Karnataka

Belgaum

CC/782/2013

Jaya B Doddur - Complainant(s)

Versus

Cholamandalam M S General Insurance Co Ltd - Opp.Party(s)

B B Mokashi

30 Nov 2016

ORDER

                

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.782/2013

                     Date of filing: 23/11/2013

                                                                  Date of disposal: 30/11/2016

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

COMPLAINANT       -

Smt. Jaya Basavaraj Doddur, Age: 63 Years, Occ: Business & Agriculture, R/o: Mahantesh Nagar, Belgaum.                  (Rep. by Sri.B.B.Mokashi, Adv.)

- V/S -

OPPOSITE PARTIES   -

1.         2.           3.

The Branch Manager, Cholamandalam M.S. General Insurance Co. Ltd., Branch Office, Mijawar Complex, Neharu Nagar, Belgaum.   The Divisional Manager, Cholamandalam M.S. General Insurance Co. Ltd., 1st Floor, Kalgurgi Square, Deshpande Nagar, Hubli – 580029.                            (Op.No.1 & 2 Ex-parte)   The Managing Director, Cholamandalam M.S. General Insurance Co. Ltd., Registered Head Office, Dare House, 2nd Floor No.2, N.S.C. Bose Road, Channai – 600001.                   (Rep. by Sri.V.S.Prabhu, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to pay Rs.1,80,000/- towards Policy No.3362/00788577/000/00, in respect of Vehicle No.KA-28/N-1509, including the shifting charges towards loss of income and idle charges and Rs.30,000/- towards the damages and unfair trade practice etc.,

2.      The facts of the case in brief are that;

 

          It is contended that, the complainant is the Registered owner of the Private vehicle bearing Reg.No.KA-28/N-1509 and its Engine No.475IDIT18EYYSA0403 and its chassi No.MAT483535BYF05357 and said vehicle was duly insured with the opponent No.1 to 3 policy No.3362/0078577/000/00 covering the period of insurance from 23.11.2012 to 22.11.2013. On 03.03.2013, the vehicle came near the village limits of Linganmath cross, the vehicle met with an accident due to dash of Indiaca Car No.KA-25/D-0245, as a result the vehicle has been completely damaged to a greater extent. After the said accident, the complainant shifted the said vehicle to Manickbag Auto Mobile Pvt. Ltd., Hubli and after inspection of the said vehicle the Manickbag Automobiles Pvt. Ltd., Hubli given estimate of Rs.1,40,000/- and thereafter the complainant has filed a claim form to the Ops to settle the claim and he has got repaired the said vehicle by spending an amount of Rs.1,40,000/-.

 

          It is further contended that, the complainant has spent Rs.10,000/- towards shifting of damaged vehicle at the time of the accident to Hubli, and an amount of Rs.1,40,000/- towards repair charges, replacement of spare parts, painting charges and labour charges etc., and the said vehicle was idle for more than two months for its repair for which the complainant has suffered loss of income of Rs.30,000/-.

 

          It is contended that, after filing claim form to the Ops by submitting all the documents, the OPs without inspecting the vehicle and without perusing the documents produced by the complainant have repudiated her claim only on the ground that, the said vehicle was not transferred in the name of the complainant on the date of the accident.

 

          It is contended that, the complainant had furnished all the documents which were necessary for the settlement of the claim to the OPs but, the OPs on one pretext to other postponed the settlement of claim and lastly repudiated the claim of the complainant. Therefore, there is deficiency in service towards and unfair trade practice on the part of the OPs. Hence, the complainant is constrained to file this complaint.

         

3.      After issue of notice to the Opponents, the Op.No.1 & 2 have neither appeared nor filed any version before this Forum. The Opponent No.1 & 2 has no interest to proceed with the case inspite of giving sufficient time. The Hon’ble District Forum considered the opponent No.1 & 2 is placed Ex-parte and the opponent No.3 has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious. The complaint of the complainant does not fall under the provisions of the C.P. Act and there is no cause of action for the complainant to file the complaint and seek the damages as claimed in the complaint.

 

          It is contended that, the complainant was the owner of said vehicle was insured in the name of complainant by these Ops under the Policy No.3362-0078577-000-00 covering period from 23.11.2012 to 22.11.2013 and as on the date of alleged accident i.e. 03.03.2013, the complainant was not at all owner of the said vehicle under the said policy at any time nor she had insurable interest in the said vehicle as on the date of accident. In view of the same, the complainant has no legal right to file the complaint or claim any compensation under the said policy.

 

          It is contended that, the Ops insured the policy in the name of Shri.Rajkumar Bilkar, for the period from 23.11.2012 till 22.11.2013 for sum insured of Rs.3,50,000/- who has paid total premium of Rs.14,207/- covering the risk as per the said policy and the said policy of the vehicle is not issued in the name of complainant at any time. Thus, these Ops have issued the policy in the name of insured i.e. Rajkumar Bilkar covering the said vehicle with the risk as per terms and conditions as incorporated in the said policy including own damages of the said vehicle. In view of the same, the complainant has no cause of action to claim any damages if caused to the said vehicle in the accident on 03.03.2013 as the complainant had no insurable interest, and the said vehicle was not at all insured in the name of complainant.  The Ops contended that, the complainant nor the owner of the said vehicle i.e. insured Rajkumar Bilkar from the date of inceptions of the policy i.e. from 23.11.2012 till the alleged date of accident on 03.03.2013 have not all given any application with transfer fee to transfer the said policy of the said vehicle in the name of complainant, though the policy as well as cover note were issued on 23.11.2012 in the name of the insured Rajkumar Bilkar. The Ops after considering all the documents by application of mind, the collective decision was taken by the OPs to repudiate the claim of the complainant on the ground that, at the time accident, the policy has not been transferred in the name of complainant who was owner in possession of the said vehicle. Accordingly, the OPs have informed to the complainant by letter dtd:29.04.2013, in view of the same the complainant has no legal right or cause of action to file this complaint against the OPs.

 

          It is further contended that, after the accident of the said vehicle, the complainant has shifted to Manikbag Automobile Pvt. Ltd., Hubli, and inspection of the said vehicle, the said concern has given the estimate of Rs.1,40,000/- and inspite of all the attempts made by the complainant, the claim of the complainant for repair of Rs.1,40,000/- has not settled and further the complainant has spent Rs.10,000/- towards shifting of the damaged vehicle from the place of accident to Hubli and she has suffered the loss of Rs.30,000/- and the said vehicle was repaired and damaged parts are replaced and further the painting and labour charges have been paid by the complainant are false, inspite of all the documents produced by the complainant are false and frivolous. The Ops are not at all liable to pay the said amount to the complainant. Hence, there has been absolutely no deficiency of service on the part of the opponent. Hence, the OP. prayed to dismiss the complaint with compensatory costs.

 

4.      Both parties have filed their affidavit in support of their case, and on behalf of complainant has produced 11 documents which has marked as Ex.P-1 to Ex.P-11, for shake of our convenience we have marked P & R series. On behalf of the Op has also filed 06 documents and same are marked as Ex.R-1 to Ex.R-6.

 

          Heard the arguments on both sides, wherein they have put forward very same contention, which they have urged in complaint, written version and respective affidavit evidence of both sides, have also been heard.

 

Now on the basis of these facts, the Points that would arise for our consideration are as fallows;

 

1.  Whether the complainant has proved that there   is deficiency in service on the part of the OP?

 

 

2.  What order?

 

5.      Our findings to the Point No.1 in the Negative,  

         Point No.2 as per the final Order for the following: 

 

 

R E A S O N S

 

6.    POINT NO.1:  After perusing the both pleadings and evidence of parties and documents on record. It is admitted fact that,
Shri. Rajkumar Bilkar was the owner of Private Vehicle in question, it was registered in his name on 07-09-2011 as per the R.C. (Registration Certificate) produced in this case as marked
Ex.R-5. The Complainant being the owner of the car obtained the insurance policy in his name which is valid from 23-11-2012 to mid night 22-11-2013 which is marked as Ex.P-3 & R-6 series.

 

    The case of the complainant is that, the Complainant specifically states that he has purchased the Private Vehicle. But surprisingly, the policy has been obtained in the name of           Shri. Rajkumar Bilkar valid from 23-11-2012 to 22-11-2013 after purchasing the vehicle. Admittedly, the complainant has not try to make entry or not try to give his name before the insurer company though insurer is valid. As per the contentions of the Complainant still the policy remained in the name of  Shri. Rajkumar Bilkar. But, the complainant has failed to prove or placed any documents to show that, the said vehicle was transferred in the name of Complainant. The complainant did not care to get the insurance policy transferring the vehicle in the name Complainant on a particular date not disclosed either in the Complaint or in the affidavit. Therefore, in our consider view, the complainant has failed to substantiate with cogent and material documents and acceptable affidavit evidence as such the case as alleged in the complaint and further he has not substantiate, Whether the transferee has got insurable interest in policy as per terms and conditions of the policy.

But, the Counsel of the complainant relied a decision reported in (2016) SCCR 106 Hon’ble Supreme Court in Civil Appeal No.5293 of 2010 – decided on 27.10.2015, it is held that, owner means a Register owner and where agreement on hire purchase or an agreement of hypothecation has been entered in to or lease agreement, a person in possession of vehicle is treated as an owner and further observe that, policy of insurance is contractual obligation between insured and insurer, in view of agreement of lease registered, owner has owned liability to pay. Even if, there is transfer of vehicle by sale insurer cannot escape liability as there is deemed certificate of insurance and further observe that, in the relied case, it is not complete transfer of the vehicle, it has been given on hire for which there is no prohibition and no condition policy of insurance as shown to prohibit plying of the vehicle on hire.  Hence, with due respect the said decision is not applicable and not helpful to the complainant, for the reason that, it is crystal clear that, in the relied case there was no transfer of ownership of vehicle to the purchaser, but in the instant case there was a transfer of ownership to the purchaser. Therefore, in our consider view, the owner has no insurable interest in the said policy. Hence, reputation of the OP is proper.

 

The case of the OP is that, as per the provisions of U/s 157 of the M.V. Act and the rules made their under the policy has to be transferred in the name of transferee. It is the bounden duty of the transferee to submit fresh proposal form duly filed and signed and by surrendering old policy. In terms of the regulation the transferee has to apply in writing within 14 days from the date of transfer to the insurer from making necessary changes for issuing fresh certificate of insurance.

 

 It is un-disputed that, the vehicle in question met with an accident and damages has been claimed under the head of own damages. Of course, the vehicle met with an accident on 03-03-2013 after purchase and the policy was renewed and valid till mid night 22-11-2013 standing in the name of Shri. Rajkumar Bilkar.  Here in the instant case, it is not know why the Complainant kept quite without getting insurance certificate in his name from the date of purchase. The R.C. no doubt revels that, name of the Complainant entered as owner. Nevertheless, it is the bounden duty of the Complainant to get it transfer the insurance policy in his name. But the policy placed on record stands in the name Shri. Rajkumar Bilkar who is the insured and valid from 23-11-2012 to 22-11-2013. Still the insurance policy was not at all issued in the name Complainant either on the date of filing the Complaint or any subsequent date. For that proposition of law, the Op relied a decision of Hon’ble Supreme Court reported in ILR 1996 Supreme Court 799. It has been held by the N.C. and Hon’ble S.C. that, in respect of own damages claim; it is the duty of the transferee to get it transfer the policy in his name within 14 days from the date of transfer. Here in the instant case, the Complainant has not explained any reasons as to why, he could not get the transfer policy in his name within 14 days or till the date of filing the Complaint.  In the light of the principles laid down in the above referred decisions we have no hesitation to hold that, the OP justified in repudiating the claim of the Complainant. Therefore, repudiation made by the opponent is justified and proper and it is not an amount of deficiency of service as alleged by the complainant and further, that, the opponent is not guilty of deficiency in service. The repudiation of the claim is just and proper. Hence, we answer the Point No.1 in the Negative.

 

6.      Point No.2:- After careful consideration and our findings on the above points, we proceed to pass the following;

 

O R D E R

 

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by dismissed.

No order as to costs. 

             (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  30^th day of November, 2016).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.