State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Nilesh Jain on 8 June, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/121
Instituted on : 28.03.2017
The Oriental Insurance Company Limited,
Divisional Office - Shivnath Complex,
G.E. Road, Bhilai (C.G.),
Through : Senior Divisional Manager,
Divisional Office, Parmanand Bhawan, G.E. Road,
Durg, Tehsil & District Durg (C.G.) ..... Appellant (O.P.)
Vs.
Nilesh Jain, S/o Jethmal Jain, Aged 32 years,
R/o : Ward No.5, Gandai Pandariya, Tehsil
Chhuikhadan, Dist. Rajnandgaon (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
COUNSEL FOR THE PARTIES :
Shri L.K. Joshi, Advocate for the appellant (O.P).
Shri Paras Verma, Advocate for the respondent (complainant).
ORDER
DATED : 08/06/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 07.01.2017, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.01/2015. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
01. the O.P. will deposit sum of Rs.7,58,395/- (Rupees Seven Lakh Fifty Eight Thousand Three Hundred and Ninety Five), // 2 // which is Insured Declared Value of the vehicle bearing registration No.C.G.08-S-2373, in the office of the financer Mahindra and Mahindra Finance Services, within one month from the date of order and will send copy of the receipt to the complainant.
02. Looking to the facts and circumstances of the case, parties will bear their own cost of the case.
2. Briefly stated, the facts of the complaint of the complainant are that the complainant is registered owner of vehicle Scorpio Jeep bearing registration No.C.G.08-S-2373, which was insured with the O.P. for the period from 11.11.2013 to 10.11.2014 under Insurance Policy No.1921003000890/192100/31/14/8937 and was in existence on the date of accident. The complainant was in need of the money therefore, the above vehicle was sold by the complainant to Mohammad Safi Quraishi and anagreement was executed between them, but the complainant is the actual owner of the vehicle till payment of entire installment to the finance company and all liability and insurance certificate, R.C. book of the vehicle is in the name of the complainant. Thus the complainant is actual owner of the vehicle and in the supervision of Mohammad Safi Quraishi, the vehicle was being operated. On 08.05.2014, the complainant gave the vehicle to some family members for going Village Mudhpar and at the time of returning, at Village Brahmantola, all of a sudden the vehicle dashed with a tree // 3 // and was damaged. In the accident two persons were died and six persons were injured. The incident was reported to Police Station Sahaspur Lohara where Offence No.167/2014 under Section 279, 337 and 304A IPC was registered and challan was submitted before Judicial Magistrate First Class, Kawardha, which is pending for trial. The complainant received the vehicle on supurdginama and thereafter on 24.05.2014 he gave intimation regarding the incident to the O.P. On the instruction of the Insurance Company, the damaged vehicle was brought to Shivnath Automobiles, Durg for repairing where the Surveyor of the Insurance Company conducted survey in respect of the loss. The vehicle was completely damaged in the incident, therefore, request was made to make payment of Insured Declared Value Rs.7,58,395/-. Before allowing the claim of the complainant, the O.P. demanded documents several time, explanation and affidavit, which were submitted by the complainant before the O.P. The O.P. avoided to make payment of the claim amount for about 4-5 months and lastly on 21.11.2014 the O.P. sent a letter informing that the O.D. Claim of the complainant was repudiated. In the letter dated 21.11.2014, the two reasons for repudiating the claim mentioned were the vehicle was sold to Mohammad Safi Quraishi and there was overloading in the vehicle as 11 persons were sitting. Actually by selling the vehicle, name was not transferred in the certificate of registration and the complainant is the insured. The Police Station Sahaspur Loahara did not add any section // 4 // in the charge sheet produced by it in respect of overloading. Merely presence of the person on the spot, is not sufficient to presume that the vehicle was overloaded. The O.P. has erroneously repudiated the O.D. Claim of the complainant. Hence, the complainant has filed the instant complaint before the District Forum and prayed for granting reliefs, as mentioned in relief clause of the complaint.
3. The O.P. filed its written statement and averred that the complainant received a sum of Rs.2,81,000/- in cash on 19.12.2013 at 11.00 AM and given possession of the vehicle to purchaser Mohammad Safi Quraishi, for which a sale letter dated 17.02.2014 was executed between the complainant and Mohammad Safi Quraishi. According to sale letter from the date of sale 19.12.22013 at 11.00 A.M. entire responsibility in respect of Court Claim, R.T.O., Police Station will be of purchaser and prior to date of sale 19.12.2013 at 11.00 AM, entire responsibility in respect of Court Claim, Court, R.T.O., Police Station will be of seller Nilesh Jain. From the above, it is clear that from 19.12.2013, the actual owner of the insured vehicle is Mohammad Safi Quraishi. On 08.05.2014 the complainant Nilesh Jain was not having any insurable interest in the vehicle, due to which the complainant is not entitled to get any compensation from the O.P. According to the investigation got conducted by the O.P. on the date of incident i.e. 08.05.2014 the vehicle was given by Mohammad Safi Quraishi for going to marriage of son of Rajkumar i.e. Gangadas and in the vehicle groom // 5 // Gangadas and bride, Biram Bai, Tara Bai, Gautharin Bai, Ku. Siddhi, Neelam, Divya, Anjali, Rani, Gauri Kumar and driver were sitting, thus total 12 persons were sitting in the vehicle. The sitting capacity of the vehicle is 9 persons. On the date of incident, in the vehicle more persons than the sitting capacity of the vehicle were sitting in the vehicle which is violation of conditions of the policy, therefore, the O.P. is not liable to pay any compensation and therefore, the claim of the complainant was repudiated and intimation in that regard was given to the complainant. The O.P. did not commit deficiency in service by repudiating the claim of the complainant. The complaint is liable to be dismissed.
4. The complainant has filed documents. Document No.1 is letter dated 21.11.2014 sent by the O.P. to the complainant, document No.2 is letter dated 24.07.2014 sent by the O.P. to the complainant, document No.3 is Manual Repair Order Form, document No.4 is final report, document No.5 is intimation given to Insurance Co. regarding damage to the vehicle, document No.6 is letter dated 25.06.2014 sent by the complainant to the Branch Manager, Oriental Insurance Company Limited, document No.7 is Motor Insurance Certificate cum Policy Schedule of Private Car Package Policy - Zone B, document No.8 is receipt issued by Oriental Insurance Co. Ltd., document No.9 is Extracting of the driving licence of Vinod Sahu, document No.10 is receipt issued by Motor Vehicle Department, Maharashtra, document // 6 // No.11 is Motor Claim Form, document No.12 is Motor Insurance Certificate Cum Policy Schedule Private Car Package Policy Zone B, document No.13 is vehicle particulars issued by Transport Department, Government of Chhattisgarh, document No.14 is affidavit of Rajesh Sonwani, document No.15 is affidavit of Gangadas, document No.16 is statement of the complainant Nilesh Jain, document No.17 s affidavit of Jaichand, document No.18 is Adhikar Patra, document No.19 is affidavit of Rajesh Sonwani.
5. The O.P. has filed documents. Document No.1 is final report, document No.2 is First Information Report, document No.3 is intimation about death, document No.4 is P.M. report of Tara Bai, document No.5 is intimation about death, document No.6 is P.M. Report of Biram Bai, document No.7 is MLC of Gautharin Bai, document No.8 is MLC of Ku. Siddhi, document No.9 is MLC Ku. Divya, document No.10 is MLC of Ku. Anjali, document No.11 is MLC of Ku. Rani, document No.12 is MLC of Ku. Gauri, document No.13 is copy of notice and claim petition, document No.14 is statement of the complainant, document no.15 is copy of Adhikar Patra, document No.16 is sale letter / agreement copy, document No.17 is certified copy of policy, document No.18 is terms and conditions of the Private Car Package Policy, document No.19 is No Objection Certificate given by the complainant.
6. Learned District Forum, after having considered the material placed before it, has allowed the complaint of the complainant and // 7 // directed the O.P. to pay the amounts, as mentioned in para 1 of this order.
7. Shri L.K. Joshi, learned counsel appearing for the appellant (O.P.) has argued that the impugned order passed by the District Forum is erroneous. The respondent (complainant) Nilesh Jain had transferred the vehicle in question to one Mohammad Safi Quraishi prior to the date of incident and the respondent (complainant) executed Adhikar Patra in favour of Mohammad Safi Quraishi on 12.05.2014 and delivered the possession of the vehicle to Mohammad Safi Quraishi. According to document No.16 filed by the respondent (complainant), which is statement of the respondent (complainant) in which he specifically stated that he sold the vehicle to Mohammad Safi Quraishi in the month of December, 2013. The incident took place on 08.05.2014. It appears that at the time of accident, the respondent (complainant) Nilesh Jain was not having ownership over the vehicle in question, therefore, the respondent (complainant) has no insurable interest in the vehicle. Looking to the documents filed by the respondent (complainant), it appears that the vehicle in question was transferred by the respondent (complainant) to Mohammad Safi Quraishi in the month of December, 2013 i.e. prior to 5 months of the occurrence of the incident, therefore, the respondent (complainant) has no interest on the vehicle in question, therefore, he is not entitled to get any compensation from the appellant (O.P.). The appeal may be allowed and impugned order be set aside. He // 8 // placed reliance on Bharti Axa General Insurance Company Vs. Vinod Kumar Sahu, II (2016) CPJ 84 (Chhattisgarh) and Bharti Axa General Insurance Company Limited Vs. Subhash Thakur & Anr. III (2016) CPJ 59 (Chhattisgarh).
8. Shri Paras Verma, learned counsel appearing for the respondent (complainant) has argued that the vehicle in question was duly insured with the appellant (O.P.) and the insurance policy was issued by the appellant (O.P.) in favour of the respondent (complainant). At the time of incident the respondent (complainant) was owner of the vehicle in question and he had given the vehicle to his family friend. The accident took place on 08.05.2014 and at that time the respondent (complainant) was owner of the vehicle in question, therefore, the respondent (complainant) has insurable interest in the vehicle. The learned District Forum has rightly awarded compensation to the respondent (complainant), therefore, the impugned order passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission. The appeal filed by the appellant (O.P.) may be dismissed.
9. 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.
// 9 //
10. In para 2 of the complaint, the respondent (complainant) pleaded that he was in need of money, therefore, he sold the vehicle to one Mohammad Safi Quraishi on 12.05.2014 and an agreement was executed between the respondent (complainant) and Mohammad Safi Quraishi, but the respondent (complainant) is the actual owner of the vehicle till payment of entire installments to the Finance Company and all liability, insurance certificate and R.C. Book of the vehicle are in the name of the respondent (complainant). Thus, the respondent (complainant) is actual owner of the vehicle.
11. The respondent (complainant) filed document No.16 which is statement of the respondent (complainant) in which he stated that he is registered owner of the vehicle bearing registration No.C.G.08-S-2373 and he sold the vehicle to Mohammad Safi Quraishi in the month of December, 2013 and possession of the vehicle was delivered to him. Mohammad Safi Quraishi had given the vehicle to Rajkumar for marriage of his son Gangadas free of cost on 08.05.2014.
12. The respondent (complainant) and the appellant (O.P.) both have filed copy of Adhikar Patra which are respectively marked as document No.18 and document No.15, in which it is mentioned thus :-
"I executor, is a trader and I have purchased a Scorpio E.X. vehicle bearing registration No.C.G.08S-2373, Chassis No.M.A.1.T.A.2G.M.K.D.2K.47655, Engine No.C.M.D.4K.87595 // 10 // with the financial help from Mahindra & Mahindra Financial Company. After purchasing the vehicle I have sold the above vehicle to the second party for which sale deed was executed. As the vehicle is under finance, therefore, till payment of the entire amount of the vehicle and at present the vehicle is in name of the first party. After sale of the vehicle on 19.12.2013, all rights in respect of the vehicle has been given to Mohammad Safi Quraishi. As I am a trader and due to paucity of time, for every work, I will not appear all the places and will not operate the work properly, therefore, the rights in respect of the vehicle Scorpio E.X. bearing registration No.C.G.08-S-2373 i.e. Mohammad Safi Quraishi will do all works related to Court, Police Station, R.T.O., Accident and also fulfill all the formality and proceedings in respect of the vehicle and he will also sign in the necessary documents, he will also complete all proceeding regarding the execution of the order passed by the Court."
13. 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 // 11 // 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....."
14. In Oriental Insurance Co. Ltd. vs. Mushtaq Khan & Anr. II (2015) CPJ 145 (NC), Hon'ble National Commission has observed thus :-
"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 // 12 // 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."
15. 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."
16. 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 // 13 // Insurance Company cannot be held liable to pay claim in case of own damage of vehicle - Insurance Company justified in repudiating the claim."
17. 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 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."
18. 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."
// 14 //
19. In Revision Petition No.4126 of 2014 The New India Assurance Co. Ltd. vs. Shri Surendra Kumar Bhilawe, vide order dated 23.02.2015 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."
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 // 15 // 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."
20. In Bharti Axa General Insurance Company Vs. Vinod Kumar Sahu (Supra), this Commission has observed thus :-
"Complainant transferred and handed over vehicle to 'BS'. It was necessary for 'BS' to have a prayer to appellant as per provisions of GR 17 as well as Sub-clause (2) of Section 157 of M.V. Act, 1988 for change in the name of insured in insurance policy. New owner had not become insured of appellant and complainant after having parted away // 16 // with possession of vehicle was not having any insurable interest in vehicle. Repudiation justified."
21. In Bharti Axa General Insurance Company Limited Vs. Subhash Thakur & Anr. (Supra), this Commission has observed thus :-
" 'NJ' had transferred vehicle to complainant and also handed over possession of same complainant. Vehicle was registered in the name of complainant at time when it meet with accident. When vehicle was delivered to new owner and new owner took possession of vehicle then sale of movable property was complete. Complainant not applied for change in name of insured in insurance policy. Complainant was not having insurable interest in vehicle. Repudiation justified."
22. Looking to the documents i.e. Adhikar Patra and Statement of the respondent (complainant) Nilesh Jain, it established that the respondent (complainant) Nilesh Jain had sold the vehicle to Mohammad Safi Quraishi five months prior to the date of accident. The respondent (complainant) as well as Mohammad Safi Quraishi, had not given intimation to the appellant (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 respondent (complainant) to Mohammad Safi Quraishi, therefore, it was necessary for the respondent (complainant) // 17 // as well as Mohammad Safi Quraishi to have made a prayer to the appellant (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 insurance policy. No such prayer has been made respondent (complainant) (transferor) as well as Mohammad Safi Quraisi (transferee). Thus, the respondent (complainant) has not become insured of the appellant (O.P.) therefore, the, respondent (complainant) was not having insurable interest in the vehicle in question, hence, the appellant (O.P.) has rightly repudiated the claim of the respondent (complainant) and it has not committed any deficiency in service, therefore the impugned order passed by the District Forum, is erroneous and is not sustainable in eyes of law and is liable to be set aside.
23. Hence, the appeal filed by the appellant (O.P.) is allowed and impugned order dated 07.01.2017 passed by the District Forum is set aside. Consequently, the complaint stands dismissed.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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