BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 17/07/2010

Date of Order : 29/03/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 402/2010

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the registered owner of a car bearing Registration No. KL-08 V/5342. The said vehicle was purchased by the complainant on 12-11-2009 from one Mr. Jacob. The vehicle was insured with the 1^st opposite party for the period from 25-06-2009 to 24-06-2010. On 16-11-2009, the complainant applied for transfer of certificate of registration in the name of the complainant before the R.T.O., Aluva. The transfer was effected only on 16-12-2009 which was received by the complainant on 18-12-2009. On 16-12-2009, the vehicle met with an accident. The claim of the complainant for insurance amount was rejected by the opposite parties stating that there is no insurable contract between the complainant and the opposite parties. Subsequent to the filing of the complaint, a qualified valuer quantified the loss at Rs. 60,207/- towards cost of repair and Rs. 1,793/- towards costs of the spray painting. The opposite parties are liable to indemnify the loss sustained by the complainant. Thus, the complainant is before us seeking direction against the opposite parties to pay the insurance claim together with compensation and costs.

2. The version of the opposite parties :

The opposite parties have issued a motor policy in the name of Mr. T.M. Jacob the owner of the vehicle covering the vehicle bearing Registration No. KL-08 V 5342 for the period from 25-06-2009 to 24-06-2010. The vehicle is a commercial vehicle namely a taxi car. The complainant has no locus-standi to file the complaint claiming own damage of the vehicle. The transfer of ownership of the vehicle was not intimated to the opposite parties. The complainant has no insurable interest in the vehicle at the time of accident. The complaint is not maintainable and liable to the dismissed.

3. The complainant was examined as PW1 and Exts. A1 to A8 were marked on his side. No oral evidence was adduced by the opposite parties. No oral evidence was adduced by the opposite parties. Exts. B1 to B3 were marked on their side. Both sides filed argument notes. Heard the counsel for the parties.

4. The points that came up for consideration are :-

1. Whether the complainant is legally entitled to get the insurance claim from the opposite parties?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- The learned counsel for the complainant contended that the complainant duly submitted application to get the vehicle transferred in his favour on 16-11-2009 and it is only after the R.C. Book got transferred in the complainant's name could the complainant be able to apply for the transfer of the issuance policy in his favour. It is stated that the transfer of the R.C. Book was effected only on 16-12-2009, unfortunately on the same date on which the accident occurred. The learned counsel further contends that by virtue of Section 157 of the Motor Vehicles Act, there is a deemed transfer though the policy stood in the name of the previous owner and therefore, the owner of the vehicle is liable to be indemnified by the insurance company. The learned counsel relied on the following decisions rendered by the higher judiciary.

1. Mariyam Velayudhan Vs. Padmanabhan Nair 2007 (3) KLT SN 72.

2. Krishnan Vs. Ganga Pradeepan 2008 (3) KLT SN 87.

3. National Insurance Co. Ltd. Vs. Sindhu 2011 (3) KLT 590.

6. The learned counsel for the opposite parties vehemently refuted the averments of the complainant and submitted that the personal contract of insurance is not transferable without the written permission of the insurer. According to him, the deemed transfer of the policy in the name of the transferee, contemplated in Section 157 of the Motor Vehicles Act is applicable only to cover third party risk. The counsel relied on the decision rendered by the Hon'ble Apex Court in Complete Insulation (P) Ltd. Vs. New India Assurance Co. Ltd. 1996 (1) SCC 221. The Hon'ble Supreme Court held that Chapter X1 of the Motor Vehicles Act is not applicable to own damage claim.

7. Admittedly, the opposite parties issued Ext. B1 policy from the period from 25-06-2009 to 24-06-2010 covering car bearing Registration No. KL-8 V/5342 in favour of one Mr. Jacob T.M. It is not in dispute that the complainant purchased the car from Mr. Jacob T.M. on 12-11-2009 and the car met with an accident on 16-12-2009. It is also not in dispute that the claim for insurance has been repudiated by the opposite parties by Ext. A5 letter dated 15-01-2010.

8. Ext. A5 letter reads as follows :

“On verification of our records, it is observed that we have issued the aforesaid policy in favour of Mr. T.M. Jacob for the period 25/06/2009 to 24/06/2010. As per your letter dated 11/01/2010, it is learnt that the vehicle met with an accident on 18/12/2009. However, as per RC, it is seen that the vehicle was sold by Mr. Jacob and accordingly, ownership of the vehicle was changed to Mr. Manoj Thomas w.e.f. 16/11/2009. But as per our records there is no insurance contract between Mr. Manoj Thomas and the Company.

In this connection, we draw your attention to GR 17 All India Motor Tariff. As per GR 17, it is specifically mentioned that '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..........' and accordingly the policy could have been transferred in our name on producing acceptable evidence of sale. In order to draw the attention in this connection, we have affixed a bilingual rubber stamp on the policy giving the details of the procedure to be followed at the time of transfer of vehicle. But you have not comply with the procedures adhereto to the policy. Under the circumstances, we are not in a position to consider your request and issue a claim form since there is no insurance contract between you and the Company.”

9. By relying on the decision of the Hon'ble Supreme Court in Complete Instruction Ltd. Vs. New India Assurance Co. Ltd. (Supra) the Hon'ble Kerala High Court in National Insurance Co. Ltd. Vs. Sindhu (Supra) has held in para 10 as follows :

“The learned counsel for the appellant places reliance on the decision in M/s. Complete Insulations (P) Ltd. V. New India Assurance Company Ltd. (AIR 1996 SC 586) to contend that invocation of S. 157 is limited to third party risks under the Motor Vehicles Act only. A careful reading of the facts reveals clearly that the contention which was repelled by the Supreme Court was that the comprehensive policy of insurance including the liability of damage of own vehicle will be covered by the deemed transfer of policy under S.157. The dictum, it appears to us, is clear and that is S. 157 will apply only to such compulsorily insurable risk/interest which are covered by S. 147 of the Motor Vehicles Act and not to other contractual stipulations under the policy of insurance not covered by Chapter X1 of the Motor Vehicles Act.”

A decision of whichever authority is to be taken in the spirit and not merely in the letter.

10. The learned counsel for the opposite parties took another contention that the complainant was not holding badge to ply a transport vehicle at the time of accident. The said contention is not sustainable in law for the simple reason that the opposite parties have not raised such a contention in Ext. A5 repudiation letter.

11. Ext. A8 survey report goes to show that an amount of Rs. 60,207/- is required to carry out the repairs of the vehicle due to the impact of the accident. Nothing is on record from either side to repudiate the findings of the surveyor in Ext. A8. It is pertinent to note that Ext. A8 was admitted in evidence without demur.

12. In view of the confirmed view of the above, we are only to hold that the complainant is entitled to get insurance claim as per Ext. A8 survey report together with interest @ 12% p.a. from the date of complaint till realisation.

13. Point No. ii. :- Since the primary grievance of the complainant has been considered and squarely met for reasons of a straight forward effort on both parties, we are not incline to award compensation and costs of the proceedings. For that reasons, we believe that law has been sustained.

14. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay the insurance claim of the complainant as per Ext. A8 survey report together with interest @ 12% p.a. from the date of complaint till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of March 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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