Haryana

Ambala

CC/308/2021

Ashok Mehta - Complainant(s)

Versus

IFFCO Tokio Gen Insurnace Co. Ltd - Opp.Party(s)

P.S. Sharma

19 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	308 of 2021
Date of Institution	:	28.09.2021
Date of decision	:	19.02.2024

1. Ashok Mehta s/o Sh.R.N.Mehta r/o H.No.2463, Sector-79, SS Nagar Mohali through Attorney Shravan Kumar Arya s/o Sh.Baldev Singh г/о H.No.192-B, Mahesh Nagar, Ambala Cantt.
2. Ankit Arya s/o Sh.Shravan Kumar Arya r/o H.No.192-B, Mahesh Nagar, Ambala Cantt

          ……. Complainant

                                                Versus

1. IFFCO TOKYO General Insurance Company Ltd., IFFCO Sadan, C-1, District Centre, Saket, New Delhi-110017 through its General Manager.
2. IFFCO TOKIO General Insurance Company Ltd, Big Bazar Building, Ambala Cantt through its Branch Manager

                                                                                      ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                       Shri Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Prem Sagar Sharma, Advocate, counsel for the complainant.                                                                                                                    Shri R.K. Vig, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1.           To pay the amount of Rs.1,56,167/-, as assessed by the         surveyor alongwith interest @ 18% per annum;
2.           To pay Rs.50,000/- on account of mental agony and    harassment.
3. To pay Rs.20,000/- as cost of litigation.

OR

Grant any other relief, which this Hon’ble Commission may deems fit.

 

2.           Brief facts of the case are that complainant No.1 was the registered owner of Car Hyundai VERNA bearing registration no.DL8CAE-5642 Engine No. G4FCEU576421, Chassis No. MALCU41DLEM 167595 and agreed to sell out the car in question to the complainant No.2. As complainant No.1 was abroad, so the paper formalities could not be completed and Sh.Abhishek Mehta son of the complainant No.1 gave an affidavit dated 27.03.2018 i.e. understanding to sale/ purchase. The car in question which was insured with the OPs for the period from 4-8-2018 to 3-8-2019 vide policy No.1-TDP6987-P400 Policy N2371711 dated 4-8-2018, met with a road accident in the intervening night of 20/21.10.2018 at the end of Pipli Flyover as the father of the complainant No.2 was going to Noida and Delhi for urgent domestic work. The father of the complainant No.2 immediately informed Customer care of the OPs regarding accident. The copy of the Insurance; RC of vehicle and copy of the driving license of Shravan Kumar Arya, father of the complainant No.2 who was driving the car at the time of accident, were provided to the surveyor of the OPs. Thereafter the ownership of the vehicle in question was transferred in favour of the complainant No.2 and NOC was issued in favour of the complainant No.2 on 13-12-2018 and at present the complainant No.2 is the registered owner of the vehicle in question and at the time of accident, the complainant No.1 was the registered owner of the car in question. After the accident, the car was carried to Velocity Automobile Pvt.ltd, Ambala city on 21.10.2018 at 10 am (Sunday) for repair work of damaged car and the Surveyor was deputed by the OPs. The whole repair works was done under approved estimation made by Surveyor on the direction of Insurance Company. The final billing was also approved by Surveyor on behalf of Insurance company and all repair work of damaged car was done under supervision of insurance company, through surveyor and on satisfaction of surveyor and insurance company, Velocity automobile Pvt. Ltd., Ambala finalized billing amount of Rs.1,56,167/- on 06.12.2018, which was paid by Shravan Kumar Arya father of the complainant No.2, through PNB bank account cheque. Thereafter when the said amount was claimed by the complainants, the claim of the complainants was repudiated by the  OPs  vide letter  dated 7-2-2019 on the plea that at the time of accident complainant No.2 Ankit Arya was the owner of the vehicle though vehicle was not transferred in favour of the complainant No.2. Thereafter complainant No.2 and Shravan Kumar Arya being the Attorney of complainant No.1 filed the complaint against the wrong and illegal repudiation of the claim, before the Insurance Ombudsman, Chandigarh (under Insurance Ombudsman Rules, 2017). But, the Insurance Ombudsman dismissed the complaint of the complainants vide order dated 10-10-2019, wrongly and illegally. By not paying the claim amount, the OPs have not only committed deficiency in service but also indulged into unfair trade practice. Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections with regard to maintainability etc. On merits, it has been stated that as per documents-Ashok Mehta was the owner of vehicle in question and also the insurance policy for the period from 04.08.2018 to 03.08.2019 was also in the name of Ashok Mehta at the time of the accident on 21.10.2018. Ashok Mehta is the owner of vehicle, who had sold it to Mr. Ankit Arya s/o Sh. Shravan Arya as is evident from Notary attested affidavit dated 27.03.2018 and he has also given no objection for transfer of vehicle in the name of transferee as per affidavit. The vehicle reportedly met with an accident on 21.10.2018 when it was in possession of its defacto owner Ankit Arya and till the date of accident, the Insurance Company has not received any request in writing for transfer of insurance policy in the name of transferor-Mr. Ankit Arya. Hence, for want of a valid insurance contract between the insurance Company and Ankit Arya, the claim lodged by the complainant no.2 was not maintainable under the insurance policy exists in the name of previous owner of the vehicle. The Policy was not transferred which violate GR 17.
4.           Ashok Mehta informed to the Insurance Company on 21.10.2018 regarding the damage of Vehicle which took place on 21.10.2018. Mr. Chatwal & Associates lost no time prepared the report on the basis of physical verification of the vehicle & assessed the loss to the tune of Rs.88.744.38. The vehicle in question is in the physical possession of Ankit Arya & he failed to get it transferred in his name & even he did not inform the Insurance Company for transfer the policy, which is mandatory as per section GR-17 of India Motor Tariff Rules. It is evident that vehicle has been purchased by Ankit Arya but at the time of accident, all documents like RC & Policy were in name of Ashok Mehta, which shows that Ankit Arya was not having insurable interest in the vehicle at the time of loss.  On careful perusal of the claim documents & after independent inquiry, it is clear that the complainants are not having any insurable interest in the vehicle at the time of loss and thus the company repudiated the claim and intimated to both the complainants vide letter dated 07.02.2019. The matter was also reported by Ankit Arya & Shravan before the Insurance Ombudsman, Chandigarh for redressal of their grievances & the said complaint was dismissed by the Insurance Ombudsman, Chandigarh on merit vide order dated 10.10.2019.  The complaint is time barred as they have already availed remedy before the Insurance Ombudsman, Chandigarh which has been legally rejected by the competent authority on 10.10.2019. Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with heavy costs.
5.           Learned counsel for the complainant tendered affidavit of Shravan Kumar Arya son of Shri Baldev Singh, Attorney of Ashok Mehta son of Shri R.N.Mehta as Annexure C-A alongwith documents as Annexure C-1 to C-7 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Devendra Kumar, Authorized Signatory of OPs-Company-IFFCO TOKIO General Insurance Company Ltd. and affidavit of Ashok Kumar then partner of M/s Chhatwal and Associates, Insurance Surveyors and Loss Assessors House No.135, Ajit Nagar Ambala Cantt as Annexure OP-1/A and OP1/B respectively alongwith documents Annexure OP1/1 to OP1/6 and closed the evidence on behalf of OPs.
6.           We have heard the learned counsel for the parties and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs.
7.           Learned counsel for the complainants submitted that despite the fact that accident took place during currency of the policy in question but genuine claim filed by complainants was rejected by the OPs vide letter dated 07.02.2019, Annexure OP-4 on flimsy grounds, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on the part of OPs.
8.           On the contrary, the learned counsel for the OPs while reiterating objections/submissions made in the written version submitted that since the complainant no.1 had already sold the vehicle in question to complainant no.2, he had no insurable interest in the vehicle in question thereafter. Since complainant no.2 failed to get registered the vehicle in his favour and also the insurance policy did not stand in his name, on the date of accident, as such, no insurable interest accrued in his favour also.  As such the claim in question was rightly repudiated by the OPs. The learned counsel for the OPs has also quoted the law cases referred in the written arguments, filed by him.  
9.           The moot question which arises in this case is as to whether the complainants are entitled to get any relief in this case or not.  It may be stated here that the vehicle in question stood sold by complainant no.1 in favour of complainant no.2, as is evident from affidavit dated 27.03.2018, Annexure OP-1/1. However, it is coming out from the record that on 21.10.2018 i.e the date of accident, the said vehicle was not got transferred by complainant no.2 in his favour meaning thereby that even by the date when the accident took place, complainant no.1 was still the owner of the said vehicle. From the perusal of policy document Annexure C-2, it is quite clear that the insurance policy for the period from 04.08.2018 to 03.08.2019, was also in the name of Ashok Mehta, complainant No.1.  
10.           Under above circumstances, when it is proved on record that on the date of accident i.e. 21.10.2018, complainant no.1, was still the owner of the vehicle in question and the insurance policy for the period from 04.08.2018 to 03.08.2019, was also in his name, then it can be said that complainant no.1 had insurable interest in the vehicle in question on the date of accident. These findings of this Commission find support from the ratio of law laid down by the Hon’ble Supreme Court in Surendra Kumar Bhilawe Versus The New India Assurance Company Limited, 2020 SCC OnLine SC 523 wherein it was held that if the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident as under:-
    • 48. In Naveen Kumar vs. Vijay Kumar and Others , a three Judge Bench of this Court held that in view of the definition of the expression ‘owner’ in Section 2(30) of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purposes of the said Act, would be treated as the owner of the vehicle. Where the registered owner purports to transfer the vehicle, but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of his liability as owner.

The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident…”

 

11.           As far as objection taken by the OPs that because Insurance Ombudsman had already dismissed the case of the complainants vide award dated 10.01.2019, Annexure OP-1/2, it may be stated here that this objection is rejected in view of law laid down by Hon’ble National Commission in Ravi Kumar vs United India Insurance Company Ltd. on 7 August, 2019 (REVISION PETITION NO. 1801 OF 2014) wherein it was held that the decision of the Ombudsmen is not binding on the complainant, as under:- 

“………2.       The first point that falls for consideration in the instant case is whether the State Commission has rightly adjudicated that when the Complainant had already participated in the proceedings before the Insurance Ombudsmen and received an award, he can still file a Complaint before the Consumer Forum. In the instant case the District Forum has dismissed the Complaint on the ground that the Complaint was not maintainable as the Complainant had already availed the remedy by approaching the Insurance Ombudsmen. Having regard to the catena of judgements of the Hon'ble Supreme Court, we are of the considered view that the decision of the Ombudsmen is not binding on the Complainant and therefore the Complaint preferred is maintainable under Section 2 (1)(d) of the Act.

3.       The State Commission has rightly observed that under Section 3 of the Act, the reliefs available to the Consumer are in addition to and not in derogation of any other law for the time being in force…”

12.           It may be stated here that this Commission has already held that complainant No.1 had insurable interest in the vehicle in question, on the date of accident, he is thus entitled to get the claim. Now coming to the quantum of claim. From the perusal of motor final survey report dated 29.01.2019, (which is detailed and well explained) Annexure OP1/3, it is evident that surveyor has assessed the loss to the tune of Rs.88,744/-. Complainant No.1 is thus entitled to get the amount of Rs.88,744/-, as claim, from the OPs and not Rs.1,56,167/- as sought for in the complaint.  Since the complainant No.2 had no insurable interest in the vehicle in question on the date of accident, therefore, he is not entitled to get any claim. 
13.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-
    1. To pay the amount of Rs.88,744/-, to the complainant no.1,  alongwith interest @6% p.a., from the date of repudiation, i.e 07.02.2019, till its realization.
    2. To pay Rs.3,000/-, to the complainant no.1, as compensation for the mental agony and physical harassment suffered by him.
    3. To pay Rs.2,000/- as ligation expenses, to the complainant No.1.  

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 19.02.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President