State Consumer Disputes Redressal Commission
Chander Pal vs National Insurance Company Ltd. on 31 July, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 127 of 2017 Date of Institution : 08.05.2017 Date of Decision : 31.07.2017 Chander Pal son of Shri Hem Raj, resident of House No.633/A, EWS Colony, Dhanas, U.T., Chandigarh. ......Appellant/Complainant V e r s u s National Insurance Company Limited, Regional Office SCO No.85-86, Sector 17-D, Chandigarh. .....Respondent/opposite party Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.B.S. Bisht, Advocate for the appellant.
Sh. J.P. Nahar, Advocate for the respondent.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT Whether a poor person's livelihood can be snatched from him, the way, as has been done in the present case, by the respondent/opposite party i.e. National Insurance Company Limited. When rejecting his claim under comprehensively insurance cover, to reimburse him price of the auto, which burnt when standing stationary, at his house in the intervening night of 03.03.2016/04.03.2016 at 1.31 ½ hrs., the Insurance Company has failed to discharge its social obligation. The respondent has acted as a private business man, when rejecting claim filed by a poor person, simply on the basis of technicalities.
Consumer complaint bearing no.690 of 2016, filed by the appellant/complainant, before the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), was dismissed by it, vide order dated 25.04.2017, out of which this appeal has arisen.
Before the Forum, it was case of the appellant that to earn his livelihood, he purchased one LPG Auto (make Piaggio), through authorized dealer on 01.02.2016, for an amount of Rs.1,57,640/-, vide invoice Annexure C-2. The respondent (insurance company) comprehensively insured the said auto, at the spot, for insured declared value of Rs.1,50,100/-. In the cover note Annexure C-1, address of the insured is given as House No.633, Small flats, Dhanas, Chandigarh. The insurance policy was valid between 01.02.2016 to 31.01.2017. It is specific case of the appellant that as per promise made, original insurance policy was to be sent to him through registered post, at his given address. However, it was never received by him, till 02.03.2016. When he approached the respondent, original insurance policy was issued to him. It is on record that at the time of purchase of the said auto, temporary registration certificate valid upto 29.02.2016, was given to the appellant. It was further specific case of the appellant before the Forum that he was under an impression that to get permanent registration certificate, it is necessary to annex copy of the insurance policy alongwith the application to be moved to the Competent Authority. As the same has not been received by him, so he could not apply for the same. It is further case of the appellant that unfortunately, in the intervening night of 03.03.2016/04.03.2016, when the said auto was parked outside his house bearing no.633A, Small Flats, Dhanas, Chandigarh, at about 1.31 ½ hrs., it caught fire and it was burnt. The Police Officials were intimated. One fire tender from Fire Station, Sector 38, Chandigarh, came to the spot and fire was put under control. To so say, reliance was placed upon the document Annexure C-4, a report issued by the Chief Fire Officer, Fire and Emergency Services, Municipal Corporation, Chandigarh. Contents of the said report read thus:-
"As per the report of SFO-38, a message was received on 04.03.2016 at 1.31 ½ hrs. that fire has broken out in a vehicle no.CH01-05-189 (LPG Auto Piaggio) at #633/A, EWS Colony, Dhanas, UT, Chandigarh. In order to extinguish the fire, one fire tender from Fire Station, Sector 38, Chandigarh, was sent at 0132 hrs. on 04.03.2016. The fire team reached the venue of fire about 0135 hrs on 04.03.2016. The probable cause of fire, as per on the spot assessment, could not be ascertained."
The appellant further averred that as per terms and conditions of the insurance policy, he submitted his claim. In the meantime, when the claim was being processed, the appellant received letter dated 29.06.2016 Annexure C-5, from the respondent, asking him to submit permanent registration certificate of the vehicle, so that his claim could be settled. Vide letter dated 01.07.2016 Annexure C-6, he informed the respondent that issuance of registration certificate was under process with the State Transport Authority, Chandigarh. It was further intimated that due to delay in receipt of original insurance policy papers, he could not get the vehicle registered, at an earlier point of time. Thereafter, the appellant paid many visits to the office of the respondent, however, failed to get any result. Even legal notices, served by him upon the respondent, failed to get any desired result. When he visited the office of the respondent on 16.08.2016, it was intimated that his claim is going to be rejected. Immediately, he submitted representation to settle his claim, however, it was not done, which pushed the poor consumer to file a complaint before the Forum.
Upon notice, reply was filed by the respondent, stating that claim was rightly rejected, as the auto, in question, was being used/plied after 29.02.2016 i.e. in violation of terms and conditions of the insurance policy. Temporary registration certificate expired on 29.02.2016. Despite that, without applying for permanent registration certificate, the appellant continued to use his auto contrary to law. It was further stated that the insurance policy was sent to the appellant, through post on 04.02.2016. To say so, reliance was placed upon an entry in the dispatch register, copy of which has been placed on record as Annexure R-3. It was admitted that on 02.03.2016, correction qua address of the appellant, in the Policy was effected i.e. residence at house No.633 A, instead of 63. It was averred that other terms and conditions of the insurance policy remained same. It was stated that as the auto was being used, contrary to the provisions of law and also in violation of terms and conditions of the policy, as such, repudiation of the claim was justified.
To the reply filed, the appellant filed rejoinder. In para no.2 of the rejoinder, it was specifically stated that for want of registration certificate and permit, the auto was not used for hire and purchase. It was denied that the appellant was using the auto, in question, contrary to the provisions of law, as alleged. It was further stated that the original insurance policy papers were never received by him, as alleged by the respondent. It was specific case of the appellant that for want of receipt of original insurance policy, he could not move application for getting permanent registration certificate.
The parties led evidence in support of their case. Written arguments were also submitted by the parties.
The Forum on analyzing the documents and evidence placed on record and hearing arguments of Counsel for the parties, dismissed the complaint filed by the appellant, primarily on the ground that when the auto caught fire on 04.03.2016, it was being used contrary to the provisions of Motor Vehicles Act 1988 (in short the MVA) i.e. in the absence of permanent registration certificate. It being one of the terms and conditions of the insurance policy and on account of violation thereof, rejection of claim of the appellant was justified. To say so, reliance was placed on a judgment of the Hon'ble Supreme Court of India, titled as Narinder Singh Vs. New India Assurance Company Limited and Ors., Civil Appeal No.8463 of 2014, decided on 04.09.2014.
Counsel for the appellant has vehemently contended that there is nothing on record to show that on expiry of temporary registration certificate on 29.02.2016, the vehicle was used for hire and purchase. Fire was caught in the intervening night of 03.03.2016/04.03.2016 at 1.31 ½ hrs., when the auto was standing outside the house of the appellant. It was contended that there is nothing on record to show that the original insurance policy papers were ever received through post by the appellant. The appellant could not move application to get registration certificate, being under an impression that he needs to attach photocopy of the original insurance policy with the application. The appellant being semi-illiterate person, belonging to a poor section of society, did not know intricacies of the law. However, it was stated that there was no violation to the terms and conditions of the policy and the auto being comprehensively insured, it was duty of the respondent to reimburse for the loss caused to it, in fire.
Arguments raised were controverted by Counsel for the respondent. It was vehemently contended that the insurance policy was sent through ordinary post on 04.02.2016 and it was received by the appellant, in time. He failed to apply for permanent registration certificate and had been using the auto, contrary to the provisions of law and as such rejection of the claim was perfectly justified.
After giving our thoughtful consideration, to the rival contentions advanced by Counsel for the parties and also going through the evidence on record, we are inclined to allow this appeal. Firstly, it has to be seen, whether, the insurance policy was ever received by the appellant on or before 02.03.2016 or not. It is admitted on record that when the auto was purchased on 01.02.2016, it was insured at the spot and cover note referred to above was issued. As per documents on record Annexure C-1 (hand written cover note) and also computerized copy of the said document (cover note) Annexure C-3, address of the appellant is shown as 633/633A, Small Flats, Dhanas, Chandigarh. Perusal of original policy, copy of which has been placed on record as Annexure R-1, makes it very clear that wrong address of the appellant was mentioned therein as H.No.63, Small Flat Dhanas, Chandigarh. Whereas, he was residing at H.No.633A, Small Flats, Dhanas, Chandigarh. To say that insurance policy was sent to the appellant, through post, by the respondent, reliance was also placed on copy of dispatch register Annexure R-3. No reliance can be placed upon the said document, on which, full address of the recipient has not been mentioned and further entry in the said register also indicates that the said letter/document was sent at wrong address i.e. H.No.63, without mentioning anything further. At that stage, it might have been sent at the wrong address i.e. at H.No.63, Small Flat Dhanas, Chandigarh. It is also on record that when the original insurance policy was taken by the appellant, from the office of the respondent on 02.03.2016, his address was corrected in the same. Under above circumstances, we can safely say that the original policy documents were not received by the appellant, on account of incorrect address, and as such, the appellant could not get the same registered, before expiry of temporary registration certificate.
As stated above, the complainant is a semi-illiterate person, belonging to a poor section of society. He purchased the said auto to earn his livelihood. Under above circumstances, it can be presumed that his impression that to get permanent registration certificate, a copy of the insurance policy is to be annexed with the application, appears to be correct and under that impression on account of non-receipt of the same, he did not apply to the Competent Authority, to supply permanent registration certificate.
As per facts on record, what is prohibited is, use of a vehicle in a public place, without valid registration certificate. In the present case, fire occurred at night i.e. in the intervening night of 03.03.2016/04.03.2016 at 1.31 ½ hrs. Admittedly, the auto was not in use. It was stating stationary outside the house of the appellant. Fire Occurrence Report dated 15.03.2016 Annexure C-4 indicates that qua fire, intimation was received in the intervening night of 03.03.2016/04.03.2016 at 1.31 ½ hrs. Whether, above incident would amount to violation under the provisions of law, is to be seen by us. Before proceeding further, we will note down the provisions of Sections 39 and 43 of the MVA, which read thus:-
"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 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.
"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 8 Page 9 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."
Reading of contents of afore-extracted two provisions, makes it very clear that no person shall drive a motor vehicle, in any public place, without having valid registration certificate granted by the Competent Authority, as per the provisions of MVA. In the present case, when filing rejoinder, it was specifically denied and controverted by the appellant that on expiry of temporary registration certificate, he had used the auto, on hire and purchase basis. The Forum has wrongly stated that the appellant continued to use the auto on hire and purchase basis. Findings given by the Forum is contrary to the record. Not an iota of evidence exists on record to prove above said findings. Fire took place at night, when the auto was standing outside the house of the appellant.
Faced with above facts, Counsel for the respondent, tried to justify action of the respondent, by placing reliance upon ratio of Narinder Singh`s case (supra) stating that as the auto was being used without permanent registration certificate, rejection of the claim was perfectly justified.
We have gone through the contents of the said judgment, referred to above. With all due respect, we say that ratio of the said judgment will not cover the controversy in the present case. That was a case, where the vehicle was being used without registration certificate. It was also noted as a matter of fact that damage took place, when the vehicle met with an accident. But, in the present case, no such evidence is on record. Damage to a stationary auto was caused in fire. The provisions of Sections 39 and 43 puts on a bar to use a vehicle in public place without registration certificate. There is no bar that one can't keep his vehicle, without use, if registration certificate is not there. Too technical view has been taken by the Forum, when relying upon ratio of the judgment in the case of Narinder Singh`s case (supra). In the said case, the Hon'ble Supreme Court of India observed that when the damage is caused to a vehicle, during its use, in accident, without registration certificate, it would amount to violation of the terms and conditions of the policy and of law, as such claim was rightly repudiated by the insurance Company.
In the present case, position is altogether different. The occurring of fire incident had no nexus with the terms and conditions of the policy. Similar view was taken by the Hon'ble Supreme Court of India in Jitendra Kumar Vs. Oriental Insurance Co. Ltd. and another, Civil Appeal No.4647 of 2003, decided on 17.07.2003. In the said case, the vehicle was being used by a driver without valid driving licence, as such, the claim of the owner was rejected by the Insurance Company. However, in that case, the claim was allowed by noticing that the vehicle had caught fire, not on account of act/omission of its driver, rather, the fire had occurred on account of mechanical failure and the insurance Company was directed to make payment of claim amount to the owner of the vehicle. Relevant part of the said judgment, reads thus: -
"the vehicle in question was damaged due to a mechanical fault and no fault of the driver. For the purpose of argument, we may also proceed on the basis that the driver of the car did not have a valid driving licence. Question then is : can the Insurance Company repudiate a claim made by the owner of the vehicle which is duly insured with the Company, solely on the ground the driver of the vehicle who had nothing to do with the accident did not hold a valid licence ? Answer to this question, in our opinion, should be in the negative. Section 149 of the Motor Vehicles Act, 1988 on which reliance was placed by the State Commission, in our opinion, does not come to the aid of the Insurance Company in repudiating a claim where driver of the vehicle had not contributed in any manner to the accident. Section 149(2)(a)(ii) of the Motor Vehicles Act empowers the Insurance Company to repudiate a claim wherein the vehicle in question is damaged due to an accident to which driver of the vehicle who does not hold a valid driving licence is responsible in any manner. It does not empower the Insurance Company to repudiate a claim for damages which has occurred due to acts to which the driver has not, in any manner, contributed i.e. damages incurred due to reasons other than the act of the driver.
We notice that in the impugned order National Commission has placed reliance on the judgment of this Court in the case of New India Assurance Company (supra) which, in our opinion, has no bearing on this aspect of the case in hand. This Court in the said case held that the fake driving licence when renewed genuinely, does not acquire the validity of a genuine licence. There can be no dispute on this proposition of law. But then the judgment of this Court in the case of New India Assurance Company (supra) does not go to the extent of laying down a law which empowers the Insurance Company to repudiate any and every claim of the insured (appellant) merely because he had engaged a driver who did not have a valid licence. In the instant case, it is the case of the parties that fire in question which caused damage to the vehicle occurred due to mechanical failure and not due to any fault or act, or omission of the driver. Therefore, in our considered opinion Insurance Company could not have repudiated the claim of the appellant."
Not only as above, in the case of National Insurance Company Limited Vs. Nitin Khandelwal, IV (2008) CPJ 1 (SC), it was held by the Hon'ble Supreme Court of India that even if the ordinary vehicle is being used as taxi and is stolen, it has no nexus with the terms and conditions of the policy. Insurance Company was ordered to compensate the insured, for the loss suffered.
In the present case also, as has been held in earlier part of this order, there is nothing on record to show that after expiry of the temporary registration certificate, when fire occurred, the vehicle was being used on hire and purchase basis. The Forum has wrongly noted above fact, only on observations made to some extent, in that regard, by the respondent, without any proof thereof. Under above circumstances, the order passed by the Forum is set aside.
For the reasons recorded above, this appeal is partly accepted with costs. The respondent/opposite party is directed as under:-
To reimburse the amount of Rs.1,50,100/- i.e. the Insured Declared Value, to the appellant/complainant, alongwith interest @10% p.a. whereof two months from the date, when application for settlement of claim was, for the first time, moved by him.
To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment and also financial loss, to the appellant.
To pay cost of litigation, to the tune of Rs.11,000/-, to the appellant.
The directions given at sr.nos.(i) to (iii), shall be complied with, by the respondent/opposite party, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the interest at sr.no.(i) shall be payable @12% p.a. instead of 10% p.a., on the amount of Rs.1,50,100/- to the appellant/complainant, whereof two months from the date, when application for settlement of claim was, for the first time, moved by him and the amounts mentioned at sr.nos.(ii) and (iii), shall carry interest @12% p.a. from the date of filing of the complaint before the Forum, till realization.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
31.07.2017 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.