KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.609/2012

JUDGMENT DATED 10/05/2013

(Appeal filed against the order in CC No.230/2010 on the file of CDRF, Malappuram dated, 22/05/2012)

PRESENT:

SMT. A. RADHA                                          :                    MEMBER

SHRI. K. CHANDRADAS NADAR           :           JUDICIAL MEMBER

APPELLANT:

          Bajaj Allianz General Insurance Co. Ltd.,

            GE Plaza, Airport Road,

Yerwada, Pune-411006.

(By Adv: Sri. Sreevaraham G Satheesh)                    

Vs

RESPONDENT:

          Moideenkutty, S/o. Aliyamkutty,

            Nandanil House, Tanaloor,

Tirur Taluk.

JUDGMENT

SMT. A. RADHA : MEMBER

          Appellant is the opposite party in C.C.No.230/10 on the file of CDRF, Malappuram who preferred this appeal.  The Forum below directed the opposite party to pay a sum of Rs.36,943/- with 10% interest per annum along with cost of Rs.2,000/- and this was challenged in appeal.

          2.  The complainant is the registered owner of Bajaj Tempo Trax.  The vehicle was transferred to the name of the complainant by the former owner as on 29/03/2008.  The vehicle was hypothecated to Shriram Transport Finance Co. Ltd.  On 21/01/2009 the vehicle met with an accident and preferred a claim with the opposite party which was repudiated stating the reason that the insured has no insurable interest at the time of accident.  The complainant filed this complaint alleging deficiency in service on the part of opposite party.  The complainant spent Rs.2,07,499/- towards the repairing charges.  He claimed the repairing charges and Rs.50,000/- as compensation for mental agony  and also Rs.10,000/- towards cost of proceedings.

          2.  In the version filed by the opposite party it is contended that the complainant is not a policy holder as such he has no contract of insurance with the opposite party.  It is also contended that the vehicle involved in the accident was used for commercial purpose.  The opposite party denied the relationship of complainant with opposite party as consumer and a service provider and he is not a consumer under the purview of Consumer Protection Act. The vehicle was driven by one Mr. Balakrishnan at the time of accident.  It is admitted that the opposite party had valid insurance for the said vehicle during 30/01/2008 to 29/01/2009.  The transfer of ownership of the vehicle to the complainant was not intimated to the insurer.  On transfer of ownership under GR17 the liability only covers.  The transferee shall apply within 14 days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle.  It is also stated in the version that an unsigned and undated claim form was received by the opposite party’s office with regard to the claim of the vehicle.  A surveyor was appointed to assess the damages and to report.  The assessment made by the surveyor was for an amount of Rs.36,943/-.  The claim was repudiated on the ground that the complainant had no insurable interest.  There is no deficiency in service on the part of opposite party and there is no liability to pay the claim amount to the complainant.

          3.  No oral evidence adduced by both parties and documents were marked as Exbt. A1 to A4 and B1 to B7 along with proof affidavit by the complainant and opposite party respectively.  The Forum below allowed the complaint based on the survey report.

          4.  The argument advanced by the learned counsel for the appellant is that the automatic transfer of policy on transfer of ownership applies to liability only policy and the present claim pertains to own damage claim were there is no automatic transfer as per GIC Circular of 2002 wherein GR17 is incorporated.  He made clear that the India Motor Tariff after 2002 that in package policies the automatic transfer of policy will not take place.    He also pointed that the right to claim own damage of vehicle will not pass on to the purchaser.  The explanation given in GR17 is that since the transfer of ownership is not intimated to the insurer there arise violation of GR17.  A fresh proposal form duly completed is to be obtained from the transferee in respect of both liability only and Package Policies.  He also relied on the reported decision in AIR 1999 SC 1398 in the case of Sri. G. Govindan Vs New India Assurance Co. Ltd. wherein the Hon’ble Supreme Court held that any claim of the transferee in respect of the person or property cannot be enforced against Insurance Company without transfer of policy.  In this case the complainant is not a policy holder and there does not arise any contract of Insurance between the insurer and the complainant at the time of alleged accident as the complainant had not paid any premium.  As no service rendered to the complainant there does not exist any question of having deficiency in service.  Hence the order of the Forum Below is unsustainable and the appeal is to be allowed in favour of the appellant.

          5.  The respondent/complainant appeared in person.  As he was not in a position to argue the case Adv: Sri. K. Radhakrishnan was appointed as amicuscurea.  The complainant’s vehicle met with an accident which was having valid policy at the time of accident.  The counsel pointed that at the time of accident the owner of the vehicle was the complainant.  It is evidenced by Exbt.A1, certificate of registration.  It is also clear from the document that the vehicle was hypothecated to Shriram Transport Finance Company Ltd.  It is also evident that the vehicle transferred to the complainant as early as on 15/07/2008 and paid Rs.3,069/- towards the tax also.  On intimation of the accident a surveyor was deputed by the opposite party and filed the survey report showing the assessment of damages to the tune of Rs.36,943/-.  The claim was repudiated by the opposite party stating that the complainant does not have insurable interest as the policy was not transferred to the name of the complainant.  The repudiation was challenged before the Forum Below and filed the complaint for the expenses incurred for the repairing charges and also for compensation for mental agony.  The complainant was using the vehicle for earning his livelihood by means of self employment which was not proved otherwise by the appellant.  There is no case for the opposite party that the certificate of Insurance was not transferred in the name of complainant.  The respondent claimed only for the damages caused to the vehicle against which the said vehicle was having valid policy and the vehicle already had been transferred to the name of the complainant before the occurrence of the accident.  The appellant was not ready to indemnify the damages sustained to the vehicle though the vehicle was in the name of the complainant. The communications sent to the policy holder was not responded by the policy holder and on that ground also the appellants repudiated the claim.  It is very clear that the vehicle was transferred in the name of the complainant as per the certificate of registration.  So it can be taken into consideration that the said vehicle was having insurance with the appellants and the appellants are obliged to allow the claim amount.

          6.  On hearing both the counsels in detail and on perusing the documents we are of the considered view that complainant is the owner of the vehicle involved in the accident.  It is clear from the evidence brought out by the complainant as Exbt.A1.  The surveyor has no case that it is not the vehicle which was not insured with the opposite party and the survey report was submitted and the damages assessed for Rs.36,943/-.  There is no case that the vehicle is not having valid policy with the appellant.  So also there is no case pleaded or proved by the opposite party that the vehicle is not in the name of the complainant.  It is clear that the complainant has complied the change of ownership proceedings.  It is true the complainant should have changed the name of insured in the Insurance Policy issued by the opposite party.  We would like to point out that the Hon’ble Supreme Court in Sri. G. Govindan Vs New India Assurance Company that claim of the transferee in respect of the person or property cannot by enforced against Insurance Company without transfer of policy.  In this case there exists a valid Insurance Policy for the vehicle involved in the accident.  The respondent also already transferred the ownership of the vehicle to complainant’s name.  At this juncture we would like to point out that it is a violation of a condition in the policy.  In the case of violation condition of policy the Hon’ble Supreme Court held in Amalendu Sahoo Vs. Oriented Insurance Co. Ltd. II (2010) CPJ 9(SC) that the claim to settled on non-standard basis.  Hence it is the settled position that violation of condition appellant, the insurer, is liable to pay the claim on non-standard basis.  The Forum below allowed the claim based on the survey report.  In this case, we are of the considered view that a respondent/complainant is entitled for 75% of the assessed survey amount of Rs.36,943/-.

In the result, appeal is dismissed.  We modify the order of the Forum below and direct the opposite party to pay an amount of Rs.27,707/- with 9% interest from the date of complaint till payment along with cost of Rs.2,000/-.  The respondent is entitled to 12% interest per annum from the date of this order on non-compliance.  The order is to comply within 30 days on receipt of the copy of the order.

          The office is directed to send a copy of this order to the Forum below along with LCR.

A. RADHA              :             MEMBER

 K. CHANDRADAS NADAR :        JUDICIAL MEMBER

Sa.

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

                                                   APPEAL NO.609/2012

JUDGMENT DATED 10/05/2013

                                                              sa