ORDER
B.K. Taimni, Member
1. Petitioner was the complainant before the District Forum where he had filed a complaint alleging deficiency on the part of respondent.
2. Brief facts of the case are that the petitioner purchased a Tata Sumo from Dr. Shyam Gambhir, respondent No. 6 on 16.3.1997. At that time, the vehicle was insured with the respondent, validity of which expired on 29.7.1997. The petitioner/the new owner/purchaser of the vehicle, got a fresh policy, covering comprehensive risks given in the policy valid from 10.9.1997 to 9.9.1998. The insured vehicle was burnt by fire on 26.10.1997. Matter was reported to all concerned including the respondent by the petitioner/complainant. Two Surveyors were appointed by the respondent Company. With a view to settle the claim, the respondent asked the petitioner to make them available the Registration Certificate (RC) of the vehicle and salvage, the petitioner could not provide the RC, in the absence of which the respondent closed the case. RC was transferred in the name of the petitioner by the Competent Authority only on 26.2.1998 upon which the petitioner requested to re-open the case, but this plea was not entertained on the ground that the petitioner did not have RC in his name on the date of incident of fire – hence was not the owner of the vehicle under Motor Vehicles Act. On a complaint being filed by the petitioner before the District Forum, it allowed the complaint, but on an appeal filed before the State Commission by the respondent, it allowed the appeal – hence this revision petition.
3. The case of the petitioner is that it is not disputed that under the Sale of Goods Act, he was the owner of the vehicle. It is also not disputed that he held a valid policy from the respondent. All the facts about the status of RC was within the knowledge of the respondent, even then the Insurance Policy was issued. Now the respondent cannot take plea under an untenable ground that since RC was not in the name of the petitioner, he cannot be given relief under the terms of the policy. On the other hand, it was argued by the learned Counsel for the respondent that admitted position is that RC was in the name of respondent No. 6 – the original owner on the date of incident and under the Motor Vehicles Act, he was the owner. Not only this, the petitioner has given wrong information in the proposal form with respect to the ‘Full name of the Registered Owner’ which is given as Haji Wazir Ahmad – which admittedly is not correct as the RC was transferred in his favour only on 26.2.1998, and again against the query in column 6 of the proposal form ‘Full address of the Registered Authorities’ reply given is ARTO Baharaich. Enquiry from this office revealed that the said vehicle was not registered with them. The policy was obtained on wrong information given by the petitioner in the proposal form. Policy was issued in good faith based on information given by the petitioner. Respondent could not be penalized for having acted in good faith. Petitioner was not the owner of the vehicle as per provision of Motor Vehicles Act and the purchaser cannot take advantage of the Policy.
For this, the learned Counsel relied upon the judgment of Hon’ble Supreme Court in Complete Insulations (P) Ltd. v. New India Assurance Company, I (1996) CPJ 1 (SC). Policy was obtained by supplying incorrect information – hence should be held to be of no consequence. There has been no deficiency of service on the part of the respondent – hence the petition needs to be dismissed.
4. We have heard the arguments and perused the material on record. There is no dispute that the said vehicle was sold to the petitioner on 16.3.1997 by the 6th respondent Dr. Gambhir. In Dr. T.V. Jose v. Chacko PM. @ Thankachan and Ors., VI (2001) SLT 825=2001 VIII AD (SC) 168, Hon’ble Supreme Court had held-
“….High Court was not right in holding that the appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car.”
5. There is no dispute that consideration had been paid on 16.3.1997 by a Banker’s cheque and possession had been delivered to the petitioner. It is not in dispute that after purchase, the purchaser did move the Registration Authority in Delhi for change of Registration in his name as also issue of N.O.C. Registration was transferred in favour of the petitioner by the Competent Authorities on 26.2.1998. There is no settled law on the status of the car/owner in such a situation. As held by the Hon’ble Supreme Court, transfer of title had taken place in favour of the petitioner and the petitioner had become an owner under the Sale of Goods Act. The judgment cited by the learned Counsel in I (1996) CPJ 1 (SC), is not applicable in the facts and circumstance of this case. The issue involved in the cited case was two fold – third party cover and benefits of insurance policy after the sale of the vehicle. In the present case, the facts are different – it was a case of comprehensive cover of risks involved and the policy had been taken afresh by the purchaser in his own name. What the Hon’ble Supreme Court held in this case was :
“If the policy of insurance covers other risks as well, e.g. Damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case, since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. In the present case, since there was no agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle.”
In the present case there was insurance cover taken by the purchaser/transferee, hence there was a contract between the parties and in our view, the respondent cannot escape its liability.
6. Related issue is that of issue of comprehensive policy in favour of the purchaser/petitioner by the respondent. We have seen the proposal form which is on record – but we are unable to agree with the contention of learned Counsel for the respondent on two grounds – one, that the entries are in Hindi and in English, obviously both appear to be made by the Agent of the respondent whereas the signatures of the petitioner are in Urdu. It is the contention of the petitioner that he had given every fact about the vehicle including status of R.C., etc. to the Agent which is supported by an affidavit of the petitioner which has not been rebutted by any counter-affidavit by the respondent Company, thus giving credence to the statement of the petitioner, that he had given full facts to the agent. At the end of proposal form, we also see an entry in Hindi made by the Agent ‘I have seen the vehicle’. Presumption drawn is he must have seen the documents including RC. Policy was issued in these circumstances. It does not become of the respondent Company to say that incorrect information was given. If that was so, then either a counter affidavit of the Agent should have been brought on record or the petitioner cross-examined. Having done neither we cannot accept the plea that petitioner cannot take advantage of the policy now.
7. We have also seen the terms and conditions of the policy. Here now we see only the word ‘owner’. Section 1 of the Terms dealing with Toss or Damage’ starts with the wording ‘The Company will indemnify the insured against loss..’. Whoever is the insured mentioned in the policy is thus covered as per terms of the policy.
8. Clause 8 of the Policy of which the respondent wishes to take advantage reads as follows :
“8. The due observance and fulfilment of the terms, conditions and endorsements of this policy insofar as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the Company to make any payment under the Policy.”
9. The effort is to build a case on the ‘truth’ of the statements/and ‘answer’ in the said proposal form. This point has already been discussed earlier in the order. In the circumstances, the respondent cannot take advantage of this clause. What we see is that the petitioner was the owner of this vehicle and he was holding a valid policy. Keeping in view the facts and circumstances of the point and law as laid down by Hon’ble Supreme Court, we have no doubt in our mind that the respondent Company was deficient in rendering service to the petitioner. On merits, we are unable to sustain the order passed by the State Commission – hence set aside. Thus Revision Petition is allowed. We uphold the order of the District Forum except that the rate of interest should stand reduced to 12% per annum instead of 18% as ordered. Rest of the order is maintained. The petitioner shall also be entitled to cost which we fix at Rs. 3,000 /-.