(Delivered on 09/12/2019)

PER MRS. U.S. THAKARE, HON’BLE PRESIDING MEMBER.

1.         Being aggrieved by the order passed by the learned District Consumer Disputes  Redressal Forum, Chandrapur  in consumer complaint  bearing  No. 23/2012 dated 08/05/2014  original complainant – Mr. Dilip Ramkrushna Potdukhe  has filed  present appeal.

2.         Complainant - Mr. Dilip Ramkrushna Potdukhe   had filed consumer complaint No. 23/2012 against the  opponent  by  alleging  deficiency  in service. His consumer complaint was dismissed by the learned District Consumer Forum, Chandrapur  by impugned  order dated 08/05/2014. 

3.         Facts giving rise to the   present appeal in short as are  under:-

            The complainant is owner of vehicle of Tata make bearing registration No. MH-34/AB-0707. He had purchased the said vehicle by obtaining finance from Tata Motor Finance Limited. Complainant had issue Power of Attorney in favour of Mr. Anand Baliram Dongre. Consumer complaint is filed through Power of Attorney Holder. The vehicle bearing registration No. MH-34/AB-0707 was insured  under policy bearing No.  MC1001104100, with opponent No. 1 for period from 27/02/2011 to 26/02/2012. The opponent No. 1 issued insurance policy  in favour of the  complainant after accepting required  premium.

4.         On 01/01/2012 the vehicle of the complainant  was at Chamorshi   in front of Shivaji  High School.   At that time  one tipper   bearing No. MH-34/A-428 came from wrong side  and gave dash to the vehicle  of the complainant.  Due to dash the vehicle of the complainant was damaged.  The complainant  gave intimation  of   an accident to  insurance  company. F.I.R.  was lodged  in Police Station, Chamorshi. The complainant sustained huge loss. Therefore, claim was filed with the opponent No. 1 under valid insurance policy. Agent of opponent No.1 informed that the vehicle could not be repaired and therefore   he would not get any claim. The vehicle could not be repaired  by the agent i.e. opponent No. 2 but amount of Rs.2300/- was charged towards parking  charges and amount of Rs.700/- was charged for processing  of insurance claim. Damaged vehicle  which met with an accident  was returned  to the complainant.  Complainant sent notice to the opponent through advocate but of  no use. The opponent did not taken any cognizance of the claim of the complainant under insurance policy. Ultimately,  the complainant  had  filed  consumer complaint  with request to direct the  opponent  No. 1 to pay an amount of Rs. 1,89,797/- with interest at the rate  of 18% p.a. since  01/01/2012. The complainant had claimed compensation for mental pain and agony and cost of litigation.

5.         The opponent No. 1 resisted the claim by filing written statement and submitted that the learned District Consumer Forum, Chandrapur  has no territorial jurisdiction to try the consumer complaint.  The opponent No. 1  denied all  adverse allegations  particularly   allegations  of deficiency  in service and  unfair  trade practice. It is submitted that   after an accident F.I.R. was lodged by Mr. Anand Baliram Dongre in Police Station, Chamorshi.  In F.I.R. Mr. Anand Baliram Dongre claimed  himself to be owner of the vehicle.  At the  time of an accident, the complainant was not the owner of the vehicle. The owner/policy holder sold   insured vehicle to Mr. Anand Baliram Dongre.  Prior intimation of sale was not given to the insurance company within 30 days. Explanation was called from the policyholder in this respect.  However, the complainant did not furnish any   explanation. Ultimately  the claim was repudiated.  The claim of the  complainant is rightly  repudiated hence,  consumer  complaint  is liable  to be  dismissed with cost.

6.         The opponent No. 2 resisted the claim by filing independent written statement. It is submitted that the opponent No. 2 is insurance broker. He never accepted the premium or any consideration from the complainant.  Right to accept or reject claim under insurance policy lies with opponent No. 1, the consumer complaint is liable to be rejected against the opponent No. 2.

7.         Both parties have filed affidavits of evidence and relied on police papers and other documents. After giving  thoughtful consideration  to  the argument  advanced on behalf of both the parties, the  learned District Consumer Forum arrived at conclusion  that  on the date of accident  the  complainant  was not  having insurable  interest  as the  insured vehicle  was already  sold  to Mr. Anand Baliram Dongre. On sale of the vehicle relationship between the complainant and  opponent No. 1 as consumer  and service provider  came to an end.  As such the complainant is not entitled for any claim under insurance policy.  Ultimately, consumer complaint was dismissed. Therefore, dissatisfied complainant – Mr. Dilip Ramkrushna Potdukhe is before us in this appeal.

8.         We have heard learned counsel Mr. Pandhare for the appellant and learned counsel Mr. C.B. Pande for the respondent No. 1.  It is vehemently urged on behalf of the  appellant  that  the order passed by the learned District Consumer Forum is  illegal, incorrect and  against the facts and  merit  of the case.  The learned District Consumer Forum failed to appreciate police papers and documents  in proper  perspective.  The learned counsel  Mr. Pandhare has requested   to set aside  the  illegal   order by allowing  present  appeal to avoid  injustice.   Learned counsel  Mr. C.B. Pande has supported  the impugned order and findings of the learned District Consumer Forum and has requested  to dismiss the  appeal for want of  merit.

9.         It is admitted facts that the vehicle bearing registration No. MH-34/AB-0707 was insured with the respondent No. 1 for period  27/02/2011 to 26/02/2012. The respondent No. 1 issued policy bearing No. MC1001104100 in favour of the appellant after accepting premium from the complainant /appellant.  Said vehicle met with an accident on 01/01/2012 at village Chamorshi in front of Shivaji High School and accident was occurred  due  to violent dash to the vehicle by teppar  bearing No.  MH-34/A- 428. At the relevant  time driver Mr. Anand Baliram Dongre was driving  the insured  vehicle.  Consumer complaint is filed through  Power of Attorney  Holder Mr. Anand Baliram Dongre. All these facts are not at dispute. To substantiate the plea that on the date of an accident  complainant – Mr. Dilip Ramkrushna Potdukhe was not the owner of the vehicle as he  has sold the vehicle to Mr. Anand Baliram Dongre, the respondent  No. 1. has placed reliance  on First Information  Report  filed  by  Mr. Anand Baliram Dongre. Learned Counsel  Mr. C.B. Pande harped  upon the fact that  Mr. Anand Baliram Dongre described  himself  as a owner  of the insured vehicle while  filing  report.  The insurance policy does not stand in the name of Mr. Anand Baliram Dongre. He does not have insurable interest. Claim of complainant – Mr. Dilip Potdukhe , original  owner of the  insured vehicle  is not tenable. Claim is rightly  repudiated by the respondent No. 1 and as such  there is no deficiency  on part of respondent  No. 1.

10.       We have perused copy of oral report filed by  Mr. Anand Baliram Dongre dated 01/01/2012. Mr. Anand Baliram Dongre did not file written report of an accident.  He had filed oral report at Chamorshi Police Station. His report was reduced in writing by some police person.

11.       It is urged on behalf of the complainant /appellant that Mr. Anand Baliram Dongre wanted to submit that (‘’माझ्या मालकाची गाडी क्रमांक एम एच-34/एबी 0707 ही असून  मी गाडीवर ड्रायव्‍हर आहे ’’) vehicle bearing No. MH-34/AB-0707 Tata   is owned by my owner  and I was driver on it.  But due to  mistake  it was  written  as (‘’माझ्या स्‍वताच्‍या मालकीची’’) my own vehicle.

12.       Now short question  is before us whether  this mistake  is sufficient  to  hold that  vehicle was sold  by  complainant – Mr. Dilip Potdukhe prior to an accident  without  giving  any  intimation  to the  insurance company?.

13.       It is to be noted here that  the complainant – Mr. Dilip Potdukhe  has filed  consumer complaint. He claimed himself to be owner of the vehicle bearing registration No. MH-34/AB-0707.  In R.C. Book of the vehicle complainant – Mr. Dilip  Ramkrushna Potdukhe is shown  as owner  of the vehicle. In R.T.O. record  Mr. Anand Baliram Dongre was never shown as  registered owner  of the vehicle.  Complainant – Mr. Dilip Potdukhe lodged claim with respondent No. 1. On repudiation of claim, notice was issued by the complainant.  Owner of the vehicle i.e. complainant issued Power of Attorney in favour of Mr. Anand Baliram Dongre. In said Power of Attorney, he claimed himself to be owner of the vehicle.  All these  documents  are not considered  by the  learned District Consumer Forum while deciding  the insurable interest of complainant/appellant in  insured  motor  vehicle.  Apart from statement  in F.I.R. no evidence is adduced on behalf of the  respondent  No. 1 to  enlighten  that  the vehicle  was sold  by the  insured  to Mr. Anand Baliram Dongre.

14.       Complainant – Mr. Dilip Potdukhe is claiming himself to be the owner of the vehicle.  He has  not filed his own  affidavit  and did not  state  on oath that  he  is  owner of the vehicle. But  adverse inference cannot be  drawn against  him  when  in  R.C.Book   he  is shown as  registered  owner and  in several  documents  he claimed  himself  to be  the owner of the vehicle.  Notice was served to  insurance  company by complainant – Mr. Dilip Potdukhe  through Power of Attorney Holder in which he claimed  himself  to be  the owner of the vehicle.  After  an accident, the vehicle was lying with Tata Motor Limited i.e. respondent No. 2. Payment was made by complainant – Mr. Dilip Potdukhe. Mere  F.I.R.  is not sufficient  to hold that  the insured vehicle  was sold  by original  owner  to  Mr. Anand Baliram Dongre.

15.       By filing  affidavit  it is stated  by  power of attorney holder  on oath that  complainant- Mr. Dilip Potdukhe  he  is  the  owner  of the vehicle . Affidavit sworn   on oath before authority while prevail over the statement recorded by police.

16.       The Hon’ble  National Disputes  Redressal  Commission while deciding the case of  New India  Assurance Co. Ltd. Vs. M.S. Venkatesh Babu, reported in IV (2011) CPJ 243 (NC) held as  under.

            “FIR as also the statements recorded  by  police cannot be used by Insurance  Company  in support of its case. FIR and statement recorded by police are not substantive piece of evidence. State Commission was right in accepting case of complainant that he along with ‘GB’ was traveling in the vehicle and vehicle was not given on hire. It placed reliance on affidavits filed before District Forum, which were not subjected to cross-examination. Order does not suffer from any jurisdictional error, illegality or material irregularity”.

             It is now well settled  law that F.I.R. was not substantive   piece of evidence. Such statements can be used for limited purpose of impeaching credibility of witness.  The driver of the vehicle  i.e. Mr. Anand Baliram Dongre had filed  his affidavit  in District Consumer Forum stating that complainant –Mr. Dilip Potdukhe  was the owner  of the vehicle  and he was  driving the vehicle  in the capacity of  the driver.

17.       Learned counsel  Mr. Pandhare for the appellant  placed  reliance  on ruling laid  down by the  Hon’ble Apex Court by  deciding  Civil Appeal No. 6927 of 2005 dated 12/01/2011,  in case of  Pushpa @ Leela & others Vs. Shakuntala & other,  in which  it is  observed   in para No. 9 of the judgment  as under ,

                   “The question of the liability of the recorded owner of the vehicle has to be examined  under  different  provisions of the Act.  Section 2(30) of the Act defines  “Owner” in the following terms.

            “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 hire purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that  agreement.”

18.       The record shows that the complainant is registered owner of the vehicle. Still his name is there  R.T.O. record as the owner. The change  of ownership  of the vehicle  was never  recorded  in certificate of registration.

19.       It is very interesting  to note that  claim of the complainant  was repudiated  by letter dated  22/05/2012 on ground that  no insurable  interest   and  failure  to  submit  necessary  intimation  of  process of claim.  Claim could not be repudiated by the insurance company on ground of non supplying of necessary documents. The respondent No. 1 wrongly repudiated genuine claim of the complainant without considering R.C. Book and other documents in favour of the complainant.  The respondent No. 1 unnecessarily gave much importance to FIR filed by the driver with police.  Without any cogent evidence of sale of insured vehicle to Mr. Anand Baliram Dongre, claim of the owner /insured was rejected.  Certainly  respondent  No. 1 is  guilty of  deficiency  in  service.

20.       The  learned District Consumer  failed to  consider the  evidence  and documents  which are in favour  of  the complainant /appellant  and unnecessary  gave undue  importance to  the statement of   the driver  of  the vehicle  recorded by the  police under section 157 of Cr. P.C. and gave  much importance  to  the mistake  in writing.  Possibility  can not be ruled out that  mistake  might  have committed  by the  writer who reduced  oral  report  in writing. In view of this  above discussion  we  find no hesitation  to hold that  the  order passed  by the  learned District Consumer  Forum, Chandrapur  is illegal , incorrect. It is against the fact of merit of the case, which requires to be set aside by allowing the present appeal.

21.       On the date of accident the complainant / appellant has insurable interest. The complainant is entitled to claim damages under valid insurance policy.  Vehicle of the complainant was totally damaged. It is beyond repair. Respondent No. 1 illegally repudiated the claim of the complainant. Respondent No. 1 is liable to pay an amount of Rs.1,89,797/-  to the complainant /appellant  with interest at the rate of 6% p.a. from 01/01/2012 till realization  of  amount.  Complainant /appellant suffered mental pain and agony due to repudiation of genuine claim.  He is entitled for amount of Rs. 25,000/- towards compensation and amount of Rs. 5000/- towards cost of litigation.  With this view we pass the following order.

ORDER

1.         Appeal bearing No. A/11/235 is hereby allowed.

2.         Order passed by the learned District Consumer Forum, Chandrapur in consumer complaint No. 23/2012 is hereby set   aside, in place of it  following  order is substituted.

i.          Consumer complaint is partly allowed.

ii.          It is  hereby  declared  that  opponent  No. 1/Insurance Company is guilty  of deficiency  in service.

iii.         Opponent No. 1 is hereby directed to pay an amount of  Rs. 1,89,797/- towards damages under valid  insurance  policy  to the  complainant  with interest  at the rate of 6% p.a. from 01/01/2012 till  realization of amount.

iv.        The opponent No. 1 is hereby directed to pay an amount of Rs. 25,000/-  to the complainant  towards compensation for mental pain and agony.

v.         Opponent No. 1 is hereby directed to pay an amount of Rs. 5000/- towards cost of litigation to the complainant.

vi.        Consumer complaint stands dismissed against the opponent No. 2.

vii.        Copy of order be furnished to both the parties, free of cost.