Haryana

Yamunanagar

CC/136/2014

Brijesh Bhola S/o Subhash Chand - Complainant(s)

Versus

National Insurance Company Ltd. - Opp.Party(s)

Gaurav Gupta

14 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

                                                                                    Complaint No.136  of  2014.

                                                                                    Date of institution: 07.03.2014.

                                                                                     Date of decision: 14.06.2016.

Brijesh Bhola aged 29 years s/o Shri Subhash Chand, resident of 2229, Patri Mohalla, Jagadhri, District Yamuna Nagar.

                                                                                                            …Complainant.

                                    Versus

National Insurance Company Limited, Divisional office, New Fountain Chowk, Yamuna Nagar through its Branch Manager.

                                                                                                             … Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Gaurav Gupta, Advocate, counsel for complainant.   

              Sh. Parmod Gupta, Advocate, counsel for respondent.

 

ORDER

 

1.                     The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 praying therein that respondents (herein after referred as Ops-Insurance Company) be directed to pay sum insured on account of damage of car and also to pay compensation and litigation expenses  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that he has purchased a car model Wagon-R bearing No.HR-02K-9288 from its previous owner namely Shri Ramesh Kumar on 10.7.2013 and Registration Certificate was also transferred in his name on 15.7.2013.  On 21.7.2013 the vehicle in question met with an accident and was badly damaged.  The matter was reported to the OP-Insurance Company immediately as the vehicle in question was insured with it vide Policy bearing No.422100/31/12/6100004908 for a sum of IDV Rs.1,08,000/-.  A Surveyor and Loss Assessor was deputed who obtain claim forms and requisite documents i.e. Registration Certificate, Driving Lincense, Ration Card, bank account number etc. from the complainant  also and he asked to the complainant to get repair the vehicle in question.  Thereafter, the complainant got it repaired from M/s Pandit Automobiles who issued estimate of loss to the tune of Rs.3,85,182/-.  All the papers were handed over to the OP and the official of the OP-Insurance Company assured the complainant that they will transfer the amount in his account within a month period.  Complainant requested so many times to release the amount but the OP-Insurance Company issued letter dated 14.11.2013 by repudiating the claim of the complainant which is totally illegal, against the law and actual facts and the same is liable to be set aside because on 10.7.2013 the vehicle was purchased and on 15.7.2013 the same was got transferred.  Accident took place on 21.7.2013 and on the same day the company was intimated within the prescribed period about the transfer of insurance and accident, so OP-Insurance Company can not repudiate the claim of the complainant on this ground.  Moreover, the claim was lodged by the complainant but the repudiation was issued to the previous owner which constitutes deficiency in service on the part of the OP-Insurance Company, hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as this Forum has no jurisdiction; complainant has no locus standi; as per the pleading of the complaint he purchased one car on 10.7.2013 from its previous owner Shri Ramesh Kumar and registration certificate stands transferred in his name on 15.7.2013 whereas accident took place on 21.7.2013 and the complainant has not got transferred his policy in his name after purchase and as per GR-17 in which it has been mentioned, “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 the specific request from the transferee along with consent of transferor”.  Since, no such request is received, so there is no privity of contract between the complainant and OP-Insurance Company on the day of accident.  As such the claim was rightly repudiated by the OP-Insurance Company on 14.11.2013.  On merits it has been admitted that car in question was insured in the name of Ramesh Kumar for IDV of Rs.1,08,000/- but it has been denied for want of knowledge that the complainant purchased the said car on 10.7.2013 because policy in question was not got transferred by the complainant in his name before alleged accident i.e. on 21.7.2013.  It has been further admitted that on intimation Sh.Ashok Kumar Sood, Surveyor and Loss Assessor was appointed to get spot survey  who submitted his report dated 28.7.2013 and thereafter Shri Sandeep Kumar Surveyor and Loss Assessor was appointed to assess the loss who gave his report dated 16.9.2013 (Annexure R.11) and assessed the amount of Rs.77,000/- after deducting salvage value without Registration Certificate to the tune of Rs.30,000/- and excess clause of Rs.1000/- and lastly prayed that as there was no privity of contract between the complainant and OP-Insurance Company, so the claim of the complainant was rightly repudiated vide its letter dated 14.11.2013.

4.                     To prove the case the learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure C.X, and documents such as Photocopy of affidavit of Shri Ramesh Kumar as Annexure C.1, Photocopy of affidavit of Shri Brijesh Bhola as Annexure C.2, photo copy of R.C.as Annexure C.3, Photocopy of D.L.as Annexure C.4, Photocopy of Insurance Policy as Annexure C.5, Photocopy of claim form as Annexure C.6, Photocopy of estimate as Annexure C.7 and photocopy of repudiation letter as Annexure C.8 and closed the evidence on behalf of complainant.

5.                     On the other hand the learned counsel for the Ops tendered into evidence affidavit of Shri Parveen Arora as Annexure RW/A, affidavit of Shri Sandeep Kumar as Annexure RW/B, and documents such as Attested copy of Insurance Policy as Annexure R.1 & R.2, Photocopy of Guideline of GR-17 as Annexure R.3, Photocopy of  repudiation letter as Annexure R.4,  Photocopy of Claim form as Annexure R.5, Photocopy of affidavit of Shri Ramesh Kumar as Annexure R.6, Photocopy of letter dated 19.2.2014 as Annexure R.7, Photocopy of Repudiation letters as annexure R.8 & R.9, Photocopy of estimate as Annexure R.10 and Photocopy of surveyor report as Annexure R.11 and closed the evidence on behalf of Ops.

6.                     We have heard the learned counsels for the parties and have gone through the pleadings as well as documents placed on file minutely & carefully.  Learned counsel for the complainant reiterated the averments made in the complaint and prayed for its acceptance whereas the counsel for the opposite parties reiterated the averments made in the reply and prayed for its dismissal.

7.                     The learned counsel for the complainant argued at length that genuine claim of the complainant has been repudiated by the OP-Insurance Company on flimsy grounds and draw our attention towards photo copy of Registration Certificate Annexure C.3 from which it is evident that registration of the car in question was transferred in the name Brijesh Bhola complainant on 15.7.2013 and further draw our attention towards affidavit of purchaser i.e. complainant and affidavit of seller Ramesh Kumar Annexure C.1 & C.2 from which it is evident that complainant purchase the vehicle in question on 10.7.2013.  Learned counsel for complainant further draw our attention towards copy of D.L. C.4 and estimate bill C.7 and argued that OP-Insurance company has illegally repudiated the claim of the complainant which constitute deficiency in service on the part of the OP-Insurance Company and referred case law CCC 2014(2) P.694 titled as Mallamma (Dead) by L.R.s. vs. National Insurance Co. Ltd. & ors.

8.                     On the other hand the learned counsel for Ops hotly argued at length that claim of the complainant has rightly been repudiated by OP-Insurance Company on 14.11.2013 as there was no privity of contract between the complainant and OP-Insurance Company because the insurance policy was not transferred in the name of complainant, which violate the terms and conditions of GR-17 at the time of alleged accident.

9.                     After hearing the learned counsel for the parties and going through the pleadings as well as documents placed on the file, we are of the considered view that there is deficiency in service on the part of the OP-Insurance Company as it is not disputed that the complainant purchased the car in question on 10.7.2013 which is evident from the copy of affidavits Annexure C.1 & C.2.  Further it is also not disputed that registration certificate of the car bearing no.HR-02K-9288 was not transferred in the name of complainant on 15.7.2013 which is evident from the copy of Annexure C.3.  Further it is also not disputed that alleged accident was not took place on 21.7.2013.  From the perusal of these dates, it is clear that the accident has taken placed during the Grace period i.e. within a period of 14 days from the date of purchase i.e. 10.7.2013 and from the date of transfer of R.C. i.e. on 15.7.2013, as per section 157(2) of the Motor Vehicle Act 1988 amended up to date, which is reproduced here:-

157. Transfer of certificate of insurance- (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.

[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 (14) 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.

10.                   From the perusal of above noted contents of section 157(2) of Motor Vehicle Act it is clear that 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 but in the present case, the vehicle met with an accident within fourteen (14) days i.e. on 21.7.2013 and the complainant lodged the claim immediately to the OP-Insurance Company, so it can not be said that as per GR-17 there was any fault on the part of the complainant.  It is not disputed that the complainant was not registered owner of vehicle in question on the date of alleged accident and further he was lodged claim with the OP-Insurance Company immediately.  As the claim was lodged by the complainant himself being registered owner of the vehicle in question met with an accident within grace period of 14 days as provide in section 157 (2) of the Motor Vehicle Act 1988 as amended up to date, So, we are of the considered view that the claim of the complainant has wrongly been repudiated by the OP-Insurance Company, which amounts to deficiency in service on the part of the OP-Insurance Company and the complainant is entitled for the relief.

11.                   Now, the next question remains, as to what extent the complainant is entitled to get damages. Learned counsel for the complainant argued that complainant has spent huge amount on account of damage to the vehicle is not tenable as no cogent evidence by way of expert report has been filed by the complainant to prove that he is entitled to get the same, whereas on the other hand, OP-Insurance Company placed on file Surveyor & Loss Assessor report Annexure R.11 in which loss has been assessed by the Surveyorand Loss Assessor to the tune of Rs. 77000/- after deducting salvage value without R.C. to the tune of Rs.30000/- and excess clause of Rs.1000/- against total insured value (IDV) Rs.1,08,000/-.  It is settled proposition of the law, held by the Hon’ble National Commission as well as State Commission in various cases, that surveyor is the best technical person to assess the loss and credence should be given to the surveyor report in the absence of any discrepancy or ambiguity in the surveyor report.

12.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OP Insurance Company to pay assessed amount of Rs.77,000/- to the complainant along with interest at the rate of 7% per annum from the date of filing of present complaint till its actual realization and further to pay Rs. 5,000/- as compensation for mental agony and harassment and litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.14.06.2016

                                                                                                (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER