BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
CACHAR :: SILCHAR
Con. Case No. 34 of 2014
Md. Taibur Rahman Barbhuiya, ………………………………… Complainant.
-V/S-
1. The Divisional Manager, The National Insurance Co. Ltd. (Silchar Division)
Club Road, Silchar Town, Silchar-788001
Dist-Cachar (Assam) O.P No.1.
2. The Branch Manager, The National Insurance Co. Ltd.
Club Road, Silchar Town, Silchar-788001
Dist-Cachar (Assam) O.P No.2.
3. The Branch Manager, The National Insurance Co. Ltd.
Aizawl Branch, Aizawl Mizoram O.P No.3.
4. Sri Pijush Kanti Choudhury,
Chengkoorie Road, P.O- Silchar-788007,
P.S- Silchar, District- Cachar, Assam O.P No.4.
Present: - Sri Bishnu Debnath, President,
District Consumer Forum,
Cachar, Silchar.
Mrs. Chandana Purkayastha, Member,
District Consumer Forum,
Cachar, Silchar.
Shri Kamal Kumar Sarda, Member,
District Consumer Forum,
Cachar, Silchar.
Appeared :- Mr. Rejamond Ali Barbhuiya, Advocate for the Complainant.
Sri Debasish Som, Advocate for the O.P.No.1, 2 and 3.
Sri. Nihar Ranjan Das, Advocate for the O.P.No.4
Date of Evidence 18-12-2014, 01-04-2015, 08-05-2015
Date of written argument 26-07-2017, 18-09-2017
Date of oral argument 06-12-2017, 27-02-2018
Date of judgment 08-03-2018
JUDGMENT AND ORDER
Sri Bishnu Debnath,
Md. Taibur Rahman Barbhuiya brought this case against National Insurance Company Ltd., Silchar Division under the provision of Consumer Protection Act, 1986 for award of Compensation for loss sustain due to damage of his insured vehicle on road accident. He has made party to the original owner of the said vehicle.
The brief fact is as below:- Original owner of TATA Truck 1613 bearing Regd.No. MZ-05/7027 was O.P.No.4 Sri Pijush Kanti Choudhury. The vehicle was under coverage of Insurance with National Insurance Co. Ltd. Silchar Division. The original owner Sri Pijush Kanti Choudhury was the Insurer. But the Complainant purchased the said vehicle on 11/02/2013. Necessary formalities for transfer of registration of the vehicle in the name of the Complainant was preferred to DTO, Kolasib, Mizoram but unfortunately before transferring the Insurance Policy in his name the vehicle met accident on 22/02/2013 at Hunter Veng, Mizoram. Accordingly, the Complainant informed the concerned authority including the Insurer but Insurer repudiated the claim vide O.M.No. 200501/Tech/SKDR/1398 dated 10/09/2013. In the repudiation letter mentioned that as per section 157(2) of the M.V.Act, 1988 no change of ownership of the vehicle in the Insurance Policy document and payment of requisite transfer fee within schedule time limit of 14 days from date of transfer received either from transferor or from transferee, hence, in the instant case accidental benefit due to loss or damage of vehicle is forfeited on expiry of specified period of 14 days.
The Complainant being aggrieved with the repudiation of claim brought the instant Case.
The Insurance Co. in its W/S stated inter alia that the Insurance Company is not liable to pay compensation because there was no agreement between the Insurer and Complainant on the reasoning the ownership of the vehicle has not been changed in the Insurance document in favor of the Complainant. The O.P.No.4 also changed in the Insurance document in favor of the Complainant. The O.P.No.4 also in the W/S stated inter alia that he sold the vehicle to the Complainant by executing an agreement dated 11/02/2013 and related formalities were preferred in the office of the DTO, Kolasib, Mizoram.
During hearing the Complainant submitted his deposition supporting an affidavit and exhibited 10 (ten) documents including Police Report and Accident Information Report. The Complainant also submitted deposition of Md. Mozidul Hoque Choudhury as P.W.-2. The Insurance Company submitted deposition of Sri Tanwir Ikram Hazarika as DW-1 and O.P. No.4 submitted his deposition as D.W.-2. After closing evidence the Complainant’s advocate submitted written argument. The Ld. Advocate of Insurance Co. also submitted his written argument.
I have heard oral argument, perused the evidence on record and written argument.
It is admitted fact that the vehicle has been insured with O.P. Insurance Co. during the period of accident. It is also admitted fact that the vehicle is not repairable in question of economic point of view. It is also admitted fact that the vehicle has been sold to the Complainant by original owner Pijush Kanti Choudhury on 11/02/2013 and the vehicle met accident on 22/02/2013. The original owner remains as insured of the vehicle in the Insurance document at the time and date of accident. That is why, the Insurance Co. took a plea that the Complainant is outside to the agreement between the insured and insurer. However, the Insurance Company by referring the provision of section 157 (2) of the M.V. Act stated that the ownership of the vehicle is required to be changed in the Insurance policy document within 14 days of the transfer of the ownership of the vehicle but in the instant Case no such attempt was made to change the ownership of the Insured vehicle in the policy document within the statutory period.
On careful perusal of evidence on record it is crystal clear that there was no process initiated to change the ownership in the Policy document within 14 days of the transfer of the ownership of the vehicle. Of course, the Ld. Advocate of the Complainant stated that the accident met within 14 days of transfer of the ownership of the vehicle that is why, the insurer Company is liable to pay compensation on the basis of receiving the accident information and for which formal application for transfer the Insurance document in the name of the Complainant is not necessary.
It is fact that accident met within 14 days from the date of transfer of the ownership of the vehicle but in the evidence on record I do not find any material to conclude that the transferor or transferee had intention to initiate process to change the ownership in the policy document before the Insurer. That is why, it is conclusively proved that ownership of the vehicle has not been change in the policy document or it was not under process of change. Accordingly, the argument put forward by the Ld. Advocate of the O.P-Insurance Company that the Insurance Company cannot be liable to pay compensation because the complainant was an outsider to the insurance agreement. He referred the observation of the National Commission in Oriental Insurance Co. Ltd. V/S Mushtaq Khan and Another 2015(I) CPR 29 (NC).
In that case National Commission held that a complainant is not entitled compensation for damaging vehicle if after purchase the ownership is not changed in his favour in the insurance document on cancellation of the original owner. The Court held as below:-
“if transferee fails to inform Insurance Co. about transfer of registration certificate in his name and policy is not transferred in his name, Insurance Co. cannot be held liable to pay claim in case of own damage vehicle”.
In the instant case I find the similar situation as stated in the above referred case. So, the said observation of the National Commission is relevant to the instant case.Section 157 of the M.V. Act deals with the protection of 3rd party interest but Hon’ble Supreme Court in a case vide citation No. (2003) 3 SCC 97 held that there are 2 (two) 3rd parties when vehicle is transferred by the owner to a purchaser. The purchased is one of the 3rd parties to the contract and other 3rd party is for whose benefit the vehicle was insured. So far, the transferee who is the 3rd party in the contract cannot get any personal benefit under the policy unless there is a compliance of the provision of the Act. However, so far as 3rd party injured or victim is concerned, he can enforce liability undertaken by the insurer.
In this case the Complainant by referring the case law of Supreme Court in New India Assurance Co. ltd. Vs Sheela Rani and others, AIR 1999 SC 56 tried to convince this District Forum that the Supreme Court held in the above referred case that formal application in prescribed format is not necessary to change the insurance documents in favor of the complainant. The relevant portion of the judgment is reproduced below:-
“10.A careful reading of the Judgment of this Court, extracted as above, will clearly show that on the transfer of the vehicle about which intimation was given though not strictly as required under section 103A of the Act and in the absence of refusal from the Insurer the Policy already given by the insurance company to the transferor will not lapse. As in the case of complete insulation (Supra) in the present case also the transferee had intimated to the appellant Insurance Co. about the transfer of the vehicle in his favor though not in prescribed form and sought transfer of the Insurance Policy. No reply was given by the appellant and in the absence of such reply the certificate shall be deemed to have been transferred in favor of the transferee as per section 103A of the Act”.
The Ld. Advocate of the O.P. also in his submission clarify the above case law. He said the case law discussed the provision of Sec. 103A of the Motor vehicle Act. 1939 and now new Act has come i.e Motor vehicle Act. 1988, where Sec. 103A has been reflected in Sec. 157 in chapter XI. Said provision also discussed in the Judgment of the above referred case vide paragraph-8. He stated that the Supreme Court held in that case that no formal application in prescribed format is necessary so far as risk coverage of 3rd party. Here, 3 party means whose benefit the Insurance was done i.e victim of motor accident or dead person of motor accident.
I have gone through the above judgment. The Supreme Court also discussed very clearly that 3rd party is victim or dead person whose benefit the insurance was done and another 3rd party is subsequent purchaser. The later 3rd party is 3rd party to the contract and to give continue effect of Insurance Policy purchased by seller of the vehicle the subsequent purchaser or seller must inform the insurance company regarding transfer of the vehicle and must pray for change the insurance document in favor of the subsequent purchaser. Hence, in that matter the Supreme Court held that formal application in prescribed format is not always necessary but the transferee/Transferor must made prayer for changing the Insurance documents in favor of the transferee and if on receiving such prayer even in informal un-prescribed format, if the Insurance Co. remain silent without any reply the insurance certificate shall be deemed to have been transferred in favor of the transferee as per the provision of the Act.
In the instant case the Complainant showed registration certificate and a certificate of DTO, Kolasib, Mizoram in his favor which indicated that the ownership of above damaged vehicle vide Regd.No. MZ-05/7027 has been transferred in the name of the Complainant on 13/02/2013 and Complainant informed the Insurance Co. on 11/03/2013 that his above vehicle met accident on 22/02/2103 vide Ext. 6. Similarly, he informed the Insurance Co. on 05/05/2013 about the aforesaid fact of accident and requested to take necessary step vide Ext.7. The Complainant also submitted the claim form on behalf of the original owner Mr. Pijush Kanti Choudhury, vide Ext.2. But no where in those document or in any other document made a prayer to change the Insurance documents in his favor.
Thus, in this case I do not find any prayer on the part of the transferor or transferee to the Insurance Company to change the Insurance document in favor of the Complainant. Hence, in view of above referred case law of the Supreme Court, it is concluded that no prayer made either in a prescribed format on in any other form to the Insurance Co. to change the insurance document in favor of the Complainant. Hence, formal reply in that matter from the Insurance Co. to accept or reject the prayer is redundant. As such in my considered view the Insurance certificate has been lapsed due to violation of the provision of section.157 (2) of M.V. Act. 1988.
Therefore, in the instant case when ownership has not been changed in the policy document, I find that the complainant is 3rd party to the contract between insured and insurance company regarding taking risk of own damage of the insured vehicle. Thus, the insurance company has rightly repudiated the claim.
With the above observation and finding in foregoing paragraphs of this judgment, I am concluding that the Insurance Co. is not liable to pay compensation for own damage of the insured vehicle.
Therefore, this case is dismissed on contest without any cost. Supply free certified copy of judgment to the parties. Given under my hand and seal of this District Forum on this the 8th of March, 2018.
