National Consumer Disputes Redressal
National Insurance Company Ltd. vs Ram Prasad Chowdhury on 16 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 437 OF 2016 (Against the Order dated 01/12/2015 in Appeal No. 1207/2013 of the State Commission West Bengal) 1. NATIONAL INSURANCE COMPANY LTD. THROUGH ITS DULY CONSTITUTED ATTORNEY MANAGER, NATIONAL INSURANCE COMPANY LTD. LEGAL VERTICAL 2E/9, JHANDEWALAN EXT. NEW DELHI-110055 ...........Petitioner(s) Versus 1. RAM PRASAD CHOWDHURY TEJGUNJ P.O. NATUNGUNJ DISTRICT-BURDWAN WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR, MEMBER For the Petitioner : Mr. Abhishek K. Gola, Advocate For the Respondent : Mr. Prasanta Banerjee, Advocate Dated : 16 May 2016 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
1. The complainant namely Shri Ram Prasad Chowdhury who owned a truck bearing registration no. WB41C/0567 got the said vehicle financed from HDFC Bank. The loan taken from HDFC Bank was payable in installments. On 06.11.2008, the complainant executed an irrevocable Power of Attorney with respect to the aforesaid truck in favour of one Rajendra Kumar Yadav. The said vehicle met with an accident on 18.12.2008. A claim was lodged by the complainant with the petitioner company through one Sh. Rajendra Kumar Yadav for reimbursement in terms of the insurance policy which the complainant had taken from the petitioner company in respect of the aforesaid truck. Though a surveyor was duly appointed to assess the loss, the claim was eventually repudiated vide letter dated 17.02.2010, primarily on the ground that the complainant did not have insurable interest in the vehicle he having already received the sale consideration from Sh. Rajendra Kumar Yadav but having not informed the transfer of the vehicle to the insurer.
2. Being aggrieved, the complainant approached the concerned District Forum by way of a complaint. The complaint was resisted by the petitioner company primarily on the ground that the complainant having sold the vehicle before the date of accident, did not have an insurable interest in it.
3. The District Forum, vide its order dated 08.04.2013, allowed the complaint and directed the insurer to pay a sum of Rs. 8,19,582/- to the complainant, alongwith compensation quantified at Rs. 20,000/- and cost of litigation quantified at Rs. 3,000/-.
4. Being aggrieved from the order passed by the District Forum, the petitioner company approached the concerned State Commission by way of an appeal. Vide impugned order dated 01.12.2015, the State Commission dismissed the appeal filed by the petitioner company. Being still dissatisfied, the insurer is before this Commission by way of this revision petition.
5. It is an admitted position that the complainant was registered owner of the truck, at the time it met with an accident. It is also an admitted position that the truck was insured in the name of the complainant, at the time it met with an accident. It is also not in dispute that the complainant had executed a Power of Attorney dated 06.11.2008, in favour of Sh. Rajendra Kumar Yadav, in respect of the above referred truck. The said Irrevocable Power of Attorney, to the extent it is relevant, reads as under:
AND WHEREAS I am not in a position to ply the said truck and made up my mind to sell the same in my attorney who are known to me and well acquainted with the transport business and WHEREAS the attorney proposed to me and [agreed and the market price of the said truck was fixed at Rs.900000/- (Rupees Nine Lakhs only) out of which my attorney has paid an amount of Rs.584565/- (Rupees Five Lakhs Eighty Four Thousand Five Hundred sixty five only) today and Rs.315435/- (Rupees three lakhs fifteen thousand four hundred thirty five only) shall be paid to the financer HDFC Bank Ltd. which is to be paid by him in 17 monthly instalment of Rs.22251/- x 6 and Rs.16539/- x 11 months starting from 05.11.2008.
02. To ply, place the said truck or hire and reward.
07. To appoint any staff/staffs and to pay their remuneration as my attorney shall deem fit.
12. To pay installments to HDFC Bank Ltd. in my name from the income arising out of the said truck, or from his own income.
13. That more specifically I declare that as I have received Rs.584565/- (Rupees Five Lakhs Eighty Four Thousand Five Hundred Sixty Five only) from my attorney and Rs.315435/- (Rupees Three Lakhs Fifteen Thousand Four Hundred Thirty Five only) will be paid by him in 17 months and on payment of the dues to the financer, my attorney shall be entitled to get the ownership transferred in his name and for this I shall raise no claim over the said truck or demand any amount in future.
14. To place all documents viz. from no.28, 29, 30 for transfer of ownership before the registering authority Burdwan which I have already signed and have also received my full and final consideration amount against the said truck and which I have acknowledge and get the vehicle transferred in him name and I shall have no objection.
6. Section 19 of the Sale of Goods Act to the extent it is relevant provides that 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 to be transferred. 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. Unless a different intention appears, the rules contained in section 20 to 24 are the 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. Section 20 of the Act provides that where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed.
Section 157(2) of the Motor Vehicle Act, requires transferee of the vehicle to apply within 14 days from the date of the transfer to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described therein, in his favour.
Dealing with this issue, this Commission in Revision Petition No.1347 of 2008, New India Assurance Co. Ltd. Vs. Smt. Bimlesh decided on 03-09-2014 inter alia held as under:
"13. 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 the 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."
Section 50 of The Motor Vehicles Act casts an obligation upon the transferor and the transferee to report the factum of transfer to the Registering Authority. But this obligation arises only after the transfer of the vehicle has already taken place. The aforesaid provision does not envisage any kind of reporting to or permission of the registering authority even before the ownership of the vehicle is transferred from one person to other. Thus, the above referred provision in our view, only reinforces the view which we have taken i.e. the ownership of a vehicle is transferred on the sale and delivery of the vehicle and the requirement of informing the transfer to the registering authority is only a post transfer statutory requirement.
7. It is evident from a bare perusal of the recitals made in the Power of Attorney executed by the complainant that the truck in question had actually been sold by him to Shri Rajendra Kumar Yadav on 06.11.2008. Execution of documents such as Form No. 28, Form No. 29 & Form No. 30, which are required for incorporating the transfer of ownership in the record of the concerned Registering Authority, coupled with receipt of Rs. 584565/- and an obligation to pay the balance sale consideration of Rs. 315435/- to HDFC Bank in instalments, leaves no doubt that the ownership of the vehicle was transferred by the complainant to Sh. Rajendra Kumar Yadav on the aforesaid date. Had Sh. Rajendra Kumar Yadav been only appointed as an Attorney, there would be no question of sale consideration of the truck having been fixed at Rs. 9 lacs, Sh. Rajendra Kumar Yadav paying Rs. 5,84,565/- to the complainant and undertaking to pay the balance agreed sale consideration of Rs. 3,15,435/- to the financer, in instalments. Moreover, in that case, there could be no occasion for the complainant to execute Form No. 28, Form No. 29 & Form No. 30 in favour of Sh. Rajender Kumar Yadav. Under clause 12 of the Power of Attorney, Mr. Rajender Kumar Yadav was also authorized to make payment to HDFC Bank either from his own income or from the income arising out of the truck. It is therefore, crystal clear that the truck was to be plied and the income which was to accrue from plying the truck was to go to Sh. Rajendra Kumar Yadav. The complainant had no claim on the truck or on the income earned from it, with effect from 06.11.2008 when the aforesaid Power of Attorney was executed. It is therefore, evident that the complainant intended to transfer the property in the truck to Sh. Rajendra Kumar Yadav on 06.11.2008 itself, when the aforesaid Power of Attorney was executed. Therefore, with effect from that date, he became owner of the truck which is a movable property like any other movable goods. As far as the mutation of ownership in the record of the concerned RTO is concerned, that being a statutory requirement, it was for Sh. Rajendra Kumar Yadav to get the said record changed in his name in the record of the RTO but as far as ownership in the vehicle is concerned, that stood transferred to him on 06.11.2008 itself.
8. It is an admitted position that neither the vehicle was registered in the name of Sh. Rajendra Kumar Yadav nor had he got the insurance policy transferred in his name, by the time the vehicle in question met with an accident. As far as the complainant is concerned, having sold the vehicle to Sh. Rajendra Kumar Yadav on 06.11.2008, he did not have any insurable interest in the vehicle, on the date the vehicle met with an accident. As far as Sh. Rajendra Kumar Yadav is concerned, though he owned the truck on the date it met with an accident, he having already purchased it on 06.11.2008, there was no contract of insurance between him and the insurance company on the date the vehicle met with an accident. Therefore, the insurer is not liable to pay to the complainant because he did not have any insurable interest in the vehicle on the date it met with an accident and it is not liable to pay to Sh. Rajendra Kumar Yadav since there was no privity of contract between him and the insurer.
9. The learned counsel for the complainant/respondent has referred to the decision of this Commission in Prem Devi Vs. M/s Chola Mandalam Ms General Insurance Company Limited, Through Branch Manager 2015(2) CPR 26 (NC) decided on 03.03.2015. However, considering the recitals of the Power of Attorney executed in this case, it can hardly be disputed that the ownership of the vehicle in question stood transferred to Sh. Rajendra Kumar Yadav on 06.11.2008 itself. Therefore, on facts, this decision clearly does not apply.
10. For the reasons stated hereinabove, the impugned order cannot be set aside and the revision petition is accordingly dismissed, with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ......................J ANUP K THAKUR MEMBER