Haryana

Yamunanagar

CC/290/2013

Abdul Halim s/o Sh.Mohd. Ahmad - Complainant(s)

Versus

Iffco Tokio Genral Insurance Co. - Opp.Party(s)

Ram Saran

17 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No.290  of  2013.

                                                                                    Date of institution: 25.04.2013.

                                                                                     Date of decision: 17.10.2016.

Abdul Halim aged about 30 years son of Mohd. Ahmad resident of Buria, Tehsil Jagadhri, Distt. Yamuna Nagar.

                                                                                                             …Complainant.

                                    Versus

1. Iffco Tokio General Insurance Company Ltdf., Iffco House, 3^rd floor 34, Nehru Place, New Delhi 110019 through its Branch Manager.
2. Love Nanda, Agent, Iffco Tokio General Insurance Company Ltd. r/o H. No.3, Nehru Park, Opp. Fox Club, Yamuna Nagar.

                                                                                                             … Respondents

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Ram Saran, Advocate, counsel for complainant.   

              Sh. Karnesh Sharma, Advocate, counsel for respondent No.1.

              Sh. Atul Jaiswal, Advocate, counsel for respondent No.2.

 

ORDER

 

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986.   

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a truck bearing registration No. HR-58-9548 from its owner Sh. Khushvinder Singh son of Sh. Balwant Rai and the ownership of the truck in question was transferred in his name on 28.06.2012. Unfortunately, on 29.06.2012 when the complainant was going towards Barnala ( Punjab) on the aforesaid vehicle and was driving it himself, the truck in question met with an accident at about 1.30 A.M. (Night) and complainant also suffered some injuries. In this regard a DDR bearing No. 09 dated 01.07.2012 was also recorded at police station Thana Dablana, District Barnala. The complainant lodged the claim with the respondent No. 1 (hereinafter referred as Op Insurance Company) vide claim No. 33304786 and a surveyor was deputed who submitted his report after inspecting the vehicle in question and assessing the loss. However, OP Insurance Company repudiated the claim of the complainant vide its letter dated 26.11.2012 by stating that insurance policy of the vehicle in question was standing in the name of previous owner i.e. Sh. khushvinder Singh not in the name of complainant Abdul Halim. The act and conduct of the Op Insurance Company is wrong and illegal, which constitute deficiency in service on their part. Lastly, prayed for directing the OP No.1 Insurance Company to pay the claim amount of Rs. 2,00,000/- alongwith interest and also to pay compensation as well as litigation expenses on account of damages of the vehicle in question. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no contract of insurance between the complainant and Op No.1 Insurance Company; This Forum has no territorial jurisdiction; complaint is bad for non-joinder and mis-joinder of necessary parties; the complainant has concealed the true and material facts from this forum and the true facts are that Sh. Khushvinder Pal C/o M/s Surinder Kumar had purchased insurance policy from OP No.1 Insurance Company for insuring his vehicle truck bearing registration No. HR-58-9548. The said insurance policy which contains terms and conditions, was effective from 15.10.2011 to 14.10.2012 (Annexure R-1). On receiving the intimation regarding the accident of vehicle in question, OP No.1 Insurance Company immediately deputed Sh. M.L. Garg, Surveyor, who submitted his report dated 05.09.2012 (Annexure R-2), assessing the loss to the tune of Rs. 53244/- and had given a note in his report that insurance policy is in the name of Sh. Khushvinder Pal whereas the registration certificate is in the name of complainant Abdul Halim and has been transferred on dated 29.06.2012. Hence, the claim of the complainant has been rightly repudiated and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     OP No.2 also filed its written statement by taking some preliminary objections such as complaint is not maintainable; complaint is bad for impleading the unnecessary parties and on merit it has been mentioned that complainant never approached the OP No.2. However, it is the Op No.1 who has to give the claim to the complainant, if any and lastly prayed for dismissal of complaint qua OP No.2 being there was no deficiency in service or unfair trade practice on the part of Op No.2.

5.                     In support of his case, one CW namely Pankaj Mehra was examined who tendered into evidence photo copies of bills as Annexure C-1 to C-8 and learned counsel for the complainant also tendered into evidence affidavit of complainant as Annexure CW1/A and documents as Annexure C-9 to C-14 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for OP No.1 tendered into evidence affidavit of Sh. M.L. Garg, Surveyor and Loss Assessor as Annexure RW/A and affidavit of Sh. Pallvi Rai Vice President, IFFCO TOKIO as Annexure RW/B and photo copies of insurance cover note as Annexure R-1, Photo copy of surveyor report dated 05.09.2012 as Annexure R-2, Copy of RC as Annexure R-3, Photo copy of repudiation letter dated 26.11.2012 as Annexure R-4 and closed the evidence on behalf of Op No.1.

7.                     OP No.2 failed to adduce any evidence, hence evidence of OP No.2 was closed by court order dated 12.08.2016.

8.                     We have heard the learned counsels for both the parties and have gone through the pleadings as well as documents placed on file very minutely & carefully. 

9.                     It is not disputed that the truck bearing registration No. HR-58-9548 was purchased by the complainant from its previous owner Sh. Khushvinder Pal son of Sh. Balwant Rai and the ownership of the vehicle in question was transferred in his name on 28.06.2012, which is duly evident from the photo copy of registration certificate of truck in question Annexure C-14. It is also not disputed that the truck in question was insured with OP No.1 Insurance Company vide its cover note No. 72738536 valid w.e.f. 15.102011 to 14.10.2012, which is duly evident from the copy of insurance cover note Annexure R-1/C-13. Further, it is also not disputed that the truck in question was not met with an accident which is duly evident from the copy of DDR dated 01.07.2012 (Annexure C-10).

10.                   The only plea of the Op Insurance Company is that the claim of the complainant has been rightly repudiated vide its repudiation letter dated 26.11.2012 (Annexure C-12) as the complainant was not having any insurable interest in the vehicle in question at the time of alleged accident as the registration certificate was        standing in the name of complainant whereas insurance of the vehicle in question was standing in the name of previous owner Sh. Khushvinder Pal Singh, which is duly evident from the copy of insurance cover note Annexure R-1 and copy of registration certificate Annexure R-3, which violate the terms and conditions of GR-17 at the time of alleged accident.

11.                   On the other hand, counsel for the complainant hotly argued at length that the genuine claim of the complainant has been wrongly repudiated by the OP Insurance Company on the flimsy ground. Learned counsel for the complainant draw our attention towards the copy of registration certificate Annexure R-3/C-14 and argued that ownership of the truck in question was transferred in the name of complainant just on 28.06.2012 and on the very next day when the complainant was going to Punjab side then the truck in question met with an accident. So, it was not possible for the complainant to get transferred the insurance of the aforesaid vehicle in his name. Learned counsel for the complainant referred the case law CCC 2014(2) P.694 titled as Mallamma (Dead) by L.R.s. vs. National Insurance Co. Ltd. & Others.

12.                   After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file, we are of the considered view that the claim of the complainant has been wrongly repudiated by the OP Insurance Company as from the perusal of copy of registration certificate (Annexure C-14/R-3), it is duly evident that registration certificate of the truck bearing registration No. HR-58-9548 has been transferred in the name of complainant just on 28.06.2012 and the accident took place on the next day i.e. on 29.06.2012, which is duly evident from the copy of DDR (Annexure C10). Further, this fact has also not been denied by the OP Insurance Company that the registration certificate of the truck in question has been transferred in the name of complainant just one day prior to the accident in question.  From the perusal of case file, it is clear that the accident has taken place during the grace period i.e. within a period of 14 days from the date of transfer of R.C. i.e. on 28.06.2012, as per section 157(2) of the Motor Vehicle Act 1988 amended up to date, which is reproduced here:-

 

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.

 

[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 (14) 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.

13.                   From the perusal of above noted contents of section 157(2) of Motor Vehicle Act, it is clear that 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 but in the present case, the vehicle met with an accident within fourteen (14) days i.e. on 29.06.2012 and the complainant lodged the claim immediately to the OP-Insurance Company, so it cannot be said that as per GR-17 there was any fault on the part of the complainant.    As the claim was lodged by the complainant himself being registered owner of the vehicle in question which met with an accident within grace period of 14 days as provide in section 157 (2) of the Motor Vehicle Act 1988 as amended up to date, So, we are of the considered view that the claim of the complainant has wrongly been repudiated by the OP-Insurance Company, which constitute deficiency in service and unfair trade practice on the part of OP No.1 Insurance Company and the complainant is entitled for the relief. As no deficiency in service or unfair trade practice has been proved against OP No.2, hence complaint qua Op No.2 is hereby dismissed.

14.                   Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent a sum of Rs. 2,00,000/- on account of damage to the vehicle is not tenable as no cogent evidence by way of expert report of private surveyor has been filed by the complainant to prove that he has actually spent Rs.2,00,000/- on the repair of truck in question, whereas on the other hand, OP-Insurance Company placed on file Surveyor & Loss Assessor report Annexure R.2 in which loss has been assessed by the Surveyor and Loss Assessor to the tune of Rs. 53244/- after deducting salvage value depreciation as well as excess clause. It is settled proposition of the law, held by the Hon’ble National Commission as well as State Commission in various cases, that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

15.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OP No.1 Insurance Company to pay assessed amount of Rs.53,244/- to the complainant along with interest at the rate of 7% per annum from the date of filing of present complaint till its actual realization and further to pay Rs. 5,000/- as compensation for mental agony and harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.17.10.2016

                                                            (S.C.SHARMA)                         (ASHOK KUMAR GARG)

                                                      MEMBER                                   PRESIDENT