D.o.F:05/7/11
D.o.O:7/6/12
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.163/2011
Dated this, the 7th day of June 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.RAMADEVI.P : MEMBER
SMT.BEENA.K.G : MEMBER
Vijayan.M,
Pournami , Aingoth,
Po.Padannakkad, Kanhangad : Complainant
Kasaragod. Dt.
(Adv.N.P.Ravindran,Hosdurg)
The Manager,
Bajaj Allianz General Insurance Co.Ltd,
403&404, IV th Floor,Crystal Arc Building, : Opposite party
Balmatta Road, Mangalore 575001.
(Adv.S.Mammu,Taliparamba)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The question which requires to be settled in this complaint is whether it is necessary to transfer the certificate of insurance and the policy described in the schedule in the name of transferee in whose name the vehicle is transferred for claiming compensation for the damages sustained to the vehicle?
2. Our answer is in negative. It is not necessary to transfer the certificate of insurance and the policy described in the schedule in the name of transferee in whose name the vehicle is transferred for claiming the damages sustained to his vehicle since insurable interest automatically transferred in the name of transferee in view of the amendment to the Motor Vehicles Act which came in to effect on 14/11/1994.
3. The case of the complainant Vijayan is that he became the owner of Ford Figo LMV Motor Car bearing Reg.No. KL-14/J5467 w.e.f 17/5/11. The said car was owned by one Gopalakrishna Rao. The vehicle is having full cover comprehensive insurance policy issued by the opposite party for the period from25/6/2010 to 24/6/2011. While so, before transferring the certificate of insurance with the policy attached there to in the name of complainant, it met with an accident on 9/6/2011 as it is hit by a passenger stage carriage bus bearing Reg.No. KA 19B4633 coming from the opposite side. Due to the impact of the head-on collision the car was totally damaged. Thereafter the complainant preferred a claim before the insurer on 13/6/2011. But the opposite party repudiated his claim on 16/6/2011 with the following observation in repudiation letter.
“ On scrutiny of documents submitted by your good self it is observed that at the time of accident the insurance policy is in the name of Mr.Gopaakrishna Rao where as the Registration Book of the vehicle is in your name.
Please note that as per All India Motor Tariff formulated by IRDA there should be existence of insurance interest at the time of taking policy as well as at the time of loss, in this claim there was no contract of insurance at the time of accident. In this circumstances, we are not liable under the policy terms and condition in respect of the above loss, hence the claim is not admissible.”
Against this rejection complainant filed this complaint alleging deficiency in service on the side of opposite party.
4. According to opposite party the vehicle was insured with them vide policy No.0G-11-1702-1801-00000854 in the name of Gopalakrishna Rao. It’s IDV was Rs.509318/-. But the transfer of the vehicle in the name of complainant was not informed to the opposite party prior to the alleged accident. The complainant did not take any steps to transfer the policy in his name by paying mandatory premium of Rs.50/- as required for the transfer of policy. Hence there is no insurable interest with the complainant to the opposite party. Therefore the claim is repudiated. Hence there is no deficiency in service on their part and the complaint is liable to be dismissed.
5. Complainant filed proof affidavit in lieu of examination –in-chief and Exts.A1 to A12 and Ext.C1 Expert Report and Ext.C2 photographs of the damaged vehicle marked . Opposite party has not adduced any evidence.
6. The sole question that is to be determined is whether the insurable interest of the transferor will automatically transferred in the name of transferee in view of the amendment to sub Sec (1) of Sec 157 of the Motor Vehicles Act in 1994 or is it mandatory to comply the procedure laid down in General Regulation (G.R)-17 of IM tariff to transfer the certificate of insurance and policy of insurance in the name of transferee to have insurable interest over the vehicles?
7. The learned counsel for opposite party relying on a number of decisions of the Hon’ble National Consumer Disputes Redressal Commission has vehemently argued that since the complainant did not comply the procedure for transfer of certificate of insurance and policy of insurance in his name from the name of transferor as mandated in GR-17(General Regulation 17) or IMT( India Motor Tariff) which came into effect from 30/6/2002 he has no insurable interest over the vehicle at the relevant time of accident and hence opposite party is not liable to honor the claim.
8. It is to be noted that the Hon’ble National Commission has rendered all the above judgments relying on the decision of the Hon’ble Apex Court in the case of Complete Insulation (PVT) Ltd vs. New India Assurance Co.Ltd. But with due respect to all the judgments of the Hon”ble National Commission we are of the view that the contention of the opposite party is not sustainable. The complainant is entitled to get his loss indemnified by the opposite party and therefore he deserves an order in his favor in view of Sec 157(1) of the Motor Vehicles Act 1989 as amended up to date . In this case it is evident that the vehicle is transferred in the name of complainant w.e.f 17/05-2011 and the accident was occurred on 9/6/11. So if Sec 157(1) of the Motor Vehicles Act as amended in 1994 is applied then it has to be considered that the certificate of insurance and the policy described in the certificate shall be deemed to have transferred in favor of the transferee i.e. the complainant w.e.f the date of transfer i.e. 17/5/2011 itself. Hence there is no iota of doubt that the complainant is entitled for the relief claimed.
9. According to the learned counsel for opposite party in view of Sec.157 (2) of the Motor Vehicles Act the transferee (here the complainant) ought to have get the certificate of insurance and the policy described in the certificate there to transferred in his name within 14 days from the date of transfer of the vehicle to claim the benefits as per Sec. 157 (1) of the Act.
10. On a close perusal of 157(1) and 157(2) of the M.V.Act it is vivid that now there is no requirement of applying to the insurer for transfer of the policy and it gets transferred to the transferee by operation of law. Even though Sec.157(2) of the Act gives 14 days time from the date of transfer to the transferee to make an application to the insurer for making necessary changes in regard to the effect of transfer in the certificate of insurance and the policy described in the certificate in his favor , the liability of the insurer cannot be absolved even if such transfer is not consequently effected by it since Sec.157(2) specifically says that the insurer shall make necessary changes in the certificate and in the policy of insurance with respect to the transfer of insurance when such application is made. Sub section 2 of Sec.157 of the M.V.Act provides only a procedure to intimate fact of transfer of vehicle to the insurer in order to make necessary changes in the certificate of insurance and the policy to bring it in conformity with the deemed transfer as contemplated U/s 157(1) of the Act for the purpose of indemnifying the transferee relating to the risk covered under the policy and that non compliance with this procedure does not automatically invalidate the deemed transfer that had taken place by virtue of the operation of law as contemplated U/s 157(1) of the M.V.Act.
11. Now the moot question that poses is whether the deemed transfer provision under sub section (1) sec.157 can be extended to the damages caused to the vehicle of the insured himself i.e., for own damages. The Hon’ble Supreme Court in the case of Complete Insulations (P) Ltd vs. New India Assurance Co.Ltd reported in I (1996) CPJ 1(SC) has held that the transferee is not entitled to be indemnified by the insurer without the insurance policy being transferred in his name since Sec.157 (1) of the Act is applicable in respect of third party only and if the policy of insurance covers other risks as well as damages caused to the vehicle of insured himself that would be a matter falling out side chapter XI of the Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle.
12. But the Hon’ble Supreme Court has rendered the aforesaid judgment by applying the unamended sub section (1) of Sec.157 of Motor Vehicle Act 1988. For a better understanding of the issue, it would be profitable to extract the relevant unamended section.
Sec.157(1) Transfer of Certificate of Insurance (1) Where a person in whose favor 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 there to the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favor of the person to whom the motor vehicle is transferred with effect from the date of its transfer.
The Motor Vehicles Act 1988 came in force w.e.f 1/7/1989 has undergone a large number of amendments in the year 1994.
13. Before proceeding further with the matter it will be in the fitness of things if a reference is made to the objects and reasons which were taken into note by the legislature when Amending Act No. 54 of 1994 was introduced and passed by it were as under :-
1) Prefatory Note: - statement of objects and Reasons to Amending Act 54 of 1994- The Motor Vehicles Act 1988(59 of 1988) consolidated and rationalized various laws regulating transport. The act came into force with effect from 1/7/1989 replacing Motor Vehicles Act 1938.
2) After coming into force of the Motor Vehicles Act 1988, Government received a number of representations and suggestions from the state Government, transport operators and members of public regarding the inconvenience faced by them because of the operations of some of the provisions of the Act 1988. A Review Committee was, therefore constituted by the government in March 1990 to examine and review the Act 1988.
3) The recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agree with these recommendations. Government also considered a large number of representations received after finalization of the Report of the Review Committee, from the transport operators and public for making amendments in the Act. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development counsel for seeking their views in the matter. The important suggestions made by the Transport Development council relate to are on account of:-
(a) The introduction of newer type of vehicles and fast increasing number of both commercial and personal vehicles in the country.
(b) Providing adequate compensation to victims of road accidents without going into long drawn procedure,
© protecting consumers interests in transport sector:
(d) Concerns for road safety standards transport hazardous chemicals and pollution control:
(e) Delegation of greater powers to state transport authorities and rationalizing the role of police authorities in certain matters:
(f) The simplification of procedures and policy liberalization in the field of transport:
(g) Enhancing penalties for the traffic offenders:
4) Therefore the proposed legislators have been prepared in the light of the above background. The Bill, inter alia provides for:-
(a) Modification and amplification of certain definitions of new type vehicles:
(b) Simplification of procedure for the grant of driving licenses;
(c) Putting restrictions on the alteration of vehicles:
(d) Certain exemptions for vehicles running on non- polluting fuels:
(e) Ceilings on individuals or company holdings removed to curb benami holdings:
(f) State authorized to appoint one or more State Transport Appellate Tribunals.
(g) Punitive checks on the use of such components that do not conform to the prescribed standards by manufacturers and also stocking/sale by the traders:
(h) increase in the amount of compensation to the victims of hit and run cases:
(i) removal of time –limit for filing of application by road accident victims for compensation
(j) punishment in case of certain offences made stringent:
(k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income. Which is more liberal and rational?
5. The Law commission in its 119th Report had recommended that every application for a claim be made to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, at the option of the claimant. The Bill also makes necessary provision to give effect the said recommendation.
6. The Bill seeks to achieve the above objectives:
14. Sec.157 (1) of the Motor Vehicles Act has also undergone an amendment, because of the inconvenience faced during its operation due to the frequent transfer of motor vehicles without transferring the insurance policies and the consequential denial of own damage insurance claims by the insurer. Therefore an explanatory note was added to Sec.157 (1) of the Act by way of amendment. The added explanation is reproduced below:
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.(emphasis supplied)
15. On a plain reading of this explanation added to sub section 1 of Sec.157 of Motor Vehicles Act as per the amendment for the removal of doubts it is apparent that after the amendment, not only the liabilities mentioned in the certificate of insurance and policy of insurance relating thereto but the ‘rights’ vested with the transferor of the vehicle as per the certificate of insurance and the policy relating there to shall also deemed to have transferred in the name of transferee.
16. If the ‘rights ‘and ‘liabilities’ described in the certificate of insurance and the policy relating there to is deemed to have transferred in the name of transferee, then what is there further remaining to be transferred ? Therefore, it is necessary to explain the matter a little further.
17. As per the instructions of Tariff Advisory Committee of the insurance sector there are two kinds of policies. They are ‘package policies’ and ‘third party policies’. In case of third party policies, the owner of a vehicle has no rights but only liabilities. That is why a third party policy is known as ‘liability only policy.’ The rights are included only in package or comprehensive policies. So by way of this amendment it is evident that transferee will get the absolute transfer of the certificate of insurance and policy relating there to in his name from the date of transfer of the ownership of the vehicle and not only the liability part or the third party risk portion of the policy alone.
18. Moreover, what is ‘liability’ is defined U/S 145(c) of the Motor Vehicles Act. But neither under Sec.145 nor any other sections of Motor Vehicles Act defines ‘rights’. Then what are the rights deemed to have transferred as per the certificate or policy of insurance by way of amending Act shall be gathered from the context of the certificate of Insurance and the policy of insurance. No doubt in package policies alone the insured enjoys rights against his insurer for getting his loses indemnified to the vehicle.
19. Further another important aspect to be noted here is that there are no other chapters or sections of Motor Vehicles Act 1988 deals with the transfer of certificate of insurance. Therefore, the legislature without considering the head note, frame work and limitations of Chapter XI has introduced the amendment to that section. It is pertinent to note that when the amendment has been brought to sub-section (1) of Sec.157 as per amending Act 1994 there were no judicial pronouncements of Hon’ble Supreme Court declaring that Chapter XI of Motor Vehicles Act is confined to third party claims alone. Moreover other amendments brought to other sections of Chapter XI of Motor Vehicles Act are also not confined to third party alone. For example Sec.147(1)(b) is amended by which the owner of the goods or his authorized representative carried in the goods vehicle is also brought within the purview of Chapter XI even though he is not a third party! Prior to amendment the owner of goods or his authorized representative was not entitled for compensation arising out of the accident caused to the vehicle since he was not considered as third party .
20. Moreover if the aforesaid amendment added by way of explanation for the removal of doubts after discussions at various committees does not donate anything to the scope of the section or remove any doubt then it has to be regarded that the legislature has done a futile exercise by this amendment. That would never have been the intention of the legislature. Hence on analyzing the amendment to sub section 1 of Sec.157 of the Motor Vehicles Act in the back ground of its objects purposes and reasons it is clear that what is aimed by the legislature is the absolute transfer of the certificate of insurance and policy relating there to and therefore the court has to choose that interpretation which represents the true intention of the legislature.
21. The Hon’ble Supreme Court in the case of Kehar Singh v. State (Delhi Admn.) AIR 1988 (SC 1883), it has held:
"During the last several years, the ’golden rule’ has been given a go by. We now look for the ’intention’ of the legislature or the ’purpose’ of the statute. First we examine the words of the statute. If the words are precise and cover the situation on hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischief’s which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences".
22. Further the Hon’ble Supreme Court in the case of National Insurance Co.Ltd vs. Laxmi Narain Dhut reported in 2007 CTJ 445 (SC) has held as below.
A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one’s thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
23. It is settled that law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The question of interpretation comes only when the provisions of legislative enactment are either not clear ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments, are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court on this point. The Hon’ble Supreme Court in the case of State of UP & others vs Jeet.S Bisht & Anr reported in 2007 (6) SCC 586 has specifically held that court cannot add or substitute a word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said judgment that a mere direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
24. The Hon’ble Supreme Court in the case of Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd & Ors…… has held:
It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, sections by sections and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity or inconsistency there in and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.”
True meaning of a provision of law has to be determined on the basis of what provides by its clear language with due regard to the scheme of law…’
It is also will settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it.
25. It is true that Sec.157 of the Motor Vehicles Act coming under Chapter XI which bears the head note ‘ Insurance of Motor Vehicles against Third Party Risks’. But it has to be taken note that even before the interpretation of the Hon’ble Apex Court in the case of Complete Insulations(P) Ltd vs. New India Assurance Co.Ltd that Chapter XI of Motor Vehicles Act is applicable to third party claims only the amending Act 50 of 1994 was come in to force. and the Hon’ble Apex Court has rendered the said judgment without looking to that amendment. But only because of the fact that Sec.157 comes under Chapter XI of the Act which bears the head note ‘liability of insurer against third party risks’ a blanket ignorance of the application of the amended section by adhering on the words of the head note would amounts to denial of a legitimate right guaranteed by the statute. The head note shall not be allowed to control the operation of law laid down by the legislature
26. In this regard it is worth look in to the view of the Hon’ble Apex Court. Hon’ble Supreme Court in the case of K.P.Varghese vs. The Income Tax Officer reported in 1981 AIR 1922 (SC) 1982 SCR (1) 629 has held:
“It is undoubtedly true that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating the drift of the section or to use the words to show what the section is dealing with. It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous but being part of the statute, it prima facie furnished some clue as to the meaning and purpose of the section”.
27. Therefore applying the principles enunciated in the above judgments and also looking into the objects and reasons of the amendment brought to sub section 1 of Sec 157 it is crystal clear that during transfer of ownership of the vehicle the transferee will get absolute transfer of the certificate of insurance and policy relating there to and not only the liability portion alone and therefore the transferee of a vehicle is entitled to get his own damage claim indemnified even if he has not complied the procedure laid down in sub section (2) of Sec.157.
28. The Hon’ble Apex court has rendered the judgment in the case of Complete Insulations(P) Ltd vs. New India Assurance Co.Ltd reported in 1996 CTJ 383 (SC) ( P) (1996) CPJ 1(SC) on 21/11/1995 that is more than one year after the amendment of Motor Vehicles Act in 1994 that came into force on 14/11/1994. But the Hon’ble Apex Court has applied the unamended sub section(1) of Sec.157 of Motor Vehicles Act 1988 while considering the above case since the matter related to that case was occurred immediately after coming into force of the M.V.Act 1988 in place of M.V.Act 1939. As a result what happened is that the said amended piece of beneficial legislation was subject to a precedential tyranny even without a whisper against it in the aforementioned judgment.
29. Another important and interesting aspect is that even the General Insurance Co. has conceived the legislative intention of the amendment to sub section (1) of Sec.157. Therefore, in 1994 itself a circular has been issued by the General Insurance Co. with regard to the transfer of vehicles and the transfer of insurance benefits automatically in favor of the transferee. The same was in conformity with the amendment brought to sub section(1) of Sec157. The said regulation was a part of the Indian Motor Tariff Regulation which reads as under:
Transfers:
On transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner. The bonus/mauls already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/mauls will apply as per the new owner’s entitlement.
If the transferee wants to change the policy in his name, it may be done on getting evidence of sale and a proposal form duly completed. The old certificate of insurance must be surrendered to the insurance company and a new certificate of insurance can be issued by collecting a fee of `15/-. If the old certificate is not surrendered, a declaration is to be taken from the new owner before issuing a new certificate.
30. But the matters turned upside down when the Hon’ble Apex Court in Complete Insulation’s case without looking into the amendment held that Sec.157(1) of the Motor Vehicles Act is applicable to third party claims only and if the policy of insurance covers other risks as well like the damages caused to the vehicle of insured himself that would be a matter falling out side the chapter XI 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 light of this judgment the Insurance companies also took a somersault and accordingly in the present India Motor Tariff which came into effect on 30/06/2002 the new regulation No.17 is inserted that is as follows:
GR.17 Transfers: “ …….. In case of Package policies, transfer of the Own Damage section of the policy in favor of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor. If the transferee is not entitled to the benefit of the No Claim Bonus (NCB) shown on the policy or is entitled to a lesser percentage of NCB than that existing in the policy recovery of the difference between transferee’s entitlement, if any, shown on the policy shall is made before effecting the transfer.
A fresh proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.
Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and fresh proposal from duly filled and signed the old certificate of insurance for the vehicle, is required to be surrendered and a fee of ` 50/- is to be collected for issue of fresh Certificate in the name of the transferee. It for any reason the old certificate of insurance cannot be surrendered; a proper declaration to that effect is to be taken from the transferee before a new certificate of insurance is issued.”
31. But this General Regulation of the India Motor Tariff is at the most can be considered only as a subordinate legislation which has no independent existence when the statute poses a contrary view.
In this regard the Hon’ble Apex court held in the case of Kerala Samsthana Chethu Thozhilali Union vs. State of Kerala & Ors reported in 2006(2) KLT 270 (SC) as follows:-
“ A rule is not only required to be made in conformity with the provisions of the Act where under it is made, but the same must be made in conformity with the provisions of any other Act. A subordinate legislation cannot be violative of any plenary legislation made by Parliament or State Legislature.
32. Therefore, it is manifest that the dictum laid down by the Hon’ble Apex Court in the case of Complete Insulations(P) Ltd vs. New India Assurance Co.Ltd is applicable only to the cases in which the accidents were occurred in between Ist July 1989( the day on which Motor Vehicles Act 1988 is come into effect to till date of amending Act came into force. In the cases of own damage claims arising after the Motor Vehicle amending Act, Act 50 of 1994 came in effect the insurer is liable to make good the loss sustained to the vehicles also irrespective of the non transfer of insurance certificate and policy of insurance in favor of the transferee as contemplated under subsection (2) of Section 157 of the Act.
For the foregoing discussions it can be concluded that opposite parties are liable to honor the claim of complainant and the repudiation of his claim amounts to deficiency in service.
33. Relief & Costs:
According to the complainant due to the accident the vehicle suffered extensive damages amounting to total loss. It is not in dispute that the IDV of the vehicle is Rs.509318/-. It is pertinent to note that the opposite party did not even care to appoint a surveyor or loss assessor to assess the loss sustained to the vehicle though a policy issued by them was in force at the relevant date of accident. Thereby they flagrantly violated the provisions of Insurance Act 1938 also.
Ext.A6 is the estimate prepared by M/s CAUVERY MOTORS (P)LTD for the accidental repair of the vehicle . As per that the amount required for reconstruction of the vehicle including labor charges is Rs.857687.33. Since there is no survey report to ascertain the actual loss sustained to the vehicle an expert Sri.P.P.Krishnakumaran, Asst. Motor Vehicle of Sub-Regional Transport Office Kanhangad is deputed to assess the loss sustained to the vehicle. He inspected the vehicle and assessed the damages with the aid of an insurance surveyor. He filed his report Ext.C1. As per Ext.C1 the expert evaluated the approximate cost of damages as Rs.362000/-.
Since Ext.C1 is the only material document available before us to quantify the damages sustained to the vehicle we accept the said report and in hold that complainant is entitled for that amount.
Therefore, the complaint is allowed and opposite party is directed to pay a sum of Rs.362, 000/-(Rupees three lakh sixty two thousand only) with interest @ 9% per annum from the date of complaint till payment together with a cost of Rs.5000/- to the complainant. Time for payment is limited to 30 days from the date of receipt of copy of order. Failing which opposite party shall be further liable to pay interest @12% for 362000/- from today till payment.
Exts:
A1-copy of RC
A2-Tax receipt
A3- Certificate cum policy schedule
A4- dt.9/6/11-intimation in kannada language
A5- copy of check report cum receipt
A6-Estimation details
A7-photographes of damaged vehicle
A8-photo CD of damaged vehicle
A9-computer print of claim registration
A10-16/6/11- intimation from OP to PW1
A11&A12- tax invoice
C1 Commission report
C2-Photographs produced by the Expert commissioner
PW1- Vijayan.M-complainant
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
