THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO- 528/2015
JUDGMENT DATED. 12/07/2016
(Appeal filed against the order in CC. No.134/2013, CDRF, Ernakulam )
PRESENT:-
SMT. A. RADHA : MEMBER
SRI.K.CHANDRA DAS NADAR : JUDICIAL MEMBER
APPELLANTS:
- M/s. Cholamandalam MS General
Insurance Co.Ltd, D-126, 200 Feet
Road, Mudaliarpettai, Pondicherry,
Pin. 605004, ( Rep. by its Branch Manager)
- M/s. Cholamandalam MS General Insurance co. Ltd,
-
Chittoor Road, Cochin 682011
(Represented by its Branch Manager)
( Appellants represented by its Deputy Manager- claims)
(By Adv. V.Manikantan Nair)
V/S
RESPONDENT:
Anil Joseph. K,
S/o K. Joseph Mathew,
Flat No. 10 A, Regal Avalon,
Kakkanad West P.O, Pin. 682030
(By Adv. S. Reghukumar)
(2)
JUDGMENT
SMT. A.RADHA: MEMBER
1. Appellants are the opposite parties in CC.No. 134/2013 on the file of Consumer Disputes Redressal Forum, Ernakulam who preferred this appeal wherein the Forum Below partly allowed the complaint.
2. The brief facts of the case are that the complainant purchased Ford Icon Car on 30-08-2012 from one Mr. John , Pondicherry for an amount of Rs. 3,20,000/-. The vehicle was having a valid insurance policy from 12-01-2012 to 11-01-2013. On 03-09-2012 the copy of sale receipt cum request for transfer of insurance was given to the first opposite party, insurance company. On the same day it was informed by the second opposite party that the transfer of insurance can be processed only after the transfer of ownership of vehicle in the registration certificate. The complainant was taking steps for getting the non objection certificate from the police for transfer of ownership in the registration certificate of the vehicle as per the requirement of motor vehicle department. It is stated in the complaint that the no objection certificate was received on 14-11-2012 and NOC was marked in the RC book on 05-12-2012. It is the specific case of the complainant that complainant’s vehicle met with an accident on 26-10-2012 at 21:30 hours at Kothamangalam , Ernakulam District. Due to heavy damages in the accident the vehicle was entrusted
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M/s. Mustang Motors Pvt Ltd as directed by second opposite party. The accident was informed to the opposite parties and requested to depute surveyor and got the information through sms as claim reference Number on 30-01-2013. The estimated repair charges by the authorized service center amounted to Rs. 4, 65,220/-. The complainant requested the opposite parties to settle the claim on total loss basis. It is asserted in the complaint that the purchase of the vehicle was informed immediately and submitted the application for transfer of insurance policy to the name of the complainant. As per the direction of second opposite party the complainant submitted all vehicle documents, copy of insurance policy and the estimated repair charges. It is informed that the transfer of the insurance can be proceeded only on getting the transfer of ownership endorsed in the Certificate of Registration. The repudiation of legitimate claim of the complainant amounts to deficiency in service and negligence on the part of opposite parties. The IDV of the vehicle as per the policy is Rs. 7,00,000/-. The Complainant had to hire financial loss as the complainant had to hire vehicle for his daily requirements. The complaint is filed to direct the opposite party to pay Rs. 4, 50,000/- with 12% interest as compensation for the deficiency in service and to pay Rs. 10,000/- as cost of proceedings.
(4)
3. The first and second opposite party filed joint version contending that the vehicle involved in the road accident on 26-10-2012 was insured with the opposite party from 12-01-2012 to 11-01-2013 in the name of one Mr. John and not in the name of complainant. The opposite parties have no liability to indemnify the complainant who is not the insured and the liability, if any, is subject to the terms and conditions . No steps were taken by the complainant to change the R C book to his name which is mandatory for the change of insurance policy. It is an admitted fact that RC has not been changed even after two months of purchase of vehicle. It is also stated in the complaint that the non objection certificate from the police was received on 14-11-2012 for the purpose of transfer of name to the complainant which is subsequent to the accident. It is clear from the documents that the complainant was not even the RC owner during the accident . The transfer of policy to the name of the complainant is not possible unless there is change of name in RC book which was done only on 05-12-2012 that too after the alleged accident. The complainant is neither the RC owner nor insured at the time of accident. The insured has to intimate and apply in the prescribed form for transfer of policy under section 157 (2) of the M V act which is not done in the case of the complainant. Since the complainant is not the insured and the policy was in the name of one
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Mr. John the opposite parties cannot be find fault in rejecting the claim. The complainant is only a stranger as there is no contract between the complainant and opposite parties. Hence there is no privity of contract between the complainant and opposite party. It is contended that the estimated repair charges is highly excessive without any basis. The IDV of the vehicle is only Rs. 4 lakhs. The claim form has not lodged before the insurance company for further procedures. The procedure to be followed under GR 17 of IMT has not followed to transfer the policy by the complainant. In the case of property damage the survey report assessing the loss by an independent IRDA licenced surveyor is mandatory. In the absence of claim form no surveyor assessed the loss and no survey report produced in this case. There is no deficiency in service on the part of opposite parties and compensation claimed is highly excessive. As complainant is neither the owner nor the insurer of the vehicle damaged in the accident the claim is rightly repudiated by the opposite parities.
4. The evidence consisted of the oral testimony of complainant as PW1 and documents were marked as Exbts. A1 to A8, on the part of opposite parties DW1 was examined and documents were marked as Exbts. B1 to B6. The Commission report was marked as Exbt. C1.
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5. It is submitted by the counsel for the appellants that the vehicle involved in the accident on 26-10-2012 is having valid insurance policy during the period from 12-01-2012 to 11-01-2013. It is argued that the vehicle does not have policy coverage in the name of respondent since the claim is for own damage of the vehicle. The principle of insurance automatically goes with the vehicle is not applicable to own damage. The facility of transfer of ownership and change of name of insured in the policy are governed by the G.R No. 17 of Indian Motor tariff. The respondent is a total stranger to the policy issued by the appellants to the vehicle involved in the accident. There is no liability to the insurance company to pay own damage if the policy is not in the name of transferee owner. There is no privity of contract between the appellant and respondent with regard to this car. The respondent failed to get the RC book and insurance policy transferred in his name and the respondent has no insurable interest and as such respondent is not entitled for any compensation. It is argued that as the RC book is in name of one Mr. John, the respondent has no insurable interest as he is not the RC owner of the vehicle. It is admitted in the complaint that the non objection certificate from the police was submitted only on 14-11-2012 and it clearly shows that the respondent had not complied the procedures to be completed on transfer of the vehicle on purchase.
(7)
Hence no deficiency in service can be attributed upon the appellant and there is no liability to indemnify the insurance claim made by the respondent.
6. Refuting the arguments made by the appellant’s counsel, the counsel for the respondent pointed out that immediately on purchase of the vehicle on 26-10-2012 the appellants were informed for change of name of insurance to the name of the respondent. The counsel argued that the transfer of policy takes place automatically with the transfer of vehicle by force of statutory provisions and are co-existing . The transfer of policy takes place simultaneously along with the transfer of vehicle by virtue of operation of sub section (1) of section 157 of M.V.Act. The transfer of policy never depends on any discretion to be exercised by the insurance company. The respondent informed the appellants regarding the sale of vehicle and requested for transfer of insurance policy which has to be done automatically. The damaged car was entrusted with the authorized repairer and estimated cost of repairer to Rs. 4 , 65,220/- and a Commissioner was deputed by the District Forum to assess the damage. It is found that vehicle involved in the accident is to be considered on total loss basis. The transfer of policy took place simultaneously and the respondent is entitled for the insurance claim. The insurance company is only to observe the procedure for setting the records correct by making
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necessary entries in the policy with regard to the transfer of policy as insured. The IDV of the vehicle comes to Rs. 4 lakhs and complainant is entitled to get the insurance claim on total loss basis. Due to the accident the respondent had incurred expense towards hiring of vehicle which amounts to Rs. 50,000/- and claimed from the appellants. The appellants had not deputed any surveyor even after reporting the accident with the opposite parties. It is reported that the non availability of the vehicle the respondent incurred hiring charges which is to be compensated by the appellants.
7. Heard both the counsels in detail and had gone through the records. The purchase of the vehicle from Mr. John by the respondent / Complainant was informed to the opposite parties for transfer of the insurance policy to the respondent herein. The sale was on 30-08-2012 and the respondent entrusted the sale receipt on 03-09-2012 for transfer of insurance with the second appellant. It is also an undisputed fact that the vehicle involved in the accident is having valid insurance policy during the period from 12-01-2012 to 11-01-2013. It is coming out from evidence that the No Objection Certificate from the police was received on 14-11-2012 and the NOC was marked in the RC book on 05-12-2012. The damage was assessed by the authorized service center of the vehicle and assessed the damage to the tune of Rs. 4,65,220/- . The IDV of the vehicle is Rs. 4,00,000/-. It is
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mandatory on the part of the respondent/ Complainant to get the ownership changed by the RTO concerned and make necessary changes in the registration certificate . As per GR 17 of IMT it is also mandatory that the transfer of ownership and change of the name of the insured in the policy is to be carried out. The name in the insurance policy can be changed only after change in the ownership of the vehicle. In this case the transfer of ownership was done only on 14-11-2012 and the insurance policy was changed only after that date. Hence the claim of the complainant for compensation against the own damage claim is not entertainable since the respondent is neither the owner nor the insured. The accident of the vehicle happened on 26-10-2012 and at that time the insurer and the owner of the vehicle was not the respondent. As per the terms and conditions of the policy it is obligatory on the part of the insured to inform insurer in the instance of any accident. Nothing is on record to show that the accident was immediately informed to the insurer. The insurer is bound to enquire and verify the details of the accident . In the instant case, the insurer has not assessed the loss accident due to lack of information from the part of the insured. It is also obligatory on getting any intimation of accident by the insured, a licensed surveyor is to be deputed to assess the loss incurred in the accident.
(10)
While going through the documents, we find that the surveyor has not assessed the loss whereas there is only the estimate of the authorized service center. On filing the complaint, a Commissioner was deputed to assess the loss. We are considered of the view that there is no contract of insurance between the appellant and respondent is restricted to the insured only. Here the actual owner of the vehicle is not the respondent and the claim lodged by the respondent has no privity of contract between the appellant and respondent . Hence the appellants are not liable to pay any amount to the respondent/ Complainant.
In the result appeal is allowed setting aside the order passed by the Forum Below.
Office is directed to send a copy of this order with LCR to the Forum Below.
A. RADHA : MEMBER
K.CHANDRA DAS NADAR : JUDICIAL MEMBER
Sh/-
