A.F.R.
RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 736 OF 2015
(Against the judgment/order dated 10-03-2015 in Complaint
Case No. 21/2013 of the District Consumer Forum, Chandauli)
Oriental Insurance Company Limited
Regional Office, Hazratganj
Lucknow
Through the Manager
...Appellant
V/s
- Jaipal Raheja
S/o Late Chatur Ram Raheja
R/o CL-164, Sector-2
Near C K Market, Saltlake
Kolkata
Present Address : D-57/4A
Plot No.1 Sindhnagar
P.S. Singra, Varanasi.
- Simaya Shailja Park Pvt. Ltd.
Through Rachit Agarwal
S/o Vijay Kumar Agarwal
R/o 10/4D, Elgin Road
Kolkata-700020
...Respondents
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
HON'BLE MRS. BAL KUMARI, MEMBER
HON’BLE MR. UDAI SHANKAR AWASTHI, MEMBER
For the Appellant : Mr. Alok Kumar Singh, Advocate.
For the Respondent : Mr. S K Verma, Advocate.
Dated : 22-09-2016
JUDGMENT
PERMR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
Present appeal has been filed under Section-15 of the Consumer Protection Act 1986 against judgment and order dated 10-03-2015 passed by District Consumer Forum, Chandauli in Complaint Case No. 21/2013 Jaipal Raheja V/s Branch Manager, Oriental Insurance Company Limited and another whereby the District Consumer Forum has partially allowed said complaint
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and has ordered opposite party no.1 to make payment of insured amount of Rs.3,60,000/- to complainant within two months with interest @ 10% per annum from the date of institution of complaint till the date of actual payment. The District Consumer Forum has further ordered opposite party no.1 now appellant to pay Rs.10,000/- as compensation for harassment and Rs.2,000/- as cost of the complaint to complainant now respondent.
Appellant is opposite party no.1 of complaint whereas complainant is respondent no.1 in this appeal.
Learned Counsel Sri Alok Kumar Singh appeared for appellant Insurance Company.
Learned Counsel Sri S K Verma appeared for respondent.
We have heard learned Counsel for the parties and have gone through the impugned judgment and order as well as records.
It has been contended by learned Counsel for the appellant Insurance Company that the respondent/complainant had purchased vehicle in question bearing Registration No. WB 02V-1171 from respondent no.2 Simaya Shailja on 17-08-2011. Thereafter insurance policy of said vehicle expired on 06-12-2011 and respondent/complainant obtained insurance policy in the name of previous owner respondent no.2 fraudulently on 29-12-2011. As such, appellant Insurance Company is entitled to repudiate claim of respondent/complainant.
It has been further contended by learned Counsel for the appellant Insurance Company that even if the version of complainant is accepted that complainant has purchased vehicle on 01-05-2012 from respondent no.2 and insurance policy has been obtained by registered owner respondent no.2 on 29-12-2011 even then the complainant cannot get benefit of said policy because he did not apply for transfer of policy in his name within 14 days from the date of transfer i.e. 01-05-2012 as required by GR-17 of Indian Motor Tariff.
It has been further contended by learned Counsel for the appellant Insurance Company that appellant Insurance Company has rightly declined claim of the complainant/respondent. The impugned judgment and order passed by District Consumer Forum is against law and evidence.
Learned Counsel for the appellant Insurance Company has placed reliance on following judicial pronouncements.
- Sandeep Gupta Vs United India Insurance Company Limited decided
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by Hon’ble National Commission on 14-02-2014 in Revision Petition No. 2355 of 2012.
- Dildar Singh and another V/s Reliance General Insurance Company Limited decided by Hon’ble National Commission on 20-05-2014 in Revision Petition No. 1816 of 2014.
Learned Counsel for the respondent/complainant opposed appeal.
It has been contended by learned Counsel for the respondent/complainant that respondent/complainant purchased above vehicle on 01-05-2012 from respondent no.2. Thereafter respondent no.2 delivered forms 29 and 39 to respondent/complainant on 06-05-2012 and after having completed formalities, the respondent/complainant moved application before R.T.O., Calcutta for transferring registration certificate in his name. In the meantime, in the intervening night of 20/21-07-2012 said vehicle was stolen. Information was given to local police station Mugalsarai but the police did not register report. Consequently complainant/respondent approached court and F.I.R. was registered with the order of court.
It has been contended by learned Counsel for the respondent/complainant that complainant informed the Insurance Company on 23-07-2012 about incident of theft and provided all informations and documents required by the investigator but the appellant Insurance Company failed to make payment in terms of insurance policy and has committed deficiency in service.
It has been further contended by learned Counsel for the respondent/complainant that after transfer of registration certificate of said vehicle in the name of respondent/complainant, the respondent/complainant has moved application before appellant Insurance Company for transfer of policy in the name of respondent/complainant within time prescribed by Section 157(2) of Motor Vehicles Act 1988 and GR-17 of Indian Motor Tariff.
It has been contended by learned Counsel for the respondent/complainant that the impugned judgment and order passed by District Consumer Forum is in accordance with law and evidence. The appeal has no merit and should be dismissed.
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Learned Counsel for the respondent/complainant has cited judgment of Hon’ble Apex Court rendered in the case of New India Assurance Company Limited V/s Smt. Sheela Rani and others reported in 1999(1) A.W.C. 100 (S.C.).
We have considered the submissions made by learned Counsel for the parties.
In view of submissions made by learned Counsel for the parties, following points arise for determination in this appeal.
01.Whether complainant/respondent has obtained insurance policy on 29-12-2011 in the name of respondent no.2 fraudulently ? If yes its effect.
02. Whether the complainant/respondent has not applied for transfer of policy in his name within time prescribed by GR-17 of Indian Motors Tariff ? If yes its effect.
03. Whether the judgment and order passed by District Consumer Forum is erroneous.
Point No.01 for determination
It has been contended by appellant Insurance Company that complainant/respondent has obtained insurance policy on 29-12-2011 in the name of respondent no.2 fraudulently but it has not been alleged by appellant Insurance Company that signature of respondent no.3 on proposal form is forged and there is nothing on record to hold that respondent no.2 has not obtained this policy. Contrary to it complainant/respondent has produced forms 29 and 30 for transfer of vehicle in question. These forms have been signed by respondent no.2 the previous owner of the vehicle on 06-05-2012.
Considering the whole facts and evidence on record, we are of the view that the appellant Insurance Company has failed to prove that complainant/respondent has obtained insurance policy in the name of respondent no.2 fraudulently.
Point no.01 for determination is decided in negative against the appellant Insurance Company.
Point No.02 for determination
According to complainant he has purchased vehicle on 01-05-2012
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whereas according to appellant Insurance Company the complainant has purchased vehicle on 17-08-2011. The complainant/respondent has produced forms 29 and 30 of the vehicle given by previous owner respondent no.2 on 06-05-2012. The Insurance Company has himself issued insurance policy of vehicle in the name of respondent no.2 on 29-12-2012 and has failed to prove that the complainant/respondent has obtained policy in the name of respondent no.2 fraudulently.
In view of above version of complainant is accepted that he has purchased vehicle on 01-05-2012. The District Consumer Forum has also accepted this version of complainant.
The District Consumer Forum has held that after transfer of registration in the name of complainant/respondent, the complainant/respondent has applied for transfer of policy within time prescribed by Section 157(2) of Motor Vehicles Act 1988 and GR-17 of Indian Motor Tariff and has complied with Section 157(2) of the Motor Vehicles Act 1988 as well GR-17 of Indian Motor Tariff.
To judge the above finding recorded by District Consumer Forum reference of Section 157 of the Motor Vehicles Act 1988 as well as GR-17 of Indian Motor Tariff appears relevant.
Section-157 of Motor Vehicles Act reads as follows:-
“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 fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes
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in regard to the fact of transfer in the certificate of insurance and 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.”
GR of Indian Motor Tariff reads as follows:-
“GR-17: Transfers:
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...........
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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 insurance policy, so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance.”
In the case of New India Assurance Company Limited V/s Smt. Sheela Rani and others 1999(1) A.W.C. 100 (S.C.) the Hon’ble Apex Court has placed reliance on the Full Bench judgment of Hon’ble High Court, Andhra Pradesh rendered in the case of Madineni Kondaiah and other V/s Yaseen Fatima and others AIR 1986 AP 62. In this case the Full Bench of Hon’ble High Court, Andhra Pradesh has held that under the Sales of Goods Act the sale is complete on payment of the consideration and delivery of the vehicle, regardless of transfer of registration in the name of the transferee.
In view of proposition laid down by Full Bench of Hon’ble High Court, Andhra Pradesh in above case, it is apparent that transaction of sale is complete on delivery of vehicle and the averment made in complaint clearly shows that respondent/complainant has purchased vehicle in question on 01-05-2012 from respondent no.2. The averment made in complaint itself shows that transfer of vehicle to complainant/respondent was complete on 01-05-2012. Therefore, 14 days period prescribed in Section 157(2) of Motor Vehicles Act 1988 as well as in GR-17 of Indian Motor Tariff shall be counted from the date of purchase of vehicle i.e. 01-05-2012. The view
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taken by District Consumer Forum to the effect that the period of 14 days prescribed in Section-157(2) of Motor Vehicles Act 1988 as well as in GR-17 of Indian Motor Tariff shall be counted from the date of transfer of registration, is erroneous and against law.
Section-157(1) of the Motor Vehicles Act 1988 provides a deemed transfer of insurance policy and liabilities arising therein on transfer of vehicle but Section-157 of Motor Vehicles Act 1988 is applicable only in respect of transfer of insurance policy relating to third person. In the above case of Madineni Kondaiah and other V/s Yaseen Fatima and others (supra) Full Bench of Hon’ble High Court, Andhra Pradesh has held that notwithstanding the non-transfer of the insurance policy, the liability qua third party subsists in view of Sections 94 and 95 of old Motor Vehicles Act.
In the case of Complete Insulations (P) Limited V/s New India Assurance Company Limited reported in I(1996) 1 SCC 221 the Hon’ble Apex Court has held as under:-
“If the policy of Insurance covers the risk as well e.g. damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and transferee, the former undertaking to cover the risk or damage to the vehicle. 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. The view taken by the National Commission is therefore, correct.”
The proposition laid down by Hon’ble Apex Court in the case of Complete Insulation (P) Limited (supra) has been followed by Hon’ble National Commission in its judgment dated 14-02-2014 rendered in Revision Petition No. 2355/2012 Sandeep Gupta V/s United India Insurance Company Limited.
In view of judicial pronouncements of Hon’ble Apex Court rendered in the case of New India Assurance Company Limited V/s Smt. Sheela Rani and others (supra) and Complete Insulation (P) Limited V/s New India Assurance Company Limited (supra) as well as judicial pronouncement of
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Full Bench of Hon’ble High Court, Andhra Pradesh rendered in the case of Madineni Kondaiah and others V/s Yaseen Fatima and others (supra), it is apparent that provision of deemed transfer of insurance policy enacted in Section-157 of Motor Vehicles Act is applicable only to the extent of third party liability.
Indisputably theft of vehicle in question has taken place in the intervening night of 20/21-07-2012 whereas transfer of vehicle has taken place on 01-05-2012 but till incident of theft respondent/complainant had not applied for transfer of insurance policy in terms of transfer of vehicle. Therefore, in view of proposition laid down by Hon’ble Apex Court as well as Full Bench of Hon’ble High Court, Andhra Pradesh in above cases we are of the view that appellant Insurance Company is not liable to make payment to complainant/respondent in terms of policy in question issued in the name of previous owner of the vehicle respondent no.2.
The facts of the case are similar to the facts of the case decided by Hon’ble National Commission on 20-05-2014 in Revision Petition No. 1816/2014 Didar Singh and another V/s Reliance General Insurance Company Limited wherein Hon’ble National Commission has placed reliance on its earlier judgment rendered in the case of Om Prakash Sharma V/s National Insurance Company Limited and others, 2009(1) CLT-29 (NC).
In the case of Om Prakash Sharma V/s National Insurance Company Limited (supra) the Hon’ble National Commission has observed in para 3 as follows:-
“As by the time the car met with accident the petitioner had not even applied for transfer of policy in his favour, he had no locus standi to file the complaint. Repudiation of claim by the insurance company cannot be termed as deficiency in service.”
In view of discussion made above, after having gone through the whole facts and evidence on record, we are of the view that respondent/complainant has not complied with Section 157(2) of the Motor Vehicles Act 1988 as well as GR-17 of Indian Motor Tariff and has not moved application for transfer of policy in terms of transfer of vehicle
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within time prescribed. Point no.2 for determination is decided in affirmative in favour of appellant Insurance Company.
In view of proposition laid down by Hon’ble Apex Court and Full Bench of Hon’ble High Court, Andhra Pradesh as well as Hon’ble National Commission, the complainant/respondent is not entitled to claim benefit of insurance policy in question. The appellant Insurance Company has rightly declined claim of respondent/complainant.
Point No.03 for determination
In view of conclusion drawn by this Commission in determination of point no.2 we are of the view that the judgment and order passed by District Consumer Forum is erroneous. The appeal is liable to be allowed. The impugned judgment and order should be set aside and the complaint should be dismissed with cost.
ORDER
The appeal is allowed. The impugned judgment and order passed by District Consumer Forum dated 10-03-2015 is set aside and the complaint moved by respondent/complainant before District Consumer Forum is dismissed with cost of Rs.10,000/-.
The amount deposited by appellant Insurance Company under Section-15 of the Consumer Protection Act 1986 in this appeal shall be refunded to the appellant Oriental Insurance Company Limited alongwith interest accrued, if any, in accordance with law.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A. H KHAN )
PRESIDENT
( SMT. BAL KUMARI )
MEMBER
( U. S. AWASTHI )
MEMBER
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