Chandigarh

StateCommission

A/61/2015

Mehar Chand - Complainant(s)

Versus

Future Generali India Insurance Co. ltd, - Opp.Party(s)

Kumar Nikshep

30 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	61 of 2015
Date of Institution	:	10.03.2015
Date of Decision	:	30.04.2015

 

Mehar Chand son of Shri Garibu Ram, resident of House No.171, Village Kaimbala, Chandigarh.

……Appellant/Complainant.

Versus

[1]    M/s Future Generali India Insurance Co. Limited, Corporate and Regd. Office 12th and 15th Floor, Tower-I, India Bulls Finance Centre, Senapati Bapat Marg, Elphinstone Road, Mumbai, through its Managing Director.

[2]    M/s Future Generali India Insurance Co. Limited, SCO 78-79, 2nd Floor, Sector 17-C, Chandigarh, through its Branch Manager.

              ....Respondents/Opposite Parties.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: 

 

Kumar Nikshep, Advocate for the appellant.

Sh. Vishal Aggarwal, Advocate for the respondents.

 

PER DEV RAJ, MEMBER.

            This appeal is directed against the order dated 29.01.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called  as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).

2.         The facts, in brief, are that the complainant had purchased Hyundai Verna CRD VGT car bearing registration No.CH-04-E-9200 from the earlier owner, namely, Sh. Balwinder Singh on 02.05.2013 and the said vehicle was duly insured with the Opposite Parties for the period from 19.10.2012 to 18.10.2013 (Annexure C-1). It was stated that the said vehicle was got transferred in favour of  the complainant, vide Registration Certificate (Annexure C-4). It was further stated that, however, as the ill luck would have it, before the complainant could initiate the process of getting the aforesaid Insurance Policy, in respect of the vehicle transferred, in his name, the same was stolen by someone, during the night intervening of 14/15.05.2013 and with regard to that F.I.R. No. 166 dated 15.5.2013 was registered (Annexure C-5). It was further stated that necessary intimation of theft of the vehicle was also given to the Opposite Parties, through Sh. Balwinder Singh, as the vehicle was in his name in the records of the Opposite Parties.

3.         It was further stated that pursuant to the  intimation, the Opposite Parties appointed Sh. Jagjit Singh Sethi as Investigator, who was given all the necessary documents, including the R.C. of the vehicle in the name of the complainant. It was further stated that the Police had also given untraced report with regard to the vehicle, in question, vide Annexure C-6. It was further stated that despite this, when the Opposite Parties failed to pay the claim of the complainant, he served a legal notice dated 28.01.2014 upon Opposite Party No.2, but it did not bother to reply the said notice (Annexure C-8). It was further stated that, under the compelling circumstances, the complainant had filed Consumer Complaint No.148 of 2014 before District Forum-II, U.T. Chandigarh. It was further stated that in the said complaint, the Opposite Party filed the written statement on 22.05.2014, wherefrom the complainant came to know about the repudiation of his claim by the Opposite Party vide order dated 18.09.2013 (Annexure C-10). It was further stated that, consequently, the complainant withdrew the said complaint with liberty to file a fresh one (Annexure C-11). It was further stated that since the vehicle was stolen and could not be traced out, the Opposite Parties, were legally bound to compensate him on account of theft of the vehicle, in accordance with the Insurance Policy, but they (Opposite Parties) instead of honouring the same, repudiated his claim. 

4.         It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to pay Rs.4,60,000/- (i.e. Rs.3,60,000/- on account of insured value of the vehicle alongwith interest @15% per annum; Rs.1,00,000/- as compensation for mental tension and Rs.25,000/- as litigation costs.

5.         None appeared on behalf of the Opposite Parties, despite service, and, as such, they were proceeded against ex-parte by the District Forum vide orders dated 05.11.2014 and 17.12.2014, respectively.

6.         The complainant led evidence, in support of his case.

7.         After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated in the opening para of the instant order. 

8.         Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.

9.         We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case carefully. 

10.        The Counsel for the appellant/complainant submitted that the vehicle was purchased by him from Sh. Balwinder Singh on 02.05.2013 and he applied for registration of the same on the next day viz. 03.05.2013. It was further submitted that the Policy was effective from 19.10.2012 to 18.10.2013 and during the subsistence of the same (Policy), the vehicle was stolen on the night of 14/15.05.2013. However, the Counsel for the appellant/complainant admitted that there was no document to the effect that the appellant/complainant applied to the Insurance Company for transfer of the Insurance Policy within 14 days, of the purchase of the vehicle, in his name.  It was further submitted that the order of the District Forum, being illegal and unsustainable, be set aside.

11.       The Counsel for the respondents/Opposite Parties submitted that the appellant/complainant had earlier filed a complaint bearing No.148/2014 in District Forum-II, U.T., Chandigarh, which was withdrawn by him on 21.07.2014. It was further submitted that the vehicle was in fact sold by Sh. Balwinder Singh to one Sh. Krishan Kumar on 23.08.2010 (Annexure C-2). It was further submitted that since the appellant/complainant did not apply for transfer of the Insurance Policy, in his name, within 14 days of the purchase of vehicle, he had no insurable interest. The Counsel placed reliance on Sarfarjudeen Vs. Branch Manager, The New India Assurance Co. Ltd. and another, Revision Petition No.444 of 2012 decided by the National Commission on 20.01.2015. It was further submitted that the order of the District Forum, being just and correct, was liable to be maintained.

12.       It is evident that one Sh. Balwinder Singh was the owner of the vehicle, in question, for which he had obtained Insurance Policy effective for the period from 19.10.2012 to 18.10.2013 (Annexure C-1). It is also evident from Annexure C-2, that the said Balwinder Singh had sold the vehicle, in question, to one Sh. Krishan Kumar S/o Sh. Narata Ram R/o Vill. Nada, Tehsil Kharar, Distt. S.A.S. Nagar, Mohali and delivered the possession of the same to him (Sh. Krishan Kumar) on receipt of consideration. The vehicle was reportedly stolen on the night of 14/15.05.2013, for which, FIR No.166 was lodged on 15.05.2013. The FIR was lodged by one Sh. Gurmeet Singh. The Police submitted its untraced Certificate on 11.09.2013 (Annexure C-6). As per Annexure C-10, which is letter dated 18.09.2013, addressed to Sh. Balwinder Singh, the Insurance Company replied as under;-

“We refer to your letter dated 15/05/2013, wherein you informed that your vehicle was stolen. As you are aware we had appointed Mr. Jagjit Singh Sethi to verify the facts & collect the documents. Based on the policy terms & conditions, documents submitted and the facts available we have the following observations:

• As per statements in affidavits no.04AA413133 & 04AA413134 dated 23/08/2010, you had sold your vehicle CH04E9200 to Mr. Krishan Kumar & got full payment against the value of vehicle. You had also mentioned in affidavit that you will not be responsible for any case against said vehicle from onwards 23/08/2010 & stated your consent for transferring the vehicle registration in the name of Krishan Kumar.
• As per statements in affidavits no.04AA413131 & 04AA413132 dated 23/08/2010, Mr. Krishan Kumar purchased the vehicle from you. He had also stated in affidavit that he will responsible for any case on said vehicle from onwards 23/08/2010 stated his consent for transferring the vehicle registration in his name.
• The Registration certificate of vehicle is in the name of Mr. Mehar Chand at the time of loss 15/05/2013, but the policy of vehicle is in your name.

Considering the aforementioned points it is concluded that you do not have any insurance interest in the said claim and hence the said claim does not fall within the purview of policy issued.

Thus, we regret our inability to consider the said claim due to reasons as mentioned above….”

13.       It is, thus, clear from the aforesaid contents of the letter of Insurance Company that despite the fact that Sh. Balwinder Singh had sold the vehicle to Sh. Krishan Kumar and the registration certificate was in the name of the appellant/complainant Sh. Mehar Chand at the time of loss i.e. on 14/15.05.2013, the Policy of vehicle was in the name of Sh. Balwinder Singh. Since the vehicle stood sold, Sh. Balwinder Singh had no insurable interest. The respondents/Opposite Parties, therefore, rightly declined the claim.

14.       There are a lot of contradictions and inconsistencies viz. Sh. Balwinder Singh had sold the vehicle to Sh. Krishan Kumar on 23.08.2010, and delivered the possession to the latter on the same day; as per his (Sh. Balwinder Singh) affidavit dated 02.05.2013, the vehicle was also sold to the appellant/complainant Sh. Mehar Chand; intimation regarding theft of the vehicle was given by Sh. Balwinder Singh in whose name the Policy stood during the relevant period i.e. date on which the vehicle was allegedly stolen. Insurance Policy ought to have been obtained in the name of the purchaser and claim should have also been lodged by the actual owner of the vehicle. When, as per the affidavit (Annexure C-2) brought, in evidence, by the complainant himself, the vehicle was sold to one Shri Krishan Kumar, on 23.08.2010 and possession of the same was also delivered to him, no cogent evidence/explanation has come, on record, as to why the Insurance Policy for the period 19.10.2012 to 18.10.2013 was obtained in the name of Shri Balwinder Singh and also as to how the vehicle could be sold to the appellant/complainant by him, when he (Balwinder Singh) was no longer the owner thereof.

15.       When the vehicle was sold by Sh. Balwinder Singh to Sh. Krishan Kumar, as per affidavit dated 23.08.2010 (Annexure C-2) and he took delivery of the same on 23.08.2010. As per GR-17 of India Motor Tariff, the intimation was required to be given to the Insurance Company within 14 days from the date of purchase of the same by Sh. Krishan Kumar. No such intimation was given to the Insurance Company by Sh. Krishan Kumar. Since Sh. Balwinder Singh was not the owner of the vehicle on the date of incident, though the Insurance Policy was in his name, he had no insurable interest. Even no insurable interest existed in the name of Sh. Krishan Kumar to whom the vehicle was sold on 23.08.2010 and he never informed the Insurance Company within 14 days from the date of purchase. In Sarfarjudeen Vs. Branch Manager, The New India Assurance Co. Ltd. and another’s case (supra), the National Commission in Para 3 held as under:-

“3. We have heard learned Shri Dev Dutt, Advocate for the petitioner and perused the record. It is not in dispute that the vehicle in question had been sold under an agreement dated 25.08.2004 to respondent no. 2, Ashok Kumar. It is also not in dispute that the vehicle was stolen on 21.09.2005 for which the FIR was lodged by respondent no. 2 on 25.09.2005 and the intimation about the incident of theft was sent to the Insurance Company by the petitioner on 21.10.2005 and the intimation about the incident of theft was sent to the Insurance Company by the Petitioner on 21.10.2005. Although, respondent No.2 is said to have applied to the RTO for transfer but on the date of theft, the registration of the vehicle was in the name of the petitioner. Specific dates of application for transfer in the name of respondent no. 2 as also the receipt of the request for transfer by the RTO have not been provided by the petitioner and as such it is not possible to say as to whether the respondent no. 2 had complied with the requirement of law in regard to the transfer of the vehicle in his name within the period allowed.”

16.       The National Commission further held in Para 5 as under:-

“4. Taking into consideration the provisions of GR-17 of Motor Tariff Rules of Tariff Advisory Committee referred to by it and also the contents of section 157 of the Motor Vehicles Act, 1988, the State Commission set aside the order of the District Forum and allowed the appeal of the respondent Insurance Company. The State Commission while reversing the order of the District Forum has discussed the legal position in the light of undisputed facts and has recorded the following reasons in favour of the impugned order which can be reproduced thus:-

“On behalf of the appellant-opposite party it is contended by learned counsel that on the date of alleged accident i.e. on 21.09.2005, the vehicle in question was registered in the name of complainant, whereas the vehicle was transferred in the name of Ashok Kumar vide an agreement dated 28.08.2004. Learned counsel further contended that as per provisions of GR-17 of Motor Tariff Rules of Tariff Advisory Committee, the complainant as well as respondent no. 2 Ashok Kumar were required to apply to the insurance company to get the insurance policy transferred in his name, within 14 days when the vehicle was transferred in his name but he did not apply and as such the complainant is not entitled to any insurable benefits. In support of his argument, learned counsel for the appellant-opposite party referred to GR-17 of Motor Tariff Rules of Tariff Advisory Committee, Annexure A/8, which is reproduced as under:-

      “GR.17. Transfers  

      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 make the necessary changes in his record and issue fresh Certificate of insurance…..”  

Learned counsel for the appellant-opposite party further contends that Section 157 of the Motor Vehicles Act, 1988 deals with the transfer of Certificate of Insurance. The provision contained therein directs the purchaser of the vehicle to get the Insurance Certificate transferred in his name by making an application to the Insurance Company. But in the instant case the complainant and respondent no. 2 Ashok Kumar did not comply with the above said provisions of GR-17 of Motor Tariff Rules of Tariff Advisory Committee and Section 157 of the Motor Vehicle Act, 1988 and for that reason, the complainant cannot claim any compensation from the Insurance Company in view of settled law laid down in COMPLETE INSURLATIONS (P) LTD. versus NEW INDIA ASSURANCE COMPANY LTD., 1(1996) CPJ 1 (SC), wherein the Honble Supreme Court has held that:-

 “…..In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle…”

Further reference is made to case law cited as Dharmendra Nath Thakur versus United India Insurance Co. Ltd., 2010 (1) CPC 574(N.C.) wherein the Honble National Commission has held as under:-

      “Consumer Protection Act, 1986-Section 21(b)-Non transfer of policy-Registration of vehicle was changed in the name of complainant no. 1 but insurance policy remained in the name of previous owner. It is settled law as cited in Complete Insulations case 1996(1) SCC 221 by the Honble Supreme Court that insured will not be entitled to compensation from insurer for damages to the transferred vehicle in the absence of specific contract covering risk for damage to the vehicle - Orders of Fora below dismissing the claim of petitioner warrants no interference-Relief declined.

The facts of the instant case are fully attracted to COMPLETE INSULATIONS (P) LTD.s case (Supra) and Dharmendra Nath Thakurs case (Supra).

 Taking into account the facts and circumstances of the case, we are of the view that since the complainant has failed to get the insurance policy transferred in his name, therefore, he has no insurable interest and thus, is not entitled for any compensation. The District Forum has failed to appreciate the legal position involved in this case and as such the impugned order passed by the District Forum is not sustainable in the eyes of law.

For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.”

17.       In United India Insurance Co. Ltd. Vs. Mr. Dada Miyan, Revision Petition no.129 of 2009 decided on 1.09.2014, the National Commission, held in Paras 8 ad 9 as under:-

“8.      In the case before us, though in view of the mandate of Section 157 (2) of the Motor Vehicle Act, the complainant was required to apply to the insurance company within 14 days of purchase of the vehicle, for transfer of the certificate of insurance in his name, admittedly, no such application was made within the aforesaid period. Consequently, there was no policy of insurance in respect of the aforesaid vehicle in the name of the complainant, on the date the vehicle was stolen.

9.      A policy of insurance is nothing but a contract between the insurer and the insured whereby the insurer, in consideration of the premium received from the insured, undertakes to indemnify the insured in case of loss of or damage to the vehicle subject matter of the insurance policy. In the absence of such a contract, the insurance company cannot be held liable to indemnify the owner of the vehicle which is lost or gets damaged. Considering that under Sub-Section (2) of Section 157 the transferee can apply for change of the insurance policy in his name within 14 days of the purchase of the vehicle, the insurance company in our view would be entitled to indemnify the transferee of the vehicle, in a case where the loss/damage takes place within 14 days of the purchase of the vehicle by him. This view is premised on the statutory provision which gives 14 days’ time to the transferee to seek transfer of the insurance in his name, considering that it may not be possible for him to seek such a transfer immediately on purchase of the vehicle. However, in the case before us since the complainant did not apply for transfer of the insurance policy in his name at any point of time within 14 days from the purchase of the vehicle, no benefit from the aforesaid interpretation accrues to him.”

In our considered opinion and in view of the law settled by the National Commission in Sarfarjudeen Vs. Branch Manager, The New India Assurance Co. Ltd. and another  and United India Insurance Co. Ltd. Vs. Mr. Dada Miyan’s cases (supra), the respondents/Opposite Parties, rightly declined the claim. Thus, the District Forum also in view of the law settled in Complete Insulation Pvt. Ltd. Vs. New India Assurance Co. Ltd., (1996) 1 SCC 221 and Rikhi Ram & Anr. Vs. Sukhrania & Ors., (2003) 3 SCC 97, rightly held that the Insurance Company was not under obligation to indemnify the subsequent purchaser for the damage caused to the vehicle unless the subsequent purchaser had got the Insurance Policy transferred in his name. 

 

18.       When Sh. Balwinder Singh, as per his affidavit dated 23.08.2010 (Annexure C-2) had sold the vehicle to Sh. Krishan Kumar and also delivered possession of the same (vehicle) on the same day to Sh. Krishan Kumar after receipt of consideration, he was not left with any ownership in the vehicle. Thus, the subsequent affidavit regarding sale of the same vehicle to Sh. Mehar Chand, complainant was apparently manipulated to get the claim.

19.         No other point, was urged, by the Counsel for the parties.

20.       In view of the above discussion, it is held that the District Forum, rightly dismissed the complaint, and the order passed by it, does not suffer from illegality, warranting the interference of this Commission.

21.       For the reasons recorded above, the appeal, filed by the appellant/complainant, being devoid of any merit, is dismissed, with no order as to cost. The order of the District Forum is upheld.

22.       Certified Copies of this order be sent to the parties, free of charge.

23.       The file be consigned to Record Room, after completion.

Pronounced.

April  30, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

        MEMBER

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STATE COMMISSION

(First Appeal No.61 of 2015)

(Sh. Mehar Chand Vs. Future Generali India Insurance Co. Ltd. & another)

 

 

Argued by: 

 

Kumar Nikshep, Advocate for the appellant.

Sh. Vishal Aggarwal, Advocate for the respondents.

 

Dated the 30^th day of April, 2015

 

ORDER

 

            On 16.04.2015, an application, for placing on record, copies of letters dated 12.03.2015 and 17.03.2015 as Annexures AX & AY, by way of additional evidence, was moved by the appellant/complainant, on the ground, that the same are essential for the just decision of the appeal.

2.         Copy of the same was supplied to the Counsel for the respondents, who sought time to file reply to the same. However, on 17.04.2015, when the appeal was fixed for final hearing, he stated that the respondents did not want to file reply to the application for additional evidence.

3.         Arguments, on the application for placing on record, copies of letters dated 12.03.2015 and 17.03.2015 as Annexures AX & AY, by way of additional evidence, heard.

4.         It may be stated here, that, in case, at this stage, the application for placing, on record, Annexures AX & AY, by way of additional evidence, is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing on record Annexures AX and AY, by way of additional evidence, at this stage. The application is accordingly dismissed.

5.         Arguments, in the main appeal already heard.

6.         Vide our detailed order of the even date, recorded separately, the appeal, filed by the appellant/complainant, has been dismissed, with no order as to cost. The order of the District Forum has been upheld.

7.         Certified copies of the order be sent to the parties free of charge.

 

  

Sd/- (DEV RAJ) MEMBER

Sd/- (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

Sd/- (PADMA PANDEY) MEMBER

 

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