Haryana

Yamunanagar

CC/628/2011

Joginder Pal s/o Sh.Om Parkash - Complainant(s)

Versus

Reliance General Insurance Company Ltd. - Opp.Party(s)

Nitin Arora

28 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                          Complaint No. 628 of 2011.

                                                                                          Date of institution: 13.06.2011   

                                                                                          Date of decision: 28.03.2017

1.          Joginder Pal, now deceased, represented by his legal heirs and representative:

1. Rajni Kumari widow,
2. Manik Kumar son
3. Saurabh Kumar son of Joginder Pal son of Om Parkash, all residents of House No. 189, Gopal Nagar, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

2.        Daljit Singh son of Joginder Singh, resident of House No. 359-L, Model Town, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                

             …Complainants.

                                    Versus

1. Reliance General Insurance Company Limited, 145-146, Second Floor, Madhya Marg, Sector 9-C, Chandigarh through its Manager.
2. Shree Ram Transport Finance Company Ltd. SCO 510, Ist Floor, near Lal Dwara, Opp: Raghunath Mandir, Jagadhri Road, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                         …Respondents.

BEFORE:        SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Nitin Arora, Advocate for complainant.

               Sh. Rajiv Gupta, Advocate for respondent No.1.

               Sh. A.S.Goyal, Advocate, counsel for respondent No.2.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1                      Initially the present complaint under section 12 of the Consumer Protection Act. 1986 was filed by Joginder Pal with Sh. Daljit Singh being GPA, however, later on complainant No.1 Joginder Pal died and his LRs were impleaded (hereinafter legal heirs will be referred as complainant No.1).

2.                     Brief facts of the present complaint are that the complainant No.1 was a registered owner of TATA truck bearing registration No. HR-58A-1818 whereas complainant No.2 is General Power of Attorney of complainant No.1 in respect of the vehicle in question. The truck in question was comprehensively insured with the respondent No.1 (hereinafter respondents will be referred as OPs) vide insurance policy bearing No. 1905702334000461 valid from 24.06.2010 to 24.06.2011. The vehicle in question was also financed from OP No.2. Unfortunately, on 18.07.2010, the vehicle/truck in question of the complainant No.1 met with an accident and there was extensive damage to the said vehicle. An intimation to this effect was given to OP No.1 immediately, upon which, a surveyor and loss assessor Sh. M.L.Garg was appointed who surveyed the vehicle and assessed the loss. Thereafter, as per direction of the Surveyor and Loss Assessor the truck in question was got repaired and approximately a sum of Rs. 4,10,000/- was spent. After that, complainant submitted all the documents, bills as demanded and required by the surveyor and Op No.1 Insurance Company for passing a claim but the OP No.1 Insurance Company put off the matter on one pretext or the other. Ultimately, the OP No.1 Insurance Company wrongly and illegally repudiated the claim of the complainant vide letter dated 03.12.2010 stating therein that complainant No.1 has no insurable interest in the truck/ vehicle in question. The claim of the complainant has been falsely repudiated by the OP No.1 Insurance Company on the ground that complainant No.1 had sold the vehicle to OP No.2. The sale of the vehicle is governed by the provisions of sales of goods act and transfer of vehicle is complete upon payment of consideration and delivery of the vehicle is respective of the fact whether the transfer of vehicle has been registered or not. In this way, the repudiation of the claim on this ground by Op No.1 is not sustainable. Lastly, prayed for directing the OP No.1 Insurance Company to pay the sum insured of Rs. 5,90,000/- alongwith interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed their written statement separately.

OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainants have not come to this Forum with clean hands; complainants have no locus standi to file the present complaint; this Forum has no territorial jurisdiction to entertain and try the present complaint; complainant Joginder Pal had no insurable interest in the truck bearing registration No. HR-58A-1818 at the time of alleged accident as he had already sold the truck in question to one Sh. Daljit Singh. This fact came to the knowledge of the OP No.1 Insurance Company when the Surveyor Sh. M.L.Garg was deputed by the company for assessment of the loss, if any, and to collect the relevant documents. However, it has been admitted that truck bearing registration No. HR-58A-1818 was insured vide policy bearing No. 190570234000461 valid from 24.06.2010 to 23.06.2011 for IDV of Rs. 7,00,000/- in the name of Sh. Joginderpal complainant No.1. On intimation, the OP No.1 Insurance Company immediately started processing the claim and a Surveyor and Loss Assessor Sh. M.L.Garg was deputed to conduct the survey of the damaged vehicle in question who conducted the survey on 03.09.2010 and on subsequent dates to assess the loss and submitted his report assessing the net loss on repair basis to the tune of Rs. 63,795/- after applying the relevant depreciation clause and submitted his report to the OP No.1 Insurance Company subject to its terms and conditions of the insurance policy.

            On receipt of the said report and other relevant papers, the claim in question was duly processed by the OP No.1 Insurance Company and it was observed that at the material time of damage to the vehicle, the insurance policy stood in the name of Joginderpal whereas the vehicle in question stood owned by Daljit Singh. Meaning that at the time of alleged accident, the complainant Joginder Pal had no insurable interest in the said vehicle/truck as he had already sold the truck in question to one Sh. Daljit Singh son of Joginder Singh. Keeping in view the abovesaid facts, the OP No.1 Insurance Company has rightly repudiated the claim of the complainant vide its letter dated 03.12.2010 being the violation of GR-17 of the Indian Motor Tariff. A letter was written to the complainant to explain the same but no reply/clarification was given by the complainant and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

4.                     Op No.2 filed its written statement denying all the facts of the complaint being a matter of record and lastly prayed for dismissal of complaint qua OP No.2.

5.                     In support of case, counsel for the complainants tendered into evidence affidavit of Manik Kumar son of late Joginder Pal as Annexure CX and documents such as photo copy of registration certificate as Annexure C-1, Photo copy of insurance policy as Annexure C-2, Photo copy of repudiation letter dated 03.12.2010 as Annexure C-3, Photo copies of repair bills as Annexure C-4 to C-8, Photo copy of General Power of Attorney as Annexure C-9 and closed the evidence on behalf of complainants.

6.                     On the other hand, counsel for OP No.1 tendered into evidence affidavit of M.L.Garg, Surveyor and Loss Assessor as Annexure RW/A and affidavit of Rakesh Sonker Zonal Head as Annexure RW/B and documents such as Photo copy of surveyor report as Annexure R-1, Photo copy of claim repudiation letter dated 03.12.2010 as Annexure R-2, Photo copy of insurance policy alongwith terms and conditions as Annexure R-3, Photo copy of sale agreement as Annexure R-4 and closed the evidence on behalf of OP No.1.

7.                     OP No.2 failed to adduce any evidence, hence evidence of Op No.2 was closed by court order dated 31.05.2016.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

9.                     It is not disputed that truck/vehicle in question bearing registration No.HR-58A-1818 was insured with the OP No.1 Insurance Company vide insurance policy bearing No. 1905702334000461 valid from 24.06.2010 to 23.06.2011 for IDV of Rs. 7,00,000/- which is duly evident from copy of insurance policy Annexure C-2/R-3. it is also not disputed that the vehicle/truck in question was standing in the name of Joginderpal son of Om Parkash being the registered owner which is also duly evident from the copy of registration certificate Annexure C-1. It is also not disputed that vehicle/truck in question met with an accident on 19.08.2010 and a surveyor and Loss Assessor Sh.M.L.Garg was appointed by the OP No.1 Insurance Company who submitted his independent Surveyor report Annexure R-1 assessing the net loss on repair basis to the tune of Rs. 63,795/-.

10                    The only version of the OP No.1 Insurance Company is that deceased Joginderpal complainant No.1 had already sold the truck/vehicle in question to one Daljit Singh and was not having any insurable interest at the time of alleged accident on 19.08.2010. Learned counsel for OP No.1 Insurance Company draw our attention towards the agreement to sell Annexure R-4, which was executed between the first complainant deceased Joginder Pal and complainant No.2 Daljit Singh on 22.10.2008 i.e. near about two (2) years prior to the alleged accident and argued that from this agreement to sell Annexure R-4, it is duly evident that complainant Joginder Pal now deceased was not having any insurable interest at the time of alleged accident as the said Daljit Singh was owner in possession of the vehicle/truck in question at that time. Learned counsel for the Op No.1 Insurance Company further argued that neither the complainant No.1 deceased Joginder Pal nor Sh. Daljit Singh had ever applied to OP No.1 Insurance Company to transfer the insurance policy as well as registration of the truck in question in the name of Daljit Singh. Lastly, argued that the claim of the complainant has been rightly repudiated vide letter dated 03.12.2010 Annexure R-2. Learned counsel for Op No.1 Insurance Company referred the case law titled as New India Assurance Company Ltd. Versus Chandrakant Bhujangrao Jogdand, Revision Petition No. 4387 of 2009 decided in March, 2010 and United India Insurance Co. Ltd. Vs. Sri V.C.Deendayal, Revision Petition No. 426 of 2007 decided on 13.03.2009.

11.                   On the other hand, learned counsel for the complainant argued at length that the claim of the complainant has been wrongly and illegally repudiated by the OP No.1 Insurance Company and draw our attention towards the copy of registration certificate as well as insurance policy which stood in the name of complainant No.1 Joginder Pal at the time of accident. Further, learned counsel for the complainants argued that sale of the vehicle is governed by the provision of Sales of Goods Act and transfer of vehicle is complete upon payment of consideration and delivery of the vehicle irrespective of the fact whether the transfer of vehicle has been registered or  not and in this way the repudiation of the claim by the OP No.1 Insurance company is liable to be quashed. Learned counsel for the complainant referred the case law titled as Oriental Insurance Company Ltd. and others Versus Abbhishek Kumar and another, 2017 (1) R.C.R. (Civil) Page No. 128 Punjab & Haryana High Court wherein it has been held that Motor Vehicles Act, 1988, Section 157 and 103- Legal Services Authorities Act, 1987- Section 22 (C ) Theft of vehicle- Original owner of the vehicle was insurance policy holder- Original Policy holder sold the vehicle in favour of respondent No.1- Theft of the vehicle during currency of the insurance policy- transferee will step into the shoes of transferrer including regarding benefit of insurance policy.

12.                   After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OP No.1 Insurance Company as OP No.1 Insurance Company has duly proved that Ist complainant Joginder Pal ( now deceased) had sold his truck to one Daljit Singh vide agreement to sell Annexure R-4 since  20.10.2008 whereas the alleged accident took place on 18.07.2010 i.e. after two (2) years but the registration was not got transferred by complainant No.2 in his name due to the reason best known to him. Even, the complainant No.2 was getting the insurance policy renewed in the name of registered owner Joginderpal by suppressing the facts that he had already purchased the truck in question from complainant No.1. The present complaint has been filed by the registered owner Joginder Pal now deceased and Daljit Singh (subsequent purchaser) by mentioning that the complainant No.2 Daljit Singh is having general power of attorney of complainant No.1 whereas from the perusal of agreement to sell Annexure R-4, it is duly evident that complainant No.1 had already sold his truck to the complainant No.2 on 22.10.2008 and had received the amount as agreed between them and also handed over the possession of the truck in question to the complainant No.2. Meaning thereby, that in the present case also both the complainants have suppressed the true facts from this Forum. Although, the registration certificate and insurance policy in question stands in the name of complainant No.1 (now deceased) but as the complainant No.1 had already sold his truck to the complainant No.2 vide sale agreement dated 22.10.2008 Annexure C-4, hence, we are of the considered view that both the complainants have lost their insurable interest in the vehicle in question. the law cited by counsel for the complainants is not applicable to the facts of the present case as the scope of section 157 Viz a Viz insurance liability as against the third party and own damage, the Apex Court in M/s Complete Insulations (P) Ltd. Versus New India Assurance Co. Ltd. AIR 1996 (1) Supreme Court Cases page 221 has laid down that the deemed transfer under Section 157  of the Motor Vehicle Act is restricted to third party risks and does not apply to other risk like damage caused to the vehicle of the insured himself which falls outside Chapter XI of the new Act and is in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle.

13.                   Resultantly, in the circumstances noted above, we are of the considered view that the complainants have lost their insurable interest in the vehicle in question and we have no option except to dismiss the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 28.03.2017.

                                                                                               

                                                                              ( ASHOK KUMAR GARG)

                                                                               PRESIDENT

                                                                               DCDRF,YAMUNANAGAR

 

 

 

                                                                              (S.C.SHARMA)

                                                                               MEMBER