Karnataka

Kolar

CC/9/2018

Sri.Venkateshappa - Complainant(s)

Versus

M/s.United Insurance Company Limited - Opp.Party(s)

Sri.K.V.Shivashankar

13 Jul 2018

ORDER

Date of Filing: 25/01/2018

Date of Order: 13/07/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 13^th DAY OF JULY 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 09 OF 2018

Sri. Venkateshappa,

S/o. Muniyappa,

Aged about 50 Years,

No.152, Kondarajanahalli Village,

Maderahalli Post, Kolar Taluk,

Kolar District.                                                                    ….  COMPLAINANT.

(Rep. by Sri. K.V. Shivashankar, Advocate)

 

- V/s –

M/s United India Insurance Company

Limited, Suguna Nursing Home

Complex, Anthragange Road,

Near KSRTC Bus-stand, Kolar

(Rep. by Sri. B. Kumar, Advocate)                                      …. OPPOSITE PARTY.

 

-: ORDER:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The complainant has filed this complaint against the opposite party Under Section 12 of the Consumer Protection Act, 1986 and prays to direct the OP to pay Rs.4,50,000/- with interest at the rate of 18% from the date of theft of his vehicle bearing Registration No. KA-07 A-4536 and to pay Rs.50,000/- towards compensation and such other reliefs.

 

 02.  The brief facts of the complainant’s case is that, he has purchased LGV- Light Goods Vehicle four wheeler Bolero Pick up, bearing registration No. KA-07 A-4536 from one Mr. Lakshmaiah, S/o. Muniyappa of Bhovi Colony, Mulbagal in the month of last week of February 2017.  The said Lakshmaiah has executed signatures to RTO papers on the day of purchase. The complainant has filed application before the RTO, Kolar, to change his name in the RTO records, the RTO has transferred the name of the complainant in the RTO records on 10.03.2017.  The complainant has to wait for 30 days for receipt of the smart card and he could not made application before the OP for change of name in the insurance policy.  The said Lakshmaiah has insured the said vehicle with the OP for the period from 08.02.2017 to 07.02.2018 by making payment of total premium amount of Rs.21,187/-.  The complainant has given the said vehicle to his brother-in-law and on 22.03.2017 the said vehicle was parked nearby the complainant’s brother-in-law house and on 23.03.2017 at about 06.00 ‘O’ Clock the said vehicle was stolen.  The complainant’s brother-in-law informed the matter to him and his brother-in-law lodged police complaint on 28.03.2017.  The complainant has purchased the said vehicle through finance from M/s. Shriram Transport Finance Company Limited and he has produced the documents to support his contention.  The complainant has also produced the documents before the OP and even after lapse of one year the OP has not made any efforts to settle the matter and the complainant has filed this complaint.

 

03.   The OP appeared through his counsel and filed its version and contended that, the said complaint is not maintainable and prays to dismiss the same with exemplary costs.  The OP has admitted that the Bolero Pick up Goods vehicle bearing registration No. KA-07 A-4536 is owned by one Lakshmaiah and he insured the said vehicle with the OP for the period from 08.02.2017 to 07.02.2018 and stated about the further facts of the complainant’s case till lodging of the complaint.  The OP has specifically contended that, the transferee shall apply within 14 days from the date of transfer in writing under recorded delivery to the insurer with the details of registration of the vehicle, date of transfer of the vehicle from the previous owner of the vehicle and the number and the date of insurance policy so that the insurer may make necessary changes in record and issue fresh insurance certificate.  The complainant did not comply with the provision of law under Section 157 of the Motor Vehicles Act and the complaint is not maintainable and prays to dismiss the complaint in the ends of justice and equity.

 

04.   On 12.04.2018 the counsel appearing for the complainant has filed affidavit of the complainant by way of examination-in-chief and submitted following 07 documents:-

(i) Intimation letter dt. 24.03.2017 to OP – Document No.1

(ii) Copy of the registration certificate issued by RTO, Kolar – Document No.2

(iii) Copy of the FIR – Document No.3

(iv) Copy of the policy – Document No.4

(v) Copy of the Non Tresable Certificate – Document No.5.

(vi) Final Report – Document No.6

(vii) Repudiation letter – Document No.7

 

05.   On 25.04.2018 the counsel appearing for OP has filed affidavit of Sri. G. Lakshman Kumar, S/o. Late Sathyanarayana, Senior Divisional Manager of OP by way of examination-in-chief. 

 

06.   Heard oral arguments on both sides.  The counsel for the complainant has filed Memo with 03 citations to support their case:-

(i) Civil Appeal No.15611/2017

(ii) (2017) Acci. C.R. 801 (S.C.)

(iii) (2018) Acci. C.R. 394 (S.C.)

 

07.   Now the points that do arise for our consideration are that:-

POINT NO.1:-   Whether the OP is liable to pay the claim amount in the absence of insurance policy stands in the name of complainant/ transferee?

POINT NO.2:- Whether the complainant has proved deficiency in service on the part of OP?

 

POINT NO.3:-   Whether the complainant is entitled for the reliefs prayed by him?

 

POINT NO.4:-    What order?

 

08.   Our findings on the above points are that:-

POINT NO.1 to 3:-   Are in the Negative

POINT NO.4:-   As per the final order

                                        for the following:-

REASONS

09.   POINT NOS.1 to 3:- These points are taken up together for discussion to avoid repetition of facts.  We have perused the complaint, version, documents produced by the complainant and so also the citations relied by the counsel for the complainant.  On perusal of the records it is no doubt that, one Lakshmaiah, S/o. Muniyappa was the owner of the Bolero Pick up goods vehicle bearing registration No. KA-07 A-4536 and the said vehicle was insured with the OP for the period from 08.02.2017 to 07.02.2018.  The complainant has purchased the said vehicle from Sri. Lakshmaiah during the last week of February-2017 and he has given the documents before the RTO to effect transfer of the said vehicle in his name.  The said vehicle was transferred to the name of the complainant on 10.03.2017 as per document No.2 and he has to wait for 30 days for receipt of smart card and for that reason he has not made application before the OP for change of name in the insurance policy.  The complainant has given the said vehicle to his brother-in-law and on 22.03.2017 the said vehicle was parked near the house of his brother-in-law and on the next day morning at 06.00 ‘O’ Clock the said vehicle was stolen.  The brother-in-law of the complainant has lodged complaint on 23.03.2017 before the Avalahalli Police Station as document No.3.  The defense taken by the OP is that, the policy of insurance have to be transferred and the OP is not liable to pay the amount claimed by the complainant and there is no privity of contract existed between the complainant and the OP.

 

10.   Now it is relevant to state here that, the complainant himself has stated that, he has not made application before the OP for change of his name in the insurance policy which supports the case of the OP and it reveals that, the complainant has not approached the OP for transfer of the policy of the alleged vehicle and question of indemnify by the OP does not arise.  Hence there is no liability of the OP.

 

11.   Further it is relevant to state here that, Section 157 of Motor Vehicles Act 1988 i.e., Chapter-XI refers to claims of third party risk only i.e., deemed transfer by transferee and is  not applicable to the case on hand as the policy covers other risks also.  Further Under Section 157(2) of Motor Vehicles Act 1988 and Rule 17 of GR Indian Motor Tariff Regulation, the transferee shall apply before the Insurance Company within 14 days from the date of transfer in the prescribed form to the Insurance Company for making necessary change regarding transfer of insurance policy.  But here in this case the transfer of the vehicle in the name of the complainant was effected on 10.03.2017 as per the ‘B’ Extract i.e., document No.2.  The complainant has stated in the complaint that, he has given all the documents to the OP and after lapse of one year also the OP has not settled the claim.  The complainant in his affidavit evidence has stated that, he has given claim application on 24.03.2017 to OP regarding theft of the alleged vehicle and for survey as per document No.1, but it does not speak about the production of relevant document for transfer of policy in the name of the complainant. 

12.   On perusal of document No.7 produced by the complainant i.e., rejection of claim for want of surrender of policy and the said document reveals about surrender of original RC and the keys which clearly discloses that, the letter dated: 09.03.2017 is not at all existed at the time of the complainant’s claim letter i.e., document No.1 dated: 24.03.2017 and later on the said letter dated: 09.03.2017 is created and filed before this Forum on 05.07.2018 alleging that, the owner had given consent letter for the transfer of the policy in the name of the complainant, but the complainant has not at all stated the said fact of the document neither in the complaint nor in the affidavit evidence which clearly goes to show that the said letter dated: 09.03.2017 produced before this Forum on 05.07.2018 is created, concocted and fabricated by the complainant to get the compensation from OP.  Hence the said document produced by the complainant dated: 09.03.2017 has no sanctity in the eye of law and the said document goes in vain and it does not help the complainant to support his case.  The original owner by name Lakshmaiah if really given the said letter dated: 09.03.2017, why the complainant withhold the said document? and there is no answer to it by the complainant.  In this case the Forum at the time of argument directed the complainant orally to produce any document issued by the owner with respect to transfer of the insurance policy in favour of the complainant with reference to the alleged vehicle, but the complainant has failed to produce any such document before this Forum.  But on 05.07.2018 the complainant filed Memo with one document dated: 09.03.2017 alleged to be issued by the owner with respect to transfer of the policy of the said alleged vehicle to the complainant which clearly establishes that, the complainant has created the said document and produced before this Forum but not at all produced the said document at the earlier date of the proceedings and produced after thought by creating the said document and which has no sanctity in the eye of law and the complainant has not approached this Forum with clean hand.

 

13.   To support the case of the complainant he has relied three citations reported in (i) Civil Appeal No.15611/2017, (ii) 2017 Acci. C.R. 801 (S.C.) & (iii) 2018 Acci. C.R. 394 (S.C.). 

 

(i) Civil Appeal No.15611/2017:-

(a)    In this citation, his lordship of Hon’ble Apex Court has held that, “rejection of claims on technical grounds in a mechanical manner will result in loss of confidence of the policy-holders in the insurance industry.  If the reason for delay in making a claim is satisfactorily explained, such a claim cannot be rejected on the ground of delay and so also further it is held that, it will not be fair and reasonable to reject genuine claims”.  But here in this case the facts of the said case is not in question.  The only question in this case is with respect of transfer of insurance policy in the name of the complainant/transferee. 

 

(ii) 2017 Acci. C.R. 801 (S.C.):-

 

(a)    In this citation his lordship of Hon’ble Apex Court, has held that, “whenever a vehicle which is covered by insurance policy is transferred to a transferee, liable of insurance does not cease”.  Their lordship has discussed with reference to Section 157 of Motor Vehicles Act, 1988 – on Death in Course of employment.  And it also discussed that, “whenever a vehicle which is covered by insurance policy is transferred to a transferee, liability of insurer does not cease so far as third party/victim is concerned” and it is also discussed about the deemed transfer in favour of the transferee.  But here in this case the facts of the said case is not attracted to the facts and circumstances of the case on hand.  As the deemed transfer is applicable with respect to third policy risk only and Chapter XI of M.V. Act of 1988, refers to third party risk only and question of deemed transfer does not arise as in this case policy covers other risks also and question of deemed transfer does not arise as the policy covers other risks. 

 

 

(iii) 2018 Acci. C.R. 394 (S.C.):-

(a)    This citation is also not attracted to the facts and circumstances of the case on hand as in this case there is no dispute with regard to the ownership of the vehicle.  Hence the above said referred three citations filed by the counsel for the complainant are not attracted to the case on hand. 

 

14.   Now we relay citation of the Hon’ble Apex Court of three bench judgment reported in CPJ 1996, Vol-1, Page-1 (SC) between Complete Insulations Private Limited V/s New India Assurance Company Limited.  Wherein their lordship has discussed the matter with reference to Section 157 of Motor Vehicles Act 1988 and old M.V. Act with respect to transfer of certificate of insurance.  Wherein their lordship raised a question “Whether without the insurance policy being transferred in the name of the Appellant it was entitled to be indemnified by the insurer? Answered as No.  In the said citation their lordship has discussed the matter with reference to Section 157 of Motor Vehicles Act 1988 and it refers to third party risk only and if the policy covers other risks the matter falling outside Chapter-XI of new Act and realm of Contract between the insurer and the transferee and held that, “insurer had not transferred the policy of insurance in relation to the transferee the insurer was not liable to make good of the damage of the vehicle”.  The said citation is fully attracted to the facts and circumstances of the case on hand.  Wherein in this case also the complainant has not made any efforts to transfer the policy of the insurance in his name from the original owner.  Further it is relevant to state here that, in many of the judgments of the Hon’ble National Commission with reference to subject matter of transfer of policy referred the said three bench decision of Hon’ble Apex Court.

 

15.   Further we relay another citation reported in 2016 CPJ Vol-2 Page 678 (NC).  Wherein in the said citation their lordship has held that, “the complainant having failed to get insurance policy transferred in his name is not entitled to claim compensation on account of loss to the vehicle due to the accident”.  In the said citation their lordship has relayed above said three bench decision of Hon’ble Supreme Court judgment and so also the judgment of Hon’ble National Commission and at para-5, observed that, “transferee of the vehicle is not entitled to the compensation for the damages of the vehicle in the absence of transfer of policy in his name”.  And so also in 2016 CPJ Volume-2 PAGE 685 (NC) wherein their lordship has also relied about said three bench decision judgment and at para-16 by referring citation reported in 2009(1) CLT 29 (NC) it is held that, “as by the time of car met with an accident the petitioner has not even applied for transfer of policy in his favour, he has no locus-standi to file the complaint and at Para-17 it has been held that, the provision of 157 of M.V. Act which are also on the same lines as that of GR-17 have not been complied and both Fora have committed grave error in the Consumer Complaint and Revision Petition allowed consumer complaint filed by the complainant stands dismissed”.

 

 

16.   In 2016 CPJ(1) Page 446 (N.C.) wherein his lordship has discussed the matter with reference to Section 157(2) of Motor Vehicles Act of 1988 and GR-17 of Indian Motor Tariff Regulation Act, wherein the accident took place before expiry of 14 days for applying transfer of insurance.  Transfer of insurable interest under “own damage” “package policy” can be done only with consent of transferor.  But here in this case the complainant has failed to comply the same. 

 

17. In 2017 CPJ Volume-2 page 510 (NC) wherein their lordship has held that, as the policy stands in the name of the original owner, the complainant does not have any insurable interest in the matter, repudiation is justified.  And herein in this case also the complainant is not having any insurable interest to claim the amount from the OP. 

 

18.   In 2017 CPJ Volume-4 Page 507 in the said case also their lordship has referred three bench decision judgment of the Hon’ble Apex Court and other citations of Hon’ble National Commission and discussed the matter with reference to Section 157 of M.V. Act of 1988 and GR-17 of Indian Motor Tariff Regulation Act.  In those cases also the transferee never applied for transfer of policy in his name and in the said citation at Page 558 (NC) 2017 his lordship discussed the matter with reference to seen 157(2) of M.V. Act and held that, as the insurance policy not stood transferred in the name of the complainant, the complainant is not entitled for any compensation and there is clear patient mistake in awarding compensation and the complaint stands dismissed.  And in the said citation at Page 591 of Hon’ble National Commission also relayed three citations and held that, “insurance policy in question is not transferred in favour of the complainant and there is no privity of contract between the complainant and the insurance company” repudiation justified.  

 

19.   In 2018 CPJ Volume-1 Page 463 (NC) wherein his lordship has discussed the matter with respect to 157 of M.V. Act of 1988 with respect to transfer of ownership and so also with respect to GR-17 Indian Motor Tariff Regulation Act.  It is held that, no insurable interest in vehicle as he has no policy in his name to claim compensation and there is no insurable interest and dismissed the complaint.  In the same citation at Page-101 of Hon’ble Chhattisgarh State Commission his lordship has relayed three bench decision of Hon’ble Supreme Court of India as we already stated above and five judgment of Hon’ble National Commission and three citation of Hon’ble State Commission and discussed the matter with reference to Section 157(2) of M.V. Act of 1988 and GR-17 Indian Motor Tariff Regulation Act with respect to non-transfer of policy the claim repudiated and by referring the above said citations, come to the conclusion that, the policy is not transferred in the name of the transferee the insurance company cannot be held liable to pay claim in case of own damage of vehicle.  And the impugned order passed by the District Forum is set-aside and complaint stands dismissed.

 

20.   Hence under these circumstances as discussed above all the above citations referred by us are attracted to the facts and circumstances of the case on hand.  Wherein in this case the insurance policy was not transferred in the name of the complainant/transferee and the insurance company is not liable to pay any compensation to the complainant as there was no privity of contract between the complainant and the insurance company.  Such being so, the complainant has failed to make out any deficiency of service on the part of the OP.  Hence as discussed above, the complainant is not entitled to claim any reliefs as prayed by him.  Accordingly we answer Point Nos. 1 to 3 are in the Negative.

 

POINT NO.4:-

21.   In view of our findings on Point Nos. 1 to 3 and the discussions made thereon, we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 13^th DAY OF JULY 2018)

 

LADY MEMBER                                PRESIDENT