BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.548 of 2019

      Date of Instt. 18.11.2019

      Date of Decision: 18.08.2023

Sh. Bishnu Deo Jha S/o Upinder Nath Jha R/o H. No.6, New Deol Nagar, Near SP Prime School, Jalandhar (Punjab).

..........Complainant

Versus

1.       The New India Assurance Company Limited, D. O. 122200 New     India Centre First Floor 17-A, Cooperage Road, Mumbai       (registration. Office)

2.       The New India Assurance Company Limited, Branch Office    PUDA Complex Jalandhar.

3.       Kosmo Vehicles Pvt. Ltd. Near DPS Public School G. T. Road,        Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:         Dr. Harveen Bhardwaj            (President)

 Smt. Jyotsna                           (Member)

Present:       None for the Complainant.

                   Sh. R. K. Sharma, Adv. Counsel for OPs No.1 and 2.

                   Sh. Rajat Chopra, Adv. Counsel for OP No.3.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the complainant purchased car make Tata Motors Model Nexon (D) XZ+ST engine no.1.5 CRAILO1KRYW40889 chassis No. MAT627162JLK46834 invoice No.VS/1609 dated 13.11.2018 Financed from Bank of Baroda Mai hira Gate Jalandhar. The was vehicle Purchased From Kosmo vehicles Pvt. Ltd., Near DPS Public School GT Road Jalandhar (Tata Motors) i.e. OP No.3. The Complainant got his vehicle insured from OPs No.1 and 2, Policy no.12220031180950096890 proposal no.PPVBU5610641 issued on 13.11.2018 validity 13.11.2018 to 21.11.2021 (Motor liability period and 13.11.2018 to 12.11.2019 own damage period. The complainant car was not issued registration certificate number by DTO Jalandhar due to negligence of the OP No.3 as OP No.3 did not deposited the RTO fee in time because of which registered number of the vehicle was not issued to complainant. So complainant suffered a lot because the negligence done by OP No.3. Moreover, OP No.3 has also not issued the second key of the vehicle to the complainant. Now OP No.3 harassing the complainant and blackmailing the complainant and because of the blackmail, complainant has purchased new vehicle from the OP No.3  and now OP No.3 has adjusted the RTO fee in the new car purchased by complainant. After purchasing Second Vehicle from OP No.3 dated 17.01.2019, the OP No.3 did not get issue the insurance policy instantly which is required to be issued at the same time as per Law, but OP No.3 took 13 days to issue the insurance policy which is dated 31.01.2019. The Complainant has given this reference to update the habitual tendency to harass the Complainant. The complainant’s car was stolen from Alhapur fly-over Palwal NH 19 at 8.30 PM on dated 03.01.2019. Complainant got registered the F.I.R at Palwal Police Station F.I.R No.0004 dated 04.01.2019 at 17.30 hours. The complainant has informed OPs No.1 and 2 about the theft of the vehicle but OPs No.1 and 2 have failed to entertained the Claim intimation letter submitted at the branch of OPs No.1 and 2 on 08.01.2019 along with all necessary documents required by OPs No.1 and 2 which is duly received by the branch for the compensation of lost of vehicle as complainant lost vehicle insured with OPs No.1 & 2, but OPs No.1 & 2 are not settling the claim. The request of the legitimate claim and OPs No.1 & 2 are deliberately avoiding paying the legitimate claim. The Complainant has availed the loan from bank of Baroda Mai Hira Gate Branch Jalandhar of Rs.9,72,000 on 13.11.2018 there is hypothecation on the insurance policy and as opposite party are delaying the settlement of claim of lost vehicle the bank is also claiming their installment. The complainant is unnecessary being charged by the bank of installment of the loan taken on the vehicle which is being untraceable as per untraceable report issued by the Court. The complainant is being harassed because of OPs No.1 and 2 as OPs No.1 and 2 are not settling the legitimate claim though F.I.R being launched on 04.01.2019 and it's been 3 months plus noting fruitful has been done and delaying tactics are been used by OPs No.1 and 2 for unknown reasons best known to OPs No.1 and 2. The complainant through its counsel served a legal notice to the OPs, but the OPs failed to give any reply and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to settle the claim of Rs.9,72,000/- of the vehicle lost. Further, OPs be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.31,000/- as litigation expenses.

2.                Notice of the complaint was sent to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed their joint written reply and contested the complaint by taking preliminary objections that the complaint is pre-matured, as the complainant instead of fulfilling the requirements for processing and settling the by the answering OPs as per terms and conditions of insurance policy has filed the present complaint. Admittedly, the insured vehicle was being plied without Registration Certificate as the vehicle was not registered with the Registering Authority and No Registration Number had been issued to the insured vehicle at the time of loss. The insured vehicle was being plied in contravention of section 39 of the Motor Vehicle Act which reads as under:-

                   "No person shall drive any motor vehicle and no owner of       the motor vehicle shall cause or permit the vehicle to be driven in    any public place or in any other public 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"

                   It is further averred that the Hon'ble Supreme Court of India vide judgment dated 04-09-2014 in SLP (Civil) No. 26308 of 2013 titled "Narinder Singh Vs. New India Assurance Co. Ltd." has held that use of vehicle on the public road without any registration is not only an offence punishable under section 192 of the Motor Vehicle Act but also a fundamental breach of terms and conditions of the policy contract as such the claims in case of use of vehicle without registration are not payable and upheld the orders passed by the state commission and National Commission.

                   The answering OPs are unable to process and settle the claim as per terms and conditions of the insurance policy as in FIR lodged with respect to alleged loss, neither Engine Number nor Chassis Number nor the color of the insured vehicle has been mentioned. The answering OPs vide repeated requests and reminders have asked the complainant to provide amended FIR after getting the Engine Number, Chassis Number and Color of the vehicle incorporated in the FIR and provide second key of the insured vehicle. As the complainant failed to provide the required documents and second key of the vehicle to proceed further with the claim, the claim of the complainant was closed as No Claim and the complainant was informed accordingly. It is further averred that the complaint is bad for non-joinder of necessary parties. Bank of Baroda, Mai Hira Gate, Jalandhar, the Financier of Insured vehicle has not been impleaded as necessary party, as such the complaint is liable to be dismissed. On merits, the factum with regard to purchase of car by the complainant as well as insurance of the car is admitted. It is also admitted that the vehicle was not registered and the facts regarding intimation of loss of the vehicle and registration of FIR is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts, as the complainant is guilty of materially concealing and suppressing material facts and has approached this  Forum with unclean hands with the sole intention of deceiving this  Forum. It is specifically submitted that the complainant’s suppression and concealment is evident from the fact that the complainant himself approached the answering OP with a request to purchase new vehicle after adjusting his old Indica Vista Car in the margin money and complainant also told the OP No.3 that he will himself get RC of the new vehicle from the concerned authorities and accordingly out of the money received from the complainant an amount of Rs.40,000/- was returned in bank account of the complainant, apart from this remaining amount of Rs.34,050/- was adjusted in the down payment/margin money for the second car so purchased by the complainant. It is worthwhile to mention here that the complainant himself provided one NOC of his old car to the answering opposite party through mail. In the meanwhile the new vehicle was delivered to the complainant and thereafter the complainant had taken the delivery of new car Nexon from the answering OP. But later on the be NOC so provided by the complainant was found to be fake and fabricated in order to get wrongful gain and when the officials of the answering OPs thoroughly looked into the matter, they came to know that Indica Vista car bearing No. PB-08-CX-2300 of the complainant was hypothecated with Supreme Finance Corporation (Regd.) Jalandhar and NOC was fake and the same was never issued by M/s Supreme Finance Corporation (Regd.). After coming to light the fraud committed by the complainant upon the answering OP, the official concerned of answering OP approached the complainant and clearly told him that they were going to report the matter to the police and thereafter the complainant felt apology and the matter was compromised. The complainant thereafter approached the answering OP and requested the official concern that he was not having sufficient funds available with him for paying the same to the finance company of earlier vehicle for procuring NOC and as per the request of the complainant an amount of Rs.40,000/- was paid to the complainant enabling the complainant to settle the dues with Supreme Finance Corporation and for getting genuine NOC from Supreme Finance Corporation and thereafter, NOC was provided by the complainant to the OP No.3 on 21.02.2019. Later on, as per the request of the complainant the amount of Rs.34,050/- was adjusted towards the down payment of another second new car Nexon, which was thereafter purchased by the complainant on 17.01.2019 from answering OP. However, all these facts were duly acknowledged by the complainant vide writing in favour of answering opposite party. Moreover, as per the instructions of the complainant the OP No.3 got prepared R.C. of second new car of the complainant as the complainant admitted that due to his own conduct he had suffered a loss and now this time R.C. of the second vehicle should be prepared through the opposite party No.3. Moreover, jurisdiction this Forum has got no jurisdiction to decide the matter in question. It is further averred that the complainant has failed to disclose all the facts before this Forum which if disclosed would have indicated that there is no cause of action in favour of the complainant against the answering narrated OP. The facts by the complainant have been represented in a misleading manner. It is further averred that the complaint is ex-facie, misconceived, vexatious, untenable and devoid of any merit and has made this complaint in order to raise a premeditated, false and frivolous prosecution as the present complaint is an outcome of fraud committed by the complainant upon the answering OP, hence the complainant is not a consumer of ansering OP. It is further averred that the answering OP has got its right to get register a criminal complaint of cheating and fraud committed by complainant by providing fake NOC, for which the complainant is liable to be punished according to law. It is further averred that the complainant has no true grievance or valid cause of action qua the answering OP. It is further averred that the complaint is baseless and is flagrant abuse of process of law. The complaint is frivolous and vexatious and is time barred thus, the same is liable to be dismissed. On merits, the factum with regard to purchase of the car by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder not filed by the complainant.

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the OPs only as none has appeared on behalf of the complainant since last so many dates and have also gone through the case file very minutely.

7.                The complainant has proved on record that he had purchased car make Tata Motors Model Nexon (D) XZ+ST from OP No.3 and the invoice has been proved as Ex.C-1. He has purchased this car for Rs.9,44,993/-. It is admitted and proved vide Ex.C-2 that the complainant purchased the insurance policy and got his vehicle insured with the OPs with validity from 13.11.2018 to 21.11.2021. It is also admitted and proved that the vehicle was being plied by the complainant without registration number as the vehicle was not registered with the RTA. The complainant has alleged that the OP No.3 has not got issued RC for him and this fact has been denied by the OP No.3. The OP No.3 has alleged that it was the complainant who himself has committed that he himself will make arrangements for the issuance of the RC of his new car, therefore, there is no negligence or fault on the part of the OP and the amount for the RC was returned to the complainant. The complainant has not proved on record that he had deposited the fee with the OP No.3 for getting the RC, therefore, it cannot be said that the negligence was on the part of the OP No.3.

8.                The complainant has further alleged that his car was stolen from Alhapur fly-over Palwal. He has proved on record the FIR Ex.C-3, Motor Claim Intimation Ex.C-4 and the Untraced Report has been proved as Ex.C-5.

9.                The contention of the OP is that in the FIR, the complainant has not mentioned any chassis number, engine number or the colour of the vehicle, which was allegedly stolen, therefore, no claim can be settled. Perusal of the FIR Ex.C-3 shows that as per the complaint of the complainant only the vehicle number PB08AF marka TATA Nexon has been mentioned, except this nothing has been mentioned by the complainant in his complaint before the police and in the FIR. Ex.O-4 to Ex.O-8 show that the OP wrote letters to the complainant asking the complainant to submit original RC, original second key and it has specifically been mentioned to get the engine number, chassis number and color mentioned in the FIR and file the amended FIR before the OPs, so that the claim can be proceeded further. When the complainant failed to submit the documents before the OPs, vide Ex.O-6, the claim of the complainant was repudiated as ‘no claim’. In such circumstances, when the complainant failed to produce the documents before the OPs and has failed to satisfy the OPs, there is no deficiency in service on the part of the OPs and there is no unfair trade practice also. Thus, the complaint of the complainant is without merits and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room.

Dated                              Jyotsna                        Dr. Harveen Bhardwaj     

18.08.2023                    Member                                 President