Jammu and Kashmir

Jammu

CC/107/2017

ASHFAQ AHMED - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

Ajay Kumar

24 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.                411/DFJ           

 Date of  Institution   :  06-01-2017

 Date of Decision      :    22 -10-2017

 

Ashfaq Ahmed,

S/O Shri Abdul Majid,

R/O Chaliyar Bashat,

Tehsil Chenani,Distt.Udhampur.

                                                                                                                                        Complainant

               V/S

Branch Manager,

United India Insurance Copany Ltd.

Branch Office Main Bazar,Udhampur.

                                                                                                                                        Opposite party

 

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                             Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Ajay Kumar,Advocate for complainant, present.

Mr.Vishnu Gupta,Advocate for OP,present.

                                                          

 

                                                                    ORDER

                     Facts relevant for the disposal of complaint are that the complainant being registered owner of vehicle Micro Mini Bus make Tata  bearing registration No.JK-14B-7626(copy of registration certificate and fitness certificate annexed as Annexures-I and II),got the same insured with OP for a period commencing from 25-05-2012, to  24-05-2013(copy of insurance policy is annexed as Annexure-III).That the vehicle owned by the complainant met with an accident  on,17-09-2012 at Raji Nallah(Dhanas)Tehsil Chenani Distt.Udhampur and at the relevant time of accident, the insurance policy covering the vehicle was in full force. According to complainant, OP was intimated about the factum of accident in which the vehicle owned by the complainant was total loss and consequent to intimation OP vide his Nol.Udh.Claims:12 dated 22-10-2012 asked him to complete the formalities as mentioned in the letter(copy of letter is annexed as Annexure-IVAllegation of complainant is that he completed all the formalities as mentioned in the letter, but nothing was done by OP.Complainant further submitted that he made a representation to OP on,07-05-2013 highlighting his grievance that the vehicle in question was total loss due to accident and he has to pay the outstanding loan amount of State Bank of India,Kud and concerned bank is pressing hard for the liquidation of loan amount (copy of representation is annexed as Annexure-IV).Constrained by the act of OP,complainant served a legal notice through advocate on the OP,in response to which the OP intimated him that since he had already sold the vehicle to one Rakesh Kumar vide sale deed dated 23-05-2012 and thereafter the said vehicle remained under the control and ownership of Rakesh Kumar, as such the claim stands repudiated by OP vide let4ter dated 02-07-2013 (copy of reply notice dated 06-11-2013 is annexed as Annexure-VI)That the claim of complainant in respect of his total loss vehicle has been wrongly and illegally repudiated by OP on the ground of sale allegedly to one Rakesh Kumar and remaining of vehicle in possession of alleged purchase after the date of sale i.e.23-05-2012 is misconceived, therefore, this act of OP amounts to deficiency in service and unfair trade practice, hence the complaint. In the final analysis, complainant prays for reimbursement of Rs.6.00 lacs alongwith interest on the amount of award from the date of accident i.e.17-09-2012.

                      On the other hand,OP filed written version and resisted the complaint on the ground that present complaint under J&K C.P.Act is not maintainable as there has been no deficiency of service on the part of OP company in processing the claim. That the insured complainant herein has not placed on record the original policy alongwith the policy terms and conditions in order to hide his contractual limitations. Thus the complainant be directed to place on record the original policy alongwith its terms and conditions, exceptions and limitations thereof, failing which the OP shall produce the copy of policy which may kindly be exhibited and read as an evidence. It is submitted that the company was informed about the accident of the insured vehicle which had met with an accident on,17-09-2012 at Raji Nallah which stands insured in the name of complainant. It is submitted that the OP had deputed Mr.Surinder Abrol Investigator to investigate about the factum of accident who has submitted his report oh,30-05-2013,as such, prior to it no outcome of the claim lodged could be settled. It was after the receipt of the said report the OP came  to know about the fact that complainant had already sold his vehicle to one Rakesh Kumar while sale deed dated 23-05-2012 and by virtue of this sale deed the complainant had handed over the possession to the purchaser after receiving sale consideration of the said vehicle, meaning thereby that the complainant was no more owner of said vehicle after the said  sale. The Op after going through the said report and the copy of sale deed had no other option than to repudiate the said claim as on the date of the accident the present owner was Rakesh Kumar who had no insurable interest, as such it was very genuine on the part of OP to repudiate the claim. Rest of the contents of complaint are denied by OP.

                   Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Krishan Chand and Shokat Ali,respectively.Complainant has placed on record copy of certificate of registration, copy of fitness certificate, copy of letter issued by OP to complainant, copy of letter issued by complainant to OP, copy of legal notice and  copy of sale deed.

                On the other hand,OP adduced evidence by way of duly sworn evidence affidavit of Suresh Gupta,Divisional Manager, United  India Insurance Co.

        We have perused case file and heard L/Cs for the parties at length.

                       The point which requires consideration is that; as to whether or not complainant has insurable interest in respect of Micro Mini Bus bearing registration No.JK-14B-7626 at the time of accident,i.e.,on 17-09-2012.

             Briefly stated, complainant alleges that insured vehicle met with accident during currency of policy, but OP wrongly repudiated the claim on the plea that at the relevant point of time, complainant had no insurable interest regarding subject matter of dispute. Complainant would further submit that at the relevant point of time the insurance policy covering the vehicle of complainant was in full force. On the other hand,defence set up by OP is that complainant had already sold his vehicle to one Rakesh Kumar vide sale deed dated 23-05-2012 and by virtue of this sale deed the complainant had handed over the possession to the purchaser after receiving sale consideration of the said vehicle, meaning thereby that the complainant was no more owner of said vehicle after the said  sale.                         

                  It is to be noted that parties have lead evidence in support of their respective allegations, which are corroborative of facts contained in respective pleadings,therefore,need no reiteration.

                                  We have perused evidence affidavits of complainant and his witnesses. Although complainant and his witnesses denied the allegation of transfer of vehicle, but none of them disputed the veracity of Sale Deed dated 23-05-2012, duly executed by the parties, whereby insured vehicle sold by complainant and purchased by Rakesh Kumar in consideration.

                  It is settled preposition of law that transfer of vehicle is governed under section 19 of Sale of Goods Act ,for which intention of the parties to transfer the vehicle is sine-qua-non and no registration thereof, is required,therefore,once complainant parted with the possession of vehicle, with the intention to sell insured vehicle to buyer, insurable interest of complainant seizes to exist, as such, in absence of any insurable interest in the vehicle, complainant cannot ask for indemnification of loss.Therefore,we do not see any illegality committed by OP,in repudiating the claim for indemnification of loss, which calls for interference.

                  We are fortified in our opinion by the judgment of Hon’ble Supreme Court in M/S Complete Insulations (P) Ltd.Versus M/S New India Assurance Company Ltd.the Hon’ble Supreme Court while deciding the dispute under Consumer Protection Act has held that:

     If the policy of insurance covers other risks as well e.g.damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the new Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto the transferee the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct.

                       In the case Rikhi Ram and another versus Smt.Sukhrania and others the Hon’ble Supreme Court has held that:

The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far as the transferee who is the third party in the contract he cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Motor Vehicles Act.

                In the case New India Assurance Company Ltd.Versus Shri Dattatraya Shankar Buva the Hon’ble Maharashtra State Consumer Disputes Redressal Commission has held as under:

  “In the light of the judgment of the Supreme Court, we are of the view that the complaint as filed by the previous owner and subsequent owner in the Forum below was liable to be dismissed mainly on two grounds.Firstly,the subsequent purchaser had not intimated before the accident of tractor in question that he had purchased the vehicle from the previous owner and that the insurance policy in respect of said vehicle should be transferred in his name.Secondly,the complainant No.1 cannot file consumer complaint because he had already sold the vehicle and at the time of accident of the vehicle, he was not the owner of the vehicle, so the Insurance Company rightly repudiated the claim of the complainant No.1 on the ground that the complainant No.1 had no insurable interest in the vehicle.

              In the case Lakhvinder Singh Versus Tarsem Singh and others, the Hon’ble High Court of Punjab and Haryana at Chandigarh has held that:

 “A transferee’s right is not so protected by any of the provisions of the Motor Vehicles Act itself. A transferee who makes a claim for damage to his own property literally seeks to enforce a term of contract of insurance. By a transfer of the vehicle, a contract of insurance with the insured is not simultaneously transferred. The deemed transfer of policy is only for the purpose of employment of a claim by a third party claimant. The right to enforce an obligation under the policy against an insurer could arise for the transferee, in the absence of statutory provision, only by obtaining a transfer of the policy itself. This transfer of policy is contemplated in section 157(2) which prescribes a procedure to apply within 14 days in a prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance. While the failure to obtain such a transfer may not affect a third party claimant, it will have an immediate bearing on the right of the transferee himself.a

                                In afore quoted back drop, complaint fails, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records

Order per President                                            (Khalil Choudhary)                               

Announced                                                           (Distt.& Sessions Judge)

22-10-2018                                                               President

                                                                            District Consumer Forum

Agreed by                                                                 Jammu.

                                                               

  Ms.Vijay Angral          

  Member                                                                                              

 

Mr.Ghulam Sarwar Chauhan

Member