BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 8th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.103/2014
(Admitted on 20.3.2014)
M/s. M.S. Infrastructure,
1-62-, Kemminje, Darbe, Puttur,
Represented by its Partner,
Mr. Mohammed Sameer S/o Ummer Kasim.
….. COMPLAINANT
(Advocate for the Complainant: Sri ANN)
VERSUS
- Shriram General Insurance Co.Ltd,
E-8, EPIP, RIICO Industrial Area, Sitapur,
Jaipur, Rajasthan 302022.
Rep: by its Authorised Signatory.
- The Branch Manager,
Shriram General Insurance Co.Ltd,
Nanthoor Mangalore 575002.
Represented by its Authorised Signatory.
…....OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 and 2: Sri. AKK)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay Rs.3,28,800/ towards the spare parts cost and repair charges, to pay the interest thereon from the date of accident i.e. from 12.10.2012 till deposit, to pay Rs.10,000/ towards cost, to pay compensation of Rs.1,00,000/ towards mental agony caused to the complainant.
2. In support of the above complaint the complainant Mr. Mohammed Sameer, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. Ruben Ravi Prasad, (CW2) Vehicles Repairs and Service, filed affidavit evidence and answered the interrogatories served on him. On behalf of the opposite parties Mr. Vinay Kumar B, (RW1) Officer Legal, also filed affidavit evidence and Abhinandan A.P. answered the interrogatories served on him and produced documents got marked at Ex.R1 to R4 as detailed in the annexure here below. Mr. M.Shashi Kumar, (RW2) Engineer, General Insurance Surveyor and Loss Assessor, also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
On perusal of the complaint and the version of the parties we find the dispute in not settling the insurance claim for the vehicle met with an accident. The complainant alleges that he had purchased Tata HGV Tipper Lorry (hereinafter called the vehicle) from one Mr. Abdul khader with insurance coverage from date 10.12.2012 to 09.12.2012 and got the vehicle RC got transferred in his name with effect of 28.09.2012 and the RC received by the complainant on 12.10.2013. on 12.10.2013 the vehicle met with an accident and the claim was submitted. The opposite parties repudiated the claim on the ground that there is no insurable insurance since the policy was not transferred in the name of the complainant. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
The evidence of the parties taken and the documents examined carefully. The admitted facts are, the purchase of the vehicle by the complainant as second hand purchaser, the vehicle has the insurance coverage in the name of sellers and the insurance policy was not transferred in the name of the complainant as on the date of the accident. It is denied by the complainant that he has no insurable interest at the time of accident. The opposite party denies the insurable interest to the complainant at the time of accident. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether deficiency in service on the part of the opposite parties proved by the complainant?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have considered all the facts and evidences on record. Taken note of arguments and heard the rival party counsels and answered the above points as under
- In the affirmative.
- In the affirmative.
- In the partly affirmative.
- As per delivered order.
REASON
POINT NO.1: The complainant had produced the copies of two insurance policies issued by the opposite parties as EX C 1. The first is in the name of the seller of the vehicle to the complainant and the second is the copy of the policy which is in the name of the complainant. Not going with too much technicalities and at the time of filing the complaint the opposite parties are service providers to the complainant. Hence we considered the complainant as the consumer the opposite party is the service provider and answered the point no 1 in the affirmative.
POINT NO.2: As per complaint averment and the evidence the specific case of the complainant is he had purchased the vehicle and got transferred the RC in his name with effect from 28.09.2013 and got the RC book from the RTO on 12.10.2013. On the same day on 12.10.2013 the accident occurred which is within 14 days as provided by the statute. But the opposite party denied the contention of the complainant and stated that at the time of the accident the policy was not in the name of the complainant. The only issue raised by the opposite party is, at the time of accident the complainant did not have insurable interest and hence the opposite party is not liable. Whether the accident occurred within 14 days from the date of RC transferred or not is not the issued raised by the opposite party. But the complainants main contention is the accident occurred within 14 days of grace period and hence the insurer is liable to pay hence the point no 2 taken for adjudication.
2. We have meticulously studied the documents produced and the facts in chronology. The complainant states that the RC got transferred in his name with effect from 28.09.2013. The transferred RC received by him on 12.10.2013. The accident occurred on 12.10.2013. The point to be decided is whether the complainant had 14 days grace period for transferring the RC and whether the insurance coverage subsists during the grace period of 14 days to the purchaser to the vehicle? National Insurance v/s Mohan Singh [I (2013) CPJ 664 (NC)] and Bajaj Allianz General Insurance v/s Lalita Devi [2013 (2) CCC 56 (NC)], the national commission has observed that the insurance policy cannot be transferred till the RTO transfers the vehicles registration certificate. If a claim arises during the intervening period, it cannot be rejected on the pretext that the policy has not been transferred, because the time limit available for such transfer has not yet expired. The same view has been taken by the Maharashtra state commission in the case of United India Insurance v/s Kasturi J Patil. The district consumer forum held that Mithaiwalla was entitled to apply for transfer of the insurance policy by August 14, 2009, but the bike was stolen on August 7, 2009. Since the theft occurred during the interim period, the policy would be deemed to have been transferred to Mithaiwalla from the date when the RTO transferred the registration certificate in his favour. The forum concluded that Mithaiwalla was entitled to a claim even though the policy had not been transferred to his name. The facts of the case referred above is On June 30, 2009, Mithaiwalla applied to the RTO for registration transfer. Since the registration certificate issued at the time of purchase was in booklet form, it had to be converted to a smartcard certificate. The RTO took a month to process the transfer and issued the smartcard certificate July 31,2009. Thereafter, Mithaiwalla had 14 days, that is by August 14, 2009, to apply for transfer of insurance policy. However, before he could do so, on August 7, 2009, the motorcycle was stolen. An FIR was lodged, but the vehicle could not be traced. Under the Motor Vehicles Act (MVA), when a vehicle is sold, the buyer has to apply to the RTO for transfer of the registration within 30 days of purchase. Thereafter, the purchaser has to apply within 14 days to the insurance company for transfer of insurance certificate. The insurance policy cannot be transferred till the RTO's transfer formalities are completed. In Div.Manager, United India Insurance Co. vs. Kunhammed T.V. and ors., reported in 2012(3) CPR 99, the Kerala State Commission held that even though the policy from the name of sellar to complainant had been transferred after the death of the complainant, the insurance company was directed to pay the amount assessed by the surveyor as transferee shall apply within 14 days from the date of transfer to insurer for making necessary changes in the certificate of insurance and the office of RTO will forward RC to person who sought for transfer of RC by post only there is no lapse on the part of the complainant.
3. It is clear from the above authority it is clear that the insurance coverage subsists till the 14 days from the date of transferred RC received by the purchaser of the vehicle. Now in the instance case the RC got transferred with effect from 28.09.2013 and as per complainant affidavit it was received by him from the RTO on 12.10.2013. It is established rule that the ownership will be considered as transferred from the date of RC note and the insurance will not be transferred till the copy of the transferred RC is submitted. It is recognized fact the RC will be sent to the purchaser through registered post. And the complainant also answered as such in the interrogatories Q no 5 that he has received the RC through the registered post. In our opinion naturally the time of 14 days starts from the date of RC received i.e from 12.10.2013 and the accident took place on the same date. The opposite party not produced any documents or proved that the complainant had received the RC before 14 days of the accident. Even if we take the date of transfer effected in RC as 28.09.2013, the RTO at the most posted the RC on 29.09.2013 and reached the hand of the complainant on 30.09.2013 and the accident took place on 12.10.2013 which is before the 14 days grace period. As we seen in the above authority the time consumed in the RTO process will not be considered in accounting the grace period. It is crystal clear that the accident happened within 14 days of the grace period and the coverage of insurance subsists during the grace period and the insurer cannot escape from the liability. Hence we answered the point no 2 in the affirmative.
POINT NO.3: As per above discussion we hold the opposite party liable for the deficiency in service to the complainant. The complainant prayed for an amount of Rs.3,28,800/ as repair expenses. The surveyor had surveyed the damage and allowed Rs. 75,900/ as claim. The cw 2 is the repairer of the vehicle who has been examined by the complainant and he was crossed through interrogatories by the opposite party. In answering
Q no 1 what is the basis for rate quoted? The reply is, on the basis of the price list of authorized dealer of the said vehicle.
Q no 8: who has purchased the spare parts? The replied as, it is me
Q no 17 : is it not true that you don’t have the bills/tax invoice for the purchase of spares?
Ans; some parts put from my garage stock and some are second hand parts for which I do not have bill /tax invoice.
2. The combined reading of these above we are of the opinion the bill produced by the complainant is not dependable in total. The CW 2 says the price fixed as per dealers rate and he himself purchased the spares but in another breath he says the spares were from his garage and some others are of second hand. We do not accept that the spare used in repair can be priced at the dealers regular price and that can be considered for payment. Two things involved in this case are the vehicle is of 2007 model i.e 6 years old at the time of the accident and the spares use were second hand and which were available in the garage. Hence we incline towards the survey report and what surveyor assessed is the amount of claim and for the same the complainant is entitled for. The opposite party also admitted the survey assessed amount as payable if at all any liability is there from their part. The complainant is entitled for an amount or Rs. 75,900/ (as per survey report) with an interest at 9 % from the date of repudiation till the date of payment. The complainant also entitled for an amount of Rs.15,000/ towards compensation and Rs. 6,000/ as advocate fee. Hence we answered the point no 3 in the partly affirmative.
POINT NO.4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is partly allowed with cost. The opposite parties shall pay the complainant an amount of Rs. 75,900/ (Rupees seventy five thousand nine hundred only) with an interest of 9% per annum from the date of repudiation till the date of payment and an amount of Rs. 15,000/ (Rupees fifteen thousand only) towards compensation and an amount of Rs. 6,000/ (Rupees six thousand only) towards advocate fee within 30 days from the date of order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 8th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 : Mr. Mohammed Sameer
CW2: Ruben Ravi Prasad, Vehicles Repairs and Service
Documents marked on behalf of the Complainant:
Ex.C1: Motor Insurance policy issued by Opposite Party to Tipper Lorry bearing Registration No. KA.19. B.8765.
Ex.C2: Copy of FIR in Cr.No.197/2013 of Vittal P.S.
Ex.C3: Copy of R.C. of above Vehicle.
Ex.C4: Copy of the estimate issued by Ravi Auto Garage, Baikampady,Mangalore towards repair cost of above vehicle.
Ex.C5: Office copy of legal notice sent to opposite parties dated 28.1.2014 with postal receipts.
Ex.C6: Original bills of repair issued by Ravi Auto Garrage, baikampady, Mangalore.
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Vinay Kumar B, Officer Legal
RW2: Mr. M.Shashi Kumar, Engineer, General Insurance Surveyor and Loss Assessor,
Documents marked on behalf of the Opposite Parties:
Ex.R1: Insurance policy.
Ex.R2: Surveyors Report.
Ex.R3: Copy of Registration Certificate of vehicle No. KA.19.B.8765.
Ex.R4: Claim Repudiation Letter.
Dated: 8.5.2017 MEMBER
