Oriental Insurance Co. Ltd. vs Vijay Kumar Agarwal

-THIS is an appeal against the order dated 22.10.2001 passed by the District Forum, Hardwar whereby the complaint of the complainant for recovery of insured amount on theft of the vehicle was allowed.

THE brief facts of the case are that the complainant had purchased a Tata Sumo from opposite party No. 1 of the complaint on lease basis. It is he who got the vehicle registered with the RTO and got it comprehensively insured for a sum of Rs 3,72,000/- (Rupees three lacs seventy-two thousand). It was assigned to the complainant on hire and regular monthly payment continued to be drawn by the opposite party No. 1, M/s. Rockland Leasing Ltd. Opposite party No. 2 is the Branch Manager of the said company while opposite party No. 3 is the insurer. Advance post-dated cheques have been given to the opposite party No. 1 as price of the vehicle. As soon as the total payment could have been completed, it was to be transferred in the name of the complainant. THE vehicle was in the possession of the complainant as owner, in the use and benefit of the complainant. In the registration papers name of M/s. Rockland Leasing Ltd. is given. In the night of 1st September, 1997 the vehicle was stolen by the miscreants. FIR was lodged with the police station and the opposite parties were informed for taking necessary action. It is alleged that out of the total price the complainant had already paid by the date of the complaint Rs. 2,05,402/- (Rupees two lacs five thousand four hundred two) to the opposite party No. 1 and the remaining amount has been paid by post-dated cheques. THE Insurance Company neglected to settle the claim. THErefore, the complaint was filed before the learned Forum. The complainant filed an affidavit before the learned Forum to prove his allegations on 12.6.2001.

Opposite party Nos. 1 and 2 did not contest the complaint filed by the complainant. Only the Insurance Company contested the complaint and it was alleged that there is no privity of contract between the complainant and the Insurance Company. The insurance is in the name of opposite party No. 1, therefore, the complainant is not entitled to any amount.

AFTER taking the evidence of the parties and hearing them, the learned Forum allowed the complaint. Against which order, the present appeal has been filed. We have heard the learned Counsels for the parties and gone through the records. The same dispute was raised before us as well

IT is admitted that the vehicle is in the name of M/s. Rockland Leasing Ltd. In fact these are the companies which provide finance for the purchase of the vehicles and in the form of a mediator they take the money from the purchaser day by day and get the vehicle in their name from the dealer and when the entire amount is paid they transfer the vehicle in the name of the purchaser. Till the whole amount is paid the transaction remains in the form of hire purchase or lease, so in this case. The vehicle was purchased for a sum of Rs. 3,71,858/- (Rupees three lacs seventy-one thousand eight hundred fifty-eight). The complainant has alleged that he had paid a sum of Rs. 2,05,402/- (Rupees two lacs five thousand four hundred two) till the date of theft and the balance was also paid through post-dated cheques. Notices were issued to M/s. Rockland Leasing Ltd. but they did not contest, therefore, the allegations against them shall be taken to be correct. At least had M/s. Rockland Leasing Ltd. got any ownership, interest or to get any price in view of the fact that the insurance was in their name, they should have immediately rushed to the Forum and should have filed written statement that they are the owners of the vehicle, they are insured and they should be paid the amount but they did not take any interest. It appears, therefore, that the amount has been paid to the dealer by actual payment and as well as post-dated cheques. There is nothing on record to show that the post-dated cheques have not been cashed. Had these not been cashed, then also the dealer could have rushed to the Forum and would have said that the cheques have not been cashed or have been dishonoured, therefore, the entire amount or the balance which is due against the complainant be paid to them but they did not take any action. Their silence will go long way to prove the case of the complainant that although the case was in the nature of hire purchase or lease but the complainant has actually de fecto become the owner of the vehicle. Our attention was drawn on one letter of M/s. Rockland Leasing Ltd. to the insurer dated 2.9.1997 by which a simple request was made to the Insurance Company that the Tata Sumo has been stolen. The FIR is under process. The copy of which will be provided to the company at the earliest. It is nowhere said that they lodged the FIR. Various letters of M/s. Rockland Leasing Ltd. dated 26.6.1998, 2.12.2000 were also referred in which M/s. Rockland Leasing Ltd. has claimed the amount but nowhere in these letters the leasing company has alleged that they have not received the price from the complainant. They kept entirely silent regarding the complaint. Actually if they had got anything to contest they should have come before the learned Forum and may have filed written statement in this case or could have filed a complaint against the Insurance Company but till date neither any amount has been paid to them nor they have come forward before the Forum or Commission to say that they are entitled to the insured amount. Their contest appears to be only fake and shaky so that in some way they could get the money of the insurance as well and be able to digest the price of the complainant and to take the amount from the Insurance Company as well. After all they are financiers and they are only interested in squeezing money from the consumers. The letter of the Insurance Company itself shows that the copy of FIR lodged by M/s. Rockland Leasing Ltd. or the final report submitted in the case be made available to them but this company never gave any report to the Insurance Company. To the contrary the FIR was lodged by the complainant. The theft had also taken place from the possession of the complainant. The final report has been submitted in the case of the complainant. The policy did not say that there was no theft but the police only said that the culprits could not be apprehended. No charge-sheet could be filed against a person not known, therefore, final report was submitted.

THE insurance is admitted. THE theft of the vehicle is not disputed. THE investigator did not record the statement of the driver who has lodged the FIR that some 4 persons came and hired the vehicle from him for Delhi and administered poison. Near Meerut gave him some intoxicant and went away with the vehicle. THEre is no evidence that the driver had taken the vehicle on hire on permission of the owner. THEre is also no case that it was being used for hire purposes. It may be possible that the driver may be in collusion with the thieves and may have created a case of hire and intoxicant but even the theft by a driver is also a theft and claim cannot be repudiated on this ground. At least no ground has been put forward in the pleadings or evidence of the parties.

THE fact is clear that the complainant is de facto owner of the vehicle. He has alleged that he had paid the amount of insurance. THEre is no allegation from the opposite party No. 1 or 2 that they have paid the amount of insurance. THEre is also no case of the Insurance Company that any cheque has been received by them from M/s. Rockland Leasing Ltd. At any rate, it is the vehicle, which is insured not the owner. THE vehicle was admittedly insured and the complainant being the beneficiary of the insurance is entitled to the insured amount. After all this is a consumer dispute, the complainant has paid almost the entire sale consideration to the opposite party No. 1. It has been stated by Sh. T.S. Bindra, Advocate that opposite party Nos. 1 and 2 have cheated several persons. THEy have run away with the hard-earned money of the public. THE Managing Director of opposite party No. 1 is in jail under various offences of the IPC. It was argued that if the amount is paid to the company, he shall not be able to recover it from them. It was argued that the complainant being the beneficiary is entitled to the insured amount and on the facts and evidence of the case, the learned Forum has rightly allowed the complaint in favour of the complainant. It is settled principle of law that a beneficiary of the goods or services though he has not bought or purchased or hired the services, avail the same with the approval of the person who has actually brought or hired the same, is covered by the definition of the word complainant. There is no case that the complainant was not using the vehicle. There is also no case that it was not with the approval of the person who is actually registered and insured. In these circumstances he is also covered under the definition of the word complainant. It has been held in the ruling reported in Dinesh Bhagat v. Bajaj Auto Ltd., III (1992) CPJ 272, Delhi that where the scooter was booked in one name and it was used by the other. The other person who used the same with the approval of the actual buyer, is the beneficiary and is a complainant. He can file the complaint.

The learned Counsel for the Insurance Company referred the ruling reported in AIR 2000 Supreme Court, 449 Ganga Hire Purchase Pvt. Ltd. v. State of Punjab and Others. In this ruling, it was held that when the vehicle is purchased on hire purchase basis, the real owner is one who is registered under the provisions of Motor Vehicles Act. The question arose in relation to definition of owner in NDPS case where the vehicle was to be confiscated. If the ruling is read carefully, this ruling also helps the case of the complainant because in this ruling, the appellant had purchased the vehicle on hire purchase basis and he was taken to be the owner of the vehicle because the vehicle was registered in his name. This case is of consumer dispute where even the beneficiaries are also entitled to claim the amount of insurance.

IN the case reported in I (2000) CPJ 356, Malkiat Singh v. New INdia Assurance Co. Ltd., a poultry farm was insured. The birds were purchased after taking loan from the Bank. The insurance policy was also in the name of the bank. It was held that the owner of the poultry farm is the beneficiary of the contract of insurance and, therefore, he was entitled to file the complaint. In this case we can safely say that the opposite party Nos. 1 and 2 never appeared to make any claim in this complaint. The case was decided ex parte against them. We can safely direct that the Insurance Company should not pay any amount to M/s. Rockland Leasing Ltd. under this insurance and the Insurance Company should be deemed to have been absolved of the liability of the insurance after payment to the complainant.

THE brief of all the discussions is that the complainant is a beneficiary. He is a consumer. He paid the entire sale consideration. THE opposite party Nos. 1 and 2 have also run away. THEy have not been paid any amount till date. In the circumstances as such the order as passed by the learned Forum is perfectly correct and justified. In view of what has been said above, this appeal has got no force and is liable to be dismissed. ORDER The appeal is hereby dismissed. Cost of this appeal shall be easy. Appeal dismissed.