DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 250 of 14-09-2009<br /> Decided on : 12-11-2009 <br /> <br /> Nishant Kumar S/o Naresh Kumar R/o Ward No. 9, Sardulgarh, District Mansa.<br /> .... Complainant<br /> Versus<br /> <br /> The Oriental Insurance Company Limited, 4501, Bank Street, Bathinda through its D.M.<br /> ... Opposite party<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. George, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the Complainant : Sh. Sanjay Goyal, counsel for the complainant.<br /> For the Opposite party : Sh. M.L. Bansal, counsel for the opposite party. <br /> <br /> O R D E R<br /> <br /> GEORGE, PRESIDENT<br /> <br /> 1. The complaint has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act) with the allegation against the opposite party that he got insured his vehicle Tata Indica Vista model 2008 Engine No. 0005804, Chasis No. E-1991, Registration Certificate No. PB-51-4700, vide cover Note No. 447361 for the period from 28-11-08 to 27-11-2009 and paid a premium of Rs. 12,817/-. On 11-03-2009 while coming from Rori to Sardulgarh, all of a sudden, an animal came in front of the vehicle and it met with an accident. The intimation of loss was given to the opposite party and as per his direction, complainant took the vehicle to M/s. Hemant Goyal Motors Private Limited, Patiala, for repairs. The said repairers issued the bill for Rs. 91,737/- for repairs and additional bill for parking charges. The complainant submitted the bills with the opposite party but the opposite party vide letter dated 30-06-2009 repudiated his claim on the ground that he sold his vehicle to one Jaspal Kumar. He asserts that in fact only agreement for sale of vehicle was executed with Jaspal Kumar, but the same was later on cancelled as his vehicle was hypothecated with Tata Motors Finance Limited and without payment to Finance Company, vehicle could not be transferred. Insurance Company was duly informed that he is registered owner of the vehicle, but despite this, his claim has been rejected. Hence, this complaint for issuing directions to the opposite party to pay him Rs. 91,737/- alongwith interest till the date of payment regarding repair, and Rs. 150/- per day as parking charges from 11-03-2009 till the date of delivery as M/s. Hemant Goyal Pvt. Ltd., refused to give the delivery of the vehicle without payment of repair charges and parking charges. The opposite party be also directed to pay Rs. 5500/- as litigation expenses.<br /> 2. The opposite party filed reply taking legal objections that complainant is not consumer; neither accident has taken place nor any intimation was given nor any FIR/DDR was got recorded nor spot survey was got conducted and the complainant has not come with clean hands. It has been submitted that after the accident, the complainant took his accidental vehicle to Patiala to get it repaired and only at that time, he intimated the opposite party regarding accident. On receipt of information, the opposite party deputed Surveyor & Loss Assessor and also deputed Investigator to investigate the accident who vide their report disclosed that at the time of accident, complainant had no insurable interest as he has already sold the vehicle in question to one Jaspal Kumar. So, the claim of the complainant has rightly been repudiated after thorough investigation.<br /> 3. In support of his averments contained in the complaint, the complainant has produced in evidence his affidavit Ex. C-1, photocopy of R.C. of vehicle Ex. C-2, photocopy of Insurance Cover Note Ex. C-3, photocopy of letter dated 30-06-09 Ex. C-4 and photocopy of estimate Ex. C-5.<br /> 4. To controvert the evidence of the complainant, the opposite party tendered in evidence photocopy of letter dated 30-06-09 Ex. R-1, photocopy of scrutiny cum summary form Ex. R-2, photocopy of survey report Ex. R-3, photocopy of statement Ex. R-4, photocopy of claim form Ex. R-5, photocopy of RC of vehicle Ex. R-6, photocopy of driving licence Ex. R-7, photocopy of Investigation report Ex. R-8, photocopies of statement of Sh. Nishant Kumar Ex. R-9 & Ex. R-10, photocopy of letter dated 26-03-09 Ex. R-11, photocopy of application form under cashless scheme Ex. R-12, copy of policy Ex. R-13 and affidavit of Sh. J L Ahuja, Senior Divisional manager Ex. R-14.<br /> 5. We have heard learned counsel for the parties and have gone through the entire record of the case.<br /> 6. The claim of the complainant has been repudiated on the ground that the complainant has no insurable interest as he has already sold his vehicle to one Sh. Jaspal Kumar. The perusal of the Survey Report Ex. R-3 of Sh.. Mandeep Kataria, Surveyor & Loss Assessor shows that he assessed the loss to the tune of Rs. 77,080/-( less salvage value of Rs. 2800/). This fact remained uncontroverted. The opposite party has admitted that the accident occurred and complainant has suffered loss as per the surveyor of the opposite party to the tune of Rs. 77,088/-. The only reason for repudiating the claim of the complainant which is being put forward on behalf of the opposite party is that the complainant had sold his vehicle No. PB-51-4700 to one Jaspal Kumar and as such, on the date of accident i.e. 11-03-2008, the complainant has no insurable interest in the vehicle. This contention raised on behalf of the opposite party appears to be totally unsustainable for the reason that registration of the vehicle was in the name of the complainant on the date of accident. <br /> 7. The onus is upon the opposite party to prove that the complainant has sold the vehicle in question to Jaspal Kumar which he has utterly failed to prove whereas on the other hand, the complainant in support his pleadings that he has not sold his vehicle, has placed on record photocopy of Registration Certificate Ex. C-2 which clearly reveals that vehicle in question is in the name of Nishant Kumar, complainant. Ex. C-3 is the copy of Insurance Cover Note which also shows that Tata Indica Vista bearing registration No. PB-51- 4700 is insured for Rs. 4,94,000/- w.e.f. 28-11-2008 to 27-11-2009 with the opposite party in the name of complainant. Even otherwise the surveyor of the opposite party has also mentioned in this survey report Ex. R-3 that R.C. of the vehicle is in the name of Nishant Kumar, complainant. The surveyor after verifying all the documents of the vehicle i.e. R.C. driving licence and insurance particulars has assessed the loss to the tune of Rs. 77,080/- vide his report dated 18-05-2009 Ex. R-3. This report is not challenged in any manner by the complainant.<br /> 8. The report of Sh. Satish Kumar Bansal Investigator, solely depends upon the statement of complainant who has clearly stated in para No. 6 of his affidavit Ex. C-1 that “agreement for sale of vehicle was executed but same was later on cancelled”. It is also not clear from the record that as to whether Sh. Satish Bansal was appointed by opposite party as Investigator after obtaining proper and prior permission from the Controller of Insurance which is mandatory requirement under Section 64 UMG (3) of Insurance Act, or not. The Insurance company is not definitely empowered to appoint second surveyor and describe him as an Investigator. In this view of the matter, we are fortified by the observations of the Hon'ble State commission, Punjab Chandigarh in the case Jagdamba Inustries Vs. National Insurance Company Limited III(1999) CPJ 131 wherein it has been held that “Investigator was not to act as an appellate authority against the report of the previous surveyor. Further more, such an Investigator/Surveyor was not appointed after taking approval of the Insurance Controller as envisaged under Section 64UM(G)(3) - Deficiency in not settling the claim proved.” Thus, we are of the considered view that survey report of Sh. Mandeep Kataria, final surveyor of the opposite party is valid in all respects. <br /> 9. The complainant being a registered owner having valid Insurance is definitely entitled to be indemnified for the loss he has sustained due to accident. This view is supported as per the judgements delivered by our own Hon'ble State Commission, Chandigarh, in the case of Harjit Singh Vs. New India Assurance Co. Ltd., I(2007) CPJ 349 wherein it has been held that the “Original owner alone has locus standi to claim insurance from insurer.” and in the case of Oriental Insurance Company Limited & Anr Vs. Dharam Pal I(2007) CPJ 150 wherein it has been held that “Even assuming that complainant sold vehicle, registration certificate continued to stand in his name. Legally, complainants would remain owners on the basis of registration certificate – Insurer not absolved of its liability to indemnify insured – Liable.” The assessment made by the surveyor is not at all challenged either in the pleading or in the affidavit Ex. C-1 filed on behalf of the complainant. The opposite party kept the claim pending without settling the same till date on flimsy grounds as referred to herein above and therefore, the complainant is entitled for the loss as assessed by the surveyor, in his report Ex. R-3. Due to non payment of claim/repair charges, the vehicle remained parked as the said repairer refused to give delivery of the vehicle. In Ex. C-5 bill of M/s. Hemant Goyal Motors Pvt. Ltd., it has been specifically mentioned that at Sr. No. 5 “Parking 150 per day charges applicable if customer not taken delivery after repair or not job done or case of total loss”. Accordingly, in addition to this, he is also entitled for parking charges.<br /> 10. No other point was urged before us at the time of arguments.<br /> 11. In the result, the complaint is accepted against opposite party . The opposite party is directed to pay to the complainant an amount of Rs. 77,088/- minus Rs. 2800/-, alongwith interest @9% P.A. w.e.f. 12-06-2009 (The date calculated on expiry of three months period from the date of loss, a period required for processing the case in an effective manner in normal course) till final payment besides parking charges @ Rs. 150/- per day w.e.f. 12-06-2009 till the date the claim is paid to the complainant. <br /> The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> The copy of this order be sent to the parties concerned free of cost and the file be indexed and consigned. <br /> Pronounced :<br /> 12-11-2009 <br /> <br /> (George)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul) Member <br /> <br />