State Consumer Disputes Redressal Commission
The Oriental Insurance Company Limited vs Lakhwinder Singh on 22 August, 2011
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.775 of 2011.
Date of Institution: 10.05.2011.
Date of Decision: 22.08.2013.
The Oriental Insurance Company Limited, Hoshiarpur, through Sh. Ram
Avtar, Deputy Manager, Regional Office, SCO no.109-110-111, Sector-
17, Chandigarh.
.....Appellant.
Versus
Lakhwinder Singh S/o Sh. Ujjagar Singh, R/o Village Bala Kulian, Tehsil
Dasuya, Hoshiarpur through his Attorney Balwinder Singh S/o Attar
Singh, R/o Village Bhattian Rajputan, Tehsil Mukerian, District
Hoshiarpur.
...Respondent.
First Appeal against the order
dated 07.04.2011 of the District
Consumer Disputes Redressal
Forum, Hoshiarpur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. R.K. Bashamboo, Advocate, counsel for the appellant.
Sh. H.K. Aurora, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
The Oriental Insurance Company Limited, Hoshiarpur, appellant/opposite party (In short "the appellant") has filed this appeal against the order dated 07.04.2011 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short "the District Forum").First Appeal No.775 of 2011 2
2. Facts in brief are that Sh. Lakhwinder Singh, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, on the grounds that he got comprehensively insured his truck bearing No.PB-07-P-6467 for the period 09.05.2008 to 08.05.2009 from the appellant and the 'Insured Declared Value' of the said truck was Rs.7.50 lacs and the premium of Rs.18,925/- was paid to the appellant.
3. The truck in question was stolen in the night 5/6th November, 2008 from village Bhattian Rajputan, Tehsil Mukerian, District Hoshiarpur. DDR No.12 dated 24.11.2008 was recorded at P.S. Mukerian, District Hoshiarpur on the statement of Balwinder Singh and the investigation regarding theft of the said truck was carried out and case FIR No.53 dated 01.08.2009 U/s 279 IPC was registered, as similar theft cases were pending and the Police Station, Mukerian failed to trace the truck and submitted the Untraced Report dated 30.10.2009.
4. The respondent appointed Sh. Balwinder Singh S/o Attar Singh as his general attorney regarding his truck No.PB-07-P-6467 and he lodged the claim with the appellant and filled up the necessary claim form. A legal notice was also served, but of no use. The appellant failed to pay any claim and that amounts to deficiency in service. The appellant repudiated the claim on the ground that the respondent had no insurable interest at the time of theft, vide letter dated 29.12.2010. Lot of financial loss as well as mental tension and harassment was caused.
5. It was prayed that the appellant be directed to pay Rs.7.50 lacs as the sum insured of the truck, Rs.1,50,000/- as compensation and Rs.40,000/- as litigation expenses, along with interest @ 12% p.a. First Appeal No.775 of 2011 3
6. In the written version filed on behalf of the appellant, preliminary objections were taken that the respondent has failed to take care of the vehicle in question as per terms and conditions of the policy, as he was not found in possession of the pair of ignition and cabin keys of the said vehicle. Intricate questions of law and facts are involved and the civil court is competent.
7. On merits, it was submitted that the respondent has no insurable interest in the truck in question. It was further submitted that Balwinder Singh did not file the claim as attorney of the respondent and the respondent failed to give timely intimation to the appellant for the loss, in order to enable the appellant to verify the said loss, which is the violation of the terms and conditions of the policy. Earlier, the complaint filed by the respondent was not maintainable and, as such, the same was withdrawn. The respondent has neither handed over the pair of ignition keys and cabin keys to the surveyor, nor to the appellant. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the respondent was in possession of only one set of ignition and cabin keys and non-supply of second set of ignition and cabin keys is not sufficient to repudiate the claim. The claim was repudiated on the grounds that the respondent has failed to give timely information to the appellant, but to prove this, no evidence was produced and the appellant was not justified in repudiating the claim. The complaint was allowed and the appellant was directed to pay First Appeal No.775 of 2011 4 Rs.7.40 lacs (Rs.7.50 lacs as the sum insured Minus Rs.10,000/- as deprecation) to the respondent along with interest @ 9% p.a. from the date of filing of the complaint till realization. Rs.1,000/- were awarded as litigation expenses.
10. Aggrieved by the impugned order dated 07.04.2011, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
12. The present appeal has been filed on the grounds that earlier, the complaint was filed by said Balwinder Singh, but the same was withdrawn as the objections were raised by the company with regard to privity of contract between them and thereafter, the present complaint was filed. The District Forum has wrongly held that the agreement to sell does not make the said Balwinder Singh complete owner. The vehicle was already sold on 11.04.2008 and the respondent received the entire consideration and the possession was delivered to Balwinder Singh. The vehicle was sold for a sum of Rs.8.00 lacs. Rs.4.00 lacs were paid to the respondent and the balance was to be paid in installments. Balwinder Singh gave a notice through his counsel, specifically mentioning that the vehicle has been sold to him, but this aspect was ignored. The respondent has not suffered any loss, as he has received the consideration and the order passed by the District Forum is not sustainable and is liable to be set aside.
13. On the other hand, the counsel for the respondent has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.
First Appeal No.775 of 2011 5
14. We have considered the respective submissions of the parties and have minutely scrutinized the entire record.
15. The certificate of registration Ex.C-2 shows that Lakhwinder Singh was the registered owner of the vehicle in question. Motor Insurance Certificate-cum-policy schedule Ex.C-3 is also in his name. Vide power of attorney Ex.C-6, the respondent appointed Sh. Balwinder Singh S/o Attar Singh as his attorney and he was given all rights regarding the vehicle in question. The appellant has placed on record the copy of the agreement Ex.R-1 as per which Lakhwinder Singh, respondent has sold his vehicle bearing No.PB-07-P-6467 for a sum of Rs.8.00 lacs and received Rs.4.00 lacs and the remaining amount of Rs.3.11 lacs which was the loan was to be paid by said Balwinder Singh, vendee, in installments.
16. As per the agreement Ex.R-1, the possession of the vehicle in question was delivered to said Balwinder Singh by the respondent and he was plying the truck and was not the power of attorney holder only, but was owner of the same and he was to pay the installments. DDR Mark C-4 was recorded on 24.11.2008 on the statement of said Balwinder Singh. Legal notice Ex.R-2 dated 16.11.2009 was also served by said Balwinder Singh. There is nothing on record to prove that the said Balwinder Singh failed to pay the installments after taking delivery of the truck and the respondent repossessed the vehicle in question. The fact remains that the vehicle in question was sold by the respondent and the possession was delivered and all rights, including the ownership, were transferred, but the insurance of the said truck in question was not transferred in the name of Balwinder Singh. Admittedly, Balwinder Singh earlier filed the complaint, but once the appellant raised the objection that there is no First Appeal No.775 of 2011 6 privity of contract, that was got dismissed as withdrawn and then the complaint was filed by the respondent, just to claim the amount. Once the respondent has sold the truck, he was left with no insurable interest in the truck and the provisions of GR-17 of India Motor Tariff are applicable. The relevant provisions of GR-17 issued under India Motor Tariff are reproduced below:-
GR-17: Transfers:
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The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy, so that the insurer may make the necessary charges in his record and issue fresh Certificate of Insurance.
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17. The Hon'ble National Commission in case "Om Parkash Sharma Versus National Insurance Company Ltd. & ors.", 2009(1)CLT-29 (NC) observed in Para 3 as follows:-
"As by the time the car met with accident the petitioner had not even applied for transfer of policy in his favour, he had no locus standi to file the complaint. Repudiation of claim by the insurance company cannot be termed as deficiency in service."
18. In view of the above discussion and the law laid down, it is clear that the provisions of 157 of Motor Vehicle Act, which are also on the same lines as that of GR-17, have not been complied with in the present case.
First Appeal No.775 of 2011 7
19. As a result of above discussion, the appeal is accepted and the impugned order under appeal dated 07.04.2011 passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed. No order as to costs.
20. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
21. The arguments in this appeal were heard on 12.08.2013 and the order was reserved. Now the order be communicated to the parties.
22. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 22, 2013.
(Gurmeet S)