<br /> <br /> DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALAPPURAM<br /> <br /> (Present: Smt. C.S. Sulekha Beevi, President,<br /> Smt. E. Ayishakutty, Member)<br /> <br /> Date of filing: 26-12-2005<br /> <br /> Date of Order: 15-9-2008 <br /> O.P..No.89/05<br /> <br /> Unni Alavi, S/o Moideenkutty, ) House No.1/67, Puthiyara House, ) Complainant <br /> Nambooripotti Post, Edakkara, Malappuram Dt. )<br /> Pin – 679 333 )<br /> )<br /> (By Adv. K.V.P. Muraleedharan, Malappuram) )<br /> <br /> Vs<br /> <br /> 1. National Insurance Company Limited, ) represented by its Branch Manager, ) Korambayil Arcade, Pandikkad Road, ) Manjeri Post, Malappuram District. ) <br /> ) <br /> (By Adv. P.V. Sethumadhavan, Manjeri) ) Opposite parties<br /> 2. M/S. Sakthi Finance Ltd., )<br /> 5/2248-D, Indira Gandhi Road, )<br /> Kozhikkode – 673 004 )<br /> )<br /> (By Adv. V. Kumar, Manjeri) ) <br /> <br /> ORDER <br /> <br /> By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. This complaint is preferred by the power of attorney holder of the complainant. The complainant Sri.Unni Alavi purchased a Maruthi Car No.KL-10R/1095 from his father-in-law Sri.Unni Hydru. At the time of purchase he availed finance from second opposite party. The vehicle was insured with first opposite party and the policy was issued in the name of his father-in-law, Hydru. The transfer of the vehicle was endorsed in the Registration Certificate of the vehicle with effect from 15-8-2003. This transfer took place with consent and knowledge of second opposite party, the financier. Immediately after transfer second opposite party informed the transfer to first opposite party by their letter dated, 25-8-2003 and requested first opposite party to issue endorsement of transfer of insurance policy in favour of complainant. The proposal form duly signed by complainant was also enclosed along with the letter. That complainant believed first opposite party would transfer the policy in his name. While so, on 29-4-2004 at 05.00 hrs the vehicle was fully burnt in an accident that happened when the vehicle was parked in the Carporch of Korambayil Memorial Hospital, Manjeri. The accident occurred due to short circuit in the electrical system. Fire service intervened but the vehicle was fully blown and sustained heavy damages. Complainant intimated the accident to first opposite party and a surveyor was appointed. The cost of repair was estimated by A.M. Motors, an authorised service centre of Maruthi Cars to be Rs.3,05,021.89/-. Complainant preferred a claim on total loss basis. First opposite party repudiated the claim by letter dated, 08-9-04 on the ground that even though R.C. was transferred to the name of complainant the insurance policy was not transferred and hence first opposite party is not liable to indemnify the complainant. Complainant alleges that the repudiation by first opposite party is on unsustainable grounds and amounts to deficiency in service. It is also averred by complainant that if first opposite party is willing to pay the amount to Unni Hydru in whose name the policy stands complainant would be satisfied. Hence this complaint.<br /> <br /> 2. First opposite party has filed version admitting the issuance of insurance policy in favour of K.T. Unni Hydru in respect of Maruthi Car No.KL-10 R/1095 for the period 23-7-2003 to 22-7-04. The other allegations are denied. It is stated that complainant has not approached first opposite party within the stipulated time for getting the policy transferred. That there was no omission on the part of first opposite party in making endorsement of the transfer of policy. The contract of insurance was with K.T.Unni Hydru only and first opposite party is not liable to indemnify loss of the complainant herein. The repudiation was made on these grounds. Hence complaint may be dismissed.<br /> <br /> 3. Second opposite party has filed separate version admitting that complainant had availed hire purchase finance facility from second opposite party in respect of Maruthi Car No.KL-10 R/1095. It is stated that the insurance Certificate stood in the name of Unni Hydru from whom complainant had purchased the vehicle. Since first opposite party had issued the said policy the sale of the vehicle was informed to first opposite party by letter dated, 25-8-03. Along with this letter second opposite party had enclosed the proposal from duly signed by complainant and also requested first opposite party to issue transfer endorsement in favour of the complainant. The accident to the vehicle is admitted.<br /> <br /> 4. Evidence consists of affidavit filed by power of attorney holder of complainant. Exts.A1 to A3 marked on his behalf. Counter affidavit filed by first opposite party and Ext.B1 marked on behalf of first opposite party. Second opposite party has not tendered any evidence.<br /> <br /> 5. Points for consideration:-<br /> (i) Whether first opposite party is deficient in service.<br /> (ii) If so, reliefs and costs.<br /> <br /> 6. Point(i):-<br /> The issuance of comprehensive insurance policy for the vehicle KL-10R/1095 for the period 23-7-03 to 22-7-04 is admitted. So also the accident to the vehicle during the currency of the policy is not disputed. The claim is resisted by first opposite party upon the contention that though the policy was issued in favour of K.T. Hydru who was the previous owner of the vehicle, the policy was not transferred to the name of the complainant who is the present registered owner of the vehicle. It is the case of complainant that the vehicle was hypothecated to second opposite party and the transfer of vehicle was done with consent and knowledge of second opposite party. It is also his case that he had sought effect of the transfer of insurance policy to his name through second opposite party, but that first opposite party failed to effect such transfer. According to complainant as well as second opposite party, after effecting the transfer in the Registration Certificate of the vehicle, second opposite party issued a letter on 25-8-03 to first opposite party requesting to effect the endorsement of transfer of policy. That the proposal form duly signed by complainant was enclosed along with this letter. Ext.A2 is the photo copy of this letter. It is seen issued to the Divisional Manager of National Insurance Co., Calicut by second opposite party informing the transfer of vehicle and requesting for effecting necessary endorsement of transfer of policy. A copy of Ext.A2 is seen send to the Head Office, ie., National Insurance Co., New Delhi also. At the outset it has to be stated that in the version filed by first opposite party has not specifically denied the averment regarding the letter issued by second opposite party. In the counter affidavit first opposite party affirms that either parties did not inform about the transfer of the vehicle. First opposite party has not offered any explanation against the specific and consistent contention of complainant and second opposite party put forward in regard to Ext.A2 letter. The genuineness of Ext.A2 is also not challenged. In the set of circumstances there is nothing before us to disbelieve Ext.A2 letter. We are able to conclude that complainant had informed the transfer of the vehicle to first opposite party and had also requested to effect transfer of the insurance policy into his name within the stipulated time, through second opposite party. In such a case first opposite party ought to have been courteous enough to issue a reply either to complainant or second opposite party. When such a serious situation of repudiation of claim is involved on receiving Ext.A2 letter first opposite party ought to have issued reply to the complainant informing him as to the further steps if any that has to be taken by the complainant. The attitude of the service provider maintaining total silence and taking advantage of the consumer's ignorance is nothing but sheer exploitation. The Hon'ble Apex Commission has held in Oriental Insurance s. Capt. Ajay Singh Yadavu and another 2008 CTJ 175(CP)NCDRC. R.P.No.1092/06 decided on 31-7-2006, that if request is made to an insurance company for transfer of the insurance policy to the person buying the vehicle there is deficiency in service if the insurance company does not act on the request within a reasonable time.<br /> <br /> 7. Interestingly in this case on repudiation of claim by the Company, complainant has put forward an alternative prayer. It is submitted that he would be satisfied if the amount is paid to K.T. Unni Hydru in whose name the policy stands. This claim of complainant has also not been acceded to by the Company. In Banowarilal Agrawalla Vs. National Insurance 2006 NCJ 72 (NC) R.P.No.2882/2003 decided on 30-5-2005 Apex Commission has held that 'technicality should not come in the way of company honouring it's part of contract.' In the said decided case it was also held that the insured/previous owner could prefer the claim. First opposite party has herein denied the claim to the previous owner in whose name the policy stands and also to the registered owner of the vehicle.<br /> 8. The position is presently settled by National Commission in R.P.No.556/02 Shri Narayan Singh Vs. New India Assurance Co. Ltd. Decided on 22-5-2007 where it is held,<br /> “It is highly deplorable on the part of the Insurance Company to take undue advantage of the ignorance of the consumers. In 1994, a circular has been issued by the General Insurance Company with regard to the transfer of the vehicles and the transfer of insurance benefits automatically in favour of the transferee. The said regulation is part of the India Motor Tariff Regulations.”<br /> “It appears that in a number of cases insurance Companies are suppressing this regulation and take undue advantage and contend with all force that as the insurance policy was not transferred in favour of the new purchaser. Insurance Companies are not liable to reimburse the insurers or the transferees of the vehicle because the transferees were not having any insurable interest.”<br /> “Because such stand is taken by the Insurance Company in number of cases, Insurance Company is directed to pay punitive costs of Rs.1 lakh under Section 14(1)(d) for taking unjustified stand in not disclosing the India Motor Tariff Regulation which was applicable in the present case. The said amount shall be deposited with the registrar of this Commission, who in turn, shall transfer the same in the Consumer Legal Aid Account.”<br /> “It is further directed that Insurance Companies would be careful in not taking such stand which is contrary to the regulations framed by the India Motor Tariff and Insurance Regulatory Development Authority.” <br /> <br /> Applying the principles in the above decisions we find that repudiation of claim by first opposite party is unjustifiable and amounts to deficiency in service.<br /> <br /> 9. Point (ii):-<br /> Complainant prays for Rs.3,05,021.89/- which according to him is the amount estimated for repair by Maruthi Car authorised Service Centre. This estimate is marked as Ext.A3. Though the survey report was produced by first opposite party either side has not brought the report on record. The surveyor has reported that the vehicle is in a completely damaged condition. Therefore the complainant is definitely entitled to indemnification on a total loss basis. As per Ext.B1 the IDV (insured declared value) of the vehicle during the currency of the policy is Rs.1,99,944/- complainant is definitely entitled to payment of this amount. He has to be compensated for the deficiency also. Even after imposing punitive costs, Insurance Company has been repudiating claim taking out the very same contention in one way or another and has to be depreciated. Further in this case complainant has requested for transfer of policy through second opposite party. We therefore hold that this is a fit case to impose punitive interest of 18%.<br /> <br /> 10. In the result we allow the complaint and order first opposite party to pay Rs.1,99,944/- (Rupees One lakh, ninety nine thousand, nine hundred and forty four only)to the complainant along with interest @ 18% from the date of complaint till payment together with costs of Rs.1,000/-(Rupees one thousand only).<br /> <br /> Dated this 15th day of September, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A3<br /> Ext.A1 : Letter dated, 08-9-04 by opposite party to complainant.<br /> Ext.A2 : Photo copy of the letter dated, 22-8-03 by 2nd opposite party<br /> to 1st opposite party. <br /> Ext.A3 : Photo copy of the job estimate dated, 07-5-04 from A.M. Motors, <br /> Varangode, Malappuram.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1<br /> Ext.B1 : Photo copy of the Certificate cum policy schedule.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER