National Consumer Disputes Redressal
New India Assurance Co. Ltd. & Anr. vs Mohd. Faiyaz Khan & Anr. on 27 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1935 OF 2008 (From the order dated 4.3.2008 in Appeal No.1996/2005 & 1911/2006 of the U.P. State Consumer Disputes Redressal Commission, Lucknow) 1. New India Assurance Co. Ltd. Petitioners Through its Regional Manager, Jeevan Bharti Building 5th Floor, 124, Connaught Circus, New Delhi 110001 2. New India Assurance Co. Ltd. Through its Asstt. Manager (Incharge Legal Cell) 94- Mahatama Gandhi Marg Hazaratganj, Lucknow Versus 1. Mohd. Faiyaz Khan,Major ... Respondents s/o Quyum Khan r/o P-1, Lachhipura Colony Andharapul, Varanasi 2. Kripa Shanker Rai, Major s/o Ram Prasad Rai r/o D-59/330 A-2, Shivpurwa, Varanasi BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER For the Petitioners : Mr. Pradeep Gaur, Advocate For the Respondents : Mr. Niranjan Saha, Advocate Alongwith Respondent No.1 in person PRONOUNCED ON : 27th NOVEMBER, 2014 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission dated 04.03.2008 whereby the State Commission U.P., Lucknow dismissed the appeal of the petitioner insurance company against the order of the District Forum Varanasi.
2. Briefly stated facts relevant for the disposal of the revision petition are that Mohd. Faiyaz Khan and Kripa Shanker Rai filed consumer complaint against the petitioner opposite party alleging that Kripa Shanker Rai complainant no.2 was the owner of Tata Sumo vehicle No.UP65-H 8284. He got the said vehicle insured with the petitioner company for the period w.e.f. 25.06.2001 to 24.06.2002. During the subsistence of the insurance policy, Kripa Shanker Rai sold the vehicle to the complainant no.1 Mohd. Faiyaz Khan. Complainant no.2 despite of the purchase of vehicle did not get registration of the vehicle transferred in his name. However, before the expiry of insurance cover, a second insurance cover was obtained on the said vehicle in the name of Kripa Shanker Rai care of Mohd. Faiyaz Khan effective for the period 18.09.2001 to 17.09.2002. The vehicle was stolen on 16.04.2002. The theft was reported to the police and intimation was sent to the insurance company. Mohd. Faiyaz Khan filed insurance claim. The claim, however, was repudiated by the insurance company on the ground that Mohd. Faiyaz Khan had no insurable interest in the stolen vehicle because after the purchase of vehicle, he did not get the registration transferred in his name in terms of Section 149 (2) (B) of the Motor Vehicles Act, 1988. Being aggrieved of the repudiation of his claim, Mohd. Faiyaz Khan alongwith previous owner Kripa Shanker Rai filed a consumer claim.
3. The District Forum on consideration of the pleadings and evidence produced on record allowed the complaint and directed the petitioner opposite parties to pay to the complainants a sum of Rs.2,50,000/- with 6% interest thereon w.e.f.
date of theft till the payment of amount besides Rs.4000/- was also awarded as compensation for mental agony and harassment and Rs.1000/- against litigation charges.
4. The petitioner opposite party preferred an appeal seeking dismissal of complaint. The complainants also preferred an appeal against the order of the District Forum seeking enhancement of compensation. The State Commission vide the impugned order dismissed the appeal preferred by the petitioner opposite party and allowed the appeal preferred by the complainants by enhancing the interest awarded by the District Forum from 6% to 9% p.a.
5. Being aggrieved of the order of the state Commission, the petitioner has preferred this revision petition.
6. Mr. Pradeep Gaur, Advocate for the petitioner has contended that both the foras below have committed a grave error by failing to appreciate that insured Kripa Shanker prior to the date of theft had transferred his interest in the insured vehicle to Mohd. Faiyaz Khan and as such he had no insurable interest in the vehicle in the vehicle and complainant Mohd. Faiyaz Khan by failing to get the registration of vehicle transferred in his name within the prescribed period, cannot be said to have the insurable interest in the vehicle. It is contended that both the foras below have passed the impugned orders in violation of the judgment of the Supreme Court in the matter of M/s Complete Insulations (P) Ltd.
Vs. New India Assurance Company Ltd. AIR 1996 SC 586 as also the judgment of coordinate bench of this Commission in RP No. 1586/2007 titled as National Insurance Co. Ltd. Vs. Shri Ram Gopal Sharma decided on 12.07.2011 by Bench No.1
7. Learned counsel for the respondent on the contrary has argued that the petitioner is estopped from raising the plea of non transfer of registration in the name of complainant Mohd. Faiyaz Khan because at the time of obtaining subsequent insurance cover effective w.e.f. 18.09.2001 to 17.09.2002, it was made clear to the insurance company that vehicle has been purchased by the complainant Mohd. Faiyaz Khan and the petitioner company having full knowledge of the fact had issued the subsequent insurance cover. Thus, it is contended that the order of the foras below cannot be faulted.
8. I have considered the rival contentions and gone through the judgments relied upon by the counsel for the petitioner in the matter of M/s Complete Insulations (supra). Honble Supreme Court after analysis of the provisions of Motor Vehicle Act, 1988 held that the transferee insured cannot be third party qua the vehicle he had purchased. There has to be agreement between the insurer and the owner of the insured vehicle for damages to be claimed in relation to the subject vehicle and in absence of such agreement, damages cannot be claimed in respect of the vehicle in question. Similarly in the matter of Shri Ram Gopal Sharma (supra) coordinate bench of this Commission after analyzing Section 157 of the Motor Vehicles Act and GR 10 & GR 17 issued by the Tariff Advisory Committee have held that if the transferee fails to inform the insurance company about transfer of registration certificate in his name and the policy is not transferred in the name of transferee, the insurance company cannot be held liable to pay claim in respect of the vehicle in question.
9. Ordinarily, there could be no quarrel about the position of law as enumerated in the two judgments. The facts of this case, however are peculiar and distinct from the facts from the cases under those judgments. In the instant case, it is admitted case of the parties that original insurance cover taken by complainant no.2 Kripa Shanker was effective from 25.06.2001 to 24.06.2002. After the sale of said vehicle to the complainant Mohd. Faiyaz Khan, a fresh insurance cover during the subsistence of original insurance was issued by the petitioner insurance company in the name of Kripa Shanker showing his address as care of Mohd. Faiyaz Khan for the period 18.09.2001 to 17.09.2002. This circumstance particularly change of address on second cover note c/o Mohd. Faiyaz Khan clearly show that the insurance company was aware of change of ownership of the vehicle. That being the case, I am of the view the petitioner insurance company is now estopped from raising the plea of there being no insurable interest in favour of the subsequent owner Mohd. Faiyaz Khan.
10. In view of the discussion above, I do not find any jurisdictional error or material irregularity in the impugned orders of the foras below which may call for interference by this Commission in exercise of the revisional jurisdiction. Revision petition is, therefore, dismissed.
....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER