Before the District Consumer Disputes Redressal Forum, Rohtak.

                                                          Complaint No. : 36.

                                                          Instituted on     : 29.01.2014.

                                                          Decided on       : 10.03.2016.

Baljeet Singh s/o Sh. Pale Ram permanent resident of village Balhara, Tehsil & Distt. Jhajjar.

                                                          ………..Complainant.

                             Vs.

The New India Assurance Company Limited Delhi Road Rohtak Branch through its Divisional Manager.

                                                          ……….Opposite party.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.JOGINDER KUMAR JAKHAR, PRESIDENT.

                   MS. KOMAL KHANNA, MEMBER.

                   SH.VED PAL, MEMBER.

Present:       Sh.Rajesh Sharma, Advocate for the complainant.

                   Sh.R.K.Bhardwaj, Advocate for the opposite party.

                                      ORDER

SH. JOGINDER KUMAR JAKHAR, PRESIDENT :

1.                          The present complaint has been filed by the complainant with the averments that he is registered owner of a vehicle i.e. Hyundai Verna CRDI bearing No.HR-26AQ-3646 and the same was got insured by the complainant from the opposite party vide policy no.353800/31/09/0100203581 which was valid from 06.01.2010 to 05.01.2011. It is averred that the aforesaid vehicle met with an accident and FIR No.62/2010 was got registered in P.S.Kharkhoda. It is averred that the complainant duly informed the opposite party about the incident and filled the claim form and submitted all the relevant documents. The vehicle was damaged badly and the estimated loss was approx. Rs.562500/- . The surveyor assessed the loss to the tune of Rs.362500/-. The surveyor assessed the loss towards the lower side though there was a huge actual loss in the vehicle vide letter dated 01.10.2012.  It is averred that the opposite party closed the claim file of the complainant vide letter dated 08.01.2013 on the false and flimsy ground that the vehicle was sold to one Narender at the time of the alleged accident.  It is averred that complainant requested the opposite party to settle the claim but to no effect. It is averred that the act of opposite party is illegal and amounts to deficiency in service. As such it is averred that the opposite party may kindly be directed to pay the insurance claim of Rs.562000/- alongwith interest, compensation and litigation expenses. 

2.                          On notice, opposite party appeared and filed its written reply submitting therein that the complainant had already sold the vehicle to Narinder before the alleged accident. This was proved by the report of our investigator Dheeraj Vashisth and the letter dated 02.04.12 written to D.M. The New Assurance company, Rohtak by Baljeet Singh insured.  Thus Sh.Baljeet Singh has no insurable interest in the vehicle in question at the time of accident. There is violation of terms and conditions of the policy. Thus the insurance company is not liable to pay any compensation.  The insurance company approved Rs.562500/- less wreck Rs.200000/- less excess Rs.500/-. Total R.362000/- and Baljeet Singh also gave an affidavit signed by two witnesses that he is ready to take out of Rs.362000/- as full and final settlement.  But the amount was not given because Baljeet singh had sold the vehicle in question to Narinder Kumar before accident. Therefore he had no insurable interest in the vehicle and company is not liable to pay any compensation. It is averred that there is no deficiency in service on the part of opposite party and dismissal of complaint has been sought.

3.                          Both the parties led evidence in support of their case.

4.                          Ld. Counsel for the complainant in his evidence tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C7 and closed his evidence. On the other hand, Ld. counsel for the opposite party has tendered affidavit Ex.R1, documents Ex.R2 to Ex.R8 and has closed his evidence.

5.                          We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.

6.                          In the present case it is not disputed that as per policy Ex.C7/Ex.R6 the vehicle of the complainant was insured with the opposite party for the period from 06.01.2010 to 05.01.2011. It is also not disputed that the alleged vehicle met with an accident and after the accident complainant filed the claim with the opposite party. Opposite party appointed the surveyor who as per his report Ex.R5 has assessed the loss amounting to Rs.399540/- but the opposite party vide its letter Ex.R2 has closed the claim of the complainant on the ground that he had sold the vehicle in question to Shri Narender before the accident and at the time of accident Narender was driving the vehicle.  To prove its contention, opposite party has placed on record copy of letter Ex.R3 of the insured whereby it is submitted that he was about to transfer/sale his vehicle in the name of Narender but lateron he refused to purchase the vehicle and he took his NOC back and got the same cancelled/surrendered in his name and the vehicle stands in his name. Ex.R4 is the report of investigator, Ex.R5 is survey report and Ex.R6 is copy of policy, Ex.R7 is the copy of affidavit and Ex.R8 is the copy of intimation letter.  

7.                          After going through the file and hearing the parties it is observed that the claim of the complainant has been repudiated by the opposite party on the ground that at the time of accident the complainant was no insurable interest in the vehicle. But as per the documents placed on record by the opposite party i.e. copy of letter Ex.R3, the complainant was about to transfer/sale the vehicle but actually it was not sold as the purchaser refused to purchase the same. As per copy of report of investigator Ex.R4 it is submitted that it was preliminary investigation report and he will submit the complete Investigation report after receiving the reply from R.A.Gurgaon for the RTI made by him. But the final report has not been placed on record. Hence from the documents placed on file by the opposite party it is not proved that the vehicle was sold to Narender at the time of accident. Moreover as per the documents placed on record by the complainant i.e. R.C. Ex.C6 and copy of insurance Ex.C7 are still in the name of complainant. Hence the opposite party has failed to prove the fact that the complainant had sold the vehicle and has no insurable interest in the vehicle. In this regard we have placed reliance upon the law laid down in II(2008)CPJ 364(NC) titled as National Insurance Co. Ltd. Vs. Shrawan Bhati, Hon’ble National Commission has held that: “Sale proceed not received by complainant-No evidence produced to prove that amount has been exchanged-Insurable interest still lies with complainant, who is still legal owner of vehicle-Denying indemnification on mere assumption and presumption not sustainable-Insurer liable under policy”, as per IV(2005)ACC715(DB) titled Vipin Kumar Sharma Vs. Jagwant Kaur & Ors. Hon’ble Punjab & Haryana High Court has observed that transfer of vehicle takes place only when requirements prescribed under Act complied with registering authority and enters same in its record and owner is a person in whose name motor vehicle stands registered in the record of registering authority. In view of the aforesaid law which are applicable on the facts and circumstances of the case it is observed that the repudiation of the claim by the opposite party is illegal and amounts to deficiency in service and the opposite party is liable to pay the insurance claim as assessed by the surveyor. Regarding the settlement of claim as per copy of affidavit Ex.R7, it is observed that the same is merely a photocopy and is not supported with the affidavit and is not reliable. On the other hand, law relied by ld. counsel for the opposite party IV(2015)CPJ 682(NC) titled as HDFC Ergo Generel Insurance Co. Vs. Balraj Singh and II(2015)CPJ 541(NC) titled as National Insurance Co. Ltd. Vs. Ganga Ram Chaturbhuj are not applicable on the facts and circumstances of the case as in these cases Transfer of ownership stands established but in the present case the sale proceed was not received by the complainant and the sale of vehicle/transfer of ownership is not established.

8.                          In view of the aforesaid findings and discussions, it is observed that opposite party shall pay the claim amount of Rs.399540/-(Rupees three lac ninety nine thousand five hundred forty only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 29.01.2014 till its actual realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the opposite party shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision.  Complaint is allowed accordingly.

9.                         Copy of this order be supplied to both the parties free of costs.  File be consigned to the record room after due compliance.

Announced in open court:

10.03.2016.

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

                                                          Joginder Kumar Jakhar, President

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

                                                          Komal Khanna, Member.

                                                          ………………………..

                                                          Ved Pal, Member.