BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint No. 211 of 2019.
Date of institution: 24.04.2019
Date of Decision: 31.05.2023.
Dharamvir son of Shri Shankar Lal, resident of Rania Gate, Sirsa, District Sirsa.
……….Complainant.
Versus
1. Ravi Aggarwal, Surveyor and Loss Assessor of the Bharti Axa General Insurance Co. Ltd., at Sirsa.
2. Bharti Axa General Insurance Co. Ltd., 2nd and 3rd Floors, SCO No.20, Above ICICI Bank, Sector 14, Gurugram through its Manager/ authorized signatory.
3. Naresh Kumar son of Shri Satya Narain, resident of Sohna, District Gurugram.
..……..Opposite Parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
SH. OM PARKASH TUTEJA ……………..MEMBER
Present: Shri Rakesh Bajaj, Advocate for the complainant.
Opposite party no.1 given up.
Shri R.K. Mehta, Advocate for the opposite party no.2.
Opposite party no.3 already exparte.
ORDER:-
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment under Section 35 of C.P. Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of complainant is that op no.3 owned a Maruti Swift Car bearing registration No. HR-72/A/7254 which was purchased by complainant on 20.08.2018 on payment of part price of said car. The said car was got insured with op no.2 in the name of op no.3 on 24.08.2018 for the period 24.08.2018 to 23.08.2019 vide policy No. 57052443 for the sum insured amount of Rs.3,00,000/-. That on 30.08.2018 complainant made remaining payment to op no.3 and op no.3 duly sworn an affidavit in his favour and handed over the car to him. It is further averred that on 30.08.2018 in the evening at about 4.15 p.m, near Force Company, Hisar road, Sirsa when the said car was being driven by Mr. Nirmal son of Mohan Lal, all of a sudden the tyre of the said car got burst and as a result of which the car went out of control and hit with a culvert aside the road and then went 10’ high in air and then struck with a tree and car got totally damaged. On the same day, complainant gave intimation about the accident to the op no.2 on its toll free number. It is further averred that op no.2 appointed the Surveyor Shri Ravi Aggarwal op no.1 who inspected the car and all relevant documents were supplied to him. That car could not be get transferred in name of complainant since the accident took place on the day when complainant had paid its full price to the owner and despite lodging of claim with op no.2 till date his claim has not been settled. The complainant is entitled to the sum insured amount of Rs.3,00,000/- alongwith interest from the date of accident till realization. The complainant has already approached the ops no.1 and 2 on number of occasions and requested for settlement of his claim but they continued putting off the matter with one pretext or the other. The complainant also got served a legal notice upon ops on 25.3.2019 but of no use. That ops no.1 and 2 by their such act and conduct have committed gross deficiency in service towards complainant and have caused unnecessary harassment to him. Hence, this complaint.
3. On notice, op no.2 appeared and filed written statement raising certain preliminary objections that complaint is groundless, wholly misconceived and unsustainable and same is liable to be dismissed with heavy cost and that present complaint is barred under the principles of estoppel, waiver and acquiesces. It is further submitted that no deficiency of service can be attributed to answering op in declining the present claim and closing of the claim file of insured as ‘No Claim’ which is legal, justified and bonafide one and are based upon the insurance contract and terms and conditions and exclusion clauses of the policy cover obtained by the insured. That total fault lies upon the part of the insured as insured failed to comply with the contractual obligations and did not co-operate with the insurance company and did not comply with the formalities and necessities and did not submit the desired requisite documents and information in spite of repeated request, letters. Other preliminary objections regarding concealment of facts in obtaining the policy, locus standi, complainant is not a consumer of op no.2, cause of action, jurisdiction, mis joinder and non joinder of necessary parties have also been taken.
4. On merits, it is submitted that op no.2 vide their letter dated 24.12.2018 has repudiated the claim of complainant on the ground of having No Insurable Interest. The complainant has no insurable interest in the policy. In fact, the policy was obtained by Naresh Kumar. Later on complainant purchased this vehicle from Naresh Kumar before the date of loss but did not get the same transferred. In this way, the op no.2 is not liable to pay the insured amount to the complainant having no insurance interest as well as because the complainant has not complied with mandatory terms and conditions of the policy. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.1 was given up by learned counsel for complainant for want of correct address. Op no.3 did not appear despite notice sent through registered cover and as none appeared on behalf of op no.3 even after stipulated period of 30 days, op no.3 was proceeded against exparte.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C8.
7. On the other hand, op no.2 has tendered copies of documents i.e. repudiation letter Ex.R1, affidavit of complainant Ex.R2, affidavit of Naresh Ex.R3, certificate of registration Ex.R4, motor vehicle final assessment report Ex.R5 and claim form Ex.R6.
8. We have heard learned counsel for the parties and have perused the case file carefully.
9. It has come on record that the car in question bearing registration No. HR-72A/7254 owned by Naresh Kumar was purchased by complainant Dharamvir on 20.08.2018 as is evident from affidavit dated 20.08.2018 Ex.C4 and on 30.08.2018 vehicle in question was delivered to the complainant by the owner Naresh after receiving full and final sale consideration as is evident from his affidavit Ex.C5. It has also come on record that before delivery of possession of car in question to the complainant, same was got insured by previous owner Naresh from op no.2 for the period 24.08.2018 to 23.08.2019 for the insured declared value of Rs.3,00,000/- as is evident from certificate of insurance cum schedule Ex.C2. It is also not in dispute that on the same day of delivery of vehicle to the complainant i.e. on 30.08.2018 (during subsistence of policy in question) the vehicle met with an accident and was totally damaged which fact is also proved from the motor vehicle final assessment report of the surveyor appointed by the op no.2 which is placed on record by op no.2 as Ex.R5. Further the photostat copies of photographs of the damage vehicle attached with the motor insurance claim form Ex.R6 proves the fact that car in question was totally damaged. The driving license of driver was also verified by the Surveyor. The claim submitted by complainant has been repudiated mainly on the ground that that complainant was having no Insurable Interest in the policy as policy was obtained by Naresh Kumar and thereafter vehicle was purchased by complainant from said Naresh Kumar before the date of loss but did not get the same transferred in his name. However Section 157 of Motor Vehicle Act, 1988 stipulates as under:-
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. 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.
10. So, as per above said provisions of Section 157 of the Motor Vehicle Act, 1988, fourteen days time is available to the purchaser of the second hand vehicle after transfer of the vehicle in his name for getting necessary changes in the certificate and policy of insurance i.e. for transfer of insurance policy in his name. In the present case, the vehicle in question was purchased by complainant on 20.08.2018 and its delivery was given to the complainant on 30.08.2018 by the previous owner after receiving full amount of sale consideration and unfortunately on the same day of delivery of vehicle same met with an accident prior to that period of 14 days, so the insurance policy and vehicle could not be transferred in the name of complainant. So the objection taken by insurance company that insurance company is not liable to pay insurance claim to the complainant and complainant has no locus standi to file present complaint has no force because a period of 14 days was available with the complainant to get the insurance policy changed in his name after transfer of vehicle. Since the vehicle in question met with the accident on the same day of delivery of vehicle to the complainant i.e. prior to the period available to the complainant for transfer of vehicle and insurance policy, therefore, vehicle in question and insurance policy could not be transferred in the name of complainant. As such the insurance policy as well as vehicle could not be transferred by the complainant in his name due to the circumstances beyond his control. Further more, the insurance policy was issued for the vehicle and not for the previous owner or for the complainant. Since the vehicle purchased by complainant was insured with the insurance company, therefore, op no.2 is liable to indemnify the loss caused to the vehicle/ previous owner as complainant has paid total consideration to the previous owner and complainant is entitled to receive insured declared value of the vehicle to the tune of Rs.3,00,000/- as the vehicle has been totally damaged in the accident. The op no.2 insurance company has wrongly rejected claim of complainant on the ground that complainant was not having insurable interest at the time of accident or that there was no privity of contract between the complainant and insurance company because as per above said provisions of Motor Vehicle Act, the certificate of insurance and the policy is deemed to be transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer. However, in the present case the vehicle in question met with the accident on 30.08.2018 itself when delivery of possession was given to the complainant by its previous owner through affidavit Ex.C5 and as such vehicle could not be transferred in his name and moreover, accident took place within above said period of 14 days and as such op no.2 has wrongly repudiated the claim of complainant. Moreover, in case titled as Mallamma (Dead) by LRs Vs. National Insurance Co. Ltd. & Ors., 2014 (2) Civil Court Cases, 694 (SC), it has been held as under:-
“ That whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner- policy shall also be transferred to the new owner- policy will not lapse even if the intimation as required U/s 103 of the Act is not given to the insurer.
In case titled as Narayan Singh Vs. India Assurance Company Ltd. Revision Petition No. 556 of 2002 decided on 22.5.2007 it has been held by the Hon’ble National Commission as under :-
“ The Insurance Company ought not to have rejected the claim on the ground that the vehicle was not transferred in favour of the complainant. In any set of circumstances, even under Section 157 of the Motor Vehicle transfer application is to be made within a period of 14 days and those 14 days were not over in the present case. Hence, in our view, it is highly improper and unjustified act on the part of the Insurance Company to reject the claim on such ground and harass the complainant for years together.”
11. The above said authorities are also applicable in the present case. The op no.2 has also failed to disclose that what type of formalities were not completed by the insured or by the complainant. So, the repudiation of the claim of complainant by op no.2 on above said grounds is hereby set aside. The complainant is entitled to the insured declared value of Rs.3,00,000/- from op no.2 insurance company as vehicle was totally damaged in the accident.
12. In view of our above discussion, we allow the present complaint qua opposite party no.2 and direct the op no.2 to pay claim amount of Rs.3,00,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said amount of Rs.3,00,000/- alongwith interest @6% per annum from the date of this order till actual realization. We also direct the op no.2 to pay a sum of Rs.5000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. The op no.2 will be entitled to salvage of the vehicle in question. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member President,
Dated: 31.05.2023. District Consumer Disputes
Redressal Commission, Sirsa.
JK
