D.o.F:06/7/12D.o.O:21/11/12
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.222/2012
Dated this, the 21st day of November 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.RAMADEVI.P : MEMBER
SMT.BEENA.K.G : MEMBER
Aboobacker
S/o C.H.Muhammd, Kammadath Veedu,
6/314, Kinanoor Karinthtlam, : Complainant
PO.Parappa, Hosdurg.
(Adv.AKV Balakrishnan,Hosdurg)
National Insurance Co.Ltd
Branch Officer, Perumal Building, : Opposite party
Perumba,Payyanur.
(Adv.C.Damodaran,Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The sailent facts of the case those are necessary to settle this consumer complaint are recapitulated here under.
Complainant is the RC owner of the vehicle bearing Reg.No. KL-14/C 2758. It was duly insured with opposite party. However the policy was stood in the name of its previous owner Narayanan Nair. Complainant submitted application for transfer of ownership before the Joint R.T. Office Kanhangad on 3/3/2011 and he got the RC endorsed in his name on 7/4/2011 only . In the meanwhile on 5/4/11 the vehicle has been stolen. He submitted claim application before the opposite party with all necessary documents like RC, FIR lodged pertaining to theft, Final Report etc. But opposite party repudiated the claim as per their letter dated 14/10/2011 stating that they have no contractual relationship with the complainant to indemnify the loss sustained to him with regard to the vehicle since the insurance policy of the vehicle was in the name of Narayanan Nair at the relevant date of theft. Therefore the complaint alleging deficiency in service on the part of opposite party.
2. According to opposite party the vehicle has been duly insured during the period 16/11/2011 to 15/11/2012 in the name of Narayanan Nair. But the complainant has not paid any premium and there is no privity of contract between complainant and opposite party. Complainant had 14 days time to get the insurance certificate transferred in his name. Complainant should have applied for transfer of insurance certificate on or before 17/3/2011. Complainant has the benefit of deemed transfer as per Sec 157 of the M.V Act only during 14 days period. RC alone is not the proof of ownership as per Sec 2 (30) of MV Act. A person in possession of the vehicle under an agreement is the owner under M.V.Act. The provisions of Sale of Goods Act also describes the various circumstances under which ownership passes from the seller to the buyer. RC is not mandatory for the insurer to effect change of name in the policy. On application within 14 days of the transferee becoming the owner, insurer may require a copy of the agreement or a copy of the Form 29&30 signed by the seller and the date contained in those documents are the date of transfer of the vehicle for the purpose of transferring the policy. Complainant who has neither applied for transfer of the policy nor intimated the purchase of the vehicle to the opposite party. Hence he is not entitled for the benefit of the policy and therefore the claim of the complainant is rightly repudiated. Further the intimation of theft to the police was after 3 days and intimation to the opposite party was after 14 days. Eventhough policy coverage is for `65,000/- the loss of complainant before the police is ` 49,000/-. Hence there is no deficiency in service on the part of opposite party.
3. Documents produced by the complainant are marked as Exts.A1 to A9 and Exts.B1 to B4 marked on the side of opposite parties. Learned counsel for the both the parties are heard. Documents perused.
4. Ext.A1 is the postal envelop addressed to the complainant issued from Joint Regional Transport Office Kanhangad sent on 6/4/11. The seal of Parappa post office dtd 7/4/11 is fixed on the reverse side. According to the complainant Ext.A1 is the postal envelop contained the RC of the vehicle KL-14/C 2758 issued from Jt.RTO Kanhangad to him after transferring the RC in his name. Ext.A2 is the photostate copy of the RC issued from Jt.RTO Kanhangad in the name of complainant after transferring the vehicle in his name. Ext.A2 shows that the RC has been transferred on 23/3/2011. Ext.A3 is the certificate of insurance for the period from 16/2/2011 to 15/2/2012pertaining to KL 14/C 2758. Ext.A4 is the copy of the complaint lodged before the SHO Mangalore East Police Station. Ext.A5 is the copy of FIR . Ext.A6 is the Final Report. Ext.A7 is the letter issued by opposite party to complainant asking certain documents. Ext.A8 is the copy of the letter of information sent to Regional Transport Authority Kanhangad about the theft of vehicle. Ext.A9 is the claim repudiation letter dtd 14/10/11 issued by opposite party complainant.
5. On the side of opposite parties Exts.B1 to B4 marked. Ext.B1 is the copy of Ext.A4. Ext.B2 is the letter issued by Jt.RTO ,/Sub Regional Transport Office Kanhangad to the National insurance Co. Kannur dt 5/9/12. Ext.B3 is the copy of Ext.A3. Ext.B4 is the copy of claim intimation form submitted by the complainant before opposite party.
6. Now the issues to be settled are:-
1. Whether the complainant had any privity of contract with opposite party on the relevant date of theft of vehicle on the strength of the certificate of insurance which stands in the name of Sri.Narayanan Nair?
2. Whether the deemed transfer provision as envisaged U/S 157(i) of MV Act is applicable to own damage claims?
3. What is the order to compensation and costs.?
7. Issues No.1&2: are discussed together for the sake of convenience.
According to the learned counsel for opposite party Sri.Damodaran, the complainant had no privity of contract with the opposite party pertaining to the insurance of vehicle bearing Reg.No.KL-14/C 2758 since on the date of theft of vehicle ie 5/4/2011 the certificate of insurance and policy of insurance was stand in the name of Narayanan Nair, the previous owner of the vehicle and the complainant had not taken any steps to transfer the certificate of insurance in his name. According to him the deemed transfer provision as envisaged U/S 157 of Motor Vehicle Act is limited to 14 days from the date of transfer and therefore he is not entitled to get the claim.
The said contention is not acceptable. For a better understanding it is necessary to extract Sec.157 of Motor Vehicles Act 1998 as amended up to date
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.(underline supplied)
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.
8. So as per this section the deemed date of transfer of certificate of insurance and the policy attached there to dates back to the date of transfer of the vehicle.
In the instant case on hand Ext.A2 the copy of the RC shows and proves that the vehicle has been transferred in the name of the complainant as on 23/3/2011 itself though the R.C is received by the complainant only on 7/4/2011. But according to opposite party the transfer was on 3/3/2011 as evidenced in Ext.B2 letter issued by RTO Kanhangad to opposite party.
9. Therefore as per Sec.157(1) the certificate of insurance and the policy attached there to shall deemed to have transferred in the name of complainant with effect from the date of transfer of the vehicle irrespective of the date of endorsement in the RC book or the date of delivery of the RC after the transfer endorsement . In this case according to opposite party the actual date of transfer is 3/3/2011. Therefore as per this provision the opposite party definitely will have privity of contract with the complainant from 3/3/2011 onwards.
10. Learned counsel for the opposite party further submitted that the complainant ought to have got the insurance certificate transferred in his name within 14 days from the date of its transfer in view of Sub Section (2) of Sec 157 of the Motor Vehicles Act. At the same time he also advanced an argument that Sec.157(1) is applicable to third party transfer only as it comes within the purview of Chapter XI of the Motor Vehicles Act which deals with Insurance of Motor Vehicles Against Third Party Risks.
11. If Sec.157(1) of the M.V.Act is dealing with third party transfers only then how Sec.157(2) can be made applicable to comprehensive policies? The opposite party had a definite contention that the benefit of deemed transfer as per Sec 157(2) of MV Act is only during 14 days.
12. But on a close perusal of 157(1) and 157(2) of the M.V.Act it is vivid that now there is no requirement of applying to the insurer for transfer of the policy and it gets transferred to the transferee by operation of law. Even though Sec.157(2) of the Act gives 14 days time from the date of transfer to the transferee to make an application to the insurer for making necessary changes in regard to the effect of transfer in the certificate of insurance and the policy described in the certificate in his favor , the liability of the insurer cannot be absolved even if such transfer is not consequently effected by it since Sec.157(2) specifically says that the insurer shall make necessary changes in the certificate and in the policy of insurance with respect to the transfer of insurance when such application is made. Sub section 2 of Sec.157 of the M.V.Act provides only a procedure to intimate fact of transfer of vehicle to the insurer in order to make necessary changes in the certificate of insurance and the policy to bring it in conformity with the deemed transfer as contemplated U/s 157(1) of the Act for the purpose of indemnifying the transferee relating to the risk covered under the policy and that non compliance with this procedure does not automatically invalidate the deemed transfer that had taken place by virtue of the operation of law as contemplated U/s 157(1) of the M.V.Act.
13. Now the moot question that poses is whether the deemed transfer provision under sub section (1) sec.157 can be extended to the damages caused to the vehicle of the insured himself i.e., for own damages. The Hon’ble Supreme Court in the case of Complete Insulations (P) Ltd vs. New India Assurance Co.Ltd reported in I (1996) CPJ 1(SC) has held that the transferee is not entitled to be indemnified by the insurer without the insurance policy being transferred in his name since Sec.157 (1) of the Act is applicable in respect of third party only and if the policy of insurance covers other risks as well as damages caused to the vehicle of insured himself that would be a matter falling out side chapter XI of the 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.
14. But the Hon’ble Supreme Court has rendered the aforesaid judgment by applying the unamended sub section (1) of Sec.157 of Motor Vehicle Act 1988.
The Motor Vehicles Act 1988 came in force w.e.f 1/7/1989 has undergone a large number of amendments in the year 1994.
15. Before proceeding further with the matter it will be in the fitness of things if a reference is made to the objects and reasons which were taken into note by the legislature when Amending Act No. 54 of 1994 was introduced and passed by it were as under :-
1) Prefatory Note: - statement of objects and Reasons to Amending Act 54 of 1994- The Motor Vehicles Act 1988(59 of 1988) consolidated and rationalized various laws regulating transport. The act came into force with effect from 1/7/1989 replacing Motor Vehicles Act 1938.
2) After coming into force of the Motor Vehicles Act 1988, Government received a number of representations and suggestions from the state Government, transport operators and members of public regarding the inconvenience faced by them because of the operations of some of the provisions of the Act 1988. A Review Committee was, therefore constituted by the government in March 1990 to examine and review the Act 1988.
3) The recommendations of the Review Committee were forwarded to the State Governments for comments and they generally agree with these recommendations. Government also considered a large number of representations received after finalization of the Report of the Review Committee, from the transport operators and public for making amendments in the Act. The draft of the proposals based on the recommendation of the Review Committee and representations from the public were placed before the Transport Development counsel for seeking their views in the matter. The important suggestions made by the Transport Development council relate to are on account of:-
(a) The introduction of newer type of vehicles and fast increasing number of both commercial and personal vehicles in the country.
(b) Providing adequate compensation to victims of road accidents without going into long drawn procedure,
© protecting consumers interests in transport sector:
(d) Concerns for road safety standards transport hazardous chemicals and pollution control:
(e) Delegation of greater powers to state transport authorities and rationalizing the role of police authorities in certain matters:
(f) The simplification of procedures and policy liberalization in the field of transport:
(g) Enhancing penalties for the traffic offenders:
4) Therefore the proposed legislators have been prepared in the light of the above background. The Bill, inter alia provides for:-
(a) Modification and amplification of certain definitions of new type vehicles:
(b) Simplification of procedure for the grant of driving licenses;
(c) Putting restrictions on the alteration of vehicles:
(d) Certain exemptions for vehicles running on non- polluting fuels:
(e) Ceilings on individuals or company holdings removed to curb benami holdings:
(f) State authorized to appoint one or more State Transport Appellate Tribunals.
(g) Punitive checks on the use of such components that do not conform to the prescribed standards by manufacturers and also stocking/sale by the traders:
(h) increase in the amount of compensation to the victims of hit and run cases:
(i) removal of time –limit for filing of application by road accident victims for compensation
(j) punishment in case of certain offences made stringent:
(k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income. Which is more liberal and rational?
5. The Law commission in its 119th Report had recommended that every application for a claim be made to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, at the option of the claimant. The Bill also makes necessary provision to give effect the said recommendation.
6. The Bill seeks to achieve the above objectives:
16. Sec.157 (1) of the Motor Vehicles Act has also undergone an amendment, because of the inconvenience faced during its operation because of the frequent transfer of motor vehicles without transferring the insurance policies and the consequential denial of own damage insurance claims by the insurer. Therefore an explanatory note was added to Sec.157 (1) of the Act by way of amendment. The added explanation is reproduced below:
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.(emphasis supplied)
17. On a plain reading of this explanation added to sub section 1 of Sec.157 of Motor Vehicles Act as per the amendment for the removal of doubts it is apparent that after the amendment, not only the liabilities mentioned in the certificate of insurance and policy of insurance relating thereto but the ‘rights’ vested with the transferor of the vehicle as per the certificate of insurance and the policy relating there to shall also deemed to have transferred in the name of transferee.
18. If the ‘rights ‘and ‘liabilities’ described in the certificate of insurance and the policy relating there to is deemed to have transferred in the name of transferee, then what is there further remaining to be transferred ? Therefore, it is necessary to explain the matter a little further.
19. As per the instructions of Tariff Advisory Committee of the insurance sector there are two kinds of policies. They are ‘package policies’ and ‘third party policies’. In case of third party policies, the owner of a vehicle has no rights but only liabilities. That is why a third party policy is known as ‘liability only policy.’ The rights are included only in package or comprehensive policies. So by way of this amendment it is evident that transferee will get the absolute transfer of the certificate of insurance and policy relating there to in his name with effect from the date of transfer of the ownership of the vehicle and not only the liability part or the third party risk portion of the policy alone.
20. Moreover, what is ‘liability’ is defined U/S 145(c) of the Motor Vehicles Act. But neither under Sec.145 nor any other sections of Motor Vehicles Act defines ‘rights’. Then what are the rights deemed to have transferred as per the certificate or policy of insurance by way of amending Act shall be gathered from the context of the certificate of Insurance and the policy of insurance. No doubt in package policies alone the insured enjoys rights against his insurer for getting his loses indemnified due to the use of vehicle.
21. Further another important aspect to be noted here is that there are no other chapters or sections of Motor Vehicles Act 1988 deals with the transfer of certificate of insurance. Therefore, the legislature without considering the head note, frame work and limitations of Chapter XI has introduced the amendment to that section. It is pertinent to note that when the amendment has been brought to sub-section (1) of Sec.157 as per amending Act 1994 there were no judicial pronouncements of Hon’ble Supreme Court declaring that Chapter XI of Motor Vehicles Act is confined to third party claims alone. Moreover other amendments brought to other sections of Chapter XI of Motor Vehicles Act are also not confined to third party alone. For example Sec.147(1)(b) is amended by which the owner of the goods or his authorized representative carried in the goods vehicle is also brought within the purview of Chapter XI even though he is not a third party! Prior to amendment the owner of goods or his authorized representative was not entitled for compensation arising out of the accident caused to the vehicle since he was not considered as third party .
22. Moreover if the aforesaid amendment added by way of explanation for the removal of doubts after much discussions at various committees does not donate anything to the scope of the section or remove any doubt then it has to be regarded that the legislature has done a futile exercise by this amendment. That would never have been the intention of the legislature. Hence on analyzing the amendment to sub section 1 of Sec.157 of the Motor Vehicles Act in the back ground of its objects purposes and reasons it is clear that what is aimed by the legislature is the absolute transfer of the certificate of insurance and policy relating there to and therefore the court has to choose that interpretation which represents the true intention of the legislature.
23. The Hon’ble Supreme Court in the case of Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 27 observed as follows:
“The interpretative function of the Court is to discover the true legislative intent. It is trite that in interpreting a Statute the Court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective for the consequences. Those words must be expounded in their natural ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to
adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the Court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconditional.”
It is well settled law that while interpreting a Statute effort should be made to give effect to each and every word used by the Legislature. It should be always presumed that the Legislature inserted every word in the Statute for a purpose and legislative intention is that every part of the Statute should have a meaningful effect. A construction which attributes redundancy to the Legislation should not be expected, except for compelling reasons such as obvious drafting errors (see State of U.P. and others Vs. Vijay Anand Maharaj : AIR 1963 SC 946)
Further the Hon’ble Supreme Court in the case of P.K. Unni v. Nirmala Industries and Ors. (1990) 2 SCC 378 held:-
“Where the language of the Statute leads to manifest contradiction of the apparent purpose of the enactment, the Court can, of course, adopt a construction which will carry out the obvious intention of the Legislature. In doing so “a judge must not alter the material of which the Act is woven, but he can and should iron out the creases”.
24. The Hon’ble Supreme Court in the case of National Insurance Co.Ltd vs. Laxmi Narain Dhut reported in 2007 CTJ 445 (SC) has held as below.
A statute is an edict of the Legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of those who make it and the duty of the court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one’s thought or that the assembly of Legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative Legislature to foresee all situations exhaustively and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed.
25. It is settled that law enacted by the Parliament cannot be changed or made useless by judicial interpretation. The question of interpretation comes only when the provisions of legislative enactment are either not clear ambiguous or cannot depict the true meaning. When the provisions of the legislative enactments, are plain, clear and unambiguous, then these cannot be negativated through judicial interpretation. Reliance can be placed upon various authorities of the Hon’ble Supreme Court on this point. The Hon’ble Supreme Court in the case of State of UP & others vs Jeet.S Bisht & Anr reported in 2007 (6) SCC 586 has specifically held that court cannot add or substitute a word in a statute. By judicial verdict the court cannot amend the law made by the Parliament or State Legislature. It has been further held by the Hon’ble Supreme Court in the said judgment that a mere direction of the Hon’ble Supreme Court without laying down any principle of law is not a precedent. It is only where the Hon’ble Supreme Court lays down a principle of law that will amount to a precedent. The courts are subordinate to law and not above the law.
26. The Hon’ble Supreme Court in the case of Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd & Ors has held:
It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, sections by sections and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity or inconsistency there in and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.”
True meaning of a provision of law has to be determined on the basis of what provides by its clear language with due regard to the scheme of law…’
It is also will settled that a beneficent provision of legislation must be liberally construed so as to fulfill the statutory purpose and not to frustrate it.
27. It is true that Sec.157 of the Motor Vehicles Act coming under Chapter XI which bears the head note ‘ Insurance of Motor Vehicles against Third Party Risks’. But it has to be taken note that even before the interpretation of the Hon’ble Apex Court in the case of Complete Insulations(P) Ltd vs. New India Assurance Co.Ltd that Chapter XI of Motor Vehicles Act is applicable to third party claims only, the amending Act 50 of 1994 was come in to force. But the Hon’ble Apex Court has rendered the said judgment without looking to that amendment. But merely because of the fact that Sec.157 comes under Chapter XI of the Act which bears the head note ‘liability of insurer against third party risks’, a blanket ignorance of the application of the amended section by adhering on the words of the head note would amounts to denial of a legitimate right guaranteed by the statute. The head note shall not be allowed to control the operation of law laid down by the legislature
28. In this regard it is worth look in to the view of the Hon’ble Apex Court. Hon’ble Supreme Court in the case of K.P.Varghese vs. The Income Tax Officer reported in 1981 AIR 1922 (SC) 1982 SCR (1) 629 has held:
“It is undoubtedly true that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating the drift of the section or to use the words to show what the section is dealing with. It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous but being part of the statute, it prima facie furnished some clue as to the meaning and purpose of the section”.
29. Therefore applying the principles enunciated in the above judgments and also looking into the objects and reasons of the amendment brought to sub section 1 of Sec 157 it is crystal clear that during transfer of ownership of the vehicle the transferee will get absolute transfer of the certificate of insurance and policy relating there to and not only the liability portion alone and therefore the transferee of a vehicle is entitled to get his own damage claim indemnified even if he has not complied the procedure laid down in sub section (2) of Sec.157.
30. Another important and interesting aspect is that even the General Insurance Corporation has conceived the legislative intention of the amendment to sub section (1) of Sec.157. Therefore, in 1994 itself a circular has been issued by the General Insurance Corporation. with regard to the transfer of vehicles and the transfer of insurance benefits automatically in favor of the transferee. The same was in conformity with the amendment brought to sub section(1) of Sec157. The said regulation was a part of the Indian Motor Tariff Regulation which reads as under:
Transfers:
On transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner. The bonus/mauls already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/mauls will apply as per the new owner’s entitlement.
If the transferee wants to change the policy in his name, it may be done on getting evidence of sale and a proposal form duly completed. The old certificate of insurance must be surrendered to the insurance company and a new certificate of insurance can be issued by collecting a fee of `15/-. If the old certificate is not surrendered, a declaration is to be taken from the new owner before issuing a new certificate.
31. But the matters turned upside down when the Hon’ble Apex Court in Complete Insulation’s case without looking into the amendment has held that Sec.157(1) of the Motor Vehicles Act is applicable to third party claims only and if the policy of insurance covers other risks as well like the damages caused to the vehicle of insured himself that would be a matter falling out side the chapter XI and in the realm of contract for which there must be an agreement between the insurer and transferee, the former undertaking to cover the risk or damage to the vehicle. In the light of this judgment the Insurance companies also took a somersault and accordingly in the present India Motor Tariff which came into effect on 30/06/2002 the new regulation No.17 is inserted that is as follows:
GR.17 Transfers: “ …….. In case of Package policies, transfer of the Own Damage section of the policy in favor 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. If the transferee is not entitled to the benefit of the No Claim Bonus (NCB) shown on the policy or is entitled to a lesser percentage of NCB than that existing in the policy recovery of the difference between transferee’s entitlement, if any, shown on the policy shall is made before effecting the transfer.
A fresh proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.
Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and fresh proposal from duly filled and signed the old certificate of insurance for the vehicle, is required to be surrendered and a fee of ` 50/- is to be collected for issue of fresh Certificate in the name of the transferee. It for any reason the old certificate of insurance cannot be surrendered; a proper declaration to that effect is to be taken from the transferee before a new certificate of insurance is issued.”
32. But this General Regulation of the India Motor Tariff is at the most can be considered only as a subordinate legislation which has no independent existence when the statute poses a contrary view.
In this regard the Hon’ble Apex court held in the case of Kerala Samsthana Chethu Thozhilali Union vs. State of Kerala & Ors reported in 2006(2) KLT 270 (SC) as follows:-
“ A rule is not only required to be made in conformity with the provisions of the Act where under it is made, but the same must be made in conformity with the provisions of any other Act. A subordinate legislation cannot be violative of any plenary legislation made by Parliament or State Legislature
Applying the principles enunciated in the aforesaid judgment it is manifest that the present GR-17 which came into effect superseding GR-10 is violative to Sec 157 (1) of the Motor Vehicles Act and therefore it is legally not sustainable.
33. In view of the above discussions it is clear that the opposite party had privity of contract with complainant as on the date of theft of the vehicle Mahindra Jeep bearing Reg No. Kl-14/C 2758 which is having a declared value of ` 65070/-.
34. Opposite party in their version has taken yet another contention that the complainant intimated about the theft only after 14 days and the police was informed after 3 days. But delay in intimation is not reason stated by the opposite party to repudiate the claim. It is settled law that the insurer is prevented from taking additional grounds of repudiation that is not stated in the repudiation letter. Hence we are not inclined to accept the contention of opposite party that there is delay in intimating the opposite party about the theft of vehicle.
Therefore we hold that the repudiation of the claim of the complainant amounts to deficiency in service.
35. Relief and Costs
As per Ext.A3 policy the IDV of the vehicle is ` 65070/-. But in Ext.B1 the complainant informed the Mangalore police that the approximate value of the vehicle is `49000/-. Therefore we are of the view that complainant is entitled for that amount only.
Therefore the complaint is allowed and opposite party is directed to pay `49,000/- to the complainant with a cost of ` 3000/- within 30 days from the date of receipt of copy of this order. Failing which `49000/- will carry interest @12% from the date of complaint till payment.
Exts:
A1- 6/4/11.postal envelop addressed to the complainant issued from Joint regional Transport Office
A2- photostate copy of the RC
A3 -certificate of insurance
A4 - copy of the complaint lodged before the SHO
A5 - copy of FIR .
A6 - Final Report.
A7 - letter issued by opposite party to complainant
A8 -copy of the letter of information sent to Regional Transport Authority Kanhangad
A9 - claim repudiation letter dtd 14/10/11 issued by opposite party complainant
B1- copy of Ext.A4.
B2 - dt 5/9/12-letter issued by Jt.RTO Kanhangad toOP.
B3 - copy of Ext.A3.
B4-copy of claim intimation form
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
/Forwarded by Order/
SENIOUR SUPERINTENDENT
