IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of August, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No.29/2013 (Filed on 05.03.2013)
Between:
1. Ajikumar.P.B.,
Puthuparampil House,
Ezhumattoor.P.O.,
Ezhumattoor Village,
Mallappally Taluk
2. Baburaj. M.,
Elapumkal House,
Pullad.P.O.,
Koipram Village,
Kozhencherry Taluk.
(By Adv. Saju Philip. K) …. Complainants
And:
1. Bajaj Allianz General Insurance Co. Ltd.,
3rd Floor, YMCA Building,
Sastri Road, Kottayam.
2. Bajaj Allianz General Insurance Co. Ltd.,
3rd Floor, Finance Tower,
Kaloor, Kochi – 17.
3. Bajaj Allianz General Insurance Co. Ltd.,
1/82 Nanjammas Complex, 1st Floor,
Vishwanathauram Thudiyalur,
Coimbatore – 641 034.
(By Adv. Sam Koshy) …. Opposite parties
O R D E R
Sri. Jacob Stephen (President):
Complainants filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complainant’s case is that the 1st complainant is the power of attorney holder of the 2nd complainant and 2nd complainant is the registered owner of a Scorpio vehicle bearing Reg.No. KL-27/3005. The said vehicle is insured with the opposite parties from 26.02.2011 to 25.02.2012 as the previous policy expired on 25.02.2011. While so, the 2nd complainant entered into an agreement with the 1st complainant on 23.02.2011 for the sale of the said vehicle for Rs. 4,50,000/-. Out of which Rs. 4 lakhs was received as advance and it was agreed that the 1st complainant has pay the balance amount of Rs. 50,000/- within 30 days from the date of agreement. As the 1st complainant failed to raise the balance amount, 2nd complainant took back the vehicle as per another agreement dated 28.02.2011 executed between the 1st and 2nd complainant. While so on 03.03.2011 the vehicle met with an accident and thereby the said vehicle sustained heavy damages. The accident was reported to Perumpetty Police Station who entered the accident in the general diary kept by them. An extract of relevant entry in the G.D issued by Perumpetty police to the 2nd complainant where in the date of accident is mistakenly noted as 03.02.2011 instead of 03.03.2011. The said mistake is explained by a letter dated 30.06.2011 issued by the Sub Inspector of Police, Perumpetty. After the accident the vehicle was taken to a workshop at Kottayam. The matter was reported to the 1st and 2nd opposite parties who deputed a surveyor for preparing an estimate for repairing the vehicle. The surveyor along with workshop authorities jointly arrived at an estimate amount of Rs.4,60,231/- for the repairs of the vehicle. Further, the complainant also had spent an amount of Rs.3,000/- for towing the vehicle to the workshop from the spot of accident. Thereafter, the 2nd complainant submitted a claim form before the opposite parties. After receiving the claim form 2nd opposite party issued a letter dated 25.06.2011 to the 2nd complainant seeking certain clarifications regarding the accident. Accordingly 2nd complainant sent a letter dated 30.06.2011 to the 2nd opposite party in which the 2nd complainant had given the clarifications required by the 2nd opposite party vide their letter dated 25.06.2011. Thereafter several communications were made by the complainant to the opposite party for the payment of the claim. But there is no response from the opposite parties and lastly they repudiated the complainant’s claim vide letter dated 26.09.2011 by saying that there is no contract of insurance between the parties. The above said act of the opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of an amount of Rs.4,88,231/- under various heads including compensation along with interest at the rate of 12%. The complainant also prays for allowing the cost of this proceedings.
3. Opposite parties filed their version with the following main contentions: According to the opposite parties, the complaint is barred by limitation as this complaint filed after 12 months from the date of repudiation of the claim as per Condition No.7 of the terms attached to the policy mandates which is as follows:
“It is also hereby expressly agreed and declared that if the company shall disclaim liability to the insured for any claim hereunder, and such claim shall not within 12 calendar months from the date of such disclaimer have been the subject matter of a suit in a court of law, then the claims shall for all purpose be deemed to have been abandoned and shall not thereafter be recoverable hereunder”.
5. Apart from the above, opposite parties admitted that the policy issued by them is valid on the date of accident. It is further admitted that they have received a claim form from the 2nd complainant stating that insured vehicle sustained damage on 03.03.2011. On getting the claim form an approved/licenced surveyor was deputed to conduct a spot survey, who submitted the report on 04.03.2011. In the said report it was pointed out that the said accident occurred in a school ground and hence detailed investigation is required about the driver, purpose of use at the time of accident. On the basis of the said report, opposite parties conducted an investigation which revealed that the vehicle was sold to the 1st complainant on 27.12.2010 though the sale agreement was entered only on 23.02.2011. When the vehicle was under the possession and ownership of the 1st complainant the policy period lapsed on 25.02.2011 and the policy was renewed for another one year from 26.02.2011 to 25.02.2012. The said renewal was done by suppressing the transfer of ownership which itself is a clear violation of the policy conditions. Since the ownership was transferred with the 1st complainant, the 2nd complainant is not the owner of the vehicle as on 03.03.2011 and on the date of accident, the 2nd complainant had no insurable interest and he is not entitled to get the policy benefits. Therefore, the opposite parties repudiated the claim and the said repudiation is legal.
6. Further, the alleged sale agreement dated 22.02.2011 between the 1st and 2nd complainant and the alleged taking back of the vehicle by the 2nd complainant from the 1st complainant is only a concocted story and it is only a conspiracy between the complainants so as to mislead this Forum and to defraud the opposite parties. There is ample evidence to show that the vehicle was in the possession and ownership of the 1st complainant on 03.03.2011. The 2nd complainant has given a statement on 27.05.2011 to the opposite parties about this fact. The 1st complainant also admitted this fact as per the statement dated 27.05.2011. The complaint filed by the 1st complainant before the Hon’ble Human Rights Commission and the legal notice dated 16.07.2011 issued by the 2nd complainant also reveals this fact. An attempt for changing the date of accident from 03.02.2011 to 03.03.2011 has also made for getting the claim. Thus in all respects, the claim of the complainant is not allowable as the claimant had no insurable interest on the date of the accident and hence this complaint is not allowable. With the above contentions, opposite parties prays for the dismissal of the complaint with their cost as they have not committed any deficiency in service.
7. On the basis of the pleadings of the parties, the following points are raised for consideration:
(1) Whether the complaint is maintainable before this
Forum?
(2) Whether the complainant is entitled to get any
relief as prayed for in the complaint?
(3) Reliefs & Costs?
8. The evidence of this case consists of the oral deposition of PW1, DW1 and Exts.A1 to A11 and B1 to B6. After closure of evidence, both parties filed argument notes and they were heard.
9. Point No.1:- According to the opposite parties, as per Condition No.7 of the terms attached to the policy mandates nobody is entitled to file a suit against the repudiation of a claim after 12 months from the date of the said repudiation. In this case, the complainant’s claim was repudiated on 06.07.2011 whereas this complaint is filed only on 11.03.2013 which is after a lapse of one year and 8 months. So the argument of the opposite party is that the complaint is barred by limitation and hence this complaint is not maintainable before this Forum. But in view of the decision of the Hon’ble Supreme Court of India, in E.I.C.M exports Ltd. Vs. South Indian Corpn.(Agencies) Ltd. and Anr. Reported in 2010(1)KLT Suppl.10(S.C), that complaint before Consumer Forum is not a suit as contemplated by Sec.9 CPC and therefore dismissal of complaint being barred by limitation under Act of 1925 not sustainable and limitation as provided by Sec.24A would govern, the contention of the opposite parties is not sustainable. So this complaint is governed by Consumer Protection Act 1986 and as per Consumer Protection Act, limitation is two years and this complaint is filed within 2 years. So we find that this complaint is not barred by limitation and hence this complaint is found maintainable before this Forum.
9. Point Nos. 2 & 3:- 2nd complainant’s case is that 1st complainant is the power of attorney holder of the 2nd complainant and the 2nd complainant is the registered owner of a Scorpio vehicle bearing Reg.No.KL-27/3005 and his vehicle had valid policy of the opposite parties from 26.02.2011 to 25.02.2012 and the said vehicle met with an accident on 03.03.2011. On the strength of the policy the 2nd complainant submitted a claim before the opposite parties after complying all formalities required in this connection. But opposite parties repudiated the claim by stating that the complainant had no insurable interest on the date of accident. According to the complainant, the repudiation of the claim by the opposite parties is a clear deficiency in service and opposite parties are liable to the complainant for the same.
10. In order to prove the case of the complainants, 2nd complainant filed a proof affidavit in lieu of his chief examination along with 11 documents. On the basis of the proof affidavit, 2nd complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A11. Ext.A1 is the registration certificate of the vehicle in question in the name of the 2nd complainant. Ext.A2 is the insurance policy certificate of the said vehicle for the period from 26.02.2010 to 25.02.2011 issued by the opposite parties in the name of the 2nd complainant. Ext.A3 is the insurance policy certificate of the said vehicle for a period from 26.02.2011 to 25.02.2012 issued by the opposite party in the name of the 2nd complainant. Ext.A4 is an agreement for sale of the above said vehicle dated 23.02.2011 executed between the 1st and 2nd complainants for selling the said vehicle to the 1st complainant. Ext.A5 is an agreement dated 28.02.2011 executed by the 1st complainant for the cancellation of Ext.A4 agreement and for handing over the possession of the vehicle to the 2nd complainant from the 1st complainant. Ext.A6 is the copy of certificate dated 30.06.2011 issued by Sub Inspector of Police, Perumpetty to the 2nd complainant stating that the accident was occurred on 03.03.2011 and not on 03.02.2011. Ext.A7 is a receipt dated 04.03.2011 issued by KPL Crane Service to the 1st complainant for receiving Rs.3,000 as towing charges for taking the vehicle to Kottayam from the accident spot at Ezhumattoor. Ext.A8 is a letter dated 25.06.2011 issued by the opposite parties in the name of the 2nd complainant directing the 2nd complainant to furnish certain clarifications regarding the accident. Ext.A9 is the copy of letter issued by the 2nd complainant to the opposite parties in reply to Ext.A8 letter. Ext.A10 is the photocopy of an estimate for a total amount of Rs.4,60,231/- prepared by Essar Automobiles, Kottayam for the repairs of the vehicle. Ext.A11 is the reply notice dated 26.09.2011 issued by the opposite parties in the name of the 2nd complainant and his advocate in reply to the 2nd complainant’s notice dated 16.07.2011.
11. On the other hand, the contention of the opposite parties is that on getting the intimation regarding the accident they have deputed a surveyor who conducted a spot survey and submitted as report on 04.03.2011 before the opposite parties. In the said survey report, it was pointed out that the said accident occurred in a school ground and hence detailed investigation is required about the driver and purpose of use at the time of the accident. On the basis of the said report, opposite parties conducted an investigation and in the investigation it is revealed that the said vehicle was sold to the 1st complainant on 27.12.2010 although the sale agreement was executed only on 23.02.2011. When the vehicle was under the possession and ownership of the 1st complainant the then insurance policy expired on 25.02.2011 and without disclosing the fact of transfer of the vehicle 2nd complainant renewed the policy in his name with effect from 26.02.2011 to 25.02.2012. Non disclosure of the transfer of ownership is a suppression of a material fact and hence the policy in question is ab initio void. Though the policy is in the name of the 2nd complainant he is not the owner of the vehicle on the date of accident as his ownership was transferred to the 1st complainant. So the 2nd complainant had no insurable interest on the date of accident and he is not entitled to get any insurance benefits. So opposite parties repudiated the claim of the complainant for the reason of “no insurable interest”. The sale agreement dated 23.02.2011 and the agreement dated 28.02.2011 for canceling the previous sale agreement are created for defrauding opposite parties and for getting the claim illegally. The legal notice issued by the 2nd complainant, the statement given by the 1st complainant to the opposite parties, the 1st complainant’s complaint to the Human Rights Commission etc. will clearly shows that the 2nd complainant is not the owner of the vehicle and he had no insurable interest on the date of accident. The 2nd complainant also made an attempt to change the date of accident from 03.02.2011 to 03.03.2011. Further, the 1st complainant has no privity contract with the opposite parties. Since the 2nd complainant had no insurable interest and the 1st complainant had no privity of contract with the opposite parties on the date of accident, complainants are not entitled to get the claim and hence they argued for the dismissal of the complaint.
12. In order to prove the case of the opposite parties, an authorized officer of the opposite parties filed a proof affidavit along with 6 documents. On the basis of the proof affidavit the authorized officer was examined as PW1 and the documents produced were marked as Exts.B1 to B6. Ext.B1 is the terms and conditions of the private car package policy. Ext.B2 is the motor spot survey report dated 04.03.2011 in respect of the accident of the vehicle prepared and submitted by the authorized surveyor of the opposite party. Ext.B3 is the copy of the legal notice dated nil issued for the 2nd complainant in the name of the opposite parties. Ext.B4 is the photocopy of a statement dated 27.05.2011 made in the name of the 1st complainant. Ext.B5 is the photocopy of the complaint dated 13.08.2011 filed before the Kerala State Human Right Commission by the 1st complainant. Ext.B6 is the order dated 02.05.2012 of the Hon’ble Kerala State Human Right Commission disposing Ext.B5 complaint.
13. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the issuance of the policy and the accident of the vehicle, as the parties have admitted the accident and the existence of the policy. The dispute is with regard to the insurable interest of the 2nd complainant on the date of accident and the validity of the policy on the date of accident. According to the complainant, on the date of accident the vehicle is owned and possessed by him and there is a valid insurance policy for the vehicle in the name of the 2nd complainant on the date of accident. Whereas the contentions of the opposite party is that the 2nd complainant had sold the vehicle to the 1st complainant on 27.12.2010 and suppressing the said fact, 2nd complainant renewed the policy in his name on 26.02.2011 and hence the 2nd complainant had no insurable interest on the date of accident and the policy in the name of the 2nd complainant is void as it was renewed by suppressing the real facts. Further opposite parties had another contention that actually the accident was occurred on 03.02.2011. But opposite parties has not adduced any evidence to show that the 2nd complainant had sold the vehicle to the 1st complainant on 27.12.2010 and the accident took place on 03.02.2011 as alleged by them. So we find that there is no sale on 27.12.2010 and further we found that the accident took place on 03.03.2011. Further it is found from Ext.A3 policy, that the vehicle in question had a valid policy on 03.03.2011in the name of the 2nd complainant. But the contention of the opposite party is that the 2nd complainant had sold the vehicle to the 1st complainant on 23.02.2011 vide Ext.A4 agreement and hence the complainant had no insurable interest on the date of accident and the policy is void as it was obtained by the 2nd complainant by suppressing the fact of the sale dated 23.02.2011. But as per Ext.A5 agreement it is seen that Ext.A4 sale agreement was cancelled and the possession of the vehicle had been transferred to the 2nd complainant. So it is clear that as on the date of accident dated 03.03.2011 the complainant is the absolute owner in possession of the vehicle and Ext.A3 policy in the name of the 2nd complainant is valid on that day. It is further seen from Ext.A4 and A5, the ownership of the vehicle had been with the 1st complainant only for 5 days. Insurance law as well as Motor Vehicle Act and Rules had given grace period of 14 days for effecting change of name in the R.C and in the insurance certificate in case of transfer of ownership of a vehicle. In this case, the sale, the cancellation of the sale, the accident etc. took place in between 23.02.2011 and 03.03.2011 which means everything happened within the grace period allowed by the statute. Since statute provides grace period for effecting change of name in the R.C. Book and in the insurance policy, it is not mandatory and compulsory to effect the change of name with immediate effect as desired by the opposite parties. So we find nothing adverse, in this matter, so as to entitle opposite parties to disallow the 2nd complainant’s claim as the sale deed was executed on 23.02.2011 and it was cancelled on 28.02.2011 and the accident occurred on 03.03.2011 and as on 03.03.2011, the owner of the vehicle is the 2nd complainant and the policy in the name of the 2nd complainant is valid. Further even if the contention of the opposite parties regarding the insurable interest and the voidness of the policy is admitted for argument sake it is not sustainable for the reason that everything happened within the grace period provided in the statues. Further opposite parties had no case or no evidence that at the time of accident the vehicle was driven by a person having no driving licence or the vehicle was using for any other illegal purpose against the policy conditions. Opposite parties has not even cancelled the policy on their finding that the policy is void. What prevented them from canceling the policy on their finding? So it is clear that the policy is valid.
14. In this case, the available evidence shows that the 2nd complainant had intimated the accident without any delay and on getting the intimation opposite parties deputed a surveyor who conducted the spot survey. Thereafter the complainant towed the vehicle to an authorized workshop and the workshop authorities prepared an estimate for the repairs of the vehicle. Thereafter the complainant submitted his claim form. After the processing of the claim form opposite parties directed the complainant to furnish certain clarifications regarding the accident. The required clarifications was given by the complainant as desired by the opposite parties. After completing all formalities opposite parties arbitrarily rejected the claim of the complainant by saying that the complainant had no insurable interest on the date of accident.
15. It is pertinent to note that all the formalities required for getting the claim was done by the registered owner of the vehicle who is having a valid insurance policy on the date of accident. He had done all these things on the belief that he is the only person entitled to get this claim and the entire evidence shows that he is entitled to get the claim. So the rejection of the complainant’s claim cannot be justified. Insurance Laws are enacted for the benefits of the policy holders and is for indemnifying the loss of the policy holders and not for making money to the insurance companies by rejecting genuine claims on baseless grounds. In this case, opposite parties exercised much efforts for finding reasons and interpreted the rules for disallowing the claim instead of exploring reasons and interpreting the rules for allowing the claim.
16. The 1st complainant’s presence and his role is taken as the ground for rejecting the claim by the opposite parties. The entire evidence shows that the 1st complainant’s role started after the repudiation of the claim of the 2nd complainant and the legal notice of the 2nd complainant dated 16.07.2011. Till then the 1st complainant was not in the picture. The repudiation of the 2nd complainant’s claim and the indirect message gathered from the attitude of the opposite parties that the 1st complainant is the owner of the vehicle on the date of accident may be the reasons prompted the complainants to induct the 1st complainant in to the picture. The repudiation of the claim was on 06.07.2011 and as on that date the 2nd complainant is the only person entitled to get the claim and there is no ground for rejecting the claim on the basis of the evidence herein as on 06.07.2011 and the said repudiation is baseless and is a clear deficiency from the part of the opposite parties. As the opposite parties have committed deficiency in service, on 06.07.2011 itself, the actions subsequent to 06.07.2011 is immaterial and opposite parties are not entitled to rely the actions of the 1st opposite party for justifying their illegal repudiation. Therefore, we find that this complaint is allowable.
17. The total amount claimed in this complaint is Rs.4,88,231 and its interest. For supporting the said claims complainant produced an estimate prepared by the authorized workshop which is marked as Ext.A10. Opposite parties has not challenged Ext.A10. In the circumstance, Ext.A10 can be accepted subject to the terms and conditions of the policy.
18. In the result, this complaint is allowed, thereby opposite parties are directed to pay the estimate amount of Rs.4,60,231/- (Rupees Four Lakh Sixty thousand two hundred and thirty one only) less permissible depreciation based on its age with 10% interest from the date of filing of this complaint along with compensation of Rs. 10,000/- (Rupees Ten Thousand only) and cost of Rs.5,000/- (Rupees Five Thousand only) to the 2nd complainant within 20 days from the date of receipt of this order, failing which the 2nd complainant is allowed to realize 75% of the estimate amount and the compensation and cost ordered herein above with 12% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 29th day of August, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Baburaj. M
Exhibits marked on the side of the complainant:
A1 : Registration certificate of the vehicle in the name of
the 2nd complainant.
A2 : Insurance policy certificate of the vehicle for the
period from 26.02.2010 to 25.02.2011 issued by the
1st opposite party in the name of the 2nd complainant.
A3 : Insurance policy certificate of the vehicle for a period
from 26.02.2011 to 25.02.2012 issued by the 1st opposite
party in the name of the 2nd complainant.
A4 : Agreement for sale of the vehicle dated 23.02.2011
executed by the 1st complainant for selling the vehicle to
the 2nd complainant.
A5 : Agreement dated 28.02.2011 executed between the 1st
and 2nd complainant.
A6 : Copy of certificate dated 30.06.2011 issued by Sub
Inspector of Police, Perumpetty.
A7 : Receipt dated 04.03.2011 issued by KPL Crane Service to
the 1st complainant.
A8 : Letter dated 25.06.2011 issued by the opposite parties in
the name of the 2nd complainant.
A9 : Photocopy of letter dated 30.06.2011 issued by the 2nd
Complainant to the 2nd opposite party.
A10 : Photocopy of estimate for Rs.4,60,231/- prepared by Essar
Automobiles, Kottayam.
A11 : Reply notice dated 26.09.2011 issued by the opposite
parties in the name of the 2nd complainant.
Witness examined on the side of the complainant:
DW1 : Alice John
Exhibits marked on the side of the complainant:
B1 : Terms and conditions of the private car package policy.
B2 : Motor Spot Survey Report dated 04.03.2011.
B3 : Copy of the legal notice dated Nil issued by the 2nd
complainant to the 1st opposite party.
B4 : Photocopy of a statement dated 27.05.2011 in the name of
the 1st complainant.
B5 : Photocopy of the complaint dated 13.08.2011 filed by the
1st complainant to Kerala State Human Right
Commission.
B6 : Order dated 02.05.2012 of the Hon’ble Kerala State Human
Right Commission.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Ajikumar.P.B., Puthuparampil House,
Ezhumattoor.P.O., Ezhumattoor Village,
Mallappally Taluk
(2) Baburaj. M., Elapumkal House,Pullad.P.O.,
Koipram Village, Kozhencherry Taluk.
(3) Bajaj Allianz General Insurance Co. Ltd., 3rd Floor,
YMCA Building, Sastri Road, Kottayam.
(4) Bajaj Allianz General Insurance Co. Ltd.,
3rd Floor, Finance Tower, Kaloor, Kochi – 17.
(5) Bajaj Allianz General Insurance Co. Ltd.,
1/82 Nanjammas Complex, 1st Floor,
Vishwanathauram Thudiyalur,
Coimbatore – 641 034.
(6) The Stock File.
