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Sujap Singh v/s Rajnish Kapoor & Another

    First Appeal No. 740 of 2011

    Decided On, 02 April 2018

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, MEMBER

    For the Appellant: G.S. Narula, Advocate. For the Respondents: Saurabh Kumar, Advocate.

Judgment Text

1. The complaint no.828/07, in the matter of Sh. Sujap Singh versus Rajnish Kapoor and Oriental Insurance Co. Ltd. having been dismissed by the Distt. Consumer Fora, North West, by orders dated 17.11.2011, Sh. Sujap Singh hereinafter referred to as appellant has preferred an appeal before this commission under Section 15 of the Consumer Protection Act 1986 (the Act) against the Oriental Insurance Co. Ltd., hereinafter referred to as respondents assailing the said order and praying for setting aside the order and for a direction to the respondents to make payment as prayed for in the complaint.

2. The facts of the case necessary for the adjudication of the appeal are these.

3. Sh. Amarjeet Singh, the father of the complainant, had purchased a policy for the truck No-HR-38-J-2818 registered in his name, for the period from 08.09.2004 to 07.09.2005 and for a sum of Rs. 7,00,000/-. The policy holder, during the period of the policy expired on 03.11.2014 and thereafter the appellant being the only legal heir continued plying the truck. On 22nd/23rd May 2005 the truck was stolen. The appellant lodged The FIR with the police authority and simultaneously informed the respondents about the vehicle having been lost as also about the demise of Sh. Amarjeet Singh. Claim was also preferred which was also necessary owing to the fact that the EMIs were deducted from his account by the ICICI from whom the loan was procured for the purchase of the vehicle, since lost.

4. The claim was finally repudiated vide letter of the respondents dated 18.04.2007, after a good deal of correspondence and discussion done for about two years and despite having complied with all the requirements as pointed out during this period. The contents of the letter of the repudiation are reproduced below:

'With reference to the above and the claim documents submitted by appellant. On basis of the claim, intimation forms, R/C other documents the competent Authority had repudiated the claim. They observed that Sh. Amarjeet Singh was the registered owner that captioned vehicle insured with us for the period of one year w.e.f. 08.09.2004 to 07.09.2005 the insured died on 03.11.2004 and the insurance was not transferred after his death. Subsequently, the theft took place 22-05-2005. Thereafter the theft intimation was conveyed to RTO/DTO for keeping file in the safe custody was given on 13.06.2005. Sh. Sujap Singh S/o Amarjeet Singh got the vehicle transferred in his name on dated 18.05.2006 after theft of the vehicle. This is a violation of condition No.8 of the policy in which it is clearly stated that:

'In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of death of the insured or until the expiry of the policy (whichever is earlier). During the said period legal heir(s) of the insured to whom the custody ad use of the vehicle passes may apply to have this policy transferred to this name of the heir(s) or obtain a new insurance policy for the motor Vehicle.'

Where such legal heir (s) desires to apply for transfer of this policy or obtain a new policy for the vehicle such heirs should make an application to the company accordingly within the aforesaid period alongwith (a) death certificate in respect of the insured proof of the title to the vehicle (c) original Policy. Hence based on the above, the competent Authority has repudiated your claim. This is for your information and record please.'

5. This led to filing of the complaint before the District forum which complaint as stated above stood dismissed vide orders dated 17.11.2011, which orders have been assailed here in this appeal. The grounds of appeal are that the District Fora erred in not considering their contentions. Secondly the appellant has been paying the EMIs against the loan procured for purchasing the vehicle as was done by his late father. Thirdly the District Forum failed to consider the judgment of the Hon’ble NCDRC wherein it has been emphatically laid that the claim of the consumers be not withheld or rejected on these technicalities of the insurance company. Finally the claim of the appellant could not have been repudiated only on the ground of the failure of the appellant in intimating the respondents about the demise of the insured.

6. The respondents were noticed and in response there to they had put in appearance, stating that they do not wish to file the reply as they would argue the matter based on the pleadings. The respondent had earlier filed their written statements before the Distt. Fora in response to the complaint, taking the stand that the claim is not payable since intimation regarding the death of the insured was not sent within three months of the death, a requirement under the policy cover.

7. The matter was listed before us for final hearing on 15.03.2018, when the Counsel for both sides appeared and advanced their argument. We have perused the records of the case and given a careful consideration to the subject matter.

8. The Ld. Counsel for the appellant had advanced three folded arguments in support of his claim, namely,a. the appellant is the only legal heir of the insured and he is plying the vehicles in that capacity,

b. the insurance done was of the vehicle and not of the person; and, finally,

c. EMI being paid by the deceased was continued to be paid by him leading to a conclusion that he had stepped into the shoes.9. He had also drawn out attention to the judgment of the Hon’ble NCDRC and one passed by this Commission in support of his arguments.

10. The Ld. Counsel for the respondents on the other hand argued that the appellant should have applied for the transfer of registration in his name within 14 days, which not having been done, is an act in violation of the terms of the agreement and if that be the position, the claim so preferred is not payable.

11. The Hon’ble NCDRC is pleased to pass an order on 30.03.2016 in the matter of New India Assurance Co. Ltd. Vs. Jagjit Singh in RP 4688 of 2008 holding as under:'Since in the instant case only vehicle was stolen and there was no damage by way of accident, therefore the question of Section 157 of Motor Vehicle Act and for that purpose the concept of third party interest was not at all applicable or invocable.

On the concept of equity, it is the vehicle which is insured and not the person and the only safeguard in such cases where total loss is by way of theft is that if the insurable interests have not been transferred in the name of the person who has purchased the vehicle in spite of being the actual owner, the 'No Objection Certificate' from the original owner as well indemnity bond from the claimant should be obtained. But in no way the insurance company can escape from its liability against the policy. If such a benefit is given to the insurance companies then it will get unjustly enriched whereas the actual consumer would be at great jeopardy and his interest would suffer.12. Further the Consumer protection Act, 1986, has widened the definition of ‘consumer’ to an extent that it includes a person who is the direct beneficiary of such services other than the person who actually hired or availed the service for consideration.

13. This Commission in its order dated 29.01.2007 passed in FA 1140/2006 in the matter of National Insurance Co. Ltd. Vs. Ram Gopal Sharma as reported in III [2007] CPJ 367 has held as under:'[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.'We further extend the concept of respondent being direct beneficiary to the effect that transfer of the name of the respondent in the insurance policy was merely an official formality because of respondent’s having already become the actual owner of the vehicle during the subsistence of the existing insurance policy. Once having accepted the respondent as the owne

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r of the vehicle, the insurance policy automatically stood transferred to his name, for the purpose of indemnification of the loss. There was no substantive obstacle or hindrance in indemnifying the loss of the vehicle by way of theft against subsisting insurance policy. 14. Having regard to the discussion done and law laid down we are of the considered view that the repudiation of the of the claim is not sustainable. The insurance company cannot escape its responsibility and obligation to allow the claim. Accordingly we set aside the orders passed by the Distt. Fora and direct the Insurance Company to settle and pay the claim within 30 days from the date of receipt of the order. 15. Ordered accordingly. Let a copy of this order be forwarded to the parties to the case as statutorily required. A copy of this order may be sent to the Distt. Fora for information. 16. File be consigned to records.