State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd., vs Gajender Singh Butola on 21 May, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 179 / 2007
The New India Assurance Co. Ltd., Uttarkashi
through Senior Divisional Manager,
The New India Assurance Co. Ltd.,
Astley Hall, Dehradun
......Appellant / Opposite Party No. 1
Versus
1. Sh. Gajender Singh Butola S/o Sh. Gabbar Singh Butola
R/o Gyansu, Patti Badahat, Tehsil Bhatwari
District Uttarkashi
.....Respondent No. 1 / Complainant
2. Sh. Shiv Singh S/o late Sh. Abbal Singh
R/o Gyansu, Patti Badahat, Tehsil Bhatwari
District Uttarkashi
.....Respondent / Opposite Party No. 2
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Shardul Negi, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 21/05/2008
ORDER
(Per: Justice Irshad Hussain, President):
This is insurer's appeal against the order dated 10.05.2007 passed by the District Consumer Forum, Uttarkashi allowing the consumer complaint No. 117 of 2005 and awarding Rs. 1,25,000/- as compensation for accidental vehicle with interest @6% p.a. w.e.f. 22.12.2005 till the date of actual payment and Rs. 1,000/- as litigation expenses to the complainant - respondent No. 1.
2. We have heard the learned counsel for the appellant and the complainant and carefully perused the material on record and 2 considered the legal aspects of the case. Learned counsel for the insurance company argued that the so-called transferee of the insured bus No. UP07C - 0239 has no locus to file the complaint in view of the policy of insurance having not been transferred in favour of the complainant; that there was no privity of contract between the complainant and the insurance company and that the District Forum fell in error in holding that the complainant was entitled to be indemnified for the loss occasioned by reason of the accident of the vehicle. Perusal of the record reveal that the certificate of insurance (Paper No. 38) was issued in favour of previous owner of the vehicle Sh. Shiv Singh. Copy of the policy of insurance referred above indicate that the period of the validity of the insurance was w.e.f. 14.05.2003 to 13.05.2004.
3. It is not in dispute that the complainant Sh. Gajender Singh Butola had purchased the vehicle from its previous owner Sh. Shiv Singh, who was impleaded as opposite party No. 2 in the consumer complaint and that the vehicle had been duly transferred on 21.02.2003 in favour of the complainant. After the transfer of the vehicle in favour of the complainant, the insurance company could not have legally issued insurance policy of the vehicle in favour of Sh. Shiv Singh, who ceased to have any interest whatsoever in the vehicle. Vehicle in question was under insurance coverage with the appellant - insurance company even prior to the period of insurance from 14.05.2003 to 13.05.2004 and it was a case of renewal of insurance policy, as was also mentioned by the insurance company in its letter dated 23.06.2004 (Paper No. 21Kha/12 of the original record), sent by the company to Sh. Shiv Singh, calling upon him to explain as to why the policy of insurance for the said period was taken by him, despite transfer of the vehicle in favour of the complainant Sh. Gajender Singh Butola on 21.02.2003.
34. Issuance of policy of insurance in favour of Sh. Shiv Singh clearly appear to be on account of mistake mainly on the part of the insurance company, which was obliged to verify from the registration certificate of the vehicle, as to the name of the registered owner of the vehicle before renewing the policy of insurance for the period 14.05.2003 to 13.05.2004. It is of significance that cheque No. 205601 dated 14.05.2003 of State Bank of India, Uttarkashi for sum of Rs. 10,184/- towards premium for the said period, was issued by the complainant Sh. Gajender Singh Butola and the said amount of Rs. 10,184/- was duly debited in the account of the complainant, as is evident from the entries of the passbook (Paper Nos. 25Kha/3 to 25Kha/4) as well as statement issued by the State Bank of India, Uttarkashi (Paper No. 25Kha/2), when the cheque was sent for encashment by the insurance company. The facts, thus made clear, are that the policy of the insurance was renewed for the period 14.05.2003 to 13.05.2004 and the premium having been paid by the complainant, the insurance company made a mistake in issuing the policy of insurance in the name of erstwhile owner Sh. Shiv Singh, who ceased to have any interest whatsoever in the accidental vehicle.
5. In the peculiar facts of the case, the District Forum was justified in coming to the conclusion that merely by issuing the policy of insurance in the wrong name, the insurance company was not absolved of its liability to indemnify the loss occasioned to the complainant by reason of accident of the vehicle owned by him and who had rightly paid the premium of the insurance, during the validity of which, the accident took place. In fact, it was not a case of non-transfer of insurance policy in favour of the transferee of the vehicle and in the face of the facts of the case, the insurance company on account of its own mistake, has had no right to avoid the 4 consequence arising out of the policy of insurance of the vehicle issued and purpose of which, was indemnification against loss and to indemnify the complainant, the actual beneficiary of the policy of insurance against the loss actually suffered by him. In other words, the complainant being the actual beneficiary comes within the definition of "consumer" as defined under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. The District Forum thus made no legal error in coming to the conclusion that the complainant has locus standi to file the consumer complaint and seek indemnification of the loss from the insurance company on the basis of the policy of insurance for the period 14.05.2003 to 13.05.2004.
6. In so far as the propriety of the amount of compensation awarded is concerned, the learned counsel for the insurance company urged that the District Forum fell in error in not placing implicit reliance on the report of the surveyor Sh. Arvind Yadav (Paper Nos. 31 to 36), who had assessed the net loss at Rs. 42,260/- only. On the other hand, learned counsel for the complainant submitted that the amount of compensation awarded was based on the cash memos / bills submitted on record by the complainant and that considering the extensive damage caused to the vehicle in question, the surveyor failed to properly assess the expenses required to repair the vehicle and make it motorable. Having considered the submissions in the light of the material on record, we see no merit in the argument of the learned counsel for the insurance company and in our view, the District Forum was justified in making its own assessment of the compensation and rightly rejected the assessment made by the surveyor.
7. The reasons for the above inference are that, as also mentioned by the surveyor in his report, the vehicle overturned in a gorge and 5 was badly damaged. Place of accident being hill region and the vehicle having fallen down in a gorge, extensive damage was really the resultant. Surveyor also mentioned that body of vehicle (passenger bus) required remaking. Despite having given complete description of the heavy damage in the survey report, the surveyor arbitrarily assessed the labour charges at Rs. 42,760/-, as against the estimate of Rs. 1,22,000/- submitted by the complainant. Report also reveal that damaged battery was shown at the time of spot survey. The surveyor made no assessment of its cost, despite the estimate of Rs. 3,200/- given by the complainant. The surveyor has also not considered the expenses of Rs. 5,000/- for retrieving the vehicle from the gorge, for which also receipt was filed and went on to arbitrarily assess the expenses required for repair of the vehicle. Therefore, the assessment of the loss made by the District Forum on the basis of the expenses incurred by the complainant, cannot be said to be improper and unreasonable and in the totality of the circumstances of the case, the District Forum was justified in not placing reliance on the report of the surveyor and rightly disagreed on the amount of compensation as assessed by the surveyor. In other words, the compensation awarded by the District Forum was just and proper.
8. In view of above, there being no merit in this appeal, the same is liable to be dismissed.
9. Appeal is dismissed. No order as to cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal