D.o.F: 27/7/09
D.o.O: 31/8/10
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO. 171/09
Dated this, the 31st day of August 2010
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.P.P.SYAMALADEVI : MEMBER
Abdul Hameed.P.M
S/o Muhammed Haji,
R/at Kandathil House, Poochakkad,
Po.Keekan, Hosdurg,Kasaragod as the agent : Complainant
Of Shameer Koolikkad, H.No.11/296, M.A.House,
South Chithari, Chithari.Po,Kasaragod.
(Adv.Benny Jose,Kasaragod)
1.Manager, Customer Service,
ICICI Lombard General Insurance CoLtd
Maximus Commercial Complex,C-22 2nd floor,
2 HH road,Opp.KMC,Mangalore-575001.
2. Authorized Signatory,
ICICI Lombard General Insurance CoLtd ,
Zenith house,corporate office,
Kashorao Khader Marg, Mahalxmi Mumbai- 400034.: Opposite parties
3. Abdul Shameer, SS com. Ist floor,
City centre, Bank Road,kasaragod(Exparte)
4. Anoop, ICICI Lombard Executive,
City centre, Bank Road,kasaragod
(Ops 1,2 &4 by Adv.S.Mammu, Thaliparamba)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The salient facts of the case that are necessary to settle this consumer dispute is recapitulated here with relative brevity. Complainant Abdul Hameed is styled himself as the power of attorney holder of Shameer Koolikkad has filed this complaint claiming damages of ` 1,27,704/- with a compensation of ` 50,000/- from opposite parties due to the repudiation of his own damage claim. The claim was preferred on account of the damage caused to the Hyundai Accent car bearing Reg.No.KL-14/E 8130 that was duly insured with Ist opposite party . The complainant incurred a sum of ` 127704/- towards its repair charges. But on submission of the claim for own damages Ist opposite party repudiated the claim as per the letter dtd.7/3/09 stating that the complainant Shameer Koolikkad had no insurable interest at the time of loss. Therefore, complaint alleging deficiency in service on the part of opposite parties.
2. Though notice was sent to all opposite parties by registered post, 3rd opposite party remained absent inspite of receipt of notice. Hence 3rd opposite party had to be set exparte. Opposite parties 1,2 & 4 filed version.
3. According to opposite parties 1,2 and 4 the vehicle was having a valid insurance coverage at the time of accident. But the complainant Abdul Hameed was the defacto owner of the above vehicle and he purchased the vehicle from a 3rd party to whom the insured sold the vehicle one year back from the date of alleged incident. There is no privity of contract with the complaint with the opposite parties. At the time of accident the vehicle was in the custody ownership and in absolute possession of the complainant. The claim is repudiated since there is no insurable interest for the complainant on the vehicle and it was transferred by the insured to a third party without intimating to the opposite parties and the complainant purchased the above vehicle from a third party and as such the opposite parties have no privity of contract with the complainant. The complainant is not entitled for the total amount of ` 1,27,704/- being the cost of repair and the indemnity and assessment of the loss is subject to the terms and conditions of policy and deductions. The complainant has no locus standi to prefer the complaint since he is not legally and validly authorized to file this complaint. Therefore, the complaint is liable to be dismissed.
4. Complainant Abdul Hameed filed affidavit as PW1 in support of his claim. Exts.A1 to A3 marked on his side. On the side of opposite parties Pramod Ravinder legal Manager of Ist opposite party filed affidavit in support of their contention. No exhibits marked on the side of opposite party. Both sides heard and document perused.
5. Ext.A1 is the claim repudiation letter dt.7/3/09 issued by Ist opposite party to Shameer Koolikkad. In that it is stated that the claim is repudiated since he had no insurable interest on the vehicle at the time of loss. Ext.A2 is the bills for the purchase of spare parts and labour charges towards the repair of the vehicle for a total sum of ` 127704/-. Ext.A3 is the copy of certificate cum policy issued by Ist opposite party to Shameer Koolikkad.
6. According to opposite parties the complainant Abdul Hameed himself was the defacto owner of the vehicle at the time of accident and he was in absolute ownership control and possession over the vehicle at the time of accident and Shameer Koolikkad did not possess any insurable interest at the time of accident.
7. Now the issue to be settled in this case is whether the complainant Abdul Hameed himself can claim damages from opposite parties in view of the statement of the opposite parties that he himself is the defacto owner of the vehicle at the time of accident and whether opposite parties are liable to indemnify the damage caused to the vehicle in pursuance of the certificate of insurance cum policy issued in the name of Shameer Koolikkad.
8. Sri.S.Mammoo the learned counsel for opposite parties Nos. 1,2,&4 vehementally argued and tried to establish that Shameer Koolikkad in whose name the certificate of policy still stands has already transferred his vehicle a third party and Abdul Hameed, the complainant is the defacto owner. We accept the to contention of Sri.Mammoo that Abdul Hameed the present complainant herein is the defacto owner of the vehicle at the time of accident. Therefore, Sri.Abdul Hameed is entitled to get his loss indemnified on account of the loss sustained to his vehicle. In view of Sub section 1&2 of Sec.157 of the Motor Vehicles Act 1988
9. 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.
10. 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.
11. 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.
12. 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 :-
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:
13. Sec.157 (1) of the Motor Vehicles Act has also undergone an amendment, may be because of the inconvenience faced during its operation due to the frequent transfer of vehicles and consequential denial of insurance claims by the insurer. Therefore an explanatory note was added to Sec.157 (1) by way of amendment. The inserted 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)
14. On a plain reading of this explanation added to sub section 1 of Sec.157 of Motor Vehicles Act as per the amendment, itself 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.
15. 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 remaining to be transferred . Therefore, it is necessary to explain the matter a little further.
16. As per the instructions of Tariff Advisory Committee of the insurance sector there are two kind 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.
17. 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.
18. Further another aspect to be noted here is that there are no other chapters or sectors of Motor Vehicles Act 1988 deals with the transfer of certificate of insurance. Therefore, naturally the legislature without considering the head note, frame work and limitations of Chapter XI may have introduced the amendment to that section. It is pertinent to note that when the amendment was 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 or limited to third party claims alone.
19. That apart, if the said amendment added by way of explanation for the removal of doubts does not donate anything to the applicability of the section 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 intended by the legislature was 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.
20. 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".
21. 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.
22. 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.
23. 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
24. 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 of Collins M.R in Bushel v Hemmond 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”.
25. 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.
26. 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 favour of the transferee. The same was in tune with the amendment brought to sub section(1) of Sec157The said regulation is part of the Indian Motor Tariff Regulation 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/malus already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/malus 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.
27. But the matters went upside down when the Hon’ble Apex Court in the Complete Insulations’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. Therefore the Insurance companies also take a somersault and accordingly in the present India Motor Tariff which came into effect on 01/07/2002 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.”
28. 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.
29. Therefore, it is vivid 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.
30. Relief & Costs:
Ext.A2 is the bills of purchase of spare parts and labour charges. As per the bills complainant had incurred a sum of ` 127704/-. But opposite parties have not produced any survey report assessing the damages caused to the vehicle subject to the terms and conditions of policy. Therefore, we have no other way except to fix the damages on our own accord. The car was manufactured in the year 2005. Therefore opposite party is entitled to deduct certain sums from the total cost of repair ie. ` 127704/- in view of the terms and conditions and limitations of policy. We therefore fix a global sum of ` 90,000/- that the complainant is entitled towards damages after the deductions.
Therefore, the complaint is allowed and opposite parties are directed to pay a sum of ` 90,000/- with interest @ 9% per annum from the date of complaint till payment together with a cost of ` 3000/- to complainant Abdul Hameed. Time for payment is limited to 30 days from the date of receipt of copy of order. Failing which opposite parties shall be liable to pay interest @12% for ` 90,000/- from the date of complaint till payment.
MEMBER MEMBER PRESIDENT
Exts:A1-7/3/09- Letter from OP.1
A2-Credit invoice
A3-copy of certificate cum policy schedule
DW1- Pramod Ravindir -witness of ops
MEMBER MEMBER PRESIDENT
Date of filing : 27-07-2009
Date of order : 23-05-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 171/09
Dated this, the 23rd day of May 2012
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
Abdul Hameed.P.M } Complainant
S/o Muhammed Haji,
R/at Kandathil House, Poochakkad,
Po.Keekan, Hosdurg,Kasaragod as the agent
of Shameer Koolikkad, H.No.11/296, M.A.House,
South Chithari, Chithari.Po,Kasaragod.
(Adv.Benny Jose,Kasaragod)
1.Manager, Customer Service, } Opposite parties
ICICI Lombard General Insurance Co.Ltd
Maximus Commercial Complex,C-22 2nd floor,
2 HH road,Opp.KMC,Mangalore-575001.
2. Authorized Signatory,
ICICI Lombard General Insurance CoLtd ,
Zenith house,corporate office,
Kashorao Khader Marg, Mahalaxmi Mumbai- 400034
(Ops 1 & 2.Adv. Ashok Kumar.AC, Kasaragod)
3. Abdul Shameer, SS com. Ist floor,
City centre, Bank Road,kasaragod(Exparte)
4. Anoop, ICICI Lombard Executive,
City centre, Bank Road,kasaragod
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
This complaint is again came up for our consideration in view of the judgment of the Hon’ble State Commission in Appeal No.90/2011. As per the said judgment the Hon’ble State Commission remanded the complaint back to the Forum giving opportunity to the parties to adduce further evidence in support of their respective pleadings in the case.
2. Accordingly the matter was again taken up and notices were issued to both parties. Both sides appeared and argued the matter and detail.
Factual matrix of the complaint is as follows:
Sri. Shameer Koolikkad filed this complaint through Abdul Hameed claiming to be his PA Holder for damages to the tune of `1,27,704/- caused to his vehicle due to an accident The claim was submitted before the opposite party for the loss indemnified due to the accident caused to his Hyundai Accent Car bearing Reg.No.KL-14/E 8130. But the 1st opposite party repudiated the claim stating that complainant Shameer Koolikkad had no insurable interest on the vehicle at the time of accident. Hence the complaint.
3. According to opposite parties 1, 2 and 4 the vehicle was having a valid insurance coverage at the time of accident. But Sri. Abdul Hameed was the defacto owner of the above vehicle as he purchased the vehicle from a 3rd party to whom the insured sold the vehicle one year back from the date of alleged accident and there is no privity of contract with the complainant and opposite parties and at the time of accident the vehicle was in the custody, ownership and in absolute possession of Abdul Hameed. The claim is repudiated since there is no insurable interest for the complainant on the vehicle and it was transferred by the insured to a third party without intimating the opposite parties and the complainant purchased the above vehicle from a third party and as such the opposite parties have no privity of contract with the complainant and he is not entitled for the total amount of `1,27,704/- being the cost of repair and the indemnity and assessment of the loss is subject to the terms and conditions of policy deductions. The complainant has no locus standi to prefer the complaint since his is not legally and validly authorized to file this complaint. Therefore the complaint is liable to be dismissed.
4. Sri.Abdul Hameed filed affidavit in the capacity of Power of Attorney Holder of Shameer Koolikkad in the earlier proceedings and Exts A1 to A3 marked on his side. On the side of opposite parties Sri. Pramod Ravinder, Legal Manager of Ist opposite party filed affidavit in support of their contention prior to the remand of the case back.
5. Subsequently after remanding the case back to Forum the counsel for the complainant produced the copy of the RC of the vehicle bearing Reg.No.KL.14/E 8130 and the Power of Attorney executed by Sameer Koolikkad in favour of Abdul Hameed attested by the consulate General of India on 9-1-2011. These documents are marked as Exts A4 & A5 respectively.
6. No documents produced on the side of opposite parties even after remitting the case back.
7. Before entering in to the conclusion it is necessary to look into the observation of the Hon’ble State Commission in its judgment as per that the case is remanded.
8. Paragraph 3 of the judgment of State Commission is reproduced below.
“Admittedly, the vehicle bearing registration No.KL-14 E 8130 was insured with the opposite party/ICICI Lombard General Insurance Company Limited. There is no dispute that Mr. Shameer Koolikkad was the registered owner and insured of the vehicle, at the time of taking the insurance policy for the said vehicle. The appellants have got a case that Shameer Koolikkad had transferred his right over the vehicle one year prior to the taking of the policy. But the appellants have not adduced any evidence to substantiate their case regarding the transfer of the vehicle by the insured Shameer Koolikkad to a 3rd party. The appellants have also failed to adduce evidence in support of their contention that the present complainant, Abdul Hameed is the defacto owner of the insured vehicle. It is to be noted that the appellant/opposite party, ICICI Lombard General Insurance Company Limited had the bounden duty to verify the vehicular documents and to ascertain the fact as to whether Shameer Koolikkad is having any insurable interest in the insured vehicle on the date of taking the insurance policy. The issuance of the policy in the name of Shameer Koolikkad is an admitted fact. So, it can only be presumed that Shameer Koolikkad was having the insurable interest in the vehicle on the date of the policy. Thereby the appellant/opposite party, ICICI Lombard General Insurance Company Limited being the insurer of the vehicle is bound to indemnify the insured with respect to the damage caused to the insured vehicle”.
9. From the above finding of the Hon’ble State Commission it is clear that Shameer Koolikkad the complainant herein has got insurable interest in the vehicle on the date of accident.
10. The Hon’ble State Commission further found that Abdul Hameed was not having any authorization to represent the insured Shameer Koolikkad and therefore the Hon’ble Commission remanded the case back to give an opportunity to produce authorization or power of attorney holder said to have been executed by the insured Shameer Koolikkad.
11. Similarly opposite parties had agitated before the Hon’ble State Commission that Shameer Koolikkad had no insurable interest on the insured vehicle KL-14 E 8130 on the date of accident as the date of accident is not mentioned in the complaint or in the affidavit filed in lieu of examination-in-chief. It is their further contention that the Registration Certificate of the vehicle is also not produced to prove the case. It is their definite case before the Hon’ble State Commission that Shameer Koolikkad transferred his interest in the vehicle to the present complainant Abdul Hameed and that the insured was not having any sort of right over the vehicle on the date of accident.
12. Considering the above contentions the Hon’ble State Commission also given an opportunity to opposite parties to adduce further evidence in support of their contention regarding the transfer of the vehicle and that the insured Shameer Koolikkad had no insurable interest on the date of accident.
After remand, when the matter is again taken up the complainant produced the Power of Attorney executed by Shameer Koolikkad in favour of the Abdul Hameed authorizing him to conduct the case before the Forum on his behalf and the matters related to the said purpose. The said Power of Attorney is marked as Ext.A5. Complainant also produced the copy of the Registration Certificate of the Hyundai Accent car bearing Reg.No.KL-14/E 8130. It is marked as Ext.A4.
13. Ext.A4 shows that the vehicle Hyundai Accent CRDI car bearing Reg.No.KL-14/E 8130 still stands in the name of Shameer Koolikkad and it is not transferred.
14. With respect to Ext.A5 the learned counsel for opposite parties Shri.A.C.Ashokumar made a fervent plea that the Power of Attorney is executed only in Oct.2011 and attested by the Consulate General of India on 9-12-2011 and that is much after the date of filing the complaint in 2009. Therefore the said Power of Attorney cannot be considered as a proper Power of Attorney. But the said contention is not acceptable. The recitals of the Power of Attorney executed Shameer Koolikkad shows that he instructed Abdul Hameed to file a complaint before the Forum as his agent against the insurer of his vehicle. So it cannot be considered that at the time of institution of the complainant Sri. Abdul Hameed was not authorized to file the complaint eventhough no written authorization or power of attorney was produced along with the complaint.
15. As against the above documents produced to prove that the insurable interest still vests with the complainant, Shameer Koolikkad and he has not transferred his vehicle to any one, the opposite parties has not adduced any contra evidence even after remitting the case giving them opportunity to substantiate their contention or negate the evidence of complainant. So from the evidence adduced by the parties, it is clear that at the time of accident the vehicle as well as the policy of insurance was in the name of Shameer Koolikkad, the complainant herein and the Ext.A5 Power of Attorney executed by him in favour of his agent proves that Abdul Hameed is duly authorized to file the complaint and conduct the case.
16. Relief and Costs.
Ext.A2 is the bills of purchase of spare parts and labour charges. As per the bills complainant had incurred a sum of `127704/-. But opposite parties have not produced any survey report assessing the damages caused to the vehicle subject to the terms and conditions of policy. Therefore, we have no other way except to fix the damages on our own accord. The car was manufactured in the year 2005. Therefore opposite party is entitled to deduct certain sums from the total cost of repair ie. `127704/- in view of the terms and conditions and limitations of policy. We therefore fix a global sum of `90,000/-that the complainant is entitled towards damages after the deductions.
Therefore, the complaint is allowed and opposite parties are directed to pay a sum of `90,000/- with interest @ 9% per annum from the date of complaint till payment together with a cost of `3,000/- to complainant Abdul Hameed. Time for payment is limited to 30 days from the date of receipt of copy of order. Failing which opposite parties shall be liable to pay interest @12% for `90,000/- from the date of complaint till payment.
MEMBER MEMBER PRESIDENT
Exts:
A1-7-3-09- Letter from OP.1
A2-Credit invoice
A3-copy of certificate cum policy schedule
A4. Photocopy of RC. KL.14 E 8130
A5. Special Power of Attorney
PW1 Abdul Hameed
DW1- Pramod Ravindir -witness of ops
MEMBER MEMBER PRESIDENT
Pj/
