JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 20.10.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum),vide which it accepted the complaint and directed OP NO.1 (now appellant) to pay a sum of Rs.74,950/-, towards the insurance claim of the car, alongwith Rs.25,000/- as compensation for mental agony and harassment. It was also directed that OP NO.1 shall pay Rs.7000/- as costs of the litigation. It was also directed that if the order was not complied with by OP No.1 within 45 days from the date of receipt of certified copy of the order, the amount of Rs.99,950/- shall be paid to the Complainant with interest @ 18% p.a. from the date of filing the complaint i.e. 10.11.2009 till realization of the same. 2. The facts, in brief, are that the complainant was the owner of Maruti (800 CC) car which was insured. Since, the car had become old, the complainant intended to replace it with a new car. He purchased a new (Hyundai i10 Sportz) car from OP-2. He also sold his old Maruti Car to one Sh.Bava Singh. OP No.2, who is the agent of OP NO.1, at the time of purchase of the new car, offered to issue insurance cover, regarding the same, to which the complainant agreed. OP No.2 issued the cover note regarding the insurance of new car (Hyundai i10 Sportz). While issuing the cover note, OP No.2, asked the complainant if there was any other insurance policy with the complainant. The complainant informed the representative of OP No.2 that he was having an old Maruti (800CC) car. It was also informed that he had already sold the said Maruti Car bearing Registration No.CH-03-K-1801, vide sale-cum-delivery letter. . Photocopies of the sale-cum-delivery letter, as also of the affidavit of the purchaser, were supplied to the representative of OP. The said representative of OP No.2 took the original Insurance Policy of the old Maruti Car, and retained the same. It was, thereafter, that the insurance cover note regard Hyundai i10 car was issued, in favour of the complainant. The complainant paid a sum of Rs.6639/-, as premium of the insurance policy, in respect of his new car. At that time, the complainant was asked by OP No.2, as to whether any claim was taken on the old insurance policy, to which, the complainant replied that he had not taken any claim, on the insurance policy of old car. As such on Annexure P-4, the cover note of new policy of Hyundai car, he was allowed ‘No Claim Bonus’ @ 45%. No other question was asked, either by OP NO.1, or OP NO.2, and no terms and conditions of the policy were explained to the complainant. It was further stated that the new car, which was purchased on 24.11.2008, met with an accident on 19.12.2008, and the matter was duly reported to OP No.1 and OP No.2, alongwith all the necessary documents. OP No.2 promised cashless repairs, as committed by it, in the Order Form. OP No.2 refused to handover the possession of the car, after the completion of repairs, on the pretext, that the claim was pending for settlement with OP No.1. It was told by OP NO.1 that the previous policy of Maruti Car could not be cancelled, as the same was overlooked by their staff. Thereafter, the complainant was advised to get the policy cancelled. It was further stated that to get his claim settled, upon assurance given by OP No.1, he got the policy cancelled on 15.1.2009, and an amount of Rs.1228/- was refunded by OP No.1, to the complainant. The complainant had to pay towing charges alongwith an amount of Rs.74,950/-, out of his own pocket, despite cashless insurance, to get the delivery of the duly repaired Hyundai i10 car Sportz, vide receipt dated 29.1.2009 Annexure P-12. It was further stated that the claim of the complainant was repudiated, on the ground, that the insurance policy, which he was having, in respect of his old car, was not got cacelled by him, before taking the insurance policy of the new car, and ‘No Claim Bonus’. It was further stated that the OPs were deficient, in rendering service. Left with no other alternative, the complainant filed a complaint before the District Forum, claiming reimbursement of insurance claim of Rs.74,950/-; towing charges of Rs.1500/- and Rs.23,000/- as compensation on account of harassment, mental agony and litigation expenses. 3. OP NO.1 put in appearance, and filed written reply. The factum with regard to the insurance of the vehicle and the occurrence of the accident on 19.12.2008, was admitted. OP No.1, however, pleaded that the complainant by not getting the earlier policy cancelled (on the basis of which, he had claimed ‘No Claim Bonus’), played a fraud upon it. It was stated that transfer of the old vehicle (CH-03-K-1801) was applied for, by the complainant, only in the month of January, 2009, after the date of accident of the new vehicle. It was further stated that the complainant submitted the transferred RC dated 22.06.2009 to OP-1, which clearly showed that till 21.06.2009, the complainant was the registered owner of the old vehicle. It was further stated that the complainant could not have transferred the NCB on the new vehicle, without the sale of the old vehicle. It was further stated that, in these circumstances, there was no deficiency, in rendering service, on the part of OP No.1. 4. OP No.2, in its written statement, stated that the vehicle, in question, was released to the complainant, as and when repair charges were paid. It was further stated that the liability of making payment of the claim, was of OP NO.1 and OP No.2 had no concern for the same. . 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the judgment. 6. Feeling aggrieved, the instant appeal, was filed by the Opposite party No.1/Appellant. 7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 8. The Counsel for the appellant, submitted that since the policy of the old Maruti car, had not been got cancelled by the complainant nor had he sold the same, by the time he took policy, in respect of the new car, or even till the accident of the new car took place, he claimed ‘no claim bonus’ on the policy of the new car fraudulently and, as such, he was not entitled to the amount claimed by him. The complainant had sold his old Maruti (800CC) car and purchased a new car (Hyundai i10 Sportz) and got insured the same. Copies of the sale-cum-delivery letter annexure 12, as also the affidavit of the buyer namely Bava Singh annexure P-3, in respect of the old car, were supplied to the representative of OP NO.2. In his affidavit- copy whereof is Annexure P-3, Bava Singh testified that he had purchased the vehicle bearing Registration No.CH03K 1801 from Sanjay Dhall, and took the delivery of the same on 5.11.2008. He also testified that after the date of delivery, he was responsible for all types of taxes, H.P.A Lease agreement, challan, theft case or any other case, pending against the said old car. The new car was got insured, by the complainant, after the sale of old Maruti car. It was, under these circumstances, that the complainant sought ‘no claim bonus’ . As per the definition of ‘Sale’ provided in the Sales of Goods Act, the sale of moveable property is complete, as soon as, the delivery of the same is made to the buyer, against consideration, fully paid or partly paid. The mere fact that the registration certificate, even after the sale of the old car, remained in the name of the complainant, and the same was got changed later on, did not affect the sale. The registration certificate was only required for the purpose of plying the vehicle, on the road. The insurance policy of the old car, was with the complainant, which he had sold in the favour of one Bava Singh. It was the definite case of the complainant that, at the time of taking the policy, in respect of his new car, the policy of the old car was handed over to the representative of OP NO.2. He also testified this fact, in his affidavit. It was also testified by the complainant in his affidavit, that OP NO.1 told him that the policy of the old Maruti car could not be cancelled, due to the mistake or negligence of the staff of OP No.2. This fact pleaded by the complainant, in the complaint, and proved through his affidavit, could not be successfully rebutted either by any official of OP NO.1, or OP No.2. In these circumstances, if due to the negligence or mistake of the officials of OP NO.1 or OP NO.2, the insurance policy of the old Maruti car, which was handed over by the complainant, to the representative of OP NO.2, was not cancelled, then he (complainant) could not be blamed for the same. It was the duty of OP No.1, to ensure that the policy of the old car, which was received by the representative of OP No.2, stood duly cancelled, before issuance of the policy of the new car, and grant of ‘NCB’. If the officials of OP No.1, neglected in the performance of their duties, and caused loss to it, it can recover the amount of such loss from them. The complainant was entitled to ‘no claim bonus’ as per the terms and conditions of the Policy, and he was given the same. The complainant had done, whatever he could do, within his control. The District Forum was, thus, right in coming to the conclusion that, OP NO.1 was deficient, in rendering service, to the complainant. 9. It was further contended by the Counsel for the appellant, that the complainant made a misrepresentation and played fraud that he had already sold the old car and, thus, he tried to overreach them by claiming ‘no claim bonus’. No evidence was produced by the OPs, to prove either misrepresentation, or fraud alleged to have been committed, by the complainant, with them. This plea , being without substance, must fail, and same are rejected. 10. It is evident from Annexure P-12, receipt dated 29.1.2009 issued by OP NO.2, that the complainant had paid a sum of Rs.74,950/- to OP NO.2, towards repair of the car, in question. In these circumstances, the District Forum was right, in holding that the complainant was entitled to the amount paid by him, as repair charges, alongwith compensation and costs. 11. The order passed by the District Forum does not suffer from any illegality or perversity warranting interference of the Commission. The same stands upheld. 12. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs, quantified at Rs.5000/-. The amount of cost, shall be in addition to the costs, already imposed by the District forum. It is , however, made clear that the appellant shall be at liberty to recover the amount of loss, if any, suffered by it, on account of the negligence of its employee(s), in accordance with law.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
