By. Smt. Beena. M, Member:
The facts of the case are as follows:-
The first Complainant was the registered owner of vehicle Swaraj mazda Tipper Lorry bearing registration No. KL-01-AM-956, which was insured with Opposite Party for the period of 08/02/2017 to 07/02/2018. The above vehicle
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was sold by the first Complainant to second Complainant on 01/04/2017. On 03/04/2017 second Complainant applied for transferring the ownership. Unfortunately the said vehicle met with an accident at Kalpetta–Vythiri main road and sustained substantial damage. Then the second Complainant gave intimation to the opposite party regarding the accident and on the next day the Opposite Party’s man inspected the spot of accident and noted that the vehicle is totally damaged.
2. The Complainants further submits that subsequently the surveyor of the Opposite Party came to the second Complainant’s house and demanded Rs.10,000/-to report the vehicle non-repairable and total loss, but the Complainant denied illegal demand of surveyor. Thereafter the Complainant several times contacted the Opposite Party, but there was no response from the side of Opposite Party. As per the instruction of the another man of the Opposite Party, the second Complainant gave the vehicle for repairing at Excellent Automobiles Workshop and the Complainant incurred expenditure of an amount of Rs.3,20,000/- for repairs and spare parts of the vehicle and the above amount was paid by the Complainant. Though the second Complainant taken the possession of the vehicle on 01/04/2017 and had forwarded all documents to get
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transferred Registered Certificate to his name on 03/04/2017, but not received transferred RC till he preferred the insurance claim, so as per the instruction of the Opposite Party the first Complainant submitted the application before the Opposite Party. The Opposite Party made to believe the Complainant that the claim amount will pay to him, but all of sudden the Opposite Party vide letter dated 10/05/2017 informed to the Complainant that at the time of accident, the first Complainant was not having any insurable interest in the vehicle therefore the claim of the first Complainant was repudiated . The Complainant states that the above acts of the Opposite Party amounts to deficiency in service and unfair trade practice and also caused financial loss, mental and physical agony. Hence the Complainant filed the complaint and prays for an order directing the opposite party to pay a sum of Rs.4,80,000/- as repair charge with interest 18% from the date of claim and Rs.1,00,000/- as compensation and cost of the complaint.
3. Notice issued to Opposite Party and he entered appearance filed their version contending the following :-
The Opposite Party admitted the policy which was taken by the Complainant No.1 for the vehicle No. KL-01-AM-956 Tipper Lorry for the period of 08/02/2017
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to 07/02/2018 and the said vehicle met with an accident on 11/04/2017 and the Complainant No.2 intimated the matter to the Opposite Party on the same day and he also admitted that, he repudiated the claim of the Complainant no.1 for the reason that the first Complainant have no insurable interest at the time of the accident. And also stated that in repudiation letter that on verification of records it is revealed that the ownership of the said vehicle was transferred in the name of one Mr Anoop i.e. second Complainant. The Opposite Party denied that the statement of the Complainant that the men of the Opposite Party demanded Rs.10,000/-as bribe. The Opposite Party submitted that the allegations contained in the complaint do not show any deficiency in service, hence the Complainant is not entitled to get any amount from the Opposite Party, and also stated that the Complainant does not come under the definition “Complainant” of the Consumer Protection Act, hence the complaint is liable to be dismissed with cost .
4. The complainant No.2, Anoop s/o Sadanandan has filed chief affidavit and produced 8 documents, which were marked as Ext.A1 to Ext. A8. Ext A1 is the copy of cash receipt issued by the RTO Malappuram dated 03/04/2017, Ext.A2 is the copy of estimate/ quotation issued by Excellent Automobiles of Rs.4,80,000/-,
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Ext.A3 is the copy of repudiation letter dated 10/05/2017, Ext.A4 is the copy of Registration Certificate, Ext.A5 is the copy of insurance policy, Ext. A6 is the copy of Clearance Certificate, Ext.A7 is the bill issued by the Excellent Automobiles, Ext.A8(a) & (b) is the photographs of the vehicle involved in the accident.
5. The Opposite Party has also produced 3 documents and were marked as Ext.B1 to Ext.B3. Ext.B1 is survey report, Ext.B2 is insurance policy copy with terms and conditions, Ext.B3 is the repudiation letter.
6. During the time of trial the Complainant No.2 was examined as PW1 and he has cross examined. No other witness has been examined on behalf of the Complainant .No oral evidence was adduced by the Opposite Party.
7. Now the points for consideration are:-
1.Whether there is any deficiency in service on part of the Opposite
Party towards the Complainant.
2.Whether the Complainants are entitled to the reliefs as prayed for
3.To what reliefs ?
8.Point No.1:- There is no dispute regarding the policy of the vehicle taken by the Complainant No.1 under vide policy No.3379/01632467/000/00 for
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the vehicle bearing No.KL-01-AM-956 from the Opposite Party and the policy period was from 08/02/2017 to 07/02/2018 and the same was admitted by the Opposite Party .Here the first Complainant stated in complaint that he sold the vehicle to second Complainant on 01/04/2017and on 03/04/2017 the second Complainant had forwarded all documents to get transferred RC in his name.
9. Here Ext.A1 shows that second Complainant applied for transferred Registration Certificate on 03/04/2017 but it is seen in Ext. A4 that RC book was transferred to second Complainant with effect from 02/05/2017. From Ext.A2, we can understand that when the vehicle was taken for getting repaired the Excellent Automobiles gave estimate of Rs.4,80,000/-( which includes total repair charges and cost of spares) for getting the vehicle completely repaired. On verification of Ext.B1 survey report shows that the accident occurred on 11/04/2017 and in the report the name of the insured is Shibili i.e. the first Complainant. Here all the documents filed by the parties shows that first Complainant was the RC owner at the time of the accident and at that time the insurance policy with respect to the name of first Complainant i.e. the prior owner. Hence the first Complainant have the insurable interest at the time of
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accident. Ext.A7 document shows that the second Complainant has given Rs.3,20,000/- towards repairing of vehicle. Hence the Complainants are entitled to get the bill amount from the Opposite Party.
10. In Civil Appeal No.2632 of 2020 Surendra Kumar Bhilawe vs. The New India Assurance Co. Vide Order dated 10/08/2020 Hon’ble Supreme Court of India (Civil Appellate Jurisdiction) Division Bench has observed thus- The registered owner continues to remain owner and went the vehicle is insured in the name of registered owner the insurer would remain liable notwithstanding any transfer would apply equally in the case of claimed made by the insured himself in case of an accident. Person in whose name the vehicle stands registered on date of accident is the owner entitled to insurance claim.
11. It would pertinent to note the difference between the definition of owner in Section 2 (30) of the Motor Vehicle Act, 1988 and the definition of owner in section 29(19) of the Motor Vehicles Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Under the old act owner “mean” the person in possession of a motor vehicle. The definition of owner has undergone a change with the enactment of the new act and legislature has
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consciously changed the definition of owner to mean the person in whose name the motor vehicle stands.
12. Here the fist Complainant was the owner of tipper on date of accident and the Opposite Party could not be permitted to avoid its liability of payment towards the accidental losses on unsustainable ground of ownership .All these facts shows that denial of the claim caused deficiency of service and un trade practice upon the Complainant so the point is answered in favour of the Complainant .
13.Point No.2 and 3:- Since we found point No.1 is in favour of the Complainant is entitled to get compensation and cost.
Hence complaint is allowed in part, directing the Opposite Party to pay sum of Rs.3,20,000/- ( Rupees Three Lakhs Twenty Thousand only) along with interest @ 9% p.a from the date of filing of the complaint till the date of realization. The Opposite Party further directed to pay Rs.10,000/-( Rupees Ten Thousand only) to the Complainants towards compensation and to pay Rs.5,000/-(Five Thousand) towards cost of litigation. Let the order be complied with by Opposite Party within 30 days from the date of receipt of copy of this order.
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Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 13th day of October 2020.
Date of Filing: 11.10.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Anoop. S. Driver.
Witness for the Opposite Parties:-
Nil.
Exhibits for the complainant:
A1. Copy of Cash Receipt. Dt:03.04.2017.
A2. Copy of Estimate/Quotation. Dt:17.04.2017.
A3. Copy of Repudiation Letter. Dt:10.05.2017.
A4. Copy of Registration Certificate.
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A5. Copy of Motor Endorsement Schedule.
A6. Copy of Clearance Certificate. Dt:02.05.2017.
A7. Bill. Dt:15.06.2017.
A8(a). Photograph.
A8(b). Photograph.
Exhibits for the opposite parties:-
B1. Motor Final Survey Report-Commercial.
B2. Copy of Motor Policy Schedule Cum Certificate of Insurance.
B3. Copy of Repudiation Letter. Dt:10.05.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
SENIOR SUPERINTENDENT,
CDRC, WAYANAD.
