State Consumer Disputes Redressal Commission
Bajaj Allianz Gen Ins Co Ltd vs Govindbhai S Solanki on 13 August, 2021
Details DD MM YY
Date of Judgment 13 08 2021
Date of filing 09 03 2021
Duration 10 5
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Appeal No. 2021/299
[Virtual Hearing]
Court No. 1
Bajaj Allianz General Insurance Co. Ltd.
4th Floor, Turquoise,
Panchvati Cross Roads, C. G. Road,
Ahmedabad-380009. ......Appellant
Vs
1.Govindbhai Sarmanbhai Solanki, Village- Supasi, Ta-Veraval, Dist. Gir-Somnath.
2. Ramsungbhai Samatbhai Dodiya,
-Deleted vide order dated 9.7.2021 ....Respondents Mr. D. M. Soni, Ld Advocate for the appellant.
Coram : Hon'ble Mr. Justice V. P. Patel, President Order by Hon'ble Mr. Justice V. P. Patel, President
1. The appellant/original opponent No. 1 has filed present appeal under Section 41 of the Consumer Protection Act, 2019 being aggrieved by and dissatisfied with the judgment and order passed by the learned District Consumer Disputes Redressal Commission, Junagadh dated 11.9.2019 in complaint No. 45 of 2016.
2. Heard ld. Advocate Mr. D. M. Soni, for the appellant.
2.1. The appellant is the original opponent no. 1, respondent no. 1 is original complainant and respondent no.2 is original opponent no.2 in this appeal. Hereinafter the appellant and respondents will be referred as per their original status.
M. B. Desai A-21-299 Page 1 of 113. Facts of the case of the complainant: The complainant has obtained commercial vehicle policy for his truck bearing registration No. GJ-11-Y-6325 from opponent no. 1 through opponent no. 2. Opponent no. 1 has issued the commercial vehicle policy for the period between 18.11.2014 to 17.11.2015 vide policy No. OG-15-2218-1903-00000065 for the sum insured of Rs. 14,88,254/- in favour of complainant. During the existence of policy on 10.9.2015 while the truck was driven by driver was met with an accident with ST bus Nr. Vadodara Padra Road. The truck was damaged and front side of the truck is broken, the radiator, bumper and both sides of the cabin are broken, the wiring, pipes, steering and air filters are also broken and truck was damaged upto Rs. 2,75,210/-. That the complainant has submitted the claim to the opponent no. 1 through opponent no. 2 with required documents. Opponent no. 1 has repudiated the claim of the complainant vide its repudiation letter dated 24.11.2015. Hence, the complainant has filed this complaint before the District Commission for Redressal of his grievances.
4. Order under challenge: The District Forum has partly allowed the said complaint on 11.9.2019 and ordered the opponents to pay Rs. 1,44,560/- (Rupees One Lakhs Forty Four Thousand Five Hundred and Sixty Only) as compensation/damage with 9% interest from 24.11.2015, Rs. 5,000/- towards mental harassment and Rs. 3,000/- as cost to the litigation.
5. Argument of the appellant:
5.1 Learned advocate for the appellant has argued that the impugned order is unjust, arbitrary and against the well established principles of law and facts on record.M. B. Desai A-21-299 Page 2 of 11
5.2 It is further argued that the ld. District Commission has failed to exercise jurisdiction vested in it by law and does not given any independent finding over the respondent's burden of providing deficiency in service. That the without appreciating the real issue in dispute, ld. District Commission has jumped to a conclusion that the appellant displayed deficiency of service.
That the order of the Ld. District Commission is erroneous on law and facts and ignored section 20 and 26 of the sale of the goods Act. That the vehicle was sold by the complainant to other person. That there was agreement between the parties. The said agreement was not considered by the ld. District Commission. That the complainant was no insurable interest on the date of accident.
5.3 It is further argued that the Ld. District Commission has not considered the documentary evidence in proper perspective. The judgment and order passed by the Ld. District Commission is required to be quash and set aside. He requested to allow the appeal.
Merits of the case:
6. The claim was repudiated and the same statement is made in the written conversation of the affidavit at page 67 filed by the Deep U. Dave, Manager of the insurance company which reads as under:
"On scrutiny of documents submitted by your good self, it is observed that at the time of accident, the Insurance policy and vehicle registration certificate is on the name of Mr. Solanki Govindbhai Saravanbhal, whereas the vehicle has been sold before 2 months (As per Sale agreement). Hence the Insurable Interest does not exist.M. B. Desai A-21-299 Page 3 of 11
Please note that as per All India Motor Tariff formulated by IRDA there should exist Insurable contract at the time of taking policy as well as at the time of loss. In this particular claim the same was not in position. In the circumstance, we are not liable under the policy terms and condition in respect of the above loss. We therefore sincerely regret our inability to be of assistance on the occasion.
Hence, kindly clarify within 7 days of the receipt of this letter that why the claim should not be repudiated.
6.1 Thereafter, it is finally repudiated vide letter dated 24.11.2015 which reads as under.
"This is with reference to our earlier letter dated 25-Sep-2015 and 3-Oct-2015, and your letter dated 9-Oct-2015, as per documents submitted by your good self, the explanation submitted by your good self is not found to be satisfactory in the absence of any documentary evidence in support of your claim, hence your claims stands repudiated and our stands remain the same.
7. Ld. Advocate for the appellant has narrated the events happened before the accident in the appeal memo in para 2 which reads as under:
(a) 18/11/2014: The opponent had issued Commercial Vehicle Policy OG-15-2219-1803-00000065 for the period from 18/11/2014 to 17/11/2015 for a Tata Torus Truck GJ - 11 - Y -
6325 in favour of its owner Abhishek Industrial Services Pvt . Ltd.
(b) 4/2/2015: On transfer of the truck's ownership to Suryakant Prabhubhai Karabar , the opponent endorsed the policy showing him as insured.
M. B. Desai A-21-299 Page 4 of 11(c)1/6/2015: the respondent - complainant obtained interest in the policy from the said Suryakant P Kanabar and hence , policy was endorsed showing him as the owner was issued.
(d) 16/6/2015: the respondent got the vehicle hypothecated with the HDFC Bank Ltd , Rajkot and the policy was accordingly endorsed .
(e) 26/6/2015: the respondent sold and handed over the vehicle to Suryakant P. Kanabar vide a sale agreement dated 26/6/2015 w.e.f the even date.
(f) 4/7/2015: the aforesaid sale agreement was notarized . As per the said agreement the purchaser was to start paying monthly installment of Rs. 25,000 from 1/7/2015.
(g) 5/7/2015: the aforesaid sale agreement was allegedly canceled for non- payment of first installment vide a cancellation deed dt. 5/7/2015 which was notarized on 9/11/2015
(h) 10/9/2015: the insured truck dashed in the rear side of an ST bus causing damage to the bus and injury to the passengers of the bus.
(i) 22/9/2015: The respondent lodged a claim with the appellant
(j) 24/9/2015, the surveyor assessed the loss to the vehicle
(k) 25/9/2015 the appellant sought clarification from the respondent about the change in insurable interest.
(l) 12/10/2015 the respondent submitted declaration letter giving explanation without any documents in support.
M. B. Desai A-21-299 Page 5 of 11(m) 9/11/2015 the respondent got up and notarized the aforesaid backdated cancellation deed.
(n) 24/11/2015 the claim was repudiated for want of sufficient explanation with documentary evidence.
(o) 11/4/2016 the complaint was filed concealing all the aforesaid changes in insurable interests.
8. That the policy was effective from 18.11.2014 to 17.11.2015. The accident took place on 10.9.2015 on the date of accident the owner of the vehicle is complainant himself.
8.1 The copy of RC Book of the vehicle is at page 29. On perusing the same it is clear that the vehicle bearing registration No. GJ11Y 6325 is on the name of the complainant.
8.2 The copy of goods carriage permit is produced at page 28 on perusing it shows that the permit was issued on the name of the owner complainant himself for the period of 25.5.2015 to 24.5.2020. Accident was taken place on 10.9.2015.
8.3 In view of the above evidence, it is clearly established that complainant has insurable interest on the date of accident.
9. One of the argument for the appellant is that the ld. District Commission has not considered the Section 20 and 26 of the Sale of Goods Act, 1930. This argument is not tenable in view of the latest judgment of Hon'ble Supreme Court reported in LAWS ( SC ) 2020 6 35 ( SC ) in case of Surendra Kumbar Bhilve vs. New India Assurance Co. Ltd. wherein , it is held as under :
M. B. Desai A-21-299 Page 6 of 11"31. In our considered opinion, Sections 19 and 20 of Goods Act, 1930, which deal with the stage at which the Sale property in movable goods passes to the buyer, is of no assistance to the Insurer. There can be no doubt that property in a specific movable property is transferred to the buyer at such time as parties to the contract intend it to be transferred, provided such immovable property is free to be transferred, and / or in other words capable of being transferred.
32. If there is an impediment to the transfer, as in the instant case, where "No Objection of the financier bank was imperative for transfer of the said truck, there could be no question of transfer of title until the impediment were removed, for otherwise the contract for transfer would be injurious to the financier bank, immoral, unlawful and void under Section 10 read with Sections 23 and 24 of the Contract Act, 1872.
33. It was thus, an implicit condition of the agreement for transfer of the said truck, that the transfer would be complete only upon issuance of "No Objection" by the financier bank and upon compliance with the statutory requirements for transfer of a motor vehicle.
34. The contract in this case, could not possibly have been an unconditional contract of transfer of movable property in deliverable state, but a contract to transfer, contingent upon "No Objection" from ICICI Bank , and compliance with the statutory provisions of the Motor Vehicles Act , 1988 and the Rules framed thereunder. Sections 19 and 20 of the Sale of Goods Act are not attracted.
36. It would also be pertinent to note the difference between the definition of owner in Section 2/30 ) of the Motor Vehicles Act, 1988 and the definition of owner in Section 2 (19) of the Motor Vehicles Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Under the old Act 'owner' meant the person in possession of a motor vehicle. The definition has undergone change. Legislature has consciously changed the definition of „owner‟ to mean the person in whose name the motor vehicle stands .M. B. Desai A-21-299 Page 7 of 11
41. It is difficult to accept that person who has transferred the ownership of a goods carriage vehicle on receipt of consideration, would not report the transfer or apply for transfer of registration, and thereby continue to incur the risks and liabilities of ownership of the vehicle under the provisions of law including in particular, under the Motor Vehicles Act, 1988 and other criminal/penal laws.
47. In Pushpa @ Leela And Others us . Shakuntala and Others3, the question before this Court was , whether liability to pay compensation to third parties as determined by the Motor Vehicles Accidents Claims Tribunal in case of an accident , was that of the purchaser of the vehicle alone , or whether the liability of the recorded owner of the vehicle was coextensive , and from the recorded owner it would pass on to the Insurer of the vehicle . This Court found that the person whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation , having regard to the provisions of Section 2 (30) read with Section 50 of the Motor Vehicles Act , 1988 and since an insurance policy had been taken out in the name of the recorded owner, he was indemnified and the Insurer would be liable to satisfy the third party claims .
49. The Judgment of this Court in Pushpa @ Leela & Ors . US . Shakuntala ( supra ) and Naveen Kumar US . Vijay Kumar ( supra ) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually . However , the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner the Insurer would remain liable notwithstanding any transfer , would apply equally in the case of claims made by the insured himself in case of an accident . If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act , 1988 and in particular Section 2/30 ) thereof , the Insurer cannot evade its liability in case of an accident .
52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another 5 delay in 5 ( 2017 ) 1 SCC 724 intimation of accident, or submission of documents M. B. Desai A-21-299 Page 8 of 11 due to unavoidable circumstances , should not bar settlement of genuine claims.
In this judgment Hon'ble Supreme Court has also held about the insurable interest. The insurable interest is lies to the person whose name is registered in the RTO authority.
10. Ld. District Commission has rightly deal with the issue as regards to the insurable interest in Para 5(A) of the order which reads as under:
"As stated by the complainant in the complaint, the vehicle has damaged a loss of Rs. 2,75,210 / - in a vehicle accident, and bills have been submitted accordingly. At Panchnama of the accident spot the damage to the bus is mentioned as Rs.80,000/- while truck‟s glass, radiator, gear and both sides of the cabin were are also damaged in the truck, and a loss of Rs. 1,00,000 / - has been reported. The survey report through mark 38/2 and loss assessed as Rs. 1,44,560/-.. The complainant has accepted Rs.151 / - in cash with Mr. Kanabar from the mark 28/3 and the remaining amount of Rs.12,75,000/- has been paid through EMI each of Rs. 25,000/- from the 4.7.2015 which was executed on 26.6.2015 but as per mark 36/1, the agreement dated 05/07/2015 has been canceled and after that, on 10/09/2015 the accident was occurred. The complainant has an insurable interest in the crashed truck at the time of accident. Thus, only relaying on one document the claim cannot be repudiate which was not consider as justice, as per the judgment of the Hon'ble Supreme Court of India, the complainant has not reported any survey in his own way."
"(A/1) According to the authority presented by the parties, IV (2006) CPJ 84 (NC), in the case of New India Insurance Co.
Ltd. V/s. Kamal Nayan The National Consumer Disputes M. B. Desai A-21-299 Page 9 of 11 Redressal Commission observed that, as per the judgment of the Hon'ble Supreme Court of India, the surveyor's report is an important document and cannot be set aside unless there is some other important evidence. In the present case the complainant has not produced any evidence to the contrary."
11. This Court has come across the following judgments. (I) IV (2016) CPJ 355 (NC) in case of Om Prakash vs. Bajaj Allianz Gen. Ins. Co. Ltd., wherein, it is held as under:
"Based on the discussion above, it is clear that the impugned order passed by the State Commission is based on an erroneous interpretation of the facts and legal provision of the subject. There is absolutely no doubt that the ownership of the vehicle stood in the name of the complainant and the insurance policy was also in his name on the date of the accident, and the transfer deed made by the complainant in favour of his son-in- law stood revoked much before the accident. The impugned order is therefore, set aside. The order passed by the District Forum is upheld being valid in the eyes of law. There shall be no order as to costs."
(II) IV (2013) CPJ 22 A (CN) (Guj.) In case of Hasambhai Musabhai Abda vs. ICICI Lombard Gen. Ins. Co. ltd. wherein, it is held as under:
"In Insurance parlance sale of vehicle is to be complete when name of purchaser is transferred in RC Book. In case before us the purchaser has not paid installments and not got termination of H.P. Hence, question of Sec.2 (7) of Sale of goods Act does not apply. Insurance policy recognizes ownership based on RC Book and as per M.V. Act, 1988 and not as per sale of goods Act. Even CR 17 of LMT reads 'transfer of package policy in the name of the transferee can be done only on getting acceptable evidence of sale owner has not produced any such evidence as there is no acceptable transfer".
12. This Court has considered the reasons stated in memo of appeal, judgment and order passed by the Ld. District Commission, documentary evidence produced on record, ratio M. B. Desai A-21-299 Page 10 of 11 laid down by the Hon'ble Supreme Court in above referred judgments and facts and circumstances of the case. In my considered view that the insurable interest at the time of accident was with the complainant as the name of the complainant was registered in the RTO authority. I am of the opinion that order passed by the Ld. District Commission is legal, correct and valid in eye of law. Hence, there is no interference is required in the order passed by the ld. District Commission. Therefore, following final order is passed.
ORDER I) The appeal No. 299 of 2021 is hereby dismissed at the stage of admission.
II) The order dated 11.9.2019 passed by the Ld. District Commission, Junagadh in Complaint No. 45/2016 is hereby confirmed.
III) The appellant is directed to apply to the Account section of the State Commission with all details of Appeal No.299/21/CMA No. 78/2021, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with accrued interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
IV) No order as to costs. V) Copy of this order to be provided free of costs to the parties.
Registry is directed to send a copy this order to the District Commission Junagadh through E-mail in PDF format for taking necessary action.
Pronounced in the open Court today on 13th August, 2021 [Mr. V. P. Patel] President M. B. Desai A-21-299 Page 11 of 11