Delhi

North East

CC/383/2014

Rita Sen Gupta - Complainant(s)

Versus

National Ins. co. Ltd. - Opp.Party(s)

21 Jan 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 383/14

 

In the matter of:

 

	Ms. Rita Sengupta R/o J-60/G-6, Abhilasha Apartment Dilshad Colony, Delhi-110095.	Complainant
	Versus
1.         2.	National Insurance Co. Ltd Natmar Hub (Divisional office XIII) Palika Bhawan, R.K.Puram New Delhi-110066.   Bagga Link Motors, 395, Patpar Ganj Industrial Area Delhi-110092.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

18.09.2014 21.01.2019 21.01.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane to the present complaint as narrated by the complainant are that she has been regularly paying insurance premium to the OP1 through its agent OP2 towards the insurance cover of vehicle Maruti 800 bearing registration no. DL 7CB 2710 since last nine years (from 2005) after her husband’s demise in December 2004 in whose name the vehicle was registered. Therefore, 2005 onwards in all the cover notes and policy documents issued by the OP1, the complainant’s name was being shown as the insured post her husband’s demise. However, the subject car got stolen in the night of 10.10.2013 and an FIR bearing no. 576 under Section 379 IPC with respect to the same was lodged by the complainant with the concerned PS Seemapuri, Delhi on 12.10.2013 and the claim for IDV 50,000/- was lodged with the OP1. However the OP1 repudiated the claim of the complainant vide repudiation letter dated 12.12.2013, reiterated vide letter dated 04.06.2014 on grounds that the subject vehicle was registered in the name of the deceased husband of the complainant but the insurance cover for the same was taken by the complainant in view of which there was no insurable interest of the complainant on the vehicle on the date of theft and therefore the claim was not tenable for the said reason. The complainant made several correspondence by way of visits, telephone calls, e-mails and complaints on online grievance portal, IRDA and OP1 for resolution of her problem questioning the OP1 on what basis OP1 and its agent removed the name of complainant’s husband and renewed the subject vehicle insurance policy in complainant’s name for so many years by issuing insurance policy in the name of complainant and raising and receiving premiums from her for so long without any corresponding liability towards claims made by the complainant. The complainant further expressed her agony that even despite and after the theft of the subject vehicle, OP2, the agent of OP1 asked the complainant to pay the insurance premium due in August 2014. Therefore, the complainant being aggrieved by such alleged mistake / negligence / fraud, was constrained to file present complaint before this Forum for praying for issuance of directions to the OPs to pay the claim amount for theft of the subject vehicle on the basis of IDV alongwith interest, pay a sum of Rs. 50,000/- towards physical strain, mental agony and inconvenience suffered by the complainant and cost of litigation. The complainant prayed for punishment to OPs by way of suspension of its license for showing negligence and indifference to the complainant.

Complainant has attached copy of PAN card of her deceased husband, copy of FIR, copy of letter dated 24.10.2013 to RTO Mayur Vihar, Delhi for putting on hold transfer request of subject vehicle in view of its theft, copy of RC of subject vehicle in the name of deceased husband of the complainant, copy of death certificate of husband of complainant, copy of repudiation letters dated 12.12.2013 and 04.06.2014 issued by OP1 to complainant, copy of online complaint with IRDA and status report, copy of insurance renewal covering letters dated 23.07.2005, 03.08.2006 and 23.07.2007 from OP1 to complainant regarding renewal of NATMAR insurance policy no. 1304710, copy of cover notes for the period August 2005 to 2006, August 2010 to 2011, August 2011 to 2012, August 2012 to 2013, August 2013 to 2014 and August 2014 to 2015 and copy of format for insurance of OP1 dated 14.08.2006 filled and signed by the complainant counter signed by authorized signatory of Maruti Insurance alongwith copy insurance renewal receipt no. 078 towards premium of Rs. 1906/- dated 14.08.2007 received by OP1 from complainant.

2. Notices were issued to the OPs on 29.09.2014. None appeared on behalf of OP2 despite service effected on 11.10.2014 and was therefore proceeded against ex-parte vide order dated 28.01.2015. written statement was filed by OP1 in which it took the preliminary objection that as per the investigation conducted by it, the complainant was having no insurable interest with respect to the subject vehicle since the said vehicle was found registered in the name of her husband Shri Shankar Sen Gupta at the time of theft whereas the policy was in the name of complainant on the said date i.e. 10.10.2013 and after enquiry, it was revealed by the complainant herself that her husband had expired on 24.12.2004 after which she continued taking the policy in her name but no steps were taken by her to get the RC transferred and therefore OP1 took the objection that in view of the complainant having failed to comply with Section 157 of Motor Vehicle Act as well as General Regulations, OP1 was not liable to pay any claim to the complainant and had rightfully repudiated the claim. OP1 further objected to the gross delay in intimation of theft to the police as the FIR was registered after two days of theft i.e. on 12.10.2013 which was also violation of policy terms and conditions and therefore prayed for dismissal of the present complaint in view of the non entitlement of relief to complainant.
3. Rejoinder to the written statement was filed on behalf of the complainant in which the complainant in rebuttal to the defence taken by OP1 submitted that the copy of insurance policy was not provided by OP1 to the complainant and that every year that the policy came for renewal, the same copy of RC (in her husband’s name) was submitted to OP1 at the time of payment of premium and the OP1 had prior knowledge of the difference in the owner and insured of the said vehicle and the same was no revelation arising out of any investigation. The complainant further submitted that Section 157 of MV Act is applicable only where insured person has transferred a property to others whereas in her case she was herself shown as insured but was still deprived of her right to claim. With regard to the objection taken by OP1 of delay in registration of FIR, the complainant submitted that the subject car was stolen late night on 10.10.2013 and PCR call was made on 100 number immediately after which preliminary inquiry and ATR / SFR was initiated by the concerned police station which is a standard procedure adopted by the police in vehicle theft cases which explains the time lag between intimation of theft and registration of FIR. With regard to the ground of insurable interest taken by OP1 for repudiation of claim, the complainant submitted that it is contrary insurance certificate issued by OP1 itself on which features the name of the complainant as insured and it is ironic that despite pocketing insurance premium for last nine years, the OP1 refused to acknowledge any legal right to the complainant. Lastly, the complainant reiterated her grievance in the complaint and the abortive efforts made by her before various agencies for redressal of her grievance giving rise to the present complaint.
4. Evidence by way of affidavit were filed by both complainant and OP1.
5. Written arguments were filed by the complainant in which the complainant argued that the OP1 wrongly repudiated the insurance claim in act of deficiency of service despite receiving premiums from the complainant for nine long years where the complainant was being shown as sole insured person of the subject stolen vehicle in question depicting strange conduct and dismal way of functioning of OP1 since the said policies were issued on the basis of the same set of documents and renewed year to year. The complainant further argued that despite theft claim pending with OP1, OP1 again sent a renewal insurance policy for the same vehicle even after the said vehicle was stolen only with the intention of pocketing premium without any corresponding liability. The complainant further argued the incorrect application of Section 157 of MV Act and OP1’s questioning of the factum of the theft of the vehicle by OP1 by mentioning the same as ‘alleged theft’. Lastly, complainant argued that insurance policy is a conclusive documents of insurance cover and indemnifies policy holders, vehicles riders third party etc but due to failure on the part of OPs to discharge their basis duties, kept everybody uncovered and exposed to all possible risks by not adhering to guidelines in serious breach of business license and prayed for relief sought due to deficiency of service and misconduct of OPs.
6. Written arguments were filed by OP1 reiterating its defence taken in the written statement. However notwithstanding, it made a voluntary submission that in the event this Forum passes an order in favour of the complainant, the complainant may be directed to complete all formalities for transfer of vehicle in favour of OP1 and to submitted the requisite documents to OP1.

To buttress its defence, OP1 placed reliance on the judgment of Hon’ble Supreme Court in M/s Complete Insulations (P) Ltd Vs New India Assurance Co. Ltd 1996 AIR 586 passed on 21.11.1995 in which the Hon’ble Supreme Court dealt with Section 157 of MV Act on issue of transfer of certificate of insurance in favour of third party and the judgment of Hon’ble NCDRC in New India Assurance Co. Ltd Vs Ashok Kumar in RP No. 2118/2012 passed on 19.03.2013 on the same issue of Section 157 of MV Act dealing with protection of third party interest.

7. We have heard the arguments addressed by both the parties and have given our anxious consideration to the documentary evidence placed on record.

It is not in dispute that the subject vehicle no. DL 7CB 2710 in question was under insurance cover in the name of the complainant vide policy No. 35101031146135303421 w.e.f. 28.08.2014 to 27.08.2015 granted by OP1 against receipt of premium for an IDV of 50,000/- when the subject vehicle was stolen on 10.10.2013 but the RC continued to be in the name of the deceased husband of the complainant. The dispute arose at the time of filing of theft claim for the same since the OP1 raised an objection of discrepancy between ownership and insurance on grounds of no locus of complainant having insurable interest.

A person is said to have “Insurable interest” in the subject matter insured when he has such a relation or connection with or concern in such subject matter that the insured: (i) will derive pecuniary benefit or advantage from its preservation; (ii) will suffer pecuniary loss or damage from its destruction.

The basis issue involved in this matter is whether OP1 is liable to pay the claim to the complainant, although the Registration Certificate in the name of the previous owner was never transferred in favour of the complainant. The Hon’ble National Commission in landmark judgment of Future Generali Insurance Co. Ltd Vs Sombir in RP No. 3216/15 decided on 16.08.2016 after relying upon the order of Hon’ble Supreme Court in Managing Director, Karnataka State Road Transport Corporation Vs New India Assurance Co. Ltd (2016) 2 SCC, held that Section 157 of MV Act 1988 in Chapter XI of the said Act is applicable in the case of third party risks only. It is very clear therefore that in cases which relate to own damage to vehicle, said Section shall have no application. The Hon’ble National Commission in Murlidhar Vs National Insurance Co. Ltd I (2017) CPJ 510 (NC), discussed the provisions of GR-17 of India Motor Tariff Regulations and upheld the judgment of Hon’ble Andhra Pradesh High Court in Madineni Kondaiah and Ors Vs Yaseen Fatima & Ors that application to register a vehicle is only for the purpose of controlling and regulating the movement of vehicles by the authorities under the MV Act and its does not stand in way of passing title to the purchaser. The Hon’ble National Commission in judgment of United India Insurance Co. Ltd Vs Jagmohan Trehan in RP No. 3003/2008 passed on 31.05.2016 held that if the request of transfer of policy has been made within 14 days of purchase of vehicle, the insurance company could not repudiate the claim. The Hon’ble National Commission in the judgment of New India Assurance Company Ltd. Vs Akbar (2014) CPJ 395 (NC) held that the complainant would be entitled for reimbursement of damages only if policy had already been transferred in his name before theft took place. Similar view has also been taken by the Hon’ble National Commission in the judgment of Mohammad Ishakbhai Timberwala Vs Tata AIG General Insurance Co. Ltd. II (2016) CPJ 592 (NC).

The Hon’ble National Commission in the judgment of IFFCO Tokio General Insurance Co. Ltd Vs Suresh Hiraman Mahajan I (2017) CPJ 484 (NC) held in a case where the insurance company, despite knowing that no transfer of ownership had taken place and the vehicle continued to be legally registered in the previous owner’s name repudiated the theft claim despite validity of the policy, that insurance company should have honored the claim but instead took the advantage of information provided by the complainant of Registration Certificate being in previous owner’s name which if had not been revealed, the insurance company would not have known. But instead of appreciating the fact that the complainant approached the consumer Fora with clean hands by not with holding any information, the insurance company choose to repudiate the claim amounting to deficiency of service.

The Hon’ble National Commission in Shri Ram General Insurance Co. Ltd Vs Prem Prakash II (2018) CPJ 381 (NC) held that for obtaining the benefit of insurance for own damage, the transferee has to apply to the insurance company. In the recent judgment of Hon’ble NCDRC in Manish Saini Vs National Insurance Co. Ltd IV (2018) CPJ 356 (NC), the Hon’ble National Commission after appreciating the facts of the case came to the conclusion that it was the duty of the complainant to get the policy transferred within three months in event of death of sole insured, failing which there was no insurable interest. The Hon’ble Delhi SCDRC in the judgment of National Insurance Company Ltd vs Dinesh IV (2017) CPJ 25 (Del.) held that the transferee shall apply to the insurer for making necessary changes in regard to fact of transfer in certificate of insurance policy in absence of which even if RC was in the name of the transferee, it cannot be said that he had any insurable interest in the vehicle thereby incline that it was mandatory to have the insurance policy transfer as a requirement for insurable interest.

An interesting case law which is in stark contrast to the present case but pertinent / relevant nevertheless is Nirasha Sinha Vs HDFC Ergo General Insurance Co. Ltd passed by Hon’ble NCDRC I (2018) CPJ 240 (NC) in which the claim was repudiated by the insurance Company on ground that policy was a nullity since it was obtained in the name of dead person and the factum of death was not conveyed to the insurer nor was request for transfer of policy in the name of complainant made to the insurer and the complainant did not intimate the death of her husband to the insurer and seek issuance of policy in her name. The Hon’ble National Commission in the said case had upheld the repudiation and contract being a nullity in the eyes of law.

Whereas in the present case, the change in the name of the insured i.e. the complainant was accepted by OP1 by issuing Private Vehicle Package Policy which clearly meant that the complainant became the policy holder 2005 onwards and continued to be the insured with respect to the said vehicle till its theft in 2013.

After application of judicial mind and aforesaid discussion of case laws, it has to be held that OP1 wrongly repudiated the claim of the complainant despite having acknowledged her as the insured for nine years on receipt of premium and arbitrarily repudiated the claim thereby committing gross deficiency in service. Moreover, it has taken a pedantic stand in the matter.

As laid down by Hon’ble Supreme Court in Galada Power and Tele Communication Ltd Vs United India Insurance Co. Ltd and Ors IV (2016) CPJ 5 (SC), the insurer cannot be allowed to travel beyond the repudiation letter issued by it and cannot be allowed to contest the claim on a ground which was not the ground of repudiation, the OP1 therefore cannot take additional ground of belated FIR for repudiation which even otherwise is not maintainable.

8. We therefore, hold OP1 guilty of deficiency of service and allow the present complaint on merits and direct the OP1 to pay the IDV of Rs. 50,000/- to the complainant towards the total loss of the subject vehicle. We also direct the OP1 to pay a sum of Rs. 10,000/- to the complainant as compensation for physical strain, mental agony and inconvenience suffered by the complainant and                   Rs. 5,000/- towards cost of litigation. Let the order be complied by OP1 within 30 days from the date of receipt of copy of this order.                        
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  21.01.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member