DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Shiv Kumar son of Sh. Ravi Chand, resident of H.No. 1090, Sector 4, Panchkula.

                                                                   ---Complainant

Vs

United India Insurance Company Limited, Divisional Office-III, SCO No. 149-150 (1^st Floor), Sector 8-C, Chandigarh, through its Senior Divisional Manager.

---- Opposite Party

BEFORE:          SH.LAKSHMAN SHARMA                  PRESIDENT

MRS.MADHU MUTNEJA                    MEMBER

                        SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:      Shri Vishal Madan, Counsel for the Complainant.

Shri Rajesh K. Sharma, Counsel for the Opposite Party.

PER MADHU MUTNEJA, MEMBER

1.                The instant complaint relates to non-payment of an insurance claim against the Tata Safari bearing Regn. No.HR 68A 7772 of the Complainant.

                   Briefly stated, the Complainant was the owner of aforesaid Tata Safari, which was insured with the Opposite Party from 1.1.2008 to 31.12.2008. Photocopy of R.C. and cover note are at Annexure C-1 and C-2. On 27.11.2008, the vehicle while being driven by one Sh. Pardeep Bansal son of Sh. Ghansham Bansal, met with an accident. An F.I.R. No. 183, dated 27.11.2008 was lodged at P.S. Bhawanigarh, District Sangrur by the wife of the deceased (Annexure C-3). Thereafter, a claim regarding the damage to the vehicle was lodged with the Opposite Party along with all necessary documents. A surveyor was deputed by the Opposite Party, who gave an opinion that the vehicle was a total loss and told the Complainant to sell the vehicle, which would fetch about Rs.1,90,000/-. The balance insured payment would be payable by the insurance company after submission of the surveyor report. Accordingly, the Complainant sold the vehicle for Rs.1,90,000/-. Thereafter, he visited the office of the Opposite Party for the payment of the balance insured amount.  The matter remained unsettled and the claim was eventually repudiated vide letter dated 21.10.2010 (Annexure C-4). 

                   The Complainant has stated that Sh. Pardeep Bansal had a valid licence for LMV vehicle and he is fully competent to drive the vehicle. Also the Complainant is a registered owner and the vehicle had not been sold to Sh. Pardeep Bansal at the time of accident.

                   Alleging that the insurance company is liable to indemnify the loss occurred to him due to the accident, the Complainant has filed the instant complaint, with a prayer for payment of the balance amount as per IDV, along with compensation and costs of litigation.  

2.                After admission of the complaint, notice was sent to the Opposite Party.

3.                Opposite Party in reply has stated that the complaint is not maintainable. The Complainant has suppressed material facts from the Forum. According to the Opposite Party, the vehicle Tata Safari was driven by Pardeep Bansal in violation of the terms & conditions of the insurance policy (Annexure R-1), which are as under: -

“Any person including insured provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding or obtaining such a licence. Provided also that the person holding an effective Learner’s Licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rules, 1989.”

                   Hence as the vehicle was registered as LTV and the driver was licensed to drive LMV/MCW only, the claim is not payable. The driving license of Pardeep Bansal is at Annexure R-2.  Opposite Party has further contended that the Complainant had already sold the vehicle to Pardeep Bansal, who was driving the vehicle at the time of accident. As per the Opposite Party, this fact of sale of vehicle finds mention in the F.I.R. lodged by the wife of the deceased and the statement given by the father of the deceased to the Investigator. Copy of the investigation report is at Annexure R-3.  As the vehicle has already been sold and the fact was not disclosed to the insurance company, the Complainant has no insurable interest in the vehicle on the date of the accident.

                   On merits, the Opposite party has reiterated the contentions in the preliminary objection. They have specifically submitted that Sh. Ghamsham  Bansal father of the deceased Pardeep Bansal has given it in writing to the Investigator that the wreck was sold by Shiv Kumar for Rs.2,00,000/- and paid Rs.1,90,000/- to him. As per the Opposite Party, the insurance policy specifically provides for persons or classes of persons entitle to drive the vehicle. Denying all other allegations of the Complainant, Opposite Party has prayed for dismissal of the complaint.

4.                Parties led evidence in support of their contentions.

5.                We have heard the learned counsel for the parties and have perused the record, as well as the written arguments of the Complainant.

6.                Annexure C-1 and C-2 are copies of registration certificate as well as insurance policy. As per the registration certificate, the vehicle has been registered as a transport vehicle (LTV).  But the tax has been paid as ‘one time’. 

7.                As per the report of the investigator, after the spot survey conducted on the vehicle and recording statements of Sh. Shiv Kumar (Complainant) and Sh. Ghansham Bansal father of Sh. Pardeep Bansal, it is brought out that Ghansham Bansal had received Rs.1,90,000/-, after the sale of the vehicle from Sh. Shiv Kumar. Sh. Ghansham Bansal has also requested for early settlement of claim. The interest of Sh. Ghansham Bansal in the claim is brought out by this statement. Though the statement of the Complainant makes no mention about the sale of vehicle to Sh. Ghansham Bansal/ Pardeep Bansal.

                   As per the Investigator discreet inquiries from the employees of Sh. Ghansham Bansal have revealed that the Tata Safari car was sold by Sh. Shiv Kumar to Sh. Pardeep Bansal before the accident, since Sh. Shiv Kumar had to re-pay some loan, to Sh. Pardeep Bansal. However, the vehicle still stood registered in the name of Sh. Shiv Kumar (Complainant). The affidavit of Sh. A.S. Vaish has been placed on record in support of all the above contentions.

8.                After the receipt of affidavit of A.S. Vaish, the Opposite Party has not taken any further steps to verify the sale of the vehicle by the Complainant to the deceased/ Ghansham Bansal. The Hon’ble Supreme Court of India in case New India Assurance Co. Ltd. Vs Pradeep Kumar, IV(2009) CPJ 46 (SC) has held that the Surveyor’s report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved Surveyor’s report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured. Even though neither party has challenged the surveyor report, we are of the opinion that the findings of the Surveyor are not concrete enough for dismissal of the claim, without further verification.

                   The learned counsel for the Complainant has placed on record a judgment of the Hon’ble Himachal Pradesh High Court in case Ishwar Lal Chaudhary and Anr. Vs. National Insurance Co. Ltd. and Others, wherein it has been held as under: -

“Held that the registered owner continued to be ostensible owner of the vehicle so long as registration is not changed from his name to the transferee and liability of registered owner continues. Therefore the registered owner had insurable interest in the motor cycle and policy and certificate of insurance are binding on the insurance company – Insurance company will be liable despite sale of the vehicle.”

9.                The registration certificate and also the insurance policy is in the name of Shiv Kumar, who is the Complainant in the instant case.  The plea that the vehicle is a transport vehicle is also doubtful as the tax paid is one time; whereas the tax for transport vehicles is paid annually. One time tax can be paid only for private vehicles.

                   Hence, looking at the entirety of the situation, and the view of the Hon’ble Supreme Court of India and Hon’ble High Court stated above, we are of the opinion that the Opposite Party should have honoured its commitment and made payment of the claim as per the insurance policy to the Complainant. 

                   The complaint is allowed accordingly. The Opposite Party is directed to make payment as per the IDV of the vehicle, after allowing depreciation for 11 months, as per norms to the Complainant.  The amount of Rs.1,90,000/- already received by the Complainant from sale of salvage be deducted from the amount payable. The Opposite Party shall also pay Rs.7,000/- to the Complainant towards cost of litigation.

10.              This amount be paid by the Opposite Party within 45 days of the receipt of this order, failing which Opposite Party shall also be additionally liable for an interest @12% per annum on the awarded amount, from the date of this order, till it is paid, besides the cost of litigation.  

11.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

06^th August,  2012.                                                                        

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

                                                                                    MEMBER