Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 526.
Instituted on : 12.08.2009.
Decided on : 11.04.2016.
Krishan Kumar s/o Late Sh. Mange Ram, Flat No.02, Ground Floor, Antriksha Apartment, H-Block, Vikashpuri, New Delhi-18.
………..Complainant.
Vs.
- ICICI Lombard General Insurance Co. Ltd. 2nd Floor, Appu Ghar Shopping Complex SCF 35, Improvement Trust Scheme No.-19, Civil Road, Rohtak.
- ICICI Lombard General Insurance Co. Ltd. Zenith house, Keshavarao Khade Marg, Mahalaxmi, Mumbai-400034, Maharashtra through its General Manager.
- Raj Motors, Raj Complex, Delhi Road, Rohtak through Sh. Ashok Dalal.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh.V.S.Rathi, Advocate for the complainant.
Sh.Yogesh Sharma, Advocate for the opposite party no.1 & 2.
Opposite party no.3 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he is registered owner of vehicle TATA Indigo LS Car bearing no.DL8CM-2374 and the same was insured with the opposite party No.1 & 2 under the policy No.3001/54142790/00/000. It is averred that the alleged vehicle was met with an accident on 29.11.2008 and vehicle was sent to Raj Motors(opposite party no.3) for repairing against job card no.5454 dated 03.12.2008. It is averred that complainant had spent an amount of Rs.123419/- on the repair of his vehicle against invoice no.5908 dated 26.12.2008. It is averred that as per policy opposite party No.1 & 2 has to pay the bill amount but they refused to pay the alleged amount and has repudiated the claim vide letter dated 09.01.2009 on the ground “No insurable interest”. As such it is averred that there is deficiency in service on the part of the opposite parties and the complainant has sought the amount of Rs.123419/- alongwith interest, compensation and litigation expenses.
2. On notice, opposite party no.1 & 2 appeared and filed their written statement submitting therein that in the present case the answering opposite party appointed Mr.Nand Kumar to assess the loss and according to him the net assessed loss is Rs.84190/- but the same was rightly rejected vide letter dated 09.01.2009 as the alleged vehicle was sold at the time of the alleged accident to Mr. Naresh Mann by the complainant and the said driver Mehtab is the relative of him. The claim has rightly been rejected by the opposite parties as the complainant has no insurable interest in the vehicle. As such it is prayed that the complaint may kindly be dismissed with costs. However opposite party no.3 did not appear despite service and the opposite party no.3 was proceeded against exparte vide order dated 08.10.2009 and after restoration of complaint vide order dated 10.12.2013 of this Forum.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C4 and has closed his evidence. On the other hand, Ld. counsel for the opposite party no.1 & 2 tendered affidavits Ex.R1, Ex.R2 & documents Ex.R2 to Ex.R16 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per cover note Ex.C1 the vehicle of the complainant was insured with the opposite party in the name of Krishan Kumar i.e. complainant for the period from 29.05.2008 to 28.05.2009 and that R.C. Ex.R6 is in the name of complainant. It is also not disputed that the alleged vehicle had been met with an accident on 29.11.2008 and the intimation to this effect was given to the opposite parties. Opposite party no.1 & 2 appointed the surveyor who as per his report Ex.R10 has assessed the loss amounting to Rs.84190/- and also appointed the investigator who submitted his report Ex.R11 and has submitted that the said vehicle has been sold by the insured to Mr. Naresh Mann and said driver Mehtab is relative of him. On the basis of report of investigator, opposite party vide its letter Ex.C4/Ex.R4 has repudiated the claim on the ground of “No insurable interest”.
7. After going through the file and hearing the parties it is observed that the opposite party no.1 & 2 vide their letter Ex.R4 has repudiated the claim on the basis of report of investigator. But as per the report of investigator Ex.R11 it is mentioned that “There is no sale agreement between them but the statement of insured & conversion proved the sale of this vehicle. Hence from the alleged report it is observed that without sale agreement, no sale of vehicle is proved. Moreover the report of investigator is based upon the statements Ex.R12 and Ex.R13 but the same are merely photocopies and are not supported with the affidavits hence cannot be relied upon. In this regard we have placed reliance upon the law laid down in II(2008)CPJ 364(NC) titled as National Insurance Co. Ltd. Vs. Shrawan Bhati, Hon’ble National Commission has held that: “Sale proceed not received by complainant-No evidence produced to prove that amount has been exchanged-Insurable interest still lies with complainant, who is still legal owner of vehicle-Denying indemnification on mere assumption and presumption not sustainable-Insurer liable under policy”, as per IV(2005)ACC715(DB) titled Vipin Kumar Sharma Vs. Jagwant Kaur & Ors. Hon’ble Punjab & Haryana High Court has observed that transfer of vehicle takes place only when requirements prescribed under Act complied with registering authority and enters same in its record and owner is a person in whose name motor vehicle stands registered in the record of registering authority”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that sale of vehicle is not proved. Moreover R.C. and insurance are still exists in the name of complainant. Hence the complainant is entitled for the claim amount as assessed by the surveyor.
8. In view of the facts and circumstances of the case, it is directed that opposite party no.1 & 2 shall pay the amount of Rs.84190/-(Rupees eighty four thousand one hundred ninety only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 12.08.2009 till its actual realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision failing which the opposite party no. 1 & 2 shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
11.04.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member
