State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Pawan Kumar on 3 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1336 of 2010
Date of institution : 02.08.2010
Date of decision : 03.03.2014
1. United India Insurance Company Ltd., Branch Office Banga
Road, Shaheed Bhagat Singh Nagar (Nawanshahr) through its
Branch Manager.
2. United India Insurance Company Ltd., Divisional Office,
Jalandhar Road, Hoshiarpur through its Divisional Manager.
.......Appellants- Opposite Parties
Versus
Pawan Kumar son of Shri Hans Raj, resident of Village Ratainda,
District Shaheed Bhagat Singh Nagar (Nawanshahr).
......Respondent- Complainant
First Appeal against the order dated
5.7.2010 of the District Consumer
Disputes Redressal Forum, Hoshiarpur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants : Shri D.P. Gupta, Advocate. For the respondent : None.
JUSTICE GURDEV SINGH, PRESIDENT :
Pawan Kumar, complainant/respondent, was the owner of one Jeep make Scorpio bearing registration No.PB-08-AV-3366, which was got insured by him with opposite party No.1 on 12.12.2007 and the insurance cover was valid upto 11.12.2008. He was issued the cover note dated 12.12.2007 and the insurance cover was valid upto 11.12.2008. He was issued the cover note dated 12.12.2007 and opposite party No.1 had undertaken to indemnify all types of losses, including "own damage" to the vehicle. The I.D.V. was Rs.4,75,000/- and the premium was paid by him accordingly. This First Appeal No.1336 of 2010. 2 Jeep met with an accident on 29.11.2008 when the same was being driven by Jagtar Singh, in respect of which a report was got recorded in the DDR on the same day in Police Station Sadar and intimation was also given regarding the damage to the jeep to the opposite parties, who appointed the surveyor for spot survey. The final survey was conducted by Arun Kumar, Surveyor, who submitted his report to the opposite parties regarding the loss to the jeep. After completing all the formalities, he lodged the claim with opposite parties, which was repudiated, vide letter dated 19.1.2010 on the ground that he had no insurable interest in the vehicle. The complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986, before the District Consumer Disputes Redressal Forum, Hoshiarpur (in short, "District Forum") alleging therein that on the date of the accident the jeep was registered and insured in his name and, as such, the claim submitted by him was wrongly repudiated; as a result of which he suffered huge financial loss, mental tension and agony. He prayed for the issuance of following directions to the opposite parties:-
i) to pay Rs.3,53,967.80P, which was assessed by the Surveyor;
ii) to pay Rs.30,000/- as compensation for the financial loss, tension and harassment suffered by him;
iii) to pay Rs.15,000/- as cost of the complaint and litigation expenses;
iv) to pay interest on the above said amounts at the rate of 12% per annum from the date of loss. First Appeal No.1336 of 2010. 3
2. The complaint was contested by the opposite parties. In their written reply they pleaded that the claim of the complainant was validly repudiated as during the investigation conducted by Amrik Singh, Retired Inspector of Police, who was deputed to investigate the claim of the complainant, it was found that the jeep had been sold by the complainant to one Ranjit Singh before the date of the accident itself but the necessary formalities as per the conditions of the policy were not completed. The complainant has no insurable interest in the vehicle. The jeep at the time of accident was being driven by the son of said Ranjit Singh; named, Jagtar Singh. They prayed for the dismissal of the complaint.
3. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf accepted the complaint and the opposite parties were directed to pay the claim amount of Rs.3,53,967.80P to the complainant along with interest @ 9% per annum from the date of filing the complaint i.e. 4.3.2010 till realization along with litigation expenses of Rs.1,000/- within one month from the receipt of copy of the order, vide order dated 5.7.2010. Feeling aggrieved by the said order, the opposite parties have preferred the present appeal.
4. We have heard learned counsel for the opposite parties as no one appeared on behalf of the complainant and have carefully gone through the records of the case.
5. It was submitted by the learned counsel for the opposite parties that reliable evidence was produced before the District Forum First Appeal No.1336 of 2010. 4 for proving that jeep had already been sold by the complainant to one Ranjit Singh before the date of the accident and he had no insurable interest therein on that date. Once the jeep had been sold to Ranjit Singh, only that transferee could have made a claim in respect of the jeep and even he could not have made the claim under the insurance policy as the same was never got transferred by him in his favour. The findings recorded to the contrary by the District Forum cannot be sustained and are liable to be set aside. He also submitted that the surveyor assessed the loss to the jeep under three heads. The District Forum allowed the amount under the head "on repair basis". It is not the case of the complainant that he had got the jeep repaired. Therefore the amount assessed by the Surveyor under "cash loss basis" i.e. Rs.2,04,035/- was to be allowed in case the complaint was to be accepted. He prayed for the acceptance of the appeal and the dismissal of the complaint or in the alternative for the modification of the order of the District Forum in the above referred terms.
6. In order to prove that the jeep had been transferred in the name of Ranjit Singh, the opposite parties have relied upon the report of the Investigator, Ex.OP-3 and the affidavit of that Investigatory; namely, Amrik Singh, was proved on the record as Ex.OP-1. In that report, he mentioned that he had met Ranjit Singh, who in his written statement stated that he had purchased the jeep one month before the accident and had not got transferred that in his name. However, while recording the findings, the Investigator did not conclude from the facts collected by him during investigation that First Appeal No.1336 of 2010. 5 the jeep had been sold to Ranjit Singh by the complainant. The counsel for the opposite parties had drawn our attention towards the statement of Ranjit Singh Ex.OP-4, which was recorded by the Investigator. There is no endorsement below that statement by the Investigator that the same was made before him or that the same was recorded by him. The affidavit of that Ranjit Singh was proved on the record by the complainant as Ex.C-2, wherein he deposed that he had not purchased the jeep from the complainant.
7. Even if it is assumed that the evidence produced by the opposite parties is to be relied upon and it is to be held that before the accident the jeep had been sold by the complainant to Ranjit Singh, even then it cannot be held that he had not been left with any insurable interest therein. He was cease to have insurable interest therein only from the date of transfer of this jeep in the name of Ranjit Singh. No evidence has been produced by the opposite parties on the basis of which it may be concluded that the jeep had been transferred in the records of the registering authority before the date of the accident. The registration certificate was proved on the record as Mark C-3. As per the endorsement dated 7.12.2007, this jeep was transferred in the name of Pawan Kumar, complainant. It does not contain any endorsement regarding subsequent transfer. Thus, as per this registration certificate, the complainant is still the registered owner of the vehicle. The facts were similar in "ORIENTAL INSURANCE COMPANY LIMITED & ANR. v.
DHARAM PAL" I (2007) CPJ 150 and it was observed by this Commission that if the registration certificate remains in the name of First Appeal No.1336 of 2010. 6 the complainant and supposing the person to whom the vehicle is said to have been allegedly sold has come forward to the Insurance Company to enter into a contract of insurance, would the Insurance Company have entered into such a contract without the registration certificate being in the name of the alleged purchaser. The answer would be in the negative. The Insurance Company would not insure the subsequent purchaser, if any, till the registration certificate is entered in the name of the subsequent purchaser to substantiate that he is the real owner of the vehicle. Accordingly till the registration certificate is not transferred in the name of the subsequent purchaser, if any, then so far as the Insurance Company is concerned, for them the original owner would remain the owner as well as the insured. Similar proposition of law was reiterated by this Commission in "HARJIT SINGH v. NEW INDIA ASSURANCE COMPANY LIMITED" I(2007) CPJ 349. Same was the view of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur in "NATIONAL INSURANCE COMPANY LTD. v. RAM CHANDRA DHOBI" III (2008) CPJ 287.
8. While dealing with the similar facts, the Hon'ble National Commission in Banowarilal Agrawalla v. National Insurance Co. Ltd. & Anr. [IV(2005) CPJ 110 (NC)] observed as under:-
"10. Be that as it may, it has also been held that since it is the vehicle which is insured and that cover is not disputed, only question involved is who should have preferred the claim? As rightly interpreted above, the First Appeal No.1336 of 2010. 7 petitioner has got no locus to file this complaint as he was not the insured. The only flaw in this case is that the claim should have been filed by the original policy holder and not by the complainant/purchaser of the vehicle. In this slightly technical situation, what could have been done was to have the complaint filed by the insured. Keeping in mind the principle of indemnification of loss by the insurers, in our view, this technicality should not come in the way of the Insurance Company honouring its part of the contract. In the facts and circumstances of the case, we direct that the claim before the respondent Insurance Company be filed by the insured as per Policy, within a period of 6 weeks of passing of this order upon which the respondent shall consider the case as per law. The time spent before the Consumer Forums in pursuing his remedy by way of filing this complaint, shall have to be condoned, as it appears that it was on account of some wrong advice that this procedure was initiated. Upon filing a complaint by the insured as per policy, the respondent shall sympathetically consider the claim in view of the report of the Surveyor which is on record First Appeal No.1336 of 2010. 8 and settle the claim as per terms of the policy, expeditiously."
9. In view of the above proposition of law, as laid down by this Commission and the Hon'ble National Commission, the contract between the Insurance Company and the complainant subsists till the registration certificate of the vehicle is transferred in the name of Ranjit Singh. Therefore, the complaint was very much maintainable by the complainant and he was entitled to make the claim to the opposite parties under the insurance contract as contained in the insurance policy.
10. The report of the surveyor was proved on the record by the complainant himself as Mark C-9. The surveyor assessed the loss to the jeep under three heads. Under the head "Assessment on Repair Basis", the loss was assessed at Rs.3,53,967/-; under the head "Assessment on Total Loss Basis" the same was assessed at Rs.4,75,000/-; and under the head "Assessment on Cash Loss Basis" the same was assessed as Rs.2,04,035/-. The District Forum allowed the insurance amount to the extent of Rs.3,53,967.80P. The District Forum did not rely upon that part of the report wherein it is incorporated that the insured agreed for the settlement of loss on "Cash Loss Basis" for Rs.2,00,000/-, which was lesser in comparison to other modes of settlement. It has been incorporated in the impugned order that the said part of the report was ignored on the ground that the opposite parties have not placed on record the consent of the insured for the settlement of the claim on "Cash Loss Basis". The complainant nowhere pleaded in his complaint that he First Appeal No.1336 of 2010. 9 ever got repaired the jeep or that he made any offer for the repairs thereof. Had he wanted to settle the claim on the basis of "Repair Basis", he must have undergone that process. That itself shows that the surveyor correctly mentioned in the report that he had agreed for the settlement on "Cash Loss Basis". The District Forum committed an illegality while allowing the insurance amount on the basis of the assessment under the head "Repairs Basis" and, thus, the order is liable to be modified to that extent.
11. Accordingly the appeal is partly allowed, the order of the District Forum is modified to the effect that the sum of Rs.3,53,967.80P is substituted by Rs.2,04,035/-. No order is made as to costs.
12. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the District Forum and the appellants.
13. The arguments in this case were heard on 19.2.2014 and the order was reserved. Now, the order be communicated to the parties.
The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
(MRS. SURINDER PAL KAUR)
March 03, 2014 MEMBER
Bansal
First Appeal No.1336 of 2010. 10