Haryana

Ambala

CC/28/2021

M/S C.Lal Marketing Ltd - Complainant(s)

Versus

M/s SBI General Inss Co Ltd - Opp.Party(s)

Jaideep Prashar

16 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	28  of 2021
Date of Institution	:	18.01.2021
Date of decision	:	16.03.2023

 

M/S C.Lal Marketing Ltd. through its authorized signatory Sh.Chaman Lal Gupta son of Sh.Nathu Ram Gupta, resident of 126, Sector 1, HUDA, Ambala City.

          ……. Complainant.

                                                Versus

1. M/s SBI General Insurance Company Ltd. through its authorized signatory SCO No.335- 336, Sector 35-B 1st & 2nd Floor, Chandigarh 160022.
2. M/s Globe Automobile Pvt. Ltd. through its authorized signatory, Opposite Spring Field Public School, NH- 22, Village Saddopur, District Ambala.

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Jaideep Prashar, Advocate, counsel for the complainant.

                             Shri R.K. Vig, Advocate, counsel for the OP No.1

                             Shri G.S. Antal, Advocate, counsel for the OP No.2

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay the amount of Rs.21,908/- to the complainant alongwith interest @ 24% p.a.
2. To pay Rs.50,000/- as compensation for causing mental tension, harassment and agony.
3. To pay the cost of litigation.

Or grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant purchased a car TOYOTA ETIOS LIVA bearing registration NO.HRO2AM-5028 from its registered owner Paramjit Singh son of Sh.Manjeet Singh on 15.9.2020. On 17.9.2020, application along with FORM no.29 and other requisite documents were submitted to the Registration Authority, Ambala City / SDM Office, Ambala City for the transfer of the said vehicle in the name of the complainant. On 21.9.2020 the vehicle in question was sent to OP No.2 for its services. On the same day intimation and receipt issued by the Registration Authority Ambala City, was also given to OP No.2 who is the authorized agent of OP No.1, for getting the endorsement effected in the records of insurance in the name of the complainant. The said vehicle is insured with OP No.1 vide policy/proposal no. P10495838 dated 30.6.2020 and OP No.2 is the authorized agent of OP No.1. OP No.2 assured that the endorsement of the insurance of the vehicle in question will be effected/changed as and when the registration certificate/RC of the vehicle is issued by the Registration Authority, Ambala city in the name of the complainant. On 5.10.2020 the said vehicle met with an accident and the vehicle suffered damage, intimation of which was sent to the OPs. The vehicle was sent to the OP No.2 for repair. The authorized representative/agent (Surveyor) of OP No.1 carried out survey of the vehicle and took pictures of damaged vehicle. However, the damage claim of the said vehicle was not passed by the OPs on account of mis-match of documents, whereas the transfer of the said vehicle was applied to the Registration Authority, Ambala City, on 17.09.2020 and the name of the complainant was also got changed/effected in registration certificate (RC) of the vehicle by the registration authority Ambala City before 5.10.2020 and the registration certificate was sent to the complainant on 05.10.2020. It is only on 09.10.2020 when the representative of the OPs intimated the complainant through email that the claim has been rejected and demanded Rs.18,000/- as estimate costs. However, the OPs did not inform the complainant regarding repudiation of the claim.  More over as per law, the complainant has 14 days time to give intimation to the OPs to get the insurance policy transferred in the name of complainant. OP No. 2 has charged Rs.60/- for endorsement in the insurance policy from the complainant on 14.10.2020 and has issued receipt to this effect. Thus, intimation was given to the OPs well in time after the receipt of RC from the Registrar Office on 05.10.2020. The OPs have repudiated the claim wrongly and erroneously. The complainant having no other option had to pay Rs.21,908/- to OP No. 2 on 13.10.2020 to get the delivery of the vehicle in question so as to avoid further monitory loss. By not paying the repair charges, the OPs have committed deficiency in providing services. Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, not to come with clean hands and suppressed the material facts etc. On merits, it has been stated that the vehicle in question has duly been transferred by the competent authority in the name of the complainant but on 05.10.2020, i.e the date of accident, the insurance policy was not in the name of the complainant, as such, it is not having any insurable interest in the said vehicle. As per section 17 of Indian Motor Tariff there should be insurable interest as well as insurance contract at the time of taking Policy & at the time of loss. Thus, the reported claim is not admissible as per the terms and conditions of the Policy. OP No. 1/Insurance Company when found that the claim is not admissible and as such informed to the complainant vide registered letter dated 21.10.2020 as well as to Paramjit Singh. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with heavy costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that the vehicle in question is registered in the name of the company and the same is being used for commercial purposes, therefore, complainant is not a consumer as defined under the Consumer Protection Act, hence the complaint is liable to be dismissed etc. On merits, it has been stated that on 21.09.2020 the representative of the complainant showed the copy of receipt issued by the Registration Authority Ambala City towards the acknowledgment of receipt of documents for the change of ownership of the vehicle in question in the name of the complainant. Further the representative of the complainant requested the OP No.2 to issue the requisite documents qua scheduled service of 100000 KMS in the name of the complainant as the complainant is the purchaser of the vehicle in question and payment is to be made by the complainant. As such on the basis of that receipt which was shown by the complainant, the requisite documents qua scheduled service of 100000 KMS of the vehicle in question was issued by the OP No.2 in the name of the complainant. The vehicle in question was brought to the  OP No.2 for accidental repair on 05.10.2020. Thereafter the claim intimation was lodged with OP No.1 on the next very day i.e. on 06.10.2020. The vehicle in question was inspected by the surveyor. The accidental claim of the vehicle in question was rejected by the OP No.1 on ground that the complainant did not get transfer the insurance policy in its name. Therefore, OP No.2 informed the same to the complainant company telephonically as well as through whatsapp and e-Mail. Further approval was sought from the complainant for starting the repair work on payment basis. Thereafter the complainant in reply to the said e-Mail dated 09.10.2020, gave written approval to OP No.2 to go ahead with repair on cash basis. The Job Order qua repair of the vehicle in question was opened by the OP No.2 and the repair work of the vehicle in question was carried out. Complainant made the requisite payment towards the invoiced amount and took the vehicle in question from the OP No.2 without any protest. The Insurance Company vide its letter dated 21.10.2020 addressed to the previous owner of the vehicle in question with copy thereof to the complainant had informed about the reasons for rejection of claim.  After perusal of the instant complaint and supporting documents along with communication exchanged, it is evident that the complainant company itself has admitted that the insurance endorsement was pending in the name of the complainant company itself. The approval or rejection of Insurance Claim is subject to terms and conditions/ policies of the Insurance Company and OP No.2 has no role or concern with it as there is no privity of contract within the complainant qua the contract of Insurance.  Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with heavy costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-13 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.1 tendered affidavit of Jitendra Dhabhai, Manager-Consumer Litigations of  OP No.1 Company-SBI General Insurance Company, 46, 3^rd Floor, Karol Bagh, Pusa Road, Opposite Metro Pillar No.129, New Delhi as Annexure OP-1/A alongwith documents Annexure OP-1/1 to OP-1/9 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered documents Annexure OP-2/1 to OP-2/8  and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by repudiating the claim on bald ground to the effect that the insurance cover was not got  transferred alongwith the registration of the vehicle in question, whereas, on the other hand, as per the provisions of Motor Vehicles Act, the  insurance deems to be transferred once the registration of the vehicle has been got done by the new/fresh purchaser of the vehicle,  the  OPs are deficient in providing service, negligent and  adopted unfair trade practice, thereby causing huge financial loss and mental agony and harassment to the complainant. The learned counsel for the complainant has placed reliance upon the judgment dated 18.06.2020, passed by the Hon’ble Supreme Court, in the case of Surender Kumar Bhilawe Vs. The New India Assurance Company, Civil Appeal No.2632 of 2020.
8.           On the other hand, learned counsel for the OP No.1 submitted that as per India Motor Tariff GR-17, it was mandatory on the part of the complainant to intimate in writing regarding purchase of the vehicle in question and also its registration thereof, within a period of 14 days therefrom, so that the insurance policy is also transferred, which the complainant failed to do so, as such, its claim was rightly repudiated by the OP No.1 as it was not having any insurable interest in the said vehicle.  In support of his contention the learned counsel for the OP No.1 has placed reliance upon the judgment dated 21.11.1995, passed by the Hon’ble Supreme Court, in the case of M/s Complete Insulations (P.) Ltd. Vs. New India Assurance Company Limited and the judgment dated 14.11.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula, Haryana, in the case of Oriental Insurance Company Limited Vs. Shiv Kumar & Anr. the judgment dated 22.11.2011, passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of United India Insurance Company Limited Vs. Goli Sridhar & Anr, the judgment dated 11.03.2010, passed by the National Consumer Disputes Redressal Commission, New Delhi in the case of New India Assurance Company Limited Vs. Chandrakant Bhujangro Jogdand and the case of Jaspal Singh Vs. United India Insurance Company Limited & Anr. decided by District Commission Ambala, on 08.04.2021,
9.           Learned counsel for OP No.2 submitted that it has no role whatsoever qua transfer of the policy in question in respect of the vehicle in question. He further submitted that when the claim of the complainant was rejected by OP No.1, as such, OP No.2 left with no alternative, the amount incurred on rectification of the defects/replacement of defective parts was demanded from the complainant, which was paid by it, without raising any protest and thereafter the vehicle was handed over to the complainant in perfect condition.  
10.           The following facts are not in dispute:-

1. Purchase of the vehicle in question by the complainant from one Paramjit Singh on 15.9.2020.
2. the said vehicle is insured with OP No.1 vide policy/proposal no. P10495838 dated 30.6.2020 (Annexure C-2) and OP No.2 is the MISP (Motor Insurance Service Provider) of OP No.1 i.e. SBI General Insurance Co.ltd
3. On 17.9.2020, application along with FORM no.29 and other requisite documents were submitted to the Registration Authority, Ambala City / SDM Office, Ambala City for the transfer of the said vehicle in the name of the complainant
4. the name of the complainant was also got changed/effected in registration certificate (RC) of the vehicle by the registration authority Ambala City on 25.09.2020 and the registration certificate was sent to the complainant.
5. On 05.10.2020 the said vehicle met with an accident and the vehicle suffered damage in the said accident, intimation of which was sent to the OPs and the damaged vehicle was sent to the OP No.2 for its repair, as the OP No.2 is also the authorized dealer of Globe Toyota.
6. Claim of the complainant was rejected by OP No.1 vide letter dated 21.10.2020, Annexure OP-1/7.  

 

11.                     It may be stated here that in the case of  Surendra Kumar Bhilawe vs The New India Assurance Company, (Supra), it was held by the Hon’ble Supreme Court that since as per Section 157 of the Motor Vehicles Act, 1988, where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate are to be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer. It was further held in this case that in case of accident of registered vehicle under such a situation, the insurance company cannot repudiate the claim of the registered owner. Relevant part of the said judgment is reproduced hereunder:- 

“……….43. The National Commission also failed to appreciate that Section 157 of the Motor Vehicles Act provides that where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate are to be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer.

44.     The explanation to Section 157 clarifies, for the removal of all doubts, that such deemed transfer would include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. The transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. There could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle.

50. ….”

 

12.                     Similar view had also been taken by the Hon’ble Supreme Court in Mallamma (D) By Lrs vs National Insurance Co. Ltd. & Ors, CIVIL APPEAL NO. 1391 OF 2009, decided on on 7 April, 2014 wherein also it was held that once as per the provisions of Section 157 of the M.V. Act, transfer of ownership of the vehicle is proved to have been transferred in favour of the new owner/purchaser, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the M.V. Act is not given to the insurer.  In view of above settled law by the Hon’ble Supreme Court in  Surendra Kumar Bhilawe  and Mallamma (D) By Lrs cases (supra),  it can easily be said that repudiation of the claim of the complainant by the OP No.1 on the ground that since the insurance company was not informed about the said registration of vehicle as such the complainant has no insurable interest therein, was illegal and arbitrary.
13.           As far as reliance placed by the learned counsel for the  OP No.1 on 1996-1 PLR Page-202 (SC) in case M/s Complete Insulations Pvt Ltd v/s New India Assurance Company Ltd. is concerned, with due respect it is stated here that in para No.46, of the judgment passed by the Hon’ble Supreme Court in  Surendra Kumar Bhilawe (supra), it is stated that the judgment of this Court in Complete Insulations Private Limited vs. New Indian Assurance Company Limited1 was rendered in the context of Motor Vehicle Act, 1939 which has been repealed and replaced by the Motor Vehicles Act, 1988. Since, the judgment in the case of Complete Insulations Private Limited vs. New Indian Assurance Company Limited1 (Supra) was rendered by the Hon’ble Supreme Court under the Motor Vehicle Act, 1939 (old Act) as such, it is not applicable in the present case. Similarly, the judgments/orders passed by the Subordinate Courts/Commissions, in the aforesaid cases, referred by the learned counsel for the OP No.1, shall not hold field in the face of law laid down by the Hon’ble Supreme Court in Surendra Kumar Bhilawe  and Mallamma (D) By Lrs cases (supra),
14.           It is evident from the invoice dated 13.10.2020, Annexure OP-2/4 that total amount of Rs.21,908/- stood claimed by OP No.2 from the complainant toward repair charges of the damaged vehicle, which admittedly stood paid by it.  Under these circumstances, it is held that the complainant is entitled to get refund of the said amount of Rs.21,908/- from OP No.1, as the vehicle which met with an accident, was covered under the policy in question. However, complainant being a juristic person is not entitled to get compensation for mental agony and physical harassment.  
15.           As far as plea taken by OP No.2 to the effect that since the complainant is a company as such it did not fall within the definition of consumer, as the vehicle in question was purchased for commercial purposes, it may be stated here that the mere fact that the complainant is a company  and has purchased the said vehicle in its name ,is not sufficient to propel the complainant out of the purview of the complainant, especially when no cogent and convincing evidence has been brought on record by OP No.2 to prove that the complainant was to earn huge profits from the vehicle in question. Thus, in the absence of any evidence having been placed on record, this plea take by OP No.2 stands rejected.
16.           Since no deficiency in service has been proved on the part of OP No.2 and it was only the repairer, as such, complaint against OP No.2 is liable to be dismissed.
17.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.2 and allow the present complaint against OP No.1 and direct it, in the following manner:-

1. To pay the claim amount of Rs.21,908/- to the complainant, alongwith interest @4% p.a. from 13.10.2020, i.e the date of payment of repair charges, till realization.  
2. To pay Rs.2,000/- as litigation expenses.

 

The OP No.1 is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP No.1 shall pay interest @ 6% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 16.03.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President