Delhi

North East

CC/13/2017

SH. MUSTAFA - Complainant(s)

Versus

NATIONAL INSURANCE COMPANY LTD. - Opp.Party(s)

06 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 13/17

 

In the matter of:

 

	Sh. Mustafa S/o Sh. Ayub R/o  H.No. 68/563 T-Huts Arun Nagar, Majnu Ka Tilla Delhi	Complainant
	Versus
	National Insurance Company Ltd. 124, Level 4, Jeevan Bharti Building Tower-2, Connaught Place,  Delhi-110001	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:                           DATE OF ORDER:

10.01.17 18.08.22 06.10.22

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

ORDER

      Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The Case of the complainant as revealed from the record is that he  purchased a vehicle bearing no. DL1RT0142 and get it insured by Opposite Party on 23.12.15 vide policy no. 35101031156337706312 valid from 25.12.15 upto midnight of 24.12.16. The Complainant stated that the said vehicle was commercial one but it was used by him for its livelihood by means of self employment. The Complainant stated that he was under some difficulty to ply the aforesaid vehicle executed by GPA, SPA alongwith sale agreement and affidavit in favour of Sh. Sharwan Kumar, R/o 31 A, Khasra No.426, B-Block, Ambey Enclave, Chauhan Patti, Karawal Nagar, Delhi-94. The Complainant and GPA holder agreed to transfer the ownership of the vehicle by making payment to GPA holder if the NOC was issued by the financer of said vehicle. It was orally agreed between the Complainant and the GPA holder that after getting the NOC by the financer the sale documents be treated as valid after payment to GPA holder. However the owner could not be transferred as NOC was not issued by the financer. The said vehicle was being driven by the GPA holder under authorization of the Complainant. On 08.05.16 the GPA holder was travelling somewhere with his family and notice smoke in the engine and then saw fire on the vehicle, then he immediately called the police and the fire brigade immediately on the spot and the fire brigade extinguishes the fire in the vehicle. The reason of the fire was short circuit in the vehicle and the said vehicle was completely burned. The statement of the GPA holder was recorded by appointed IO PS khajuri Khas delhi. The GPA holder informed the Opposite Party regarding the fire accident and a surveyor was appointed and the surveyor filed its survey report. The Complainant stated that he and the GPA holder visited the Opposite Party office at Connaught place and after checking all the documents and after taking photocopy of all the documents the official of Opposite Party informed the Complainant that the claim can be made at any branch of the Opposite Party. The Complainant along with GPA holder visited the Ghaziabad branch nearest to them and submit the documents in respect of claim and it was told that the cheque of the claim was sent to the registered address. On 02.11.16 Opposite Party issued a letter to Complainant in which the claim was erroneously repudiated by Opposite Party on the ground of vehicle sold to GPA holder. The Complainant stated that the Complainant had erroneously relied upon the document which has no bearing in view of the section 25 of Indian Contract Act which specifically states that Agreement without consideration is void. The sale documents relied upon by the Opposite Party does not disclose any amount of consideration. Hence this shows deficiency on the part of Opposite Party. It is prayed by Complainant to direct the Opposite Party to pay the insured amount Rs. 1,09,232/- i.e. value of vehicle, with interest @ 24 % p.a. till its realization. He has also prayed for Rs. 50,000/- on account of mental agony, pain and harassment and Rs. 35,000/- on account of litigation charges & other expenses.

Case of Opposite Party

2. The Opposite Party contested the case and filed written statement. It is stated by the Opposite Party that it has rightly repudiated the claim of the complainant on the basis that the complainant had no insurable interest in the vehicle on the date of loss (08.05.2016) as the complainant has sold the same to Mr. Sharwan Kumar vide Sale Deed and other documents all dated 01.04.2016 which does not amount to deficiency in service and therefore the complaint of the complainant is liable to be dismissed. The complainant has not come with clean hands before this Hon'ble Forum and has concealed material facts. According to complainant own version he has executed the Sale Agreement, GPA and SPA all dated 01.04.2016 in favour of Sh. Sharwan Kumar and thus had no insurable interest in the vehicle on the date of loss i.e. 08.05.2016. Thus, the essential  requirements to fix the liability on the insurer have not been met in this case, the complaint is therefore liable to be rejected at its threshold as otherwise it will be an abuse of the process of forum and the provisions of the Consumer Protection Act, 1986.
3. It is further denied that the sale documents relied upon the op does not disclose any amount of consideration. Per-contra the Sale Deed dated 01.04.2016 clearly stated that the “first party received the full and final sale consideration amount regarding the said vehicle from the second party” thus the sale consideration has been received by the complainant from the second party, though the non-mentioning of amount does not make the Sale Deed void. That it is stated that apart from the said Sale Deed, a Memorandum of Understanding was also singed between the complainant and Mr. Sharwan Kumar and which was deliberately not provided with the complaint to mislead this Hon'ble Forum, which clearly mentions about the transfer of complete interest and title of the aforesaid vehicle and also about execution of Form No. 29 & 30 in favour of Sh. Sharwan Kumar.

Rejoinder to the written statement of Opposite Party

4. The Complainant filed rejoinder to the written statement filed by the Opposite Party and he has reaffirmed the averments made in the complaint and has denied the averments made in the written statement.

Evidence of the Complainant

5. The Complainant in support of his complaint filed his affidavit wherein he has supported the averments made in the complaint.

 

 

Evidence of the Opposite Party

6. In order to prove its case Opposite Party has filed affidavit of Shri  Rajneesh Kumar, A.R of Opposite Party, wherein the averments made in the written statement have been supported.

Arguments & Conclusion

7. We have heard the Ld. Counsels for the parties. We have also perused the file and the written arguments filed by the parties.
8. The case of the Complainant is that that he purchased a vehicle bearing no. DL1RT0142 and get it insured by Opposite Party on 23.12.15 vide policy no. 35101031156337706312 valid from 25.12.15 upto midnight of 24.12.16. The Complainant stated that the said vehicle was commercial one but it was used by him for its livelihood by means of self employment. The Complainant stated that he was under some difficulty to ply the aforesaid vehicle executed by GPA, SPA alongwith sale agreement and affidavit in favour of Sh. Sharwan Kumar, R/o 31 A, Khasra No.426, B-Block, Ambey Enclave, Chauhan Patti, Karawal Nagar, Delhi-94. The Complainant and GPA holder agreed to transfer the ownership of the vehicle by making payment to GPA holder if the NOC was issued by the financer of said vehicle. However the owner could not be transferred as NOC was not issued by the financer. The said vehicle was being driven by the GPA holder under authorization of the Complainant. On 08.05.16 the GPA holder was travelling somewhere with his family and notice smoke in the engine and then saw fire on the vehicle, then he immediately called the police and the fire brigade immediately on the spot and the fire brigade extinguishes the fire in the vehicle. The reason of the fire was short circuit in the vehicle and the said vehicle was completely burned. The statement of the GPA holder was recorded by appointed IO PS khajuri Khas delhi. The GPA holder informed the Opposite Party regarding the fire accident and a surveyor was appointed and the surveyor fled its survey report. The Complainant stated that he and the GPA holder visited the Opposite Party office at Connaught place and after checking all the documents and after taking photocopy of all the documents the official of Opposite Party informed the Complainant that the claim can be made at any branch of the Opposite Party. The Complainant along with GPA holder visited the Ghaziabad branch nearest to them and submit the documents in respect of claim and it was told that the cheque of the claim was sent to the registered address. On 02.11.16 Opposite Party issued a letter to Complainant in which the claim was erroneously repudiated by Opposite Party on the ground of vehicle sold to GPA holder.
9. On the other hand the case of the Opposite Party is that it has rightly repudiated the claim of the complainant on the basis that the complainant had no insurable interest in the vehicle on the date of accident (08.05.2016) as the complainant has sold the same to  Mr. Sharwan Kumar vide Sale Deed and other documents all dated 01.04.2016 which does not amount to deficiency in service and therefore the complaint of the complainant is liable to be dismissed. The complainant has not come with clean hands before this Hon'ble Forum and has concealed material facts. According to complainant own version he has executed the Sale  Agreement, GPA and SPA all dated 01.04.2016 in favour of Sh. Sharwan Kumar and thus had no  insurable interest in the vehicle on the date of loss i.e. 08.05.2016. Thus, the essential  requirements to fix the liability on the insurer have not been met in this case, the complaint is therefore liable to be rejected at its threshold as otherwise it will be an abuse of the process of forum and the provisions of the Consumer Protection Act, 1986.
10.  The case of the Opposite Party to repudiate the claim of the Complainant is that on the date of accident Complainant was not the owner of the vehicle so his is not having insurable interest of the vehicle. As per document, vehicle was sold on 01.04.16 and accident was happened on 08.05.16. Complainant had received discharge certificate from the finance Company on 23.05.16.
11. The Hon’ble Supreme Court in the case of Surendra Kumar Bhilawe vs. The New India Assurance Company Ltd vide Civil Appeal No. 2632 of 2020 held 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.  In view of the definition of owner in Section 2 (30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad iliyas Ansari”.
12.  In view of the judgment of the Hon’ble Supreme Court, In this case Complainant was owner of the vehicle on the date of accident since vehicle was not transferred to the GPA holder and he was having insurable interest.  The Insurer shall pay to Complainant the insured amount of Rs. 1,09,232/- along with interest @ 6 % p.a. from the date of filing the complaint till  its recovery. The Opposite Party shall also pay an amount of Rs. 20,000/- to the Complainant on account of mental harassment and litigation expenses along with interest @ 6 % p.a. from the date of this order till its recovery.
13. Order announced on 06.10.2022.

            Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Surinder Kumar Sharma) President