ORIENTAL INSURANCE CO. LTD. & ANR.
11TH MALL, NEAR SBI,
SOLAN. H.P.                                                      ...........Petitioner(s)
                                                      Versus    
1. VIKRAM KANDA
S/O SHRI R.L KANDA,
R/O B-9, 999/IP VISHNU NAGAR,
JAGADHARI
YAMUNA NAGAR.  HARYANA                     ...........Respondent(s)

BEFORE:    
     HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT
     HON'BLE MRS. M. SHREESHA,MEMBER

Dated : 01 Sep 2016

M. SHREESHA
 
1.        Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) is to the order dated 03.12.2013 passed by the State Consumer Disputes Redressal Commission, Himachal Pradesh, Shimla (in short, ‘the State Commission’), in First Appeal No.259/2013, preferred by the Complainant.  By  the  impugned order, the State Commission has set aside the order of the  District Consumer  Disputes  Redressal Forum, Solan (in short, ‘the District Forum) and  directed  the insurance company to pay a sum  of  Rs.5,94,000/-  with interest @ 9% p.a., from the date of filing of the Complaint, i.e., 30.10.2010, till the date of realization, together with compensation of Rs.10,000/- and costs of Rs.5,000/-.

2.      Succinctly put, the facts material to the case are that the Complainant purchased a Bolero SLX Vehicle on 14.06.2008 for Rs.5,94,000/- and got it insured,  covering the period from 19.06.2008 to 18.07.2009.  The said vehicle was given a  temporary  registration No. HP 51-A Temp 7366 valid from 14.06.2008 to 13.07.2008.  It is averred by the Complainant  that on 27.12.2008, when the said vehicle was parked at his residence, it was stolen and immediately an FIR was lodged.  On 20.03.2009, the police filed their final report before the JMIC, Gurgaon, stating that the  vehicle was ‘untraceable’.  On  21.01.2010,  the Complainant sent a  registered  letter  to the insurance company stating that he  could  not  get the registration certificate in time as he was pre-occupied with matrimonial disputes. It is pleaded by the Complainant that despite submitting all the documents with the Insurance Company, the claim was not settled. Hence the Complainant approached the District Forum and sought a direction to the Opposite Party to pay the insured amount of Rs.5,94,000/-  with interest, compensation and costs.

3.      The Opposite Party filed their Written Version pleading that the temporary registration of the vehicle had expired on 13.07.2008, which was much prior to 27.12.2008, the date of the alleged theft.  It was stated that after the expiry of the temporary registration, the driver as well as the owner of the vehicle were prohibited from  the use of plying of the vehicle at  any public place.  By using the vehicle on the date of occurrence of  the  theft, i.e., on the night intervening  between 26-27.12.2008,   the  owner  had committed  a serious   breach of Sections 39 & 56 of  the  Motor Vehicle Act, 1988  and the Rules, made thereunder.  It was  further  pleaded  that  it  was mandatory for the insured to report  the incident of  theft,  immediately i.e.,  within 48  hours of  its occurrence, but  that  they had received  the  information  only  on 05.01.2009, vide letter dated 30.12.2008, which  was beyond  48 hours and,  therefore, no  liability  could  be fastened upon them.

4.      The District Forum dismissed the Complaint, observing that there was no deficiency in service on behalf of the insurance company in not settling the Complainant’s claim.

5.      Aggrieved by the said order, the Complainant preferred an Appeal before the State Commission, which set aside the order of the District Forum, holding that the condition in the policy was to the effect that the vehicle will not be used at any public place, without registration;  Law also does not mandate the registration of a vehicle, but it only prohibits use of the vehicle at  any  public  place, unless it is registered, as per Section 39 of the Motor Vehicles Act, 1988 and as the Complainant’s vehicle  was  parked  in front of  his  residence and was not being used at any public place, it did not constitute breach of any condition.

6.      Dissatisfied with the order of  the State Commission,  the insurance company has preferred this Revision Petition.

7.      Learned  counsel  for  the  petitioner  (hereinafter  referred  to  as “the Insurance Company”), submitted that, though, the claim had not been formally repudiated till date, it was not settled only on account of the Complainant committing  a breach of Section 39 of the Motor Vehicles Act, 1988, as  the subject  vehicle was  not registered at the time of the alleged theft.  He vehemently argued  that the question of whether, the vehicle was plying or parked, does not arise as the vehicle was not registered as on that date.  He further submitted that intimation of the alleged loss/theft was also received after 48 hours of its occurrence, which was contrary to the terms and conditions of the insurance policy.

8.      The facts, not in dispute,  are that the vehicle was purchased on 14.06.2008;  was  temporarily registered  for a period of one month, till 13.07.2008;  the theft  had  occurred on the night of 26-27.12.2008 and that the temporary registration had  expired on 13.07.2008.   Sections 39 & 43 of the Motor Vehicle Act, 1988, which are relevant for the determination of  the  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 of the issue in the prescribed manner of a temporary of 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 2[with a body or any unforeseen circumstance 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.  

1[(3)  In 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]”.  

9.      A bare perusal of Section 39 reveals that no person shall use the motor vehicle, in any public place, without a 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.

10.    In the instant case,  as  stated  above,  temporary   registration certificate of the  car in question, expired on 13.07.2008.  There is nothing on 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.

11.    A similar question fell for decision in Narinder Singh Vs. New India Assurance Company Ltd. & Ors. (2014) 9 SCC 324, Civil Appeal No.8463 of 2014, decided on 04.09.2014 (filed against Revision Petition No.4951 of  2012), wherein the Hon’ble Apex Court has 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’.

12.    In Kaushalendra Kumar Mishra Vs. Oriental Insurance Co. Ltd., RP No.4043/2008, decided on 16.02.2012- II(2012) CPJ 189 (NC), this Commission (Circuit Bench, Bhopal),  held that use of the vehicle, in violation of law itself will take it beyond the protection of the Policy.

13.    It is, thus, apparent that the vehicle was without any registration for the period 13.06.2008 to 26-27.12.2008, i.e., for more than a period of five months.  Though,  there is a specific pleading by the Complainant  that  the said vehicle  was  not used and was only parked at his residence as he was involved in some marital disputes, yet, the fact  remains that no attempts were made by the Complainant in getting the registration extended. Irrespective of the fact, whether, the vehicle is parked or plying, it is mandatory that the vehicle be registered, as stipulated under Section 39 of the Motor Vehicle Act, 1988.

14.    In view of the above, we deem it unnecessary to deal with the question of delay in informing the Insurance Company.  It is an admitted fact that the subject vehicle was not registered for more than five months after the expiry of the period of provisional registration, which, for the afore-mentioned reasons, we are of the considered view, is a fundamental breach and the Insurance Company has rightly dishonoured the claim.

15.    In the result, this Revision Petition is allowed and the order of the State Commission is set aside and consequently, the Complaint is dismissed.  No order as to costs.