IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 29^th day of October, 2010.

Present : Sri. Jacob Stephen (President).

Smt. C. Lathika Bhai (Member)

N. Premkumar (Member)

C.C.No.6/08 (Filed on 11.02.2008)

Between:

K. Varghese John,

Kuzhikalavayalil House,

Mekozhoor,

Mylapra Village,

Pathanamthitta.

(By Adv. K.N. Sujith)                                                  .....     Complainant

And:

1.     Bajaj Allianz General Insurance Co. Ltd.,

Rep. by the Divisional Manager,

Anugraha, T.C.No.28/2222, 2^nd Floor,

M.G. Road, Pazhavangadi,

Trivandrum – 695 023.

2.     Mahindra & Mahindra Financial Service Ltd.,

Rep. by General Manager,

N.H. Kaloor, Cochin.

3.     The Branch Head,

Mahindra & Mahindra Financial Service Ltd.,

Branch Office, College Road,

Pathanamthitta.

(By Adv. V.R. Hari – For Opps. 2 & 3)

4.     The Managing Partner,

M/s. Global Motors,

Peroorkada,

Thiruvananthapuram.

(By Adv. Biju. M. Thankachan)

5.     The Branch Head,

      Bajaj Allianz General Insurance Co. Ltd.,

      Kozhencherry Road,

      Pathanamthitta.

(By Adv. Sam Koshy – For Opps. 1 & 5)                             .....     Opposite parties.

O R D E R

Sri. N. Premkumar (Member):

                   Complainant filed this complaint for getting a relief from the Forum.

                   2. Fact of the case in brief is as follows:  Complainant is the registered owner of a 2004 Model, Lancer GLX, LMV Motor car bearing Register No.KL-3K 1900.  The 1^st and 2^nd opposite parties are carrying on its business at Pathanamthitta Dist.  The branch head of 1^st and 2^nd opposite parties are arrayed as 3^rd and 5^th opposite parties.  The 4^th opposite party is the Managing Partner of M/s. Global Motors, Peroorkada, Thiruvananthapuram.  The complainant purchased the said vehicle from one Mr. Sayed Maheen Aboobacker, Kalleykal House, Near KSRTC Bus Stand, Opp. KSEB, Thiruvalla, who is the prior registered owner.  The complainant availed a loan from 3^rd opposite party to purchase the said vehicle.  At the time of granting the loan 2^nd and 3^rd opposite parties insisted to submit the following documents:

(a)   Original old Registration Certificate Book of the Vehicle.

(b)  Insurance Certificate in Original.

(c)    Driving Licence of the complainant.

(d)  Land tax receipt of the property of the complainant.

(e)   Eight blank cheque leaves of the complainant.

(f)     Two blank 50 Rupee Non-judicial Stamp Papers, bearing the signatures of the complainant.

(g)  Two blank papers pasted with Revenue stamp over it and signature of the complainant across the Revenue stamp.

(h)  Five signed blank papers.

(i)     Photocopy of Title document.

(j)      Photocopy of Passport.

(k)  Form No.29 & 30 as prescribed by the Motor Vehicle Act and Rules in order to effect the necessary changes in the Regional Transport Office records.

         3. The above said documents were given to them with an intention to effect necessary changes in the Registration Certificate and insurance certificate by adopting proper procedures.  At the time of receiving those documents the official attached to the 2^nd and 3^rd opposite parties promised and agreed to the complainant that, they would apply before the Regional Transport Officer and also before the 1^st opposite party within the time as stipulated by the statute, for doing the necessary acts.  Moreover, the vehicle was hypothecated to the 2^nd opposite party and as such they are bound to do the necessary changes in the certificates concerned, especially when they are keeping the original R.C. Book and other documents in their custody. The complainant has also signed in the necessary documents, in order to effect the above-mentioned changes and handed it over to the officials of the 3^rd opposite party.  Complainant was under the bonafide impression that, the officials will not commit any dereliction in their duties as promised and agreed by them.  Based on this impression, complainant was using the said vehicle, which was having a valid insurance coverage till 11.5.07.

          4. At the time of purchasing the said vehicle, the vehicle is having a valid insurance policy from 12.5.06 to 11.5.07 midnight vide policy No.OG-07-1601-1801-00000548 issued on 12.5.06.  It was a comprehensive insurance policy and the insurer is liable to pay compensation, in the event of any kind of accident and the consequential damages happened to the owner and the vehicle.  The policy was taken to the vehicle and the said policy was subsisting till 11.5.07 and during this period insurance company is liable to pay compensation to the damages occurred.  The complainant had purchased the vehicle during the validity period of said insurance policy and till 11.5.07.  The complainant is also entitled to get the benefit and coverage of the same and the policy is directed to the vehicle irrespective of the fact that, whoever is the owner of the vehicle.

          5. At the time of availing the loan for purchasing the vehicle, the 3^rd opposite party received the said documents and also received an advance of ` 17,200 as additional amount from the complainant, in order to make necessary changes in the official records and to get new registration certificate and insurance certificate from the authorities concerned.  It is to be noted that, the 3^rd opposite party had actually submitted the application forms for the said purposes and also got the changes effected in necessary certificates.  The original of these certificates are still under the custody of 2^nd and 3^rd opposite parties.  The registration certificate of the vehicle was changed into the name of the complainant on 6.1.07 and the insurance certificate was changed into his name on 20.2.07.  The delay happened to effect the changes in the insurance certificate, is due to the deficiency in service of the opposite parties 1 to 3 jointly.  The complainant had done nothing wrong and everything regarding this were went through the hands of the officials attached to the opposite parties 1 to 3. Apart from this, the 2^nd opposite party is having some business connection with the 1^st opposite party also. 

          6. The said vehicle met with an accident on 18.2.07 at Koodal and the vehicle had suffered a total loss.  It is estimated by the authorised workshop that, ` 5,18,000 is required for the maintenance and repair works.  Subsequent to the accident, the police officials, Koodal has registered a Crime vide No.30/07 and thereafter, the original claim form and other documents were given to the 1^st opposite party for getting compensation.  But that claim was repudiated by the 1^st opposite party by citing total untenable and legally not sustainable reasons.  After that, a legal notice was issued to them on 21.4.07 for which they had sent a reply, by stating frivolous reasons for repudiating the claim.  On 20.2.07 the 1^st opposite party had given a new insurance policy certificate to the complainant, without verifying the condition of the vehicle.  This is a fraudulent act from the side of the opposite parties 1 to 3 jointly.  Despite of their legal obligation to render efficient and proper services to the complainant at the right point of time, the opposite parties willfully made such defaults.  So the opposite parties are jointly and severally liable to compensate the complainant.  It was only upon the request of the officials of the 1^st opposite party.  The damaged vehicle was brought to the premises of 4^th opposite party and now the vehicle is keeping in that premises upon the request made by the officials of the 1^st and 4^th opposite parties.  It was told to the complainant that, the survey or attached to the 1^st opposite party will inspect the vehicle only if, it is brought to the premises of the 4^th opposite party.  As these officials insisted for this particular condition, the complainant on his own expenses transported the vehicle to the premises of the 4^th opposite party, as it was not fit for driving through the road.  Moreover, the 4^th opposite party is the officially approved workshop, to assess the quantity of damages and to estimate thereof suffered to the vehicle.  The claim was repudiated by the 1^st opposite party by citing untenable reasons, and the complainant has done nothing wrong to disentitle him from receiving the compensation.  The opposite parties 1 to 3 and their officials alone are responsible for the present state of affairs and for which no fault can be attributed to the complainant.  If the officials of 2^nd 3^rd opposite parties did not discharge their duties properly, they have to be held liable for that and also 1^st opposite party have to explain why they had not issued the insurance certificate at right time and how it was issued on 20.2.07.  Under any circumstances, 1^st opposite party cannot evade from paying the compensation amount to the complainant.  The above said act caused mental agony, loss of reputation and damages to the complainant.  Hence this complaint for getting the value of the car with compensation and cost.

          7. Opposite parties 1 and 5 entered appearance and filed version admitting the policy covering the period from 12.5.06 to 11.5.07, in the name of Mr. Sayyed Maheen Aboobacker.  Things being so a claim has been put up by this complainant stating that the vehicle sustained loss due to an accident on 18.2.07.  The opposite parties had verified the records and found that no privity of contract exist between the complainant and insurance company as on 18.2.07.  On 18.2.07, i.e. the date of alleged loss, the policy stood in the name of Mr. Sayyed Maheen Aboobacker.  The claim form has been lodged after 20.2.07.

          8. On further scrutiny of claim papers it was noted by the insurance company that the insurance policy suffered a transfer on 20.2.07 from the said Sayyed Maheen Aboobacker to the complainant.  The transfer endorsement also is with effect from 20.2.07.  It was also found out by the complainant himself in which he has clearly mentioned that the transfer is with effect from 20.2.07 while seeking for transfer of insurance policy in the name of the complainant, the insurance company was kept in dark as to any accident on 18.2.07, just 2 days prior to the request for transfer of insurance policy.  This suppression is so material, which out at the root of the contract and the same renders the policy void.  The alleged accident is on 18.2.07 on which date the complainant cannot claim benefit under the policy as he has no privity of insurance contract.  As on 18.2.07 the complainant is a total stranger to the contract of insurance.  He has no locus standi to claim benefit under the policy before he steps into the shoes of the insured.  The previous owner never came forward with any claim. 

          9. The provision that govern the transfer of insurance is GR 17 of the Indian Motor Tariff reads as follows:

          “The transferee shall apply within 14 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”.

          10. In the instant case GR 17 has been complied by the complainant only with effect from 20.2.07 and he has no right to claim under the policy on any date prior to 20.2.07.  Evidently the accident took place on 18.2.07 and hence the complainant is not entitled to get the claim.  On 18.2.08 the complainant had no insurable interest with the opposite party or over the vehicle KL.3K/1900.  The opposite parties 1 and 5 have processed the claim in view of the matters referred to herein above and found that the claim is not payable and rightly repudiated the claim and the same was intimated to the complainant as per rules and procedures.  Therefore opposite parties 1 and 5 canvassed for the dismissal of the complaint with their cost.

          11. Opposite parties 2 and 3 entered appearance and filed version stating that complaint is not maintainable either in law or on facts.  Moreover, this complaint is bad in law due to the mis-joinder of parties.  The dispute is occurred in between the complainant and the 1^st and 5^th opposite parties.  The relief of the complainant can be realised only from the 1^st and 5^th opposite parties and the other opposite parties are unnecessarily impleaded for the purpose of creating mischief with malafide intention.  The address of the 2^nd opposite party is wrongly mentioned in the complaint.  There is no such General Manager of the 2^nd opposite party in the state of Kerala.  The company is tooking the notice from this Forum as for the interest of justice and hence appearing.

          12. The complainant has approached the 3^rd opposite party on 11.12.06 for getting a loan facility for refinancing a Lancer Car.  At the time of sanctioning the loan amount the complainant has submitted original Registration Certificate Book of the above mentioned car, insurance certificate in original, land tax receipt of the property of the complainant, photocopy of the title deed of the complainant Form 29 and 30 as prescribed by the Motor Vehicle Act and rules in order to effect necessary changes in the Regional Transport Office records before the 3^rd opposite party.  The 3^rd opposite party has sanctioned the loan amount and the vehicle was hypothecated in respect of 3^rd opposite party and the records were submitted before the Motor Vehicle Department for necessary changes.  After making necessary changes, the Motor Vehicle Department has returned the above documents to the 3^rd opposite party.  The 3^rd opposite party has returned all the documents to the complainant without any delay and with a direction to make changes in the insurance certificate.

          13. It is true that the vehicle has valid insurance at the time of transfer.  It is the duty of the 1^st and 5^th opposite party to make necessary changes in the insurance certificate and these opposite parties are not the concerned parties to make the changes in the insurance certificate.  The event of accident stated in the complaint has to be proved by the complainant through the documentary evidence.  The mentioning of the accident has no effect in this case.  The 2^nd opposite party has initiated Arbitration proceeding against the complainant through the 3^rd opposite party before the District Court, Pathanamthitta as O.P.(Arb)No.40 of 07.  For taking a defense in that case the complainant has filed this case against opposite parties without any cause of action.  The cause of action stated in the complaint is only imaginary.  The complainant is not entitled to any of the relief from these opposite parties.  These opposite parties never made any dereliction of duty, deficiency of service or adopted any unfair practice.  Therefore opposite parties 2 and 3 canvassed for the dismissal of the complaint with costs.

          14. The 4^th opposite party entered appearance and filed a version stating that complaint is bad for mis-joinder of parties.  The complainant is not seeking any relief against this opposite party.  Therefore, this opposite party is unnecessarily impleaded.  This opposite party has no knowledge as to what has transpired between the complainant and the 1^st opposite party.  On 3.3.07 the complainant brought the Lancer KL.3L/1900 car in a lorry to the workshop of this opposite party for total loss accident claim and for repair.  The complainant brought the vehicle to the workshop of this opposite party in his own volition.  Therefore, this opposite party has no liability or obligation to the alleged loss of the complainant.  On the other hand, once the vehicle was entrusted to this opposite party for preparation of estimate and for repair, the complainant is legally and morally responsible to reimburse the cost incurred and for the inconvenience caused to this opposite party and demurrages for keeping the vehicle in their workshop for one year.

          15. As per the instruction of the complainant, this opposite party prepared the estimated cost of repair of the vehicle and forwarded the claim for ‘total loss’ to the 1^st opposite party.  The 1^st opposite party rejected the claim on the ground that the insurance policy was not valid at the time of accident.  Thereupon this opposite party contacted the complainant and told him many a time, that the 1^st opposite party has rejected the insurance claim and if the complainant is interested in getting the vehicle repaired he would bear the cost of repair and pay the same in advance.  Since the cost of repair runs to lakhs, or if not interested in repairing the vehicle he would arrange its removal at his cost after paying the expenses incurred by this opposite party immediately.  The complainant was also told that the matter may be treated as most urgent since the condition of the vehicle deteriorates fast and occupies valuable space of the workshop causing much difficulty and inconvenience to the workshop.  On 10.10.07 4^th opposite party sent a legal notice to the complainant with regard to the removal of vehicle, but the complainant did not accept it.  Again on 31.3.07 fresh lawyer notices were sent to the complainant and 2^nd opposite party, the financier, intimating then interalia that the complainant never card to get the vehicle repaired or took back possession of the same.  In spite of repeated reminders the complainant has not responded and has not paid the expenses including demurrages due to this opposite party.  In the said notice the complainant was called upon either to arrange for the repair of the vehicle by paying ` 5,00,000 in advance or to remove the vehicle after clearing the dues to this opposite party within fifteen days of receipt of notice failing which this opposite party would be constrained to dispose the vehicle at scrap value without any further notice.  It was also specified that if the sale proceeds is not sufficient to meet their claim, this opposite party reserve the right to proceed against the complainant for realising the balance.  In the notice to the 2^nd opposite party, it was specifically requested to advice the complainant to settle the claim of this opposite party and to remove the vehicle from its premises or in the alternative they themselves do it.  But till now neither the complainant nor the 2^nd opposite party has replied to the said notices nor taken any step to pay the amount due to this opposite party and remove the vehicle.

          16. The complainant has suppressed the said material fact while filing the complaint.  But admitted that he brought down the damaged vehicle to this opposite party’s workshop and it is still there.  It is true that this opposite party’s workshop is one of the approved centres of the 1^st opposite party.  It is also admitted that it is an authorised workshop that assess the damages caused to a vehicle met with an accident and forward the estimated cost of repair to the insurer.  However the sanctioning of the amount and final settlement is between the insurer and the insured.  The workshop has no role in this process and if the amount sanctioned by the insurer falls short of the estimated cost the workshop will undertake the repair only on the undertaking of the owner of the vehicle to pay the balance amount.  This opposite party has no role in determining the question whether the insured is entitled for compensation and if so the quantum.

          17. The complainant owes to this opposite party a total sum of ` 42,500 as detailed below:

          Cost of preparation of estimate                         `  5,000

          Demurrages for keeping the damaged

          vehicle in the workshop @ Rs.3,000 per

          month for 12 month (3,000 x 12)                      ` 36,000

          Legal Charges                                                    `   1,500

                                                                              ---------------------

                                                Total                              ` 42,500

                                                                               ============

                   18. The damaged vehicle left at this opposite party’s workshop by the complainant on his own volition is causing much difficulty and inconvenience to the functioning of the workshop.  Moreover the damaged vehicle in the present condition is irreparable.  If the vehicle is kept unattended till the final disposal of the complaint, it will be reduced to debris.  Perhaps, this may be the reason why the complainant is not interested in claiming it back.  Since no reply was forthcoming from the complainant or from the 2^nd opposite party and since they have not taken any steps to pay the amount due to this opposite party and to take back the vehicle even after a period of seven weeks after receipt of legal notice, this opposite party initiated steps for the auctioning and sale of the damaged vehicle to realise the dues.

                   19. This opposite party is no way connected to the dispute between the insured and the insurer and financier.  This opposite party bring to the attention of this Forum that keeping the damaged vehicle at the workshop till the final disposal of the complaint will result heavy damage to the vehicle and will cause heavy loss and irreparable damage to the 4^th opposite party.  The complainant has claimed a relief of Rs.6,68,500 to be reliased from opposite parties 1, 3 and 5.  The claim of this opposite party with whom the vehicle is entrusted is not included in the claim or in the statement of account of the complainant.  The willful omission on the part of the complainant to include the said charge on the vehicle and the conspicuous absence of any mention as to what the complainant intends to do with damaged vehicle clearly indicates that complainant is unconcerned about the damaged vehicle.  The complainant, the registered owner of the vehicle and the 2^nd opposite party, the financier who has advanced a substantial amount to the complainant towards vehicle loan, have not cared even to reply to the lawyer’s notice and have not taken any step to reclaim the vehicle conclusively prove that they are not interested in settling the claim of this 4^th opposite party and recovering the vehicle.  This opposite party stopped the auction and sale of the vehicle only due to the notice issued by the Forum.  Therefore, they prayed to order the complainant to pay the amount of ` 42,500 due to this opposite party to remove the damaged vehicle from the workshop at his cost without any further delay as to pass an order permitting this 4<sup>th</sup> opposite party to proceed with the auction and sale of the damaged vehicle to realise the amount of ` 42,500.  They also pray for to delete from the party array, since no relief is sought against them and the dismissal of the complaint with cost.

                   20. From the above pleadings, following points are raised for consideration:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs?