UNITED INDIA INSURANCE CO LTD Vs. GHULAB FRUITS

JUDGEMENT

(1.) -THROUGH the medium of this revision petition order dated 29. 7. 2005 passed by the learned Divisional Forum, Srinagar (hereinafter to be referred to as Forum) has been challenged. The brief facts of the case are that the respondent complainant herein who is the proprietor of M/s. Ghulab Fruits had purchased a Maruti Car bearing registration No. DLB/8150 which was registered with RTO, Delhi. The respondent complainant had insured the said vehicle with the petitioner O. P. through his brother Farooq Ahmed. The owner of the said vehicle namely, Ghulam Mohammad had given the said Maruti car for use to his acquaintance namely Farooq Ahmed Kashtkari and his brother namely Bashir Ahmed Kashtkari was plying the vehicle on 6. 9. 2000 when it was forcibly snatched away from him at a gun point by some unknown persons. FIR was lodged in the concerned police station as well as claim was also raised with the petitioner O. P. The police after the investigation closed the case as "untraced". The petitioner O. P. deputed Mr. Daman Bhalla, investigator of Pathankot. The investigator Mr. Bhalla gave the report that owner of the vehicle namely Ghulam Mohammad Bhat proprietor of M/s. Ghulab Fruits before the alleged occurrence had sold the vehicle to Mr. Farooq Ahmed Kashtkari and because of this transfer which was without the consent of O. P. , the claim should be repudiated. After the submission of the report, Ghulam Mohammad Bhat complainant respondent approached the learned Forum and in the complaint the allegations were made that the investigator Mr. Bhalla had conducted the investigation in a partisan and unfair manner by projecting that he was a man from the security forces and signatures of the respondent herein were obtained. In the same manner by practising false personation, the signatures of Farooq Ahmed and Bashir Ahmed were also obtained. In the complaint, it was also alleged that the investigator had not revealed his identity as an investigator deputed by the O. P. but he posed himself as an investigator from the security force in order to investigate the incident. The learned Forum, after the appraisal of the evidence has held that no surveyor had been deputed in the matter and for the settlement of the claim ordered the petitioner O. P. to depute a new surveyor and the respondent herein was ordered to cooperate with the surveyor so that fair assessment of the loss can be made.

(2.) AGGRIEVED by the order, revision petition has been filed herein wherein challenge has been thrown that petitioner had not to indemnify the insured for the alleged loss because there was no privity of contract between the new owner of the vehicle in question namely, Farooq Ahmed. That the claim could be settled on the basis of police report, which is in the negative form. Also, there was no necessity for passing such an order because the transfer of the vehicle could be established from the record which has been produced before the Forum. In support of this contention, he read the contents of the affidavit filed by the respondent hereinbefore the petitioner herein. From the contents of para No. 4 he has tried to make out a case that transfer of ownership of the said vehicle in favour of Farooq Ahmed Kashtkari stood established. Concluding his arguments, the Counsel has contended that there is sufficient evidence on record that transfer of the vehicle had taken place and there was no necessity of passing the impugned order for getting the assessment made by a new surveyor.

(3.) IN rebuttal, Mr. Sami Yaqoob, Advocate has contended that the learned Counsel has not referred the whole contents of the affidavit because in Para Nos. 6 and 7, the respondent has clearly denied any transfer of the vehicle in question. Moreover, this affidavit was not tendered in evidence in the proceedings pending before the Forum but it was given to the insurer in support of the claim. Concluding his arguments, he also stated that it is a case of total loss on the basis of theft and the loss can be assessed on the basis of evidence, which has been produced, read with the terms and conditions of the insurance policy. The assessment of the value of the stolen vehicle cannot be made by a new assessor because it has not been traced.