Jammu and Kashmir

Jammu

CC/476/2017

MOHINDER SINGH - Complainant(s)

Versus

Shree Ram General Insurance - Opp.Party(s)

RUPINDER SINGH

06 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No.                   40/DFJ           

 Date of  Institution   :     15-05-2014

 Date of Decision      :       27-08-2018

S.Mohinder Singh,

S/O S.Bela Singh,

R/O P.O.Domana,Mishriwala,

Tehsil & Distt.Jammu.

                                                                                                                                                Complainant

                V/S

1.ShriRam General Insurance Limited,

  E-8 Epipriico Sita Pura,Jaipur,Rajasthan.

2.ShriRam Transport & Finance Company Ltd.

   Regd.Office 123,Angappa Naicken,

  Street Chennai-600001.

3.ShriRam Transport & Finance Company Ltd.

  Yard 6,Gurdeep Singh Building,2^nd Floor,

 Shop No.389/390 Narwal Transpot Nagar,Jammu.

                                                                                                                                                                Opposite parties

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)  President

                  Ms.Vijay Angral                                                                Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

 Mr.Rupinder Singh,Advocate for complainant, present.

Mr.Dewakar Sharma,Advocate for OP1,present.

Mr.R.S.Lalotra,Advocate for OPs 2&3,present.

                                                           

                                                                     ORDER

                               Facts relevant for the disposal of complaint on hand are that OP3 held auction of vehicle No.JK02S-6157 on,12-01-2011 after the same was reported to have been seized by it and the complainant was one of the bidder also submitted his bid for purchase of abovesaid vehicle in the said auction held by OP3.According to complainant, he was successful in the bid with respect to the auction of above referred vehicle and the vehicle was sold in auction to the complainant, after the auction amount of Rs.3.35 lacs was received by OP3 from him. It is submitted that in addition to above said amount another sum of Rs.10,000/-was also obtained from him as security deposit and in this respect he had made payment of a sum of Rs.3,45,000/- to OP2&3 and a certificate was issued by OP certifying thereby the sale of above referred vehicle in the auction for a sum of Rs.3,45,000/-in favour of complainant (copy of certificate is annexed as Annexure-C-1) .Complainant further submitted that in order to purchase the vehicle and pay auction amount, he raised loan from Sudershan Trading Corporation to be repaid to said Finance Company alongwith interest @ 17% per annum(copy of cheque bearing No.037112 dated 18-01-2011 is annexed as Annexure-C2) and the cheque was deposited by the complainant with OP2 and a receipt was also issued in faovur of complainant (Annexure-C3)and the cheque was duly encashed ad credited in the account of OP2&3.Allegation of complainant is that after receipt of payment,OP2 vide their letter signed by their authorized signatory dated 25-01-2011  addressed to Ajit Pal Yard, Jammu directed the release of the document/vehicle relating to vehicle No.JK02S-6157(Annexure-C4).It is submitted that the vehicle was originally owned by one S.Gurmeet Singh S/O S.Harjeet Singh R/O Simbal Camp, Jammu and the vehicle was insured covering the period w.e.f.23-07-2010 to 22-07-2011 by OP1 and the vehicle was insured for a sum of Rs.4.25 lacs on which premium amount of Rs.11,381/-was duly paid((copy of policy annexed as Annexure-C5).Further allegation of complainant is that after the purchase of vehicle he approached OP1&2 for transfer of ownership of vehicle in his  name, but OP2 dilly dallied the same on the pretext  that the registered office of the company is situated at Chenai and the administrative office  at Navi Mumbai and the same would likely to take some time as the documents are received by them from their above referred offices vehicle will be duly transferred in the name of complainant immediately thereafter in the record of Registering Authorities and the Insurance Policy will also be duly transferred in his name with OP1.That since OP1 is the sister concern of OP2&3,the OP1 therefore, had the knowledge that the vehicle above referred had been sold to him and become the owner as per Section 2(o)of the Motor Vehicle Ac t,1988 and therefore, it was very much within the knowledge of OP1 that by virtue of auction conducted by its sister concern i.e.OP2&3,complainant had become the owner and complainant on his part also conveyed to OP1 about the auction of vehicle and requested them for transfer of insurance policy of vehicle in the name of complainant. That unfortunately the vehicle met with an accident on,31-03-2011 i.e. within a short period of purchase of same from OP2&3 and same become total loss,(copy of FIR registered with Police Station Banihal is annexed as Annexure-C6) and complainant immediately informed OP1 about the loss suffered by him. The OP3 deputed surveyor for assessment of loss and as per information of complainant,OP3 has deputed Sh.Rajesh Gupta,Surveyor and Loss Assessor for the purpose of assessment of the loss suffered by the complainant. It is submitted that whereas the complainant suffered total loss, but the OP3 has not settled the loss suffered by the complainant  and this act of OP constitutes deficiency in service and un fair trade practice. Hence the present complaint. In the final analysis complainant prays for sum of Rs.4,25,000/-being the insured value of vehicle alongwith interest @ 12% per annum from the date of occurrence and in addition also prays for compensation of sum  Rs.70,000/-including litigation charges.

                   On the other hand,OP1 filed objections and resisted the complaint on the ground that present complaint is hopelessly time bared by limitation,therefore,is not maintainable, as such, is required to be dismissed outrightly.That no cause of action accrued to complainant Mohinder Singh as he is neither owner nor the insured of OP,therefore,on this ground also the petition is required to be dismissed.Therefore,there is no scope of claim admissibility due to Non Insurable Interest .That as per all the records available to OP so far as the accident and loss is concerned, it was found that accident of vehicle number JK02S-6157 was never occurred on,31-03-2011 as stated by the complainant in the complaint. It is submitted that the complainant has himself failed to fulfill necessary terms and conditions of the policy and he allowed the vehicle been plied by the person who was not authorized by the insured to drive the insured vehicle and without having valid and effective driving licence and the vehicle was driven in contravention of terms and conditions of the policy. Lastly it is prayed that complaint be dismissed.

             At the same time,OP 2&3 filed objections and admitted  sale of vehicle in question in auction by OP2&3.It is further submitted that complainant is not a consumer as has been defined in Consumer Protection Act. The vehicle machinery for which the complainant is seeking release of NOC is meant for commercial activities only as such the complainant is not consumer as has been defined under section 2(1)(d) of J&K Consumer Protection Ac t,1987 .There is no un fair trade practice or deficiency in service on the part of OP as such the complaint deserves to be dismissed with exemplary cost. It is further submitted that the vehicle in question was sold in auction on,12-01-2011 to complainant and accordingly complainant had paid cheque of Rs.3.35 lacs to OP2&3.That after sale of the vehicle in question in auction to complainant, all requisite documents were handed over to (Form-29(see Rule 55(1)/Notice of transfer of ownership of a Motor vehicle and 2.)(Form 30 {See Rule 55(2)&(3),Application for intimation and transfer of ownership of a motor vehicle duly signed by the previous owner and present owner and finance Co.(Sh.Gurmeet Singh,Mohinder Singh &  Shriram Transport Finance Co.Ltd.) and while handing over the vehicle in question,OP2&3 specifically advised complainant  that he has to get his particular’s be entered in the Registration Certificate by submitting the above documents to concerned RTO,Jammu and copy of the same be given to OP2&3,despite repeated requests, complainant did not do the needful. It is submitted that OP2 &3 always advice/inform the purchaser/new owner of the vehicle who has purchased the vehicle in auction to do the needful for transfer of ownership and endorsement of his particulars in the Registration Certificate, as well as, Hypothecation of Financer name if the vehicle is financed by the said financer of the vehicle which has been purchased by him from the concerned RTO and accordingly same be informed them or duplicate copy of the registration certificate be submitted to the concerned Br,so that their records maintained by them or other segment, the vehicle sold in auction. Rest of the contents of complaint are denied by OP2&3.

                        Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Bachitter Singh and Pawan Pal Singh,respectively.Complainant has placed on record copy of certificate issued by Shri Ram Transport Finance Co.Ltd.,copy of cheque of Rs.3,35,000/-,copy of customer copy, copy  of letter issued by Shri Ram Transport Finance  Co.Ltd. to Ajit Pal Yard Jammu, copy of policy schedule  and copy of FIR.

                      On the other hand,OP1 adduced evidence by way of duly sworn evidence affidavit of Sikander Khan,Legal Manager Shri Ram Gen.Ins.Co.Ld.OP has placed on record  copy of letter issued by OP1 to Gurmeet Singh and copy of surveyor report.

                 We have perused case file and heard L/Cs for the parties at length.

                  After scanning case file and hearing L/Cs appearing for the parties, in our opinion, point which requires determination is that as to whether transfer of vehicle shall be deemed transfer of insurance policy in favour of transferee, in terms of Section 157 of Motor Vehicles Act.

                 Admittedly vehicle was insured by erstwhile owner(transferor),namely,Gurmeet Singh and the same was auctioned in the name of complainant(transferee) on        12-01-2011,which met with  accident on, 31-03-2011.Claim for indemnification of loss lodged on 31-03-2011, itself, but same was repudiated by OPs vide letter dated 06-08-2012.

                  The case set up by complainant is that once vehicle was purchased in an action from sister concern of OP1, same amounts to deemed  transfer of insurance policy in his name, in terms of Section 157 of Motor Vehicles Act.Firstly,it is to be borne in mind that Section 157, is contained in chapter XI of Motor Vehicles Act, which deals with insurance of motor vehicle, against third party risk.Secondly,Section 157(2), specifically lays down that transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes with 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 necessary changes in the certificate and the policy of insurance with regard to the transfer of insurance. Sub-Section (2) of section 157, in no uncertain words lays down that within 14 days transferee has to apply in prescribed form to the insurer for making necessary changes in the policy of insurance,however,in the case in hand, it is nobodies case that after transfer of vehicle complainant applied to the insurer for transferring insurance policy in his name, within prescribed period. We are fortified in our opinion by the judgment of Hon’ble Supreme Court in M/S Complete Insulations (P) Ltd.Versus M/S New India Assurance Company Ltd.the Hon’ble Supreme Court while deciding the dispute under Consumer Protection Act has held that:

     If the policy of insurance covers other risks as well e.g.damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the new Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto the transferee the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct.

                       In the case Rikhi Ram and another versus Smt.Sukhrania and others the Hon’ble Supreme Court has held that:

The purchaser is one of the third parties to the contract and other third party is for whose benefit the vehicle was insured. So far as the transferee who is the third party in the contract he cannot get any personal benefit under the policy unless there is a compliance of the provisions of the Motor Vehicles Act.

                In the case New India Assurance Company Ltd.Versus Shri Dattatraya Shankar Buva the Hon’ble Maharashtra State Consumer Disputes Redressal Commission has held as under:

  In the light of the judgment of the Supreme Court, we are of the view that the complaint as filed by the previous owner and subsequent owner in the Forum below was liable to be dismissed mainly on two grounds.Firstly,the subsequent purchaser had not intimated before the accident of tractor in question that he had purchased the vehicle from the previous owner and that the insurance policy in respect of said vehicle should be transferred in his name.Secondly,the complainant No.1 cannot file consumer complaint because he had already sold the vehicle and at the time of accident of the vehicle, he was not the owner of the vehicle, so the Insurance Company rightly repudiated the claim of the complainant No.1 on the ground that the complainant No.1 had no insurable interest in the vehicle.              In the case Lakhvinder Singh Versus Tarsem Singh and others, the Hon’ble High Court of Punjab and Haryana at Chandigarh has held that:

 A transferee’s right is not so protected by any of the provisions of the Motor Vehicles Act itself. A transferee who makes a claim for damage to his own property literally seeks to enforce a term of contract of insurance. By a transfer of the vehicle, a contract of insurance with the insured is not simultaneously transferred. The deemed transfer of policy is only for the purpose of employment of a claim by a third party claimant. The right to enforce an obligation under the policy against an insurer could arise for the transferee, in the absence of statutory provision, only by obtaining a transfer of the policy itself. This transfer of policy is contemplated in section 157(2) which prescribes a procedure to apply within 14 days in a prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance. While the failure to obtain such a transfer may not affect a third party claimant, it will have an immediate bearing on the right of the transferee himself.

                   It has been further held in this case that if a claim proceeds from the transferee,i.e.the purchaser of the vehicle, he cannot make the insurer liable unless the contract of insurance itself had been transferred.

                  The preposition of laws laid down in the above cited cases are in our opinion applicable to the facts and circumstances of the present case, as in the instant case also the complaint has been filed by the transferee of the vehicle claiming damages regarding accident of the vehicle in question and admittedly, before the  occurrence of accident the complainant had not intimated Insurance Company that he had purchased the vehicle from its original owner and that the insurance policy in respect of the vehicle be transferred in his name. So in the given facts and circumstances of the case, the Insurance Company is not liable to indemnify the loss to the complainant/purchaser as the complainant was not having any insurable interest in the vehicle on the date of accident.

          It is to be noted that rights and liabilities for indemnification of loss are governed in terms of contract of insurance, entered between two parties. A party which is not privity to the contract has no insurable interest, since such third party is a stranger and never endorsed to the terms and conditions of such policy, therefore, such party cannot enforce terms and conditions of insurance policy.

              In afore quoted back drop, we are of the opinion that complainant being stranger to the insurance of contract and did not have any insurable right, therefore has no right to ask for indemnification of loss, as such, we do not find any deficiency in service on the part of OPs, therefore, complaint fails, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records.

Order per President                                            (Khalil Choudhary)                               

Announced                                                           (Distt.& Sessions Judge)

27-08-2018                                                               President

                                                                            District Consumer Forum

Agreed by                                                                 Jammu.

                                                               

  Ms.Vijay Angral          

  Member                                                                                               

 

Mr.Ghulam Sarwar Chauhan

Member