Delhi

New Delhi

CC/683/2008

Devanand - Complainant(s)

Versus

M/S. New India Insurance Company Ltd. - Opp.Party(s)

30 May 2016

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

Case No.C.C./683/2008                                 Dated:

In the matter of:

MR. DEVANAND

S/o Sh. Balleram,

R/o Village and Post Office Thanakala,

Tehsil Kharkauda,

Distt. Sonepat,

Haryana

        ……..COMPLAINANT

VERSUS

NEW INDIA INSURANCE COMPANY LTD.

CBU-31140m 505-507, 5^th Floor,

Arunachal Building,

19, Barakhamba Road,

New Delhi-110001

 

 

               .... OPPOSITE PARTY

 

PRESIDENT: S.K. SARVARIA

ORDER

 

The present complaint under section 12 Read with section 14 of The Consumer Protection Act, 1986 (in short Act) is filed by complainant alleging, in brief, that the complainant purchased Tata Indica car bearing number DL 2 CH 7148 on 21/5/2004 from Mrs. Pooja Sinha. The said car was insured with the OP vide policy number 311401/31/03/01031. On 24/5/2004 the said car met with an accident and suffered extensive damage. An FIR to this effect had been lodged with PS Jhajjhar. Subsequently, the complainant had applied for the insurance claim and submitted all documents including the FIR copy. The complainant, thereafter, sent a legal notice dated 23/1/2006 to OP insurance company which was duly received and acknowledged by the OP company. The complainant had earlier filed a complaint which was withdrawn by him on 5/5/2008 for some technical ground and he filed the present fresh complaint.

The complainant has claimed a sum of Rs. 1,78,000/- towards damages suffered in the vehicle, Rs. 20,000/- towards loss of conveyance  Rs.  20,000/- towards mental harassment and Rs. 11,000/- for litigation expenses, making the total claim of Rs. 2,51,000/- against the OP insurance company.

The notice of the complaint was issued to the OP insurance company who contested the complaint and filed reply with one of the preliminary objections that the present fresh complaint is barred under section 24 A of the Act. Another preliminary objection is that the insurance policy in question was purchased by him from the insured Pooja Sinha and has not been got transferred by the complainant in his name. Even at the time of accident on 24/5/2004 the vehicle was not registered in his name. Therefore, the complainant was not a consumer as per Section 2 (d) of the Act. According to the OP, the fresh complaint is not maintainable on the same cause of action and the complainant has not detailed the technical difficulty due to which the earlier complaint was withdrawn on the ground of technical difficulties. The OP has denied other facts stated in the complaint and has prayed for dismissal of the complaint with costs.

In the rejoinder the complainant has denied the averments made in the reply of the OP insurance company and has reaffirmed the facts stated in the complaint. He has alleged that at the time of accident on 24/5/2004. the said car was in the name of Pooja Sinha, because the car was purchased by complainant on 21/5/2004 from Mrs. Pooja Sinha which was  Friday the next day was Saturday and day after was Sunday. On 24/5/2004 the said car met with an accident. Due to this reason complainant could not give any application in the office of insurance company to change insurance of the said car in his name.

In support of his case, the complainant filed in affidavit in evidence. On behalf of the OP insurance company, the affidavit in evidence of Mr. H.R. Arya is filed. Both parties have filed written arguments.

 

We have heard the complainant in person, have gone through the  written arguments on behalf of both parties and have gone through the record of the case and relevant provisions of the law.

The insurance policy in question admittedly is in the name of Mrs Pooja Sinha, so also the registration of insured vehicle in question. The question raised by the OP insurance company is that the complainant is not consumer within the meaning of Section 2 (d) of the Act is neither vehicle in question is registered in the name of the complainant nor the insurance policy in question is in his name. On behalf of complainant the contention is that after purchase of the vehicle from Mrs Pooja Sinha on Friday, there was not enough time for transfer of the registration of the car or approached the OP insurance company for change of the insurance policy in the name of the complainant as, soon after the purchase of the car on 21/5/2000 for accident occurred on 24/5/2004.

The matter in somewhat similar circumstances came before honourable National Commission in New India Assurance Co. Ltd. v. Ashok Kumar  : 2013(2) C.P.J. 162 : 2013(2) C.P.R. 78 : 2013(2) CLT 314 (N.C.D.R.C), who examined it in detail and has made the following observations:

  "8. On perusal of GR-10 it would be seen that on the sale of vehicle the benefit under the policy in force automatically accrued to the new owner. GR-10 was replaced by GR-17 issued by TAC w.e.f. 1.7.2002 and it reads as under:

"On transfer of ownership, the Liability Only cover either under a Liability Only Policy or under a Package Policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer.

The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance."

9. Since the vehicle was purchased by the petitioner on 30.11.2006 the provisions of GR-17 are applicable. On reading of the GR-17 it transpired that on the transfer of ownership the transferee of the vehicle is required to apply in writing for transfer of the policy in his name within 14 days from the date of transfer under recorded delivery to the insurer who had insured the vehicle, with the details of registration of vehicle, date of transfer of the vehicle, previous owner of the vehicle and the number of the policy so that the insurer may make necessary changes in the record and issue fresh insurance certificate in favour of the transferee. Unless the aforesaid procedure is complied with, the transferee does not get insurable interest under the insurance policy in the name of previous owner. In the instant case, as noted earlier admittedly the transferee i.e. the respondent/complainant did not intimate the Insurance Company about the transfer of the vehicle within 14 days of transfer of registration in his name to enable the petitioner-Company to make necessary changes in the record and issue fresh certificate of insurance. The respondent/complainant thus did not get the insurance contract transferred in his favour. Therefore, he did not acquire any insurable interest in the stolen vehicle on the date of theft.

Section 157 of the Motor Vehicles Act also deals with the transfer of certificate of policy and it reads thus:

"Transfer of Certificate of Insurance- (1) Where a person in whose favour 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 thereto, the certificate of insurance and the policy described in the certificate shall 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.

1 [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.]

(2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance."

10. On bare reading of the above provision it is clear that Section 157 mainly deals with the protection of third party interest. This provision came up for interpretation before the Supreme Court in the case of Insulation Pvt. Ltd. v. New India Assurance Co. Ltd., I (1996) CPJ 1 (SC) : II (1996) ACC 536 (SC) : (1996) 1 SCC 221, wherein it was held:

"Thus, the requirements of that chapter are in relation to third party risks only and hence the fiction of Section 157 of the New Act must be limited thereto. The certificate of insurance to be issued in the prescribed form (See Form 51 prescribed under Rule 141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third party risks. Since the provisions under the New Act and the Old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Kondaihs case because the transferee-insured could not be said to be a third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred". If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New 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. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct"

11. Similar view was taken by the Supreme Court in the case of Rikhi Ram & Anr. v. Sukhrania & Ors., II (2003) SLT 62 : I (2003) ACC 368 (SC) : (2003) 3 SCC 97, and it was observed:

"6. On an analysis of Sections 94 and 95, we further find that there are two third parties when a vehicle is transferred by the owner to a purchaser. The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far, the transferee who is the third party in the contract cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Act. However, so far as third party injured or victim is concerned, he can enforce liability undertaken by the insurer.

7. ..........................

8. For the aforesaid reasons, the appeal is allowed. We set aside the order and judgment under challenge. It is hereby directed that the insurer shall pay compensation to the victims within eight weeks along with the interest @ 11 % p.a. from the date of incident and it will be open to the insurer to recover the said amount either from the insured or from the transferee of the vehicle. However, there shall be no order as to the costs."

12. In view of the above noted provisions of Motor Vehicles Act and the Tariff Regulations as also the decision of Supreme Court it is clear, if the transferee fails to inform the Insurance Company about the transfer of registration of vehicle in his name and the policy is not transferred in the name of the transferee, then the Insurance Company is not liable to pay the claim to the transferee in case of theft of the vehicle. Thus, we are of the view that petitioner Insurance Company was justified in repudiating the claim and there is no deficiency in service on their part."

In Oriental Insurance Co. Ltd. v. Mushtaq Khan  :2015(2) C.P.J. 145 : 2014 DNJ 180 : 2015(1) C.P.R. 29(N.C.D.R.C.) It was observed as follows:

"6. It is admitted case of the parties that after purchase of old vehicle by the complainant, on 7.11.2007 vehicle continued in the name of seller and neither registration certificate nor insurance policy was transferred in the name of complainant till accident on 4.1.2008.

7. Learned Counsel for the petitioner submitted that as vehicle as well as insurance policy not transferred in the name of complainant at the time of accident, petitioner was not liable to make any payment towards claim. In support of his contention he has placed reliance on judgement delivered by me reported in I (2014) CPJ 493 (NC) Sandeep Gupta v. United India Insurance Co. Ltd. & Anr. in which it was held that if transferee fails to inform Insurance Co. about transfer of registration certificate in his name and policy is not transferred in his name, Insurance Company cannot be held liable to pay claim in case of own damage of vehicle . Same view has been taken by me in I (2014) CPJ 128 (NC) - New India Assurance Co. Ltd. v. Ashok Thakur. Learned Counsel for the respondent placed reliance on judgment of this Commission in IV (2007) CPJ 289 (NC) Shri Narayan Singh v. New India Assurance Co. Ltd. on which State Commission has also placed reliance in which it was observed that benefits under policy automatically accrue to new owner on transfer of vehicle . In the aforesaid case, accident occurred on 2.8.1995, but after 30.6.2002, as per GR 17, subsequent purchaser was under an obligation to get the vehicle and insurance policy transferred in his name within 14 days from the date of transfer of registration certificate in his name for claiming damages to the vehicle . In the case in hand, neither registration certificate was transferred in the name of complainant, nor insurance policy stood transferred in the name of complainant at the time of accident and in such circumstances, in the light of aforesaid judgments complainant was not entitled to any claim regarding damages to the vehicle and petitioner has not committed any deficiency in repudiating claim and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed."

 

        In the present case, not only the registration of the vehicle in question and insurance policy in question  have been got transferred by the complainant in his name by substituting the name of the previous owner within his name from the competent authority, but also there is no document or evidence on record to suggest that the request of transfer of insurance policies made by the complainant within 15 days of transfer of the registration nor there is any material on record to suggest that even as on the date of filing of the complaint, the registration of the vehicle in question has been got transferred by complainant in his name. Therefore, in the light of Ashok Kumar's case (supra)  and Mushtaq Khan's case (supra)the complaint is not entitled to any relief from the OP insurance company, in the given facts and circumstances of the case.

There is yet another view, making the present complaint, non-maintainable. As per own admission of the complainant he has earlier filed the complaint on the same cause of action which was withdrawn by him on 5/5/2008. Even if, the leave to file fresh complaint on the same cause of action is given to the complainant it does not, in our view, permit the complainant to avoid the law of limitation or the limitation period prescribed for filing the present complaint. Under section 24A of The Consumer Protection Act, 1986, the complaint is required to fire within two years of accrual of cause of action. The complainant has filed the present complaint in 2008 while the cause of action accrued in 2004, so complaint is hopelessly barred by time. On this count also, the present complaint fails and we agree with the contention made on behalf of the OP insurance company in this behalf.

In view of the above discussion, we hold that the present complaint is not maintainable. The complaint is dismissed. Keeping in view peculiar facts and circumstances of the case, the parties are left to bear their own cost of litigation. A copy of this order each be sent to both parties by post free of cost. This final order be sent to (www.confonet.nic.in ). The file be consigned to the record room.

Pronounced in open Forum on 30.5.2016.

 

(S K SARVARIA)

PRESIDENT

 

 

                                               (H M VYAS)

                                     MEMBER