Delhi

East Delhi

CC/237/2017

ADITI RAGHAV - Complainant(s)

Versus

IFFCO TOKIO - Opp.Party(s)

24 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.237/2017

 

	ADITI RAGHAV D/O SH. ASHOK RAGHAV, R/O 82C, STREET NO.1 WEST AZAD NAGAR, KRISHNA NAGAR, DELHI – 110051	….Complainant
Versus
	IFFCO TOKIO GENERAL INSURANCE CO. LTD. HAVING ITS REGISTERED OFFICE AT IFFCO SADAN, C-1, DISTRICT CENTRE, SAKET, NEW DELHI – 110017
	ALSO AT: 34, IFFCO HOUSE, 2ND FLOOR, NEHRU PLACE, NEW DELHI-110019	……OP

 

Date of Institution	:	22.06.2017
Judgment Reserved on	:	04.08.2023
Judgment Passed on	:	24.08.2023

 

                  

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

 

 

 

JUDGMENT

By present order, this commission shall dispose of the complaint with respect to deficiency in services by OP in repudiating the insurance claim of stolen car of the complainant. It is matter of record that after filing the complaint, the complainant sought the permission to amend her complaint which was allowed and an amended complaint was filed by the complainant and therefore the fact of amended complaint are mentioned here in below.

1. It is the case of the Complainant that on 28.12.2016, she has purchased a second-hand car for consideration of Rs.4,50,000/-and received all documents and NOC from the previous owner, submitted them to the transport authority for transfer of ownership in her name on the same day. The previous owner has also filed Form 29on the same day, which is a form of notice of ownership of a motor vehicle with the Registering Authority, Transport Department. The said car was insured with OP as policy number 1–7 VZYZ3W, vide number 69084074 by the previous owner. The complainant vide letter dated 02.01.2017 has also informed the OP about the sale of the said car to her, information to  the RTO for the transfer of the registration in her name and enquired if any necessary action has to be taken by her for transfer of the insurance to which no revert was received from OP. The complainant approached the OP many times thereafter for transfer of the policy in her name and was informed to apply within 14 days after the receipt of the revised RC along with the old insurance policy. This is submitted that she was assured by OP that even in case the RC is delayed or in case of any miss-happening prior to the transfer of the policy, the claim, shall be released in the name of the complainant on a simple application with all the necessary documents
2. On 08.01.2017, the car was stolen from her premises, within 14 days from the date of transfer application of the RC in her name. An FIR bearing number 810/2017was lodged and OP was informed about the same. A claim ID36905397 was generated and surveyor was appointed by OP as the due intimation of sale had been received by the OP.
3. The surveyor collected all details from complainant and all further correspondence were shared with her. Complainant received revised RC on 10.01.2017and filed application for transfer of policy in her name and was informed that the claim will be ascertained as soon as the surveyor will submit his report. The complainant has enquired many times about the status of her application and the claim which were not answered satisfactorily by OP.  Complainant submits that the conduct of the OP establishes that they were deliberately delaying the process of the application of the complainant and denying her rightful claim on one pretext or the other. The email dated 20.02.2017 of the complainant was not replied by OP. The previous owner vide his email dated 22.02.2017 also informed the OP about the ‘no objection’ from him if the claim being released in favour of the complainant as she is the whole and sole owner of the car and the rightful claimant of the claim. However, OP rejected the claim vide repudiation letter dated 15.03.2017as “No Claim” since previous owner had left with no insurable interest and the complainant has not got the car transferred in her name and the policy was still in the name of the previous owner. Complainant submits that OP acted erroneously and denied her rightful claim only to unjustifiably enrich themselves despite the fact that the complainant acted prompty and diligenty and had filed application dated 19.01.2013with OP for transfer of the insurance policy in her name as soon as she received the revised RC but OP till date failed to convey to the complainant, the status of the said application and by rejecting the claim of the complainant, has committed deficiency of services and is liable to compensate the complainant for the same along with release of her claim amount, as it is the OP who has failed in timely transferring the policy in her name because of which the complainant has suffered lot of mental pressure, harassment and agony at the hands of OP. The complainant prayed for refund of the amount of Rs.4,50,000/- along with interest, 18% p.a., compensation of Rs. 50,000/- and litigation cost of Rs.10,000/-.
4. OP filed its reply admitting the sale of the said vehicle but it was on 19.12.2016 and not 28.12.2016. OP also stated that the claim of the complainant was repudiated for violation/breach of the terms and conditions of the contract of insurance and there is no deficiency in service or negligence on it’s part. The complainant was required to inform the registering authority and the insurance authority about the said transfer along with documentary proof within 14 days of the transfer. However, in the present case, OP was informed about the transfer on 02.01.2017 i.e.15th days from the date of transfer.  The vehicle was allegedly stolen on 08.01.2017.Since the insurance policy was not got transferred in the name of the complainant, within a stipulated time frame, there is no insurable interest in favour of the complainant and repudiation is justified on the basis of the investigation report issued by its investigator. OP relied on Supreme Court judgement regarding the importance of the surveyor report in ‘Venkateswara syndicate versus Oriental insurance Co Ltd, (2009) CPJ 81 (SC)’. The complainant has failed to take suitable precautions for safeguarding the said vehicle and suffered loss on account of her own gross negligence, violation of terms and conditions of the insurance contract. The OP has also taken objections as to the signing of the complaint, rejoinder, evidence, incorrect valuation of the complaint and inadequacy of court fees. OP submits that complainant failed prima facie to establish her case and to demonstrate any deficiency on the part of OP. Moreover, complainant is not a consumer as there is no privity of contract between the complainant and OP and therefore the complaint liable to be dismissed and also submits that the liability of the OP, if any, cannot be beyond, the insured declared value (IDV) of the subject vehicle i.e.4 lakh.
5. Both the parties filed their respective evidences along with the documents and judgements in support of their case.
6. Complainant has filed following documents:

1. Copy of the insurance policy, Ex. CW1/1;
2. copy of NOC dated 28.12.2016, Ex. CW1/2;
3. copy of letter dated 02.01.2018 along with courier receipt, Ex. CW1/3;
4. copy of FIR, Ex. CW1/4;
5. copy of RC in the name of previous owner, Ex. CW1/5;
6. copy of revised RC,Ex. CW1/6;
7. copy of acknowledgement of receiving RC, Ex. CW1/7;
8. copy of transfer application, Ex. CW1/8;
9. copy of email dated 20.02.2017 and 22.02.2017, Ex. CW1/9 and CW1/10;
10. copy of rejection letter, Ex. CW1/11;

7. OP has filed true copy of terms and conditions of the policy, Ex. OP1/1 and the copy of investigation report, Ex. OP1/2.
8. The Commission has gone through the entire documents on record and heard the arguments of the parties. Before going to merit of the case, the objections of the OP with respect to signing of the pleadings of the complainant, court fee and valuations were checked and are found appropriate, and therefore, the objections of the OP are addressed.
9. The sale of the subject vehicle and the insurance policy in favour of previous owner are not in dispute.  The fact of the transfer of the vehicle is also not in dispute. At all the times the vehicle was covered by valid insurance policy including at the time of theft.  Therefore, the OP cannot escape from its liability to indemnify the insured in case of any loss to the vehicle. The only question remains to whom the insurance to be paid to, to the previous owner or to the new owner?
10. Documents on record show that OP was aware about the sale of the said car vide letter dated 28.12.2016 of the complainant immediately after the sale of the said vehicle i.e. within 14 days of the transfer of the vehicle though technical formalities were not completed as RC was not transferred in the name of the complainant which was required to be filed with the OP. OP has admitted sale of the vehicle on 28.12.2016 in its documents i.e. surveyor report and repudiation letter.
11. This is also matter of record that the complainant has also applied for the change of RC in her name of the very same day i.e. 28.12.2016, on the very first opportunity available to her. Beyond that nothing was required to be done at complainant’s end. Therefore, we find no lapse/negligence on the part of the complainant in applying for transfer of policy or transfer of RC in her name. The previous owner has also issued NOC in her favour as well as filed Form 29 before transport department on the same day. All these actions of the complainant shows that she was prompt and has acted with due diligence.
12. Further, OP had not discontinued / cancelled the insurance of the vehicle in question at any point of time. OP has also failed in informing that what steps it had taken after receiving the intimation of transfer dated 02.01.2017 from complainant.
13. Further, the information is admittedly received by the OP with respect to the sale of the vehicle within a period of 14 days, i.e. on 02.01.2017, which fact admitted by OP in its evidence. The RC was also issued on the 13th day that is on 10.01.2017.
14. This is a settled principle of law that the policy of insurance is issued in respect of the vehicle, though it is issued in the name of the owner of the vehicle. Mere change of name of the owner of the vehicle, cannot affect the policy in question.
15. Hon'ble Supreme Court in Gurmel Singh Vs. Branch Manager, National Insurance Co. Ltd. CA No. 4071/ 2022 has held that in many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control."
16. The impact of Section 157 of the Motor Vehicles Act was considered by a Division Bench of Kerela High Court in Sayed v. Gopalakrishnan and Others [2016(2)KHC 351], holding that once the vehicle is transferred, there is a deemed transfer of policy of insurance in the name of the transferee and the Insurance Company is liable to indemnify the insured or even the transferee by virtue of the deeming provision. It was further observed that, the Insurance Company could be exonerated from the liability only if they establish the violation of policy conditions or the defences as provided under Section 149(2) of the Motor Vehicles Act, 1988 and not otherwise.
17. The same is relied on by Hon'ble Kerela High Court in Reliance General Insurance Company Limited vs Annamma Raju MACA  no. 2585 of 2016and further held that requirement to intimate transfer of vehicle to insurance company U/s 157(2) MV Act is only directory, not mandatory. In present case, the theft occurred after the transfer of ownership is completed by following the provisions of the Motor Vehicles Act, and therefore the deemed transfer of policy had occurred before the theft.
18. Vide repudiation letter dated 15.03.2017, addressed to the previous owner, the OP rejected the claim stating “Ms Aditi has got the Registration transferred in her name but still the insurance policy is in your name. As such as per policy, there is no insurable interest of RAM NIWAS. As such, the subject claim would fall outside the scope of the policy terms and conditions. We are therefore, closing our file as NO -CLAIM”, i.e. the only ground of the claim is that the insurance policy was not transferred in the name of the complainant.
19. The Hon’ble High Court in Annamma Raju (Supra) has held that if RC is transferred (but not the insurance) in the name of new owner, even in that case, the insurance is deemed to have been transferred in the name of new owner and the insurance company is liable to pay insurance claim.
20. Considering the facts and circumstances of the case, and the judgments, as discussed above and also those as filed by both the parties, this commission is of the opinion that by rejecting the claim of the complainant, OP has committed deficiency in service, and therefore liable to compensate complainant adequately for causing mental sufferings and harassment as well as to pay the IDV of the said vehicle.
21. Therefore, the OP is directed to pay Rs.4,00,000/- (being IDV) of the vehicle along with 6% interest from the date of repudiation of the claim i.e. 15.03.2017, along with a compensation of Rs.25,000/- for being deficient in its services. The above stated amount be paid to the complainant within 30 days from the date of receiving of the order by the OP failing which the entire amount i.e. Rs.4,00,000/- + 25,000/- shall carry an interest at the rate of 9% per annum from the date of rejection of the claim a 15.03.2017 till final realisation by the complainant.
22. File be consigned to record room after uploading order on website and providing copies of the order to the parties as per CPA, 1986.
23. The complaint case could not be decided within a statutory period due to heavy pendency of Cases before this commission.
24. The order contains 10 pages each beers our signatures
25. Pronounced on –24.08.2023.