Chandigarh

StateCommission

CC/343/2016

M/s Bombay Traders - Complainant(s)

Versus

Oriental Insurance company - Opp.Party(s)

Munish Goel, Adv.

30 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	343 of 2016
Date of Institution	:	11.07.2016
Date of Decision	:	30.09.2016

 

M/s Bombay Traders, 114 IIIrd Floor, Sector 44, Gurgaon, through is Partner Sanjiv Mahajan.

……Complainant

V e r s u s

Oriental Insurance Company, SCO 45, Sector 20-C, Chandigarh, through its Managing Director/Director/Authorized Signatory.

              .... Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh.Munish Goel, Advocate for the complainant.

                 Sh.Deepak Chaudhary, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts, in brief, are that a vehicle-BMW, having registration no.HR26BE-9200, owned by the complainant met with an accident on 15.06.2013. The said vehicle had been purchased by the complainant from Bird Automotive, vide retail invoice Annexure C-1. It was insured for the period between 28.05.2013 to 27.05.2014, on payment of an amount of Rs.70,272/-, to the opposite party. At the time of insurance, value of the vehicle was assessed to the tune of Rs.28 lacs. It is so apparent from the insurance policy placed on record as Annexure C-3. It is also an admitted fact that qua the said vehicle, registration certificate was issued by the Competent Authority on 08.08.2013. In the above said certificate, it is specifically stated that prior to purchase of the said vehicle, it was under the ownership of BMW India Private Limited. It is case of the complainant that when accident occurred, the vehicle was being driven by one Uday Mahajan. Accident had occurred on account of heavy rain and an attempt on the part of driver to save an animal, who came in front of the vehicle. After accident, driver was taken to the hospital and on his medical examination; it was found by the Doctor concerned that he was under the influence of liquor. Noting above fact, DDR was recorded against the driver on 16.06.2013, under Section 185 of the Motor Vehicles Act, 1988 (in short the MV Act), for driving the vehicle, under influence of liquor. Copy of DDR has been placed on record as Annexure C-5. Factum of accident was brought to the notice of the opposite party. Request was made to send a surveyor, to assess loss caused to the vehicle, in question. However, the complainant was intimated by the opposite party that let the repairs be conducted and survey will be conducted thereafter.  The vehicle was got repaired. It is case of the complainant that for the job done, it had paid an amount of Rs.23,40,495/-. Qua payment made on 11.12.2015, receipt has been placed on record as Annexure C-10. At that stage, on intimation, Surveyor was appointed and after getting survey report and investigation done, claim raised qua reimbursement of amount spent on repair of the vehicle, was rejected by the opposite party, vide letter dated 02.12.2015 Annexure C-11. Reading of contents of letter dated 02.12.2015, makes it very clear that the claim was repudiated on the following grounds:-

“1.    R.C. has been transfer in the name of Bombay Traders on 08.08.2013 i.e. after the date of accident. Hence “You have no insurable interest at the time of accident, as per Insurance policy the vehicle is in the name of M/s Bombay Traders whereas as per RC the Regd. owner is BMW India Pvt. Ltd.”

2.     Secondly the car was driven by Uday Mahajan, driver and as per DDR Uday Mahajan was under the influence of liquor. As such, we are not liable for making payment and the claim warrants repudiation.”

 

2.         It was stated that when accident occurred on 15.06.2013, the vehicle, in question, was not registered in the name of the complainant. Rather it was in the ownership of BMW India Private Limited. It was further said that as per the DDR registered by the Police on 16.06.2013, the driver, driving the vehicle at the relevant time, was under the influence of liquor. On rejection of claim of the complainant, this complaint was filed before this Commission.
3.         Upon notice, reply was filed by the opposite party. It was stated that claim raised by the complainant was rightly rejected on account of the reasons, mentioned in earlier part of this order. Issuance of insurance policy in favour of the complainant, valid for the period from 28.05.2013 to 27.05.2014  was admitted. However, it was stated that the said policy was got issued by the complainant, without disclosing about ownership of the vehicle. Para no.2 (preliminary objections) of the written statement filed by the opposite party reads thus:-

“That the complainant got the vehicle insured vide Private Car Package policy No.231110/31/2014/2704 for the period from 28.05.2013 to 27.05.2014 subject to terms and conditions from the insurance company in the name of M/s Bombay Traders without disclosing the ownership of vehicle. It will be relevant to point out that before issuance of insurance policy, the vehicle was inspected by TDM Auto Lines on 27.05.2013 and the proposal form was also submitted by the complainant in which the name of proposer is shown as M/s Bombay Traders. The complainant has concealed the fact from the insurance company that RC was not in his name at the time of issuance of insurance policy. Needless to stress that the working of the insurance company is based on utmost good faith and if that faith is broken the entire contract of indemnity get vitiated. The alleged accident occurred on 15.06.2013 and the RC was transferred in the name of M/s Bombay Traders on 08.08.2013 i.e. after the date of accident. There was no privity of contract between the complainant and the insurance company as the RC was not in the name of complainant and in absence of any insurable interest the question of accepting the claim does not arise.”

 

4.         It was stated that the said vehicle was got registered in the name of the complainant after above accident, as such, there is no privity of contract between the complainant and the opposite  party and further the complainant had no insurable interest on the date, when the vehicle, met with an accident. It was stated that as per Surveyor’s Report, only an amount of Rs.10,35,714.99Ps., if any, is reimbursable to the complainant. Report of the Surveyor has been placed on record as Annexure R-8.
5.         The Parties led evidence, in support of their case.
6.         We have heard Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
7.         It is not in dispute that before issuance of insurance policy valid between the period 28.05.2013 to 27.05.2014, at the instance of the opposite party, the vehicle was inspected by TDM Auto Lines on 27.05.2013 (the date when cover note was issued). Proposal form was also submitted by the complainant stating that the said vehicle was its ownership. Admittedly, registration certificate was issued in the name of the complainant on 08.08.2013 i.e. after the date of accident on 15.06.2013. It has come on record that prior to purchase of the vehicle, it was the ownership of BMW India Private Limited. The vehicle was purchased by the complainant vide invoice dated 07.10.2011. It is nobody’s case that the retail invoice placed on record is a forged one. It is also unimaginable that a person or any company will get insurance issued by making payment of hefty amount for somebody else's vehicle. Once the vehicle has been purchased, the ownership automatically vested in the purchaser and registration certificate is mere a formality under the MV Act.

                Under similar circumstances, negating similar plea of the insurance Company, the National Commission in New India Insurance Co. Ltd., Vs. Bimlesh, IV (2014) CPJ 569, observed as under:-

 

“Since the complainant had acquired ownership of vehicle in question, on account of the transfer of the said vehicle in her name by way of execution of a sale letter from the previous owner on 2.4.2004 she became its owner with effect from that date and consequently had an insurable interest in it, at the time it got damaged.”

 

8.         In that case also, the insurance policy was got issued, when the vehicle was purchased and it was yet to be registered in the name of the purchaser, when accident occurred. In that case also, it was defense of the insurance policy that the policy was issued on good faith without verifying ownership reflected in the registration certificate. Such practice was deprecated by the National Commission and it was stated that insurable interest will pass over to the purchaser, the moment the vehicle is purchased. In view of above, the plea taken to the contrary by the opposite party is rejected.
9.         Further contention of Counsel for the opposite party is that when the vehicle met with an accident, the driver was under the influence of liquor. It is stated that in terms of condition no.2 (c) of the policy, the claim was rightly rejected. The said condition reads thus:-

“2. The Company shall not be liable to make any payment in respect of:-

(a)…….

(b)…….

(c) any accidental loss or damage suffered whilst the insured or any person driving with the knowledge and consent of the insured is under the influence of intoxicating liquor or drugs.”

 

10.         It is mentioned in the condition above that if any loss or damage is suffered in an accident, and it is within the knowledge of the insured or with his consent, that the driver at the time of driving the vehicle was under influence of liquor or drugs, the Company shall not be liable to make any payment. Similar controversy came up for consideration, before the National Commission in M/s New India Assurance Co. Ltd. Vs. Ashminder Pal Singh, through his Attorney Sh.Balwant Singh, II (2015) CPJ 758, wherein, it was noted that as per the provisions of Section 185 of MV Act, fine can be imposed on a person for driving a vehicle in drunken condition, if in the blood of that person, alcohol contents exceed 30 mg. per 100 ml., when blood test is conducted upon him, by breath analyzer. Relevant portion of M/s New India Assurance Co. Ltd.'s case (supra) reads thus:-

“9.      Learned Counsel for the petitioner has not cited any judgment in which it was held that merely on the basis of smell of liquor in breathing, driver of the vehicle can be held to be under influence of intoxicating liquor.  On the contrary, learned Counsel for the respondent has placed reliance on judgment of this Commission in

I (2008) CPJ 494 (NC) – National Insurance Co. Ltd. Vs. Vinod Kumar in which it was observed as under:

“Learned Counsel for the petitioner has pointed out that the respondent-Vinod Kumar-Insured who was driving the insured vehicle in question at the relevant time when the vehicle met with an accident was under the influence of alcohol.  In this connection, he has referred to the discharge paper dated 31^st May, 1999 issued by the St. Stephen’s Hospital, Delhi which reads “alleged alcohol intake”.  Assuming that this is correct record of the hospital, we are at a loss to understand as to who alleged that the respondent Vinod Kumar had taken alcohol. The said discharge slip does not record any symptoms which would be commensurate to that of a person under the influence of alcohol or other intoxicant. Though it is claimed that a police report was made immediately after the accident but it has not been filed on record.  Under the circumstances, it is not possible for us to hold that the respondent was in fact under the influence of any intoxication of alcohol or any other drug what to talk of holding that the respondent was heavily drunk or that he was not in a fit condition to drive the vehicle in question due to the influence of intoxicant. Therefore, we do not see any infirmity or illegality or jurisdictional error in the order passed by the State Commission requiring interference by this Commission.”

 

 

This Commission in R.P. No. 3243 of 2007 – National Insurance Co. Ltd. Soma Devi & Ors. in which it was observed as under:

“Both the post-mortem report and the investigators report merely state that the deceased had consumed alcohol without giving any details about the actual amount of alcohol consumed or the type of intoxicants consumed. Even if the post-mortem report stating that the deceased had consumed alcohol is accepted, this is not adequate proof that he was intoxicated, in the absence of any evidence regarding the quantity of alcohol consumed.

 Consumption of liquor is not a test for application of exclusionary clause of the policy, what is contemplated in the exclusionary clause of the policy is something more than merely consumption of liquor.  Driver may not be under influence of intoxication of liquor at the time of accident.  In the present case appellant has not provided any evidence of proof that respondent was under influence of intoxication at the time of accident and learned State Commission rightly allowed complaint.”

11.         In so far as the present case is concerned, DDR was registered against the driver on 16.06.2013, simply by stating that at the time of medical examination of the driver by a Doctor, he was found under the influence of liquor. No document to show that, as to whether any test was conducted upon the said driver; what were the contents of alcohol found in his blood, has not been recorded in the said DDR. Even affidavit of the Doctor concerned, has not been placed on record. There is nothing on record to show that the alcohol contents in the blood of the driver, driving the vehicle at the relevant time, was to such an extent that it was more that the prescribed limit and he was not in a position to drive the vehicle.
12.         Further, there is nothing on record to show that it was known to the insured that the driver was under influence of liquor at the time of accident. Under such circumstances, the provisions of condition no.2 (c) of the policy cannot be made applicable to repudiate the claim raised by the complainant. 

                Under above circumstances, it can safely be said that the claim raised by the complainant has wrongly been repudiated by the opposite party.

13.         It is stated by Counsel for the complainant that the complainant is entitled to get reimbursement of an amount of Rs.23,40,495/- which had been paid by him towards repair of the vehicle. We are not inclined to accept this argument in toto. It is an admitted fact on record that the vehicle was manufactured in the year 2008. It was purchased by the complainant on 07.10.2011. Accident occurred on 15.06.2013. It being an old vehicle, depreciation in its value/price will also be applicable, when granting any relief to the complainant. There is nothing on record to prove that claim was wrongly assessed by the Surveyor appointed by the opposite party. The said Surveyor has given a detailed report Annexure R-8, running into more than seven pages, giving details of each and every article/part, to show that amount of Rs.10,35,714.99Ps., is payable to the complainant. The said report has not been challenged by placing on record any expert evidence, contrary to the same, by the complainant. As such, in our considered opinion, the complainant is entitled to the amount assessed by the Surveyor.
14.         No other point, was urged, by Counsel for the parties.
15.         For the reasons recorded above, the complaint is party accepted with costs. The opposite party is directed to pay an amount of Rs.10,35,715/-, to the complainant. After getting the repair done, bill towards repair amount was paid by the complainant on 11.12.2015. The payment has unnecessarily been delayed. On account of that whereof 12.12.2015, the amount awarded shall entail interest @10% p.a. (simple). Besides as above, the complainant shall also be entitled to get Rs.33,000/-towards litigation expenses.
16.         The amount of Rs.10,35,714.99 ps., alongwith interest @10% p.a., shall be paid by the opposite party to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the same shall carry penal interest @12% p.a. instead of 10% from the aforesaid date (12.12.2015). Similarly, if the litigation expenses are not paid within a period of 30 days, from the date of receipt of a certified copy of this order, the same shall carry interest @10% p.a. from the date of filing of this complaint, till realization.
17.         Certified  copies of this order be sent to the parties, free of charge.
18.         The file be consigned to Record Room, after completion

Pronounced.

30.09.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg.