(ORAL)

1.         The present revision petition has been filed against the order of the Himachal Pradesh State Consumer Disputes Redressal Commission Shimla ( in short, the State Commission) in Appeal No. 130 of 2018 filed by the complainant against the order dated 18.04.2018 of the District Forum in his complaint No. 56 of 2016, whereby his complaint was dismissed by the District Forum.

2.         Vide the impugned order, the order of the District Forum was set aside and complaint was allowed and following directions were issued: 

“18. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum is set aside. It is ordered that Insurance company shall pay OD claim of vehicle in question to complainant to the tune of Rs.400000/- (Four lac)) which is IDV of vehicle in question alongwith interest @9% per annum from the date of institution of complaint till actual payment subject to furnishing NOC by complainant from lessee i.e. Hinduja Leyland Finance Limited VPO Gutkar District Mandi H.P. It is further ordered that in case complainant will not submit any NOC from lessee then entire IDV amount shall be transmitted in the loan account of complainant kept by lessee i.e. Hinduja Leyland Finance Limited VPO Gutkar District Mandi H.P for liquidation of loan amount. Complainant will execute subrogation deed in favour of Insurance company qua salvage of vehicle in question and complainant will hand over possession of salvage of vehicle to Insurance company within one month after receipt of certified copy of order.

19. It is further ordered that Insurance company shall pay compensation to the complainant to the tune of Rs.10000/- (Ten thousand) for mental agony and harassment. It is further ordered that Insurance company shall pay litigation costs to the complainant to the tune of Rs.5000/- (Five thousand). Insurance company shall complete the entire process within one month after receipt of certified copy of order. RC Annexure C-1, Insurance policy Annexure C-2 and report of Surveyor-cum-loss assessor namely Mohinder K. Sharma Annexure OP-4 shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.”

3.         The brief facts of the case are that complainant who is the registered owner of vehicle no. HP-32B-0033 insured the same with the petitioner for the period 22.06.2014 to 21.06.2015.  The insured value of the vehicle was ₹ 400000.  During the existence of the policy, the vehicle met with an accident and was damaged.  FIR No. 20 of 2015 was registered in the Police Station Balh on the statement of Shri Ajay s/o Shivram.  Respondent ( hereinafter referred to as complainant) filed his claim with the petitioner.  The petitioner, however, vide repudiation letter dated 17.08.2015 rejected the claim on the ground that claimant did  not have any insurable interest in the subject vehicle at the time of alleged accident. 

4.         Aggrieved by the rejection, complainant filed a complaint wherein he had alleged that he was the registered owner of the vehicle and vehicle belonged to him.  The stand of the petitioner was that complainant had sold this vehicle to Ajay and so he did not have any insurable interest in the vehicle and claim was liable to be rejected.  The parties led their evidences before the District Forum.  The complainant had furnished his affidavit and affidavit of Ajay.  Ajay, who lodged the FIR had stated in the affidavit that registered owner of the vehicle is the complainant and denied of having purchased the subject vehicle from the complainant.

5.         In affidavit filed by the petitioner, stand remained the same that complainant did not have insurable interest and he had sold the vehicle to Ajay.

6.         The District Forum, however, after assessing evidence on record, dismissed the complaint upholding the stand of the petitioner that complainant did not have insurable interest in the subject vehicle at the time of accident.

7.         This order of the District Forum when impugned before the State Commission, State Commission re-appreciated all the evidences and perused the record and after considering all the contentions of learned counsel of the parties, held as under:

“15. It is well settled law that complainant was not legally competent to alienate vehicle in question without consent of Financier. It is also well settled law that leased vehicle could not be alienated as per law without expressed and implied consent of Financier. It is also well settled law that owner of vehicle remains trustee of vehicle till loan amount is not liquidated. See 2012 (II) CPJ 8 SC Suryapal Singh Versus Siddha Vinayak Motors & anr. It is held that complainant was in de jure possession of vehicle at the time of accident. De jure means a person in whose name vehicle is registered as per RC as per section 2 (30) of Motor Vehicles Act 1988. De facto possession means a person who is in factual possession of vehicle. It is well settled law that section 2 (30) of Motor Vehicles Act 1988 referred to de jure possession only and does not relate to de facto possession. Even as per RC Annexure C-1 name of owner of vehicle in question has been mentioned as Anil Sharma and there is positive recital in RC that vehicle in question was leased with Hinduja Leyland Finance Limited VPO Gutkar District Mandi H.P. See. AIR 2018 SC 983 titled Naveen Kumar Versus Vijay Kumar (Full Bench). See AIR 2018 Allahabad 128 Amar Nath Chaubey Versus State of U.P.

16. Submission of learned Advocate appearing on behalf of Insurance company that as per FIR Shri Ajay son of Shri Shiv Ram was owner of vehicle in question at the time of accident and on this ground appeal filed by complainant be dismissed is decided accordingly. It is well settled law that FIR is registered under Criminal Procedure Code 1973 and as per section 162 of Criminal Procedure Code 1973 any statement made to police should not be used for any purpose except for contradiction under section 145 of the Indian Evidence Act 1872. It is well settled law controversial facts mentioned in FIR are not perse admissible. Insurance company did not file affidavit of official who has recorded FIR. It is well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial in nature.

17. Submission of learned Advocate appearing on behalf of Insurance company that complainant has no insurable interest at the time of accident is decidedly accordingly. It is held that complainant has insurable interest at the time of accident because as per RC Annexure C-1 vehicle in question was registered in the name of complainant at the time of accident and RC was not registered in the name of Shri Ajay Kumar son of Shri Shiv Ram at the time of accident as required under section 2 (30) of Motor Vehicles Act 1988. It is held that complainant was in de jure possession of vehicle in question at the time of accident. It is further held that alienation of leased vehicle without consent of lessee is void ab initio. As per law Financier is owner of vehicle and person who takes loan retain vehicle only as trustee till loan amount is not liquidated. See AIR 1979 SC 850 Trilok Singh & others Versus Satya Deo Tripathi. In view of above stated facts point No.1 is decided accordingly.”

8.         This order is impugned before me.  Counsel appearing on behalf of the petitioner raises the same contention that the complainant did not have any insurable interest in the subject vehicle since on the date of accident, he had already sold the vehicle to  Ajay. In support of this argument, counsel has relied on the copy of the FIR wherein at the time of registration of the FIR, Ajay claimed himself to be owner of the subject vehicle.  It is submitted that the complainant had rectified it by submitting wrong affidavit wherein he had wrongly stated that vehicle was not sold to Ajay and Ajay submitting that he  had not purchased the subject vehicle, although his earlier statement to the police speaks of a different story.  It is submitted that in order to claim the insured amount, they have submitted the said affidavits.  It is submitted that it is also clear from the facts that although in the affidavit of Ajay, he had used the word ‘friend’ but subsequently it was scored out and it was replaced by the word ‘relative’.  Reliance has also been placed on the findings of this Commission in the case of Fazle Mubeen Vs. ICICI Lombard General Insurance Company Ltd. 2016 SCC Online NCDRC 2101 and it is alleged that on the identical facts, this Commission has held that since the insured did not  have insurable interest on the date of accident, the repudiation on the said ground was justifiable.

9.         I have given my thoughtful consideration to the contentions of the counsel for the petitioner and have perused the file. First of all the findings in the case of Fazle Mubeen ( supra ) are not on the identical facts.  The findings are given by this Commission on a different set of facts.  From reading para 5 of the said order, it is apparent that in that case agreement of sale between the insured and the subsequent buyer had been produced on record for consideration of the Commission and it was on the  basis of that agreement that this Commission gave the findings that insured did not have insurable interest in the subject vehicle.  From the perusal of the file and as also admitted by learned counsel, the petitioner has not produced any document on record which could show that subject vehicle had been sold by the insured to Ajay.  The issue is as to who is the owner of the vehicle when there is no agreement on record to prove that vehicle stands sold.  Section 2 (30) of the Motor Vehicles Act, 1988 defines the term ‘owner’ as under:

“Owner” means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement.

10.       It is not in dispute that claimant is the registered owner of the subject vehicle.  In view of the above, it is apparent that present revision petition has no merit.  There is no illegality or infirmity in the impugned order.  Revision Petition is, therefore, dismissed with no order as to costs, in limine.