State Consumer Disputes Redressal Commission
The New India Assurance Company Limited ... vs Brijveer Singh on 29 April, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 339 / 2007
1. The New India Assurance Company Limited
having its Registered Office at
87, Mahatma Gandhi Road, Fort Road
Mumbai
2. Branch Manager, The New India Assurance Company Limited
Ranipur More, Haridwar
......Appellants / Opposite Parties
Versus
Sh. Brijveer Singh S/o Sh. Yashpal Singh
R/o Village Uddalhedi, P.S. Mangalore
District Haridwar
......Respondent / Complainant
Sh. T.S. Bindra, Learned Counsel for the Appellants
Sh. V.K. Srivastava, Learned Counsel for Respondent
Coram: Hon'ble Justice B.C. Kandpal, President
C.C. Pant, Member
Dated: 29/04/2011
ORDER
(Per: C.C. Pant, Member):
This is insurance company's appeal against the order dated 27.08.2007 passed by the District Forum, Haridwar, allowing consumer complaint No. 334 of 2006 and directing the insurance company to pay to the complainant sum of Rs. 25,000/- together with interest @6% p.a. pendentelite and future and Rs. 2,000/- towards litigation expenses, within a month from the date of the order.
2. The facts of the case, in brief, are that the complainant Sh. Brijveer Singh had purchased a motorcycle from Sh. Sanjay, a resident of Delhi on 28.08.2004 for Rs. 25,000/-. On 30.08.2004, this motorcycle was stolen by some unknown person. The complainant 2 lodged an FIR with the police. The motorcycle was insured with The New India Assurance Company Limited for the period from 21.11.2003 to 20.11.2004 against a risk of Rs. 25,002/-. However, the insurance company repudiated the claim on the ground that the vehicle was not transferred in the name of the complainant and, therefore, he is not entitled for the claim amount. This led the complainant to file a consumer complaint before the District Forum, Haridwar, which allowed the same vide its order dated 27.08.2007 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record in the light of the legal aspect of the case.
4. The genuineness of the theft of the motorcycle on 30.08.2004, is not in dispute. The final report submitted by the police and the investigation report of the investigator deputed by the insurance company have nowhere doubted the genuineness of the theft. The main question in this case is as to whom the loss should be indemnified. The insurance company has admitted that the seller Sh. Sanjay had submitted the claim form, but the claim was repudiated on the ground that he had transferred the vehicle to the complainant. The complainant is being denied the claim on the ground that there is no privity of contract between the insurance company and the complainant and, therefore, the complainant is not a consumer of the insurance company. Thus, the complainant can not allege deficiency in service on the part of the insurance company. The insurance company has also stated that the documents dated 28.08.2004, the sale letters, receipts etc., showing the transfer of the vehicle to the complainant, are manipulated and have been fabricated by Sh. Sanjay 3 and the complainant in collusion with each other. We do not find these statements tenable and feel that the insurance company is trying to avoid its liability either on one ground or the other. As a matter of fact, the insurance company has failed to examine the complainant's claim case in the light of its legal aspect. The words like "transfer", "owner" etc. have been used by the appellants in appeal and other documents, but the insurance company has interpreted them in its favour, so that the liability to compensate the loss could be avoided.
5. The word "owner" has been defined under Section 2(30) of the Motor Vehicles Act, 1988 and it means a person in whose name a motor vehicle stands registered. Thus, whenever and wherever the word "owner" is used, it would mean the registered owner of the vehicle. It is an admitted fact that till the date of the incident, the vehicle could not be transferred in the name of the complainant and, therefore, the seller of the vehicle Sh. Sanjay was the "owner" of the vehicle. Merely because the complainant had paid the amount to Sh. Sanjay, it can not be said that Sh. Sanjay has transferred the vehicle in complainant's name. The vehicle can be transferred from the name of one person to another by the competent authority and Sh. Sanjay has no such authority. At the most, we can say that after signing the sale letter in Form 29, the process of transfer had started, but actual transfer of the vehicle had not completed. Unfortunately, before the required documents for such transfer could be submitted to the competent authority, the vehicle was stolen. Thus, the "owner" as defined under the Motor Vehicles Act, 1988, was Sh. Sanjay by that time and, therefore, the contract of insurance was very well in existence between Sh. Sanjay and the insurance company. The insurance company could have repudiated the claim submitted by Sh. Sanjay on other grounds such as the incident of theft was doubtful or the complainant himself was instrumental in causing the theft etc., but 4 the claim has not been repudiated on such grounds. The claim has been repudiated on the ground that Sh. Sanjay had transferred his vehicle on 28.08.2004. We are of the view that this ground of repudiation of the claim is legally incorrect because the vehicle was not transferred to the complainant on that date. Of course, in pursuance of a written agreement and sale letter in Form 29, the process of transfer had started. Meanwhile, i.e., during the period from signing the sale letter and actual transfer of vehicle by the competent authority, the transferee has right to drive the vehicle, but other rights and liabilities get transferred only when the vehicle is transferred in the name of the complainant by the competent authority. Therefore, we are of the view that the insurance company was not justified in repudiating the claim of Sh. Sanjay. The learned counsel for the insurance company could not show us any such clause in the policy which stipulates that the contract of insurance between the insured and the insurance company shall cease as soon as the insured signs the sale letter in Form 29.
6. Further, by virtue of the sale letter, the status of the complainant will be that of a beneficiary for the purpose of the insurance policy because it is the complainant who has an insurable interest in the vehicle. Had the vehicle been transferred on 30.08.2004, the insurance policy would have been deemed as transferred in favour of the complainant, but the vehicle got stolen. The complainant has stated that 29.08.2004 was a holiday and, therefore, he was going to Roorkee on 30.08.2004 for getting the vehicle transferred in his name. Though the insurance company says that it was all manipulated and fabricated but such arguments are not tenable without any conclusive evidence. Another argument advanced by the learned counsel for the insurance company in this respect is that the deemed transfer of insurance policy under Section 157(1) of the Motor Vehicles Act, 5 1988 is with regard to third party insurance and not for own damage. This plea is also not sustainable because the contract for third party insurance and own damages is executed by a single policy. If the insurance policy is treated as deemed transferred in favour of the complainant, then it would not be logical that such a deemed transfer shall cover the third party case only. But we would not like to discuss these statutory provisions in detail because the present case is not a case of deemed transfer.
7. In view of the above discussion, the complainant had also a consumer right for submitting claim for indemnification of the loss of the vehicle. Under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, "consumer", in reference to services, includes any beneficiary of such services other than the person who avails of the services for consideration paid or promised, or partly paid or promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. In the present case, the seller Sh. Sanjay had handed over all the documents including insurance policy to the complainant which amounts to Sh. Sanjay's approval that the buyer - complainant can avail the services.
8. Further, it was not the person but the motor vehicle which was insured by the insurance company and the policy had not ceased and was in existence. Therefore, in the case of an incident of theft, which was found genuine (and not fabricated) by the police and also by the investigator deputed by the insurance company, the insurance company shall have to pay the compensation for the loss. The claim should have been settled in favour of the owner of the vehicle Sh. Sanjay because it was he who had submitted it first. However, the claim was repudiated on the ground that Sh. Sanjay had sold the vehicle to the complainant and, as such, the complainant being a 6 beneficiary, can also submit the claim. It would be highly unjustified on the part of the insurance company to repudiate this claim also on the ground that there was no privity of contract between the insurance company and the complainant and hence the complainant was not its consumer. Therefore, we are in agreement with the view taken by the District Forum in respect of the consumer complaint filed by the complainant. The order passed by the District Forum does not require any interference at the appellate stage.
9. For the reasons aforesaid, appeal is dismissed. Impugned judgment and order dated 27.08.2007 passed by the District Forum is confirmed. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K