collided with the sewer drain constructed by the side of the road and thereafter came back to its right position. The car was extensively and totally damaged. Intimation about the accident was immediately given to opposite party No.2 on the same day, who took away the car with the help of Recovery Van. Intimation was also given to opposite party No.1 about the accident. As there was no response regarding the "Permanent Registration Certificate" from the side of opposite party No.2, so he went to its office for collecting the same; as the same was required for preferring the "Own Damage Claim" to opposite party No.1. He was shocked and surprised to know that opposite party No.2 had not deposited the registration fee with the Registering Authority within the stipulated period and it could not give any valid and plausible reason for that omission. In fact, that registration fee/Road Tax was deposited by opposite party No.2 on 08.10.2015, after the accident itself and after receiving the intimation about the accident. Thus, there was deficiency in service on its part and it was gravely negligent and careless in not depositing the registration fee and obtaining the "Permanent Registration Certificate". Consumer Complaint No.55 of 2016 5 On that account, it is bound to indemnify him for the monetary loss caused on account of the total loss of the car, which is equal to the IDV i.e. Rs.36,46,898/- and is also liable to pay interest on that amount at the rate of 12% per annum from the date of accident till the date of actual realization. In December, 2015, he received notice dated 27.11.2015 from opposite party No.1, mentioning therein that the Registration Certificate was not valid and asked for his explanation. In reply to that notice, he explained the above said factual position regarding the delay in deposit of registration fee by opposite party No.2 and that on the pretext of invalid registration, the insurance claim of accident cannot be denied and also requested that opposite party to enquire from opposite party No.2; since the car was insured on account of the tie-up arrangement between those opposite parties. In the month of January, 2016, he received a letter from opposite party No.1, informing him that the claim made by him stands repudiated; as the Road Tax was paid on 08.10.2015, after the occurrence of the accident. Thus, it was on account of the negligence, carelessness and deficiency in service on the part of opposite party No.2, in late deposit of registration fee, that his genuine, bonafide and legitimate own damage claim of total loss was rejected. On account of that act of opposite party No.2, he suffered monetary loss, mental tension, pain, agony and harassment. Moreover, the rejection/repudiation of the claim by opposite party No.1 is arbitrary, mala fide and illegal. The copy of the surveyor's report was not provided to him, despite he asked for the same and he was left in dark regarding the loss or damage caused to the vehicle. Consumer Complaint No.55 of 2016 6 However, it was conveyed to him orally by opposite party No.4 that it was a case of total loss. At the time of sale of the car, representative of opposite party No.2 had told that the car was fitted with a number of airbags for the safety of passengers travelling therein, in case of any unfortunate happening. It was on account of the allurement and temptation given by opposite party No.2 that the car was best in the global market, having safety provision of airbags inbuilt in the car, that he purchased the same. Despite extensive damage in the accident, none of the airbags opened; as a result of which his own life and the life of the driver were put to peril and exposed them to be killed in the accident. However, with the grace of Almighty God, their escape was providential. Legal notice dated 14.10.2015 and reminder dated 22.12.2015 were sent to opposite party No.3, but it turned deaf ear and did not respond to that notice. There was inherent manufacturing defect in the car and on that account opposite party No.3 is liable to pay compensation and punitive damages for misleading him and adopting unfair trade practice. However, he reserves his right to prefer complaint against that opposite party, separately.
2. We have heard learned counsel for the complainant and have carefully gone through the allegations made in the complaint and the documents annexed therewith.
3. When counsel for the complainant made his submissions, he did not press this complaint against opposite party No.1-Insurance Company and rightly so. On the one hand, the complainant is alleging in the complaint that the Policy documents, terms and conditions thereof and the exclusion clause were not supplied to him by this Consumer Complaint No.55 of 2016 7 opposite party and on the other hand he has based his claim on the Insurance Cover itself. The Cover Note, which was issued to the complainant at the time the car was insured with this opposite party, has been annexed with the complaint and is at Page-41. A perusal thereof shows that it was valid from 16.06.2015 to 15.10.2015. As per the allegations made in the complaint, the car met with an accident on 07.10.2015. The complainant was bound by the terms and conditions, contained in that Cover Note. In Column-7 thereof, it is mentioned "Limitation as to use (see over leaf)". Only the photostat copy of the front page of the Cover Note was so annexed with the complaint and the photostat copy of the conditions printed on the backside thereof was never annexed with the complaint. For not producing the conditions "Limitation as to use", which were printed on the back of the first page, an adverse inference is to be drawn against the complainant. The law has been well settled by the Hon'ble Supreme Court in (Narinder Singh Vs. New India Assurance Company Limited & Ors.) (2014) (5) R.A.J. 199 that as per Section 39 of the Motor Vehicles Act, no person can drive motor vehicle in a public place without any registration and for violation of that Section, the Insurance Company is not liable. It was well within the knowledge of the counsel for the complainant that the claim made regarding the damage to the car to opposite party No.1 was validly repudiated on that ground and it was on that account that he submitted that he was not pressing this complaint against opposite party No.1 and wants to proceed with the same only against opposite party No.2. Consumer Complaint No.55 of 2016 8
4. From the allegations made in the complaint and the documents annexed therewith, it prima facie stands proved that at the time of purchase of the car from opposite party No.2, the complainant had deposited the registration charges/Road Tax to the tune of Rs.2,95,000/-, as per the mandate of the Punjab Government. It was the bounden duty of opposite party No.2 to obtain the Registration Certificate, by depositing that amount with the Registering Authority on the day the same was received. As per the Notification No.8/1/98- 1T2/1107 dated 28.06.2011 issued by the Government of Punjab, the complainant was not to be allowed to drive the car out of showroom, unless the Temporary Registration number was allotted by opposite party No.2 after getting the registration fee and the Motor Vehicle Tax (in lump sum), as fixed by the Government from time to time and the Motor Vehicle Tax, so obtained, was required to be deposited by way of online system into the State Bank of India on the same day by opposite party No.2. The failure of that opposite party to deposit the registration fee/Road Tax, so deposited by the complainant, amounts to deficiency in service.
5. Can for this deficiency in service on the part of opposite party No.2, the direction is to be issued to pay the amounts, as claimed in the complaint? Counsel for the complainant submitted that this opposite party is to be directed to pay those amounts, as has been held by this Commission itself in F.A. No.457 of 2015 decided on 10.03.2016 (Raj Vehicles Pvt. Ltd. Vs. Mohinder Kumar & Others).
6. We are unable to understand, as to how opposite party No.2-Dealer can be ordered to pay the amount of Rs.36,46,898/-, as Consumer Complaint No.55 of 2016 9 the IDV, and Rs.25,00,000/-, as compensation for the said deficiency in service. No doubt, in the said appeal, the Coordinate Bench of this Commission had upheld the order passed by the District Forum, directing the dealer to pay the amount spent by the complainant for the repairs of the car on account of its deficiency in service in not obtaining the Registration Certificate for the car despite the payment of the registration charges and on account of the refusal of the Insurance Company to pay that amount on the ground that at the time the damage was caused to the car in the accident, the same was not having a Registration Certificate. It is pertinent to note that the finding of the District Forum regarding the quantum of that amount was upheld, as the appellant had not challenged the amount, so assessed by the District Forum. On the basis of that judgment, it cannot be held that whatever amount the Insurance Company was liable to pay, opposite party No.2-Dealer is liable to pay the same to the complainant for deficiency in service on its part in not obtaining the Registration Certificate, despite the deposit of Registration Charges. The quantum of the compensation for that deficiency is to be determined, by keeping in view the nature of the deficiency in service and the loss or injury suffered by the complainant, on account of that deficiency in service.
7. After the period of Temporary Registration had expired and opposite party No.2 had not provided the Permanent Registration Certificate to the complainant, he should not have taken the car for driving in the public place or other place. He violated the provisions of Section 39 of the Motor Vehicles Act, by taking the same from Consumer Complaint No.55 of 2016 10 Jalandhar to Ludhiana and back to Jalandhar, when the accident took place. It can well be said that on account of the non-providing of Permanent Registration Certificate, the complainant was to be deprived of the use of the car and, as such, the compensation was to be assessed for loss or injury caused to the complainant on account of the non-use of the car. No such fact has been pleaded in the complaint, nor any document has been placed on the record that the non-use of the car would have resulted into loss or injury to the complainant, running into more than Rs.20,00,000/-. It becomes very much clear that only in order to file the complaint before this Commission, that the amount of Rs.36,46,898/- and compensation of Rs.25,00,000/- has been demanded from opposite party No.2/Dealer. The complaint is not maintainable before this Commission.
8. The same is dismissed accordingly, without prejudice to the rights to the complainant to file fresh complaint before the appropriate District Forum.
9. The arguments in this case were heard on 27.04.2016 and the order was reserved. Now, the order be communicated to the parties.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER May 03, 2016.
(Gurmeet S)