STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 05.09.2017
Date of final hearing: 27.04.2023
Date of pronouncement: 08.05.2023
First Appeal No.1068 of 2017
IN THE MATTER OF:
Sh. Akash Goyal S/o Late Sh. Vinod Goyal, R/o House No.1081- 82, Goyal Cottage, Sector-12, HUDA being partner of Spine Comforts Products India.
…..Appellant
Versus
1. Bharti Axa General Insurance Company Limited, Big JOS Tower, 2nd Floor, Netaji Subhash Palace, Pitampura, New Delhi, through its Managing Director/Authorized Signatory.
2. Sidheshwar Motors Pvt. Ltd. Near Hero Hounda Chowk, Gurgaon- 122001 through its Managing Director/Authorized Signatory.
3. Nissan Motors India Pvt. Ltd. Malwa Motors, Near Toll Plaza GT Road, Panipat through its Managing Director.
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Present:- None for the appellant.
Sh. Sachin Ohri, Advocate for the respondent No.1.
None for respondents No. 2 & 3 despite service.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 93 days in filing of present appeal stands condoned, for the reasons stated in the application for condonation of delay.
2. Vide order dated 26.04.2017 complainant-Akash Goyal has been non-suited by District Consumer Disputes Redressal Forum, Panipat (In short “District Commission”) as his complaint case No.64 of 2015 has been dismissed. Legality to this order (26.04.2017) has been questioned by complainant in present appeal.
3. Factual matrix is that: as per complainant’s case, his father purchased vehicle make NISSAN TERRANO bearing No. HR-42C-0927, vide invoice No. SMPL13000140 dated 11.11.2013. Invoice Ex.C-1 is in the name of ‘M/s Spine Comfort Products India’. It is pleaded that purchased vehicle was for personal use with insurance policy No. S9005847. Vehicle met with accident on 07.11.2014. Complainant’s father died in that accident and driver suffered injuries. Criminal case through FIR No.429 of 2014 u/s 279/337/304-A/427 IPC dated 07.11.2014 was registered at P.S. Sidhawali Ahir, Bhagpat (U.P.). After accident relative of complainant approached OP No.3 for repairing of vehicle, whose representatives showed their inability to repair and referred complainant and his car at Malwa Carezone Pvt. Ltd. NH-1, 31 KM stone, GT Road, Kundli, Sonepat. When vehicle was taken at that workshop, they (workshop) prepared estimate of Rs.7,75,030/- and thereafter refused to do repair, as vehicle was not covered under insurance policy on the date of accident. As per plea, complainant was shocked to see that vehicle was purchased on 11.11.2013 and insurance policy was issued for period from 07.11.2013 to 06.11.2014, which was not possible and it clearly shows negligence on the part of the OP No.1. It is pleaded that representative of Malwa Nissan Kundli charged Rs.10,000/- on behalf of OP No.3 vide receipt No.3642 dated 18.11.2014 and further told that they will charge Rs.500/- per day. It is also pleaded that due to default in airbags of vehicle, death resulted in the accident. There is deficiency in services on the part of OP No.2 and 3.
4. Upon notice, OPs No.1 & 2 did not appear. OP No.1 was proceeded against exparte vide order dated 06.05.2015, while OP No.2 was proceeded against exparte vide order dated 11.09.2015.
5. OP No. 3-insurer filed written statement. It raised preliminary objections that complaint is not maintainable; Forum has no jurisdiction; complainant has no locus standi and is estopped by his own acts and conduct from filing complaint. On merits OP No. 3 has pleaded that vehicle was purchased by father of complainant and period of insurance was from 07.11.2013 to 06.11.2014 and it did not cover date of accident (07.11.2014). Policy was issued in the name of M/s Spine Comfort Products India by OP No.1. It has been denied that vehicle was purchased on 11.11.2013 vide invoice No. SMPL13000140. It is pleaded that estimate of Rs.7,75,030/- was prepared by Malwa Nissan Kundli. It is denied that insurer’s surveyor allegedly prepared estimate of vehicle No. HR-42C-0927 vide estimate Nos. 606-608 dated 18.11.2014 and thereafter allegedly checked the documents and showed inability to repair vehicle. It is also denied that there is any deficiency in services on the part of the OP No.1 and Rs.10,000/- was charged from complainant vide receipt No. 3642 dated 18.11.2014 and he was allegedly misbehaved and threatened.
6. Complainant, as well as, OP No. 1/insurer led their respective evidence (oral and documentary) before learned District Commission. On subjectively analyzing the same, learned District Commission, Panipat vide impugned order dated 26.04.2017 has dismissed the complaint, thereby giving rise to filing of this appeal by complainant/appellant.
7. During the proceedings of this appeal, as it is so apparent from previous zimni orders that after 12.07.2019, none has put in appearance on behalf of appellant. This being the position, this Commission has been left with no other alternative but to disposed off this appeal by perusing contents of memorandum of appeal.
8. Appellant/complainant, in body of his appeal has asserted that impugned order dated 26.04.2017 passed by learned District Commission is erroneous and learned District Commission wrongly dismissed the complaint. Mainly, impugned order dated 26.04.2017 has been attacked by pleading that vehicle bearing No. HR-42C-0927 with Chasis No. MDHHSNAW5DA001891, Engine No. E041599 was purchased from respondent No. 2 by father of complainant in the name of M/s Spine Comfort Products India for personal use. Invoice No. SMPL13000140 dated 11.11.2013 is Annexure P-4. Insurance policy No. S9005847 (Annexure P-5) concerning newly purchased vehicle was provided by respondent No. 1. Vehicle met with an accident on 07.11.2014. Respondent No.3/insurer showed its inability to repair the vehicle on the ground that: insurance policy does not cover the date of accident, as insurance expired on 06.11.2017 (midnight). As per plea of memorandum of appeal, it is not possible that vehicle purchased on 11.11.2013 would carry insurance policy from back date, starting from 07.11.2013. This shows negligence of respondent No.1/insurer. Primarily, on these pleas of memorandum of appeal; it has been prayed that appeal be accepted.
9. While controverting the pleas taken in the memorandum of appeal; learned counsel appearing for respondent No.1/insurer has urged that impugned order of learned District Commission is legally justified, on given facts and no interference is warranted.
10. Insurance Policy (Annexure P-5 & Ex.C-3) was issued in the name of ‘M/s Spine Comfort Products India’ on 07.11.2013 at 03:30 pm. No registration number of vehicle is reflected in the insurance policy as the vehicle insured was new. The policy was live and effective from 07.11.2013 (15:30) to 06.11.2014 (midnight). Registration certificate (Ex.C-4) of the vehicle was issued on 02nd December, 2013. Ex. R-4 is the cheque of the amount of Rs.27,452/-, issued on 07.11.2013 in the name of Bharti Axa Gen. Ins. Co. Limited. This cheque has been signed by authorised signatory of OP No.2. Exactly, this amount (Rs.27,452/-) is mentioned in the policy (Annexure P-5 & Ex.C-3) being total premium payable. It is established that premium of Rs.27,452/- qua insurance of the vehicle was accepted by insurer on delivery of account payee cheque bearing date 07.11.2013 to it. Hence, insurance policy (Annexure P-5 & Ex.C-3) and cheque of premium (Ex.R-4) runs in consonance with each other. Obviously, on handing over of this cheque on 07.11.2013 to insurer; it had issued policy in relation to new vehicle in the insured’s name viz. ‘M/s Spine Comfort Products India’.
11. At legal pedestal; insurance policy constitutes a binding contract between insured and insurer for all intents and purposes. It is not the case of complainant that amount of Rs.27,452/- was not paid towards premium qua issuance of insurance policy for new vehicle. It is also not the case that cheque Ex.R-4 was not enchased and premium amount, not credited, in the name of insurer. Had, there been any wrong recital mentioned in insurance policy, particularly, with regard to period for which policy was to run, then nothing stopped the insured to raise its grievances with insurer at any time during currency of policy i.e. from 07.11.2013 to 06.11.2014, but there is no overt act by complainant in this arena. He had not lodged any protest with insurer in this regard, even for once, during the currency of insurance policy. Needless, to say that while submitting documents for getting the vehicle registered with concerned Registering Authority; documents including insurance policy, invoice etc. are always submitted. Obviously, complainant must had submitted these documents viz. invoice and insurance policy at that time. This means that complainant was always in knowledge that contents of insurance policy in relation to newly purchased vehicle are correct, particularly with regard to period of its operation. It requires mention that in normal course of event; no vehicle gets a roll out for plying on road from the premises of agency, unless it equipped with the shield of insurance cover. There can be no exceptions so far as the genesis of present case is concerned. Above mentioned reasons which are the offshoot of facts and circumstances of this case would project, in unambiguous terms that insurance policy got the light of its day on 07.11.2013 (03:30 pm) and its period of operation was upto 06.11.2014 (midnight). Obviously, it did not cover ill-fitted day (07.11.2014) on which this vehicle met with accident. May be, invoice of the vehicle is dated 11.11.2013 yet the insurance policy sans any recital that it would be begin to operate from the date of invoice. Above discussion would palpably give rise to an inference that: factually insured got the vehicle rolled out from the premises of OP No. 2 on 07.11.2013 but conveniently, at its own wisdom, choose to obtain invoice on 11.11.2013.
12. In view of above reasons, this Commission does not see any illegality or perversity in the impugned order dated 26.04.2017 passed by learned District Commission, Panipat. Impugned order dated 26.04.2017 is outcome of proper appreciation of facts and evidence, adduced before learned District Commission. No interference in the same is warranted. It is maintained and affirmed. This appeal being devoid of merits stands dismissed.
13. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 08th May, 2023
