Punjab

StateCommission

FA/12/910

Future General India Insurance - Complainant(s)

Versus

Iqbal Mohd. - Opp.Party(s)

Vishal Aggarwal

02 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.910 of 2012

 

 

                                                          Date of Institution: 09.07.2012      

                                                         Date of Decision : 02.09.2015

 

Future Generali India Insurance Company Limited, situated at SCO No.78-79, 2nd & 3rd Floor, Sector 17-C, Chandigarh being filed through head office at M-10, Deepsons Building, NDSE Part-II, 2nd Floor New Delhi through its Senior Executive Legal, Ved Vyas.                                                                                                                                                                                                                                                                                                                                                                                …..Appellant/Opposite Party No.1                                   

                                      Versus

 

1.       Iqbal Mohd., S/o Gulzar Mohd., R/o Village Mangewal, Tehsil     Anandpur Sahib, District Ropar.

 

                                                                                                                                                ..Respondent/Complainant

 

2.       Bhajan Singh, S/o Bara Singh, R/o Village Chamkaur Sahib, Tehsil      Chamkaur Sahib, District Ropar.

 

                                                                                                                                      …  Respondent/Opposite Party no.2

 

 

First Appeal against order dated 21.05.2012 passed by the District Consumer Disputes Redressal Forum, Ropar

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

          For the appellant                      : Sh.Vishal Aggarwal, Advocate  

          For the respondent no.1         :  Ex-parte

          For the respondent no.2         :  Dispensed with.

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party no.1 in the complaint) has directed this appeal against the respondents no.1 (the complainant in the complaint) and respondent no.2 of the appeal (the opposite party no.2 in the complaint), challenging order dated 21.05.2012 District Consumer Disputes Redressal Forum Ropar, accepting the complaint of the complainant and directing the OPs to pay the amount of Rs.1,11,384.10 along with interest @ 9% p.a from the date of repudiation of claim till 06.01.2011 and to pay sum of Rs.2000/-, as costs of litigation. The instant appeal has been preferred against the same by the OP No.1 now appellant in this appeal.

2.      The complainant Iqbal Mohd., has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that the complainant is owner of Indica Car bearing Registration No.PB-16-C7489, Chasis Number 600 14BO ZP 13448, Engine No.4751D105B0ZP15262 and he got it insured with OP No.1, vide insurance policy no.VO644187, which was operative from 23.02.2010 to 22.02.2011. The complainant has been using the said vehicle for his personal use and Subhash Chander is the driver of the said vehicle. The above vehicle met with an accident on 05.11.2010 in the area of village Kalyanpur near Reliance Petrol Pump (Kiratpur Sahib) Tehsil Anandpur Sahib District Ropar . DDR No.16 dated 08.11.2010  was lodged about this accident at Police Station Kiratpur Sahib. The intimation was given to OPs by the complainant about the accident. OP No.1 deputed surveyor to visit the spot, who assessed the loss of Rs.2,20,000/- to the vehicle. The complainant submitted insurance claim, but OPs repudiated it, vide letter dated 27.10.2010 on the ground that complainant has already sold the vehicle to Chaman Lal on 01.04.2009 and hence the complainant lost any insurable interest therein on the date of accident. The complainant has, thus, filed the present complaint directing the OPs to pay the insurance claim of the vehicle to him towards the loss caused to the vehicle in the above accident.

3.      Upon notice, OP No.1 filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has no locus standi to file the present complaint. The complainant has come to the court with clean hands. The complainant has no insurable interest in the car in dispute at the time of accident. The complainant is estopped by his act and conduct to file the complaint. The complainant has no cause of action to file the complaint. On merits, it was not disputed that vehicle was insured with OPs. It was admitted that on receipt of intimation, Sh. Manok Kumar Kukreja was deputed, as surveyor and loss assessor, who visited the spot and inspected the vehicle in question and submitted his report on 10.12.2010. The complainant was not owner of the car at the time of accident in, as much as, had sold it prior thereto to Chaman Lal on 01.04.2009 for the sum of Rs.3,20,000/-. The complainant lost any insurable interest in the vehicle at the time of accident. The OPs repudiated the insurance claim of the complainant on the ground that complainant lost insurable interest in the vehicle in question. It was averred that surveyor assessed the loss, salvage value, total amount on cash loss basis of Rs.71,178.68, but the said amount was not payable to the complainant, as he lost insurable interest in it. OP No.1 is justified in the repudiation of the Contract of Insurance on account of non-existing of non insurable interest of the complainant in the vehicle. OP No.1, thus, prayed for dismissal of the complaint on the above-referred grounds.

4.      OP No.2 was set ex-parte before District Forum Ropar, vide order dated 23.02.2012.

5.      The complainant tendered in evidence, the affidavit of complainant Iqbal Mohd., Ex.C-1, affidavit of Chaman Lal Ex.C-2, affidavit of Sh. Subash Chander Ex.C-3 along with copies of documents Ex.C-4 to Ex.C-10. As against it, OPs tendered in evidence the affidavit of Smt. Ved Tripathi Senior Executive Legal Ex.R-1 along with copies of the documents Ex.R-2 to Ex.R-7. On conclusion of evidence and arguments, the District Forum, Ropar, accepted the complaint of the complainant by directing OPs to pay Rs.1,11,384.10 along with interest @ 9% per annum from the date of repudiation of the claim i.e. 06.01.2011 till date of payment, besides costs of litigation of Rs.2000/-. Dissatisfied with the order of the District Forum Ropar dated 21.05.2012, the OP No.1 now appellant carried this appeal against the same.

6.      We have heard learned counsel for the appellant and have also examined the record of the case with able assistance of counsel for the parties, as respondent no.1 is exparte and service of respondent no.2 dispensed with, vide order dated 21.07.2013 of this Commission.

7.      Two-fold  arguments have been raised in this appeal by counsel for OP No.1 now appellant before us. The first contention is that complainant had already sold his vehicle to Chaman Lal before the date of accident and hence he lost any insurable interest in the vehicle, as such appellant/OP No.1 is justified in repudiating the claim of the complainant. It was further contended that there is non-compliance of GR 17 of Motor Tariff Rules in this case. Now we have to examine these points with the aid of evidence on record, whether the complainant had already sold the vehicle to Chaman Lal, as alleged by the OP no.1 before the date of accident and thereby lost his insurable interest in it. The affidavit of Ved Tripati Senior Executive Officer is Ex.R-1 is on the record. It is stated in this affidavit that complainant had already sold his vehicle to Chaman Lal on 01.04.2009, whereas accident took place thereafter on 05.11.2010. At the time of accident, complainant has no insurable interest in the vehicle. It is further stated in this affidavit that the vehicle was sold by the complainant to Chaman Lal for a sum of Rs.3,20,000/-, prior to the date of accident on 05.11.2010. The affidavit of complainant Iqbal Mohd., is Ex.C-1 on the record. He has not admitted this fact that he lost his ownership over the vehicle in dispute. He stated in this affidavit that he has insurable interest in the vehicle. The affidavit of Chaman Lal Ex.C-2 is on the record in this case. From perusal of this affidavit, it is clear that he admitted this fact that he has not become owner of the said vehicle. The complainant is still owner of the above-said vehicle. He further stated that he agreed to purchase above-said vehicle for total sale consideration of Rs.3,20,000/-, but due to domestic problem and other financial problems, the agreement could not be finalized.  He further stated that he is an illiterate person and is not conversant with English Language. The affidavit of Subhash Chander Ex.C-3 is also on the record. Ex.C-4 is letter addressed to the complainant by the OPs to the effect that the he sold his vehicle to Chaman Lal on 01.04.2009 and received Rs.2,20,000/- as sale consideration from him and balance loan amount thereof was to be paid by Chaman Lal. The complainant is liable to pay claim only up to 01.04.2009. This letter is addressed to the complainant, but its postal receipt or dispatch number are not recorded in it that it was ever sent to complainant. Ex.C-5 is letter from the complainant to OPs to the effect that agreement has not matured and he denied to be the owner of the vehicle, as it was transferred by him to Chaman Lal. Ex.C-6 is the driving license of Subash Chander. Registration certificate is Ex.C-7 and policy document is Ex.C-8. DDR No.16 dated 08.11.2010 is Ex.C-9 on the record. Ex.C-10 is letter by OP No.1 to the complainant with regard to some reminder. OPs relied upon Ex.R-2 copy of the policy document. This policy was taken by the complainant Iqbal Mohd., for the above vehicle. The OPs relied upon copy of agreement to sell Ex.R-3 between complainant and Chaman Lal. This document has proved that Iqbal Mohd., has received Rs.2,20,000/- out of the total amount of Rs.3,20,000/- from Chaman Lal and balance amount of Rs.1,00,000/- would be paid by Chaman Lal in the shape of loan amount, as mentioned above. This agreement is dated 01.04.2009. There is no denial of signatures of complainant and Chaman Lal on it before us. Agreement of sale Ex.R-3 cannot be altogether ignored by us on the record, as it is a significant document on the record. It has proved that the vehicle, which is movable property, was sold and agreement of sale was executed in this regard on 01.04.2009. There was no question of non-receipt of Rs.2,20,000/- by the complainant from Chaman Lal. The movable property can be transferred even by delivery of the property or by an agreement  of sale, as it does not require any registration. Ex.R-4 is letter addressed to complainant by the OPs in this regard.

8.      So, from conclusion of above-referred evidence and particular reliance upon agreement of sale Ex.R-3, on which signatures of the complainant and Chaman Lal are not disputed, we have come to this conclusion that the car, which is movable property was actually sold to Chaman Lal on 01.04.2009.  Had the agreement not been carried into effect, then it could not have been executed. The complainant had already received big chunk of sale amount of vehicle from Chaman Lal on the basis of this agreement. The agreement estopes the complainant from arguing to the contrary. District Forum has altogether ignored this vital document of agreement of sale from the appraisal of evidence and the finding recorded by District Forum is not sustainable in our opinion. Consequently, we hold that it is proved that complainant has actually sold the vehicle to Chaman Lal on 01.04.2009 and due to this reason, agreement Ex.R-3 came into on the record and was produced by the OPs on the file, which further strengthens this fact, that complainant himself gave this document to OPs. Once the vehicle was sold and no intimation was given to OPs as required by Motor Tariff Rules and hence there is violation of GR. 17 of Motor Tariff Rules in this case. The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer, who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh certificate of insurance.  In view of law laid down by National Commission in Dharmendra Nath Thakur .versus. United India Insurance Company Ltd., 2010(1) CPC 574 (N.C) that insured will not be entitled to compensation from insurer for damage to the transferred vehicle in the absence of specific contract covering risk for damage to the vehicle for violation of above rule. The complainant has lost insurable interest with the sale of the vehicle and as such, he is not entitled to any insurance claim after sale of the vehicle by him to Chaman Lal. The order of the District Forum to the contrary is reversed in this appeal. Once we have recorded the finding that complainant has lost insurable interest with the sale of the vehicle on the date of accident, hence there is no question of looking into the next point, as to how much amount complainant is entitled to the claim,  as the same is rendered otiose in this case.

9.      In view of our above discussion, we hereby accept the appeal of the appellant and by setting aside the order of the District Forum Ropar dated 21.05.2012, we dismiss the complaint of the complainant.

10.    The appellant has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the appellant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.

11.    Arguments in this appeal were heard on 25.08.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

12.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

September 2,   2015.                                                               

(ravi)