Per – Hon’ble Mr. P. N. Kashalkar, Presiding Judicial Member
Heard Adv. Ms. Poonam Mittal on behalf of the Appellant/original Opponent and Adv. A. B. More on behalf of the Respondent/original Complainant.
[2] This is an appeal filed by the Appellant/original Opponent, namely – The Regional Manager, The New India Assurance Company Ltd. (hereinafter referred to as ‘the Insurance Company’ for the sake of brevity) challenging the judgment and order dated 3/11/2010 passed by the Mumbai Suburban District Consumer Disputes Redressal Forum (hereinafter referred to as ‘the District Forum’ for the sake of brevity) in Consumer Complaint No.748 of 2008, Mr. Manish B. Bhatia Vs. The Divisional Manager, The New India Assurance Company Ltd. While allowing the consumer complaint partly, the District Forum directed the Insurance Company to pay to the Respondent/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) insurance claim of `6,12,916/- within a period of eight weeks and failing which to pay interest thereon @ 12% p.a., besides costs of `5,000/-. Feeling aggrieved by the said order, the Insurance Company has come up in an appeal.
[3] Facts giving rise to this appeal lie in a narrow compass. The Complainant owned a tempo vehicle bearing RTO Registration No.MH-04-BU-2380 (hereinafter referred to as ‘the insured vehicle’ for the sake of brevity). The Complainant had taken an insurance cover in respect of the said vehicle from the Insurance Company for the period 14/2/2006 to 13/2/2007. It so happened that the insured vehicle was parked at a petrol pump on the intervening night of 22/10/2006 to 23/10/2006 and the insured vehicle was stolen away from that place. Hence, a F.I.R., was lodged with the Kashi-Mira Police Station but the insured vehicle could not be traced out. Ultimately, an insurance claim was lodged with the Insurance Company by providing necessary documents. However, the insurance claim was repudiated on the ground that the Complainant was not the owner of the insured vehicle since he had already transferred the insured vehicle to one Mr. Sadanand Padmakar Patil. On repudiation of his insurance claim, the Complainant knocked the doors of the District Forum by filing a consumer complaint alleging deficiency in service on the part of the Insurance Company.
[4] Insurance Company contested the complaint by filing its written version. According to the Insurance Company, in the complaint lodged with the Kashi-Mira Police Station, Mr. Sadanand Padmakar Patil, who lodged the F.I.R., clearly stated he was owner of the insured vehicle and he had purchased the insured vehicle from the Complainant about a year back. Thus, it is the contention of the Insurance Company that the Complainant was not having insurable interest in the insured vehicle since ownership had been transferred from the Complainant to Mr. Sadanand Padmakar Patil as per the said F.I.R. As such, the Insurance Company pleaded that it had rightly repudiated the insurance claim and it cannot be said that Insurance Company was guilty of deficiency in service.
[5] The Complainant filed his rejoinder and asserted that Mr. Sadanand Padmakar Patil was his business partner but, he had not transferred the ownership of the insured vehicle in favour of Mr. Sadanand Padmakar Patil. Said insured vehicle was still in the name of the Complainant in the RTO papers and also in the office of the Insurance Company.
[6] The District Forum upon considering facts and circumstances of the case and evidence adduced before it clearly held that the Complainant was the owner of the insured vehicle despite the fact that in the F.I.R. lodged with the Kashi-Mira Police Station Mr. Sadanand Padmakar Patil had claimed that he had purchased the insured vehicle from Mr. Manish Bipin Bhatia – the Complainant about a year back. But this fact was countered and controverted by Mr. Sadanand Padmakar Patil by filing an affidavit before the District Forum and in the said affidavit he clearly stated that at the time of incident of theft, insured vehicle was in possession of the Complainant and the Complainant was the owner of the insured vehicle and he has no objection if the amount is paid to the Complainant in terms of insurance policy which the Complainant had purchased from the Insurance Company. Thus, the District Forum allowed the consumer complaint and directed the Insurance Company to pay to the Complainant the amount towards the insurance claim besides costs of `5,000/-. Hence, the Insurance Company has come up in this appeal.
[7] We are finding that the order passed by the District Forum is just and proper. It is sustainable in law. What is significant to note is the fact that other than in the F.I.R., wherein Mr. Sadanand Padmakar Patil allegedly told the concerned police authorities of Kashi-Mira Police Station that he had purchased the insured vehicle from the Complainant about a year back, there was no evidence worth the name adduced on the record by the Insurance Company to prove that ownership of the insured vehicle had passed from the Complainant to Mr. Sadanand Padmakar Patil, the person who lodged the F.I.R. Contents of the F.I.R., is not a substantive piece of evidence. Contents of F.I.R., have got to be proved by the Insurance Company by examining the concerned police officer who recorded the F.I.R., in Kashi-Mira Police Station. Such an official was neither produced before the District Forum nor, his affidavit was placed on the record to prove contents of the F.I.R. On the other hand, Mr. Sadanand Padmakar Patil, the person who lodged the F.I.R., in the Kashi-Mira Police Station had filed an affidavit on 14/1/2010 before the District Forum in support of the Complainant and in the said affidavit he asserted that when-ever the Complainant used to go out of station, he would look after the Complainant’s business and he was a business partner of the Complainant and when-ever he used to go out of station, the Complainant would look after his business and, therefore, he lodged a F.I.R., in Kashi-Mira Police Station about theft of the insured vehicle. Mr. Sadanand Padmakar Patil, in his affidavit, categorically stated that he was neither the owner of the insured vehicle nor, did he purchase insured vehicle from the Complainant. He further categorically stated that he had no concern with the stolen insured vehicle of the Complainant. Further, he also stated that the Insurance Company and its investigator confirmed from documentary evidence such as R. C. Book, fitness, permit, insurance policy and hypothecation deed that he had not purchased insured vehicle and he claimed that the Complainant was the owner of the insured vehicle. So, relying on the affidavit of Mr. Sadanand Padmakar Patil it was rightly held by the District Forum that Mr. Sadanand Padmakar Patil had not purchased the insured vehicle from the Complainant and that the Complainant was the registered owner of the insured vehicle on the date of incident of theft of the insured vehicle. Therefore, insurance claim, if any, was payable to the Complainant and the insurance claim had deliberately repudiated by the Insurance Company and thus, the District Forum held that Insurance Company was guilty of deficiency in service within the meaning of Section-2(1)(g) of the Consumer Protection Act, 1986 and it had rightly allowed the complaint giving direction to pay the amount under the insurance policy since there was total loss of the insured vehicle. We are, therefore, finding that order passed by the District Forum is correct and we find no substance in the present appeal preferred by the Insurance Company against the said judgment and order passed by the District Forum.
Hence, we pass the following order:-
ORDER
Appeal stands dismissed.
No order as to costs.
Inform the parties accordingly.
Pronounced on 03rd April, 2012
