ORIENTAL INSURANCE COMPANY LTD. vs Kamper Concast Ltd.

THE respondent was the complainant before the District Forum. M/s. Kamper Concast Ltd., the respondent purchased a Maruti 800 Delux Car for his Director, Pawan Kumar Gupta who insured the car with the petitioner, Oriental Insurance Company under comprehensive policy B for the period from12.6.1998 to 11.6.1999. The car was for personal use and occupation of the respondent/ complainant, Pawan Kumar Gupta.

ON 21.8.1998, during the currency of the policy, when the car was being driven by its driver and it caught fire and was completely burnt. The complainant got S.D. entry No. 834 dated 26.8.1998 made and also informed the Insurance Company and its officials about the incident. Despite repeated requests, the Insurance Company neither settled the claim nor repudiated the same. Therefore, the complainant filed complaint before the District Forum seeking direction to the Insurance Company to pay him the insured amount of Rs. 2,54,000 along with Rs. 25,000 towards mental agony and physical harassment. The Insurance Company contended that the vehicle in question was registered in the name of one Shri Subodh Kumar and accordingly the complainant, Shri Pawan Kumar Gupta could not be the owner of the vehicle. The Insurance Company further contended that the car was insured with the Oriental Insurance Company with engine number and chassis number referred to by the complainant. However, the registration number was not furnished. As the complainant could not produce R.C. Book, Tax Token and Driving licence of the driver for verification before the Surveyor appointed by the Insurance Company, the Insurance Company closed the file as "no claim".

THE District Forum on the basis of facts, circumstances and evidence available on record held that the Insurance Company to be guilty of negligence and deficiency in service and accordingly directed the Insurance Company to pay to the complainant Rs. 2,25,000 plus litigation cost of Rs. 5,000 as the car of the complainant was totally burnt. Aggrieved by this order, the Insurance Company filed an appeal before the State Commission. The State Commission observed as follows: "Since the vehicle was got insured by the complainant after furnishing its engine number and chassis number and premium towards insurance was also paid by him, the Insurance Company must be precluded from disputing ownership of the complainant over the vehicle on the ground that it was registered in the name of one of his employees and at the time of insurance registration number was suppressed and not disclosed to the appellant. The appellant Insurance Company must have open eyes at the time of insuring the vehicle and now it could not dispute ownership on account of non -furnishing of registration number at the time of insurance was effected. It could no longer refute the insurance claim preferred by the insured complainant by setting up the plea that the complainant was not the owner of the vehicle and it must be owned by some one else. It may also be observed that no one else has so far come forward to claim ownership over the vehicle and to dispute the complainant''s claim".

THE State Commission held that the District Forum has rightly awarded compensation of a sum of Rs. 2,25,000 plus litigation cost of Rs. 5,000. The State Commission further held that the order of the District Forum did not suffer from any inherent infirmity and lacuna warranting interference at the appellate stage and, therefore, the appeal was dismissed. Hence this Revision Petition

AN application has been filed for condonation of delay of 61 days wherein it is mentioned that the file was rotated at various levels and finally it was decided to send the file to the Divisional Office for verification of R.C. of the vehicle, hence there was delay. We are not convinced with the reasons given for delay. Therefore, this Revision Petition is liable to be dismissed on the ground of delay alone. Even so, we have considered the case on merits.

WE have heard the learned Counsel for the petitioner and the respondent.

IN this case that the vehicle was covered by insurance during the accidental fire is not in dispute. The car was totally burnt is also not in dispute. Further the car''s engine number and chassis number were mentioned in the insurance policy correctly is also not in dispute. The only point of dispute is that the registration number of the vehicle was not furnished and it was registered in the name of Shri Subodh Kumar and not in the name of the owner of the car, Shri Pawan Kumar. This was controverted by the complainant stating that it was registered in the name of his employee as he had gone to pay the registration charges. The Insurance Company could not abrogate the claim of the complainant absolutely there was no misrepresentation of facts.

IT is not possible for the owner of the vehicle at every time to go to the RTO office for the registration of the vehicle. In this case the car was insured for a sum of Rs. 2,54,000 , which was claimed by the complainant on the basis of total loss. The cost of estimates for repairs prepared by the authorized dealer, M/s. Mithila Motors Limited was to the tune of Rs. 2,66,870 as against which the Surveyor estimated the loss on total loss basis at Rs. 2,25,000 . It is also on record that other than Shri Pawan Kumar Gupta nobody has come forward to claim ownership over the vehicle. The indemnification of the loss suffered due to the accidental fire caused to the car and as the car was totally burnt, it was not possible to produce the driving licence of the driver. We are unable to understand why the Insurance Company was in a hurry to register the vehicle in the absence of the registration number and raised this issue only when the claim was filed. This itself is the negligence and deficiency in service on the part of the Insurance Company.

NO one other than the complainant has come to claim the ownership of the car except the complainant and an affidavit to the effect that Subodh Kumar, in whose name the vehicle was registered, was the employee of the complainant has been filed. Therefore, there was no question of misrepresentation on the part of the complainant who was a bona fide purchaser and who had insured the vehicle.

IN this case on 26th September, 2008, when the case came up for admission hearing, the petitioner was directed that without prejudice to depositing 75% of the amount as per the Surveyor''s assessment of loss, within a period of four weeks, operation of the impugned order shall remain stayed.

THE ratio of the judgment quoted by the learned Counsel for the petitioner in the case of Complete Insulation Pvt. Ltd. v. New India Assurance Co. Ltd., I (1996) CPJ 1 (SC)=I (1996) CLT 22 (SC)=II (1996) ACC 536 (SC)=1996 (1) SCC 221, is not applicable to the case on hand for the following reasons: In the case quoted supra the issue involved was relating to the second hand purchase of vehicles and consequent transfer of insurance policy whereas the case under consideration does not relate to second hand purchase of vehicle. It relates to the purchase of new vehicle and there was no need of transfer of insurance policy in favour of the complainant as the insurance policy itself was purchased by the complainant.

IT is one of the basic duties of the Insurance Company to see the registration certificate (temporary or permanent) before insuring the vehicle. It has failed in its basic duties and later on the Insurance Company cannot be permitted to take a stand that the insured did not have insurable interest.

THERE is a clear cut deficiency of service on the part of the Insurance Company. There is also an element of contributory negligence on the part of the insured inasmuch as unwitting by not giving a proper letter to the officer incharge of registration of vehicles, the vehicle was got registered in the name of an employee of the complainant company rather than in the name of the complainant himself though insurance certificate was obtained by giving correct chassis number and engine number by the complainant.

THEREFORE , we cannot allow the complainant to have the full benefit of the insurance coverage. Hence we hereby partly allow the revision petition and order the Insurance Company to pay 75% of the amount awarded by the lower Fora. As the Insurance Company has deposited 75% of the amount as assessed by the Surveyor this amount shall be released to the respondent by the Registry. Balance amount shall be paid by the petitioner, Insurance Company within a period of six weeks from the date of this order. There shall be no order as to cost. R.P. Partly allowed.