BEFORE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CIRCUIT BENCH, RAJASTHAN, JAIPUR


Appeal No. 44/2008


Bhagwan Das S/o Shri Bhungar Mal Sindhi R/o Bigod, Tehsil Mandalgarh, Distt. Bhilwara.

..Appellant-Complainant


VS


The New India Assurance Co. Ltd., through Divisional Manager, Divisional Office: Balaji Market, Bhopalganj, Bhilwara.

..Respondent-Opposite Party


Before:

Mr. G.S. Hora, Presiding Member

Mr. Sikandar Punjabi, Member


Present:

Mr. S.K. Taylor, counsel for the Appellant

Mr. A.N. Pareek, counsel for the Respondent


ORDER Dated:08.05.2009


PER Mr. G.S. HORA, PRESIDING MEMBER


This appeal arises out of the order dated 1.2.2008 passed by the learned District Forum, Bhilwara whereby the complaint of the Complainant was dismissed.


Tata Indico Car bearing No. RJ-02/CA-0375 was originally owned by Shri Kamlesh Kumar Sharma in whose name the registration certificate stood. Thereafter the vehicle was purchased by Shri Surendra Somani from Shri Sharma and the registration certificate was also transferred in the name of Shri Somani on 29.7.2006. Later on the vehicle was purchased by the present Complainant Shri Bhagwan Das from Shri Somani and the registration certificate was again transferred on 18.9.2006 in the name of Bhagwan Das. The said vehicle was insured for a period from 13.5.2006 to 12.5.2007. This insurance was in the name of Shri Sharma which was got transferred by the Complainant in his name with effect from 21.9.2006 by paying Rs. 50/- as transfer fee. The vehicle met with an accident on 23.10.2006 and the vehicle was badly damaged for which a claim was filed but the payment has not been made to the Complainant so far, hence the complaint.


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A reply has been filed by the Assurance Co. wherein it has been admitted that the vehicle was earlier in the name of Shri Sharma and later on it was purchased by Shri Somani who thereafter sold it away to the present Complainant. The Assurance Co. has denied its liability on the ground that Shri Sharma had taken a claim on 'net loss basis' when the vehicle was insured with ICICI Lombard General Insurance Co. Ltd and thereafter he got the vehicle insured with New India Assurance Co. Ltd. for a period from 13.5.2006 to 12.5.2007. It

was alleged that Shri Sharma never disclosed this fact to the Respondent that the vehicle had earlier met with an accident and he had taken claim on 'net loss basis'. On this ground alone, the contention of the Assurance Co. is that since there is suppression of material fact by Shri Sharma, therefore, the present Complainant on the basis of such a policy cannot get any benefit. It has also been urged by the Respondent that the vehicle was transferred to Shri Somani before being transferred to Bhagwan Das in whose name, the insurance was not transferred, therefore, the transfer of the policy in the name of Shri Sharma will confer no right on the present Complainant to seek any relief from the Assurance Co. The learned District Forum dismissed the complaint on the ground that since Shri Sharma had obtained the insurance cover from the Respondent by giving false information, therefore, on the basis of that insurance cover, no claim can be allowed to the Complainant.


We have heard both the counsels and gone through the file carefully.


This argument that the insurance policy was not transferred in the name of Shri Somani before being transferred to the Complainant and therefore the Complainant is not entitled to get the claim is not acceptable. In our view, at the time when the insurance cover was transferred in the name of Bhagwan Das, the registration certificate should have been seen by the Assurance Co. The Assurance Co. should have seen whether at the time of transfer of insurance cover, the vehicle stood in the name of Shri Sharma or not? At this stage, it does not lie in the mouth of the Assurance Co. to say that the insurance cover was not transferred to Shri Somani and therefore the Complainant is not entitled to get any relief on the basis of insurance policy in question.


The facts on record go to show that the said vehicle had met with an accident earlier at the time when Shri Sharma was the owner of the vehicle and Shri Sharma had taken the claim from ICICI Lombard General Insurance Co. Ltd. on 'net loss basis' but he did not

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disclose this fact at the time of taking insurance cover from the Respondent. Undoutedly Shri Sharma was duty bound to have disclosed this fact to the Respondent while taking insurance cover but the question is whether the Complainant who had entered into a fresh contract with the Assurance Co. by paying Rs. 50/- as transfer fee is not entitled to get the claim on the aforesaid ground. In our view, the claim could not be denied to the Complainant because it has not been proved that he was 'hand in gloves' with Shri Sharma in getting this insurance cover. Had he been in consipracy with the previous owner, the situation would have been different. As a bonafide purchaser of the vehicle, if he had entered into a fresh contract with the Assurance Co. by getting the insurance transferred in his name by paying Rs. 50/- as transfer fee, it cannot be said that he is not entitled to get the claim arising out of the accident. We are of the view that the Complainant is certainly entitled to get the amount as assessed by the Surveyor on 'cash loss basis' which comes to Rs. 1,66,907/-.


Consequently, we allow this appeal and set aside the impugned order of the learned District Forum and direct the Respondent Assurance Co. to pay to the Complainant a sum of Rs. 1,66,907/- with interest @ 9% per annum from the date when the complaint was filed.


The Complainant shall also be entitled to get Rs. 2,500/- as cost of litigation.



Member Presiding Member



Hira Lal