Punjab

StateCommission

FA/12/1363

OIC Ltd. - Complainant(s)

Versus

Sahamsher Singh - Opp.Party(s)

D.P.Gupta

10 Jul 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No.1363 of 2012

                                                Date of Institution:   11.10.2012.

                                                Date of Decision:             10.07.2015.

The Oriental Insurance Company Limited, Regional Office, SCO No.109-110-111, Sector 17-D, Chandigarh through Shri Ram Avtar, Deputy Manager.

                                           …..Appellant/opposite party

Versus

 

1.      Shri Shamsher Singh S/o Tara Singh S/o Sh. Hakam Singh,       resident of Village Kakar, P.O. Change Khurd, Tehsil and   District Ferozepur.

2.      Rakesh Kumar S/o Daat Raj, resident of Guru Har Sahai, Tehsil Jalalabad, District Ferozepur.

                                                              .….Respondents/complainants

First appeal against order dated 27.08.2012 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

     Shri J. S. Klar, Presiding Judicial Member.

             Shri H.S. Guram, Member.

Present:-

 

     For the appellant           :     Sh. D.P. Gupta, Advocate.

For the respondents    :     Sh. D.S. Khurana, Advocate.

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

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                   The appellant of this appeal (opposite party in the complaint) has directed this appeal against respondents herein (the complainants in the complaint), impugning order dated 27.08.2012 of District Consumer Disputes Redressal Forum Ferozepur (in short, “the District Forum”), accepting the complaint of the complainant by directing the OP to settle the claim of the complainants and to pay the same to complainant no.1, being the registered owner of the vehicle. The instant appeal has been filed against the same by the OP, now appellant.

2.                The complainants have filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OP on the averments that complainant no.1 is the registered owner of Tata 4018, Trailer, Model 2006, bearing no.PB-04K-9045 and he executed the document of power of attorney dated 27.12.2010 in favour of complainant no.2 with regard to the above said vehicle. The above said vehicle was insured with OP, vide policy no.233700/31/2011/1456 for the period from 12.08.2010 to 11.08.2011. The vehicle in question met with an accident in the month of January, 2011 during the pendency of insurance policy and it was got repaired from Dada Motors Pvt. Ltd. by the complainant by spending Rs.4,34,469/-. The complainants lodged the insurance claim with OP and claim of the complainant no.1 Shamsher Singh was rejected by the OP on false and frivolous ground that complainant no.1 Shamsher was no more the owner of the said vehicle. The complainants have, thus, prayed in the complaint that OP be directed to pay the amount spent by the complainants on the repair of the vehicle, besides Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as litigation expenses.

3.                Upon notice, OP no.1 filed written reply raising preliminary objections that complaint is not maintainable in the present Forum. The complicated questions of facts and law are involved in this case and hence the matter cannot be adjudicated in summary proceedings by the Consumer Forum. The complainants have not come to this Forum with clean hands and have rather suppressed the material facts. It was further pleaded that the claim in respect of accident of vehicle was lodged with OP by complainant no.1, whereas the said vehicle has been registered in the name of complainant no.2. On receipt of claim, the matter has been inspected by the OP and OP company came to the knowledge that on the basis of general power of attorney dated 27.12.2010, the complainant has sold the said vehicle to Rakesh Kumar son of
Sh. Daat Raj R/o Mandi Guru Har Sahai i.e. complainant no.2. The instrument of general power of attorney is an irrevocable document and it is not challengeable in any court of law. On merits, it was averred by OP that complainants have no locus standi to file the present complainant. The vehicle has been sold by complainant no.1 Shamsher Singh to complainant no.2 Rakesh Kumar by virtue of document of general power of attorney executed in his favour. The OP prayed for the dismissal for the complaint of the complainant.

4.                The complainants tendered in evidence the affidavit
Ex.C-1 alongwith documents Ex.C-2 to C-7 and closed the evidence. As against it, OP tendered in evidence affidavit of S.K. Sharma, Divisional Manager of OP Ex.R-1 alongwith documents Ex.R-2 and R-3 and closed the evidence thereafter. On conclusion of evidence and arguments, the District Forum Ferozepur accepted the complaint of the complainants. Dissatisfied with the above order, the OP, now appellant has directed this appeal against the same.

5.                We have heard the learned counsel for the parties and have also examined the record of the case. The respective pleadings of the parties contained in the complaint and written reply have been examines by us. We have also considered the affidavit of complainant Shamsher Singh Ex.C-1 on the record. He stated in his affidavit that he only appointed complainant no.2 as the general power of attorney holder on his behalf. He further stated that vehicle was insured with OP, when it met with accident and the insurance policy was operative from 12.08.2010 to 11.08.2011. He further stated that vehicle met with an accident in the month January, 2011 and due intimation thereof was given to the OP and vehicle was got repaired from Dada Motors Pvt. Ltd. and the complainants had to spent Rs.4,34,469/- on repair of the vehicle. The complainants also relied upon document from Divisional Manager of OP to complainant no.1 Shamsher Singh Ex.C-2 to the effect that since complainant no.1 has executed general power of attorney instrument in favour of complainant no.2 Rakesh Kumar, hence complainant no.1 Shamsher Singh ceased to be the owner of the vehicle. Ex.C-3 is copy of insurance policy of the said vehicle in the name of complainant no.1 Shamsher Singh. Ex.C-4 is the copy of bill of Rs.4,34,469/- for the repair of the said vehicle issued by Dada Motors Pvt. Ltd. Ludhiana.  It has proved that the bill is in the name of complainant no.1 Shamsher Singh. Ex.C-5 is the copy of National Permit for Goods Carriage. Ex.C-6 is copy of general power of attorney document executed by complainant no.1 Shamsher Singh in favour of complainant no.2 Rakesh Kumar. Ex.C-7 is copy of registration certificate of the vehicle. To counter this evidence, the OP placed reliance upon affidavit of S.K. Sharma, Divisional Manager of OP. He stated in this affidavit Ex.R-1 that complainant executed the power of attorney, which is irrevocable instrument in favour of Rakesh Kumar and hence complainant no.1 is not the owner of the said vehicle. The complainant no.1 had sold the vehicle to Rakesh Kumar complainant no.2 Rakesh Kumar and hence complainant no.1 has no concern with it.  Ex.R-2 is the intimation sent to complainant no.1 by the Divisional Manager of OP dated 01.11.2011, conveying that complainant no.1 Shamsher Singh has no insurable interest in respect of this vehicle. Ex.R-3 is the copy of general power of attorney on the record.

6.                From appraisal of above referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that complainant no.1 Shamsher Singh is recorded the registered owner of the vehicle in dispute, vide registration certificate Ex.C-7 on the record. The said vehicle has not been transferred in the name of Rakesh Kumar from the name of Shamsher Singh. The registration certificate of the vehicle is in the name of Shamsher Singh complainant no.1. The insurance policy of the vehicle has been taken by complainant no.1 Shamsher Singh by paying the premium vide Ex.C-3 on the record. Ex.C-4 is the copy of bill of Rs.4,34,469/- in the name of complainant no.1 Shamsher Singh issued by Dada Motors Pvt. Ltd. for repair charges of the said vehicle. Undoubtedly, complainant no.1 executed the general power of attorney document in favour of Rakesh Kumar complainant no.2, vide Ex.C-6 on the record. We find that complainant no.1 Shamsher Singh continued to be the registered owner of the vehicle in question, Rakesh Kumar complainant no.2 is his agent only, as per general power of attorney on the record. The Apex Court has held in "Pushpa @ Leela & Ors. Vs.  Shakuntala & Ors." 2011 AIR(SC)-682, that registered owner continued to be owner of the vehicle for the purposes of Motor Vehicles Act, 1988. This judgment is given under Section 157 of Motor Vehicles Act, 1988.  On the other hand, counsel for OP, now appellant submitted under Civil Law, complainant no.1 Shamsher Singh ceased to be the owner of the vehicle after its sale. From perusal of general power of attorney document Ex.C-6 on the record, we find complainant no.1 Shamsher Singh appointed Rakesh Kumar to act on his behalf only as his agent. The OP has not proved that complainant no.1 sold the vehicle to Rakesh Kumar, as there is no receipt of payment received by him nor there is any proof of delivery of possession of vehicle. Consequently, complainant no.1 Shamsher Singh is the registered owner of the said vehicle and he had taken the insurance policy as such complainant no.1 has locus standi to file the claim having an insurable interest in this case, because complainant no.2 Rakesh Kumar is his agent only as per document of general power of attorney. The order of the District Forum Ferozepur directing the OP to settle the insurance claim of the complainant as per terms and conditions of the policy is not ramshackle and infirm in our view. The order of the District Forum is affirmed in this appeal.

7.                As a corollary of our above discussions, finding no merit in the appeal of the appellant and the same is hereby dismissed.

8.                Arguments in this appeal were heard on 08.07.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                           (H.S.GURAM)

                                                                              MEMBER

 

July 10, 2015.                                                            

(MM)