IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 05th day of December, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.78/2010 (Remanded)
Between:
Samuel Mathew,
Thundikizhakkethil Veedu,
Muttom.P.O., Thumpamon,
Pathanamthitta.
(By Adv. S. Ajith Prabhav) ... Complainant
And:
1. The Branch Manager,
Oriental Insurance Co. Ltd.,
Market Junction, Thripunithura,
Cochin – 682 301.
2. The Oriental Insurance Co. Ltd.,
Rep. by Divisional Manager,
Division Office No.IV, P.B.No.42,
2nd Floor, Palackattu Building,
Market Junction, Thripunithura,
Kochi – 682 301.
3. The Branch Manager,
Oriental Insurance Co. Ltd.,
Ranni Branch, Ranni.
(By Adv. P.D. Varghese) ... Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant filed this complaint against the opposite parties for getting a relief from this Forum.
2. Fact of the case in brief is as follows: Complainant is the owner of a service bus bearing Reg.No.KL-3-M/6940. The said vehicle was purchased by the complainant in the year 2005 and got it registered on 6.10.2005 in his name. The said vehicle was purchased with the loan availed from Tata Motor Finance. There was a hire purchase agreement between the complainant and the Tata Motors limited. Since the vehicle was subject to hire purchase agreement, the financier got the vehicle insured in the name of the complainant. The vehicle was insured with opposite parties.
3. The said service bus met with an accident on 3.12.2007 at Punnakulathu in Pandalam-Kozhencherry public road with a motorbike. In the accident the motorcyclist died and the said bus also sustained damages. The vehicle at the time of accident was driven by one Ashok kumar, having valid license and badge. The total cost of the repairing charge of the vehicle is ` 3,13,405.18. A crime was also registered as Crime No.715/07 by Pandalam police. The accident was promptly reported to the opposite party. The repairing works were done at Thejus Engineering Works, Malootty Workshop etc. The surveyor by name Sivan Pillai, deputed by the opposite parties, was convinced of the expenses. For toeing the vehicle to the workshop, complainant incurred ` 20,000 also.
4. In connection with employment, the complainant was in Mumbai at the time of the accident and thereafter. In his absence, the said vehicle was managed by one K.N. Suresh. The opposite parties had engaged one Sivan Pillai to process the claim. The claim was submitted to opposite parties through complainant’s agent K.N. Suresh. But 1st opposite party rejected the claim on 8.3.2010 stating that as per agreement dated 29.5.2006, the complainant had sold the vehicle to K.N. Suresh. Since the vehicle was sold, the complainant has no insurable interest on the vehicle and hence cannot entertain his claim. The said finding of the 1st opposite party is absolutely false. After the registration of the vehicle, it was hypothecated to Tata Motors Ltd., a finance company, by way of hypothecation as per agreement dated 20.8.2005 and it was terminated by the complainant after clearing the entire dues on 22.10.2008. The complainant had not sold the vehicle to K.N. Suresh on 29.6.2006, as alleged by the opposite party. It is not possible to sell a vehicle when it is having finance with a finance company. Even though the complainant submitted the records to the opposite parties, to show that the hire purchase agreement was terminated only on 22.10.2006, opposite parties were not ready to look into the claim of the complainant. Legally and factually on the date of the accident and subsequently till 22.10.2008, the date of termination of the hire purchase agreement, the complainant was the owner of the vehicle subject to the hire purchase agreement. A vehicle cannot be legally transferred without terminating the hire purchase agreement. The opposite parties insured the vehicle with the full knowledge that the vehicle was subject to the hire purchase agreement. The rejection of claim by opposite parties is a clear deficiency in service which caused financial loss, mental agony and other hardships to the complainant. Hence this complaint for getting a total amount of ` 5,00,000 under different heads with interest.
5.Opposite parties entered appearance and filed version stating that complaint is not maintainable either in law or on facts. They admitted that they have issued an insurance policy to vehicle No. KL-3-M/6940, valid from 23.8.2007 to 22.8.2008. According to opposite parties, they received an own damage claim from insured Samuel Mathew. On receiving the claim form, opposite parties deputed Mathew Philip, approved surveyor and loss assessor to conduct a spot survey of the insured vehicle and got his report on 24.1.2008. Thereafter V.N.S. Pillai, a surveyor assessed the amount of damages, which will come to ` 1,00,535.30. Thereafter Bill Check Report was submitted by V.N.S. Pillai and assessed the payable amount as ` 98,824.30. On subsequent verification, it was revealed that the insured Samuel Mathew had transferred the vehicle to K.N. Suresh on 29.06.2006 and subsequently the transfer was effected in the R.C. Book on 6.2.2009. Therefore at the time of the accident, the insured has no insurable interest on the insured vehicle. As far as the transferee K.N. Suresh is concerned, there is no privity of contract between him and the insurer. The criminal case records would reveal that K.N. Suresh was the owner of the insured vehicle during the time of the accident. As such Samuel Mathew cannot claim any benefits under the policy as he had transferred the vehicle to K.N. Suresh and there is no privity of contract between K.N. Suresh and the insurer. Moreover, the final bills submitted would show that it was issued to K.N. Natarajan, Karipalayil House, Kozhencherry. The statement that only the management of the vehicle was transferred to K.N. Suresh is not correct. There is no huge damage to the vehicle as alleged. With the above contentions, opposite parties pray for the dismissal of the complaint.
6. On the basis of the evidence adduced by the parties which consists of the oral deposition of PW1 and DW1 and Exts.A1 to A15 series and Exts. B1 to B8, this Forum dismissed the complaint on a finding that on the date of accident, the complainant had no insurable interest as he had already sold the vehicle to another person.
7. Being aggrieved by the order of this Forum, the complainant preferred an Appeal to the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No. 747/2011. After hearing the Appeal, the Hon’ble CDRC allowed the Appeal and remanded the matter for fresh disposal with an direction for giving opportunity to both parties for adducing fresh evidence with a observation that the vehicle involved in the accident is subject to hypothecation and it is not possible to transfer the ownership of the vehicle while hypothecation is in force and hence the alleged sale could not be effected and hence the complainant himself is the owner on the date of the accident.
8. On the basis of the direction of the Hon’ble CDRC, this Forum had given opportunity to both parties for adducing fresh evidence. Accordingly, the complainant had brought 2 documents which are marked as Exts. A16 and A17. Ext. A16 is the copy of the registration particulars of the vehicle in question issued from RTO, Pathanamthitta showing the transfer of ownership of the said vehicle to one K.A. Natarajan with effect from 06.02.2009 and the complainant was the registered owner of the said vehicle till 06.02.2009. Ext. A17 is the registration particulars of the said vehicle issued from RTO, Adoor showing that the complainant was the original registered owner and the hypothecation was terminated on 17.01.2009.
9. From the side of the opposite parties, there is no oral or documentary evidence at this stage. Hence this Forum closed the evidence and heard the parties again.
10. On the basis of the evidence adduced by the parties before and after the remand and on the basis of the observation made by the Hon’ble CDRC, the only point to be considered is whether the complainant had got insurable interest on the date of accident?
11. According to the complainant, he was the registered owner in possession of the vehicle in question on the date of accident and he transferred the vehicle only on 06.02.2009 and hence he had insurable interest and he is entitled to get the claim. But according to the opposite parties, as per Exts. B6 to B6(d) series police records and as per Ext. B6(e) sale agreement, on the date of accident, the complainant was not the actual owner of the vehicle as he had already sold the vehicle to one K.N. Suresh and hence the complainant is not entitled to get the claim.
12. On a perusal of Exts. A16 and A17, the complainant was the registered owner of the vehicle till 06.02.2009 and hypothecation was terminated only on 17.01.2009. Ext. B1 policy is also in the name of the complainant on the date of accident. Ext. B3 claim form is submitted by the complainant though it is not signed by him. Exts. A11 and A12 sale certificates of Pricol Ltd. also shows that the complainant was the registered owner as on 23.03.2007. All the above said facts shows that the complainant was the registered owner in possession of the vehicle in question on the date of accident. In this case, the statutory transfer of ownership of the vehicle was effected subsequent to the date of accident. Since statutory transfer of ownership is effected after the date of accident, the contentions based on Exts. B6 series that the complainant had transferred the ownership of the vehicle to another person before the accident cannot be justified and is not sustainable. Moreover, opposite parties have not adduced any cogent evidence other than Exts. B6 series to substantiate their contention regarding the alleged sale of the vehicle by the complainant before the date of accident. In the circumstances and also on the basis of the observation of the Hon’ble CDRC, we find that the complainant has got insurable interest on the date of accident as he is the registered owner of the vehicle having a valid policy of the opposite parties on the relevant date and as he had not transferred the ownership of his vehicle to anybody till 06.02.2009. Therefore, the rejection of the complainant’s claim by the opposite parties is a clear deficiency in service and hence opposite parties are liable to the complainant.
13. Then comes the question of quantum of the claim to be allowed. In this respect, opposite parties had raised a contention that the claim of the complainant is highly exaggerated and the extensive damage sustained to the vehicle is not the collusion damages, but it was due to the attack of the violent public. But the contention is also not supported with cogent evidence. So, the surveyor’s assessment of ` 98,824 as admissible claim based on the above contention is not acceptable. Therefore, complainant is entitled to get the expenses of the repairs of the vehicle. Though the complainant claims an amount of ` 3,33,405 as the expenses for the repairs, he failed to submit vouchers for the same. So the complainant is entitled only to get the amount seen in the vouchers/bills produced by him which are marked as Exts. A4 to A6 and A15 series which comes to ` 1,97,549 and hence opposite parties are liable to pay the said amount subject to the deductions applicable as per the policy conditions along with compensation and cost.
14. In the result, this complaint is allowed, thereby opposite parties are directed to pay ` 1,97,549 (Rupees One lakh ninety seven thousand five hundred and forty nine only) less deductions applicable under Ext. B1 policy condition along with compensation of ` 10,000 (Rupees Ten thousand only) and cost of ` 5,000 (Rupees Five thousand only) within 30 days from the date of receipt of this order, failing which complainant is allowed to realize an amount of ` 1,75,000 (Rupees One lakh seventy five thousand only) in total along with 10% interest per annum from today till the realization of the whole amount.
Declared in the Open Forum on this the 5th day of December, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Samuel Mathew.
Exhibits marked on the side of the complainant:
A1 : Photocopy of the letter dated 14.2.08 issued by V.N.S.
Pillai,S.P. Engineers & Surveyors, Kottayam to the
complainant.
A2 : Photocopy of the letter dated 14.11.08 issued by V.N.S.
Pillai, S.P. Engineers & Surveyors, Kottayam to the
complainant.
A3 : Photo copy of reply notice dated 3.12.08 sent to V.N.
Sivan Pillai, S.P. Engineers & Surveyors, Kottayam by the
complainant.
A4 : Photo copy of bill amount of Rs.95,000 issued by Thejus
Engineering Work, Elanthoor.
A5 : Photo copy of cash bill for Rs.9,890 issued by Grand
Auto Electrical Works, Elanthoor.
A6 : Photo copy of bill amount of Rs.7,450 issued from V-one
Auto Tech, Elanthoor.
A7 : Photo copy of letter dated 22.10.08 issued by Tata
Motors Ltd., Thane.
A8 : Photo copy of the letter issued to RTO, Pathanamthitta
by Tata Motors Ltd., Thane.
A9 : Photo copy of the letter dated 22.10.08 issued to
opposite parties by Tata Motors Ltd., Thane.
A10 : Photo copy of Form No.35 (Notice of termination of an
agreement of hire purchase/lease/hypthecation) issued
by the Tata Motors Ltd. to complainant.
A11 : Sale certificate dated 23.3.07 issued to the complainant
by Pricol Ltd.
A12 : Installation certificate of Electronic Speed Limitation
Device dated 23.3.07 issued by Pricol Ltd.
A13 : Attested copy of report of inspection of a motor vehicle
involved in an accident (MVI report dated 05.12.2007)
A14 series : Photographs of the vehicle. (6 in number).
A15 series : Bill amounts of Rs.85,209 for the cost of glass and
glass fitting materials.
A16 : Copy of the registration particulars of the vehicle issued
from RTO, Pathanamthitta (after remand).
A17 : Registration particulars of the vehicle issued from
RTO, Adoor (after remand).
Witness examined on the side of the opposite parties:
DW1 : S. Krishnamoorthy.
Exhibits marked on the side of the opposite parties:
B1 : Insurance policy certificate with condition of the vehicle.
B2 : Claim intimation dated 3.12.07.
B3 : Unsigned claim form (Motor claim form).
B4 : Motor Survey Report dated 21.12.09.
B5 : Bill check report.
B6 : Attested copy of First Information Report in Crime
No.715/07.
B6(a) : Photocopy of the mahazar.
B6(b) : Photocopy of Moonamsthanam Kaicheettu.
B6(c) : Photocopy of the notice issued by Pandalam Police to
Suresh.
B6(d): Photocopy Reply notice issued by Suresh to Pandalam
Police.
B6(e): Copy of sale agreement between Samuel Mathew and
K.N. Suresh.
B7 : Bills in the name of Natarajan (16 in number).
B8 : Photocopy of the Certificate of registration.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Samuel Mathew, Thundikizhakkethil Veedu,
Muttom.P.O., Thumpamon, Pathanamthitta.
(2) The Branch Manager, Oriental Insurance Co. Ltd.,
Market Junction, Thripunithura, Cochin – 682 301.
(3) Divisional Manager, The Oriental Insurance Co. Ltd.,
Division Office No.IV, P.B.No.42,2nd Floor,
Palackattu Building, Market Junction, Thripunithura,
Kochi – 682 301.
(4) The Branch Manager, Oriental Insurance Co. Ltd.,
Ranni Branch, Ranni.
(5) The Stock File.
