Consumer Complaint No: 45/2008
Date of presentation: 20.03.2008
Date of decision: 15.01.2010
Padam Dev S/O Shri Govind Ram,
Village Kalyan, P.O. Materni, Tehsil
Arki, District Solan, H.P.
The Bajaj Allianz General Insurance Company,
S.C.O. Sector 8-C, Chandigarh,
Through its Manager.
For the complainant: Mr. D.K. Kaushal, Advocate.
For the Opposite Party: Mr. Umesh Sharma, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that he, is, registered owner of vehicle Pick up Van bearing registration No.HP-11B-0305, which was insured by him with the OP-Company. The complainant further proceeded to aver that the aforesaid vehicle met with an accident, on, 11.08.2007. The factum of vehicle having met with an accident, was reported to the OP-Company. Thereafter, it is averred, that the claim was lodged with the OP-Company, who instead of settling withheld the indemnification amount, on one pretext or the other. The complainant further avers that he had entered into an agreement with Shri Jay Pal S/O Shri Dhari Ram with regard to sale of the above vehicle on payment of balance sum of Rs.15,000/-, which payment was to be made on or before 15.3.2007, who filed to make the payment of Rs.15,000/- and also committed default in monthly installments. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.
2. The OPs, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint, privity of contract and estoppel. On merits, it is contended that at the time of loss, the vehicle had already been sold to one Shri Jai Pal S/O Shri Dhari Ram, in pursuance of the affidavit executed interse the parties, on, 01.09.2007. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant avers that during the currency of the insurance policy, purchased by him from the OP-Company, and while it was in his possession it, met with an accident, on, 11.08.2007, as is, revealed from, a, copy of FIR placed on record and which bears Annexure-C. However, the OP-Company resists the claim of the complainant on the score, that, during the currency of the insurance policy, the, complainant, had, already sold the vehicle to one Shri Jai Pal S/O Shri Dhari Ram, hence, their was, an, active concealment by the complainant of the fact, that, the transfer of vehicle, by, him has been effected in favour of Shri Jai Pal, hence, the concealment to the above extent, is, canvassed to be tantamounting, to, suppressio veri, as well, as militating against the solemn principle of ubberima fides on which principle all contracts of insurance are anchored and which principle, gets, vitiated by suggesio falsi which, in, turn also, vitiates, the, insurance cover purchased by the complainant from the insurer, consequently, making the repudiation of the claim of the complainant, to, be tenable.
6. The OP-Company, in, canvassing the above contention relies upon Annexures OP-1, OP-2 & OP-3, which, are, copies of the affidavits and receipt, executed interse the parties. Undisputedly, the insurance cover as was purchased by the complainant from the OP-Company was valid upto 23.11.2007, whereas, the accident, took place on 11.08.2007, and, the affidavits were executed interse the parties, on, 24.11.2006. The, recital by Shri Padam Dev in the copy of the affidavit of his having sold the vehicle to Shri Jai Pal, is, contemporaneous to the policy, covering, the, risk as detailed in the comprehensive insurance policy purchased by the complainant from the OP-Company, inasmuch, as, both, have been executed on 24.11.2006. Assuming, that, entire sale consideration, had, passed in favour of the registered owner from Shri Jai Pal, as also, its, possession had been transferred to the later, nonetheless, with the purported purchaser of the vehicle, which was the subject matter of incident, having, not adhered to the procedure prescribed by the law or having omitted to get it registered in his name, in our considered view, would not result in a complete and effective conveyance of the ownership of the vehicle, in, his favour in accordance with the rules. Therefore, when the complainant continued to be the registered owner of the vehicle, which, was, subject matter of incident, it, was open for him to seek the insurance cover from the OP-Company encompassing the risks as detailed in it and which policy obliges the OP-Company to indemnify the complainant, in case the subject matter of the insurance cover, which is the vehicle, is, subjected, to, accident as was so subjected to.
7. Moreover, for lack of the passing, of, the title of the vehicle in favour of Shri Jai Pal, the, OP-Company cannot allege, on, the strength of a recital, in, the affidavit, that, he had become owner of the said vehicle by paying to the complainant the sale consideration, thereof, and, that ,hence, with, the, complainant having received the sale consideration of the vehicle, which was the subject matter of incident, he, had, divested himself from the ownership of the vehicle. Nor also, the OP-Company cannot canvass before, us, in the absence of Shri Jai Pal having not become the registered owner of the vehicle, on, the strength of a recital in the affidavit made by the purported unregistered purchaser Shri Jai Pal, that, their was a breach of ubberima fides by the complainant, hence, vitiated the contract of insurance, consequently, debarring, or interdicting the OP-Company from honouring the insurance cover executed by it in favour of the complainant. More so, when, the purported transferee, under affidavit, could well after a valid conveyance in his favour, could, also, in accordance with rules seek transfer, of the insurance cover, in his favour which he omitted to do. As also, when it was an act of sagacity of the owner to seek insurance, so as to, hence, clothe, it, with an indemnifiable insurable interest, which, as aforesaid was transferable.
8. The upshot of the above discussion, is, that the contention as canvassed before us by the OP-Company in seeking to repudiate the claim of the complainant are wholly unfounded and untenable and amount to deficiency in service
9. Now it is to be determined as to what amount of indemnification is payable by the OP-Company to the complainant. The vehicle was insured for an amount of Rs.3,00,000/-, on IDV, as is evident from the existence of copy of insurance cover Annexure-A, place don record by the complainant. The complainant claims an amount of Rs.3,74,701/- from the complainant. The OP-Company, has not placed on record survey report to assess the loss caused to the damaged vehicle. In the absence of cogent, convincing and apposite evidence having been adduced by the OP-company, we are left with no other option, but, to, direct the OP-Company, to indemnify the complainant to the extent of Rs.3,00,000/-, on repair basis, on account of the fact that the vehicle was insured on, insured’s declared value.
10. Consequently, we allow this complaint and direct the OP-Company, to indemnify the complainant to the extent of Rs.3,00,000/- on repair basis, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e.20.03.2008, till actual payment is made. In addition to this, the OP-Company shall also pay litigation cost, which in the given facts and circumstances of the case is quantified at Rs.3500/-. This order shall be complied with by the OP-Company within a period of forty five days after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.