The present complaint was filed by the titled complainant against the titled insurers upon rejection/non-receipt of his Insurance-Claim filed with the OP2 insurers pertaining to his comprehensively insured Tata Safari Vehicle having reduced to one Total-Loss Claim on 10.11.2019 in an accidental-fire at its parking-shed in the house.
2. The complainant had represented to the OP insurers many a times over the telephone as well as in writing and also through legal-notice warranting an expeditious resolve but somehow all that could not move the OP and hence prompted the present complaint.
3. Sh. Angrej Singh a resident of Village: Lakhanpur (Nurpur-Kangra) in the State of H.P. but adjoining Pathankot (Punjab) geographically on the States' Borders had purchased the Tata Safari Vehicle (Registration # DL-3-CBN-1606) from one Geeta Dass (R/o New Delhi) who had since transferred the vehicle's ownership along with all its rights and liabilities to the complainant. Upon transfer and registration of the vehicle in H.P. State; its R.C. No. was changed to HP-385-5036 from the New Delhi RC # DL-3-CBN-1606.
4. In the meantime the complainant had got the vehicle comprehensively insured with effect from 19.07.2019 to 18.07.2020, with the OP2 insurers who somehow issued the related cover note in the name of the previous owner Geeta Dass care Angrej Singh (with the new owner's complete address) as on the date of insurance (18.07.2019) the vehicle's R.C. (registration) was still in the process-of-transfer to the complainant name. The OP had however assured the complainant that upon receipt of the new R.C., the related insurance policy shall be duly transferred in his name and even the issued policy shall very well serve all his purposes (primary as well as collateral) relating to 'insurance' of the vehicle.
5. Next, the complainant states having got the fresh R.C. (HP-385-5036) of the vehicle duly transferred in his name and that was to be submitted with the OP2 insurer with request for transfer of the insurance policy to his name. However, in the meantime, as ill-luck would have it, on 10.11.2019, the all-purpose work-shed adjoining the complainant's living-house (with the insured vehicle parked inside, therein) caught fire that soon went out of control and engulfed the parked vehicle along with the other stacked-in goods causing huge-loss to the complainant and his family. The fire incident was duly reported at the Police Post, Kandwal vide DDR 19 of 10.11.2019. And, the related insurance Total-Loss Claim for the full IDV of the vehicle was filed with the OP2 insurers who however in their endeavor to repudiate the same had expressed their inability to entertain/process the claim alleging absence of insurance contract as at the time of insurance the vehicle was owned in the name of Geeta Dass and there has been no subsequent change/transfer of name as could be recorded over the vehicle's insurance policy as well as its R.C. The complainant had approached the OP insurers and requested for review/reconsideration of their repudiation and also got one Legal-notice served upon the OP on 18.02.2020 but no fruitful results did ever follow. Hence, prompted the present complaint seeking directives to the OP Insurers to settle claim at the insured IDV @ Rs.5.75 Lac besides Rs.50,000/- as damages and Rs.10,000/- as cost of litigation, in the interest of justice. In order to support prosecution of its allegations/contents, the complaint stands accompanied with an affidavit as Ex.CW1 along with other exhibited evidence/documents as: Ex.C1 (Fresh/transferred RC with same Engine/Body nos.); Ex.C2 (Insurance cover-note with same Engine/Body nos.); Ex.C3 (Copy of DDR # 19); Ex.C4 (Copy of Rejection Letter); Ex.C5 (Legal Notice to the OP) and Ex.C6 (the Postal Receipts).
6. The titled OP Insurers (the OP1 & the OP2), in response to the commission’s notice/summons appeared through their common counsel who filed their written reply stating therein preliminary as well as other objections (on merits) as: Firstly, the OP plead absence of cause of action and locus-standee with the complainant to file the present complaint and lack of jurisdiction with the commission to adjudicate the present complaint. Next, the complainant in the absence of any contract with the insurers had never been a consumer. On the date of insurance, the insured vehicle had been in the name of Geeta Dass and no change of name (in the insurance policy) was ever applied for and as such on 10.11.2019 the date of fire-accident there was no insurance-contract with Angrej Singh Complainant. Further, there's never been any deficiency in service on their part and upon receipt of the claim the OP2 appointed the Surveyor who inspected the vehicle and submitted his report. And, the claim has been rightly repudiated in the absence of requisite insurance contract. Further, the complainant had failed to transfer the insurance policy to his name from that of the previous owner in terms of GR.17 of Indian Motor Tariff Guidelines that prescribe a detailed procedure to be followed but that was never followed and as such no fresh policy certificate could be ever issued in the name of the present owner/complainant. Further, the liability, if any, of the OP insurers stood limited by the IDV (less deductions) as reflected in the Surveyor's Report and the claim, as above, has been rightly repudiated and the complaint has also been bad for non-joining of the necessary parties. On merits, also the OP insurers have been denying and/or side-lining the contents of the complaint but all the time sticking to their one-point single stand that at the time of the alleged accident there has been no insurance contract with Angrej Singh, the present owner as the related insurance policy has been till then, in the name of the previous owner Geeta Dass and as such the impugned fire-accident claim has been rightly repudiated as repeatedly advised/explained through letters exhibited here as: Ex.OP1,2/1 (16.12.2019), Ex.OP1,2/2 (28.12.2019) and Ex.OP1,2/3 (09.01.2020). Further, the insurer liability, if any, gets limited by the IDV Rs.5.75 Lac of the vehicle to be further determined vide the compulsory deductions in terms of the related policy (Ex.OP4). Finally, the OP have reasserted correctness of repudiation at their end and have put forth the Surveyor's Report (Ex.OP5) and policy's terms and conditions (Ex.OP6) seeking dismissal of the complaint.
7. We have duly heard the learned counsels for both the sides, on points of law, and have also thoroughly examined the records with requisite care and caution on the points of fact, as placed before us. We have been also inclined to examine the inference it’s ‘scope n spread’ on account of some documents ignored to be produced/not-produced, during the course of the present proceedings.
8. We observe that the prime-point of contention between the herein litigants has been on the subject-matter/issue of insurance-contract. The OP1/2 insurers insist upon its absence asserting that on the day of fire-accident the policy stood issued in the name of the previous owner Geeta Dass and no subsequent policy-transfer in the name of the present owner was ever initiated/effected, at any point/intervening stage whereas the complainant has invariably pleaded that the sale-transfer of the vehicle was shared/disclosed with the OP2 insurer and it has been at their instance/allurement that insurance cover was purchased in the name of the vendor owner care of/in the name and address of the vendee owner/complainant.
9. The wording of the policy cover-note (Ex.C2) evidences truth in the complainant's statement. The cover note reads 'name and address' of insured as:
'Geeta Dass care of Angrej Singh S/o Chand Ram Ward # 06, Village: Lakhanpur; P.O. Kandwal; Tehsil: Nurpur (H.P.); whereas in the Policy Transcript, Certificate & Schedule (Ex.OP1,2/4 - Ex.OP1,2/5) New Delhi address of Geeta Dass stands shrewdly inserted.
Here, the OP insurers have quoted two nos. of NCDRC judgments
i) NCDRC Revision Petition No. 3896 of 2013 titled IFFCO TOKIO General Insurance Co. Vs. Ashok Laxman Mane and others; &
ii) NCDRC Revision Petition No. 3757 of 2006 titled UIC Ltd., Vs. Bundela Singh Rajput since deceased and others.
10. We have respectfully studied both these judgments that vividly overrule that the provisions of the Motor Vehicles Act, 1988 visa-a-vis Motors Vehicles Act, 1939 do not entitle the insured to claim compensation from the insurer, in the absence of transfer of policy in his name, as on the date of loss, so far as loss/damage to his own repurchased vehicle is concerned but the insurers shall be liable for the third party damage.
11. However, in case of an agreement/contract between the insured (new owner of the repurchased vehicle) and the insurer, in that case the insurer shall be liable to the own-vehicle damage also but again in terms of contract of insurance. Here, the complainant has deposed that the insurers at the time of insurance had assured him all the insurance-benefits to him (amounting to contract) and had added his name and address over the cover note and the same amounts to an implied contract.
12. Also, in terms of the IRDA - GR-17 of the All India Motor Tariff, the new purchaser of the old-vehicle can validly apply for substitution of his name in the continuing insurance-policy of the vehicle within 14 days of the transfer of the purchased vehicle to his name to claim self-damage to the freshly owned old-vehicle. In a case Bajaj Allianz Gen. Ins. Co. Ltd., Vs. Smt. Lalita Devi NCDRC 2013 (1) CPR 451 in which it was affirmed that the complainant transferee of the old vehicle stays entitled for self-damage claim to his vehicle, for 14 days, from the date of transfer of vehicle in his name as he stays eligible for full 14 days to get the related insurance policy of the vehicle transferred to his name. Here, the complainant has deposed that the old but insured vehicle was damaged (total-loss) in the fire-incident occurring within 4-5 days of its transfer to his name when he was still eligible for policy transfer. Thus, we find that the above two NCDRC verdicts do not benefit/ favor much the OP insurers here on account of the changed proposition(s), in law.
13. The OP insurers have for sure employed/adopted unfair trade practices in issuance of the vehicle policy that led to the impugned insurance claim. The cover note wording of the related policy (Ex.C2) clearly exhibits and proves that the OP insurers' representative/agent knew it fully well that the vehicle, under insurance, had been under sale-transfer and the complainant's name was also under incorporation in the new/fresh R.C., being issued by the H.P. (RTA) Road Transport Authorities but they still proceeded to sell the insurance in violation of their own rules/principles/terms & conditions. The OP insurers through their agents were fully aware of the fact that the vehicle stood sold to an H.P. Addressee, otherwise why a New Delhi Resident Vehicle Owner will come all the way to Pathankot to purchase the vehicle insurance from them.
14. Moreover, section 45(3) of the Insurance Act, 1938 (as amended up to date) bars repudiation of Policy on account of mis-statement(s) and/or suppression of fact(s) that are within the knowledge of the insurers or its representatives.
15. We observe that the OP insurers have even opted out of its statutory duty as well as its obligatory courtesy to 'up-date/respond' to the prescribed guidelines while issuance of the complainant vehicle-insurance presently culminating into an impugned-claim. We also observe that the OP Surveyor's Report confirms total-loss/damage to the insured vehicle.
16. We are of the considered opinion at the face of the evidenced-facts as available on the records that there’s have been an unfair display of its superior/dominant position by the OP Insurer in blacking-out the 'transparency' of policy-status from the insured and that clearly amounted to deficiency in service on the OP insurer's part and as such the impugned ‘repudiation’ on the OP insurer's part of the fire-accident insurance-claim, in question, had been unwarranted, arbitrary and unfair; neither in accordance with the provisions of the statutory law nor in conformity with the sanctity of natural justice, equity and good conscience. Further, it has violated with impunity the preferred consumer rights of the insured complainant causing him much physical harassment, mental agony and financial loss. Thus, we hold the OP insurers guilty of statutory misconduct amounting to ‘unfair trade practices/deficiency in service’ and thus liable to an adverse award under the provisions of the governing statute.
17. In the light of the all above, we order the opposite party insurers to pay the impugned claim of the policy with interest @ 6% PA from the date of claim (till paid in full) besides Rs.10,000/- in lump sum as cost cum compensation within 45 days of receipt of the certified copy of these orders otherwise.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
19. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (R.S.Sukhija)
JULY 14, 2022. Member.
YP.
