State Consumer Disputes Redressal Commission
Rajesh Rambharose Agrawal vs Bajaj Alluanz Gen.Ins.Co.Ltd on 24 February, 2021
Details DD MM YY
Date of filing 24 02 2021
Date of filing 24 02 2014
Duration - - 7
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD
COMPLAINT NO. 21 OF 2014
Rajesh Rambharose Agrawal
R/o 23, Soham Bungalows 1
Opp. Shobhna Nagar
Beh. Palm View, Vasna Road
Vadodara 390 007 Complainant
versus
1. Bajaj Allianz General Ins. Co. Ltd.
4th Floor, Turquoise
Nr. Panchvati Circle
C.G. Road, Ellis Bridge
Ahmedabad 380 006
2. M/s. Persoli Motor Works Pvt. Ltd.
Ground Floor, President Plaza
Opp. Muktidham Derasar
Nr. Thaltej Circle
S.G. Road, Ahmedabad 380 054 Opponents
Coram: Mr. Justice V.P. Patel, President
Smt. Usha P. Jani, Member
Appearance:
Dr. R.G. Dwivedi, advocate for the Complainant
Mr. V.P. Nanavaty, advocate for Opponent No.1
ORDER:[By Mr. Justice V. P. Patel, President]
1. The complainant has filed the Consumer Complaint under Section 11 and 12 of the Consumer Protection Act, 1986 (for short „the Act‟) against the opponents claiming main relief which reads as under:
"(A) It is, therefore most respectfully prayed that, the complainant should be awarded claim to the full extent of IDV of his damaged car i.e. for Rs.21,12,000/- (Rupees Twenty M. B. Desai C-21-14 Page 1 of 26 one lac twelve thousand) with int. @ 18% per annum from the day of accident i.e. 24.5.2013 till the realisation of payment and Rs.25,000/- as costs of present legal proceedings and accrued demurrage.
(B) The complainant may also be pleas be awarded Rs.50,000/- for mental agony and compensation/exemplary damages for hindrances in continuous persuation of the claim and any other compensation whatsoever the Hon‟ble Forum feel fit in the interest of justice.
(C) That Hon‟ble Commission may be pleased to ask to the opponents to allow the complainant to get his damaged car surveyed and get assessed the loss through an independent surveyor licensed by IRDA, as car in question of the complainant still lying in the workshop of Op. No.2".
Facts of the complaint:
2. The complainant purchased a car from opponent No.2 for Rs.25,20,000/- with hypothecation from BMW India Financial Services Pvt. Ltd. on 26.9.2011. He being a resident of Vadodara got the car registered with RTO, Vadodara who allotted GJ-6-DQ-3200 as registration number. The complainant obtained private car package policy from opponent No.1 through opponent No.2 by paying premium of Rs.47,567/-. Opponent No.1 issued policy No.OG-13-2202-1801-
00024076 for the period 27.9.2012 to 26.9.2013. I.D. value of the vehicle was Rs.21,12,000/-.
2.1 That on 24.5.2013 while his car was parked at Laheripura New Road, between 22.00 and 22.30 hrs. accidental fire broke out in the car and the car started burning. Someone informed the police and fire brigade who arrived at the spot and extinguished the fire but by that time, the car was totally burnt. As, according to the complainant, no criminal act was involved, no crime was registered by the police but drew panchnama. Since the car was purchased from opponent No.2 and the insurance was taken through opponent No.2, on 25.5.2013 the M. B. Desai C-21-14 Page 2 of 26 car was taken to the workshop of opponent No.2. Thereafter all the procedure for lodging the claim with opponent No.1 and submitting the claim and other requirements were done by opponent No.2. According to the complainant, therefore, opponent No.2 is also equally liable to pay the claim to him. The repairers gave estimate of Rs.17,35,000/- for repairing the vehicle which was more than 75% of the sum insured and therefore the loss should be considered as total loss.
2.2 The opponent insurance company appointed surveyor and investigator. The complainant extended full cooperation to the surveyor and investigator and complied with all the requirements as demanded by them. However, the insurance company has not provided a copy of the survey/investigation report to him. The complainant thereafter approached opponent No.1 and requested to settle his claim but in vain. The opponent thereafter, vide letters dated 16.9.2013 and 23.10.2013 repudiated the claim.
2.3 The complainant has asserted that he intended to sell his car through M/s. Exotic Cars and received advance payment of Rs.10,00,000/- but as total payment was not received, the possession of the car was not given to the proposed buyer and on the date of the accident and thereafter also the car in question stood registered in the name of the complainant. Due to the incident in question, the complainant had returned the advance amount in installments.
2.4 In spite of valid insurance and genuine incident of fire and subsequent loss to the insured car, opponent No.1 on illegal, baseless, unjustified and on flimsy grounds repudiated the claim of the complainant and thereby displayed deficiency in service and resorted to unfair trade practice. The complainant has therefore approached this Commission by way of above stated prayers.
Complainant has produced following affidavit of Witnesses:
M. B. Desai C-21-14 Page 3 of 26 Sr. Name of witnesses Date
1 Hardik Girishchandra Panchal 15.11.16
2 Mileshbhai Subhashchandra Panchal 15.11.16
2.5 The complainant has submitted the following documents in
support of his claim.
Sr. Annexure Particulars Page
1 A Copy of the Purchase Invoice 1-1
2 B Copy of the policy 2-5
3 C Copy of estimate 6-12
4 D Copy of the panchnama 13-14
5 E Copy of letter of clarification 15-16
6 F Copy of the money receipts 17-18
7 G Copy of repudiation letter 19-19
8 H Copy of repudiation letter 20-20
9 I Copy of the demand letter 21-21
10 J Copy of R.C. Book 22-22
Certified copy of station diary of Vadi
11 81-81
Police Station, Baroda City Police
Certified copy of Panchanam carried
12 82-83
out by police
3. Upon admission of the complaint, notice was issued and learned advocate Mr. V.P. Nanavaty has filed his appearance on behalf of opponent No.1 insurance company. Opponent No.1 has also filed written submissions and further written submissions.
Defence of opponent No.1:
3.1. Opponent No.1 insurance company (for short, „the opponent‟) has denied the allegations, averments, assertions, submissions and claim set out by the complainant as false and asserted that the complaint is not maintainable.
3.2 The complainant reported the claim to the opponent on 5.6.2013.
After the alleged incident of fire on 24.5.2013, the complainant removed the car and informed the opponent to inspect the car at the authorised service station. The complainant sold the insured to a car dealer M/s. Exotic Cars and accepted payment of Rs.10,00,000/- on M. B. Desai C-21-14 Page 4 of 26 12.9.2012/13.9.2012 by cheques which fact is transpired from the bank statement of the car dealer. Thus, the sale transaction took place before the incident in question and the complainant has no insurable interest in the insured car on the date of the incident. The opponent has therefore rightly repudiated the claim of the complainant. The opponent has asserted that the assertion of the complainant with regard to return of the amount to the car dealer is nothing but concocted with a view to establish that he has insurable interest in the car on the date of the incident as the receipts purported to have been issued by the car dealer are not signed by the car dealer on revenue stamp.
3.3 The opponent has further asserted that the opponent has not displayed any deficiency in service or resorted to any unfair trade practice and therefore this Commission has no jurisdiction to try and decide the complaint.
3.4. Without admitting any liability whatsoever, the opponent has asserted that there is no clause for payment of interest and for payment of damage or incidental loss as the complainant is duty bound to maintain the salvage as if he is uninsured person. The opponent has put the complainant to prove that the vehicle in question has been purchased by availing financial assistance as stated by him. According to the opponent, no cause of action has arisen and this Commission has no jurisdiction to try and decide the complaint in question in its summary jurisdiction and prayed to dismiss the complaint.
3.5. The opponent insurance company has produced the following documents at page 35 and 80 (A).
Sr. Particulars Date Page
Policy of Insurance bearing No.
1 25.9.12 37-46
OG/13/2202/1801/00024076
2 Computer generated claim 5.6.13 47
M. B. Desai C-21-14 Page 5 of 26
intimation details
3 Job card 25.5.13 48
Report of the investigator Shri J. K.
4 10.8.13 49-59
Vaghela with Annexure
5 Letter of the complainant - 60-61
Letter of Insurance company to the
6 10.10.13 62
complainant
Copy of Bank statement of Exotic
7 10.1.12 63-65
Cars- Three Pages
Copy of receipts (Three) issued by
10.6.13
Exotic Cars in Favour of
8 4.7.13 66-68
complainant, 10.6.13, 4.7.13 and
4.8.13
4.8.13
9 Letter of opponent to complainant 16.9.13 69
10 Letter of repudiation 23.10.13 70
4. The complainant has filed counter affidavit to the reply of the opponent insurance company wherein the complainant has reiterated what he has stated in the complaint. He has denied the allegations, assertions and averments made by the opponent. The complainant has also produced affidavit of witness in support of his case.
Arguments of the Complainant:
5. Ld. advocate for the complainant has argued that complainant has purchased the car from the opponent no.2 for Rs. 25,20,000/- on 26.9.11. Thereafter, He has insured the said car by purchasing private car package from the opponent no.1. He has paid the premium of Rs. 47,567/- for the period 27.9.12 to 26.9.13. That the sum insured (IDV) of the vehicle was Rs. 21,12,000/-. It is also mentioned in the policy that the M/s. BMW India Finance Services Ltd. are the agent of the opponent no. 1 and their E-mail address is also mentioned in the policy. That on 24.5.13 while this car was parked at Lehripura of Baroda and then incident was taken place and sudden accidental fire was ignited in the car and the car was starting burning. Someone called police and fire brigade and drew the panchnama of the place of accident by the police.
It is also argued that on the next day morning of the accident, complainant was intimated to the opponent no. 2 and as per their M. B. Desai C-21-14 Page 6 of 26 advice car was brought to the workshop of opponent no. 2, who is the authorized dealer of the car manufacturing company. That the estimate of cost of repairing of Rs. 17,35,000/- was given by the opponent no.2. The claim form submitted to the opponent no. 1 vide letter dated 16.9.13 and 10.10.13. That the claim was repudiated without any sufficient cause. Therefore, he has filed the complaint against the opponents. That the claim was repudiated without legitimate and genuine reason and on flimsy and false ground.
5.1 That the claimant has produced sufficient evidence to the show actual loss of goods had been cause. That the complainant suffered and harassment is caused to the complainant on account of illegal action of the opponent. It is further argued that the claim is genuine whichever the documentary evidence are produced is sufficient for satisfying the claim. The repudiation order is not tenable in eye of law. He requested to allow the consumer complaint and award the amount as prayed for.
5.2 Ld. advocate for the appellant has relied upon certain judgments. The same will be discussed hereinafter.
Argument of the Opponent:
6. ld. advocate for the opponent has submitted that the claim was repudiated on legal and valid ground as per the terms and conditions of the policy. That the claimant has intimated to the insurance company by delay of 11 days thus, he is breached the condition no. 1 of the policy. It is further argued that at the time of incident the vehicle was sold by the complainant to other person therefore he has no insurable interest in the vehicle. That the evidence regarding transfer of vehicle to another person are produced on record therefore, claimant is not entitled for any compensation. It is also argued that the delay in intimation is crucial and basic breach of the policy. Therefore, claimant is not entitled for compensation. Ld. advocate for the opponent has M. B. Desai C-21-14 Page 7 of 26 argued that complainant has breached the IRDA guidelines, 2002 that the amount of car was received breach of section 269ss of Income Tax Act.
6.1 It is also argued that the complainant has not produced cogent evidence in support of his claim he has not produced documentary evidence in support of his contention raised in the claim and failed to prove his case. Ld. advocate for the opponent concluded that the insurance company has acted upon the survey report submitted by the competent surveyor appointed by the Insurance company and hence there is no deficiency of service on the part of opponent and therefore, complaint should be rejected with exemplary costs.
6.2 ld. advocate for the opponent has submitted certain judgments which will be discussed hereinafter.
Merits of the Case:
7. Complainant has produced repudiation letter dated 16.9.13 at page no. 19-20 and the same letter are produced by opponent at page no. 69-70. A letter dated 23.10.13 is the latest repudiation letter wherein, it is mentioned as under:
"We have received the documents send by your good self against our letter requesting bank statement for the car deal. We regret to inform you that the documents submitted by your good self in context to the car deal taken place are not found to be satisfactory.
Also there has been considerable delay in providing the intimation of reported claim to our company. At the same time the vehicle was removed from the spot without providing us an opportunity to verify the facts related to the damage to vehicle and the circumstances leading to loss. The same was necessary to determine the admissibility of the claim which is violation of policy condition no.1 which reads as, "Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or assistance as the company shall require."
You have failed to inform to police authority in order to ascertain the actual cause of loss as there is huge loss of property.
M. B. Desai C-21-14 Page 8 of 26As per investigation it has been learnt that you had already sold the insured vehicle prior to the alleged accident thus as per All India Motor Tariff formulated by IRDA you have no insurable interest in this claim.
After reviewing the file, we are of the opinion that your claim is not tenable since there is misrepresentation of facts. In view of above we repudiate your above subject claim. This is Without Prejudice to our right to repudiate our liability on any specific ground/grounds which are available to us for the time being or which may be available to us in future, which please kindly be noted."
Policy Particulars:
8. Claimant has produced policy at page no. 2-5 and the opponent has produced policy at page 37-46. On perusing the following facts.
Sr. Description Particulars
1. Name Rajesh Rambharose Agrawal
2. Date of issue 25.9.12
3. date of validity 27.9.12 to 26.9.13
4. Sum Insured Rs. 21,12,000/-
5. Premium paid Rs. 47,567/-
6. Policy No. OG-13-2202-1801-00024076
7 Product Private Car Package Policy
Delay in Intimation:
9. Opponent has produced policy terms and conditions at page 40-46. At page 43 the following condition is stated.
"Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. Every writ claim summons and all process or a copy thereof shall be forwarded to the company immediately on receipt of the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender."M. B. Desai C-21-14 Page 9 of 26
9.1 It is submitted that the complainant has intimated late. The opponent has produced a E-mail dated 5.6.13 at page 47. The Following facts emerged from the said mail.
"Driver's relationship with Insured:-
Description Of Loss:- Insured vehicle was parked & when noticed it was got fired, Damaged parts-front portion fully Locatio Inspection Address:- Name & address of workshop: Parsoli motor works pvt. ltd, Ahemadabad, In-charge person Name: miss julie, Contact No: 9228000236, DL and RC book Ready Location Of Claim Registration: 1004-Coimbatore Call Center IMD Name : 15509011 - BMW India Financial Services Pvt. Ltd."
9.2 The Opponent has produced service reception at car Check-list at page 48 wherein, the date is mentioned is 25.5.13.
9.3 The opponent has produced a certificate at page 59 issued by the Vadodara Municipal Corporation for the intimation, wherein it is stated that on 24.5.13 at 22.30 hrs. at Lehripura New Road, Sadhna Talkies, Baroda, a BMW Car No. GJ-6-DQ-3200 was burned due to accidental fire.
9.4 That the claimant is produced station diary no. 2 dated 25.5.13 of the Vadi Police Station, Baroda City, (at page 81) wherein it is stated the facts regarding the accident taken place that is ignition of the fire in the BMW car no. GJ-06-DQ-3200. The same was reported by ASI.
9.5 The claimant has also produced panchama at page no. 82 wherein, the description of damage to the car is mentioned.
10. ld. advocate for the complainant has cited certain judgments to show that the delay in intimation cannot be a ground for repudiation which are as under:
10.1 IV (2019) CPJ 186 (NC) in case of Shri Ram Gen. Ins. Co. ltd. Vs Kamlesh.
"8.In the present case, the truck body has been burned as stated by surveyor/investigator, still the matter could not be investigated by the M. B. Desai C-21-14 Page 10 of 26 police properly as information was given to the police on 06.06.2009 with delay of 4 days. It is also important to note that the intimation to the Insurance Company has been given on 03.06.2005 whereas the condition No.1 of the policy requires that in case of accident immediate notice will be given to the Insurance Company to enable the Insurance Company to appoint a surveyor to have the spot inspection as quickly as possible. Here, the surveyor could only be appointed on 03.06.2005 who could not verify the recovery of truck by the crane which is a crucial factor in the present case. Definitely the respondent/complainant has violated the condition of the policy by not immediately giving information to the Insurance Company. The State Commission has not given any importance to this delay and has allowed the insurance claim for full IDV of the vehicle. Clearly, the delay in giving intimation to the Insurance Company is an important factor, which should be taken into consideration while deciding the insurance claim. As observed above, the accident of the vehicle and consequently the vehicle catching fire are the proved facts, respondent/complainant is entitled to insurance claim.
"14. In this connection reference may be made to a decision of National Commission in the case of New India Assurance Company Limited v. Narayan Prasad Appaprasad Pathak, reported in (2006) CPJ 144 (NC). In that case also the question was, whether the insurance company can repudiate the claims in a case where the vehicle carrying passengers and the driver did not have a proper driving licence and met with an accident. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims"
Sr. Description Percentage of Settlement (i) Under declaration of Deduct 3 years‟ difference in
licensed carrying capacity premium from the amount of claim amount, whichever is higher
(ii) Overloading of vehicles Pay claims not exceeding beyond licensed carrying 75% of admissible claim capacity
(iii) Any other breach of Pay upto 75% of admissible warranty/condition of claim.
policy including limitation as to use
9. Relying upon the above guidelines given by the Hon‟ble Supreme Court, it is seen that in the present matter one of the policy conditions has been clearly violated and that being an important condition, I M. B. Desai C-21-14 Page 11 of 26 deem it appropriate to allow the insurance claim @ 60% of the IDV of the vehicle."
10.2 I (2020) CPJ 88 (SC) in case of kamlesh vs. Shri Ram Gen. Ins. Co. Ltd. wherein, it is held as under:
"8. We have gone through the policy in question. Under the caption "conditions" which are part of the Policy, the relevant condition states:-
"1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the Insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this Policy. In case of theft or criminal act which may be the subject of a claim under this Policy the Insured shall give immediate notice to the police and co-operate with the Company in securing the conviction of the offender."
9. The aforesaid condition has two limbs:-
i) Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage; and
ii) In case of theft or criminal act which may be the subject of a claim under this Policy, the Insured shall give immediate notice to the police.
The second limb contemplates issuance of immediate notice to the police only in cases of theft or criminal act. In the event of an occurrence of any accidental loss or damage, the condition does not contemplate issuance of any notice to the police.
10. The case that the appellant came up with was of an accidental loss, and, therefore, if no immediate notice was issued to the police, there was no infraction on part of the appellant. The accident had occurred during the night of 1 st and 2 nd June, 2009 and the intimation was given to the respondent on 3 rd of June, 2009. In our view, the notice was not delayed on any count and did satisfy the requirements contemplated by the conditions in the policy."
10.3 I (2020) CPJ 57 (SC) in case of Gurshinder Singh vs. Shri Ram Gen. Ins. Co. Ltd. wherein, it is held as under:
M. B. Desai C-21-14 Page 12 of 26"9. Per contra, in the case of Om Prakash (supra), the vehicle was stolen on 23.03.2010 at around 9.00 p.m. The claimant lodged an FIR immediately on 24.03.2010. He lodged the insurance claim on 31.03.2010. Since the claim of the claimant was repudiated, he filed complaint before the District Forum which was allowed. The State Commission also maintained the order of the District Forum. However, in the revision, the National Commission reversed the same. In an appeal, this Court found that the claimant (the appellant therein) had assigned cogent reasons for the delay of 8 days in lodging the complaint. It further found that the word "immediately"‟ cannot be construed narrowly so as to deprive claimant the benefit of the settlement of genuine claim, particularly when the delay was explained. It further held, that rejection of the claim on purely technical grounds and in a mechanical manner will result in loss of confidence of policy holders in the insurance industry. It further held, that if the reasons for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay. This Court also held that it would not be fair and reasonable to reject the genuine claims which have already been verified and found to be correct by the investigator. It further held, that the condition regarding the delay shall not be a shelter to repudiate the insurance claims which have been otherwise proved to be genuine. This Court observed that the Consumer Protection Act aims at providing better protection of the interest of the consumers. It is a beneficial legislation that deserves a liberal construction.
13. In our view, applying the aforesaid principles, Condition No. 1 of the Standard Form for Commercial Vehicles Package Policy will have to be divided into two parts. The perusal of the first part of Condition No. 1 would reveal, that it provides that „a notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage‟. It further provides, that in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require. It provides, that every letter claim writ summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured. It further provides, that a notice shall also be given in writing to the company immediately by the insured if he shall have knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence, which may give rise to a claim under this policy.
14. A perusal of the wordings used in this part would reveal, that all the things which are required to be done under this part are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to immediately give a notice in writing to the company. This appears to be so that the company can assign a surveyor so as to assess the damages suffered by the M. B. Desai C-21-14 Page 13 of 26 insured/vehicle. It further provides, that any letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. As such, the intention would be clear. The question of receipt of letter claim writ summons and/or process or copy thereof by the insured, would only arise in the event of the criminal proceedings being initiated with regard to the occurrence of the accident. It further provides, that the insured shall also give a notice in writing to the company immediately if the insured shall have the knowledge of any impending prosecution inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. It will again make the intention clear that the immediate action is contemplated in respect of an accident occurring to the vehicle.
15. We find, that the second part of Condition No. 1 deals with the „theft or criminal act other than the accident‟. It provides, that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and co- operate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police appears to be that if the police is immediately informed about the theft or any criminal act, the police machinery can be set in motion and steps for recovery of the vehicle could be expedited. In a case of theft, the insurance company or a surveyor would have a limited role. It is the police, who acting on the FIR of the insured, will be required to take immediate steps for tracing and recovering the vehicle. Per contra, the surveyor of the insurance company, at the most, could ascertain the factum regarding the theft of the vehicle.
16. It is further to be noted that, in the event, after the registration of an FIR, the police successfully recovering the vehicle and returning the same to the insured, there would be no occasion to lodge a claim for compensation on account of the policy. It is only when the police are not in a position to trace and recover the vehicle and the final report is lodged by the police after the vehicle is not traced, the insured would be in a position to lodge his claim for compensation. As observed by the bench of two learned Judges in the case of Om Prakash (supra), after the vehicle is stolen, a person, who lost his vehicle, would immediately lodge an FIR and the immediate conduct that would be expected of such a person would be to assist the police in search of the vehicle. The registration of the FIR regarding the theft of the vehicle and the final report of the police after the vehicle is not traced would substantiate the claim of the claimant that the vehicle is stolen. Not only that, but the surveyors appointed by the insurance company are also required to enquire whether the claim of the claimant regarding the theft is genuine or not. If the surveyor appointed by the insurance company, upon inquiry, finds that the claim of theft is genuine then coupled with the immediate registration M. B. Desai C-21-14 Page 14 of 26 of the FIR, in our view, would be conclusive proof of the vehicle being stolen.
17. That the term „cooperate‟ as used under the contract needs to be assessed in facts and circumstances. While assessing the „duty to co- operate‟ for the insured, inter alia the Court should have regards to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of „duty to cooperate‟ of the insured.
18. We concur with the view taken in the case of Om Prakash (supra), that in such a situation if the claimant is denied the claim merely on the ground that there is some delay in intimating the insurance company about the occurrence of the theft, it would be taking a hyper technical view. We find, that this Court in Om Prakash (supra) has rightly held that it would not be fair and reasonable to reject genuine claims which had already been verified and found to be correct by the investigator.
19. We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Actaims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction. We find, that in Om Prakash (supra) this Court has rightly held that mere delay in intimating the insurance company about the theft of the vehicle should not be a shelter to repudiate the insurance claim which has been otherwise proved to be genuine."
10.4 I (2020) CPJ 103 (NC) in case of BMW India Pvt. Ltd. vs. Mukul Agrawal & Ors.
In this case the intimation was delayed by 12 days but National Commission has allowed the compensation and rejected the contention of the Insurance company.
11. ld. advocate for the claimant has cited following judgments but the ratio laid down in that judgments are covered by the discussion above therefore, we are not repeating the discussion on the same point.
Sr. Details of Citation II (1997) CPJ 451 (UP) in case of Deep Ram Bhat Vs. United 1 India Insurance Co. Ltd.
2 I (2008) CPJ 19 (Karnataka) in case of Suhas Bhagwant M. B. Desai C-21-14 Page 15 of 26 Halkare Vs. New India Assurance Co. Ltd & Ors.
Copy of the relevant Pages of IC-72 Book of Motor Insurance 3 Published by Insurance Institute of India I -2020-CPJ-93-SC in case of Saurashtra Chemicals Ltd. Vs. 4 National Insurance Co. Ltd 11.1 Ld. advocate for the respondent has cited following judgments.
Sr. Judgment Citation
Bipinbhai Shankarbhai Patel vs. New RP No. 1595/2015
1
India Assurance Co. Ltd. (NCDRC)
V. A. Sreekumar v. New Assurance Co. RP No. 3732/2017
2
Ltd. (NCDRC)
Oriental Ins. Co. Ltd. v. Kamal Tours & III (2011) CPJ 39
3
Travels (NC)
4 Didar Singh v. Reliance Gen. Ins. Co. Ltd. III (2014) CPJ I (NC)
BhartiAXA General Ins. Co. Ltd. v. Nirmal RP No. 3373/2018 5 Singh (NCDRC) RP No. 2479/2015 6 Reliance Gen. Ins. Co. Ltd. v. Jai Prakash (NCDRC) RP No. 2111/2019 7 Prashant v. United India Ins. Co. Ltd.
(NCDRC)
Ravneet Singh Bagga v. M/s. KLM Royal III (1999) CPJ 28
8
Dutch Airlines (SC)
9 Indigo Airlines v. Kalpana Rani Debbarma I (2020) CPJ 63 (SC)
The above judgments are delivered by the National Commission wherein, the claims were rejected on the ground of delay intimation to the insurance company but, the above two judgments are not applicable to the present case because the Hon‟ble Supreme Court has held in above discussed judgments in para (10) that delay in intimation is not ground for rejection of the claim by insurance company.
12. From the above documentary evidence, it appears that the incident was took place on 24.5.13 at about 22.30 O‟clock. Someone has intimated to the police and the station diary entry no. 2 was made to that effect. Someone has also informed to the fire brigade of the Municipal Corporation on the same day.
12.1 It is the case of the complainant that the opponent no. 2 is the agent of the opponent no. 1 therefore, they have intimated to the M. B. Desai C-21-14 Page 16 of 26 opponent no.2. Thereafter, opponent no. 2 has intimated by mail to the opponent no.1. It is also stated and evidence produced to the effect that the car was brought to the workshop of the opponent no. 2 on the very next day.
12.2 Considering the ratio laid down in the above referred judgments, the insurance company cannot repudiated the claim on the ground of delay intimation. The role of the police is more crucial to find out vehicle. If police is informed in time claim/incident can be said to genuine hence, claimant is entitled for compensation.
Insurable Interest:
13. Ld. advocate for the complainant has submitted that the claimant is not insurable interest in the vehicle and therefore, he is not entitled for compensation. He has shown the documentary evidence as under:
13.1 That the insurance company has conducted the investigation by appointing the surveyor who has submitted the report on 10.8.13 (page 49-52). Perusing the subject survey report, the surveyor has made conclusion as under:
"Conclusion : All the above finding are based on enquiries made with insured Mr. Rajesh Agrawal, We feel that the insured is not the present owner of IV, insured had already sold IV on Sep, 2012 to Mr. Milesh Panchal and the vehicle caught in fire on 24.5.13 at Vadodara and same time vehicle was not in possession of Mr. Rajesh Agarwal same insured confirms in his written statement and video Recording.
We also get the Bank Statement of insured and confirmed that two transaction of 5 Lac wide Chq No 368901/368902 were paid by Mr.Milesh Panchal to insured on dated 11-Sep-12 and 12-Sep-13 against vehicle sale transaction.M. B. Desai C-21-14 Page 17 of 26
We also confirmed that Mr.Milesh Panchal had a business of vehicle sale-purchase in named of M/s Exotic Motors at Vadodara.
We confirm that on dated 24-May-13 Insured friend Son Mr Hardik Panchal took vehicle to Lehri Pura, New Rd, Nr. Sadhana Talkies, Vadodara along with his wife and after some time suddenly vehicle got caught in fire due to some shot circuit and burnt from Engine Room.
As per verbal discussion with pedestrian/witness Mr. Sachin we conclude that vehicle fire loss was genuine but at the of accident vehicle in possession of Mr. Milesh Panchal and insured sold his vehicle him and same was confirm by insured Mr. Rajesh Agarwal & Mr.Milesh Panchal and due to friendly relation they do not made any sale agreenitne of vehicle.
We also conclude that insured tried to hide the material fact of loss and misguide the insurer for claim settlement process as vehicle was sold out by insured to his friend.
So in this claim there is No Insurable Interest on the Date of Loss and No liability arise from insurer side hence claim should be repudiated.
The report is being issued without prejudice, Strictly Confidential and Strictly for the purpose of Insurance Company claims settlement process only."
13.2 The surveyor has also recorded the statement on 6.8.13 produced at page no. 59 of the claimant, Rajeshbhai Agrawal. Wherein, he is stated that the agreement of sale of the car was done by him thereafter it was cancelled by Mileshkumar Panchal.
13.3 The surveyor has also recorded the statement Mr. Mileshkumar Panchal dated 27.8.13 which is produced at page 56, wherein he has stated that he was agree to purchase the car for Rs. 25,00,000/- out of M. B. Desai C-21-14 Page 18 of 26 which Rs. 10,00,000/- was given thereafter the agreement was cancelled.
13.4 Surveyor has also recorded the statement of Hardik Panchal which is produced at page no. 58, wherein, he has stated that the time of accident that is on 24.5.13 the possession of the car with him.
13.5 Opponent has also produced the bank statement of the transaction between the complainant and person who is made agreement of sale of car. The said bank statement produced at page 63 to 65 wherein, the transaction of Rs. 10,00,000/- between the claimant and Mr. Panchal is shown.
13.6 The surveyor has also produced the receipt of Rs. 4,00,000/-, Rs. 3,00,000/- and Rs. 3,00,000/- at page 66, 67 and 68 respectively. These receipt are issued by Milesh Panchal to the complainant. This is part consideration of the car.
14 ld. advocate for the complainant has relied upon following judgments on the point of insurable interest.
14.1 I (2019) ACC 49 (SC) in case of Prakash Chand Daga vs. Saveta Sharma & Ors. wherein, it is held as under:
"8. In the decision in Naveen Kumar (supra) the legal position was adverted to and this Court observed as under:
"13. The consistent thread of reasoning which emerges from the above decisions is that in view of the definition of the expression "owner" in Section 2(30), it is the person in whose name the motor vehicle stands registered who, for the purposes of the Act, would be treated as the "owner". However, where a person is a minor, the guardian of the minor would be treated as the owner. Where a motor vehicle is subject to an agreement of hire purchase, lease or hypothecation, the person in possession of the vehicle under that agreement is treated as the owner. In a situation such as the present where the registered owner has purported to transfer the vehicle but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of liability.M. B. Desai C-21-14 Page 19 of 26
Parliament has consciously introduced the definition of the expression "owner" in Section 2(30), making a departure from the provisions of Section 2(19) in the earlier 1939 Act. The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the Registering Authority. To hold otherwise would be to defeat the salutary object and purpose of the Act. Hence, the interpretation to be placed must facilitate the fulfilment of the object of the law. In the present case, the first respondent was the "owner" of the vehicle involved in the accident within the meaning of Section 2(30). The liability to pay compensation stands fastened upon him. Admittedly, the vehicle was uninsured. The High Court has proceeded upon a misconstruction of the judgments of this Court in Reshma (2015)3 SCC 679 and Purnya Kala Devi (2014) 14 SCC 142.
14. The submission of the petitioner is that a failure to intimate the transfer will only result in a fine under Section 50(3) but will not invalidate the transfer of the vehicle. In T.V. Jose (2001)8 SCC 748, this Court observed that there can be transfer of title by payment of consideration and delivery of the car. But for the purposes of the Act, the person whose name is reflected in the records of the Registering Authority is the owner. The owner within the meaning of Section 2(30) is liable to compensate. The mandate of the law must be fulfilled."
9. The law is thus well settled and can be summarised:-
"Even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person ... ... ... Merely because the vehicle was transferred does not mean that such registered owner stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person." (P. P. Mohhmadd vs. K. Rajappan & Ors. (2008) 17 SCC 624 para 4) 14.2 I (2018) ACC 549 (SC) in case of Navin Kumar vs. Vijay Kumar and Ors.
This judgment is referred in the judgment of Prakash Chand Duga (Supra) therefore, we have not discuss this judgment.
M. B. Desai C-21-14 Page 20 of 2614.3 IV (2016) CPJ 355 (NC) in case of Om Prakash vs. Bajaj Allianz Gen. Ins. Co. Ltd. wherein, it is held as under:
"Based on the discussion above, it is clear that the impugned order passed by the State Commission is based on an erroneous interpretation of the facts and legal provision of the subject. There is absolutely no doubt that the ownership of the vehicle stood in the name of the complainant and the insurance policy was also in his name on the date of the accident, and the transfer deed made by the complainant in favour of his son-in-law stood revoked much before the accident. The impugned order is therefore, set aside. The order passed by the District Forum is upheld being valid in the eyes of law. There shall be no order as to costs."
14.4 IV (2013) CPJ 22A (CN) (GUJ.) in case of Hasambhai Musabhai Abda vs. ICICI Lombard Gen. Ins. Co. Ltd. wherein, it is held as under:
"In Insurance parlance sale of vehicle is to be complete when name of purchaser is transferred in RC Book. In case before us the purchaser has not paid installments and not got termination of H.P. Hence, question of Sec.2(7) of Sale of goods Act does not apply. Insurance policy recognizes ownership based on RC Book and as per M.V. Act, 1988 and not as per sale of goods Act. Even CR 17 of LMT reads 'transfer of package policy in the name of the transferee can be done only on getting acceptable evidence of sale owner has not produced any such evidence as there is no acceptable transfer".
14.5 LAWS (SC) 2020 6 35 (SC) in case of Surendra Kumbar Bhilve vs. New India Assurance Co. Ltd. wherein, it is held as under:
"31. In our considered opinion, Sections 19 and 20 of the Sale of Goods Act, 1930, which deal with the stage at which the property in movable goods passes to the buyer, is of no assistance to the Insurer. There can be no doubt that property in a specific movable property is transferred to the buyer at such time as parties to the contract intend it to be transferred, provided such immovable property is free to be transferred, and/or in other words capable of being transferred.
32. If there is an impediment to the transfer, as in the instant case, where „No Objection‟ of the financier bank was imperative for transfer of the said truck, there could be no question of transfer of title until the impediment were removed, for otherwise the contract for transfer would be injurious to the financier bank, immoral, unlawful and void under Section 10 read with Sections 23 and 24 of the Contract Act, 1872.M. B. Desai C-21-14 Page 21 of 26
33. It was thus, an implicit condition of the agreement for transfer of the said truck, that the transfer would be complete only upon issuance of „No Objection" by the financier bank and upon compliance with the statutory requirements for transfer of a motor vehicle.
34. The contract in this case, could not possibly have been an unconditional contract of transfer of movable property in deliverable state, but a contract to transfer, contingent upon „No Objection" from ICICI Bank, and compliance with the statutory provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder. Sections 19 and 20 of the Sale of Goods Act are not attracted.
36. It would also be pertinent to note the difference between the definition of owner in Section 2(30) of the Motor Vehicles Act, 1988 and the definition of owner in Section 2(19) of the Motor Vehicles Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Under the old Act „owner‟ meant the person in possession of a motor vehicle. The definition has undergone a change. Legislature has consciously changed the definition of „owner‟ to mean the person in whose name the motor vehicle stands.
41. It is difficult to accept that a person who has transferred the ownership of a goods carriage vehicle on receipt of consideration, would not report the transfer or apply for transfer of registration, and thereby continue to incur the risks and liabilities of ownership of the vehicle under the provisions of law including in particular, under the Motor Vehicles Act, 1988 and other criminal/penal laws.
47. In Pushpa @ Leela And Others vs. Shakuntala and Others3, the question before this Court was, whether liability to pay compensation to third parties as determined by the Motor Vehicles Accidents Claims Tribunal in case of an accident, was that of the purchaser of the vehicle alone, or whether the liability of the recorded owner of the vehicle was coextensive, and from the recorded owner it would pass on to the Insurer of the vehicle. This Court found that the person whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation, having regard to the provisions of Section 2(30)read with Section 50 of the Motor Vehicles Act, 1988 and since an insurance policy had been taken out in the name of the recorded owner, he was indemnified and the Insurer would be liable to satisfy the third party claims.
49. The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle M. B. Desai C-21-14 Page 22 of 26 is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident.
52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another 5 delay in 5 (2017) 1 SCC 724 intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims.
15. We have considered the evidence on record and ratio discussed as above and come to the conclusion that the complainant has sold orally his car to the Mr. Milesh Panchal for the consideration of Rs. 25,00,000/- and there is no written agreement between the parties. The amount of Rs. 10,00,000/- was paid by the proposed purchaser, the documentary evidence were collected by the investigator officer regarding this transaction. Thereafter, the said transaction/agreement was cancelled and the amount was return by the Mr. Milesh Panchal to the complainant. No efforts were made to transfer the name of the owner of the car in the RTO record. At the time of accident the name of owner of the car as per record of RTO is of the complainant.
16. As ratio laid down by Hon‟ble Supreme Court in case of Surendra Kumbar Bhilve (supra) if, there is a impediment to the transfer, there could be no question of transfer of title until the impediment was remove, for otherwise the contract for transfer was would be injurious to the financer, immoral and unlawful and void under section 10, 23 and 24 of the Contract Act. If registration continue to remain in the name of owner and when vehicle is insured in the name of owner, insurance company was remain liable to compensate any damage.
17. In view of the ratio laid down in above referred judgments the complainant was the owner on the date of incident and the insurance M. B. Desai C-21-14 Page 23 of 26 policy was in existence therefore, it cannot be denied that the consumer has no insurable interest. Therefore, the claimant is entitled for compensation.
Quantum:
18. The claimant has claimed in prayer clause for Rs. 21,12,000/- with 18% interest.
It is stated in para 8 of the complaint that after inspecting the damage car, repairers have given estimate of repairing of Rs. 17,35,000/- the estimates are produced at annexure C at page 7-12. As per the terms and conditions of the policy at page 41 following condition is incorporated.
"The insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms and conditions of the policy, exceeds 75% of the IDV of the vehicle"
Considering the amount of insurable interest of Rs. 21,12,000/- and repairing cost of Rs. 17,35,000/-. It appears that more than 75% repairing cost is assessed therefore, for calculating the compensation the car is required to be treated as constructive total loss.
19. The claimant has produced copy of policy at page 4 wherein, the amount of Rs. 21,12,000/- is shown as total sum insured.
19.1 The claimant has produced the copy of certificate of registration of Motor Vehicle in form no. 33 at page 22 that is copy of R.C. book wherein, the date of registration is mentioned as 30.9.2011 and the incident was taken place on 24.5.13. Therefore, the car was used only for 1 years and 7 months.
19.2 The claimant has filed application at exh. 9 requesting to allow the complainant for getting assessed and sale out the salvage. ld. advocate for the respondent has made an endorsement that "received copy of I will filed upon receiving of instruction from my client" no reply is filed to this effect.
M. B. Desai C-21-14 Page 24 of 2619.3 The claimant has produced terms and conditions of the private car package policy at page 40-46. On perusing the same at page 41 it is stated as under:
"The insured declared value (IDV) of the vehicle will be deemed to be the „SUM INSURED‟ for the purpose of this policy which is fixed to the commencement of each policy period for the insured vehicle.
The IDV of the vehicle (and accessories if any fitted in the vehicle) is to be fixed on the basis of the manufacturer‟s listed selling price of the brand and model as the vehicle insured at the commencement of insurance/renewal and adjusted for depreciation. (As per schedule below) The schedule of the age wise depreciation as shown below is applicable for the purpose of Total loss/constructive Total loss (TL/CTL) claims only.
AGE OF VEHICLE % OF DEPRECIATION FOR FIXING IDV Not exceeding 6 months...........................................5% Exceeding 6 months but not exceeding one year.......15% Exceeding 1 years but not exceeding 2 years..............20% .......
19.4 The investigators report is produced at page 49-52 wherein, nothing has been mentioned about the damage caused to the car.
20. Considering the total sum insured amount of Rs. 21,12,000/- and terms and conditions as regard to the depreciation of vehicle that is 20% as the vehicle is used for more than one year and less than two year. Therefore, depreciation is require to be deducted from the IDV. (21,12,000-20% (Rs. 4,22,400)= 16,89,600/-) Now, as per the judgment of the Hon‟ble National Commission in case of Shree Ram Gen. Ins. Co. Ltd (supra) in para 9 it is held that the policy condition has been clearly violated and that being a important condition 60% IDV was allowed. (16,89,600/--40% (6,75,840/-) =10,13,760/-. Therefore, the claimant is entitled for Rs. 10,13,760/-.
21. In view of the above said documentary evidence on record and ratio laid down in the various judgments as discussed above as well as delay M. B. Desai C-21-14 Page 25 of 26 in intimation to the insurance company but the complainant is entitled for the compensation. We have already rejected the argument regards to the insurable interest.
22. Considering the contents of the complaint, documentary evidence on record, arguments advanced by the ld. Advocate for the parties, ratio laid down in the above referred judgments, we are of the view that the complainant has made out his case for compensation and opponent have shows deficiency in service. Therefore, complaint is require to be allowed. Hence, following final order is passed.
ORDER
(i) The complaint No. 21 of 2014 is partly allowed.
(ii) Opponent is ordered to pay Rs.10,13,760/- (Rupees Ten Lac Thirteen thousand Seven Hundred Sixty only) to the complainant as compensation amount with interest at the rate of 9% from the date of filing of the complaint till its realization.
(iii) Opponent is ordered to pay Rs.25,000/- (Rupees Twenty Five Thousand Only) to the complainant as costs of the complaint and shall bear its own costs if any.
(iv) Opponent shall comply with this order within 60 days from the date of this order, on failing the complainant will be entitled addition cost of Rs.5,000/- (Rupees Five Thousand Only).
(v) Copy of the judgment and order be provided to the parties free of costs.
Pronounced in the open Court today on 24th February, 2021.
[U. P. Jani] [Mr. V. P. Patel]
Member President
M. B. Desai C-21-14 Page 26 of 26