State Consumer Disputes Redressal Commission
Iffco-Tokio General Insurance Company ... vs Jamuna Prasad Raiwani on 21 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 171 / 2011
IFFCO-TOKIO General Insurance Company Limited
IFFCO Sadan, C1, District Centre
Saket, New Delhi through its
Authorised Signatory, FAI House, 2nd Floor
10, Shaheed Jeet Singh Marg, Qutub Institutional Area
New Delhi
......Appellant / Opposite Party
Versus
Sh. Jamuna Prasad Raiwani S/o Sh. Bhagwati Prasad Raiwani
R/o 21/1, Guru Teg Bahadur Road
Dehradun
......Respondent / Complainant
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. Vivek Painuli, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 21/05/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 16.08.2011 passed by the District Forum, Dehradun in consumer complaint No. 75 of 2010, whereby the District Forum has allowed the consumer complaint and directed the appellant to pay compensation of Rs. 3,80,000/- to the respondent - complainant together with interest @9% p.a. from the date of lodging of the claim till payment and Rs. 25,000/- towards mental agony and litigation expenses.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant is the registered owner 2 of truck No. UA07-R-7467 (Tata 407). The said truck was insured with the appellant - IFFCO-TOKIO General Insurance Company Limited for the period from 17.04.2008 to 16.04.2009. However, the insured truck was stolen on 25.09.2008 from Jwalapur, Haridwar. The FIR of the incident was lodged with P.S. Jwalapur, Haridwar and intimation was also given to the insurance company. The insurance company, however, repudiated the claim vide their letter dated 07.07.2009 on the ground that on investigation of the matter, the investigator has found that the insured vehicle was sold to Sh. Vakil Ahmed S/o Sh. Sager Ahmed, R/o Mohalla Kasavan, Jwalapur, Haridwar in the month of January, 2008, i.e., much before the date of theft. Alleging deficiency in service on the part of the insurance company, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that the intimation with regard to the theft of the vehicle was given to them on 03.10.2008; that the subject vehicle was sold by the complainant to Sh. Vakil Ahmed vide agreement to sell dated 02.01.2008 and at the time of theft, the vehicle was under the control and possession of Sh. Vakil Ahmed; that the FIR of the incident of theft was also lodged by Sh. Vakil Ahmed; that the complainant was not entitled to any claim and his claim was rightly repudiated and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 16.08.2011 in the above manner. Aggrieved by the said order, the insurance company has filed this appeal.
35. We have heard the learned counsel for the parties and have also perused the record.
6. The insurance company has repudiated the claim of the complainant on the ground that the complainant had sold the insured vehicle to Sh. Vakil Ahmed vide agreement to sell dated 02.01.2008 and on the date of theft of the vehicle, i.e., 25.09.2008, the vehicle was under the custody and possession of Sh. Vakil Ahmed and the complainant had no insurable interest in the vehicle and, as such, the complainant was not entitled to any amount.
7. In support of its defence, the insurance company has placed reliance on the agreement to sell dated 02.01.2008 (Paper Nos. 26 to 27) executed between the complainant and Sh. Vakil Ahmed in regard to the sale of the subject vehicle. In the said agreement, it has specifically been mentioned that the First Party - complainant has sold the vehicle to the Second Party - Sh. Vakil Ahmed on 02.01.2008 for sum of Rs. 6,12,800/-, out of which, sum of Rs. 1,17,500/- has been paid and the remaining amount of Rs. 4,95,300/- shall be paid by Sh. Vakil Ahmed to the financier - Tata Motors Limited, Mumbai in 39 installments of Rs. 12,700/- each. It was further been mentioned in the said agreement that the possession of the vehicle has been delivered to the Second Party - Sh. Vakil Ahmed. There is no denial from the side of the complainant to this agreement to sell dated 02.01.2008. To the contrary, in para 8 of the consumer complaint, the complainant has admitted that he has entered into an agreement to sell dated 02.01.2008 with Sh. Vakil Ahmed in regard to the sale of the insured vehicle, but has stated that the vehicle was to be transferred in favour of Sh. Vakil Ahmed on payment of full consideration amount. However, as is stated above, the possession of the vehicle was delivered by the complainant to Sh.
4Vakil Ahmed on 02.01.2008 itself, as has also been mentioned in the agreement to sell dated 02.01.2008.
8. It is important to mention here that the FIR dated 28.09.2008 with regard to the theft of the insured vehicle was lodged by Sh. Vakil Ahmed, where he has stated that in the night of 24.09.2008, his driver had parked the vehicle at Sabji Mandi, Sarai Road, Jwalapur, Haridwar and went to sleep and that in the morning of 25.09.2008, the vehicle was found missing from the spot. The insurance company has appointed Sh. Himanshu Sharma as investigator, who had also taken the statement of the complainant (Paper No. 21kha/9 of the original record) and in the said statement, the complainant has clearly mentioned that he has delivered the possession of the vehicle to Sh. Vakil Ahmed and Sh. Vakil Ahmed is taking care of the vehicle and that Sh. Vakil Ahmed had told him on telephone that the insured vehicle has been stolen in the night of 24.09.2008 from Sabji Mandi, Sarai Road, Jwalapur, Haridwar. Thus, it is quite clear and proved on record that on the date of incident of theft, the vehicle was under the custody and possession of Sh. Vakil Ahmed and not the complainant and the complainant had no insurable interest in the vehicle, as he had already sold the vehicle to Sh. Vakil Ahmed vide agreement to sell dated 02.01.2008, but the insurance policy was wrongly got issued by the complainant in his name for the period from 17.04.2008 to 16.04.2009.
9. Learned counsel for the appellant - insurance company cited a decision of the Hon'ble National Commission in the case of Dharambir Vs. New India Assurance Company Limited; IV (2012) CPJ 639 (NC). In the said case, the claim was repudiated by the insurance company on the ground that the complainant had no insurable interest on the date of loss, as he had already sold the 5 vehicle. In the said case, the FIR was lodged by Sh. Dilprit Singh, as the owner of the vehicle and not by the complainant. It was held by the Hon'ble National Commission that the repudiation of the claim by the insurance company was justified.
10. Learned counsel for respondent cited a decision dated 30.10.2013 of this Commission given in First Appeal No. 135 of 2009; National Insurance Company Limited Vs. Sh. Mahabir Singh Bisht and another. In the said case, the complainant - Sh. Mahabir Singh Bisht had purchased the subject vehicle from Sh. Ramesh Chand Gaur, the registered owner of the vehicle and the vehicle was also insured in his name. The appeal was allowed and the order impugned passed by the District Forum was set aside and the consumer complaint filed by Sh. Mahabir Singh Bisht was dismissed and it was further held that the original owner of the vehicle may file a consumer complaint. In the present case, the complainant has himself stated that he has sold the vehicle to Sh. Vakil Ahmed much before the date of insurance and has also received the amount from Sh. Vakil Ahmed and, as such, he ceased to be the owner of the vehicle. Learned counsel for respondent also cited a decision of Delhi State Consumer Disputes Redressal Commission, New Delhi in the case of New India Assurance Company Limited Vs. Appliance Technologies India Limited; II (2008) CPJ 195. In the said case, the claim was repudiated on the ground that the insurable interest stood transferred. It was held that merely because the vehicle was taken away by prospective purchase, insurable interest not stood transferred in the name of prospective purchaser. In the case in hand, the complainant has voluntarily delivered the possession of the vehicle to Sh. Vakil Ahmed, to whom he has sold the vehicle vide agreement to sell dated 02.01.2008 and he has not denied this fact and has also confirmed the said fact in his statement given to the 6 investigator and the FIR of the incident of theft was also lodged by Sh. Vakil Ahmed.
11. The Hon'ble National Commission in a latest decision given in the case of Ram Singh Vs. Reliance General Insurance Company Limited; II (2014) CPJ 99 (NC), has held that the purchaser does not have any insurable interest with regard to vehicle since insurance policy stands in the name of original owner. It was further held that even if registration of vehicle stands in the name of original owner and insurance policy is also in his name, he shall not be entitled to get claim because he has already declared on appropriate proforma that he had sold vehicle and that there can not be deemed transfer in favour of purchaser. In the present case, as is stated above, the complainant has already sold the vehicle to Sh. Vakil Ahmed vide agreement to sell dated 02.01.2008. The Hon'ble National Commission in an another decision rendered in the case of Sandeep Gupta Vs. United India Insurance Company Limited and another; I (2014) CPJ 493 (NC), has held that in case the policy is not transferred in the name of transferee, the insurance company can not be held liable to pay claim in case of own damage of vehicle. In the said case, the vehicle had already been sold by Sh. Jit Singh and Sh. Prem Singh to Sh. Sandeep Gupta and it was held that they were also not entitled to any insurance claim. While coming to the said conclusion, the Hon'ble National Commission has placed reliance on the decision of the Hon'ble Apex Court rendered in the case of Complete Insulations (P) Ltd. Vs. New India Assurance Company Limited; I (1996) CPJ 1 (SC) = I (1996) CLT 22 (SC) = II (1996) ACC 536 (SC).
12. On 16.05.2014, learned counsel for respondent also submitted certain other decisions. Learned counsel for respondent cited a decision of the Hon'ble National Commission given in the case of 7 National Insurance Co. Ltd. Vs. Shrawan Bhati; II (2008) CPJ 364 (NC). In the said case, the sale proceeds of the vehicle were not received by the complainant and there was no evidence to prove that the amount had been exchanged. It was held that the insurable interest still lies with the complainant, who is still the legal owner of the vehicle. In the present case, the complainant has received the amount of Rs. 1,17,500/- from Sh. Vakil Ahmed and the remaining amount of Rs. 4,95,300/- was agreed to be paid by Sh. Vakil Ahmed to the financier of the vehicle and the possession of the vehicle was also delivered by the complainant to Sh. Vakil Ahmed. Learned counsel also cited a decision of Rajasthan State Consumer Disputes Redressal Commission, Jaipur given in the case of National Insurance Company Limited Vs. Ram Chandra Dhobi; III (2008) CPJ 287, which does not hold good in view of the latest decision of the Hon'ble National Commission in the case of Ram Singh (supra). Learned counsel further cited a decision dated 12.10.2010 of this Commission given in First Appeal No. 259 of 2008; United India Insurance Company Limited and another Vs. Sh. Mahendra Kumar. In the said case, the sale of the vehicle was not finalized in terms of the agreement on account of non-payment of the agreed price of the vehicle. In the present case, as is stated above, the amount had already been received by the complainant and the possession of the vehicle was also delivered by the complainant to Sh. Vakil Ahmed. Learned counsel cited another decision of the Hon'ble National Commission rendered in the case of Banowarilal Agrawalla Vs. National Insurance Company Limited and another; IV (2005) CPJ 110 (NC). In the said case, the policy of insurance was not transferred in complainant's name and it was held that the complainant has no locus to file complaint as he was not insured. The said decision also can not help the respondent in view of the latest decision of the Hon'ble National Commission in the case of Ram 8 Singh (supra).
13. Thus, in the given facts and circumstances of the case, the insurance company was perfectly justified in repudiating the claim of the complainant and the District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not be sustained and is liable to be set aside and the appeal is fit to be allowed.
14. For the reasons aforesaid, appeal is allowed. Order impugned dated 16.08.2011 passed by the District Forum is set aside and consumer complaint No. 75 of 2010 is dismissed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K