State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Narendra Kumar Jain on 20 July, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2018/308
Instituted on : 02.05.2018
The Oriental Insurance Company Limited,
Through Divisional Manager, Divisional Office No.1.
Kutchery Chowk,
Raipur (C.G.) ... Appellant (Opposite Party)
Vs.
Narendra Kumar Jain, S/o Indar Chand Jain,
R/o : Village and Post : Arjuni,
Tahsil and Dist. Balodabazar (Bhatapara) (C.G.) .. Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
HON'BLE SMT. RUCHI GOEL, MEMBER
COUNSEL FOR THE PARTIES :
Shri Shishir Bhandarkar, Advocate for the appellant (O.P.).
Shri Amit Patel, Advocate for the respondent (complainant)
ORDER
DATED : 20JULY/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 21st February, 2018, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.38/2008. By the impugned order, learned District Forum, has partly allowed the complaint of the complainant and directed that :-
(a) The O.P. will pay a sum of Rs.2,49,000/- (Rupees Two Lakhs Forty Nine Thousand) to the complainant within a period of one month from the date of order along with simple interest @ 9% p.a. from 03.04.2007 till realization.
(b) The O.P. will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony, to the complainant.
// 2 //
(c) The O.P. will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards cost of litigation to the complainant.
2 Briefly stated the facts of the complaint of the complainant are that the complainant is registered owner of vehicle Sumo bearing registration No.C.G.04-B-0681, Chassis No.8005AXZ900177, Engine No.483 DI 47MYZ 725453, which was insured with the O.P. under Insurance Policy No.21501/2006 for the period from 31.01.2006 to 30.01.2007. The above vehicle was being carried by the Abdul Latif S/o Abdul Ajim, resident of Byron Bazar, Raipur for trial to purchase the vehicle, then the above vehicle dashed with a tree at Village Devri, situated at Raipur-Bilaspur Road, under Police Station Dharsiwa and was completely damaged. In the incident Abdul Azim, Abdul Latif, Abdul Jisant, Abdul Rizwana, Parveen alias Rani and driver of the vehicle Ajmat Khan had died. The incident took place on 09.05.2006. After the incident, the complainant gave intimation regarding the incident to the Oriental Insurance Co. Ltd. (O.P.) and requested for inspection of the vehicle. The inspection of the vehicle was done by the O.P. The O.P. sought relevant documents from the complainant. The complainant submitted photographs and documents relating to damages of the vehicle. Thereafter, after lapse of a long time the O.P. sent notice to the complainant to the effect that the complainant had sold the above vehicle to Abdul Latif, therefore, there is no liability of the O.P. The complainant sent letter to the O.P. on 12.11.2007 to the effect that the vehicle in question was taken by Jabbar Auto Dealer and one Abdul Latif desires to purchase the vehicle, therefore, the vehicle was given to Abdul Latif for trial and during trial, the incident took place. The vehicle in // 3 // question was not sold by the complainant to Abdul Latif. It is settled principle of law that without payment of the consideration, the contract is null and void. At present the complainant is registered owner of the vehicle in question and the complainant did not sale the vehicle in question to anyone. The O.P. did not give any satisfactory reply to the complainant in response to the letter dated 12.11.2007 to the effect that the complainant is registered owner of the vehicle in question and informed to the complainant that the vehicle was sold by him. The complainant understood that the O.P. does not want to pay compensation to him. Hence, the complainant has filed the instant consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the complaint.
3. The O.P. (Insurance Company) has filed its written statement and averred that prior to the date of the incident the complainant had sold the vehicle, therefore, he was not having insurable interest on the vehicle in question, hence the complainant has no right to file the instant complaint. The vehicle Sumo bearing registration No.C.G.04-B-0681, having chassis No.8005/AXZ 900177 and Engine No.483 DIMYZ 725453 was insured with the O.P. and the policy was issued in the name of complainant Narendra Kumar Jain, but prior to the date of incident, the vehicle was sold by the complainant. According to the purchase sale receipt No.135 of Jabbar Auto and Property Dealer, the complainant Narendra Kumar Jain had sold the vehicle in question to Abdul Latif S/o Abdul Azim, resident of Byron Bazar, Raipur. Looking to the averment made in the complaint by the complainant that in the incident Abdul Azim, Abdul Latif, Abdul Zisant, Abdul Rizwana, Parveen alias Rani // 4 // and driver of the vehicle Ajmat Khan, had died, which took place near Village Devri, Police Station, Dharsiwa, it shows that the vehicle in question was already sold to Abdul Latif and possession of the vehicle was handed over to Abdul Latif. The incident took place on 09.05.2006 whereas the complainant gave intimation regarding the incident to the O.P. on 25.09.2006 belatedly, which is violation of the terms and conditions of the insurance policy. On being intimation regarding the incident received by the O.P., the O.P. appointed Shri Piyush Tiwari as Investigator for taking information regarding the incident and the O.P. appointed Surveyor for assessment of loss to the vehicle. On the facts of the case, it is clearly proved that the complainant had sold the vehicle in question, therefore, the O.P. has not committed any deficiency in service by repudiating the claim of the complainant. The policy contains a condition No.1 that 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. The complainant has not followed the above condition. On being receipt of the letter dated 12.11.2007 sent by the complainant, the O.P. sent its reply through its Advocate Vinod Deshmukh, in which reason for repudiation of claim of the complainant, was clearly mentioned. In the receipt No.135 which is purchase - sale receipt dated 03.03.2006, it is mentioned that amount in respect of sale of the vehicle has been received. No cause of action has accrued to the complainant for filing instant complaint. The O.P. settled the claim of the complainant on merits. Prior to date of incident 09.05.2006, the complainant had already sold the vehicle in question on 03.03.2006, therefore, // 5 // the complainant has no legal right to file the instant complainant and has not receive any cause of action. 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. Annexure A-1 is Certificate of Registration of vehicle bearing registration No.C.G.04-B-0681, Annexure A-2 is Insurance Certificate, Annexure A-3 is letter dated 12.11.2007 sent by the complainant to the O.P., Annexure A-4 is reply dated 16.11.2007 sent by Shri Vinod Deshmukh, Advocate on behalf of the O.P. (Insurance Company) to the complainant in response to his legal notice dated 12.11.2007. The complainant has also filed photocopy of receipt No.25 dated 10.07.2000, receipt No.32 dated 13.12.2000 and driving licence of Shri Ajamat Juned.
5. The O.P. has filed documents. Annexure OP-1 is Intimation of Claim, Annexure OP-2 is Motor Claim Form, Annexure OP-3 is Investigation Report dated 03.03.2007 of Shri Piyush Tiwari, Investigator, Annexure 4 is purchase- sale bill dated 03.03.2006, Annexure OP-5 is paper cutting of daily news paper edition dated 10.05.2006, Annexure OP-6 is Spot Survey Report dated 03.11.2006 of Shri Sunil Surana, Annexure OP-7 is Final Survey Report dated 03.02.2007 of Shri Prakash Jain, Annexure OP-8 is letter dated 12.11.207 sent by the complainant to the O.P., Annexure OP-9 is letter dated 03.04.2007 sent by the O.P. to the complainant, Annexure OP-10 is reply dated 16.11.2007 sent by Shri Vinod Deshmukh, Advocate on behalf of the O.P. to the complainant, Annexure OP-11 is postal receipt, Annexure OP-12 is acknowledgement, Annexure OP-13 is terms and conditions of the policy.
// 6 //
6. Earlier the District Forum vide order dated 07.01.2009 has allowed the complaint of the complainant and directed that :-
(a) The O.P. will pay a sum of Rs.2,49,000/- (Rupees Two Lakhs Forty Nine Thousand) to the complainant within a period of one month along with simple interest @ 9% p.a. from 03.04.2007 till realization.
(b) The O.P. will pay a sum of Rs.1,000/- (Rupees One Thousand) towards compensation for mental agony, to the complainant.
(c) The O.P. will pay a sum of Rs.1,000/- (Rupees One Thousand) towards cost of litigation to the complainant.
The O.P. (Insurance Company) filed Appeal No.56/2009 before this Commission against the order dated 07.01.2009 passed by the District Forum. This Commission vide order dated 20.10.2009 has allowed the order of the District Forum and set aside the order and remanded back the case to the District Forum. The District Forum directed thus :-
"9. Thus, we allow this appeal and set aside the impugned order. The matter is remanded back to the District Forum for providing opportunity to both the parties for purpose of adducing evidence on the question as to whether document Annexure OP-4, is bearing signature of the respondent or not ? Cost of this appeal R.500/- will be borne by the appellant herein. Parties are directed to appear before District Forum on 09.11.2009."
7. After remand of the matter to the District Forum, learned District Forum, after having considered the material placed before it by the parties has // 7 // again allowed the complaint of the complainant and directed the O.P. to pay amounts to the complainant as mentioned in para 1 of this order.
8. Shri Shishir Bhandarkar, learned counsel appearing for the appellant (O.P.) has argued that the respondent (complainant) had sold the vehicle in question to one Abdul Latif and handed over the possession of the vehicle in question to Abdul Latif, therefore, the complainant was not having insurable interest on the vehicle in question at the time of incident, therefore, the complaint is not maintainable. The complainant is not entitled to get any compensation from the O.P. (Insurance Company) under the insurance policy. The incident took place on 09.05.2006 whereas the complainant gave intimation regarding the incident to the O.P. on 25.09.2006 belatedly, which is violation of terms and conditions of the insurance policy. When the O.P. received intimation regarding the incident from the complainant, the O.P. appointed Shri Piyush Tiwari, as Investigator for making investigation and also appointed Surveyor. The Surveyor gave his report, but the complainant had already sold the vehicle in question prior to the incident and he had no insurable interest on the vehicle in question, therefore, he is not entitled for getting claimed amount . The impugned order passed by the District Forum, is erroneous and is liable to be set aside.. He placed reliance on Appeal No.FA/2015/645 - Om Shrivas Vs. Manager, United India Insurance Company Limited, decided by this Commission vide order dated 22.03.2016, C.J. Thomas Vs. Eliakkutty and Others, 2010 ACJ 2057, decided by High Court of Kerala At Ernakulam; Vikrant Chemico Industries Pvt. Ltd. Vs. Kunal Singh, IV (2012) CPJ 8, decided by Delhi State Consumer Disputes Redressal Commission, New // 8 // Delhi, Revision Petition No.4126 of 2014 - The New India Assurance Co. Ltd. Vs. Shri Surendra Kumar Bhilawe; National Insurance Company Limited Vs. Deepa Devi and Others, 2008 ACJ 705 decided by Hon'ble Supreme Court; Alavi Vs. Velayudhan and others, 1989 ACJ 967 decided by Hon'ble High Court of Kerala at Ernakulam; New India Assurance Co. Ltd. Vs. Amar Chand and others, 2005 ACJ 1233, 2005 ACJ 1233, decided by Hon'ble High Court of Himachal Pradesh at Shimla; Sumathy and others Vs. Raghavan and others, 1997 ACJ 260, decided by Hon'ble High Court of Kerala at Ernakulam; and Oriental Insurance Co. Lt.d. Vs. Majeed and Others, 1997 ACJ 264, decided by Hon'ble High Court of Kerala at Ernakulam.
9. Shri Amit Patel, learned counsel appearing for the respondent (complainant) has argued that the sale of the vehicle in question was not completed. The vehicle is still registered in the name of the complainant and possession of the vehicle in question was not delivered by the complainant to Abdul Latif. Even insurance policy was issued in the favour of the complainant. When the accident took place at that time, the complainant was owner of the vehicle in question, therefore, the complainant is having insurable interest on the vehicle in question. The intimation regarding incident was given by the complainant to the O.P. The vehicle was taken by Auto Dealer Jabbar for sale, who demanded for trial of the vehicle. The vehicle in question was not sold by the complainant to Abdul Latif and he is no insurable interest or right over the vehicle in question, even then the O.P. repudiated the claim of the complainant, which comes in the category of deficiency in service. The District Forum has rightly allowed the complaint of the complainant and awarded // 9 // compensation to the complainant. Therefore, the appeal filed by the appellant (O.P.) is liable to be dismissed.
10. We have heard learned counsel appearing for both the parties and have also perused the record of the District Forum as well as the impugned order passed by the District Forum.
11. Learned District Forum vide order dated 07.01.2009 allowed the complaint of the complainant and awarded compensation to the complainant. The O.P. filed Appeal No.56/2009 before this Commission against the order dated 07.01.2009 and vide order dated 20.10.2009, this Commission remanded back the case to the District Forum with a direction for providing opportunity to both the parties for the purpose of adducing evidence on the question as to whether document Annexure OP-4, is bearing signature of the respondent or not ?
12. The appellant (O.P.) has filed document Annexure OP-4, which is sale receipt. The complainant has specifically denied his signature in the above document. If we presume that the above document was executed by the complainant even then in the above document, it is not mentioned that the possession of the vehicle in question was delivered by the complainant Narendra Kumar Jain to Abdul Latif. In the above document, it is simply mentioned that Narendra Jain is selling the above vehicle t o Abdul Latif S/o Abdul Azim at the cost of Rs.2,10,000/- and a sum of Rs.10,000/- has been received as earnest money and the remaining amount of Rs.2,00,000/- will be received between 03.03.2006 to 10.03.2006. After receiving the total amount, the // 10 // documents of the vehicle will be handed over to the purchaser. If the purchaser fails to pay the amount, then the deposited amount will be forfeited. Looking to the above document, it appears that the possession of the vehicle was not delivered at the time of execution of document OP-4 dated 03.03.2006.
13. Therefore, on the basis of document Annexure OP-4, it cannot be held that the sale was completed. The delivery of possession of the vehicle was not effected at the time of execution of sale receipt.
14. The incident took place on 09.05.2006, at that time the vehicle in question was registered in the name of the complainant and insurance policy was also issued in the name of the complainant.
15 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. (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."
// 11 // 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 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."
16. Looking to the above judgment it is essential that the possession of the vehicle is delivered to the purchaser. In the instant case, sale was not completed and only agreement was executed between the parties and the // 12 // delivery of the vehicle in question was not given by the seller to the purchaser, therefore, the sale is not complete. The facts of the judgments relied by the O.P. are quite extinguishable from the facts of the instant case and they are not helpful to the O.P.
17. Learned District Forum has awarded compensation of Rs.2,49,000/- to the complainant, holding that the vehicle comes within total loss. The O.P. has filed document Annexure OP-7, which is Survey Report dated 03.02.2007 given by Shri Prakash Jain, Surveyor and Loss Assessor. The Surveyor assessed the loss to the tune of Rs.2,49,000/-, but in the Conclusion it is mentioned that "The repair basis settlement is made without considering the inner mot damages and there may be possibility of same. Thus during actual course of repair, the repair basis liability may further be increased. If we negotiate with the insured, he might be agreed for T.L. (Total Loss) on lower side to IDV and at Rs.2.20 lacs also. The expected salvage value of the said damaged Wreck would be about Rs.55,000/-." Even in document Annexure OP-4, the cost of vehicle in question was mentioned Rs.2,10,000/-, therefore, the Report of the Surveyor, is acceptable. On the basis of Surveyor's Report, it is essential that the salvage value Rs.55,000/-, be deducted from the assessed amount of Rs.2,49,000/- and after deducting the salvage value, the payable amount comes to Rs.1,94,000/- (Rupees One Lakh Ninety Four Thousand). The complainant is only entitled for getting a sum of Rs.1,94,000/- from the O.P.
18. Learned District Forum, has awarded 9% simple interest on Rs.2,49,000/-. The incident took place on 09.05.2006. Looking to the facts and // 13 // circumstances of the case, the interest awarded by the District Forum is on higher side. It is just and proper to award 6% simple interest on Rs.1,94,000/-.
19. Learned District Forum has awarded Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony and Rs.2,000/- (Rupees Two Thousand) towards cost of the litigation to the complainant, which is just and proper and does not call for any interference by this Commission.
20. Therefore, we partly allow the appeal filed by the appellant (O.P.) and modify the impugned order passed by the District Forum and it is directed that :-
(i) The appellant (O.P.) will pay a sum of Rs.1,94,000/- (Rupees One Lakh Ninety Four Thousand) instead of Rs.2,49,000/- (Rupees Two Lakh Forty Nine Thousand), to the respondent (complainant) within period of 30 days from the date of this order.
(ii) The appellant (O.P.) will also pay 6% simple interest on Rs.1,94,000/- to the respondent (complainant) from 03.04.2007 till realization.
(iii) The rest part of the impugned order passed by the District Forum, are confirmed.
(iv) The parties shall bear their own costs of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) (Smt. Ruchi Goel) President Member Member Member 20 /07/2018 20 /07/2018 20/07/2018 20/07/2018