DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 138 of 8.5.2008 Decided on : 17.7.2008 <br /> <br /> Jaspreet Kaur D/o Baldeep Singh now W/o Sukhjeet Singh, R/o House No. 482, Hardyal Nagar, Near Railway Station, Jaitu.<br /> ... Complainant<br /> Versus<br /> <br /> 1.Oriental Insurance Company Limited, Divisional Office, Bank Bazar, Bathinda through its Divisional Manager.<br /> 2.Oriental Insurance Company Limited, Baja Road, Jaitu through its Branch Manager.<br /> 3.Devinder Kumar S/o Sh. Babu Ram, New Market, Near Janta Medical Hall, Jaitu. <br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties: Sh. Sunder Gupta, counsel for opposite parties No. 1 & 2.<br /> Opposite party No. 3 exparte <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) through which complainant seeks direction from this Forum to the opposite parties to pay her Rs.1,23,123/- alongwith interest @ 18% P.A; Rs. 25,000/- as damages for mental agony and pains and Rs.10,000/- as litigation expenses.<br /> 2. In nutshell, the version of the complainant is that she had purchased one Maruti Alto bearing temporary registration No. PB-11AB-0317 Model July, 2007 bearing Engine No. 3424676, Chassis No. 983904 from Smt. Aarti Rani W/o Sh. Parveen Kumar. Subsequently, it was got registered with the registering authority and registration No. PB-30E/8068 has been allotted to it. She had purchased comprehensive insurance policy on 15.11.2007 from opposite parties No. 1 & 2 through opposite party No.3 who is their authorised agent for the period from 15.11.2007 to 14.11.2008. Insured's Declared Value is Rs.2,47,000/- and the insurance is a cashless one. At the time of purchasing the insurance certificate, car was standing in the name of previous owner Smt. Aarti Rani. At the time of issuing the insurance certificate, opposite parties had obtained the signatures of her husband Sukhjeet Singh on proposal form No. 12 dated 15.11.2007. Copy of the temporary registration certificate and bills were also received from him. Insurance policy was not issued. Opposite party No. 3 had assured that whenever registration certificate of the car is transferred in her name, they would change the name of the owner/insurer immediately as soon as information is received. Car was transferred in her name at Sr. No. 31839/FDK on 10.1.2008. Intimation was given to opposite party No. 3 on 12.1.2008. Request letter alongwith copy of the registration certificate (duly transferred) was sent to opposite party No.2. This vehicle had met with an accident on 6.2.2008 in the revenue limits of Police Station Jaitu with Truck No. PB-303N/9791. She and her husband had received injuries. Her husband was driving the car. Car was badly damaged. DDR No. 12 dated 6.2.2008 was registered in Police Station Jaitu regarding the accident. Intimation of the accident was given immediately to the opposite parties by her husband on telephone. Sh. M.P Singh was deputed as spot surveyor. Opposite parties had assured at the time of issuing insurance that in case of any damage or loss, they are liable for the repair of the vehicle from the authorised dealer of the manufacturing company. Sh. Rakesh Kumar Gupta was deputed by the opposite parties as final surveyor. Car was shifted to M/s. Tara Automobiles, Authorised Service Centre/Dealer of the manufacturer at Bathinda. Final survey was conducted by the surveyor at M/s. Tara Automobiles which had issued estimate to the surveyor. Repairs were started by M/s. Tara Automobiles at the asking and under the instructions of Rakesh Kumar Gupta Surveyor. It is alleged that at the time of survey, her signatures were obtained on 5/6 blank papers including blank consent form with the assurance that the vehicle would be repaired at the cost of the opposite parties as accident had occurred within six months and there would be no depreciation. Proposal form and copies of the spot and final survey reports were not sent to her. Vehicle was got repaired from M/s. Tara Automobiles which had issued bills for a sum of Rs.1,23,123/- to her. She and her husband had enquired about her claim and regarding the payment to M/s. Tara Automobiles from the opposite parties but no satisfactory reply was given. Since the vehicle was in possession of M/s. Tara Automobiles, she had no other alternative but to pay Rs.1,23,123/- to it and take delivery. No satisfactory reply has been given by the opposite parties regarding the payment of the claim amount till date. Non-payment of the claim amount has caused her mental agony, pains and sufferings. In these circumstances, she alleges deficiency in service on the part of the opposite parties.<br /> 3. Reply of the complaint has been submitted by opposite parties No. 1 & 2 taking legal objections that there is no privity of contract between them and the complainant as original insured Smt. Aarti Rani W/o Sh. Parveen Kumar had transferred the insured vehicle to the complainant before the accident and no intimation regarding the transfer of the vehicle was given to them as is required under the Motor Vehicles Act nor was the insurance policy got transferred by the complainant in her name; complainant had no insurable interest in the insured vehicle at the time of accident; this Forum has got no jurisdiction to entertain and try the complaint as no part of the cause of action has accrued within the territorial jurisdiction of this Forum; complainant has got no locus-standi and cause of action to file the complaint; claim has been rightly repudiated after thorough investigation vide letter dated 17.4.2008; complainant is not consumer qua them; she has violated the terms and conditions of the policy and they are not liable to pay compensation to her. Even if this Forum comes to the conclusion that they are liable to pay any compensation, then their liability is limited to Rs.97,878/- as per final survey report. On merits, they admit that car was purchased by the complainant from Smt. Aarti Rani and at that time, its temporary registration No. was PB-11-AB-0317. They deny that complainant had purchased the insurance policy. Inter-alia, their plea is that one Smt. Aarti Rani W/o Sh. Parveen Kumar, R/o Malout had got her Alto car bearing temporary registration No. PB-11-AB-0317 insured from opposite party No. 2 vide policy No.2008/1015 effective from 15.11.2007 to 14.11.2008 and permanent registration number of the car is PB-30-E-8068. They admit that proposal form was signed by one Sukhjeet Singh. After the issuance of the cover note, insurance policy alongwith its terms and conditions was duly supplied to Smt. Aarti Rani. Opposite party No. 3 is the agent of opposite party No.1. Vehicle was transferred in the name of the complainant on 10.1.2008. There is no specific denial regarding the accident of this vehicle on 6.2.2008, damage to it and the injuries to the complainant and her husband. They admit that intimation of the accident was immediately given to them by the husband of the complainant and Sh. M.P Singh was deputed as spot surveyor. They deny that insurance is cashless one. Mr. Rakesh Kumar Gupta was deputed as final Surveyor who had inspected the vehicle at M/s. Tara Automobiles. Final survey report after inspecting the vehicle has been submitted by him. Estimate of repairs of the vehicle was supplied by the complainant to Sh. Rakesh Kumar Gupta. Vehicle was purchased by the original owner in July, 2007 and the accident had occurred on 6.2.2008 i.e. not within six months from the date of purchase. Complainant had submitted an application under the Right to Information Act for supply of spot, final survey reports, copy of G.R 10 and other relevant documents which were duly supplied to her on 19.5.2008. They deny that they are liable to pay the repair bills. They do not admit the remaining averments in the complaint.<br /> 4. Registered A.D post notice was issued to opposite party No. 3 on 17.5.2008. Neither registered cover nor A.D was received back till 19.6.2008. Opposite party No. 3 was deemed to have been duly served. He did not come present to contest the complaint. Accordingly, he has been proceeded against exparte.<br /> 5. In support of her allegations and averments in the complaint Jaspreet Kaur complainant tendered into evidence her own affidavit (Ex.C.1), affidavit (Ex.C.2) of her husband, photocopy of temporary registration certificate (Ex.C.3), photocopy of registration certificate (Ex.C.4), photocopy of DDR dated 6.2.2008 (Ex.C.5), photocopy of insurance certificate (Ex.C.6), photocopy of payment receipt(Ex.C.7), photocopy of letter dated 14.1.2008 (Ex.C.8), photocopy of U.P.C (Ex.C.9), photocopy of retail invoice dated 8.2.2008 (Ex.C.10), photocopy of final survey report (Ex.C.11), photocopy of estimate (Ex.C.12), photocopy of spot survey report (Ex.C.13), photocopy of driving licence (Ex.C.14), photocopy of agent bill for 11/2007 (Ex.C.15), photocopy of letter dated 19.5.2008 (Ex.C.16), photocopy of Form A(Ex.C.17). <br /> 6. On behalf of opposite parties No. 1 & 2, reliance is placed on affidavits (Ex.R.1,Ex.R.2, Ex.R.8 & Ex.R.9) of S/Sh Rakesh Kumar Gupta Surveyor & Loss Assessor and Satish Kumar Bansal Detective & Investigator, J.L. Ahuja, Senior Divisional Manager and M.P Singh, Spot Surveyor respectively, photocopy of Investigation Report (Ex.R.3),photocopy of statement of Sh. Sukhjeet Singh (Ex.R.4), photocopy of Claim Intimation (Ex.R.5), photocopy of letter dated 17.4.2008 (Ex.R.6), photocopy of claim form (Ex.R.7), photocopy of survey report dated 3.4.2008 (Ex.R.10) and photocopies of pages No. 7 & 8 of India Motor Tariff (Ex.R.11).<br /> 7. We have heard the learned counsel for the complainant and opposite parties No. 1 & 2. Apart from this, we have perused the record. <br /> 8. Some facts do not remain in dispute in this case. They are that originally Aarti Rani was the owner of Maruti Alto car bearing temporary No. PB-11AB-0317 as is evident from Ex.C.3. This car as per insurance policy, copy of which is Ex.C.6, has been shown to have been got insured with opposite Oriental Insurance Company by Smt. Aarti Rani for the period from 15.11.2007 to 14.11.2008. This vehicle was produced by the complainant from Smt. Aarti Rani. Car was permanently registered with the registering authority and registration No. PB-30E-8068 was allotted to it. It was transferred in the name of the complainant on 10.1.2008 as is evident from Ex.C.4. Insured's Declared Value of the car as per policy of insurance is Rs. 2,47,000/-. This car had met with an accident on 6.2.2008. DDR was also recorded in Police Station Jaitu and copy of the same is Ex.C.5. Claim intimation dated 6.2.2008, copy of which is Ex.R.5, was sent to the opposite insurance company. Claim form was also submitted by the complainant on 15.2.2008 and copy of the same is Ex.R.7. Opposite insurance company intimated Aarti Rani vide letter dated 17.4.2008, copy of which is Ex.R.6, treating the claim as no claim due to the insurable interest transferred in the name of the complainant on 10.1.2008. Complainant got the vehicle repaired from M/s. Tara Automobiles, Authorised Service Centre/Dealer of the manufacturer and it issued bill for a sum of Rs.1,23,123/-, copy of which is Ex.C.10. Opposite parties got the spot survey report from Sh. M.P Singh, copy of whose report dated 19.2.2008 is Ex.C.13. Sh. Rakesh Kumar Mittal was deputed as final survey and copy of his report dated 3.4.2008 is Ex.C.11.<br /> 9. Mr. Gupta learned counsel for opposite parties No. 1 & 2 vehementally argued that Sh. Rakesh Kumar Gupta in his report Ex.C.11 has assessed the net loss to the tune of Rs.97,877.55 which has been rounded off as Rs. 97,878/- and has further mentioned that insurance and registration certificates of the vehicle are in different names. He drew our attention to the copy of the statement dated 6.2.2008 Ex.R.4 of Sh. Sukhjeet Singh husband of the complainant which was recorded by Sh. Satish Kumar Bansal Investigator in which he stated the ownership of the car was got transferred from District Transport officer, Faridkot on 10.1.2008 but no application has been moved for transfer of the insurance from the insurance company. Copy of the report of Investigator is Ex.R.3. His further submission is that there is no privity of contract between the complainant and opposite insurance company as original insured Aarti Rani has transferred the vehicle to the complainant on 10.1.2008 and complainant did not move any application for transfer of the insurance in his name within 14 days as required under section 157 of the Motor Vehicles Act and G.R.17 of India Motor Tariff. Hence, complainant is not consumer qua opposite insurance company. For this, he placed reliance on the authority Complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd.-II(1996)ACC-536(SC) in which it has been held that where transferee does not move any application for transfer of the insurance policy in his/her name, insurance company is not liable as purchaser has no insurable interest. According to the learned counsel for opposite parties No. 1 & 2, letter dated 14.1.2008, copy of which is Ex.C.8, was not received by the opposite insurance company. Moreover, original insured Aarti Rani has not been arrayed as party. <br /> 10. Mr. Garg learned counsel for the complainant countered the arguments of the learned counsel for opposite parties No.1 & 2 by submitting that opposite parties No. 1 & 2 have not disclosed the true facts before this Forum. There was an amendment regarding the transfer of the insurance vide Circular No. GR-10 of India Motor Tariff vide which it is clear that insurance goes with the vehicle and the benefits under the entire policy including own damage section which is in force on the date of sale shall be transferred to the buyer of the vehicle till the expiry of the policy. His next submission is that opposite parties No. 1 & 2 are relying upon Ex.R.11. It is a copy of G.R.17 of India Motor Tariff from which it is also clear that insurance is deemed to have been transferred from the date of transfer. Opposite insurance company is wrongly interpreting clauses of India motor Tariff. Complainant is consumer qua opposite parties No. 1 & 2.<br /> 11. We have given our thoughtful consideration to the rival arguments and we feel ourselves inclined to agree with the learned counsel for the complainant. Admittedly when car was got insured with opposite party No. 1 for the period from 15.11.2007 to 14.11.2008 complainant was not its registered owner. Its owner was Smt. Aarti Rani. As per Ex.C.6, she (Smt. Aarti Rani) is the insured. Complainant became registered owner of the car on 10.1.2008. It had met with an accident on 6.2.2008. There is no convincing evidence on the record to show that complainant applied for transfer of the insurance policy from the name of Smt. Aarti Rani in her name after she purchased the car and became its owner on 10.1.2008. Complainant has placed on record documents Ex.C.8 and Ex.C.9. Ex.C.9 is the copy of the U.P.C and Ex.C.8 is the copy of the application dated 14.1.2008 addressed to the Branch Manager of the Oriental Insurance Co. Ltd., Jaitu. They do not establish that this application vide which intimation was sent by the complainant regarding the transfer of the car in her name was actually received by any official of opposite parties No. 1 & 2. Moreover, Sukhjeet Singh husband of the complainant in his statement copy of which is Ex.C.4, admits that ownership of the car was transferred in the name of his wife on 10.1.2008 but insurance of the car was not got transferred in her name nor any application to this effect was moved to the Oriental Insurance Co. Material question for determination is as to whether the insurance of the vehicle goes with the vehicle when it is transferred by the insured to another person. The answer to our minds is in the positive. There was an amendment regarding the transfer of the insurance vide G.R of India Motor Tariff in which judgment delivered by their Lordships of the Hon'ble Supreme Court was also noticed. It has been clarified and confirmed that own damage claims under the motor policy issued as per revised motor tariff which falls within the purview of G.R.10 provision, may be settled in full subject to other terms and conditions of the policy. Matter has further been set at rest by the Hon'ble National Commission in the case of Shri Narayan Singh Vs. New India Assurance Company Ltd.-IV(2007)CPJ-289(NC). In that case vehicle was purchased from the original owner. It had met with an accident. Original policy was taken by the original owner. It was held that benefits under the policy automatically accrues to new owner on transfer of the vehicle. Insurance company was held liable to pay insurance amount alongwith interest. Paras No. 2 and 9 of the order of Hon'ble National Commission are reproduced as under :-<br /> “2. 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 Regulation. The said regulation reads as under :-<br /> Transfer: <br /> On transfer of a vehicle,the benefits under the policy in force will automatically accrue to the new owner. The bonus/malus already applicable for the policy would continue until expiry of the policy. On expiry or cancellation of the policy, bonus/malus will apply as per the new owner's entitlement.<br /> If the transferee wants to change the policy in his favour, 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 Rs.15/-. If the old certificate is not surrendered, a declaration is to be taken from the new owner before issuing a new certificate.”<br /> 9.“As stated above, the second ground given by the State Commission cannot be justified in view of the India Motor Tariff Regulation. Further, on this aspect, learned counsel for the petitioner has produced on record t he judgment rendered by the Chhattisgarh State Commission in the case of Ajimuddin Vs. The New India Assurance Company Ltd., reported in III(2006)CPJ-273=2006(2)CPR-124,wherein the Commission has observed in paragraph 7 as under:-<br /> Learned counsel for the appellant submitted that GIC has issued special instructions regarding settlement of claim in case of transfer of policy. It was submitted that as per the said instructions the transfer of policy in favour of the purchaser the complainant/appellant should be treated as automatic. It appears that the Tariff Advisory Committee issued a circular regarding automatic transfer of the policy to the new owner/purchaser of the vehicle. In the said circular the decision of Supreme Court in Complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd., was referred to. In the said circular it was stated that for policies issued as per revised Motor Tariff, own damage claim which fall within the purview of G.R 10 provisions may be settled in full subject to the terms and conditions of the policy.”<br /> 12. Matter stands clinched with this order of the Hon'ble National Commission and it is concluded that on transfer of the vehicle the benefits under the policy in force will automatically accrue to the new owner. When it is so, it does not lie in the mouth of the opposite insurance company that complainant had no insurable interest in the insured vehicle at the time of accident or that there was no privity of contract between them and the complainant. Since on transfer of the vehicle in the name of the complainant the benefits under the policy issued in the name of the previous owner automatically accrued to her (complainant), she becomes consumer qua opposite parties No. 1 & 2. Opposite parties No. 1 & 2 did not repudiate the claim of the complainant. Intimation regarding the repudiation of the claim has been given to the previous owner i.e. Smt. Aarti Rani. Even repudiation intimation sent to her is unjustified, illegal and arbitrary in view of the discussion which has been made above. Opposite parties No. 1 & 2 were required to adjudicate the claim submitted by the complainant. This has not been done. Hence, there is deficiency in service on the part of opposite parties no. 1 & 2. No deficiency in service on the part of opposite party no. 3 is proved as own damage claim of the complainant has to be decided by opposite parties No. 1 & 2.<br /> 13. Contention of learned counsel for opposite parties No 1 & 2 that complaint is bad for non-joinder of Smt. Aarti Rani carries no conviction. No relief has been sought from her nor can be claimed from her by the complainant. In view of what has been discussed above, she is not necessary party to the complaint.<br /> 14. Now question arises as to what relief should be accorded to the complainant. No-doubt, complainant has placed on record copy of the retail invoice dated 29.3.2008 of Tara Automobiles according to which she has spent Rs. 1,23,123/- for getting her car repaired and copy of the estimate from Tara Automobiles as EX.C.12. During the course of arguments, learned counsel for the complainant submitted that net loss assessed by the final surveyor in his report, copy of which is Ex.C.11, may be allowed. Even otherwise, this motor (final) survey report of Er. Rakesh Kumar Gupta according to which he has assessed the net loss as Rs. 97,887.55 (Rounded off as Rs. 97,878/-) is worth placing credence. Report of the surveyor is an important document. It cannot be thrown to the winds without solid reasons. This detailed and reasoned report appears to have been given by way of considering all the pros and cones. Hence, we place reliance on it. Since, net loss has been assessed by him as Rs. 97,878/-, direction deserves to be given to opposite parties No. 1 & 2 to pay this amount to the complainant alongwith interest @ 9% P.A from 7.5.2008 (The date calculated on expiry of three months from the date of intimation of accident, a period required for processing the claim effectively in the normal course) till payment. Complainant is craving for compensation of Rs. 25,000/- on account of mental agony and pains. There is no case to allow it in view of the relief which is going to be accorded as above. Out of interest and compensation, one can be allowed.<br /> 15. In the result, complaint is partly allowed against opposite parties No. 1 & 2 with costs of Rs.1,000/-. It stands dismissed qua opposite party No.3. Opposite parties No. 1 & 2 are directed to do as under:-<br /> (i) Pay Rs.97,878/- to the complainant alongwith interest @ 9% P.A from 7.5.2008 till payment. <br /> (ii) Compliance within 30 days from the date of receipt of copy of this order.<br /> 16. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 17.7.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> 'bsg' <br /> <br /> <br />