State Consumer Disputes Redressal Commission
Trilok Chand Parakh vs B.M.The Oriental Insurance Co.Ltd. on 28 January, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/630
Instituted on : 28.10.2016
Trilok Chand Parakh,
S/o Shri Jeevan Chand Parakh, Aged 46 years,
Main Road,
Bhaanpuri, District Bastar (C.G.) ..... Appellant
Vs.
Branch Manager,
The Oriental Insurance Company Limited,
Hotel Laxman Avenue Campus, Mandi Road,
Jagdalpur, District Bastar (C.G.) .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Deepak Diwan, for the appellant.
Shri P.K. Paul, for the respondent.
ORDER
Dated : 28/01/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 29.08.2016 (in the impugned order, the date is mentioned as 29.09.2016, but the President and Member of the District Forum, below their signatures mentioned the date as 29.08.2016. In the order sheet also the date of order is mentioned 29.08.2016. It appears that actually the District Forum has passed the order on 29.08.2016, but it has been wrongly mentioned in the order as 29.09.2016), passed by the District Consumer Disputes Redressal Forum, Bastar at Jagdalpur (C.G). (henceforth "District Forum" for short), in // 2 // Complaint Case No.CC/23/2016. By the impugned order, learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is registered owner of Maruti Swift bearing registration No.CG.17-C-2257, which was insured with the O.P. for the period from 20.08.2015 to 19.08.2015 under Insurance Policy No.192001/31/2015/2231. On 02.05.2015 near Village Kotpad (Orissa), the vehicle in question met with an accident. First Information No.135/2015 was registered in Police Station, Kotpad under Section 279 and 337 IPC. The vehicle was taken to Sky Automobiles Maruti Suzuki Show Road, Jagdalpur for repairing work. The complainant obtained estimate and after repairing of the vehicle he submitted claim form along with documents before the O.P., but O.P. repudiated the claim of the complainant on the ground that the vehicle was transferred to Sanjay Kumar Jain and at the time of accident, the complainant had no insurable interest in the vehicle. At the time of accident, the complainant was registered owner of the vehicle and he was having insurable interest in the vehicle, therefore, the O.P. wrongly repudiated the claim of the complainant. The complainant is entitled to get compensation from the O.P. Hence, the complainant filed instant complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
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3. The O.P. filed its written statement and averred that at the time of the accident, the complainant was not owner of the vehicle in question and the same was transferred to Sanjay Jain. The complainant did not give intimation to the O.P. regarding the transfer of the vehicle to Sanjay Jain. Thus, the complainant violated terms and conditions of the insurance policy, therefore, the O.P. has rightly repudiated the claim of the complainant. The complainant was not having insurable interest in the vehicle at the time of accident, therefore, the complainant is not entitled to get any compensation from the O.P. The complaint is liable to be dismissed.
4. The complainant has filed documents. Document No.1 is Certificate of Registration, document No.2 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B, document No.3 is First Information Report (Under Section 154 Cr. P.C.), document No.4 is Service Estimate, document No.5 is Motor Claim Form.
5. The O.P. has filed documents. The documents are statement of Trilok Chand Parakh dated 16.09.2015, statement of Sanjay Kumar Jain dated 18.09.2015, statement of Rajkishore Gupta dated 18.09.2015, statement of Gurudev Singh dated 18.09.2015, intimation regarding claim dated 10.08.2015, Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy - Zone B, terms and conditions of Private Car Package Policy, letter No.298/RTI/L.M.V./RTA/2016 dated 09.05.2016 sent by // 4 // Public Information Authority Cum Regional Transport Authority, Bastar Division, Jagdalpur to Shri Amrendra Kumar Dixit.
6. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint by the impugned order.
7. Shri Deepak Diwan, learned counsel appearing for the appellant (complainant) has argued that the vehicle in question was duly insured with the respondent (O.P.) and the insurance policy was issued in favour of the appellant (complainant). At the time of accident, the appellant (complainant) was owner of the vehicle in question, therefore, he was having insurable interest in the vehicle. The impugned order passed by the District Forum, is erroneous and learned District Forum did not consider the plea taken by the appellant (complainant) and without going through the evidence produced by the appellant (complainant), the District Forum passed the impugned order, therefore, the same is liable to be set aside. The appeal may be allowed and the appellant (complainant) is entitled to get the relief, as prayed by him in the complaint.
8. Shri P.K. Paul, learned counsel for the respondent (O.P.) has argued that learned District Forum has dismissed the complaint on the ground of delayed intimation, but in the instant case, at the time of accident, the complainant had no insurable interest in the vehicle. The complainant has transferred the vehicle to Sanjay Jain, 5 months prior to the date of // 5 // accident and the vehicle was handed over to Sanjay Jain. The complainant himself pleaded that his relative Sanjay Jain had taken the vehicle. It shows that the vehicle was in possession of Sanjay Jain. The Public Information Officer Cum Regional Transport Authority, Bastar Division, Jagdalpur (C.G.) sent letter dated 09.05.2016 giving intimation to Amrendra Kumar Dixit, Advocate under Right to Information Act, 2005. In the said letter, it is specifically mentioned that vehicle bearing registration No.C.G.17-C-2257 (LMV Car) transferred to Sanjay Kumar Jain S/o Shri Ganeshmal Ji Jain, House No.203/1, Pujaripara, Village - Ulnar, Tehsil Bakawand District Bastar (C.G.). The said vehicle was registered in the name of Sanjay Kumar Jain on 06.08.2015. The statements of the complainant Trilok Chand Parakh, Sanjay Kumar Jain, Rajkishore Gupta and Gurudev Singh, have been filed by the respondent (O.P.). On the basis of above documents, it appears that the vehicle was transferred to Sanjay Jain, therefore, at the time of accident, the appellant (complainant) had no insurable interest in the vehicle. The District Forum has rightly dismissed the complaint. On the above ground, the complaint of the appellant (complainant) is liable to be dismissed. The appellant (complainant) is not entitled to get any compensation from the respondent (O.P.). The appeal may be dismissed. He placed reliance on Revision Petition No.4126 of 2014 - The New India Assurance Company Limited Vs. Shri Surendra Kumar Bhilawe decided by Hon'ble National Commission vide order dated 23.02.2015 and Appeal No.FA/2015/645 - Om Shrivas Vs. Manager, // 6 // United India Insurance Company Limited, decided by this Commission vide order dated 22.03.2016.
9. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
10. The appellant (complainant) has pleaded in para 3 of the complaint that vehicle was taken by his relative Sanjay Jain to Orissa for his personal work and on 02.08.2015, the vehicle met with accident. In the complaint, the appellant (complainant) has not specifically pleaded regarding the transfer of the vehicle, but the respondent (O.P.) has filed statements of the appellant (complainant) Trilok Chand Parakh, Sanjay Kumar Jain, Rajkishore Gupta and Gurudev Singh and letter No.298/RTI/L.M.V./RTA/2016 dated 09.05.2016 sent by Public Information Authority Cum Regional Transport Authority, Bastar Division, Jagdalpur to Shri Amrendra Kumar Dixit, Advocate. In the above letter it is mentioned that "the vehicle bearing registration No.C.G.17-C-2257 (LMV Car) transferred to Sanjay Kumar Jain S/o Shri Ganeshmal Ji Jain, House No.203/1, Pujaripara, Village - Ulnar, Tehsil Bakawand District Bastar (C.G.). The said vehicle was registered in the name of Sanjay Kumar Jain on 06.08.2015." In the statement of the Trilok Chand Parakh, he stated that he had sold the vehicle bearing registration No.C.G.17-C-2257 to Sanjay Kumar Jain 5 months prior to the date of // 7 // accident, but the installments were due, therefore, the same was not transferred in the name of Sanjay Kumar Jain. At present, in the R.C. Book, the name of Sanjay Kumar Jain has been entered. Sanjay Kumar Jain also stated that he purchased the vehicle bearing registration No.C.G.17-C- 2257 from his friend Trilok Chand Parakh, 5 months prior from the date of accident, but due to non-payment of installments, the vehicle could not be registered in his name. On the basis of above documents, it appears that the said vehicle was already transferred by the appellant (complainant) to Sanjay Kumar Jain 5 months prior to the date of accident.
11. In Complete Insulations (P.) Ltd. Vs. New India Assurance Co. Ltd. Vs. New India Assurance Co. Ltd., 1996 (1) T.A. 340 (SC), Hon'ble Supreme Court, has observed thus :-
"10. ..............It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of Insurance together with the policy of Insurance described therein "shall be deemed to have been transferred in favour of the person to who the motor vehicle is transferred."
If the Policy of Insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle....."
12. In Oriental Insurance Co. Ltd. vs. Mushtaq Khan & Anr. II (2015) CPJ 145 (NC), Hon'ble National Commission has observed thus :-
// 8 // "Learned Counsel for the petitioner submitted that as vehicle as well as insurance policy not transferred in the name of complainant at the time of accident, petitioner was not liable to make any payment towards claim. In support of his contention he has placed reliance on judgment delivered by me reported in I (2014) CPJ 493 (NC) - Sandeep Gupta v. United India Insurance Co. Ltd. & Anr., in which it was held that if transferee fails to inform Insurance Co. about transfer of registration certificate in his name and policy is not transferred in his name, Insurance Company cannot be held liable to pay claim in case of own damage of vehicle. Same view has been taken by me in I (2014) CPJ 128 (NC), New India Assurance Co. Ltd. vs. Ashok Thakur. Learned Counsel for the respondent placed reliance on judgment of this Commission in IV (2007) CPJ 289 (NC), Shri Narayan Singh v. New India Assurance Co. Ltd., on which State Commission has also placed reliance in which it was observed that benefits under policy automatically accrue to new owner on transfer of vehicle. In the aforesaid case, accident occurred on 2.8.1995, but after 30.06.2012, as per GR 17, subsequent purchaser was under an obligation to get the vehicle and insurance policy transferred in his name within 14 days from the date from the date of transfer of registration certificate in his name for claiming damages to the vehicle. In the case in hand, neither registration certificate was transferred in the name of complainant, nor insurance policy stood transferred in the name of complainant at the time of accident and in such circumstances, in the light of aforesaid judgments complainant was not entitled to any claim regarding damages to the vehicle and petitioner has not committed any deficiency in repudiating claim and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed."
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13. In Cholamandalam MS General Insurance Co. Ltd. vs. Naresh Laxminarayan Bhutada & Anr. II (2015) CPJ 167 (NC), Hon'ble National Commission has observed thus :-
"9. Though the transfer was made in May, 2007, no application was made before the RTO for transfer of ownership. Section 50(1)(b) clearly lays down, as under :-
"the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration."
14. In the case of New India Assurance Co. Ltd. v. Dalip Kumar, IV (2011) CPJ 579 (NC), Hon'ble National Commission has observed that "transferee fails to inform Insurance Company about transfer of Registration Certificate in his name - Policy is not transferred in name of transferee then Insurance Company cannot be held liable to pay claim in case of own damage of vehicle - Insurance Company justified in repudiating the claim."
15. In the case of Oriental Insurance Co. Ltd. v. Kamal Tours and Travels, III (2011) CPJ 39 (NC), Hon'ble National Commission has observed thus :-
"9. It is not in dispute that Respondent had got the vehicle insured with the Petitioner / Insurance Company which was involved in an // 10 // accident causing loss of the vehicle and which was assessed by the Petitioner's Surveyor at Rs.2,57,455/-. There is, however, credible documentary evidence in the instant case that at the time when the accident took place, insuree had already sold the vehicle to another person. He also did not inform the Petitioner/Insurance Company regarding the sale of vehicle nor was the vehicle transferred in the name of new owner. As stated by the Counsel for Petitioner, in a case under similar circumstances, this Commission has given a clear ruling that if a vehicle is sold by the insuree to another person without intimation to the Insurance Company then in case of any claim covered under the insurance policy, the insuree ceases to have an insurable interest."
16. In the case of Mushtaq Mohd. & Anr. v. National Insurance Company Ltd., I (2013) CPJ 64 (NC), Hon'ble National Commission, observed that "complainant failed to transfer insurable claim within 14 days from the date of registration, transferee had no insurable interest at the time of accident. He had no locus standi to file the claim."
17. In Revision Petition No.4126 of 2014 The New India Assurance Co. Ltd. vs. Shri Surendra Kumar Bhilawe (Supra), Hon'ble National Commission has observed thus :-
"8. Section 19 of the Sale of Goods Act, 1930, which deals with the stage when the property (title) in movable property passes to the buyer reads as under :-
"19. Property passes when intended to pass (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it be transferred.
// 11 // (2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case.
(3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer."
It would thus be seen that the title in a movable property is transferred to the purchaser only at the time the parties to the transaction intend it to be so transferred. The intention of the parties would be gathered primarily from the terms of the contract coupled with the conduct of the parties and the circumstances of each case.
9. Section 20 of the Act, which deals with passing of property in the good which are in a deliverable state reads as under :-
"20. Specific goods in a deliverable state. - Whether there is an unconditional contract for the sale of specific goods in a deliverable stage, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of the payment of the price or the time of delivery of the goods, or both, is postponed.
Thus, the property i.e. ownership of vehicle in question passed from the previous owner to the complainant, on execution of the sale agreement dated 02.04.2004, since, there is nothing on record to indicate that the parties intended to postpone the passing of the property in vehicle in question to the complainant, till the time it was got registered in her name in the record of the RTO.
10. In our view, when the owner of a vehicle sells the said vehicle to another person, and executes a sale letter, without in any manner postponing the passing of title/property in the vehicle, the ownership in the // 12 // vehicle passes to the purchaser on execution of sale letter itself. The delivery of the vehicle only reinforces the title which the purchaser gets to the vehicle on execution of the sale letter in his favour. As far as transfer of the vehicle in the name of the purchaser in the record of the RTO is concerned, that is a requirement for the purpose of the Motor Vehicle Act but that does not postpone the transfer of the ownership in the vehicle to the purchaser till the time the vehicle is transferred in his name in the purchaser in the record of the concerned RTO."
18. Looking to the statements of the appellant (complainant) Trilok Chand Parakh and Sanjay Kumar Jain and documents, we find that it is clearly established that the appellant (complainant) had transferred the vehicle in question to Sanjay Kumar Jain 5 months prior to the date of accident and the appellant (complainant) as well as Sanjay Kumar Jain had not given intimation to the respondent (O.P.) regarding the transfer of the said vehicle. The vehicle in question is a movable property and the provisions of Sale of Goods Act, 1930 applies in the case of sale of the vehicle, and, therefore, when the vehicle in question was delivered to new owner and the new owner took possession of the vehicle, then the sale of movable property was complete. The vehicle in question was transferred by the appellant (complainant) to Sanjay Kumar Jain, therefore, it was necessary for the appellant (complainant) as well as Sanjay Kumar Jain to have made a prayer to the respondent (O.P.) as per provisions of G.R. 17 as well as under Sub Clause (2) of Section 157 of the Motor Vehicles Act, 1988 for change in the name of the insured in the // 13 // insurance policy. No such prayer has been made. Thus, the appellant (complainant) has not become insured of the respondent (O.P.) therefore, the appellant (complainant) was not having insurable interest in the vehicle in question, hence, the respondent (O.P.) has rightly repudiated the claim of the appellant (complainant) and it has not committed any deficiency in service.
19. Although, the learned District Forum did not consider the above aspect of the matter and dismissed the complaint on the ground of delay. The complaint is also liable to be dismissed on the ground that the appellant (complainant) has no insurable interest in the vehicle, at the time of accident.
20. Therefore, the impugned order, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality and does not call for any interference.
21. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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