BANT SINGH S/o Sher Singh vs BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., & ORS.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 29.04.2011, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in First Appeal No. 369/2009, "Bajaj Allianz General Insurance Co. Ltd. & Ors. vs. Bant Singh", vide which, while allowing the said appeal, the order dated 19.01.2009, passed by the District Forum Mansa in consumer complaint No. 36/2008, filed by the present petitioner, allowing the said complaint, was modified.

The facts of the case are that the petitioner/complainant Bant Singh filed consumer complaint against the opposite party (OP) Bajaj Allianz General Insurance Co. Ltd. saying that he purchased a Honda Civic vehicle, bearing registration No. PB31E 8700 on 11.04.2007 from the dealer Prestige Honda, Lally Motors Patiala. The said vehicle was insured with the OP Insurance Company vide cover note dated 11.04.2007 and a sum of 34,229/- was paid as premium. The said vehicle met with an accident on 30.09.2007 at about 2 PM at Rajiasir (Rajasthan) and was totally damaged. The vehicle was brought to M/s. Lally Motors Limited who made an estimate of 9,65,017/- for the repair of the vehicle and for making it roadworthy. The complainant filed insurance claim with the opposite party, claiming full payment of the sum assured, as the vehicle had suffered total loss. It is stated that at one point of time, the OP insurance company agreed to pay the said claim, but later, on 05.02.08, they sent a letter repudiating the claim, saying that the vehicle was not under the possession and control of the complainant and that he had no financial interest in the accidental vehicle. The complainant filed the consumer complaint in question against the opposite parties, seeking compensation of the full value of the vehicle, alongwith compensation of 2 lakh and interest @18% p.a.

The complaint was resisted by the OP Insurance Company by filing a written reply before the District Forum, in which they stated that the complainant was a dummy registered owner, having no insurable interest in the car and hence, he did not fall within the definition of ''consumer'' under the Act. Since the insured vehicle was not under the possession and control of the complainant at the time of the accident, he was not liable to be given any claim and moreover, no FIR had been registered in the matter. It was alleged that one Jagdish Rai who was a Commission Agent at Mansa had purchased the said car, after spending his own money in the name of complainant Bant Singh. The Insurance Company had appointed a surveyor in the matter, who assessed the loss at 5,87,525/-, but the claim was not liable to be paid because of the reason stated above. Moreover, the vehicle was being used for commercial purpose, although it was registered as a private vehicle.

The District Forum after considering the averments of both the parties, allowed the said complaint and directed the OP Insurance Company to pay a sum of 9,64,017/- to the complainant alongwith simple interest @9% p.a. from the date of filing the complaint, i.e., 17.03.2008 till realisation. The complainant was directed to transfer the ownership of the vehicle in the name of the Insurance Company. Being aggrieved against the said order of the District Forum, the OP Insurance Company challenged the same by way of an appeal before the State Commission. Vide impugned order, the State Commission partly accepted the appeal and held that the complainant shall be entitled to the amount as assessed by the surveyor and not on the estimate made by the dealer. Moreover, the claim shall be payable on ''non-standard'' basis, i.e., 75% of the loss assessed shall be paid, keeping in view the fact that the vehicle was being used by somebody else and not the complainant. Since the assessed value of loss was 5,87,525/-, the complainant was entitled to receive a sum of 4,40,643.75ps. as 75% of the amount assessed. Being aggrieved against the order of the State Commission, the complainant is before us by way of the present revision petition.

During arguments, it was stated by the learned counsel for the petitioner that as per the material on record, the said vehicle was registered in the name of the petitioner Bant Singh and the Insurance policy was also in his name. The person driving the vehicle at the time of the accident had a valid and effective licence. It was, therefore, the duty of the OP Insurance Company to have paid the Insured Declared Value (IDV) of the value, as it was a case of total loss during accident. The learned counsel stated that the order passed by the District Forum was valid in the eyes of law, as they had based their order on the assertion made by the registered dealer of the company, i.e., Prestige Honda. There was no justification on the part of the State Commission to have allowed the claim on ''non-standard'' basis only, and that also on the report of the surveyor - investigator M/s. G.S. Sohal & Company.

Per contra, the learned counsel for the respondent stated that the amount being claimed by the complainant was only an estimate, made for the repair of the vehicle, whereas the surveyor had carried out the assessment of loss as 5,87,525.96ps. and hence, the State Commission had rightly allowed 75% of the assessed value, keeping in view the facts and circumstances on record. It had been proved on record that the said vehicle was not under the possession and control of the complainant. The order passed by the State Commission was in accordance with law and should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

The first question that merits consideration in the matter is whether the complainant falls within the definition of ''consumer'', even if the said vehicle was being used by some other person. The definition of ''consumer'' as given in section 2(1)(d) is as follows:-

"2(1)(d) "consumer" means any person who-

(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or"

It is very much clear from the above definition that the user of the goods purchased by any person, does fall under the definition of ''consumer''. In the present case, the registration as well as the insurance policy for the vehicle stood in the name of the complainant, Bant Singh. Even if, the vehicle was being used by somebody else, Bant Singh is entitled to get the claim and he does fall within the definition of ''consumer''. Moreover, there is no evidence on record to substantiate the version of the OP Insurance Company that the said vehicle was being used for commercial purpose. The assertion made by the State Commission that the vehicle was not under the possession and control of the complainant and hence, the complainant was entitled to get only 75% of the claim, is without any rational basis. There was no justification, therefore, to have allowed the claim on ''non-standard'' basis, rather than allowing the claim in total.

The next question that arises for our consideration is that as per the estimate given by the repairer M/s. Prestige Honda, a sum of 9,65,017/- had been computed for fully repairing the vehicle. On the other hand, the surveyor appointed by the Insurance Company M/s. G.S. Sohal & Co. carried out the exact assessment of loss for a sum of 5,87,525/-. A copy of the said surveyor''s report is on record and indicates that the surveyor has mentioned exact details of the loss on each item. Nothing has been stated, neither any evidence has been provided to challenge the assessment made by the said surveyor. It is held, therefore, that the complainant is entitled to the full amount for loss to the vehicle, as assessed by the surveyor appointed by the Insurance Company. This revision petition is, therefore, partly allowed and it is ordered that a sum of 5,87,525/- shall be payable to the petitioner/complainant for damage to his vehicle, alongwith interest @9% p.a. from the date of filing the present complaint till realisation. The payment in terms of this order shall be made by the Insurance Company within a period of 8 weeks from today. There shall be no order as to costs.