Orissa

Jharsuguda

CC/121/2017

Rama Mitra W/O- Late Babul Mitra - Complainant(s)

Versus

Branch Manager, Cholamandalam MS General Insurance Co. Ltd. - Opp.Party(s)

Abdul Zalil

09 Dec 2021

ORDER

DISTRICT   CONSUMER DISPUTES REDRESSAL COMMISSION, JHARSUGUDA.

                                                          

C.C.NO-121/2017

 

Rama Mitra, aged about 42 yrs.

 W/O-Late Bablu Mitra,

       R/o- Nayapada, Gumadera,Po/Ps: Belpahar,

      Dist : Jharsuguda.                                                           ..……Complainants.

     

Versus

 

1.  Branch manager,

Cholamandalam Ms General Insurance Co. Ltd.,

At: Choudhury Complex, Ground floor,

Panposh Road, Rourkela- 769004.

 

2.  Branch Manager,

Central Bank of India, Belpahar Branch,

At: Gumadera, Po/Ps: Belpahar,

Dist:Jharsuguda        ……..…………Opp. Parties.

 

            Counsel for the Parties:-

For the Complainant                       :-         Sri Abdul Zalil,Adv. & Associates.                      

For the Opp. Party No-1                    :-      Sri A.K.Mishra, Adv. & Associates.

For the Opp. Party No-2                    :-      Sri N.K.Naik, Adv. & Associates.

 

             Present:-     1. Shri  Dipak Kumar Mahapatra, President.

                                     2. Smt. Anamika Nanda, Member (W).

 

Date of Hearing:- 24.11.2021, Date of Order: 09.12.2021

SRI DIPAK KUMAR MAHAPATRA, PRESIDENT:-Brief facts of the case is that he Complainant is the married wife of Late Bablu Mitra who died on dtd.29.04.2016. During his life time Bablu Mitra had purchased an Indigo Car of Tata make  bearing registration no- OD-15-C-0671 having Chassis No- MAT607341DPN32197 and Engine No- 475IDT14NWYP55176 for his personal use. After death of the deceased though the Complainant was using the said Car but has not changed the ownership in to her name but she was paying EMIS regularly to the Financier who is the O.P-2 in this case. The Complainant has insured her Car by paying Insurance premium to the O.P-1 Insurance Company and had obtained a policy vide no-3362/01304529/000/00 which was valid from 28/12/2016 to 27/12/2017. The said car was got accident on dtd.08.01.2017 being driven by one Kamal Lochan Kua having valid Driving License  and a case was registered in Sasan Police Station on dtd.08.01.2017 vide P.S Case No-0004 U/S-279/337/338 IPC. The matter was immediately informed to the O.Ps and as per the direction of the O.P-1 the damaged Car was shifted to Maa Samaleswari Motors at Sambalpur by Crane for necessary repair.  The Complainant has paid Rs. 1,04,193/- from her own at the workshop of Maa Samalswari Automobiles along with Rs. 10,000/ to crane service and for tyres Rs. 3,500/- in total an amount of Rs. 1,17,693/- to get the Car road worthy. The Complainant submitted claim form vide no-3362329707 with the O.P-1 to get Compensation but the O.P-1 has repudiated the claim with a remark that “the Regd. owner Bablu Mitra had expired before the date of loss and there was no name transfer in RC and Insurance Policy”. The Complainant pleaded that she has given oral information to the O.Ps about the death of her husband and the O.P-1 has receive the premium and renewed the said policy in the name of her husband. Again she claims that as the policy is valid the O.P-1 should have settled the claim but the O.Ps has committed deficiency in service as well as unfair Trade Practice by repudiating the claim.

As per the O.P-1 there was no privity of contract between Bablu Mitra and the Insurance Company as such there was no Insurable Interest of the Complainant who is not at all a receiver of services of insurance company and she has no Locus Standi to receive the damage claim. The policy was obtained by the Complainant by suppression of material facts and obtained an insurance policy in the name of her deceased husband. She has well known that her husband has been died prior to inception of the policy hence she cannot claim justice. Further he submits that a Private Car Package policy was issued to Bablu Mitra on which was valid from 28.2.2016 to 27.12.2017 for the car Indigo ECS LX bearing No- OD-15-C-0671. After receive of information regarding the accident of this car as per the Claim Form submitted the O.P1 engaged IRDA approved surveyor to assess the loss  and it was assessed to Rs. 87,000/-. But the surveyor remarked that there was no insurable interest of the Complainant in this claim as the contract of policy was between her husband Bablu Mitra and the Insurance Company and Bablu Mitra was already died on dtd. 29.04.2016 prior to taking this policy.  The O.P-1 repudiated the claim on dtd. 13.03.2017 accordingly. The O.P-1 placed reliance on section -09 of the policy condition read as- In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of the death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of the Motor Vehicle passes may apply to have this Policy transferred to the name(s) of the heir(s) or obtain a new insurance policy for the Motor Vehicle. Again he stated that as per GR-17 of India Motor Tariff Act-The transferee shall apply within fourteen days from the date of transfer in writing so that the insurer may make the necessary charges in his record and issue fresh Certificate of Insurance. But the Complainant has neither given any information about the death of her husband to the O.P-1 nor transferred the ownership in her name. Further it is added that  the contracts of insurance are the contracts of uberima fides  which means complete good faith hence the proposal was accepted and no verification was conducted at that time. The Complainant has played fraud as she suppressed the facts of death of her husband at the time of availing a fresh policy.  The O.P-1 relied on the judgment in the case of Sonis Surgical vrs. National Insurance Company ltd decided by Supreme Court of India  on 10^th  October 2009 and in the matter of Nirasha Sinha vrs. HDFC ergo General Insurance Co. Ltd decided on 04.08.2016 by National Commission, Delhi. Also he relied upon another judgment delivered by Honble Supreme Court of India in the matter of United Insurance vrs. Rajendra Singh and anrs in this context.  Hence the O.P-1 claimed to be discharged from the liability in this case.

As per the O.P-2 the Complainant has orally informed the matter to the O.P-2 (Bank) who has intimated this to the O.P-1 (Insurer) accordingly. He added that the O.P-1 has deducted the premium money in due time for continuation of the policy. Again he stated that though the information was given to the O.P-1 orally in due time still the O.P-1 deducted the premium amount and the policy was renewed in the name of the original owner.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the contract of insurance of the Car in question between Bablu Mitra is void and not enforceable as alleged by O.P?
3. Whether the O.P has committed any Deficiency in Service to the Complainant?

From the above discussion we inferred that the deceased was a consumer of the O.P as he had availed insurance from the O.P-1 for her Car on payment of premium which was deducted from the account lying with the O.P-2.  In the matter of “Rikhi Ram & Anr. v. Sukhrania (Smt.) & Ors”. [(2003) 3 SCC 97], "It is thus clear that whether intimation is given or not given to the Insurance Company with regard to the transfer of a vehicle. The Insurance Company under the provisions of the Motor Vehicles Act, 1988 is liable to pay compensation. The Insurance Company at the time when it renewed the policy of insurance and accepted the premium should have verified whether Bablu Mitra was alive or not. In the present case the premium appears to have been paid by the bank with which the vehicle was hypothecated." Section 146 provides for statutory insurance. An Insurance is mandatorily required to be obtained by the person in charge of or in possession of the vehicle. There is no provision in the Motor Vehicles Act that unless the name(s) of the heirs of the owner of a vehicle is/are substituted on the certificate of insurance or in the certificate of registration in place of the original owner (since deceased), the motor vehicle cannot be allowed to be used in a public place. Thus, in a case where the owner of a motor vehicle has expired, although there does not exist any statutory interdict for the person in possession of the vehicle to ply the same on road; but there being a statutory injunction that the same cannot be plied unless a policy of insurance is obtained, we are of the opinion that the contract of insurance would be enforceable. It would be so in a case of this nature as for the purpose of renewal of insurance policy only the premium is to be paid. It is not in disputed that quantum of premium paid for renewal of the policy is in terms of the provisions of the Insurance Act, 1938. The vehicle was hypothecated to a nationalized bank. The certificate of registration, presumably, therefore, carried the name of the bank also. The bank admittedly paid the premium. The aforesaid provision shows that it was intended to cover two legal objectives. Firstly, that no one who was not a party to a contract would bring an action on a contract; and secondly, that a person who has no interest in the subject-matter of an insurance can claim the benefit of an insurance. Thus, once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 94 does not provide that any person who will use the vehicle shall insure the vehicle in respect of his separate use." The above matter is well discussed in the case of “United India Insurance Co. Ltd vs. Santro Devi” & Ors on 2 December, 2008 by Supreme Court of India. Again the Complainant has got the Indigo repaired from an Authorised Service station named MAA SAMALESWARI AUTOMOBILES at Sambalpur where the bills were generated against genuine spare parts of Tata Motors. But the IRDA approved surveyor to assess the loss and it was assessed to Rs. 87,000/- which is less than the actual expenditure amount. The judgment of Hon’ble Supreme Court reported in “New India Assurance Company Limited v. Pradeep Kumar” () is applicable to the facts of the present case, wherein it has been laid down that Surveyors report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. It is mentioned that the prices were taken from any authorized dealer of the said vehicle, where genuine parts are available.  Hence the O.P-1 is held deficient in providing necessary services to the Complainant and we order as under:-

ORDER.

               The Complaint petition is allowed. The O.P is directed to pay a sum of Rs.1,17,693/- ( Rupees one lakh seventeen thousand six hundred ninety three) only to the Complainant within15 days of receiving this order. Further the O.P  is directed to pay Rs. 10,000/- (Rupees Ten Thousand )only  as compensation for mental agony of the petitioner and Rs.2,000/- (Rupees two thousand ) as litigation expenses to the petitioner  within 30 (Thirty ) days of receipt of this order failing which the O.P is liable to pay penal interest of 9% per annum on the above amounts.

              

               Office is directed to supply the free copies of the order to the parties receiving acknowledgement of the delivery of thereof.

     

               Order pronounced in the open court today i.e. 9^th   day of December, 2021 under my hand and seal of this Commission.

I      agree,                                      

                       

 MEMBER(W)                                                                               PRESIDENT.

Dictated and Corrected

  by me.

 

          PRESIDENT.