State Consumer Disputes Redressal Commission
M/S Bharti Axa General Insurance ... vs M/S Karni Paints & Hardware Store on 26 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal No. : 19 of 2016 Date of Institution : 12.01.2016 Date of Decision : 26.02.2016 M/s Bharti Axa General Insurance Company Limited, SCO No.350-51-52, Sector 34A, Chandigarh, through its Authorized Signatory Ms.Shivali Sharma, available at Mercantile House, 7th Floor, 15, KG Marg, Connaught Place, New Delhi-110001. ......Appellant/Opposite Party No.1 V e r s u s M/s Karni Paints & Hardware Store, SCF-5, Sector 18C, Chandigarh through its Prop. Sanjay Kumar. ....Respondent No1/complainant M/s Emm Pee Motors (Pioneer Toyota Dealer), 177-H, Industrial Area-1, Chandigarh, through its Branch Manager. ....Respondent No.2/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Gaurav Bhardwaj, Advocate for the appellant.
Sh.S.R. Bansal, Advocate for respondent no.1.
Sh.Sukhwinder Singh, Manager (Admn.) for respondent no.2.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT Whether by misleading/concealing material facts, a complainant/consumer can get relief from Consumer Fora, is a core question, to be decided in this appeal.
This appeal is directed against an order dated 12.10.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum only), vide which, it accepted a complaint, filed by the complainant (now respondent no.1), against opposite party no.1 (now appellant).
In a complaint filed by respondent no.1/ complainant, it was alleged that he was owner of a car, bearing registration no.CH01AD-0376, which was insured with the appellant, upto 21.09.2014. The said car met with an accident, on 08.05.2014 and Daily Dairy Report (DDR) No.16, qua the accident, in question, was got registered, with the Police Station Basant Pura, District Patiala. It was specifically stated that respondent no.2/opposite party no.2 was impleaded as a necessary party to the complaint, being seller of the car, to respondent no.1. Intimation qua accident was also given to the appellant. However, despite report having been made by the Surveyor, claim for insurance was not settled, as a result whereof, legal notice dated 05.09.2014 Annexure C-3 was served upon the appellant and respondent no.2, but to no avail. Above act of the appellant compelled respondent no.1, to file consumer complaint bearing no.169 of 2015.
Upon notice, reply was filed by the appellant/ opposite party No.1, wherein it was admitted that the vehicle, in question, was insured with it. It was also admitted that the said vehicle, met with an accident, on 08.05.2014, and a DDR was recorded with the Police Station concerned. It was further stated that, on inspection of the vehicle, assessment of loss to the tune of Rs.7.50 lacs, on net salvage basis, by declaring the vehicle as total loss, was assessed by the Surveyor, however, when the matter was got investigated from M/s Royal Associates, it was found that respondent no.1 did not have insurable interest in the vehicle, as the same (vehicle) had already been sold to one Jasdeep Singh, before the accident took place. In these circumstances, respondent no.1 was not entitled to the claim for such amount.
Initially, opposite party No.2, put in appearance through Sh.S.S.Parmar, its Manager, before the Forum, but thereafter, none put in appearance, on its behalf, as a result whereof, it was proceeded against exparte vide order dated 07.07.2015.
The appellant and respondent no.1, led evidence, in support of their case.
The Forum after hearing Counsel for the appellant, respondent no.1 and on going through the evidence and record of the case, accepted the complaint, vide order under challenge, and granted following relief to respondent no.1, against the appellant/opposite party no.1:-
"In the light of above observations, we are of the concerted view that the Opposite Party No.1 is found deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua Opposite Party No.1 and dismissed against Opposite Party No.2. The Opposite party No.1 is directed as under:-
[a] To pay an amount of Rs.7.50 lacs as assessed by the Surveyor as per Motor Survey Report-Interim, dated 10.9.2014;
[b] To pay an amount of Rs.20,000/- to the complainant as consolidated amount of compensation for causing mental agony and harassment on account of deficiency in service;
[c] To pay litigation expenses to the tune of Rs.7,000/-
The above said order shall be complied within 45 days of its receipt by the Opposite Party No.1; thereafter, it shall be liable to pay an interest @18% per annum on the amount mentioned in sub-para [a] & [b] above, from the date of filing of the complaint till it is paid, apart from paying litigation expenses."
The appellant was directed to pay an amount of Rs.7.50 lacs, as per assessment made by the Surveyor towards loss caused to the vehicle plus (+) Rs.20,000/- as compensation and Rs.7,000/- as cost of litigation.
Feeling aggrieved, the instant appeal, has been filed by the appellant/opposite party No.1.
We have heard Counsel for the appellant, respondent no.1, Sh.Sukhwinder Singh, Manager (Admn.) of respondent no.2, and, have gone through the evidence, and record of the case, carefully.
By filing this appeal, it is specifically stated by the appellant that as per facts on record, especially investigation report dated 18.08.2014, got conducted through Royal Associates, Investigating and Detective Agency, respondent no.1 had no insurable interest in the vehicle, when the accident took place, on 08.05.2014. It was specifically stated that the car, in question, through respondent no.2, was purchased by one Jasdeep Singh, son of Beant Singh i.e. brother of Maninder Singh, (who was driving the car, when accident took place), on 08.05.2014. At the time of arguments, it was vehemently contended by Counsel for the appellant that as respondent no.1 through its Proprietor namely Sanjay Kumar, had already sold the vehicle to Jasdeep Singh, and sale was not reported to the appellant, as is mandatory under the provisions of proviso to GR 17 of India Motor Tariff, as such, respondent no.1 was not entitled to get insurance amount, qua the accident, against the car, in question. Above stand was specifically taken by the appellant, before the Forum also.
At the time of arguments on 02.02.2016, on perusal of entire record, this Commission passed the following order:-
"Service is complete.
Sh. S. R. Bansal, Advocate has put in appearance on behalf of respondent No.1 and filed his Vakalatnama, which is taken on record.
Sh. Sukhwinder Singh, Manager (Admn) has put in appearance on behalf of respondent No.2.
It is the positive case of respondent No.1 that at the time of accident, the car was being driven by one Maninder Singh, who is a close friend of Sh. Sanjay Kumar, Proprietor of respondent No.1. Above named person through his Counsel Sh. S. R. Bansal, Advocate is directed to give detail of any telephone call received from the said Maninder Singh between 03.05.2014 to 10.05.2014. Further directions are issued to respondent No.2 i.e. M/s Emm Pee Motors, to produce register/registers, photocopy of extract of which has been placed on record at Page 43 and 44 of the Forum, copy of which has been supplied to him. He shall also produce the detail of old cars sold by the above Company, starting from 1.4.2014 upto the end of that month. Sh. Sukhwinder Singh, Manager (Legal) states that as per extract of register at Page 43 of the record of Forum, entry qua car was made when the said car entered/went out from the workshop. An affidavit be filed as to what repair was effected on the said car on the date given in the said document. Further in the affidavit, it be also mentioned as to why entry of this car was made in another document, which starts with Sales Tracker Sheet".
Before the Investigating Agency, it was case of Sh.Sanjay Kumar, Proprietor of respondent no.1, that on the relevant date, the car was being driven by his friend Maninder Singh son of Beant Singh, to whom it was given for personal use. Whereas, to the contrary, as per statement made by Jasdeep Singh, brother of the above named driver, before the Investigating Agency, it came out that he (Jasdeep Singh) had purchased the said car, through respondent no.2, on 19.04.2014. Indication to that effect was also coming out from the documents placed on record, by the Investigating Agency i.e. photocopy of a register maintained by respondent no.2, showing entry and exit of the cars, in its premises. To know veracity of the statement made by Sanjay Kumar, Proprietor of respondent no.1, stating Maninder Singh as his close friend, his Counsel was directed to supply telephone call details exchanged between above named persons, between 03.05.2014 to 10.05.2014. Representative of respondent no.2 was also directed to produce register, showing entry and exit of the cars, from its premises. On 11.02.2016, on which date the case was adjourned, Counsel for respondent no.1 sought more time, to do the needful, in terms of order extracted above. On 24.02.2016, when arguments were heard, Counsel for respondent no.1, stated that no calls were exchanged between Maninder Singh and Sanjay Kumar, Proprietor of respondent no.1, as such, there is no record available qua any telephone call made. Sukhwinder Singh, a representative of respondent no.2, has placed on record, photocopy of one page of a register maintained by it (respondent no.2), to show entry and exit of cars, in its premises. At sr.no.102, the car in question was shown to have entered the premises of respondent no.2 on 25.03.2014 and left its premises on 19.04.2014. Above facts clearly indicate that defence taken by the appellant that before the date of accident, respondent no.1 had already sold the car on 19.04.2014 to one Jasdeep Singh, through respondent no.2, appears to be plausible.
It is an admitted fact that the car met with an accident on 08.05.2014. DDR bearing No.16 was got recorded qua above accident, in Police Station Basant Pura, Patiala, on 08.05.2014. In the above said report, it is stated by Maninder Singh, the driver, driving the car at the relevant time, that the car which met with an accident, is ownership of his friend. Friend's name is not mentioned therein. The Investigating Agency also recorded statement of one Jasdeep Singh, brother of Maninder Singh, who has categorically stated that on 19.04.2014, he had purchased the car in question, through respondent no.2, for his domestic use and on 07.05.2014, his brother Maninder Singh was driving the car, when it met with an accident. The Investigating Agency also recorded statement of Sanjay Kumar, Proprietor of respondent no.1, wherein it is stated that the car in question, is his ownership. Maninder Singh, who is resident of Mohali, was his close friend. He had given his car to Maninder Singh, for his personal use. It was specifically stated that the car was ownership of the Firm i.e. respondent no.1. The Investigating Agency got photographs of Jasdeep Singh and Sanjay Kumar, when they were signing their statements. The statements signed by them are also available on record, with the report submitted by the above said Detective Agency.
The sequence of events makes it very clear, as is reflecting from the statement made by Jasdeep Singh brother of the driver i.e. Maninder Singh, that the car was purchased by him, through respondent no.2, on 19.04.2014. The above fact is also corroborated from the extract of register maintained by respondent no.2, showing entry and exit of vehicles, in and from its premises. At sr. no.102, the car, in question, is shown to have entered into the premises of respondent no.2 on 25.03.2014 and driven out on 19.04.2014. The above fact is also corroborated by a fact that no telephone calls have been exchanged between Maninder Singh, the driver, his brother Jasdeep Singh and Sanjay Kumar, Proprietor of respondent no.1. As has been stated by Sanjay Kumar and Maninder Singh that they were close friends, it is worth natural that many calls might have exchanged between them, especially, when the car was borrowed and the time, when it met with an accident and thereafter. However, despite specific directions, details of telephone calls were not placed on record, by respondent no.1. Rather during arguments, Counsel for respondent no.1 frankly admitted that no such telephone calls were exchanged between above named two persons. Proprietor of respondent no.1 is running its business in Chandigarh, whereas, Maninder Singh is residing at Mohali. There is nothing on record to show that they were meeting each other regularly, as such, there was no necessity to talk on telephone with each other. From the facts mentioned above, we are bound to reach at a definite conclusion that the car was sold by respondent no.1 through respondent no.2, to one Jasdeep Singh on 19.04.2014.
As per proviso GR-17 of India Motor Tariff, it is a mandatory duty cast upon a purchaser, to send intimation to the appellant/insurance company, qua purchase of a car, so that insurable interest can be transferred in the name of the purchaser. The said provision reads thus:-
"On transfer of ownership, the Liability Only cover, either under a Liability Only Policy or under a Package Policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer, The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance."
There is nothing on record to show that any intimation qua sale of the car, in question, to Jasdeep Singh, was sent to the appellant. Men may lie but circumstances will not. The facts mentioned above clearly demonstrates that a false defence was taken by respondent no.1, to claim insurance amount from the appellant. As mentioned above, respondent no.1 had already sold its car and, therefore, has no insurable interest therein, when it met with an accident on 08.05.2014.
Jasdeep Singh and Maninder Singh were not made a party to the present litigation. In the case of Gawar Construction Company, Hisar Vs. United India Insurance Company Limited and another, Revision Petition No.3160 of 2013, decided on 30.01.2015, it was held by the National Commission that when a claimant had no insurable interest, the insurance company cannot be burdened with liability.
When coming to a Court/Fora, it is bounden duty of the complainant to say true facts. In the instant case, facts were blatantly concealed, such an attitude cannot be accepted. Those, who are not observing equity, cannot seek equity, from the Court/Fora. No relief can be granted to a person, who try to misuse the process of law.
The Forum below, when giving relief to respondent no.1, very conveniently chooses to ignore the investigation report, which clearly indicates that the vehicle was sold by respondent no.1, to one Jasdeep Singh, through respondent no.2, on 19.04.2014. It was only said that, as the ownership of car stands in the name of respondent no.1, at the time, when it met with an accident, the appellant is under an obligation to pay the claim amount. It was further said that there was no document on record, to prove sale of the vehicle, by respondent no.1 to anybody.
We feel that findings given by the Forum is not justified. There was ample evidence on record to show that the vehicle, in question, was sold by respondent no.1, to one Jasdeep Singh, on 19.04.2014, through respondent no.2. The stand taken up by respondent no.1 that he had given his car to Maninder Singh, his friend, as discussed in earlier part of this order, was not proved on record. The findings of the District Forum, in this regard, being perverse, need to be set aside.
No other point, was urged, by Counsel for the appellant, respondent no.1 and Sh.Sukhwinder Singh, Manager (Admn.) of respondent no.2.
In view of the above discussion, it is held that the order passed by the Forum, being not based on the correct appreciation of evidence, and law, on the point, is liable to be set aside.
For the reasons recorded above, the appeal, is accepted with no order as to costs. The order of the Forum is set aside. The consumer complaint filed by respondent no.1/complainant is dismissed, with no order as to costs.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
26.02.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg