Per Mr. B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant he had purchased motor vehicle No.MH-04-AY-8261 from Anil Gangaram Mahadik in the month of September-2011 for the amount of Rs.2,40,000/-. He had submitted transfer form before the R.T.O. Office and the R.T.O. office recorded his name in the R.C. Book on 30th September, 2011. On 17th October, 2011, the complainant parked his vehicle near Raheja Tower, Lower Parel, Mumbai. On the same night, his vehicle was stolen from that place. He took search of his vehicle and ultimately lodged police complaint on 19th October, 2012 at J.M.Joshi Marg Police Station and F.I.R. No.240/2011 was registered. The vehicle was insured in the name of earlier owner Anil Mahadik. The policy was valid on the day of theft therefore he lodged insurance claim with the opponent but the opponent declined to pay vide letter dated 25th April, 2012 on the ground that there was no insurable interest at the time of loss. G.R.No.17 of India Motor Tariff was also referred. At the time of lodging complaint, R.C.Book was not with the complainant and it was in process in R.T.O. Office. Therefore, the complainant could not inform the opponent about the transfer of ownership of vehicle. As the claim of wrongly repudiated, the complainant has filed this complaint for recovery of amount of Rs.2,40,000/- with interest and compensation of Rs. 1 Lakh for harassment and mental agony.
2) The opponent has filed written statement. It is submitted that claim is barred by limitation. The claim was already repudiated vide letter dated 25th April, 2012. On receipt of claim, Investigator was appointed and the Investigator M/s.Wings Surveyor submitted report. As per report, the complainant committed breach of terms and conditions of the policy. The place of theft is the vacant area and there was no watch on the vehicle. The complainant failed to take reasonable care therefore he is not entitled for the claim. The complainant has not informed the transfer to the opponent within fourteen days from the date of transfer in writing therefore the complainant is not entitled for the claim. As per All India Motor Tariff, there should be exist insurable interest at the time of taking policy as well as at the time of loss. The complainant failed to intimate the transfer as per the provision within fourteen days therefore he is not entitled for the claim.
3) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether there is deficiency in service ? | Yes |
2) | Whether the complainant is entitled for the relief as claimed ? | Yes |
3) | What Order? | As per final order |
REASONS
4) As to Point No.1 & 2 :- Most of the facts are admitted. There is dispute about the interpretation of legal provisions, the judgments of the Hon’ble Apex Court, Hon’ble National Commission and the Hon’ble State Commission. It is not disputed that earlier the vehicle was owned by Anil Gangaram Mahadik and it was purchased by the complainant in the month of September-2011 and his name was registered as owner in R.T.O. Office on 30th September, 2011. According to the complainant, R.C.Book was not with him. It was in R.T.O. office. On the day of police complaint he was not aware that his name was recorded in R.T.O. office therefore he could not intimate insurance company about the transfer of vehicle in his name. Admittedly, the opponent company was not informed about the transfer of ownership as per G.R.No.17 of India Motor Tariff. The dispute before this forum is only about the G.R.No.17 of India Motor Tariff. According to the O.P. it was mandatory to give intimation to the Insurance Company about the transfer of ownership. The learned advocate for the O.P. has placed reliance on the judgment of Hon’ble Supreme Court in the case of Complete Insulations (P) Limited –Versus- New India Assurance Company Limited reported in 1996 ACJ 65. In para 4 of the judgment, the Hon’ble Supreme Court has laid down that,
On a plain reading of section 103-A it is obvious that the insurer could be in a give case refuse to transfer the certificate of insurance and the policy described therein. It is only if the
insurer fails to convey the refusal within fifteen days that the deeming clause comes into operation. However, section 157 of the new Act makes the transfer of the certificate of insurance along with the insurance policy described therein automatic along with the transfer of the motor vehicle together with the
policy of insurance to the purchaser. This is clearly an improvement over the previous provision on the subject
In para 5 of the judgment, the Hon’ble Supreme Court has held that,
Section 157 of the new Act introduces a deeming provision whereby the transfer of the certificate of insurance and the policy of insurance are deemed to have been made where the vehicle along with the insurance policy is transferred by the owner to another person. This provision has withdrawn the insurer’s right of refusal which was granted under the old Act.
In view of the abovesaid law laid down by the Hon’ble Supreme Court, there is deeming provision under section 157 of the Motor Vehicle Act. Fourteen days time is given to the transferee to apply for change of his name in the insurance certificate.
5) On the other hand, it is submitted by the learned advocate for the complainant that informing the Insurance Company is ministerial act and once the right is vested it can not be divested. For this purpose he has placed reliance on the judgment of our State Commission in First Appeal No.A/10/1256 in the case of United India Insurance Company Limited –Versus- Sou.Kasturi J. Patil decided on 3rd May, 2012. In para 6 of the judgment, the Hon’ble State Commission has held that,
We are not satisfied with the submissions made by Adv. Mehta on behalf of the Appellant/Insurance Company. We find that such submission is with a very superficial approach to the rulesand GR issued by the Government. What is important is the fact that when the contract of insurance is in existence and there is insurable interest which is transferable, the transferee of such interest is entitled to the benefit of such interest like any other interest in the property. What is important is that the GR recognizes legal fiction in respect of transfer, namely, on the transfer being effected on the very date of transfer the interest of the earlier insured stands transferred in favour of the transferee by deeming fiction. GR.17 specifically uses the words ‘is deemed to have been transferred’. Once right is vested that cannot be divested by any other act. Then the question remains what is importance of giving information of transfer to the insurance company in a stipulated time and issuance of fresh Certificate of Insurance. Insurance Company requires to be informed for ministerial purposes. Right already vested is recorded and communicated by fresh Certificate of Insurance. Thus, the submissions advanced by Adv. Mehta on behalf of the Appellant/Insurance Company are without merit and we reject those submissions.
In view of this judgment of our State Commission once the right is vested it can not be divested. Giving information of transfer to the Insurance Company within time period is for the ministerial purpose only. It is admitted position that vehicle was transferred in the name of the complainant in R.T.O. Office. The vehicle was already insured in the name of earlier owner. The complainant failed to give intimation within fourteen days to the opponent. In view of the abovecited judgment of our State Commission, claim of the complainant can not be repudiated merely on the technical ground. Therefore the complainant is entitled for the insurance claim of Rs.2,40,000/-.
6) The complainant also prayed for compensation of Rs.1 Lakh for harassment and mental agony. In spite of request by the complainant his claim was not allowed thereby complainant suffered harassment. We think the complainant is entitled for the compensation of Rs.,10,000/- for mental agony. Besides this, the complainant is entitled for the cost of this proceeding Rs.5,000/-. Hence, we proceed to pass the following order.
ORDER
1) Complaint is allowed.
2) The opponent is directed to pay Rs.2,40,000/- (Rs.Two Lakhs Fourty Thousand Only) to the complainant with interest at the rate of 9% from the date of filing of the complaint i.e. 5th June, 2012 till realization.
3) The opponent is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only) to the complainant as compensation towards mental agony. The opponent is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant as cost of this proceeding.
4) The above order shall be complied with within a period of one month from today.
5) The copies of this order be sent to the parties free of cost.
Pronounced Dated 13th March, 2014
