BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 126/2005 Filed on 20.04.2005

Dated : 15.01.2009

Complainant:

Neena Gladstone, Rose Mount, Nellimoodu P.O.

Opposite party:

Divisional Manager, Divisional Office, New India Assurance Co. Ltd, Thiruvananthapuram.

(By adv. M. Nizamudeen)

This O.P having been taken as heard on 30.12.2008, the Forum on 15.01.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The facts of the case in brief are that the complainant bought a Toyoto Qualis car on 31.12.2003 and approached the insurance company to transfer the insurance on 05.01.2004, then they informed the complainant that the insurance can be changed only after getting the ownership changed in the R.C. Book. In the policy certificate itself it is written that “R.C Book-ല്‍ പേരു മാറിയാലുടന്‍ policy-യിലും പേരു മാറുക. അല്ലെങ്കില്‍ claim കിട്ടുന്നതല്ല.” The ownership was changed on 19.04.2004. On the same day the accident took place at 9.40 p.m. The insurance was changed on 3.04.2004 and applied for the claim on the same day. But it was rejected. Hence she filed this complaint.

Opposite party , the New India Assurance Co. Ltd., filed version disputing the claim of the complainant and stating further as follows: the allegation of the complainant that she had approached the opposite party on 05.01.2004 for changing the policy into her name is absolutely false, baseless and vehemently denied. Earlier before the Hon'ble Insurance Ombudsman the complainant's case was that she has approached the opposite party on 05.07.2004 which was also found as false and baseless. The complainant did not approach the opposite party prior to 24.04.2004 for transferring the insurance policy in favour of the complainant. The complainant had never made any request for transfer of policy prior to the said date. The opposite party also stated that the Neyyattinkara Branch of the opposite party had issued a policy No. 761401/31/03/11516 to Smt. Sumayya Beevi, A/c M/s Kodak Mahindra Pvt. Ltd, House No. 91, Valiyapallinada Puthen Veedu, Maranalloor, Thiruvananthapuram District covering Toyota Vehicle No. KL-01/W/6145 for the period 14.11.2003 to 13.11.2004. A claim was reported under the same policy on 22.04.2004. Claim form was issued. Survey was conducted and all other relevant documents were scrutinized. On scrutiny of R.C book it was observed that the complainant herein Smt. Neena Gladstone had purchased the said vehicle and the ownership of the vehicle was transferred to the name of Smt. Neena Gladstone with effect from 31.12.2003 in the R.C. Book of the vehicle. In the claim form submitted by the complainant, the complainant had claimed that the accident had occurred on 19.04.2004. On scrutiny of the policy of the vehicle it was observed that the policy stood in the name of Smt. Sumayya Beevi and there was no contract of insurance between Smt. Neena Gladstone and opposite party on the date of accident. Thus there was no contract of insurance between the complainant, i.e, Smt. Neena Gladstone and this opposite party on the date of the alleged accident and this opposite party had no liability whatsoever to indemnify the complainant in respect of any loss caused to the vehicle. As per the GR 17 of the Indian Motor Tariff, which deal with the provisions for transfer of insurance- “On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package Policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer. The transferee shall apply within fourteen 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 take the necessary changes in his record and issue fresh Certificate of Insurance. In case of Package Policies, transfer of 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 shown 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 issue 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. It is submitted that the complainant did not apply for transfer of policy submitting fresh proposal and paying requisite fee with required documents and proof under GR17 of Indian Motor Tariff as on the date of accident, 19.04.2004 but did so only on 30.04.2004 and got the vehicle transferred in her name only on 30.04.2004. Hence it is submitted that this opposite party is not liable to indemnify the complainant as there was no contract of insurance between the complainant and this opposite party on the date of the alleged accident. The complainant got the policy transferred in her name only on 30.04.2004 after the accident. The averments to the contrary are absolutely false and hence denied. The matter was explained to the complainant at the time of discussion at the Divisional Office that there was no contract of insurance between the complainant who has preferred the claim with the opposite party as on date of accident. Branch Office had rightly repudiated the claim. The matter was also conveyed to the complainant by letter No. 761400/JJ/2004 dated 30.07.2004. The complainant had filed a complaint before the Insurance Ombudsman, Kochi as complaint No. 10/KCH/G1/11/NIA/63/2004/05 against this opposite party. The Hon'ble Insurance Ombudsman, Kochi, vide its order dated 19.12.2004, found that the repudiation of the claim in order and there is no merit in the complaint and dismissed the complaint. This opposite party has not committed any deficiency in service to the complainant. The complainant has no cause of action to file the complaint. This Hon'ble Forum has no jurisdiction to entertain the complaint. The complaint is therefore only liable to be dismissed with cost.

From the side of the complainant, the mother of the complainant was examined as PW1 and marked 6 documents as Exts. P1 to P6. The opposite party filed proof affidavit and the Divisional Manager was examined as DW1 and marked 7 documents from their side as Exts. D1 to D7.

Points that would arise for consideration are:-

1. Whether the complainant has valid insurance at the time of accident?

2. Whether the repudiation made by the opposite party is as per policy conditions or not?

3. Whether the complainant is eligible to get the reliefs sought?

4. Costs.

Points (i) to (iv):- In this case the complainant argued that the ownership was changed in the R.C Book on 19.04.2004. the accident took place on the same day itself at 9.40 P.M and the insurance was changed in her favour on 30.04.2004 i.e, within 14 days. Hence she has the right to claim insurance benefit. But the opposite party rejected her claim. And also she pleaded that she had approached the opposite party on 05.01.2004 for transferring the insurance in her name. She bought the vehicle on 31.12.2003. The complainant produced 6 documents to prove her claim. Ext. P1 is the policy copy. From this document it is seen that the period of policy is from 18.11.2004 to 17.11.2005. Ext. P2, the copy of R.C Book shows that from 31.12.2003 onwards the vehicle was in the name of the complainant. Ext. P3 is the repudiation letter issued by the opposite party on the ground that they have found that the interest of the vehicle transferred in favour of the complainant with effect from 31.12.2003. But in the insurance policy, the name of insured is seen as one Mrs. Sumayya Beevi i.e; till the accident date the insurance of the vehicle is not transferred in favour of the complainant. So the complainant had no insurable interest with the vehicle at the time of accident. At the time of cross examination, the PW1 answered that 19.04.2004 രാത്രി 9.40 നാണ് മകള്‍ക്ക് അപകടം സംഭവിച്ചത്. അപകടം സംഭവിച്ച ദിവസം വാഹനത്തിന്‍റെ insurance മകളുടെ പേരിലായിരുന്നില്ല. Ext. P1 പ്രകാരം insurance policy താങ്കളുടെ മകളുടെ പേരില്‍ 18.11.2004 മുതല്‍ക്കാണ് നിലവില്‍ വന്നതെന്ന് പറഞ്ഞത് (Q)ശരിയാണ്. From this deposition we can find that the complainant itself admitted that at the time of accident she had no insurance. Though the complainant has pleaded that she had approached the opposite party on 05.01.2004, she has not adduced any evidence for the same. We have perused the documents submitted by the opposite party. As per Ext. D4 policy copy, the insurance effect is from 30.04.2004 only. The accident took place on 19.04.2004. Ext. D3 is the copy of GR17 of the Indian Motor Tariff. As per this document 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 etc. In this case the complainant had purchased the vehicle and the ownership of the vehicle was transferred to her name with effect from 31.12.2003 in the R.C Book of the vehicle. The opposite party argued that at the time of accident i.e; on 19.04.2004 the insurance policy was in the name of Smt. Sumayya Beevi and there was no contract of insurance between Smt. Neena Gladstone and the opposite party on the date of accident. The complainant had filed a complaint before the Insurance Ombudsman, Kochi as complaint No. 10/KCH/G1/11/NIA/63/2004/05 against the opposite party. That complaint was dismissed on 19.12.2004. In this complaint, the complainant did not mention that matter. The opposite party produced the order of Ombudsman and marked as Ext. D7. The findings of Ombudsman in that order is that 'though the insurer had transferred the policy in the name of the complainant with effect from 30.04.2004 covering the period 14.11.2003 to 13.11.2004, the policy does not cover own damage if any occurred upto 29.04.2004. Though the policy would cover third party damage as per the relevant provisions. The claim is raised for the damage of the vehicle, since the insured had committed certain mistakes regarding insurable interest and the ownership of the vehicle, the insurer was fully justified in rejecting the claim as the transferee of the vehicle, the complainant, had not made any request for transfer of the policy in her name within 14 days from 31.12.2003 as contemplated under the relevant provisions. Having considered the provisions and evidence on either side and on a close scrutiny of the entire records, I find no reason to interfere with the order of repudiation of the claim, the said order is found to be maintainable and correct'.

In view of the discussion made above, we have concluded that at the time of accident there was no contract of insurance between the complainant and the opposite party. Hence the opposite party is not liable to indemnify the complainant as there was no contract of insurance on the date of the alleged accident. The complainant got the policy transferred in her name only on 30.04.2004. Hence we find that there is no deficiency in service on the part of opposite party and the opposite party had repudiated the claim rightly. Hence the complaint is dismissed. No costs.

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 day of 15^th January 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 126/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vimala

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of certificate of insurance of private car dated

18.11.2004.

P2 - Photocopy of cancellation letter dated 25.03.2005.

P3 - Photocopy of letter dated 06.06.2004 issued by the opposite

party.

P4 - Photocopy of letter dated 30.07.2004 issued to the

complainant.

P5 - Photocopy of transfer certificate dated 30.04.2004.

P6 - Photocopy of transfer certificate dated 30.04.2004.

III OPPOSITE PARTY'S WITNESS :

DW1 - Joy Joseph

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Certificate of Insurance of Private Car.

D2 - Motor accident claim intimation dated 22.04.2004.

D3 - Conditions of Policy holder.

D4 - Photocopy of transfer certificate.

D5 - Photocopy of registered letter dated 06.06.2004.

D6 - Letter dated 30.07.2004 issued by opposite party.

D7 - Repudiation of claim under Motor Insurance Policy No. 761401/31/03/11516.

PRESIDENT