BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.
DATE: 31/08/2016
PRESENT:
1) Shri B.H.Shreeharsha : President
2) Smt.M.Vijayalaxmi : Member
Complaint No.: 112/2016
Complainant: A M Muneer Basha , aged 30 years,
S/o A.Maqbool Basha,
R/o: 2nd Ward, Banagere, Harapanahalli-583131,
Davanagere, Karnataka.
( Rep.By Shree.K.Shyamsunder.Adv)
V/s
Respondent: HDFC ERGO General Insurance Co.,Ltd.,
1st Floor, Virupaksha Krupa, Opp KIMS Main Gate,
Dharwad, Karnataka.
Rep By its Branch Manager.
( Rep.By Shree.S.K.Kayakmath.Adv)
O R D E R
By: Shri. B.H.Shreeharsha : President.
1. The complainant has filed this complaint claiming for a direction to the respondent to pay compensation of Rs; 4,95,000/- together with future monthly loss of income at the rate of Rs;25,000/- from May 2016 onwards till realization to order for adequate cost and to grant such other reliefs.
Brief facts of the case are as under:
2. The case of the complainant is that, the complainant in order to eke out his livelihood purchased public carrier LGV (DOST LS) Ashok Layland bearing Reg.No.KA35B5595 in an auction conducted by HDFC Bank Ltd.Hospete on 2/2/2015 which was insured under the policy No.2315200976951900000 covering package policy with the respondent covering the risk for the period 16/1/2015 to 15/1/2016 midnight. Subsequent to the purchase the complainant got transferred the RC in his name. The complainant received RC Smart card from RTO Davanagere after 25 days of the transfer. Immediately after receipt of the RC the complainant approached HDFC bank Hospete for further advice. On 20/10/2015 a letter was addressed to the respondent seeking transfer of policy in the name of the complainant by enclosing copy of RC issued by RTO Davanagere. The said letter was sent through courier and was received by Mr.Pavan, branch manager of the respondent on 21/10/2015. The complainant possessing valid driving license to drive motor cycle with gear, LMV,PSV,BUS and Transport Vehicle with Badge No.9162 bus. While the complainant was driving the above said vehicle on 27/11/2015 the said vehicle met with accident in Kora village of Tumakur District resulting heavy damage to the vehicle. The accident was immediately intimated to the respondent. Subsequently the damaged vehicle was shifted to authorized dealer of M/s Ashok Layland- M/s Adhiti Auto motives Hospete for repair. The claim was processed with the respondent under ref.No.C230015093484 .The cost of repair of damaged vehicle was estimated at Rs;3,38,886/- . The same was forwarded to the respondent. But no response from the respondent, even after lapse of more than 15 days. Through Website browser the respondent by its letter dtd.6/1/2016 rejected the claim on the ground that the certificate of registration is in the name of Mr.MunirBasha and the insurance policy to the date of accident stood in the name of Mr.Mahaboob Esmail M relying on general regulation 17 of Indian Motor Tariff, stating there is no specific request for transfer of policy in transferee name. The said letter dtd. 6/1/2016 was addressed in the name of the policy holder though the claim was made by the complainant. For the legal notice dtd. 25/1/2016 got issued to the respondent to settle the claim till this day no reply. Non reply and non-compliance amounts to deficiency in service. Hence the complainant filed the instant complaint claiming the relief as sought.
3. In response to the notice issued from this Forum the respondent appeared and filed detailed written version, taking contention that the very complaint is false, frivolous and concocted and not tenable either in law or on facts, and prays for dismissal of the same. While the answering respondent denied all the complaint averments and put the complainant to strict proof of the same. Among such other admissions and denials the answering respondent admits issuance of the policy in respect of vehicle in question in the name of Mehaboob Ismail M and covering risk for the period 16/1/2015 to 15/1/2016 midnight. While the respondent disputes-purchase of the said vehicle by the complainant to eke for his lively hood, issuance of the policy in the name of complainant and coverage of risk in his name, alleged accident, tune of damages sustained & claimed, intimation of the accident, to the insurer, requisition to transfer the insurance policy in the name of the complainant from its previous owner, estimation of damages assessed etc., and put the complainant to strict proof of the same. Among such other admissions and denials the respondent revealed in detail with regard to the procedure for submission of transfer application of insurance under M.V.Act with case laws. Further the respondent denied and disputes the accident in question damages to the vehicle and put the complainant the strict proof of the same. Added to it the respondent with further contention averred accident is not intimated immediately after the accident, transfer application is not made immediately within 14 days of change of ownership, to the date of accident since there was no policy in the name of RC owner there is no insurable interest in the name of the complainant covering the risk and contended justified in repudiating the claim averring no deficiency on the part of respondent and prayed for dismissal of the complainant with cost.
4. On the said pleadings the following points have arisen for consideration:
1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?
The complainant apart from examined himself adduced one more additional witness evidence and respondent admits sworn to evidence affidavit. Both relied on documents and citations in support of their case. Complainant apart from argument filed notes of arguments. Heard. Perused the records.
Finding on points is as under.
1. In Negative
2. In Negative
3. As per order
R E A S O N S
P O I N T S 1 & 2
5. Ongoing through the pleadings, & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that to the date of accident the vehicle in question is covered with package policy issued by the respondent.
6. Now the question to be determine non settlement of the claim by the respondent amounts to a deficiency of service, if so, for what reliefs the complainant is entitle.
7. Since the facts have been revealed in detail which requires no repetition.
8. The crux to be determine whether the vehicle in question is covered with the risk under policy in question in the name of the complainant and there is insurable interest in the name of the complainant covering the risk of the vehicle.
9. As discussed supra in brief there is no dispute with regard to the fact the complainant purchased the vehicle bearing Reg.No.KA35B5595 from its previous owner Mr.Mahaboob Ismail M. By looking into the Ex.C-2 RC of the said vehicle got transferred in the name of the complainant on 23/7/2015. Except producing Ex.C-2 RC the complainant did not produce policy copy covering the risk of the vehicle KA 35 B 5595 in the name of the complainant. But complainant has produced Ex.C-1 copy of the policy pertaining to the said vehicle. But perusal of the same reveals that it is issued in the name of Mr.Mahaboob Ismail M covering the risk from 16/1/2015 to 15/1/2016.
10. Whereas the case of the complainant is that subsequent to the purchase of the said vehicle he get it transferred RC in his name at RTO Davanagere. Further it is the case of the complainant that he received the Smart Card RC from RTO Davanager after 25 days. So immediately he approached HDFC bank Hospete from whom he purchased the same in auction for advice. Thereafter on 20/10/2015 he wrote letter addressed to respondent seeking transfer of the policy in his name along with copy of the RC and the same was sent to respondent’s branch manager Mr.Pavan through courier and same was received by him on 21/10/2015. In support of this contention the complainant relied and produced Ex.C-3 courier receipt and letter Ex.C-4 and contended that he had applied for transfer of policy in his name from its previous owner. While the respondent denied the same in a straight jacket contending that Ex .C-3 courier is not pertaining to the forward of application for transfer by the transferee and disputes contending that in order to get transfer the insurance claim form shall be made personally by the transferee by written request in prescribed form with receipt challan for having remitted the transfer fee as contemplated under 157 of M.V.Act in a prescribed form as per Rule 6A of M.V.Third party insurance rule and general regulation 17 of IMT and is mandate requisition for transfer. And further argued Ex.C-3 is concocted document created for the instant case and submits it shall not be considered. On the dispute raised by respondent and on perusal of Ex.C-3 courier delivery receipt it reveals there are several discrepancies namely there is material alteration in the place of consignee address column as per address consignee address is differed and not bears, the name of the respondent instead someone else name and place is mentioned as Raichur and are all subsequently scratched over. Whereas the respondent’s official address is at Dharwad, under such circumstances why such alterations are made not coming out. Apart from it further perusal in the place of consigner address HDFC bank name is mentioned beside to it HDFC Bank Manager name mentioned. And respondent office rubber stamp is impressed on Ex.C-3. Whereas the case of the complainant is that he only sent the requisition to the respondent through courier with letter. But in Ex.C-3 the name of the HDFC bank is mentioned in the consigner column no letter of complainant is produced. So also the complainant did not produced any documents to show when actually he received R.C from R.T.O Davanagere. But Ex.C-4 is the letter dtd.15/12/2015 to the respondent written by the manager of HDFC bank Hospete. Perusal of the contents of Ex.C-4 reveals no requisition letter duly signed by transferee is sent, only copy of the RC is sent addressed to Pavan K, respondents manager, but the respondent denied all these facts and urge no application is made so submits those are all assumptions and surmises of the complainant to have false claim and cannot be considered. In furtherance of argument of both the parties the Forum also made keen observation over the documents relied by the complainant. When the document Ex.C-3 is belongs to Respondent how it came to the hand of complainant is question. Further perusal of Ex.C-4 produced by the complainant stated to be written by the manager of HDFC bank. So now the question is why the said manager taken personal interest in writing Ex.C-4 to the respondent apart from it and perusal of Ex.C-4 it do not reveals requisition letter duly signed by transferee/complainant is also sent along with prescribed fee. Raising this point the LC for the respondent argued there is no written requisition of the transferee and also no proper fee is paid, as such there is no transfer application by the transferee to the respondent. And invite the attention of this Forum to relevancy of
Section 157 of The Motor Vehicles Act, 1988
157. Transfer of certificate of insurance.—
(1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. 1[Explanation.—For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]
(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.
Looking in to the contents of Sec.157 of MV act, written requisition by the transferee is mandate one.
11. Apart from above contention, it is also the case of the respondent is that the complainant/transferee has not made any written request to transfer within 14 days from the day of transfer of registration certificate where as in the instant case RC came to be issued in the name of complainant on 27/2/2015. Even the admission of the complainant is taken in to consideration that he has sent requisition to respondent on 20/10/2015. Even if this fact is also taken for consideration requisition is also not made within the days but is made after about 8 months. Whereas alleged accident took place on 27/11/2015 . To the alleged date of accident policy was not in the name of complainant instead Ex.C-1 is in the name of its previous owner Mahaboob Ismail M. So as contended by the respondent there is no insurable interest in the name of the complainant to the date of accident and the repudiation of the claim by the respondent is in accordance with Sec.157 of M.V.Act 1988 and the respondent justified in repudiating the claim.
12. Further contention of the respondent is that, the complainant did not intimate the respondent/insurer immediately after the accident, with regard to the information of the accident. So there is no liability of the respondent to settle the claim as the complainant had violated the terms and conditions of the policy, even though in the event Ex.C-1 has coverage of the risk. The LC for the respondent also invites the attention of this Forum in support of immediate non-intimation the fake estimation Ex.C-5 produced. On perusal of Ex. C-5 it do not disclose who has assess the damage and in which situation it was prepared and who was the person issued the same. On looking into the Ex.C-5 it is a bare estimate and the assessor name, signature are not found on it. Under such circumstances it cannot be considered as authenticated estimation.
13. Apart from above all discussions on looking into the evidence of PW-2 give more suspicion to believe the genuinity of Ex.C-3 courier receipts. When the respondent had disputed the Ex.C-3 the complainant could have examined the courier person GMS worldwide express pvt.ltd. persons with regard to the genuinity of Ex.C-3 but not examined and is fatal to the case of the complainant . The respondent apart from above all denials and disputes further also argued that the vehicle in question has not met with accident on 27/11/2015as alleged by the complainant contending that when the complainant had claimed damage to the tune of Rs;’3.38,886/- why the complainant did not lodge complaint before jurisdictional police and disputes so there is no accident as alleged. Even in the mind of this Forum also a doubt arose as contended by the respondent and questioned itself what were the impediments are left with the complainant in not registering the case before the police.
14. So taking into consideration of all the above facts complainant utterly fail to establish his case, that he had made proper application to the respondent seeking transfer of policy in his name from its previous owner as contemplated under Sec.157 of M.V.Act and despite of it the respondent repudiate the claim and committed deficiency in service with cogent and appulsive evidence. The decision relied by the complainant 2015 CJ 361(SC) Lakshmi Chand Vs Reliance General Insurance is not useful/ applicable to the case of the complainant. While decision AIR 1996 SC 586 M/S complete insulations (P) Ltd Vs New India Assurance company Ltd relied by the respondent is more relevancy to the case on hand & appropriate one & applicable. Hence the complainant is not entitle for any relief much less for the reliefs as sought. On the other side the respondent with appulsive and cogent evidence justified in repudiating the claim.
15. In view of the discussion and decisions arrived we inclined to held Issue No.1 in negative and Issue No.2 accordingly.
Point.3: In view of the finding on points 1 and 2 proceeded to pass the following
O R D E R
Complaint is dismissed. Parties bears their own cost.
(Dictated to steno, transcribed by her and edited by us and pronounced in the open Forum on this day on 31st day of August 2016)
(Smt.M.Vijayalaxmi) (Sri.B.H.Shreeharsha)
Member President
Dist.Consumer Forum Dist.Consumer Forum
GDB
