Complainant through lrd. Adv. Smt. Kulkarni

Opponent through lrd. Adv. Smt. Joshi

Per : Mr. V. P. Utpat, President              Place   :  PUNE

                                              J U D G M E N T

                                                  19/06/2014                                                                                                                            

          This complaint is filed by the consumer against the insurance company for deficiency in service under section 12 of the Consumer Protection Act, 1986.   The brief facts are as follows,

1]       The complainant is a resident of Phursungi, Tal. Haveli, Dist. – Pune.  The opponent no. 1 and 2 are the branch office and head office of the Insurance Company.  It is the case of the complainant that, he had purchased the vehicle no. MH – 12, GT – 960, which was insured with the opponent no. 1 and the insurance was valid from 16/5/2011 to 15/5/2012.  On 29/2/2012, the said vehicle met with an accident at Jejuri, Dist. – Pune.  It was totally damaged.  Hence, the complainant has filed the insurance claim with the opponent.  The opponent has investigated the matter and repudiated the insurance claim on the ground that the said vehicle was sold out to one Mr. Mahadev Bharate and there was no insurable interest of the complainant on the said vehicle.  According to the complainant, the said repudiation amounts to deficiency in service, as the vehicle was not transferred in the name of Mr. Mahadev Bharate and the said sale transaction was cancelled before the date of accident.  The complainant has prayed for compensation of Rs. 3,22,555/- along with interest @ 18% as well as Rs. 25,000/- for mental harassment and inconvenience. 

2]      The opponent has resisted the complaint by filing written version.  It has denied the contents of the complaint.  According to the opponent there is no deficiency at the instance of the opponent while repudiating insurance claim.  It is admitted by the opponent that the vehicle was insured with the opponent during the period, which is mentioned in the complaint.    However, the complainant had sold out the vehicle to third party.  The insurance policy was not transferred.  In such circumstances, there was no insurable claim with the complainant and the opponent has rightly repudiated the insurance claim of the complainant.  The opponent has prayed for the dismissal of the complaint.

3]      After scrutinizing the documentary evidence, which is produced before this Forum, hearing the arguments of both the counsels and considering pleadings, the following points arise for the determination of the Forum. The points, findings and the reasons thereon are as follows-

REASONS    :-

4]      The undisputed facts in the present proceeding are that the complainant had purchased vehicle in his name and it was insured with the opponent for the period of 16/5/2011 to 15/5/2012.  According to the opponent, as the complainant had sold out the vehicle to one Mr. Mahadev Bharate and the policy was not transferred, hence the complainant had lost the insurable interest in the said policy and the opponent has rightly repudiated the said claim.  It is the case of the complainant that initially the said vehicle was sold out to Mr. Mahadev Bharate on 24/8/2011.  The possession was also delivered in his favour.  However, the financial institute has refused to transfer the loan in the name of Mr. Mahadev Bharate; hence the said transaction was cancelled on 20/1/2012 i.e. prior to the accident.  It is also contended by the complainant that the vehicle was not transferred in RTO record till the date of accident and it was in the name of complainant himself.  As the said transaction was cancelled prior to the accident, the opponent was not entitled to repudiate the claim on the ground of non insurable interest in the vehicle. 

5]      The learned Advocate for the insurance company argued before this Forum that, if the documentary evidence i.e. copy of F.I.R. and statements of Mr. Mahadev Bharate, as well as driver of the vehicle carefully perused, it would reveal that the driver had disclosed in the F.I.R. that he was driving the vehicle on behalf of the Mr. Mahadev Bharate, that means, at the time accident, Mr. Mahadev Bharate was the owner and complainant was not the owner.  According to the insurance company, the complainant had prepared forged documents as regards the cancellation of the said transaction.  But it reveals from the deed of cancellation that it is prepared on the stamp of Rs.100/-, which is purchased in the name of the complainant on 11/01/2012.  The said deed is notarized and it is registered at Sr. No. 100/12 dated 1/2/2012.  The learned Advocate for the insurance company strongly relied upon the Ruling of “T Prabakaran V/S ICICI Lombard General Insurance Co. Ltd.”, which is reported in I (2012) CPJ 326.  In the said Ruling, it has been observed that, as the complainant had sold out the vehicle before the accident, there was no negligence or deficiency in repudiating the claim.  It is also observed that,  the  subject  matter is movable property  and  there  was  actual delivery of the vehicle, sold to third party, irrespective of the non-transfer of the policy, the purchaser will become the owner of the vehicle and therefore the original owner of the vehicle, though insured the same cannot claim any damages in the sense at the time of accident, as he had no interest in the vehicle and this appears to be the defense of the opposite party.  According to the learned Advocate of insurance company, even though the name of purchaser is not transferred in RTO record, still it should be presumed that there was actual delivery of the vehicle. 

6]      According to the learned Advocate for the complainant that, even though there was certain breach of terms and conditions of the policy, the claim can not be repudiated in toto.  In that context, the reliance can be placed upon the ruling of “New India Assurance Co. Ltd. V/S M/S B. Mangatram & Co.” reported in  2013(3) CPR 718 (NC) and “New India Assurance Co. Ltd. V/S Smt. Malti Bhikhabhai Bhoya” reported in 2013(2) CPR 462 (NC).  In both these rulings Hon’ble National Commission has observed that even though there is certain breach of conditions of the policy, then the insurance claim can not be rejected in toto and insured person is entitled to get 75% of admissible claim on non standard basis.  In the light of above quoted rulings, it is the considered opinion of this Forum that the complainant is entitled for 75% of the damages, which

are worked out by the investigator i.e. 75% of Rs. 1,83,902/-, which comes Rs.1,37,926/-.  Thus, this Forum answer the points accordingly and pass the following order.

                                    O R D E R

1. Complaint is partly allowed.

1. It is hereby declared that opponents

have caused deficiency in service by

repudiating claim of the complainants.

1. The opponents are directed to pay an

amount of Rs. 1,37,926/- (Rs. One Lac Thirty Seven Thousand Nine Hundred and Twenty Six only) to the complainant within six weeks from the date of receipt of copy of this order.

1. The opponents are further directed to pay an amount of Rs. 10,000/- (Rs. Ten Thousand only) towards compensation for mental and physical harassment and an amount of Rs. 2,000/- (Rs. Two Thousand only) towards cost of the proceeding to the complainant within six weeks from the date of receipt of copy of this order.

1. If the above mentioned is not paid within the stipulated period of six weeks, it shall carry interest @ 9% p.a. from the date of order till its realization.

                   6.       Copies of this order be furnished to

the parties free of cost.

7.       Parties  are directed to collect the sets, which were provided for Members within one month from the date of order, otherwise those will be destroyed.