O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is stated as follows:   The complainant is the registered owner of “Maruthy Swift” Car bearing Reg. No.  KL-03/V-6285 in which the opposite party is the insurer.   On 01.01.2015 the complainant purchased this vehicle from one Abdul Rahim and on 05.01.2015 she filed an application for ownership transfer before Adoor RTO.  On 21.01.2015 while the vehicle was driven by the son of the complainant an accident took place near to Pathanamthitta Catholicate College Junction and caused certain damages to the vehicle.  In order to repair the damages of the vehicle the petitioner entrusted the vehicle to the workshop of Maruthy Indus Motors at Kumbzha.  The complainant inform the incident to the opposite party in time and filed a claim form for insurance benefit.  The opposite party repudiated the claim of the complainant due to the delay of the transfer of ownership in the name of the complainant.  According to the complainant, as per the Policy No. 571402/31/14/6100004657 the said vehicle is having a valid insurance policy from 16.05.2014 to 15.05.2015.  He again stated that, on 05.01.2015 she remitted the necessary amount for the transfer of the vehicle and on 24.01.2015 she received directly the RC book from RT office at Adoor.  The complainant again contented that, the opposite party deliberately and purposefully repudiated the own damage claim of the complainant and she explained that, due to the reason of non-availability of RC book she failed to transfer the ownership in her name.  According to the complainant, the opposite party is well aware of the fact of the ownership and purposefully denied the own damage claim.  The act of the opposite party is comes under unfair trade practice and deficiency in service as per the law. She again stated that, the authorized workshop of Maruthy Indus Motors at Kumbzha duly prepare the details of damages and prepare the estimate of Rs.51,000/- for its rectification.  Hence she filed this complaint before this Forum to get a compensation for Rs.25,000/-, estimate amount for Rs.51,000/- etc., from the opposite party.  The complainant filed this complaint before this Forum we peruse the complaint along with the records produced at the time of file this case and decided to issue notice against the opposite party. 
3. The opposite party received the complaint and appeared before the Forum and filed their version.  Version of the opposite party is stated as follows:  According to the opposite party, this case is not maintainable either in law or on facts. This opposite party admitted that, they have issued a Package Policy      (Private Car) No. 571402/31/14/6100004657 as alleged by the complainant.  But it is issued in the name of one Abdul Rahim, C.V.M Purayidom, Chittoor, Pathanamthitta.  According to this opposite party, this complainant did not lodge any claim before the opposite party.  But the above said Abdul Rahim file a claim for the damages sustained the insured in an accident occurred on 21.01.2015.  In pursuance of the said claim the Surveyor of the company assessed the damages and prepared an estimate loss of Rs.31,168.89/-.  Though the claim form was signed by the above said Abdul Rahim all the repair bill was in the name of the complainant Mrs. Shaila.  According to the opposite party, at the time of submitting the claim the above said insured Abdul Rahim had no interest over the insured vehicle.  On 31.01.2015 the complainant sent a letter to the opposite party for the transfer of the insurance in her name.  The opposite party replied that on 05.01.2015 itself the vehicle was transferred in her name and the request for transfer of the insurance was made only on 31.01.2015.  In order to substantiate the contention of the opposite party regarding the transfer of ownership, the opposite party quoted Section 157(2) of M.V Act 1988.  According to this opposite party, it is the duty of the transferee to apply within fourteen days from the date of transfer for making necessary changes in insurance certificate. Here the complainant is applied for the same after 26 days from the date of transfer.  The opposite party again stated that, even in the absence of the RC book an insurance company can transfer the ownership of insurance by the production of sale letter as evidence.  According to this opposite party, this complainant has no locus standi to file this case.  Since the complainant make any claim to the opposite party and the same is rejected or repudiated to the opposite party.  This opposite party prayed to dismiss the complaint with cost.

4. On the basis of the contention raised by both sides and after due verification of the records before the Forum we framed the following issues for consideration.

1. Whether this case is maintainable before this Forum?
2. Whether the opposite party committed any deficiency in service or unfair trade practice as alleged by the complainant?
3. Regarding relief and costs?

           5.     In order to prove the case of the complainant, the complainant’s power of attorney holder is examined as PW1 and marked Exts.A1 to A5.  Ext. A1 is the letter dated 02.02.2015 sent by the opposite party to the complainant.   Ext.A2 is the Job Card detail invoice bills dated 24.02.2015 for Rs.49,081/- issued by Indus Motor Co. Pvt. Ltd. in the name of the complainant.  Ext.A3 is the photocopy of insurance policy. Ext.A4 is the photocopy of RC book and Ext.A5 is the power of attorney executed in favour of the complainant.  On the other hand, the opposite party examined as DW1 and marked Exts.B1 to B4(a).  Ext.B1 is the certified true copy of the Insurance policy with condition, Ext.B2 is the claim form, Ext.B3 is the true copy of survey report, Ext.B4 is the certified and true copy of India Motor Tariff and Ext.B4(a) is the certified and true copy of GR.17.  After closing all evidence we heard both sides. The complainant’s power of attorney holder filed a proof affidavit in lieu of chief examination and in this proof affidavit he deposed more or less as per the tune of the complaint.  According to him, the complainant purchased the said car on 01.01.2015 from one Abdul Rahim and the complainant applied to Adoor RTO for the transfer of the ownership of the vehicle on 05.01.2015.  The power of attorney holder is the son of the complainant he who driven the vehicle at the time of incident ie., on 21.01.2015.  He again deposed that, due to the non transfer of ownership in the name of the complainant within 15 days on the date of transfer the opposite party repudiated the insurance claim of the complainant.  According to this PW1, the vehicle is having a valid insurance at the time of incident and on 24.01.2015 the complainant directly received the RC book from RT office Adoor.  He again deposed that, the estimate for the repair of the vehicle is Rs.51,000/- and the real expense incurred by the complainant is Rs.49,000/- as per the bill (Ext.A2).  On the other side, the opposite party examined the Branch Manager as DW1 and marked Exhibits B1 to B4(a).  He also filed a proof affidavit in lieu of chief examination and the proof affidavit is more or less as per the tune of their version.  This DW1 deposed that, they issued a Private Car Package Policy to one Abdul Rahim as stated in their version for a Maruthy Swift Car bearing Reg. No. KL-03/V-6285 for a period from 16.05.2014 to 15.05.2015.   According to his deposition Ext.B2 claim form is submitted by Abdul Rahim, holder of insurance policy. It is to be noted that, when the opposite party receive the claim form from the above said Abdul Rahim they prepared a survey report of Rs. 31,168.89 and the said report is marked as Ext.B3 in this case.  When we peruse the deposition of DW1, we can see that, the vehicle was transferred to the complainant’s name on 05.01.2015 itself and the request for transfer of the insurance was made only on 31.01.2015. ie., after a lapse of 26 days.  After the closing of the evidence of both sides, we have given an opportunity to both sides to hear the case and we heard both sides.

                 6.  Point No.1 :  When we peruse the evidence adduced by both sides it is very difficult to arrive a conclusion to the effect that the complainant is a consumer of the opposite party.  The definition of a consumer as per the Consumer Protection Act, 1986 Section 2(d) is “consumer” means any person who

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose ; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.  The opposite party in this case seriously raised a contention to the effect that, the case is not maintainable either in law or on facts as per the version and at the time of evidence also.  It is an admitted case to see that, the vehicle in question was covering insurance at the time of incident with the name of one Adul Rahim but it is pertinent to see that, at the time of incident the complainant is not at all an insured of this opposite party (insurer).  The policy is in the name of the above said Abdul Rahim and he is the person who paid the consideration for the insurance policy.  When we strictly followed the provisions of Consumer Protection Act Section 2(d) we have to arrive a conclusion to the effect that the complainant is not a consumer as per the Act.  Accordingly Point No.1 is found against the complainant.

                     7. Point Nos. 2 & 3 :  For the sake of convenience we would like to consider point No. 2 and 3 together.  It is true that, we already found the above complainant is not comes under the definition of ‘consumer’.  But to consider the nature and circumstances and evidence before us we would like to appreciate the evidence with regard to point No. 2 and 3 also.  In this case the opposite party has a definite case to the effect that, the complainant is not an insured under the insurance company and even though there is a valid insurance policy with the vehicle the insured is one Abdul Rahim.  Another contention of the opposite party is that, the complainant has not transferred to her name in the Policy Certificate though it is warranted.  The complainant pleaded that, though the ownership of the vehicle is transferred to her name through a sale letter, the delay caused to transfer the insurance name in her favour is due to the latches happened in the RT office concerned.  But at the same time, the opposite party raised a contention to the effect that, even in the absence of RC book the name of the insurance can be changed on the basis of the sale letter.  More over it is comes out in evidence that, the request for the transfer of the insurance was made only on 31.01.2015 and that is also after a lapse of 26 days.  It is pertinent to see that at the time of the accident of the vehicle, i.e. 21.01.2015 the complainant was not an insured of the opposite party (insurer).  As per the GR.17 of India Motor Tariff  it has been stated “ 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 records and issue fresh Certificate of Insurance.  In case of Package Policies, transfer of the “Own Damage” section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor.  The above said details are produced by the opposite party and which is marked as Ext.B4.  The complainant has a definite case to the effect that, from the date of transfer of the ownership of the vehicle the insurance policy is deemed to be transferred.  Against to this contention of complainant, opposite party cited a decision reported in 2011(3) KLT 590 in National Insurance Co. Ltd V Sindhu in which our Hon’ble High Court find that, “Motor Vehicles Act 1988, Ss.157 & 147 –Transfer of vehicle – Policy of insurance will stand transferred to name of transferee w.e.f date of transfer and such transfer will take within its sweep all compulsorily insurable risks, covered under policy of insurance”. It is held that, “where transfer of a motor vehicle takes place, then, notwithstanding the fact that the transfer has not been specifically noted in the policy of insurance, there is a deemed transfer of the policy of insurance from the transferor to the transferee.  On such transfer, from the date of transfer, the certificate of insurance will operate to protect the interest of the transferee owner and the third party claimants against him.  This is, notwithstanding the failure/omission on the part of the transferee to get the policy of insurance formally transferred to the name of the transferee.  It is easy to identify the rationale behind S.157.  For fault/omission on the part of the transferor and transferee to effect transfer of the policy of insurance to the name of the transferee, the third parties/victims, the liability in respect of whom is compulsorily insurable, should not suffer.  So reckoned, we find not a trace of doubt on the question whether the policy of insurance in so far as it relates to the compulsorily insurable liability under S.147 must be held to be transferred to the name of the transferee.  Proviso (i)(a) of S.147(1) includes the liability under the Act.  The deemed transfer of policy by no acceptable process of reasoning and logic, cannot be said to be inapplicable to such liability under the Act.  The policy of insurance will stand transferred to the name of the transferee with effect from the date of the transfer and such transfer will take within its sweep all compulsorily insurable risks, covered under the policy of insurance.  S.157 will apply only to such compulsorily insurable risk/interest which are covered by S. 147 of the Motor Vehicles Act and not to other contractual stipulations under the policy of insurance not covered by Chapter XI of the Motor Vehicle Act”.   On the basis of the above decision it is clear that, Section 157 of the Motor Vehicle Act will apply only to such compulsorily insurable risks/interest which are covered u/s.147 of the Motor Vehicle Act and not to other contract stipulated under policy of insurance not covered by chapter X1 of the Motor Vehicle Act.  In brief we can come to a conclusion that, the “Deemed Transfer Benefit” can be enjoyed or claimed by 3^rd party insurance person.  Here it is clear that, it is a private policy and the owner of the vehicle is the claimant in this case.  It is proved beyond   any doubt that, at the time of the incident the policy was not transferred in her name and it also come out in evidence that, the application for the transfer of insurance is filed only on 31.01.2015 i.e., even subsequent to the date of incident.  Hence we find that, the opposite party did not commit any deficiency in service or unfair trade practice against the complainant and the complainant has no right to get any kind of relief from the opposite party at present.

                  8. In the result, we passed the following order.  The complaint is dismissed with no cost. 

                  Declared in the Open Forum on this the 29^th day of January, 2016.

                                                                                             (Sd/-)

                                                                             P. Satheesh Chandran Nair,

                                                                                       (President)

Smt. K.P. Padmasree (Member – I)               :    (Sd/-)

Smt. Sheela Jacob (Member – II)                  :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Muhammed Bilal Nazar

Exhibits marked on the side of the complainant:

A1 :  Photocopy of the letter dated 02.02.2015 sent by the opposite party

        to the complainant.  

A2 :  Job Card detail invoice bills dated 24.02.2015 for Rs.49,081/- issued

        by Indus Motor Co. Pvt. Ltd. in the name of the complainant. 

A3 :  Photocopy of insurance policy.

A4 :  Photocopy of RC book

A5 :  Power of attorney executed in favour of the complainant

Witness examined on the side of the opposite parties:

DW1  :  Suresh Babu

Exhibits marked on the side of the opposite parties:

B1 :  Certified true copy of the Insurance policy with condition

B2 :  Claim Form

B3 :  True copy of survey report.

B4 :  Certified and true copy of India Motor Tariff

B4(a) :  Certified and true copy of GR.17

                                                                                               (By Order)

Copy to:- (1)  Shyla Nazar,Padipurathundil Shyla Manzil,

  Kadackad South Muri, Pandalam P.O,

  Adoor Taluk.

               (2)   The Branch Manager, National Insurance Co. Ltd.,

   P.B.No.67, Kallumkathara Buildings, Govt. Hospital Road,

   Pathanamthitta – 689 645.

               (3)   The Stock File.