SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite party No. to pay Rs.5,00,000/- as insurance claim for the damage sustained to his vehicle.
The facts of the case are that the complainant is a Mini Lorry owner bearing Reg. NO.KL.21. C-7809 of Eicher Mini Lorry as a commercial vehicle. The vehicle was purchased by the complainant from one Mr. Sreeju V, Muttatharamoola Veedu, Arayoor (PO), Parassala, Thiruvananthapuram, by way of an agreement and Finance Company Ltd, Ground Floor, KVA Complex, Thaliparmaba Road, Sreekandapuram 670631, to clear the purchase money to the earlier owner of the vehicle. At the time of availing loan, the Finance Company itself collected original RC Book, Insurance paper, Permit etc. from the complainant for transfer the registration of the vehicle, insurance and permit of the vehicle. At the time of the purchase of the vehicle, it was properly insured before the 1st OP for a period of 22/08/2017 to 21/08/2018. The registration and the permit of the vehicle properly transferred to this complainant from the earlier owner of the vehicle and the transferee of registration effected from 01/01/2018 onwards and the transfer of permit effected from 30/01/2018. The process of transfer of insurance was pending. The process of transfer of insurance was pending. Meanwhile on 25/01/2018, the vehicle was capsized while the driver was driving the vehicle from Chepparamba to Sreekandapuram. It was happened only due to the steep and narrow road and no sufficient width to give side to another heavy vehicle. After accident, the vehicle tows by a JCB and put it for repairing at Pratheeksha Automobile Workshop and Auto-parts at Thattery. He had spent more than three lakhs rupees for the repairing of the capsized vehicle as the cost of labor charge and spare parts. The complainant after paying the cost of the repairing, collected bills and submitted it before the 1st OP for insurance claim. But, the 1st OP rejected the claim of the complainant alleging false, improper and silly reasons. The complainant caused to send a lawyer notice to the 1st OP on 06/1/2019. After a long duration the 1st OP replied through their legal advisor with improper and silly reasons for rejection of complainant’s legally entitled claim. The act of the 1st OP is totally against the prevailing law of the land they are entitled to compensate the entire cost and charges of the vehicle as an insurer of the vehicle. Hence this complaint.
OP No.1 Insurance Company challenged the above contentions of the complaint. It is admitting that OP1 had issued a motor policy vide policy No.: 3379/01428073/000/01 in the name of one Mr. Sreeju V for the vehicle bearing registration No. KL-21-C-7809 for the period of 22/08/2017 to 21/08/2018 and the same is subject to the terms, conditions, limitations and exclusions of the policy. This OP mentioning the date of alleged accident as 25/01/2018 in the name of Mr.Sreeju V. This OP had not received any intimation for the alleged date of loss 25/02/2018 as stated in the complaint and hence denied. Upon intimation of the claim for the alleged loss dated 25/01/2018 M/s Ascom associated Investigation and Technical Consultancy was appointed as investigator by this OP to investigate the matter of accident. It has come out in the investigation report dated 08/02/2018 that on 04/09/2017 Mr.Sreeju V, who was the policy holder had sold the vehicle to the complainant and subsequently the policy holder had given the clearance ccertificate dated 01/01/2018 which was issued from RTO. Since the vehicle was sold by the policy holder, this OP does not have any insurable interest and the complainant does not have any privity of contract with this OP as both the registration certificate and policy was not transferred as on the alleged date of loss 25/01/2018. Insurance is a contract between the policy holder and the insurance company and the complainant herein is a stranger to the contract. As per the survey report the assessed loss is as Rs.45,000/-. Since there is no insurable interest, this OP had no liability to pay any compensation to both the complainant and to the policy holder. It is submitted that the one of the principle of General Insurance is the principle of Insurable interest which implies that the person taking insurance must have interest over the property insured. In the instant case, Mr. Sreeju who was the policy holder has sold the vehicle to the complainant and as per General Regulation 17, policy was not transferred in the name of new owner, therefore policy holder as well as the complainant does not have any insurable interest and there is no privity of contract with new owner. Hence the claim was rightly repudiated. It is submitted that unless transferee give intimation as per provisions of GR 17 and an endorsement of IMT-3 is issued by insurer, insurer will not be liable for own damage section. For the above said reasons, the petitioner is not entitled to for Rs.2,30,000/- for the amount spent for purchasing the parts for repairing the vehicle and Rs.50,000/- fir body work Rs.25,000/- for back body charges Rs.18,000/- towards cabin assembly and Rs.15,000/- as labour charges and Rs.5,00,000/- as compensation. Hence it is prayed to dismiss the complaint with costs to this OP.
OP No.2 the finance company from where the complainant availed vehicle loan for the vehicle in subject, also filed separate version stating that OP2 submits that the complainant availed finance assistance from OP No.2 and executed an agreement. According to the terms of the agreement the loan amount was Rs.5,00,000/- and the complainant has to repay the same by monthly installments with the other charges as contemplated in the said agreement. It is submitted that the averment in the complaint that at the time of availing loan, the finance Company itself collected the original RC Book, insurance paper, permit etc from the complainant for transfer the registration of the vehicle, insurance and permit of the vehicle is false. The OP No.2 never collected the original of the above documents and kept in their custody. Further complainant has not reported about the accident to this OP and this OP has no knowledge about the said incident. It is further submitted that there is no specific allegation in the above complaint with respect to the deficiency of service on the side of this OP No.2 and this OP No.2 has nothing to do with the alleged loss sustained to the complaint. Hence, prayed for the dismissal of complaint.
Complainant has filed his chief affidavit and documents. He has been examined as Pw1 and the marked documents as Ext.A1 to A9. One more witness was examined from the side of complainant as Pw2. While pending of this case complainant has taken steps to joint RTO, Taliparamba to produce screen shot of Dispatch window of smart move software of his office in connection with dispatch of RC book. As per the summons, the said documents were produced and it was marked as Ext.A10. On the side of OPs The Deputy Manager of OP No.1 has filed his chief affidavit and was examined as Dw1. Ext.B1 to B7 were marked. All witnesses were cross-examined for the rival parties.
After that the learned counsel of complainant and OP No.1 and 2 are filed their written argument notes.
Here the question to be decided is whether there is an insurable interest when a vehicle is sold to another person by the insured without the intimation to the insurance company about the sale. Complainant herein alleged that since he is the present RC owner of the vehicle, and the prior owner has effective policy at the time of accident of the vehicle, Insurance company is duty bound to indemnity his claim. It is not disputed that previous registered owner of the Mini Lorry, obtained insurance of the Lorry from OP No.1 and during continuity of insurance policy, the Mini Lorry was sold to complainant and the vehicle was met with an accident on 25/01/2018.
Another question to be decided in this complaint is whether Insurance Company is liable to make payment to the subsequent registered owner without transfer of Insurance policy in his name? Learned counsel of OP1 submitted that as per Rule 17 of GR, subsequent transferee of vehicle is not entitled to get compensation for loss to the vehicle in the absence of transfer of insurance policy in his name and the prior owner is also not entitled to any Insurance claim as he has already sold the vehicle to another person.
In the instant case there is no dispute that at the time when the accident took place ie 24/01/2018, the vehicle was already sold to the complainant. It is also not in dispute that the prior owner did not inform the Insurance Company about the sale of the vehicle nor was the vehicle transferred in the name of the complainant. In such circumstance, it a settled position that if a vehicle transferred in by the insured the name of a third person without intimation to the Insurance company, then in case of claim covered under the insurance policy, the insured as well as the new owner ceases to have an insurable interest.
Here complainant has stated that he could not transfer the ownership in his name, since the RC particulars received to him only on 3rd month of 2018 (Ext.A10) In Ext.A10 it is clearly shows that on 01/03/2018 the RC particulars sent to the complainant under speed post. The view taken by Hon’ble Apex court in complete Insulation (P) Ltd Vs. New India Assurance Company Ltd. I(1996) CPJ I(S.C) that if the policy of insurance covers other risks as well, e.g. damage caused to the vehicle of the insured, since there was no agreement between the insurer and transferee and also since the policy of the vehicle had not transferred in the name of the transferee, the insurer was not liable to compensate the damage to the vehicle. Further held that in view of the provision of the Motor Vehicles Act and the Tariff Regulations, if the transferee fails to inform the Insurance company about the transferor of registration certificate in his name, and the policy is not transferred in the name of the transferee, then the Insurance company cannot be held liable to pay the claim in case of own damage of the vehicle.
Here there is no dispute that the accident happened to the vehicle on 25/01/2018. As per Ext.A10, the vehicle in dispute was transfered in effective in the name of complainant by RTO Taliparamba from 01/01/2018 onwards as per the application of the complainant Ext.A10 also reveals that the RC certificate was dispatched to him by registered post only on 01/03/2018 and it was received to the complainant in 05/03/2018. GR 17 states that the subsequent transferee of vehicle is not entitled to get compensation for loss to the vehicle in the absence of transfer of Insurance policy in his name.
Dw1 deposed that the vehicle had full cover insurance. On appointing surveyor by the Insurance company reveals that the accident was informed to the company. Dw1 also deposed that complainant has transferred the name of RC owner after getting the RC book. Hence from the available evidence the complainant became the RC owner of the vehicle after 05/03/2018.
Ext.B6 shows that the surveyor has submitted a detailed report with photo of the vehicle for loss happened to the vehicle as Rs.1,25,000/- after depreciation of the vehicle. The surveyor assessed Rs.79,000/- as salvage value if any. But without examining the surveyor, we cannot believe that the salvage value became Rs.79,000/- and whether the salvage parts were given to the complainant. Hence we are of the view that the complainant is eligible to get Rs.1,25,000/- the gross total loss as assed by the surveyor. Here though complainant produced Ext.A4 and A5 repairing bill, without examining the person who issued b Ext.A4 and Ext.A5, we cannot accept those documents.
Considering the above said facts and circumstances of this case, the complaint is allowed in part as the vehicle had valid insurance at the time of accident. As far as OP No.2 is concerned, they are only financier and more over complainant has not claimed any amount from OP No.2. Hence OP2 is exempted from the liability.
In the result, complaint is allowed in part. Opposite party No.1 is directed to pay Rs.1,25,000/- to the complainant within one month from the date of receipt of the certified copy of this order. Opposite party No.1 is further directed to pay Rs.25,000/- towards compensation for the mental agony and hardship caused to the complainant, Rs.5,000/- towards cost of litigation. If opposite party No.1 fails to comply the order within one month as stated above, the amount Rs.1,25,000+ Rs.25,000 carries interest @ 9% per annum from the date of order till realization. Complainant is at liberty to execute the order as per provision in Consumer Protection Act 2019.
Exts.
A1-Copy of RC book
A2- Copy of Goods carriage permit
A3- Copy of Insurance certificate
A4- Repairing bill issued Prathiksha Auto parts dated 02/02/2019
A5- Another bill issued Prathiksha auto parts dated 06/03/2019
A6- Copy of Bill issued auto parts dated 06/03/2019
A7- Photos 6 in numbers
A8- Copy of Lawyer notice
A9- Postal receipt
A10-Screen shot of dispatch window of smart move software
B1- Policy terms and conditions
B2- Claim form
B3- Claim notification details
B4- Statement policy holder
B5- Investigation report
B6- Survey report
B7- Repudiation letter
Pw1-Complainant
Pw2-Shijo-Witness of complainant
Dw1-Vysakh Menon T M-Witness of3
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
