BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 09/2009 Filed on 08.01.2009

Dated : 31.08.2010

Complainant:

M. Bhaskara Pillai, residing at 'Ushus', Mithrmala P.O, Kallara, Thiruvananthapuram.

(By adv. N. Anil Kumar)

Opposite parties:

1. Branch Manager, National Insurance Company Ltd., Branch Office I, Ernakulam, South Junction, Chittoor Road, Kochi-682 016.

    

2. The Divisional Manager, National Insurance Company, St. Joseph Press Building, Vazhuthacaud, Thiruvananthapuram.

(By adv. S. Sajitha)

This O.P having been heard on 17.07.2010, the Forum on 31.08.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant had purchased a vehicle namely Maruti 800 model car having registration No. KL16/9465 for his personal use. The above said vehicle was purchased from Mr. K. Baiju, Leela Mandiram, Parappil, Muthuvila P.O, Kallara, Tvpm. The vehicle was so purchased by the complainant on 22^nd September 2006. Accordingly the registered ownership of the vehicle had been changed in favour of the complainant and his name has been incorporated in the respective pages of the Registration Certificate book by the Registering Authority and it was so effected on 22.09.2006. At the time of purchase the vehicle was having valid insurance coverage with National Insurance Company, a corporate body represented by the 1^st and 2^nd opposite parties. The policy number is being 1369072 valid from 13.09.2006 to 12.09.2007. When this policy was obtained the name of the insured was “Mr. Baiju” who is the prior owner. Immediately on purchase of the vehicle by the complainant a request had been sent to the 2^nd opposite party, namely Divisional Manager, National Insurance Company, Tvpm with copy of the R.C Book, the copy of the agreement for sale, requesting the insurer to get changed the name of the insured in the then existing certificate of insurance. The request for getting changed the name of the insured was sent by Certificate of Posting on 06.11.2006. That the above said vehicle of the complainant had unfortunately met with an accident on 30.08.2007 at Thuravoor in Alappuzha district and major damage were caused to the vehicle. As a result of the accident the vehicle was taken to the authorized workshop for repair with intimation to the 1^st opposite party. Accordingly the vehicle got repaired at Popular Vehicles and Services Ltd., Perandoor Road, Elamakkara, Kochi. After the vehicle has got repaired, the own damage claim was made by the complainant from the opposite party and the claim was routed through the authorized workshop namely Popular Vehicles & Services Ltd, Purmakkal, Kochi. The Popular Vehicles & Services authorities made the claim mistakenly in the name of prior owner whose name had been incorporated on the front page of R.C Book. As the opposite parties were reluctant to the claim, the workshop bill was totally paid by this complainant. The own damage claim made by the complainant was illegally denied by the 1^st opposite party in his communication dated 29.11.2007 addressed to the immediate prior owner of the vehicle with copy to Popular Vehicles & Services Ltd, Punnakkal, Kochi. Hence this complaint to realise the own damage claim amount of Rs. 25,350/- with 8% interest till realisation.

Opposite parties National Insurance Co. filed their version. The opposite parties stated that the complaint is not maintainable either in law or on facts. The complainant has no contract of insurance with the opposite party at the time of the alleged accident. There was no privity of contract between the complainant and the opposite party on the date of the alleged accident. The complainant had not hired any service from the opposite party at the time of the accident. There is no consumer dispute existing between the complainant and the opposite parties. The averments of the complainant that he has purchased the vehicle from Mr. K. Baiju and the registered ownership of vehicle was in the name of the complainant from 22.09.2006 onwards are to be proved by the complainant. The opposite parties submitted that even though the complainant was the owner of the Maruti car bearing Reg. No. KL 16/9465 with effect from 22.09.2006 the policy of the vehicle was not transferred in his name at the time of accident, which allegedly occurred on 30.08.2007 at Thuravoor in Alleppey. The opposite party had not issued any policy covering the vehicle in favour of the complainant at the time of the alleged accident and there was no privity of contract between the complainant and the opposite party at the time of alleged accident. The allegations of the complainant is that a request for changing the name of the insured was sent to the opposite party on 06.11.2006 is absolutely false and hence denied. The opposite party has never received such a request till date. The fact that the complainant has never remitted the required fee as per the rules for the change of name itself shows that the claim is fabricated one for the purpose of this case. The opposite party issued policy in respect of the vehicle Reg. No. KL 16/9465 in favour of Sri. Baiju for the period from 13.09.2006 to 12.09.2007. It is a clearly settled law that, the policy should be transferred to new owner immediately on the sale of the vehicle and that on the date of accident if the policy of insurance is not in the name of the possessor of the vehicle the claim will not be entertained. The complainant/transferee/owner of the aforesaid vehicle had not effected transfer of policy in respect of the said vehicle. The opposite party further submitted that on the date of the alleged accident on 30.08.2007 there was no contract of insurance between the complainant and the opposite party in respect of the vehicle. Therefore the complainant has no right to claim any amount for repairing the damages caused to the vehicle in the alleged accident. The opposite party has no liability to pay any amount for repairing the damages caused to the said vehicle in the alleged accident. The opposite party further submitted that the transferor/earlier owner Mr. Baiju violated the fundamental conditions of the policy issued in respect of the said vehicle by transfering the said vehicle in favour of the complainant without intimating the opposite party. Hence the policy issued to him for the period from 13.09.2006 to 12.09.2007 became void and the complainant is not entitled to get any benefit under the policy. The opposite party has not caused any delay or committed any deficiency in service or unfair trade practice in considering and processing the claim submitted by the complainant.

In this case the complainant and opposite parties filed proof affidavits and examined them as PW1 and DW1, From both sides documents were marked.

The points to be ascertained are:-

1. Whether there is deficiency in service from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The claim of the complainant is rejected by the opposite party on the ground that at the time of the alleged accident there was no contract of insurance between the complainant and the opposite parties. The complainant states that after the registration of the said vehicle, the vehicle has been transferred in his name and he had taken steps to get changed the name of the insured in the policy. Accordingly he had sent a letter dated 06.11.2006 to the opposite parties, but the opposite parties did not change the name of the insured and rejected his claim. To prove his contention the complainant has filed proof affidavit and he has produced 7 documents which were marked as Exts. P1 to P7. Opposite party also filed affidavit and produced 5 documents which were marked as Exts. D1 to D5.

Ext. P1 is the sale agreement dated 22.09.2006. This document shows that the complainant had purchased the vehicle from K. Baiju on 22.09.2006. Ext. P2 is the photocopy of Registration Certificate in the name of the complainant. As per this document the vehicle was transferred in his name with effect from 22.09.2006. Ext. P3 is the photocopy of policy certificate. As per this document the name of the insured is K.Baiju, insurance period is from 13.09.2006 to 12.09.2007. As per the complainant the date of accident is 30.08.2007. From Ext. P3 document we find that at the time of accident there is no contract of insurance between the complainant and opposite party. Ext. P4 is the photocopy of letter dated 06.11.2006 addressing the opposite party to transfer the policy in the name of the complainant. Ext. P4 (a) is the Certificate of Posting. Ext. P4(b) is the photocopy of request of Baiju. K to the opposite party to inform that he had sold his vehicle to the complainant and requested to transfer the insurance policy in his favour. The complainant has no evidence to prove that these documents were sent to the opposite party. Ext. P5 is the photocopy of extract of General Diary of Kuthiathode police station. Ext. P6 is the cash receipt issued by the Popular Vehicles and Services Pvt. Ltd. for the acceptance of Rs. 25,350/- from Baiju. K. Ext. P7 is the claim repudiating letter dated 29.11.2007 to Baiju. K.

In this case the opposite parties also filed proof affidavit and produced 5 documents. The documents were marked as Exts. D1 to D5. Ext. D1 is the copy of the claim form submitted by the complainant. Ext. D2 is the policy copy in respect of the vehicle bearing Reg. No. KL 16/9465 in favour of Sri. Baiju for the period from 13.09.2006 to 12.09.2007. At the time of accident the policy was in the name of the previous owner. The complainant did not transfer the policy in his favour immediately after the purchase of the vehicle. From this document we conclude that there was no contract of insurance between the complainant and opposite parties at the time of accident. In this case the opposite party has produced the copy of 'India Motor Tariff'. As per GR 17 of the Tariff “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. In case of Package Policies, transfer the 'Own Damage' section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor. If the transferee is not entitled to the benefit of the No Claim Bonus sown on the policy, or is entitled to a lesser percentage of NCB than that existing in the policy, recovery of the difference between the transferee's entitlement, if any, and that shown on the policy shall be made before effecting the transfer. A fresh proposal form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies. Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and a fresh proposal form duly filled and signed. The old Certificate of Insurance for the vehicle, is required to be surrendered and a fee of Rs. 50/- is to be collected for issuance of fresh Certificate in the name of the transferee. If for any reason, the old Certificate of Insurance cannot be surrendered, a proper declaration to that effect is to be taken from the transferee before a new Certificate of Insurance is issued”. In this case the complainant did not take any steps to transfer the insurance policy in his favour. His only claim is that he has sent a letter to the opposite party to transfer the policy in his favour, that is not sufficient. At the time of cross examination, the complainant stated that “policy മാറ്റുന്നതിനുള്ള നിര്‍ദ്ദിഷ്ട ഫീസ് താങ്കള്‍ ഒടുക്കിയോ? ഇല്ല. എന്നെ ഫീ ഒടുക്കണമെന്ന് company അറിയിച്ചിട്ടില്ല. He further answered that ഉടമസ്ഥന്‍റെ പേരില്‍ policy ഇല്ലായെങ്കില്‍ company-ക്ക് യാതൊരു ബാദ്ധ്യതയും ഇല്ലായെന്ന് അറിയാമല്ലോ? അതെ”. In this case the complainant argued that he has sent a letter to the opposite party to change the policy in his favour. He produced the copy of that letter as Ext. P3. He has no evidence to prove that he sent that letter to the opposite parties. Opposite parties stated that Ext. P3 is a forged document, they did not receive such a letter. Even if the complainant had sent the letter to the opposite party, it is not sufficient to comply with the formality to change the policy. The complainant did not pay the prescribed free for the change of policy in his favour. At this juncture we find that the complainant is not a consumer of the opposite parties. The opposite parties have no contractual obligation to the complainant. Opposite parties never obtained any amount from the complainant. It is the duty of the complainant to assure the policy of insurance of his vehicle in his favour. Ext. D5 is the claim repudiation letter issued by the opposite party to the previous owner Baiju. The reasons for the repudiation stated in the letter are (i) the R.C of the vehicle was transferred to the new owner Mr. Bhaskara Pillai on 22.09.2006 and the reported loss occurred on 30.08.2007, (2) the insurance was not changed to the name of the new owner within the time limit prescribed and (3) there is no privity of contract with the new owner when the loss occurred. From the evidences and pleadings of both the parties, we also find that the reason for repudiation of the claim is proper and in accordance with the insurance policy conditions. Hence the complaint is dismissed.

In the result, the complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of August 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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C.C. No. 09/2009

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - M. Prabhakara Pillai.

II COMPLAINANT'S DOCUMENTS :

P1 - Sale agreement dated 22.09.2006

P2 - Copy of registration certificate in the name of complainant.

P3 - Copy of policy certificate.

P4 - Copy of letter dated 06.11.2006

P5 - Copy of extract of General Diary of Kuthiathode police

station.

P6 - Copy of cash receipt.

P7 - Claim repudiating letter dated 29.11.2007

III OPPOSITE PARTY'S WITNESS :

DW1 - Susheela Abraham.

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of Motor Claim Form.

D2 - Copy of Certificate-Cum-Policy Schedule.

D3 - Copy of Motor (Final) Survey Report.

D4 - Copy of Re-inspection report of vehicle No. KL 16/9465 dated 25.10.2007.

D5 - Copy of claim repudiation letter issued by opposite party.

PRESIDENT

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