Haryana

Karnal

CC/597/2023

Shakti Gupta - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Tanvi

13 Dec 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.597 of 2023

                                                        Date of instt. 17.10.2023

                                                        Date of Decision: 13.12.2024

 

Shakti Gupta son of Shri Ashwani Gupta, resident of house no. 99, Shakti Colony, Karnal.

 

                                                                        …….Complainant.

                                              Versus

 

The New India Assurance Co.Ltd. old G.T. Road, above Punjab National Bank, Karnal through its Sub Divisional Officer.

 

                                                                   …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Ms. Ankita Gupta, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OP.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that one Vikram Maini son of Shri Subhash Chand Maini was the registered owner of vehicle no.HR-45-C-7224 and the said vehicle was insured with the OP, vide policy no.35360031210100004167, valid from 08.02.2022 to 07.02.2023 with IDV of Rs.18,50,000/-. Complainant purchased the said vehicle for his self earning and livelihood from Vikram Maini through commission agent namely Lalit Kumar and Prem Chhabra. The complainant for purchasing the said vehicle, too the financial assistance from M/s Tata Motors Finance Solution Limited. Vikram Maini handed over all the documents to the complainant in order to facilitate the transfer of said vehicle in favour of the complainant. Thereafter, complainant applied in Regional Transport Office for the transfer of said vehicle in his name and the vehicle was transferred in his name on 24.03.2022. Thereafter, complainant approached the office of OP for the transfer of insurance policy in his name on 25.03.2022 and the official of the OP told the complainant to come on 28.03.2022 but unfortunately the abovesaid vehicle was stolen on 26.03.2022 (night). The complainant got registered a FIR no.261 dated 27.03.2022 under section 379 IPC in Police Station City, Karnal, regarding the theft of the abovesaid vehicle. The matter was also reported to the OP qua the theft of vehicle. The investigator was appointed by the OP and all the formalities were completed by the said investigator. As per the insurance policy, the transferee should apply in 15 days from the date of transfer and in the present case the vehicle is stolen within 15 days of purchase and thus, the insurance company is liable to process the claim amount. Even complainant has applied for the loan against the above mentioned vehicle and loan amount was sanctioned by M/s Tata Motors Finance Solution Limited and therefore, entry regarding the hypothecation was entered in the registration certificate of the vehicle in question, but before the disbursement of the loan amount, the vehicle was stolen and the abovesaid finance company issued NOC for termination of HPA from the registration certificate. . However, in order to avoid the payment of claim amount to the complainant, OP repudiated the claim of the complainant, vide letter dated 23.12.2022 on the false and frivolous ground. The repudiation of the claim of complainant is illegal, arbitrary, unjustified. After repudiation of the claim, complainant approached to the Insurance Ombudsman, Chandigarh, vide complaint no.CHD-G-049-2223-520 but the said complaint has been dismissed by the Insurance Ombudsman on the ground that there is no evidence on record to show that the complainant requested the insurance company for the change of name in policy. The Insurance Ombudsman even failed to consider this fact that the change of name in policy to be made in 14 days from the date of transfer.

2.             It is further averred that complainant sent the letter dated 16.01.2023 to Lalit Kumar regarding the statement made by him to the investigator and Lalit Kumar and the same was replied by Lalit Kumar in which he clearly mentioned that the said statement was made in good faith for the settlement of claim in favour of complainant and he never received the amount from complainant and the aforesaid vehicle was of Shri Vikram Maini. He has no concern with M/s Karnal associates. He has no concern with the vehicle. He further states he deal in sale and purchase of the second hand commercial vehicles and further felt sorry for his mistake. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence complainant filed the present complaint seeking direction to the OP to pay Rs.18,48,500/- the Insured Declared Value of the vehcile alongwith 18% interest, to pay Rs.2,00,000/- as compensation for mental pain, agony and harassment and Rs.55,000/- as litigation expenses.

3.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that vehicle in question is commercial vehicle and also registered as commercial vehicle. Same was not used for livelihood and also it has been acknowledged in the complaint that the vehicle was driven by driver Vikramjeet, the fact mentioned above clears that the vehicle was used for commercial purpose not for livelihood. It is further pleaded that the said vehicle allegedly theft on 26.03.2022 and after receiving the intimation, company appointed Investigator M/s Royal associates to investigate the matter and as per report, insured Vikram Mani has sold his vehicle in the month of February, 2022 to Mr. Lalit Kumar c/o M/s Karnal Associates. After this sale, Mr. Lalit Kumar sold the same vehicle to Mr. Shakti Gupta in the month of March, 2022. Mr. Shakti Gupta transferred an amount of Rs.7,97,048/- through RTGS to M/s Karnal Associates, a firm of Mr. Lalit Kumar on 21.03.2022. Since insured Vikram Maini has already sold the vehicle to M/s Karnal Associates in February, 2022 and now RC stands in the name of Mr. Shakti Gupta. In view of above neither the insured Vikram Maini nor Shakti Gupta have insurable interest in vehicle no.HR-45C-7224 at the time of alleged theft. As per terms and conditions of policy of insurance and settled law, OP is not liable to pay the claim, so claim of the complainant has rightly been repudiated by the OP, vide letter dated 23.12.2022. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1, copy of repudiation letter dated 23.12.2022 Ex.C1, copy of letter to RTO dated 30.03.2022 Ex.C2, copy of complaint dated 10.02.2023 Ex.C3, postal receipt Ex.C4, postal order Ex.C5, copy of letter dated 20.12.2022 to Divisional Manager Ex.C6, copy of untrace report dated 25.07.2022 Ex.C7, copy of driving licence of Vikramjeet Ex.C8, copy of RC in the name of Vikram Maini Ex.C9, copy of RC in the name of Shakti Gupta complainant Ex.C10, copy of aadhar card of Vikram Maini Ex.C11, copy of self declaration of RC transfer given by Vikram Maini Ex.C12, copy of pollution control certificate Ex.C13, copy of NOC by Tata Motors in favour of Shakti Gupta Ex.C14, copy of removal letters by Tata Motors Finance Ex.C15, copy of account summary of Vikram Maini Ex.C16, copy of Blacklist status by RTA Ex.C17, copy of Permit in respect of National Permit Heavy Goods Vehicle Ex.C18, copy of email dated 24.02.2023 Ex.C19, copy of affidavit of Lalit Kumar Ex.C20, copy of form no.34 Ex.C21, copy of notice of termination of an Agreement of Hire Purchase/Lease/ Hypothecation Ex.C22, copy of aadhar card and PAN Card of Shakti Gupta Ex.C23, copy of emails dated 25.01.2023 and 03.02.2023 to NIA Ex.C24 and Ex.C25. copy of letter to Grievance Officer dated 20.12.2022 Ex.C26, postal receipt dated 26.12.2022 Ex.C27, copy of complaint before Insurance Ombudsman Ex.C28, postal receipt dated 01.02.2023 Ex.C29, copy of FIR dated 27.03.2022 Ex.C30, copy of proceedings before Insurance Ombudsman Ex.C31, copy of affidavit of Lalit Kumar dated 31.05.2024 Ex.C32, copy of affidavit of Vikram Maini dated 31.05.2024 Ex.C33, copy of affidavit of Prem Chhabra dated 31.05.2024 Ex.C34 and closed the evidence on 31.05.2024 by suffering separate statement.

6.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of R.K. Mittal Manager Ex.RW1/A, affidavit of Devender Kumar Ex.RW2/A, copy of repudiation letter dated 23.12.2022 Ex.R1, copy of  investigation report Ex.R2, copy of account transaction statement Ex.R3, particulars of vehicle Ex.R4, copy of RC Ex.R5, copy of insurance policy Ex.R6, copy of terms and conditions of the insurance policy Ex.R7, copy of order of Insurance Ombudsman Ex.R8 and closed the evidence on 29.10.2024 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased the vehicle in question for his self earning and livelihood from Vikram Maini through agents namely Lalit Kumar and Prem Chhabra. The complainant got financed the said vehicle from M/s Tata Motors Finance Solution Limited but due to theft of the vehicle complainant got cancelled the loan. Complainant applied for transfer of the registration before the Regional Transport Office and on 24.03.2022, the vehicle was transferred in the name of complainant. On 25.03.2022, complainant approached the OP for  transfer of insurance policy in his name but the official of the OP called the complainant on 28.03.2022 but unfortunately the vehicle of the complainant was stolen in the night of 26.03.2022. The intimation was given to the OP as well as to the Police. The Police lodged the FIR on 27.03.2022. He further argued that as per Section 157 of Motor Vehicles Act, 1988, on transfer of ownership of the vehicle, the owner  can apply for transfer of the insurance policy within 14 days on its transfer but vehicle in question was  stolen within four days of its transfer, so complainant could not applied for transfer of insurance policy. The claim of the complainant has been repudiated by the OP on the false and frivolous ground and lastly prayed for allowing the complaint.

9.             Learned counsel for OP, while reiterating the contents of the written version, has vehemently argued that the vehicle in question has been purchased by the complainant for commercial purpose. On 26.03.2022, on receipt of intimation with regard to the theft of the vehicle in question, OP had appointed Investigator to investigate the matter. As per investigator report, insured Vikram Maini has sold his vehicle in the month of February, 2022 to Mr. Lalit Kumar and thereafter Lalit Kumar sold the said vehicle to complainant in the month of March, 2022. Complainant transferred an amount of Rs.7,97,048/- in the account of Mr. Lalit.  Since insured Vikram Maini has already sold the vehicle to M/s Karnal Associates in February, 2022 and now RC stands in the name of complainant. Thus, neither the insured Vikram Maini nor complainant has insurable interest in vehicle in question at the time of alleged theft. Hence, the claim of complainant was rightly repudiated by the OP and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Before going into the merits of the case, firstly we decide whether the complainant falls within the definition of “consumer” as per Consumer Protection Act, 2019 or not?

12.           The OP has alleged that the vehicle in question is being used for commercial purpose. The onus to prove its version was relied upon the OP, but OP has miserably failed to prove its version by leading any cogent and convincing evidence that the vehicle was being used for commercial purpose. Rather, complainant has specifically mentioned in para no.3 of the complaint that he purchased the said vehicle for his self earning and livelihood. Only the commercial vehicle insured does not mean that the same is used for commercial purpose. In this regard, we placed reliance upon the case law titled as M/s Prabhu Dayal Trilok Chand Versus Oriental Insurance Company Limited and Anr. in consumer case no.908 of 2016 decided on 24.05.2022 of Hon’ble National Commission wherein the Hon’ble National Commission held that a contract of insurance is a contract of indemnity and, therefore, there is no question of commercial purpose in obtaining insurance coverage. The complainant is a consumer and the complaint is maintainable. Further, in case titled as M/s Paramount Digital Color Lab and Ors etc. Versus M/s Agfa India Pvt. Ltd. and Ors. etc. in civil appeal nos. 2109-2110 of 2018 decided on 15.02.2018 wherein the Hon’ble Supreme Court held that if person purchases goods for commercial purpose and such commercial purpose is for earning livelihood by means of self employment-Such person will come within definition of consumer-Appellant purchased machine for self employment- Quality of ultimate production of machine depends upon skill of person who uses machine-In case of exigencies, if person trains another person to operate machine so as to produce final product based on skill and effort in matter of photography and development, same cannot take such person out of definition of consumer.  In view of the ratio of the law laid down in the aforesaid judgments, facts and circumstances of the case, the present complaint is maintainable before this Commission.  Hence, plea taken by the OP has no force.

13.              The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C1/Ex.R1 dated 23.12.2022 on the ground, which is produced as under:-

“As per the investigator M/s Royal Associates report, our insured i.e. Mr. Vikram Maini,  has sold his vehicle in the month of February, 2022 to Mr. Lalit Kumar c/o M/s Karnal Associates. After this sale, Mr. Lalit Kumar sold the same vehicle to Mr. Shakti Gupta (complainant) in the month of March, 2022. Mr. Shakti Gupta transferred an amount of Rs.7,97,048/- through RTGS to M/s Karnal Associates, a firm of Mr. Lalit Kumar dated 21.03.2022. Since our insured has already sold the vehicle to M/s Karnal Associates in February, 2022 and now the RC stands in the name of Mr. Shakti Gupta.

In view of the above, neither the insured Mr. Vikram Maini nor the claimant Mr. Shakti Gupta has insurable interest in Vehicle No.HR-45-C-7224 at the time of alleged theft.

Hence, as per general regulations, terms and conditions of the policy, we have no other alternative but to repudiate your claim in total.”

14.           The claim has been repudiated by the OP on the abovesaid ground. In the repudiation letter OP has alleged that Vikram Maini has sold the vehicle in question in the month of February, 2022 to Mr. Lalit Kumar owner of M/s Karnal Associates, and after that Lalit Kumar sold the vehicle to complainant in March, 2022. The onus to prove its version was relied upon the OP but OP has miserably failed to prove its version by leading any cogent and convincing evidence. OP has alleged that the complainant has transferred an amount of Rs.7,97,048/-through RTGS to M/s Karnal Associates, firm of Lalit Kumar on 21.03.2022. If the said amount has been transferred by the complainant to M/s Karnal Associates, it does not mean that complainant has transferred the said amount only for purchasing the vehicle in question. Rather, during the course of evidence, Lalit Kumar has tendered his affidavit Ex.C32. In the said affidavit, he has specifically stated that he deals in the sale and purchase of the vehicle on commission basis alongwith Prem Chhabra and also doing the businesses of transport. He further stated that Vikram Maini has sold the vehicle in question to Shakti Gupta complainant. He further stated that he has not taken any money from Shri Shakti Gupta relating to sale of vehicle. Vikram Maini also tendered his affidavit Ex.C33 stating therein that he has sold the vehicle in question to Mr. Shakti Gupta (complainant) through agents Lalit Kumar and Prem Chhabra and he has executed all the relevant documents in favour of the Shakti Gupta (complainant). Further, Prem Chhabra also tendered his affidavit Ex.C34 on the same lines as stated by Mr. Lalit Kumar in his affidavit Ex.C32.  Hence, it has been proved on the record that the vehicle in question has not been purchased by Lalit Kumar rather same  has been purchased by the complainant through Lalit Kumar and Prem Chhabra.  Hence, the plea taken by the OP that the complainant has no insurable interest in the vehicle in question has no force.

15.           The vehicle in question has been transferred in the name of complainant on 24.03.2022, this fact has not been denied by the OP. After transfer of the ownership in his name, complainant approached the OP i.e. insurance company on 25.03.2022 for transfer of the insurance policy in his name but the official of the OP called the complainant on 28.03.2022 and unfortunately the vehicle of the complainant was stolen in the intervening night of 26.03.2022, within four days of its transfer. As per section 157(2) of Motor Vehicles Act, 1988, the transferee shall apply for transfer of the insured policy, within fourteen days from the date of transfer of RC in favour of transferee. The Section 157 of Motor Vehicles Act, 1988 is reproduced as under:-

157. Transfer of certificate of insurance. –

(1) Where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour, and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance”

And as per the Central Motor Vehicle Rules, 1989 Rule 144. Transfer of certificate of insurance.—When the ownership of a motor vehicle covered by a valid insurance certificate is transferred to another person together with the policy of insurance relating thereto the policy of insurance of such vehicle shall automatically stand transferred to that other person from the date of transfer of ownership of the vehicle and the said person shall within fourteen days of the date of transfer intimate to the authorised insurer who has insured the vehicle, the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the authorized insurer may make the necessary changes in his record.

 

16.            In the present case, complainant purchased and got transferred the vehicle on 21.03.2022 and the same has been stolen on 26.03.2022 i.e within five days of its transfer. The prescribed period for applying for transfer of insurance policy in the name of purchaser has not yet been expired. Complainant could have applied for transfer the insurance policy within 14 days from the transfer of vehicle in his name. Hence, plea taken by the OP that the insurance policy has not been transferred in the name of purchaser i.e. complainant has no force.

17.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

18.           Keeping in view the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OP while repudiating the claim of complainant amounts to deficiency in service and unfair trade practice.    

19.           As per insurance policy Ex.R6, the insured declared value of the vehicle was Rs.18,50,000/-. Hence complainant is entitled for Rs.18,50,000/- the IDV of the vehicle alongwith interest, compensation for mental pain, agony and harassment and litigation expenses.   

20.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.18,50,000/- (Rs. eighteen lakhs fifty thousand only) the IDV of the vehicle in question alongwith interest @ 9% per annum from the date of repudiation of claim i.e. 23.12.2022 till its realization to  the complainant. We further direct the OP to pay Rs.25,000/- to complainant on account of mental, pain agony and harassment suffered by him and Rs.11,000/- for the litigation expense. Complainant is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question in favour of OP.  This order shall be complied within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 13.12.2024                                                            

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

         (Neeru Agarwal)               (Sarvjeet Kaur)

            Member                           Member