IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 21st day of December, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member,
Sri. K.M. Anto, Member
C C No. 108/2019 (filed on 08-07-2019)
Petitioner : Jaigy Joseph,
S/o Joseph,
Athitharayil House,
Peroor P.O.,
Kottayam.
(Adv.Rajeev P. Nair, Adv.V.D. Joseph,
Adv.Vikraman Nair)
Vs.
Opposite party : New India Assurance Company Ltd.
Kottayam Divisional Office,
Represented by its
SR. Divisional Manager,
Kottayam.
(Adv.Anie C. Kuruvilla)
O R D E R
Sri. Manulal V.S. President
Briefly stated the relevant facts are that the complainant purchased a new Benz car with registration bearing no. DL-3F-AA-3333 from Prerana Khanna , New Delhi for his personal use and brought to Kerala and re-registered the car at Kottayam with registration number KL 5 W 9595. On 17-8- 2018 there was flood due to heavy rainfall and the car was affected and damaged. At that time the car was insured with the first opposite party vide policy number 67010131180100002801. After the flood the complainant took the car to SATA Tech Automobiles for repairing and contacted the opposite party for inspection in order to claim the insurance. Though the opposite party sent a surveyor and assessed the damages for a cost of Rs. 5,20,000/- for repairing the vehicle on 14-5-2019 the opposite party issued a letter to the complainant stating that they cannot entertain the claim. The reason stated for the same was that the ownership was changed in the RC with effect from 19-7-2018 and the accident happened on 17-8-2018, so according to GR 17 of Indian Motor Tariff, since the subsequent transfer of the ownership in the policy document was not effected within 14 days from the date when the transfer of ownership was effected, they were not liable to pay the claim amount. It is alleged in the complaint that the opposite party illegally rejected the claim of the complainant without considering the fact that the ownership was changed with effect from 14-8-2018, and so the complainant got the original RC book only after 31-8-2018. According to the complainant he had suffered much agony and hardship due to the unfair trade practice and deficiency in service rendered by the opposite party.
Hence this complaint is filed praying an order directing the opposite parties to pay Rs.5,20,000/- along with a compensation of Rs.10,000/-.
Upon notice opposite party appeared before the commission and filed version.
The opposite party contested the complaint by filing written version stating that the car was insured with them on 17-8-2018 but the insured at that time was Prerna Khanna, A.277, New Delhi. In receipt of claim intimation opposite party deputed a surveyor for ascertaining the damage if any caused to the vehicle. When verifying the documents of the car from Kerala Motor Vehicle department it was understood that the said car was transferred to the complainant with effect from 19-7-2018 with new registration number KL 5 W9595. But the insurance policy at that time was still in the name of Prerna Khanna with vehicle No.DL 3f AA 3333. As per GR 17 of Motor Tariff, the policy has to be transferred to the new owner within 14 days of transfer to enjoy the benefit of the claim on own damage under package cover. In case of package policies, transfer of the on damage section of the policy in favor of the transferee shall be made by the insurance company only on receipt of a specific request from the transferee along with consent of the transferor. A fresh proposal form duly filled too is obtained by the transferee both in respect of the 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 form duly filed and signed. The old certificate of insurance for the vehicle is required to be surrendered and a fee of Rs.50 is to be collected for issue of fresh certificate in the name of the transferee. The transferee need not wait for obtaining R.C. Book in new name and the period prescribed from the transfer is counted with effect from the date on which the transfer is mentioned in the R.C. Book.
It is averred in the version that the transfer was noted with effect from 19-7-20018 in the R.C. Book means that the complainant purchased the vehicle on 19-7-2018. So immediately within 14 days with the documents of the transfer ie, with From no. 29, 30 or proof of submission regarding the transfer before RTO , the complainant could have approached the opposite party with a fresh proposal for effecting the transfer of policy. Since the complainant failed in doing so, there is no privity of contract between the complainant and opposite party for entertaining the claim regarding own damage . Even though the transfer was effected with date from 19-7-2018 up to 17-8-2019 no steps were taken by the complainant to get the vehicle transferred in his name. So the opposite party rightly repudiated the claim and the same was duly intimated to the complainant. There is no deficiency in service or unfair trade practice on the part of the opposite party.
Evidence of this case consists of the proof affidavit by the complainant and Exhibits A1 to A9. Satheesh who is the Divisional manger of the opposite party filed proof affidavit and Exhibits B1 to B3 were marked from their side.
On evaluation of complaint, version, and evidence on record we would like to consider the following points.
1. Whether there is any deficiency in service on the part of the opposite party?
2. If so what are the reliefs and costs?
For the sake and convenience we would like to consider the point number 1 and 2 together.
The specific case of the complainant is that he had purchased a new Benz car with registration no. DL-3F-AA-3333 from Prerna Khanna, New Delhi for his personal use and brought to Kerala and re-registered the car at Kottayam with registration number KL 5 W 9595. The said car was insured with the first opposite party vide policy number 67010131180100002801. On 17-8- 2018 there was flood due to heavy rainfall and the car was affected and damaged. According to the complainant though the opposite party sent a surveyor and assessed the damages the opposite party rejected the claim for the reason that the ownership was changed in RC with effect from 19-7-2018 but the subsequent transfer of the ownership in the policy document was not effected within 14 days from the date when the transfer of ownership was effected. It is submitted by the complainant that he opposite party rejected the claim of the complainant without considering the fact that the ownership was changed with effect from 14-8-2018, and so the complainant got the original RC book only after 31-8-2018.
The opposite party resisted the complaint. In the written statement they accepted that the car was insured in the name of earlier owner Prerna Khanna. On receiving the claim intimation, as per the practice opposite party appointed a surveyor for ascertaining the damages. It was claimed that since the complainant did not get the insurance transferred in his name, the claim was rightly repudiated.
Learned counsel for the opposite party contended that the complainant is a subsequent purchaser of the vehicle who did not get the insurance policy transferred in his name. As such there being no privity of contract between the parties, the insurance company was justified in repudiating the claim. In support of her contention, learned counsel for the opposite party has drawn our attention to GR 17 of the Indian Motor Tariff Regulations. The opposite party has also relied upon the judgment of the Supreme Court in the matter of Complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd. (1996 CCJ 56) and the judgments of the National commission in National Insurance company vs Jai Bhagavan (2014 2 CPR(NC) 459), Vijayan M vs Bajaj Allainz General Insurance Co (2016 1 CPR(NC) 262) and New India Assurance CO and Anr vs Akbar (2014 1 CPR (NC) 397).
Learned counsel for the complainant on the contrary has taken us through section 157 (2) of the Motor Vehicles Act and submitted that the aforesaid provision gives 14 days time to the transferee of a vehicle to get the insurance transferred in his name. In the instant case, according to him though the transfer of the ownership of the vehicle in the registration certificate was effected from 19-7-2018, however the registration certificate was received by him only on 31-8-2018. Therefore, there was no justification for repudiation of claim by the opposite party.
On perusal of Exhibit A1 registration certificate it can be seen that the said vehicle was originally registered with the registration authority of New Delhi and the said vehicle migrated from the other state to Kerala and registered in the name of the complainant with registration number KL 5W 9595. Exhibit A2 proves that after the purchase of the said car the complainant had made an application on 28-7-2018 for the allotment of reserved registration number and the same was sanctioned on 30-7-2018. Exhibit A2 proves that the complainant had paid tax and one time cess on 28-7-2018. It is proved by Exhibit A7 that the registration authority has dispatched the registration certificate to the address of the complainant on 31-8-2018. Exhibit B1 proves that the said vehicle was insured with the opposite party for a period from 5-7-2018 to 4-7-2019 and the insured was Prerna Khanna.
In order to appreciate the contention of the parties, it would be useful to have a look on Section 157 of the Motor Vehicles Act, 1988 which reads as under: -
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 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.
GR 17 of the Indian Motor Tariff Regulations deals with the transfer of insurance policy in case of sale of the vehicle by the original insured owner. GR 17 reads as under:
GR.17. Transfers 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 record 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. 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 the transferees entitlement, if any, and that shown on the policy shall be 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 a fresh proposal form duly filled and signed. The old Certificate of Insurance for the vehicle, is required to be surrendered and a fee of Rs.50/- is to be collected for issue of fresh Certificate in the name of the transferee. If 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.
On conjoint reading of section 157 (2) of the Motor Vehicles Act and GR 17 of the Motor Tariff Regulations, it is clear that in the case of package insurance policy, the transfer of Own Damage section of the policy in favour of transferee shall be done by the insurance company in case specific request in writing is made by the transferee of vehicle within 14 days from the date of transfer of ownership.
The Hon’ble Supreme Court on June 18, 2020 {Surendra Kumar Bhilawe vs The New India Assurance Company Limited} held that, the National Commission failed to appreciate that Section 157 of the Motor Vehicles Act provides that where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, 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 are to 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.
It is further held that in view of the definition of the expression 'owner' in Section 2(30) of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purposes of the said Act, would be treated as the owner of the vehicle. Where the registered owner purports to transfer the vehicle, but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of his liability as owner.
It was held that the transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. It was held that there could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle.”
The Hon’ble Supreme Court also held that the policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. It was held that the Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident.
The specific case of the opposite party is that the complainant failed to approach the opposite party within 14 days with the documents of the transfer ie with From no. 29, 30 or proof of submission regarding the transfer before RTO , the along with a fresh proposal for effecting the transfer of policy. In Exhibit A5 which is the letter sent by the opposite party to Prerna Khanna , it is stated that the insurance policy is still in the name of the previous owner and as per GR17 it has to be transferred into the name of the new owner within 14 days from the date of the transfer. Exhibit A6 is the letter issued by the Sub Division Manager of the insurance company stating the same reason which is stated in Exhibit A5. In Exhibit A5 the Sub Divisional Manager further stated that for effecting the transfer of insurance policy, any valid documents effecting sale of vehicle like form no.29, 30 or proof of submission in RTO is sufficient and the transferee need not wait for obtaining RC copy in new name and the grace period for transfer of insurance is counted from the with effect date mentioned in RTO records. However, contrary to this Pradeep Mathew who is the Manager and CPIO of the Regional office of the insurance company in reply to an application under right to Information act states that Registration certificate in the name of the new owner and original policy document along with Rs. 50 plus GST as transfer fee is required for transfer of name in the policy. In both afore said three letters the provision of GR17 is quoted and attached. The opposite party has not contended the genuinity of Exhibit A8. They have no case that the said document has not been issued by their higher official. Thus we can presume that the registration certificate in the name of the new owner is necessary for the transfer of insurance policy in the name of the subsequent purchaser of the vehicle.
As discussed above though the complainant applied for the transfer of name of the ownership in his name and paid the tax and fee for the same on 28-7-2018 the registration certificate is not dispatched to him till 30-8-2018 by the registration authority. As proved by Exhibit A5 the complainant could not apply for the transfer of the insurance policy in his name without obtaining the certificate of registration in his name. As per Gr 17 there is a period of 14 days from the date of transfer of ownership and to apply for the change of name in the policy. Accident took place on 19-8-2017 whereas the complainant got the registration certificate which in his name only after 31-8-2018. The incident of mishap was on 17-8-2018 which is during the pendency of procedure for transfer of ownership in the name of the complainant. It is admitted by the opposite party that they have received the intimation regarding the flood and they had appointed surveyor to assess the damages caused to the vehicle. Therefore we are of the opinion that the act of repudiation of the claim of the complainant by the opposite party stating that the insurance policy is not transferred in the name of the complainant within 14 days from the date of transfer of the ownership amounts to deficiency in service.
Though the complainant submitted that the vehicle has suffered a damage to the tune of Rs. 5,20,000 he had not produced any evidence before us to prove that he had spent Rs. 5,20,000 to rectify the damages caused to his vehicle. It is pertinent to not that though the opposite party appointed a surveyor to assess the damages the opposite party neither produced the report of the surveyor nor stated the amount for which the surveyor has assessed the damages. The opposite party can disburse the amount which is incurred by the complainant for repair of the vehicle only after the production of the original bills for the same. Therefore we are not in a position to the arrive at a conclusion to the quantum of damage suffered by the complainant to rectify the vehicle. No doubt the complainant had suffered much damages and sufferings due to the deficient service by the opposite party for which they are liable to compensate.
Considering the nature of the case and for the ends of justice we allow the complaint in part and pass the following order.
We hereby direct the opposite party to pay the actual amount which was assessed by the surveyor for repairing the vehicle of the complainant within 30 days from the production of the original bills for the same by the complainant.
We hereby direct the opposite party to pay a compensation of Rs.10,000/- to the complainant for mental agony caused due to the deficiency in service by the opposite party.
The order shall be complied within 30 days from the date of receipt of order. If not complied as directed, the amounts will carry 9% interest from the date of order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 21st day of December, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of the RC book
A2- Allotment of the registration number dated 30/07/18
A3- Motor Accident claim intimation form
A4- Motor claim form issued by opposite party
A5-Letter send by the opposite party dated 08.03.19
A6- Letter received from the opposite party dated 07.05.2019
A7- Replay notice send by the RTI dated 06.04.19
A8- Replay notice issued by RTI dated 25.08.20
Exhibits marked from the side of opposite party
B1- Policy Schedule cum certificate of insurance
B2- India Motor Tariff
B3- Registration Certificate
By Order
Senior Superintendent
