CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE



FIRST APPEAL NO.747/2008 Date of Filing:- 26/05/2008

M.A.No.1061/2008 & 1062/2008

IN CONSUMER COMPLAINT NO.204/2007 Date of Order:- 13/05/2009

DISTRICT CONSUMER FORUM, KOLHAPUR



National Insurance Company Limited,

Office at Kolhapur,

through its Western Regional Office,

having at 5th Floor, Sterling Cinema Building,

Murzban Street, Fort,

Mumbai ... Appellant (Org. Opponent)

-Versus –



Shri Prabhakar Marutrao Konduskar,

R/at 157-E, Friends Colony, Shivaji Park, Kolhapur,

Through his Power of Attorney Holder

Shri Shashikant Youraj Mandalik,

R/at 278, B-6, Plot No.19, Laxmi Vasahat,

Jawahar Nagar, Kolhapur,

Taluka-District-Kolhapur ... Respondent (Org. Complainant)





Corum :- Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member,

Smt.S.P.Lale, Hon’ble Member.



Present :- Mr.Sanjay Mhatre, Adv. for the Appellant.

None present for the Respondent.



O R D E R



Per Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member



1) Being aggrieved by the judgment and award passed by the District Consumer Forum, Kolhapur in Consumer Complaint No.204/2007 decided on 14/3/2008 whereby by allowing the complaint the Forum below directed appellant insurance company to pay sum of Rs.4,29,849/- from 9/4/2007 with interest at the rate of 9% per annum and also awarded cost of Rs.5,000/-, the Org. O.P./National Insurance Company limited has filed this appeal challenging the said award. In fact, this complaint along with Consumer Complaint No.203/2007 and Consumer Complaint No.205/2007 was decided by the Forum below by delivering common judgment and award but since appeals are individually filed, we propose to decide each appeal independently on merit.



2) The complainant and his brother Shri Deepak Konduskar, purchased 16 buses each for business and all those buses were insured with the National Insurance Company Limited, Kolhapur. Bus No.MH-09-L-5247 was owned by Shri Prabhakar Konduskar. The said bus met with an accident on 18/4/2006. After the accident, the claim for Rs.4,78,943.58/- was lodged with the National Insurance Company. The O.P./insurance company appointed the Surveyor who made spot inspection at the site of accident. The complainant then got repaired the said vehicle and submitted the bills of repairs along with the claim form. Again, this matter was referred to Surveyor. After receipt of survey report, the insurance company however sent repudiation letter and asserted that the policy was purchased by Shri Deepak Konduskar, whereas vehicle was owned by Shri Prabhakar Konduskar who is not insured in respect of vehicle in question. As such, Shri Prabhakar Konduskar, filed consumer complaint in the Forum below claiming repair charges of Rs. 4,78,943.58/- with interest at the rate of 18% per annum. He also claimed Rs.20,000/- for the mental harassment and cost of the complaint.



3) The O.P./insurance company filed written statement and contested the matter. According to the insurance company, as per policy and cover note Shri Deepak Konduskar was the insured of the vehicle in question. The insurance policy was purchased by Shri Deepak Konduskar and Shri Prabhakar Konduskar is seeking insurance claim in his name. The insurance company pleaded that Shri Prabhakar Konduskar has no locus standi to file consumer complaint or to receive claim for the vehicle owned by Shri Deepak Konduskar who had purchased policy for bus no.MH-09-L-5247. The insurance company pleaded that after R.T.O. allots registration number to the vehicle, cover note is issued to the party mentioning therein the owner of the vehicle in question. So, the insurance company committed no mistake in issuing policy in terms of cover note. The insurance company therefore pleaded that policy was purchased wrongly in the name of Shri Deepak Konduskar whereas the vehicle was belonging to Shri Prabhakar Konduskar. Therefore, it had rightly repudiated the claim.



4) On the basis of affidavits and documents placed on record, the Forum below partly allowed the claim and directed O.P./insurance company to pay Rs.4,29,849/- to the complainant with interest at the rate of 9% per annum from 9/4/2007 besides cost of Rs.500/-. As such, the insurance company filed this appeal



5) There has been delay in filing this appeal. Delay is of 31 days and Insurance Company has filed an application seeking condonation of delay in filing of appeal. Delay has been properly explained in para 4 of the application. On hearing Mr.Sanjay Mhatre, Adv. for the appellant/insurance company we are inclined to allow the miscellaneous application for condonation of delay subject to cost of Rs.500/- to be paid by the appellant to the Consumer Legal Aid Fund of this Commission.



6) We heard submissions of Mr.Sanjay Mhatre, Adv. for the appellant/insurance company. None appeared for the respondent.



7) We perused the survey report, claim application and other papers filed by the complainant. Claim was preferred by Shri Prabhakar Marotrao Konduskar and policy period was 25/10/2005 to 24/10/2006. Accident took place on 18/4/2006 at 7.30 a.m. near Rajaram College Chowk, Kolhapur. It was tried to be argued by the counsel for the appellant that the policy was purchased by Shri Deepak Konduskar and therefore Shri Prabhakar Konduskar can not get insurance claim as per G.R.No.34 of Indian Motor Tariff. Letter of repudiation was sent by the insurance company to Shir Deepak Konduskar on 9/4/2007. The policy no doubt mentions name of Shri Deepak Konduskar. He had purchased policy for vehicle No.MH-09-L-5247. However, in the survey report submitted by Shri Shinde, the Surveyor, it has been mentioned that as per insurance policy insured was Shri Deepak Konduskar and as per registration certificate owner is Shri Prabhakar Marotrao Konduskar. In the course of arguments, we asked Mr.Sanjay Mhatre, learned counsel for the appellant that when registered owner is Shri Prabhakar Marotrao Kondusar how is it that they had issued policy in the name of Shri Deepak Marotrao Konduskar So, mistake if any was committed by insurance company itself. Mr.Sanjay Mhatre, submitted that policy issued on the proposal form submitted by the person purchasing policy. In the proposal form owner was shown as Shri Deepak Konduskar when in fact the said vehicle was belonging to Shri Prabhakar Konduskar. He submitted that mistake was committed not by insurance company but by person purchasing policy. The bus was insured by Shri Deepak Marotrao Konduskar though in fact this bus was owned by Shri Prabhakar Konduskar. So, the complainant was not the owner of the vehicle but he purchased policy in his name alleging that he was the owner of vehicle No.MH-09-L-5247. It is only the owner of the vehicle who has got insurable interest and who alone can purchase policy for the bus in question. But since policy purchaser is Shri Deepak Konduskar and owner of the vehicle No.MH-09-L-5247 is Shri Prabhakar Konduskar the insured is not having insurable interest in the bus in question and therefore the complainant Shri Prabhakar Konduskar has no locus standi to file consumer complaint. On this ground alone the repudiation letter was sent. In the repudiation letter dated 9/4/2007 it was made clear to Shri Deepak Konduskar that R.C. book showed owner of the vehicle as Shri Prabhakar Marotrao Konduskar and it was further made clear that G.R.No.34 of India Motor Tariff states that it is not permissible to insure any vehicle in the name of insured not confirming to the name recorded as owner of the vehicle in the vehicle registration document and for this purpose the claim was rightly repudiated by the insurance company. In the claim petition lodged with the insurance company, claim was lodged by Shri Prabhakar Marotrao Konduskar but policy was purchased by Shri Deepak Marotrao Konduskar. So, the person who was not owner had purchased the policy for the bus No.MH-09-L-5247 which he was not entitled in law to do so. On this ground the claim of the complainant was rightly repudiated by the insurance company urged Mr.Sanjay Mhatre, Adv.



8) We are in total agreement with the submission of learned counsel for the insurance company. Admittedly, bus No.MH-09-L-5247 was owned by Shri Prabhakar Konduskar However, policy for this bus was purchased by Shri Deepak Konduskar who had no insurable interest in the bus in question. So, there was direct violation of G.R.No.34 of Indian Motor Tariff. As such, the insurance company rightly repudiated the claim lodged by the Shri Prabhakar Konduskar (owner of the bus) who had not purchased the policy in question. So, repudiation of the claim made by the insurance company by it’s letter dated 9/4/2007 was legal and proper. The Forum below erroneously allowed this complaint and passed award in favour of Shri Prabhakar Konduskar/respondent herein though he was not registered owner of the vehicle on the day policy was purchased. Policy was purchased by Shri Deepak Konduskar for the bus owned by his brother. This fact was lost sight of by the Forum below in allowing the complaint filed by respondent herein. What is pertinent to note is the fact that before accident took place on 18/4/2006 the complainant had not sent letter to the insurance company requesting that policy should be rectified and his name should be mentioned in the policy as owner of the vehicle. In fact, the complainant sent letter on 16/5/2006 i.e. after the accident. Such a letter was rightly ignored by the insurance company because cause of action for lodging claim had already arisen on the date of accident on 18/4/2006. So, subsequent endeavor of the complainant to get his name inserted in place of Shri Deepak Konduskar was an exercise in futility. In the circumstance, we are of the view that the insurance claim decreed by the Forum on the basis of policy purchased by the respondent’s brother is bad in law and can not be allowed to sustain in law. The learned District Forum clearly erred in law in allowing the complaint which ought to have been dismissed solely on the ground that insured was Shri Deepak Konduskar whereas Shri Prabhakar Konduskar was the owner of illfated bus and insured who purchased policy had no insurable interest in the bus in question when he purchased the policy. Thus, the appeal will have to be allowed setting aside the judgment and award passed by the District Forum. Hence, we pass following order.

O R D E R



1) M.A.No.1061/2008 for condonation of delay is allowed subject to cost of Rs.500/- to be paid by the appellant to the Consumer Legal Aid Fund of this Commission.



2) Delay is condoned.



3) Appeal is allowed.



4) Impugned judgment and award passed by the Forum below in Consumer Complaint No.204/2007 is quashed and set aside.



5) Complaint stands dismissed.



6) Parties are left to bear their own cost.



7) M.A.No.1062/2008 which is for stay stands disposed of.



8) Inform the parties accordingly.



( Smt.S.P.Lale ) (P.N.Kashalkar )

Member Presiding Judicial Member