Delhi

East Delhi

CC/425/2017

AJEET SINGH - Complainant(s)

Versus

BAJAJ ALLIANZ GEN. INS. - Opp.Party(s)

31 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.425/2017

 

	AJEET SINGH S/O SH. VIJAYPAL SINGH R/O H.NO.122, GALI NO.38, WEST KARAWAL NAGAR, DELHI	….Complainant
Versus
	BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THROUGH ITS BRANCH MANAGER BRANCH OFFICE: AT 85, FIRST FLOOR, PREET VIHAR, VIKAS ROAD, LAXMI NAGAR, DELHI – 1102092   REGISTERED OFFICE   BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. BLOCK NO.4, 7TH FLOOR, DLF TOWER, 15, SHIVAJI MARG, NEW DELHI-110015	……OP

 

Date of Institution	:	13.10.2017
Judgment Reserved on	:	29.08.2023
Judgment Passed on	:	31.08.2023

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service by repudiating the claim of his stolen vehicle. 
2. Brief facts as stated by the complainant in the complaint are that he purchased one second hand vehicle having Registration No.DL 3CAS 5039 Mahindra Scorpio Model No.2013 for Rs.8,50,000/- having Chasis No. MA1TA2MXND2K42817 and Engine No. MXD4K19712 from Smt. Neeru Chaudhary, the previous registered owner and subsequently was transferred in the name of the complainant for which he is paying regular EMIs.  However on the midnight of 16.10.2016 the vehicle was stolen from Village Karkardooma where after an e-FIR was lodged by the complainant being FIR No.031017/16 and intimation was also given to the OP/the Insurance Co.  The untraced report was received from the Hon’ble Court of Sh. Gagandeep Singh Ld. ACMM, KKD Courts and claim was filed before the Insurance Co. for Rs.8.5 Lakh which was rejected by the OP.  The complainant thereafter approached the office of insurance ombudsman which also rejected the claim by stating that he has to approach the court of appropriate jurisdiction.  It is further submitted that rejection of the claim by OP amounts to unfair trade practice and as such he served a legal notice to the OP but the same was not complied and ultimately he has filed the present complaint thereby seeking the direction to the OP to release the amount of Rs.8.5 Lakh i.e. the insured  value (IDV)of the vehicle. 
3. The OP has filed reply to this complaint interalia stating that the owner of the vehicle was one Ms. Neeru Chaudhary w/o Sh. Rakesh Chaudhary having address of karawal Nagar and she purchased a policy from OP being Policy No.OG-16-1101-1801-00014672 commencing from 11.11.2015 to 10.11.2016 for the vehicle having Registration No.DL 3CAS 5039 and the complainant has alleged that he has purchased the aforesaid vehicle from her (Neeru Chaudhary) and got the RC transferred in his own name but it is submitted that the complainant never got the insurance transferred in his own name and when the complainant filed claim before the OP, the OP sent reminders dated 19.12.2016 and 29.12.2016 but no documents were given and as such claim was rejected vide order dated 03.01.2017 on the ground that the insurance policy was not transferred in the name of the complainant.  The complainant thereafter approached the office of Insurance ombudsman but his claim was rejected and since the complainant is not a consumer as per the provision of consumer protection act, the claim of the complainant is not maintainable, as although he may be the owner of the vehicle yet he is not the owner of the Insurance Policy. Since there is no privity of contract between the complainant and insurance company, the claim of the complainant is not maintainable.    
4. It is further submitted that under the provision of Consumer Protection Act read with Section 157 of the Motor Vehicle Act and Rule 17, of the Motor Tariff Rules of the Tariff Advisory Committee it is clear that complainant is under no position to claim any relief from the OP since policy was never transferred in his name, and as such the complainant has filed the present complaint fraudulently without any merit.  As far as merits are concerned the facts mentioned in the preliminary objection/submissions are reiterated and it is prayed that complaint of the complainant be dismissed. 
5. Complainant has not filed Rejoinder but has filed his own evidence.  Complainant has also filed evidence of Ms. Neeru Chaudhary interalia stating that she was the owner of the vehicle having Registration No.DL3CAS5039 which was sold subsequently to the complainant. The affidavit of Ms. Neeru Chaudhary is in the form of ‘No Objection’ and confirming the sale of vehicle to complainant for consideration.   
6. OP has filed evidence of Ms. Eileen Tirkey, Sr. Executive Legal of the OP. 
7. Both the parties have reiterated their own version taken in the respective pleadings, while arguing their case/pleadings.
8. The Commission has heard the arguments and perused the record.
9. The facts are not in much dispute i.e. the original owner of the vehicle was Ms. Neeru Chaudhary, she transferred the vehicle in the name of complainant, the complainant got the vehicle transferred in his name, the vehicle was got stolen, the IDV of the vehicle was Rs.8.5 Lakh, the complainant lodged the claim which was repudiated by the OP, the complainant approached ombudsman, who did not grant any relief to the complainant, and although the vehicle was transferred in the name of the complainant yet the insurance policy was not transferred in his name rather he never applied for transfer. 
10. The only objection of the OP is that the insurance policy was not transferred and therefore the complainant is not a consumer of the OP.  The complainant on the other hand has argued that once the complainant has purchased the vehicle from the previous owner he stepped into the shoes of the owner and he has relied upon the judgment of Hon’ble National Consumer Dispute Redressal Commission titled “Sh. Narain Singh V/s New India Insurance Co., Revision Petition No.556/2002 as delivered by Hon’ble Justice M.B. Shah, President of the Hon’ble NCDRC and Ms. Rajyalaxmi Rao, the ld. Member thereof, and detailed observation has been made in this judgment:

Transfers:

On transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner. The bonus/malus already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/malus will apply as per the new owners entitlement.

If the transferee wants to change the policy in his name, it may be done on getting evidence of sale and a proposal form duly completed. The old certificate of insurance must be surrendered to the insurance company and a new certificate of insurance can be issued by collecting a fee of Rs.15. If the old certificate is not surrendered, a declaration is to be taken from the new owner before issuing a new certificate.

It appears that in a number of cases Insurance Companies are suppressing this regulation and take undue advantage and contend with all force that as the Insurance policy was not transferred in favour of the new purchaser. Insurance Companies are not liable to reimburse the insurers or the transferees of the vehicle because the transferees were not having any insurable interest.

In the present case, it is apparent that Insurance Company has relied on some judgements of this Commission as well as the judgements of the Apex Court in support of its contention that the transferee was not entitled to get the relief in case of contemplated peril as the policy was not transferred in favour of the transferee.

In this case, fortunately the Learned Counsel has pointed out the said tariff, therefore, by our order dated 4th December, 2006, we requested the Leamed Counsel Mr. Mehra, who is appearing on behalf of the Insurance Company, to verify and file a clarificatory affidavit with regard to the said regulation on the automatic transfer of the policy in case of transfer of vehicle No affidavit is filed till today and Learned Counsel for the Insurance Company is not in a position to justify contrary to what is provided under the India Motor Tariff.     

We Hope that in future the Insurance Company would be fair and not exploit the ignorance in dealing with the claims of the insurers in such cases.

11. Further, the complainant has also relied upon Subhash B. Gawali V/s M/s ICICI Lombard General Insurance judgment from Hon’ble Mr. Justice S.B. Mhase President along with Hon’ble Member Mr. S.R. Khanzode and Hon’ble Member Sh. Dhanraj Khamatkar of Hon’ble State Commission of Bombay in which it was interalia held in Para 4 and 5:

[4] The sale is witness by the delivery note dated 13/6/2008 and it being a movable property, the sale transaction was complete on delivery of the possession. In the instant case, question arises about the liability of the Insurance Company once the insured vehicle was transferred by sale transaction in between the Complainants. This issue is already covered by this Commission's decision in First Appeal No.1256 of 2010, United India Insurance Company Ltd. Vs. Sou. Kasturi J. Patil decided on 3/5/2012 (Quorum Mr. Justice S. B. Mhase, the President and Mr. Narendra Kawde, the Member). Said decision covers relevant GR.17 which reads as under-

"On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer.

The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance."

[5] The Forum also referred to said GR. 17 but did not consider the same in its right perspective and arrived at a wrong conclusion. Insured vehicle, in view of GR17, is deemed to have been transferred in favour of the buyer (of the insured vehicle) and as such, it was obligatory on the part of the Insurance Company to stand by said GR.17 as applicable to it. Since the change of name of the insured in the insurance policy is only a ministerial act, it will not affect substantial right of the buyer of the insured vehicle to claim benefit under the insurance policy even as a "beneficial consumer'. In the circumstances, we hold accordingly.

12. It is argued that once the vehicle has been transferred the fact of gap in the insurance policy transferred is only a ministrial act therefore complainant has stepped into the shoes of the previous owner with all the benefits/beneficiary as the vehicle has already been transferred from the competent authority and the Registration Certificate is in his name.  In reply thereto the ld. Counsel for OP has not argued at all.  Law is well settled.
13. Hon'ble Supreme Court in Gurmel Singh Vs. Branch Manager, National Insurance Co. Ltd. CA No. 4071/ 2022 has held that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control."
14. The impact of Section 157 of the Motor Vehicles Act was considered by a Division Bench of Kerela High Court in Sayed v. Gopalakrishnan and Others [2016(2)KHC 351], holding that once the vehicle is transferred, there is a deemed transfer of policy of insurance in the name of the transferee and the Insurance Company is liable to indemnify the insured or even the transferee by virtue of the deeming provision. It was further observed that, the Insurance Company could be exonerated from the liability only if they establish the violation of policy conditions or the defences as provided under Section 149(2) of the Motor Vehicles Act, 1988 and not otherwise.
15. The same is relied on by Hon'ble Kerala High Court in Reliance General Insurance Company Limited vs Annamma Raju MACA  no. 2585 of 2016and further held that requirement to intimate transfer of vehicle to insurance company U/s 157(2) MV Act is only directory, not mandatory. In present case, the theft occurred after the transfer of ownership is completed by following the provisions of the Motor Vehicles Act, and therefore the deemed transfer of policy had occurred before the theft.
16. Keeping in view all such facts, as discussed here in above the Commission is of the opinion, that rejecting the claim by the OP w.r.t. stolen vehicle, on such ground is violative the settled principal of law and the same amounts to deficiency in service by the OP. 
17. Therefore, in the considered opinion of this Commission, the Commission directs the OP as follows:

• To pay Rs.8,50,000/- to the complainant with interest @ 6% p.a. as cost of the vehicle. 
• To pay Rs.30,000/- to the complainant as compensation towards unnecessarily harassment, deficient services, committing unfair  trade practice and causing mental agony to the complainant. 
• To pay Rs.15,000/- to the complainant towards litigation expenses. 

This order be complied with within 30 days from the date of receipt of the order and if the above amount would not be paid by the OP to the complainant within time as prescribed then interest @ 9% would be charged on all above amounts.   

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 31.08.2023.