State Consumer Disputes Redressal Commission
M/S Tata Aig General Insurance Company ... vs Bhupender Singh on 4 October, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 04.10.2013 First Appeal No.869/2009 (Arising out of the order dated 01.10.2009 passed by the District Consumer Dispute Redressal Forum-X, Udhyog Sadan, New Delhi in Complaint Case No.627/2005) M/s Tata AIG General Insurance Company Ltd. A company incorporated under The Companies Act, having its Registered Office at Peninsula Corporate Park, Nicholas Priamal Tower, 9th Floor, Ganpathrao Kadam Marg, Lower Parel Mumbai-400013, & Zonal Office at 1st Floor, Lotus Towers, Community Centre, New Friends Colony, New Delhi-110065 Appellant VERSUS Sh. Bhupender Singh, R/o JP-82, Pitampura, Delhi-1100038 ..Respondent CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.A.Siddiqui, Member(Judicial) Judgment
1) This appeal under section 15 of the Consumer Protection Act 1986 (hereinafter called the Act) has been filed against the judgment and order dt. 01.10.2009 passed by District Consumer Disputes Redressal Forum-X, Udhyog Sadan, New Delhi in Complaint Case No. 627/05.
2) The brief facts giving rise to this appeal are that complainant/respondent Sh. Bhupender Singh took a comprehensive insurance policy from the Appellant/OP for his car No. DL6C-E1129 for the period 28.04.2004 to 27.04.2005. The insurance value of the car was Rs. 90,000/-, on 18.03.2005 this vehicle was stolen from the Fruit Mandi Azadpur, when it was parked there. The complainant/respondent Sh. Bhupender Singh has lodged an FIR dt. 20.03.2005 with the police Jahangirpur, Delhi. The Police was unable to trace the vehicle and filed untraced report dt. 21.05.2005. The complainant/respondent lodged a claim of Rs. 90,000/- with respondent-1/OP-1. He also sent a letter to RTO, Sarai Kale Khan informing about the theft of the vehicle requesting not to transfer the car to any other person.
On receipt of the claim the respondent-1/OP-1 appointed a surveyor who visited the complainant and made enquiries. He also prepared a self note and asked the complainant to sign the same and complainant signed said personal note allegedly without going through the point of reference for the same. He thought that the note which he was asked to sign was formal in nature. The complainant further alleged that he fully co-operated it in the investigation of the surveyor and provided him various documents required by the surveyor. The complainant was the owner of the vehicle and had purchased the insurance policy by paying premium. The claim was however, rejected by the OP-1 on the ground that he had already sold the car in question to one Sh. Kishan Lal before the date of theft. The complainant/respondent therefore had no option but to file the complaint before the District Forum having jurisdiction.
3) The respondent (OP-1) filed his written version admitting that the vehicle in question was insured w.e.f. 28.04.2004 to 27.04.2005. He further admitted to have received the claim of the complainant. However, it was submitted by the OP-1 that on receipt of the claim, an investigator was appointed to investigate the matter. During the course of investigation the surveyor met the complainant and recorded statement of Sh. Bhupender Singh complainant and his Business Associate Sh. Kishan Lal. Both the complainant and Sh. Kishan Lal admitted that the vehicle in question was sold by the complainant to Sh. Kishan Lal in the month of January, 2004 for a sum of Rs. 1,00,000/-. The statement given by both was voluntary and it was signed by the both. Thus the insurance policy was obtained by the complainant/respondent by concealment and misrepresentation which rendered the contract of insurance void ab-initio. The complainant had no insurable interest in the vehicle in question and therefore, the insurance claim was rightly rejected by the OP. The complaint filed by the complainant/respondent was an abuse of the process of the court and was liable to be dismissed with exemplary cost.
4) Upon the consideration of the evidence led by both the parties the Ld. District Forum decreed the complaint and directed the OP/appellant to pay a sum of Rs. 90,000/- (insured value of the car) to the complainant. The OP/appellant was further directed to pay a sum of Rs. 30,000/- towards compensation and cost of litigation.
5) OP felt aggrieved and preferred this appeal on the following main grounds:-
i.
The Ld. District Forum failed to appreciate that the complainant/respondent had no insurable-interest in vehicle No. DL6C-E1129 as the same had been sold prior to the inception of the insurance policy and theft.
ii.
The Ld. District Forum also failed to appreciate that the insurance policy in question was obtained by misrepresentation and fraud thereby rendering the contract of insurance void ab-initio in terms of section-10, 13, 14, 17, 18 & 19 of the Indian Contract Act.
iii.
The Ld. District Forum did not appreciate the fact that during the course of enquiry, the investigator met the complainant and Sh. Kishan Lal purchaser of the vehicle from the complainant. Sh. Kishan Lal had admitted that he purchased the vehicle from Sh. Bhupender Singh in January, 2004 after paying a sum of Rs. 1,00,000/-. Both of them gave their statements in their own hand writing and signature which was brought on record.
iv.
That the Ld. District Forum failed to consider that the affidavit of the investigator by way of evidence was filed before the District Forum concerned but the same was not available on record, for which the OP/appellant was not responsible yet the OP/Respondent was made to suffer.
6) The impugned order dt. 01.10.2009 was therefore perverse and contrary to law and was liable to be set aside.
7) Complainant/respondent filed written reply wherein it was asserted that complainant/respondent was the owner of the vehicle in question which was never sold/transfered to Sh. Kishan Lal one of his family members. The respondent and Sh. Kishan Lal in good faith signed the papers (personal notes) prepared by the surveyor. The signatures were appended by both, on the asking of the surveyor. Both Bhupender Singh Complainant and Sh.
Kishan Lal signed the papers without going through its contents believing that the notes were formal in nature. It was further maintained that the rightful insurance claim of the complainant was illegally rejected by the OP/appellant on the ground that vehicle in question was sold to Sh. Kishan Lal prior to the inception of the insurance policy. The truth of the matter was that the vehicle in question was owned by the complainant, the insurance premium was paid by the complainant/respondent and FIR of the theft was also lodged by him. The vehicle was registered in the name of the complainant and the original registration certificate of the vehicle has been filed before this Commission on 10.05.2013.
Sh. Kishan Lal was a business associate and family member of the complainant/respondent and the car in question was never sold to him. The Ld. District Forum rightly decreed the complaint as the vehicle stood in the name of the complainant/respondent in the records of the RTO. Had Sh. Kishan Lal really purchased the car, he would have taken steps to get the same transfered in his own name and should have taken the insurance in his own name.
Thus the appeal is without force and liable to be dismissed.
8) The car No. DL6C-E1129 was insured for a sum of Rs. 90,000/- for the period of 28.04.2004 to 27.04.2005. This vehicle was stolen on 18.03.2005 when it was parked at Fruit Mandi Azadpur, Delhi. An FIR was lodged on 20.03.2005. Police after investigation filed untraced report dt. 19.04.2005 on lodging the insurance claim by Sh. Bhupender Singh investigator was appointed who made enquires. During the course of enquiry the complainant Sh. Bhupender Singh & Sh. Kishan Lal to whom the vehicle was allegedly sold in the month January, 2004 for a sum of Rs. 1,00,000/- admitted that Sh. Kishan Lal purchased this vehicle from Sh. Bhupender Singh in January, 2004 and paid Rs. 1,00,000/- in cash as its cost, Sh. Bhupender Singh also admitted that he sold this car to Sh. Kishan Lal in January, 2004. The case of the appellant/OP is that both Sh. Bhupender Singh & Sh. Kishan Lal voluntarily gave their written statement to this effect and appended their signature to the statement. It was argued on behalf of the appellant/OP that since both of them voluntarily gave written note with their signature to this effect it was beyond doubt that at the time of theft i.e. 18.03.2005, the owner of the vehicle was Sh. Kishan Lal and not the Sh. Bhupender Singh. The complaint was filed by Sh. Bhupender Singh who has no insurable interest as the vehicle was already transfered to Sh. Kishan Lal and therefore, the compliant was incompetent and should have been dismissed. Any person who gave a statement in writing under his signature should be bound its content and the consumer forum committed error of law when it gave its finding to the effect that Sh. Bhupender Singh who was the owner of the vehicle which was stolen and that he was entitled to insurance claim. As against the basis of the finding of the Ld. District Forum was that the name of complainant Sh. Bhupender Singh was recorded as the owner in original RC. He had taken the insurance for the vehicle in question after paying premium. The FIR was lodged by him and later on insurance claim was also lodged by Sh. Bhupender Singh. In their affidavits Sh. Bhupender Singh and Sh. Kishan Lal categorically denied the contention of the appellant/OP that the vehicle was sold by Sh. Bhupender Singh to Sh. Kishan Lal prior to the inception of the insurance policy and prior to theft. The OP/appellant had not cross-examined Sh. Bhupender Singh and Sh. Kishan Lal to support their case that the vehicle in question was actually sold. The Ld. District Forum further observed that the affidavit of the surveyor was not available on record. He was also not examined by the OP. The Ld. District Forum therefore, came to the conclusion that there was no evidence to prove that the vehicle in question was really sold in January, 2004 to Sh. Kishan Lal. The name of the complainant was still recorded as owner in RC book. Insurance policy was also not got transferred in the name of Sh. Kishan Lal. FIR was lodged by the complainant and in the capacity of owner he lodged insurance claim and later on also filed a complaint.
He had insurable-interest in the vehicle. By refusing to indemnify for the loss of the vehicle, the insurance company committed deficiency of service.
9) We do not find any fault in the finding of the Ld. District Forum simply because the weight of evidence on record was in favour of the complainant. For the sake of argument, even if it is admitted that the vehicle in question was sold in the month of January, 2004 by Sh. Bhupender Singh to Sh. Kishan Lal, no steps were taken to get the vehicle transferred in the name of Sh. Kishan Lal in the records of the RTO nor insurance company was requested to transfer the insurance policy in the name of transferee.
Proceedings before Consumer Courts are summary in nature and decided on the basis of preponderance of documentary evidence. Since the preponderance of documentary evidence on record were in favour of the complainant the complaint was rightly decreed in favour of the complainant. We do not find any illegality or irregularity in the order dt. 01.10.2009 passed by District Consumer Disputes Redressal Forum.
10) On the bases of the above discussion we come to the conclusion that the appeal was without force and liable to be dismissed.
Order
11) Accordingly appeal is found without force and is dismissed. Order dt. 01.10.2009 passed by the Ld. District Consumer Disputes Redressal Forum-X, Udhyog Sadan, New Delhi, in Complaint Case No. 627/05 is hereby confirmed. However, the cost is made easy. The complainant/respondent shall sign a letter of subrogation and furnish the same to the appellant/OP
12) Let a copy of the Judgment be supplied to the parties free of cost as per law and a copy of the Judgment be also placed on the record of the complaint file, thereafter file be consigned to record room.
13) FDR if any deposited by the appellant at the time of filing the appeal be released as per rule.
14) Announced on th day of November, 2013. (S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima