BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
DATED THIS THE 13th DAY OF NOVEMBER, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, MEMBER
APPEAL No.421/2020
Bodimala Venkatanarayana Reddy,
S/o Narayana Reddy,
Aged about 38 years,
Occupation Lorry Business,
R/O 11-325-A2, Aravind Nagar,
Anantapur Now at Bengaluru
... Appellant/s
Through his GPA
Sangamesh Murgad
S/o Baburao Murgad,
Age 40, R/o 001,
Sujana Homes, Gottigere,
BG Road, Bengaluru
(By Sri.K.Manohara Chari, Advocate)
-V/s-
1. The General Manager,
Tata AIG General Insurance
Company Ltd., Registered office:
Peninsula Business Park, … Respondent/s
Tower-A, 15th Floor,
G.K. Marg, Lower Parel,
Mumbai 400 013
2. The Manager,
Tata AIG General Insurance
Company Ltd., 2nd Floor, … Respondent/s
JP & Devi Jambukeswar Arcade,
No.69, Millers Road, Vasantha Nagar,
Bengaluru 560 052.
(Respondent Nos.1&2-By Sri.Prashanth T.Pandit, Advocate)
O R D E R
BY SMT. SUNITA C.BAGEWADI, MEMBER
This appeal is filed by the appellant/complainant being aggrieved by the order dated 18.02.2020 passed by the 1st Addl. District Consumer Commission, Bengaluru in CC.No.1181/2018 and prays to set-aside the order and to allow the appeal in the interest of justice and equity.
2. The brief facts of the complaint are as under:-
The complainant purchased TIPPER vehicle by obtaining loan of Rs.20,00,000/- from the 1st Opposite Party to be repayable in 35 EMIs of Rs.73,150/-. The same was registered with ARTO at Chikkaballapura on 5-8-2015 and the number given was KA-40-A-2919. The RC has also been issued to his name. It is further contended that on 27-9-2016 when the vehicle was transporting M-sand from Thammanayakanahalli to Bengaluru, a canter vehicle came from opposite side in a high speed by overtaking another vehicle thereby his tipper vehicle went off the road due to which the driver lost control over the vehicle and to save himself and the vehicle and to avoid collusion, applied sudden break and tried to bring back the vehicle on to the road and turned toward his right during such time, he lost his control over the vehicle and the vehicle capsized to its left side in the middle of the road at Barsur gate, Anekal-Chandapura Road. Immediately police and the OPs were intimated over telephone and an insurance claim was also made and the claim was registered by the Opposite Party in claim No.0820231805 and the same was conveyed over phone. It is sent one Firoz Ahmed Shareef for spot inspection and for verification of the damages caused to the vehicle. He immediately came to the spot for inspection and after the same; he asked the vehicle to be removed since it was lying in the middle of the road. The said Firoz Ahmed Shareef also collected necessary documents from the Sangamesh Murgad and GPA holder of the complainant. He only filed the claim under GPA on behalf of owner of the vehicle i.e. the complainant along with necessary documents, estimated the cost of spare. On 6-10-2016the complainant received a response letter from the Opposite Party stating that the complainant has no insurable interest in respect of the vehicle with met with an accident and hence they are not liable to pay compensation/damage for the loss caused to the vehicle and repudiated the claim. Immediately the complainant made a fresh claim on 6-10-2016 with OPs. In spite of it, the Opposite Party avoided paying the compensation as a result of which he sustained loss of Rs.5,000/- per day and ultimately got it repaired by paying money on his own. He has incurred Rs.3,25,855/- regarding the expenditure towards repair which includes lifting and towing charges cost of labour charges, painting and transportation. A new cabin to be fitted which cost Rs.3,50,000/-. It took 56 days for repair during which, he lost earning of Rs.5,000/- per day which amounted to Rs.2,80,000/-. The denial of the claim by the insurance is by wrongly interpreting the law which amounts to deficiency in service.
3. Upon the service of notice, the Opposite Party appeared before the Forum and filed the version contending that the complaint is not maintainable either in law or in facts; it is frivolous, vexatious, liable to be dismissed by imposing punitive cost. After obtaining the insurance from them and on the date of accident of ownership of the vehicle is vested with one Sangamesh Muragad. In the police complaint given in respect of the accident, the complainant has confirmed the sale of the vehicle to Sangamesh Muragad under the sale agreement dated 28-5-2015, whereas the insurance under policy No.0156059063 was obtained on 10-10-2016 in the name of the complainant Bodimalla Venkata Narayana Reddy. Therefore as on the date of accident and even prior to it, since the complainant Bodimalla Venkata Narayana Reddy sold the Tipper to Sangamesh Muragad, he has no existing “Insurable interest” in the vehicle. The policy was obtained without disclosing the fact of sale and by misrepresenting the facts. Hence the contract of insurance is void abnitio and the claim cannot be honoured and hence same was repudiated on 5-10-2016 by marking a copy to Sri.Bodimalla Venkata Narayana Reddy. Hence, they are not liable to pay any compensation or the claim of the complainant or the charges of the repair of the vehicle and prayed the Forum to dismiss the same.
4. After trial, the District Consumer Commission has dismissed the complaint with cost.
5. Being aggrieved by the said order, the appellant/complainant has preferred this appeal on various grounds.
6. Heard the arguments.
7. Perused the appeal memo, certified copy of the order passed by the District Consumer Commission, we noticed that, it is not in dispute that, the appellant purchased TIPPER lorry bearing Reg. No.KA-40-A-2919 and it has been insured with the respondent/Opposite Party for a sum of Rs.23,30,357/-being the IDV value of the vehicle. It is also not in dispute that, the said vehicle met with an accident on 27.09.2016 when the vehicle was transporting M-sand from Thammanayakanahalli to Bengaluru and a claim for the repair of the said vehicle was made by the GPA holder Sangamesh Muragad on behalf of Bodimalla Venkata Narayana Reddy, however the respondents have repudiated the claim on the ground that, the appellant/complainant has no insurable interest as he was sold the vehicle to Sangamesh Muragad much prior to obtaining the insurance. The allegation of the appellant is that, after accident he made the claim for insurance amount to the respondents. However, the respondents company repudiated the claim of the appellant on the ground that, at the time of accident the appellant has no insurable interest.
8. Per-contra, the respondents contended that after obtaining the insurance from the respondents on the date of accident the ownership of the vehicle is vested with one Sangamesh Muragad. In the police complaint given with respect of the accident, the appellant was confirmed to sell of the vehicle to Sangamesh Muragad under the sale agreement dated 25-8-2015. Hence, they are not liable to pay any compensation for the claim of the appellant/complainant or the charges of the repair of the vehicle.
9. Perused the document Ex.P9 letter dated 5-10-2016 sent by the respondents to Sangamesh Muragad informing that, the appellant had sold the vehicle in favour of Sangamesh Muragad as per agreement of the sale dated 25.8.2015. The District Commission holds that on the date of accident, the appellant was not owner of the vehicle. Hence, the appellant has no insurable interest.
10. Perused the documents, we noticed that, the appellant has purchased the vehicle on 14-7-2015 and agreement of sale in favour of Mr.Sangamesh Muragad executed on 5-3-2015 which is admitted by the appellant himself in the police complaint. Also General Power of Attorney executed in favour of Sri.Sangamesh Murgad on 31.8.2015 and authorizes to him to act on his behalf. However the appellant has purchased the vehicle by obtaining the loan of Rs. 20.00 lakhs from TATA Motors repayable in 35 EMIs of Rs.73,150/- and the said loan was closed by the appellant in 2018 as per the documents. The District Commission in their order held that the complainant has purchased a vehicle on 14-7-2015 and agreement in favour of Sangamesh Muragad executed on 5-3-2015 by receiving Rs.5,75,000/- and handing over the possession along with required document. Hence on the date of accident, the complainant/appellant is not the owner of vehicle and he has no insurable interest. However, if the vehicle was purchased through hire purchase agreement, the appellant cannot transfer the ownership of the vehicle in favaour of other person until the loan amount is fully repaid. The appellant cannot sell the vehicle without permission/consent of the financier. Moreover whenever the property is subject to future terms and conditions and its transfer is based on future date, it is referred as agreement to sell. In the present case, the respondents have not produced any documents that the appellant has delivered the actual possession of the said vehicle to the Mr.Sangamesh Muragad through registration. The registration was on the name of appellant valid upto 2017 the permit was on the name of appellant valid upto 2020 and policy was also in the name of the appellant which was in force at the time of accident. There is no any document on record to show that, Mr.Sangamesh Muragad is the actual owner of the said vehicle at the time of accident. Hence, though the vehicle is in possession of Mr.Sangamesh Muragad he cannot said to be the owner. Person in whose name the vehicle stands registered on the date of accident to be treated as the owner of the vehicle. Mere letter dated 5.10.2016 in complaint No.1181/2018 which is issued by the respondent/TATA ANG General Insurance Company who Sangamesh Muragad is not sufficient to prove that the ownership of the vehicle was with Sangamesh Muragad and he was the owner of the said vehicle at the time of accident.
11. Regarding the insurable interest, the appellant has produced some citations such as 1) AIR 2020 Supreme Court 3149, 2) I (2022) CPJ 52 (Del), 3) I (2020) CPJ 152 (Del), 4) II (2015) CPJ 646 (NC). We relied upon the said judgments and considering the facts, discussion made here, we are of the opinion that, the order passed by the District Commission is not in accordance with law; hence it is liable to be set aside. Hence, we proceed to pass the following:-
O R D E R
The appeal filed by appellant is hereby allowed.
The impugned order 18.2.2020 passed by the 1st Addl. District Consumer Disputes Redressal Commission, Bengaluru in CC.No.1181/2018 is set-aside. Consequently, the complaint filed by the complainant is allowed.
The Opposite Parties are directed to pay the repair charges spent by the complainant as per terms and conditions of the policy to the complainant within 30 day from the date of this order.
Further, the Opposite Parties are directed to pay compensation of Rs.1.00 lakh and litigation expenses of Rs.25,000/- to the complainant.
The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to complainant.
Send a copy of this order to both parties as well as concerned District Consumer Commission.
Lady Member Judicial Member
