Delhi

New Delhi

CC/102/2012

Sai Travels - Complainant(s)

Versus

M/S. The New India Assurance Company Ltd. - Opp.Party(s)

30 May 2016

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

Case No.C.C./102/2012                                                                                                                 Dated:

In the matter of:

M/s. SAI TRAVELS

Proprietor

Sh. Vineet Handa

Through its Special Power of Attorney Holder

Sh. S. Mohinder Pal Singh

S/o Sh. S. Satnam Singh

R/o 1030/18, Nai Wala,

Arya Samaj Road,

Karol Bagh,

New Delhi.

        ……..COMPLAINANT

VERSUS

THE NEW INDIA ASSURANCE COMPANY LTD.

Jeevan Bharti,

124, Connaught Circus,

New Delhi-110001.

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

ORDER

This complaint is filed by the complaint under Section 12 and 13 of the Consumer Protection Act, 1986 alleging, in brief, that the complainant is registered owner of vehicle number. DL 1YA 6655 make Tata Indigo (Mint White Colour) having purchased it from Sanya Automobiles Private Limited for total consideration of Rs. 4,71,200/- on 10/11/2006. The said vehicle was registered as Tourist Taxi having All India Tourist Permit issued by the State Transport Authority Shri Vineet Handa proprietor of the complainant firm has executed Special Power of Attorney in favour of Mohinder Pal Singh on 28/3/2008 and authorised him to do the various acts enumerated in paragraph 4 of the complainant, including to get the vehicle insured and receive its claims after doing all the needful. A mutual deed of agreement was also executed between complainant and Shri Mohinder Pal Singh on 28/3/2008. After receiving part payment complainant admitted Shri Mohinder Pal Singh to use the vehicle. However, the ownership of the vehicle remained with the complainant till date.

The vehicle in question was duly insured with the OP insurance company for the period from 10/1/2010 to 9/11/2011 vide Policy No. 31010221100100001792. Shri Jagdish Suri friend of Shri Mohinder pal Singh has taken the vehicle from Shri Mohinder pal Singh for his office work. He has parked it behind R K hospital and it was stolen on 12/4/2011. Shri Jagdish Suri lodged F I R. No. 152 dated 13/11/2011 at PS Mandawli under Section 379 IPC. By order dated 23/6/2011, the learned Metropolitan Magistrate, Karkardooma Courts, Delhi certified that the vehicle in question remained untraced despite efforts made by the police. The claim of the vehicle covered under commercial vehicle package policy was filed by the complainant through Its Special Power of Attorney Holder Shri Mohinder Pal Singh. By letter dated 20/12/2011 addressed to the complainant, the OP insurance company repudiated the claim of the complainant on the ground that Shri Mohinder pal Singh has purchased the vehicle from the complainant and a mutual deed of agreement was also executed between complainant and Mohinder pal Singh, and therefore, there is no insurable interest in the vehicle.

The complainant has alleged that the ownership of the vehicle in question is with the complainant till date. The same has not been transferred to Shri Mohinder pal Singh. It is further submitted that so far as commercial vehicles are concerned, there ownership cannot be transferred before completion of eight years. On the date of theft i.e. 12/2/2011 the vehicle was duly insured with the OP insurance company under commercial vehicle package policy. There is deficiency in service on the part of the OP insurance company in repudiating the claim of the complainant on the ground that there is no insurable interest in the vehicle. The complainant has prayed for the following reliefs:

1. OP is liable to pay a sum of Rs. 2,40,000/- towards claim No. 310103/31/11/01/90000019 and control No. 518.
2. OP is also liable to pay interest @ 18% p.a. from the date of rejection of the claim i.e. 20/12/2011.
3. That on account of the acts, deeds and things as also unfair trade practice adopted by the OP, the complainant has suffered acute mental torture and mental agony and the complainant is entitled for compensation for mental torture, agony and pain in the sum of Rs. 50,000/-

Notice of the complaint was issued to the OP insurance company who contested the complaint and filed reply/written statement admitting the vehicle in question was registered and insured in the name of complainant firm. According to the OP insurance company there is no deficiency in service on the part of the OP in repudiating the claim of the complainant as per terms and condition of the insurance policy in question, insuring vehicle in question. According to the OP insurance company, on receipt of documents from the complainant, the OP deputed its panel investigator, IBI who submitted their detailed report on 24/10/2011, stating, inter alia, that the insured vehicle has been sold to Mr Mohinder Pal Singh by the complainant on 28/3/2008. The same is also corroborated by letter of Mr Mohinder pal Singh and letter of Mr Jagdish Suri, driver of the vehicle at the time of theft. Since the vehicle has been sold prior to theft, the insured has no insurable interest in the vehicle; hence, the claim is not maintainable and complaint is liable to be dismissed. The OP has denied other facts stated in the complaint and has prayed for its dismissal with costs and any other just relief which this Forum shall consider fit and proper in the circumstances of the case to be granted to the OP.

In support of his case, the complaint has filed his affidavit in evidence. On behalf of the OP insurance company, the affidavit in evidence of Mr S. K. Arora, an officer of the OP insurance company is filed. The OP has also filed written arguments while complainant has not filed written arguments.

We have heard the learned counsel for the parties and have gone through the written arguments filed on behalf of OP insurance company, record of the case and relevant provisions of law.

It is not disputed that the complainant is registered owner and the insurance policy holder of the vehicle in question. According to the OP, the complainant has already sold the vehicle to one Mohinder pal Singh as per their investigation report as Ex.RII and prove the case of the OP insurance company and falsifying the case of complainant firm that it is still owner of the vehicle in question. The fact that complainant has filed the present complaint through Shri Mohinder pal Singh latter alleging to be attorney of the complainant also raises the inference of the sale of vehicle by complainant to Mohinder pal Singh by agreement and power tourney, et cetera.

In V. Mahaboob Basha v. National Insurance Company Ltd. : 2011(4) C.P.J. 193 : 2011(4) C.P.R. 298 : 2012(1) CLT 620 (N.C.D.R.C.) relied on behalf of the OP insurance company honourable National Commission has observed:

"......The District Forum, by its order dated 28.2.2007, allowed the complaint and directed the respondent Insurance Company to pay to the complainant Rs. 1,36,092 towards the insurance claim, Rs. 2,000 towards compensation for mental agony and Rs. 1,000 towards cost. However, the State Commission set aside the order of the District Forum and allowed the appeal of the Insurance Company by holding that the first complainant/petitioner could not have claimed the insurance amount because he was no more the owner of the vehicle, having sold the vehicle before the date of accident. On the other hand, the second complainant could also not claim the insurance amount because the insurance policy had not been transferred in his name before the date of the accident. The State Commission also observed that in arriving at its conclusion, the District Forum had relied upon a decision pertaining to a third party liability which was not relevant to the present case."

It was further observed as follows:

"4.................................................... Even on merits, there is hardly any room for interference with the well-reasoned order of the State Commission which does not suffer from any jurisdictional error, legal infirmity or material irregularity."

 

In the given facts and circumstances of the case when the complainant firm has already sold the insured vehicle in question to Shri Mohinder pal Singh, V. Mahaboob Basha's case (supra) directly applies to the present complaint, making complaint as not maintainable.

There is yet another view, which makes the present complaint non maintainable. Generally speaking, a person buying a good or hiring a service for consideration for any commercial purpose is ousted from the definition of "consumer" given in Section 2 (d) Of the Consumer Protection Act, 1986. However, the Explanation to the said provision of law, so far is relevant, provides that if a person has availed the services or has bought goods for commercial purpose exclusively for the purpose of earning his livelihood by means of self-employment, then he still is a consumer within the meaning of Section 2 (d) of the said Act. The key words are "earning his livelihood." and "self-employment" which so far is relevant indicate that if a commercial taxi is owned and driven by the owner himself, then he may still be a consumer within the meaning of said provision of law. However, since the complainant is a proprietorship firm and the commercial taxi in question admittedly was not being driven by the proprietor of the firm at the relevant time or any point of time, as per any cogent or convincing material placed on record in this complaint case, nor this fact is pleaded and proved by evidence by the complainant, so, the complainant 's proprietorship firm or complainant proprietor cannot be said to be consumer within the meaning of Section 2 (d) of the said Act. Complaint is therefore, not maintainable in this view of the matter also.

In view of the above discussion the complaint is dismissed. A copy of this order each be sent to both parties by post free of cost. This final order be sent to the server (www.confonet.nic.in). Keeping in view overall facts and circumstances of the case parties are left to bear their own cost of litigation. The file be consigned to the record room.

Pronounced in open Forum on 30/5/2016.

 

 

(S K SARVARIA)

PRESIDENT

 

                                            (H M VYAS)

   MEMBER