State Consumer Disputes Redressal Commission
Rajinder Kumar vs Oriental Insurance Company Ltd. on 10 May, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1055 of 2015
Date of institution : 21.09.2015
Date of decision : 10.05.2016
Rajinder Kumar son of Baldev Raj Sharma, resident of House
No.1112, Village Bhikhiwind, Tehsil Patti, District Tarn Taran.
....Appellant/Complainant
Versus
The Oriental Insurance Company Limited, Branch Office, Zira,
District Ferozepur, through its Authorized Signatory.
....Respondent/Opposite Party
First Appeal against the order dated
14.08.2015 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri P.K. Bansal, Advocate
For the respondent : Shri Satpal Dhamija, Advocate.
JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the
appellant/complainant against the order dated 14.08.2015 passed by District Consumer Disputes Redressal Forum, Ferozepur (in short, "District Forum"), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986, for directing the respondent/opposite party to pay the genuine claim of Rs.14,00,000/-, along with interest at the rate of 9% per annum from First Appeal No.1055 of 2015 2 the date of filing of the claim till the actual realization; to pay Rs.1,00,000/-, as compensation on account of mental pain and agony; and Rs.11,000/-, as litigation expenses, was dismissed.
2. The complainant alleged, in his complaint, that he got insured his truck bearing No.PB-05-M-8177 with the opposite party, after the payment of Rs.26,272/-, as the insurance premium. Policy bearing No.233703/31/2012/340 was issued in his name and the same was valid from 07.06.2011 to 06.06.2012. This truck was being run by him, through Tarsem Lal and Raj Kumar, and he had been earning his livelihood by plying the same. On 31.10.2011, the truck was stolen by some unknown persons and could not be traced, in- spite of the best efforts made by himself, Tarsem Lal and Raj Kumar. Tarsem Lal and Raj Kumar got FIR No.135 dated 21.11.2011 registered in Police Station, Makhu, under Section 379 IPC. The police tried to locate the truck, but the same was not traceable and ultimately, it filed the "Untraceable Report" before the Illaqa Magistrate and the same was accepted. After the truck was stolen, he informed the opposite party and also filed his claim before it, but the same was repudiated, vide letter dated 10.11.2014, on false and flimsy grounds. This act and conduct on the part of the opposite party amounts to deficiency in service and adoption of unfair trade practice.
3. The complaint was contested by the opposite party, by filing the written reply before the District Forum; in which it admitted that the truck was so insured with it and that the complainant made claim under the Insurance Policy; which was repudiated. It also First Appeal No.1055 of 2015 3 admitted that in FIR No.135 dated 21.11.2011, the police submitted "Untraced Report" before the Illaqa Magistrate; which was accepted. It denied the other allegations made in the complaint and averred that the complainant had already sold the truck to Tarsem Lal, vide affidavit of sale dated 04.03.2008, and even the FIR No.135 was got registered by that Tarsem Lal. When the police submitted the "Untraced Report" before the Illaqa Magistrate, Tarsem Lal gave statement that he had purchased the truck from the complainant and even the complainant had made his statement to that effect before the Illaqa Magistrate and only thereafter the "Untraced Report" was accepted, vide order dated 30.03.2013. The claim of the complainant was repudiated, as he was not the owner of the truck and could not have got the same insured. All these material facts were concealed by him in the complaint and he has not come to the District Forum, with clean hands. He is not entitled to any such relief, as claimed in the complaint and the same is not maintainable. It prayed for the dismissal thereof, with special costs; being false, frivolous and vexatious to the knowledge of the complainant.
4. 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, dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the District Forum wrongly concluded that the First Appeal No.1055 of 2015 4 complainant had no insurable interest in the truck and, as such, the opposite party was justified in repudiating his claim on that ground. The truck was never sold by the complainant to Tarsem Lal and in fact the truck was got plied through him. The complainant was the registered owner of the truck and as per the definition of "owner", contained in Section 2 (30) of the Motor Vehicles Act, 1988, he was competent to get the same insured with the opposite party and is entitled to the benefits under the Insurance Policy, so obtained. The opposite party was not justified in repudiating his claim and, as such, the order passed by the District Forum is liable to be set aside. He prayed that after acceptance of the complaint, all the directions as prayed therein, be issued to the opposite party.
7. On the other hand, it was submitted by the learned counsel for the opposite party that the District Forum recorded the findings against the complainant, on the basis of the evidence produced before it. From that evidence, it stands proved that the complainant had already sold the truck to Tarsem Lal and he was no more the owner thereof. Not only the affidavit was executed by him to that effect, but even the FIR was got registered by Tarsem Lal and after the "Untraced Report" was submitted before the Illaqa Magistrate, that Tarsem Lal made a statement that he had purchased the truck from the complainant and similar statement was suffered by the complainant himself. When the complainant was not the owner, he could not have acquired insurable interest therein, by getting the same insured and the opposite party was justified in First Appeal No.1055 of 2015 5 repudiating his claim. There is no ground for setting aside the well reasoned order passed by the District Forum.
8. For proving the allegations made in the complaint that the complainant was the owner of the truck at the time the same was got insured with the opposite party and was stolen, he proved on record his affidavit, Ex.C-1, as well as the affidavit of Tarsem Lal, Ex.C-10. In addition to that, he proved on record the Registration Certificate of the truck, Ex.C-11; in which he is recorded as the registered owner. The Insurance Policy, Ex.C-3, was obtained by him in his own name on 06.06.2011.
9. To rebut this evidence of the complainant, the opposite party proved on record the affidavit of sale, executed by the complainant in favour of Tarsem Lal, Ex.OP-3, and the statements, Ex.OP-6 and Ex.OP-7, made by both of them before the J.M.I.C., Zira, on 11.03.2013 in the report submitted by the police for filing the FIR No.135, as "Untraced". In the said affidavit, which was got attested from the Notary Public on 04.03.2008, it was deposed by the complainant that he sold the truck to Tarsem Lal and after receiving the full price thereof handed over the possession to him on 15.02.2008. In the statement made by that Tarsem Lal, Ex.OP-6, he stated that he is the complainant in FIR No.135 and that the truck/trolla, in question, was purchased by him from Rajinder Kumar, its previous owner. Rajinder Kumar, complainant, also stated the same fact in his statement, Ex.OP-7. It is pertinent to note that even in the FIR No.135, Ex.C-5, which was got lodged regarding theft of the truck by Tarsem Lal, it was stated by him that he had purchased First Appeal No.1055 of 2015 6 that truck from Rajinder Kumar. From all this evidence, so produced on the record, it stands proved that the truck was sold by the complainant to Tarsem Lal on 13.02.2008/ 15.02.2008 and the possession thereof was given by him to Tarsem Lal, after receiving the price thereof. Thus, the property in the truck passed in favour of Tarsem Lal on that date.
10. Once the complainant ceased to be the owner of the truck, he could not have got the same insured with the opposite party on 06.06.2011. He could not have acquired any insurable interest therein, by getting the same insured; as he was not the owner thereof. The "owner", as defined in Section 2 (30) of the Motor Vehicles Act, 1988, is meant only for the purposes of that Act and is not the general definition. These are the provisions of the Sale of Goods Act, 1930, which are to be taken into consideration for determining, as to when the property in the truck passed in favour of Tarsem Lal and he became the owner thereof? As already said above, the property in the truck passed in favour of Tarsem Lal in the year 2008 and he became the owner thereof and at the time of theft and even thereafter he had been stating himself to be the owner thereof. In these circumstances, the opposite party was justified in repudiating the claim made by the complainant, on the ground that he was not the owner of the truck and, as such, had no insurable interest therein. Correct findings to that effect were recorded by the District Forum and the same are upheld.
11. In the result, this appeal, which is without any merit, is hereby dismissed.
First Appeal No.1055 of 2015 7
12. The arguments in this case were heard on 27.04.2016 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER May 10, 2016.
(Gurmeet S)