Haryana

Ambala

CC/75/2013

DHARAM PAL S/O SH GULAB SINGH - Complainant(s)

Versus

Iffco ToKio Insurance Company LTD. - Opp.Party(s)

KULDEEP CHUDHARY

20 Jun 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                            Complaint Case No.      : 75 of 2013

                                            Date of Institution         : 05-04-2013

                                               Date of Decision            : 20-06-2017

 

 

Dharampal son of Sh. Gulab Singh, resident of VPO Padha, Tehsil Assandh, District Karnal.                                                                      

……Complainant.

 

Versus

 

1. IFFCO TOKIO General Insurance Company Ltd., IFFCO Sadan C1, Distt. Centre, Saket, New Delhi through its General Manager.
2. Branch Manager, IFFCO TOKIO General Insurance Company Ltd.#6330, 2^nd Floor, above Dena Bank, Punjab Mohalla, Ambala Cantt. Ambala.  
3. SAGAR MOTORS, Near Barsat Road Chungi, Opposite Sector 13-17, Main Road, Jyoti Colony, Panipat through its Manager.    

 

                                                ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:   SH. D.N. ARORA,  PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. U.S. Chauhan, counsel for complainant.

                   Sh. Mahinder Bindal, counsel for opposite parties No. 1 and 2.

                   OP No. 3 already given up vide order dated 08-06-2017.

 

ORDER.

 

                    In nutshell, brief facts of the complaint are that the complainant is a registered owner of vehicle Ford Fiesta bearing registration No. HR-02Q-3073. He purchased the said vehicle from Ajit Partap Singh, R/o Yamunanagar in 2011 and got the vehicle registered his name. The registration certificate of the said vehicle showing complainant as owner of the vehicle and the same was insured with the OP No. 1 through branch office of OP No. 2 vide policy No. 81343340 having validity from 22-09-2012 to 21-09-2013. It is submitted that on 20-10-2012, the said vehicle met with an accident when suddenly a Neel Cow came in front of the car and struck down with a truck. In this regard a DDR No. 5 dated 21-10-2012 was lodged in Police Post Sector 29, Panipat. Thereafter, the complainant towed away the vehicle with the help of police and left the vehicle in the workshop of OP No. 3 for repair. Meanwhile, complainant also informed the authorized representatives of OP no. 1 and OP No. 2. On which OP Insurance Company appointed a surveyor for assessment of the loss/damage of the vehicle of complainant. The said surveyor asked the complainant to put his signatures on some blank papers. Since the complainant is an illiterate person, he put his thumb impression on those documents. In the said accident, vehicle was totally damaged as evident from the assessment made by OP No. 3 for the repair of the said vehicle. The complainant approached the OP No. 1 and 2 several times to get his claim passed but in vain. Then ultimately on 16-12-2012 from the Grievance Officer of OP No. 1 stating wherein that the claim of the complainant has been repudiated by the insurance company on the ground that there was no insurable interest as vehicle has been sold before the date of loss. Whereas, the complainant is fully insured with the company of OPs. As such there is deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the complainant has prayed that the OPs be directed to pay the amount of Rs. 5,08,000/- as insurance claim of vehicle, Rs. 50,000/- on account of harassment and Rs. 5,500/- as litigation expenses to the complainant.  

 2.               Upon notice, OPs appeared through counsel and filed written statement raising preliminary objections qua maintainability of complaint.  On merits, it is submitted that since the complainant was not the actual owner of the car in question which he had already sold to one Mukesh Kumar about two months prior to the alleged accident who was possessing and using the same as owner as well. It is submitted that no accident or incident as alleged has taken place on the alleged date and time. It is further submitted that on receiving the intimation of loss, the answering the OP without going into the merits of the case, immediately deputed one surveyor namely Sh. Sanjiv Chhabra for the assessment of loss who vide his detailed report dated 20-12-2012, assessed the loss to the tune of Rs. 2,55,529/- subject to approval of competent authority. The complainant never come forward even before the surveyor also and only met the investigator once when the investigator visited his place of residence. It was the said Mr. Mukesh Kumar who was communicating and dealing with the surveyor as an owner of the car in question. It is further submitted that during investigation, the complainant himself admitted the sale of the said vehicle to Sh. Mukesh Kumar about two months prior to the alleged accident. Rest of averments made by the complainant are denied. Thus the OPs have prayed that there is no deficiency in service on their part and sought for dismissal of complaint with costs.

                   Counsel for the complainant has given up OP No. 3 being unnecessary in the present case on 08-06-2017 by giving the separate statement.

3.                To prove his version, counsel for the complainant tendered affidavit as Annexure CX alongwith documents as Annexures C-1 to C-5 and closed the evidence on behalf of the complainant.  On the other hand, counsel for OP No. 1 and 2 tendered affidavit R1 to R3 and documents as annexure R4 to annexure R8 and closed the evidence on behalf of the OPs.    

4.                We have heard learned counsel for the parties and gone through the case file very carefully.  It is admitted that the vehicle in question was insured with the opposite parties for the period from 22-09-2012 to 21-09-2013. Counsel for the complainant has argued that the vehicle in question met with an accident on 20-10-2012 and OPs were duly informed and In this regard a DDR No. 5 dated 21-10-2012 was lodged in Police Post Sector 29, Panipat. On which OP Insurance Company appointed a surveyor to assess the loss and on the asking of surveyor, the complainant put his thumb impression on some blank papers. But the claim of the complainant has been repudiated by the insurance company on the ground that there was no insurable interest as vehicle has been sold before the date of loss, whereas, the complainant is fully insured with the company of OPs as well as registered owner of the vehicle in question. Counsel for the complainant has relied upon the case law cited in 2009 ACJ 37 delivered by Himachal Pradesh High Court titled as Ishwar Lal Chaudhary and another v. national Insurance Co. Ltd. and others, wherein it is held that the registered owner continued to be ostensible owner of the vehicle so long as registered is not changed from his name to the transferee and liability of registered owner continues – Therefore, the registered owner had insurable interest in the motor-cycle and policy and certificate of insurance are binding on the insurance company – Insurance company will be liable despite sale of the vehicle, case law 2007 (1) CPJ 349 delivered by State Consumer Disputes Redressal Commission Punjab titled as Harjit Singh v. New India Assurance Company Limited, wherein it is held that Consumer Protection Act, 1986, Section 15 Insurance – Insurable interest – theft of vehicle alleged to have been sold to ‘s’ – registration not transferred in the name of purchaser – claim filed by original owner, in whose name registered ownership and insurance coverage existed – is maintainable – has to be decided on merits by insurer, case law 2007 (1) CPJ 150 delivered by State Consumer Disputes Redressal Commission Punjab titled as Oriental Insurance Company Limited and anr v. Dharam Pal, wherein it is held that No conclusive evidence of sale of vehicle to third party adduced - Even assuming that complainant had add the vehicle, registration certificate continued to stand in his name – He as such would remain owner on the basis of registration certificate – Insurer liable to indemnify the insured and another case law cited in 2007 (2) CPJ 334 titled as Kirpal Singh Gill v. New India Assurance Company Ltd delivered by Punjab State Consumer Disputes Redressal Commission, Chandigarh, wherein it is held that Consumer Protection Act, 1986 Section 2 (1) (g) Insurance – insurable interest – car damaged in accident – claim repudiated on the ground that the complainant having sold his car, had no insurable interest in vehicle, on date of accident – Complaint dismissed – appeal against- fact remains that insurance policy and registration certificate of vehicle stood in the name of the complainant on the date of accident – complainant being original owner and insurance policy holder, entitled to lodge claim – order set aside – Appeal allowed – OP directed to settle claim.      

                   On the other hand counsel for the opposite parties has argued that complainant was not actual owner of the car in question, which he had already sold to one Mukesh Kumar about two months prior to the alleged accident.  But on receiving of the information of the alleged accident, they deputed surveyor namely Sh. Sanjiv Chhabra for the assessment of loss who vide his detailed report dated 20-12-2012, assessed the loss to the tune of Rs. 2,55,529/- subject to approval of competent authority. He further argued that Mr. Mukesh Kumar who was communicating and dealing with the surveyor as an owner of the car in question. He further argued that during investigation, the complainant himself admitted the sale of the said vehicle to Sh. Mukesh Kumar about two months prior to the alleged accident. As such, the OPs have rightly repudiated the claim of the complainant as per annexure R4. In this regard he relied upon the case law cited in IV 2011 CPJ 193, NC, wherein it is held that Consumer Protection Act, 1986 – Sections 2 (1) (g), 14 (1)(d), 21 (b) – Insurance –Accident-claim repudiated – Forum allowed complaint- State Commission allowed appeal- Hence revision – contention, complainant sold vehicle to second complainant before date of accident – accepted – first complainant could not have claimed insurance amount because he was no more owner of vehicle, having sold the vehicle before date of accident – second complainant could also not claim insurance amount as insurance policy had not been transferred in his name before the accident – order of state commission upheld, case law cited in I (1996) CPJ 1 (SC) titled as Complete Insulations (P) Ltd. v. New India Assurance Company and order passed in Revision petition No. 3216 of 2015 decided on 16-08-2016 titled as Future General India Insurance Co. Ltd. & anr v. Sombir.  We have gone through the aforesaid judgments but these are not identical on the facts of the present case as such are not helpful to the opposite parties.

5.                     After hearing both the parties and gone through the case file, we observed that the accident of the vehicle in question took place on 20-10-2012 as proved by copy of DDR as annexure C3. Further, the registration certificate as well as Insurance policy stands in the name of the complainant, then no question is arisen that complainant has no insurable interest in the present case. Further opposite parties has failed to produce any legal/authenticated document to prove that the vehicle in question was sold to anyone and as such we cannot rely upon the simple statement written on plain paper having no signature of any competent authority or any other witness and as such it has no legal value.

6.                 In view of the aforesaid discussion as well as judgments placed by the counsel for the complainant mentioned in the para No. 4 of the judgment, we are of the considered view that the opposite parties have wrongly withheld the genuine claim of the complainant as the registration certificate and insurance policy are stand in the name of the complainant and accordingly insurable interest is also exist in the name of the complainant. Hence, it is deficiency in service on the part of the opposite parties withholding the claim of the complainant, As such, they are liable to pay a sum of Rs. 2,55,529/- as assessed by the surveyor as annexure R5, to the complainant alongwith interest and costs which is assessed to the tune of Rs. 5,000/-.   Hence, OPs are directed to comply with the following directions within thirty days of the receipt of copy of the order:-

1. To pay a sum of Rs. 2,55,529/- to the complainant alongwith interest @ 9% per annum from the date of filing the complaint till actual payment. If the opposite parties failed to pay the above said amount within the stipulated period, then OPs will be liable to pay further interest @ 12 % per annum on the awarded amount for the period of default. 
2. And to pay a sum of Rs.5,000/- as costs on account of litigation.

          Copies of the order be sent to the parties concerned, as per rules.  File after due compliance be consigned to record room.  

 

ANNOUNCED ON: 20.06.2017.                               (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

    (ANAMIKA GUPTA)

                                                                                      MEMBER