State Consumer Disputes Redressal Commission
Mr. Jaspal Singh vs The Tata Aig General Insurance Company ... on 9 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 73 of 2014 Date of Institution : 27.06.2014 Date of Decision : 09/10/2014 Mr. Jaspal Singh s/o Sh. Narang Singh, R/o House No.49, Sector 26, Village Madanpur, P.O. Ramgarh, Sector 26, Panchkula (Haryana). Complainant V e r s u s The TATA AIG General Insurance Company Limited, S.C.O. 232-234, 2nd Floor, Sector-34A, Chandigarh, through its Branch Manager. .... Opposite Party Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.
Ajmer Lal Pundheer, Advocate for the complainant.
Sh.
Rajneesh Malhotra, Advocate for the Opposite Party.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that the complainant being the owner of Truck-Force MAN CLA 40.280 4x2, bearing registration No.HR-68A-6175, got the same insured from the Opposite Party, for the period from 07.03.2013 to 06.03.2014, for the Insured Declared Value to the tune of Rs.23,08,000/-, on payment of premium of Rs.39,893/-, vide Certificate of Insurance and Policy Schedule Annexure C-3. It was stated that the Opposite Party did not supply the terms and conditions of the Insurance Policy, in question, alongwith the Policy Schedule Annexure C-3. It was further stated that on 27.07.2013, at about 3.00 A.M., when the driver of the complainant, namely Sh. Darshan Singh, was driving the vehicle, in question, from Patiala to Sirhind, and reached ahead of petrol pump, Village Rurkee, its engine suddenly caught fire, due to short circuit, as a result whereof, it (vehicle) hit against a tree. It was further stated that various parts of the vehicle got badly damaged, in the said accident. It was further stated that the driver of the said vehicle, also received injuries on his person.
2. It was further stated that since the complainant, being the registered owner of the vehicle, in question, was away from his home town, Sh. Darshan Singh, driver, driving the vehicle, at the relevant time, approached Sh. Harjashan Preet Singh, son of Sh. Narinderjit Singh, resident of Mohalla Bari Sarkar, Ward No.5, Shri Anandpur Sahib, District Ropar, Punjab, who was a friend of the complainant, to complete the legal formalities, on his (complainant) behalf. Thus, Sh. Harjashan Preet Singh and Sh. Darshan Singh, driver, lodged DDR No.25, on 27.09.2013, with the Police of Police Station Mulepur. In pursuance of the instructions of the complainant, Harjashan Preet Singh, intimated the Opposite Party, about the loss.
3. It was further stated that, thereafter, claim was lodged by the complainant, with the Opposite Party. It was further stated that a Surveyor was appointed by the Opposite Party to conduct spot survey, which submitted its report. It was further stated that the complainant requested the Opposite Party, to supply copy of the Survey Report, but it deliberately did not do so. It was further stated that, thereafter, the Opposite Party appointed Sh. Manoj K Kukreja, Surveyor, Loss Assessor and Investigator, to investigate the claim of the complainant. It was further stated that, on the basis of the report of Sh. Manoj K Kukreja, Surveyor, Loss Assessor and Investigator, the Opposite Party, repudiated the genuine claim of the complainant. It was further stated that copy of the report of Sh. Manoj K Kukreja, Surveyor, Loss Assessor and Investigator, was also not supplied to the complainant, by the Opposite Party. It was further stated that the genuine claim of the complainant was illegally and arbitrarily repudiated by the Opposite Party, on the ground that since he had already sold the vehicle, on 24.09.2012 i.e. much earlier to the date of incident/accident, to Mr. Harjashan Preet Singh, as such, he (complainant) had no insurable interest, in the same, in view of the General Regulation 17 of the Indian Motor Tariff. It was further stated that, since neither the complainant had executed any sale deed, in respect of the vehicle, in question, nor the ownership thereof, had been transferred, in favour of Mr. Harjashan Preet Singh, repudiation of the genuine claim of the complainant, was illegal and arbitrary.
4. It was further stated that the complainant visited the office of the Opposite Party, a number of times, with a request to settle his genuine claim, but to no avail. It was further stated that, left with no other alternative, legal notice dated 10.06.2014 Annexure C-17, was also served upon the Opposite Party, to settle the claim of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the amount of Rs.23,08,000/- i.e. the Insured Declared Value of the vehicle, alongwith interest @18% P.A., from the date of loss, till realization; compensation, to the tune of Rs.2 lacs, for mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.22,000/-.
5. The Opposite Party, put in appearance on 06.08.2014. In its written version, it pleaded that the complainant did not fall within the definition of a consumer. It was admitted that the complainant got the vehicle, in question, insured from the Opposite Party, for the period from 07.03.2013 to 06.03.2014, for the Insured Declared Value to the tune of Rs.23,08,000/-, on payment of premium of Rs.39,893/- vide Certificate of Insurance and Policy Schedule Annexure C-3. It was also admitted that the incident of fire took place, as a result whereof, the vehicle struck against a tree. It was also admitted that DDR No.25, was lodged with the Police of Police Station Mulepur, on 27.09.2013. It was denied that the terms and conditions of the Insurance Policy, were not supplied to the complainant, by the Opposite Party. It was stated that had the terms and conditions been not supplied to the complainant, alongwith the Insurance Policy, he would have certainly raised an objection, in writing, in regard to the same, or demanded the same, but he did not do so. It was further stated that, on receipt of intimation regarding the said incident, the Opposite Party appointed M/s IAR Surveyors and Loss Assessors (P) Ltd., for conducting the spot survey, which submitted its report dated 01.08.2013. It was further stated that, therafter, Sh. Manoj K Kukreja, Surveyor, Loss Assessor and Investigator, was appointed by the Opposite Party, to investigate the claim of the complainant, who submitted his report dated 02.12.2013 Annexure A-6, wherein it was clearly opined by him, that the vehicle, in question, had already been sold by the complainant, to one Mr. Harjashan Preet Singh, resident of Anandpur Sahib, District Ropar, Punjab, after executing agreement to sell dated 24.09.2012. It was further stated that since the complainant had already sold the vehicle, in question, to Mr. Harjashan Preet Singh, on 24.09.2012, but, on the other hand, had got the Insurance Policy, in question, by suppressing the material facts, fraudulently, in his (complainant) name, on 07.03.2013, his claim was legally and validly repudiated by the Opposite Party, as he (complainant) had no insurable interest, in the same, in view of the General Regulation 17 of the Indian Motor Tariff. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In the rejoinder, filed by the complainant, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party. Alongwith the rejoinder, the complainant also placed, on record, photographs of the damaged vehicle, as also agreement dated 02.09.2014, executed between him and Harjashan Preet Singh and affidavit of one Darshan Singh.
7. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
8. The Opposite Party, in support of its case, submitted the affidavit of Mr. Azhar Wasi, its Head Claims, by way of evidence, alongwith which, a number of documents were attached.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The first question, that arises for consideration, is, as to whether, the terms and conditions of the Insurance Policy were supplied to the complainant or not. No doubt, in the complaint, it was stated by the complainant, that he was not supplied the terms and conditions of the Insurance Policy. This assertion of the complainant does not carry any weight. Annexure C-3, is a copy of the insurance and Policy schedule of the vehicle, in question, for the period from 07.03.2013 to 06.03.2014. It consists of two pages. It is evident from Annexure C-3 at page 23 of the District Forum file, that under the heading Important Notice, a note is appended, which reads as under:-
This Schedule, the attached Policy and Endorsements mentioned herein above shall read together and word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.
Any amendments/modifications/alterations made on this system generated policy documents is not valid and Company shall not be liable for any liability whatsoever arising from such changes. Any changes required to be made in the policy once issued, would be valid and effective, only after written request is made to the Company and Company accepts the requested amendments/modifications/ alterations and records the same through separate endorsement to be issued by the Company.
11. The aforesaid insurance and Policy Schedule alongwith the guidelines of the Policy were sent to the complainant, vide letter Annexure C-4 dated 18.03.2013. In case, the complainant had not received the terms and conditions of the Policy, alongwith the letter dated 18.03.2013, Annexure C-4, he could ask the Insurance Company to send him the same. Even later on, he could write a letter to the Opposite Party, to send him the terms and conditions of the Policy, saying that he had not received the same. He, however, did not do so, at any point of time, before filing the complaint. Even, in the letter dated 27.01.2014 Annexure C-14, sent by the complainant, to the Opposite Party, he did not mention that he had not been supplied the terms and conditions of the Policy. It, therefore, could not be believed that the complainant did not receive the terms and conditions of the Policy. The plea of non-receipt of the terms and conditions of the Policy, having been taken by the complainant, for the first time, in the complaint appears to be an afterthought. Such plea of the complainant, being devoid of merit, is rejected.
12. The next question, that falls for consideration, is, as to whether, there was suppression of material facts, from the Insurance Company/Opposite Party, by the complainant, at the time of obtaining the Insurance Policy, in question, or not. It has been repeatedly held by the Apex Court, in various pronouncements that the contract of insurance falls in the category of contract of UBERRIMAE FIDEI meaning thereby, a contract of utmost good faith, between the parties. The insured is under a solemn obligation, to make a true and full disclosure of the information, on the subject, which is within his knowledge. Of course, obligation to disclose, extends only to the facts, which are known to the assured, and not to what he ought to have known. The Hon`ble Supreme Court of India in United Insurance Co. Ltd. Vs. M.K.J. Corporation, III (1996) CPJ 8 (SC)= (1996) 6 SCC 428, laid down the principle of law, that it is a fundamental principle of Insurance Law, that utmost good faith must be observed, by the contracting parties. Good faith forbids either party from non-disclosure of the facts, which the party privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing to the contrary. To the similar effect, the principle of law, was laid down in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., II (2000) SLT 323 = I (2000) CPJ 1 (SC) and P.C. Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors, III(2008) CPJ 78 (SC ).
In Rampreeti Yadav Vs. U.P.Board of High School & Intermediate Education & Ors, V(2003) SCT 394= JT 2003 (Supplt.I) SC 25, the principle of law, laid down, was to the effect that it is well settled law that mis-representation itself amounts to fraud, in some cases.
13. In the instant case, the Insurance Policy, in question, was obtained by the complainant, in his name, in respect of the vehicle, in question, on 06.03.2013, as is evident from the Certificate of Insurance and Policy Schedule, Annexure C-2. Whereas, on the other hand, the Opposite Party has placed, on record, copy of the agreement to sell dated 24.09.2012, at pages 103 and 104 of the District Forum file, executed between the complainant and Mr. Harjashan Preet Singh, in respect of sale of the said vehicle, the contents whereof, read as under:-
Agreement To Sell This Agreement to sell is made at Panchkula Haryana on 24.9.12 between:-
1. Jaspal Singh s/o Sh. Narang Singh R/o Vill. Madanpur Sec.26, Panchkula (HR.) (hereinafter called the 1st party) as seller.
AND
2. Harjashan Preet Singh s/o Sh. Brinderjeet Singh R/o Mohalla Bari Sarkar Ward No.5, Anandpur Sahib Distt. Ropar (Pb.) (hereinafter called the IInd party as purchaser) Whereas the 1st party is the owner of vehicle Make MAN FORCE bearing its Regd. No.HR-68-A-6175 Model 2011 chassis No.MBKMA 5KC5CN008495 Engine No.6 DBK09677 and gave the sold of the said vehicle with triple Axel Traller 30 Ft. and mode of payment an amount of Rs.25,05,000/- (Rupees Twenty Five Lacs Five Thousands only) is as under on the following terms & conditions which have been settled the parties.
1. Rs.1,00,000/-
(one lac only) paid on 24.9.2012 by cash by the IInd party and balance payment shall be paid an amount of Rs.1,00,000 (one lac only) on 10.10.2012 and last balance payment shall be paid an amount of Rs.3,30,000/- (Rupees Three Lacs thirty thousand only) on 10.12.2012 to the seller by the purchaser.
2. That 42 Installments at the rate of Rs.47,010/- (Forty seven thousands & ten rupees only) will be paid by the IInd party to M/s Religare Fin. Co. Ltd. and 1st party shall have no connection with the said installments.
3. That 1st party has delivered the possession of the said vehicle to the IInd party in running condition on 24.9.2012 and all taxes are paid upto date.
4. That 1st party shall be liable to pay all kinds of dues, taxes, challan or accident, or insurance court or police case or any kind of dues against the said vehicle prior to 24.9.12.
5. That IInd party shall be liable to pay all kinds of dues, taxes, challan, accident or insurance court or police case or any kind of dues against the said vehicle after 24.9.12 and onwards. That Ist party will execute transfer documents of the said vehicle in favour of IInd party after getting clearance and form No.35 also to transfer the ownership.
6. That in case IInd party fails to pay two installments continuously then Ist party will be entitled/empowered to repossession of the said vehicle without any objection from IInd party and amount already paid will be forfeited with Ist party.
This Agreement to sell is executed and signed.
In witness whereof the above mentioned parties has signed in the presence of the following witness.
14. From the afore-extracted contents of the agreement to sell, placed on record by the Opposite Party, it is crystal clear, that the complainant had already sold the vehicle, in question, in favour of Harjashan Preet Singh s/o Sh. Brinderjeet Singh R/o Mohalla Bari Sarkar Ward No.5, Anandpur Sahib Distt. Ropar (Pb.), on 24.09.2012. According to the contents of the said agreement to sell, the complainant had already received part amount towards the price of the said vehicle. However, the remaining 42 installments, in respect of the said vehicle, were to be paid directly to M/s Religare Fin. Co. Ltd., by Harjashan Preet Singh, from which the same (vehicle) had been got financed. Not only this, it has been clearly mentioned in the said agreement to sell that IInd party i.e. Harjashan Preet Singh, shall be liable to pay all kinds of dues, taxes, and settle all the issues relating to the said vehicle after 24.09.2012. It is thus, proved, from the agreement to sell, aforesaid, that the vehicle, in question, had already been sold by the complainant, to Harjashan Preet Singh on 24.09.2012. Thus, the Insurance Policy, in question, was obtained by the complainant, the registered owner, on 07.03.2013, by suppressing the material facts, from the Insurance Company that he had already sold the vehicle, in question and executed the agreement to sell. Had the true facts been brought to the notice of the Insurance Company, at the time of purchasing the said Insurance Policy, it would not have issued the same, in his favour. Since, the Insurance Policy, in question, was obtained by concealment of material facts, regarding the sale of the vehicle, in favour of Harjashan Preet Singh on 24.09.2012, it amounted to playing fraud on the said Company. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The Policy having been obtained by suppression of material facts, which amounted to fraud, in itself, was sufficient to vitiate the same.
15. The next question, that falls for consideration, is, as to whether, the complainant had any insurable interest, in the vehicle, in question, at the time of accident or not. As stated above, it is established from the agreement to sell dated 24.09.2012, that the complainant had sold the vehicle, in question, to Mr. Harjashan Preet Singh, on 24.09.2012 and at that time, its Insurance Policy stood, in his (complainant) name, being the registered owner of the same. Admittedly, at the time of accident i.e. on 27.07.2013, neither the vehicle had been transferred by the Registering Authority, in favour of Mr. Harjashan Preet Singh, nor the Insurance Policy had been endorsed, in his name. Since the complainant had already sold the vehicle, in question, to Mr. Harjashan Preet Singh, before the accident, he (complainant) certainly had no insurable interest, in the same. Earlier GR-10, issued by the Tariff Advisory Committee, was in vogue from 01.04.1990 to 30.06.2002. According to GR-10, on transfer of vehicle, the benefits under the policy, in force, on the date of transfer were to automatically accrue to the new owner. However GR-10 was replaced by GR-17 w.e.f. 01.07.2002 and the same reads as under:-
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.
18. Since, the vehicle had been purchased by Mr. Harjashan Preet Singh, from the complainant, after coming into force of GR-17, the provisions thereof would be applicable to the instant case. According to GR-17, on transfer of ownership, transferee is required to apply within 14 days from the date of transfer, in writing, under recorded delivery to the insurer, which had insured the vehicle, with the details of registration of vehicle, date of transfer of the vehicle, previous owner of the vehicle and the date and number of the Policy, so that the insurer may make necessary changes, in the record and issue fresh Certificate of Insurance. Unless, the aforesaid procedure of transfer of vehicle, is followed, and complied with, the transferee has no insurable interest. It would be seen that, on receipt of the information from the transferee the Insurance Company is required to make changes, in its record, and issue a fresh Certificate of Insurance. In the present case, admittedly, as pointed out earlier, the transferee i.e. the Mr. Harjashan Preet Singh, did not get the vehicle transferred, in his name, nor did he inform the Insurance Company, regarding such transfer. He had, thus, no insurable interest in the vehicle. On the other hand, as stated above, the complainant, after the sale of the vehicle, to Mr. Harjashan Preet Singh, before the date of accident, after receipt of part consideration, had also no insurable interest, whatsoever, in the same. In this view of the matter, the Opposite Party was not liable to indemnify the complainant, on account of the damage caused to the vehicle. Similar principle of law, was laid down, in Oriental Insurance Company Limited Vs. Kamal Tours and Travels, III (2011) CPJ 39 (NC), New India Assurance Co.
Ltd., Vs. Shri Divya Prashad, I(2011) CPJ 22 (NC) and New India Assurance Co. Ltd., Vs. Dalip Kumar, IV (2011) CPJ 579 (NC), The New India Assurance Co. Ltd. Vs. Ashok Thakur, Revision Petition No.3170 of 2008, decided on 03.12.2013, by the National Consumer Disputes Redressal Commission, New Delhi. Under these circumstances, the Opposite Party was legally justified, in repudiating the claim of the complainant. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.
19. No doubt, the Counsel for the complainant, placed reliance on the agreement dated 02.09.2014, which was submitted by him, alongwith the rejoinder, to contend that sale of the vehicle, in favour of Mr. Harjashan Preet Singh, by December 2012 was not complete. He further submitted that since the entire sale consideration, as per the agreement to sell, was not paid by the transferee, the vehicle was repossessed by the complainant, in December 2012. It may be stated here, that the sale of moveable property is complete, the moment the property is delivered to the transferee, on payment of part consideration or full consideration, or on deferred consideration. In case, only some amount of sale consideration had been paid by the transferee to the transferor, the remaining amount could be recovered by him, by resorting to the legal remedy, available to him. The mere fact of non-payment of a part consideration, as contended by the Counsel for the complainant did not make the sale of the vehicle, in question, incomplete. It appears that the agreement dated 02.09.2014 was later on created by the complainant, just with a view to wriggle out of the admission, with regard to sale of the vehicle, in favour of Mr. Harjashan Preet Singh, vide agreement to sell dated 24.09.2012. The agreement dated 02.09.2014, therefore, is of no avail to the complainant, as far as his contention regarding incomplete sale of the vehicle, in favour of Mr. Harjashan Preet Singh, by him is concerned.
20. In view of the above discussion, it is held that the complainant was not entitled to any benefit, under the Insurance Policy, in question. The Opposite Party was right, in legally and validly repudiating the claim of the complainant. There was, therefore, neither any deficiency, in rendering service, on the part of the Opposite Party, nor it adopted any unfair trade practice. The submission of the Counsel for the complainant, in this regard, being devoid of merit, must fail, and the same stands rejected.
21. No other point, was urged, by the Counsel for the parties.
22. For the reasons recorded above, the complaint is dismissed, with no order as to costs.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion Pronounced.
October 9, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.