Tripura

StateCommission

A/29/2016

The United India Insurance co. Ltd. - Complainant(s)

Versus

Sri. Gourdas Modak - Opp.Party(s)

Mr. P.Gautam

14 Mar 2017

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

 

Case No.A.29.2016

 

 

 

1. The United India Insurance Company Ltd.,

Represented by its Divisional Manager,

Agartala Divisional Office, Opp. RMS Chowmuhani,

P.O. Agartala, P.S. West Agartala, West Tripura

 

… … … … Appellant/Opposite Party

​

 

1. Sri Gourdas Modak,

S/o Late Narendra Ch. Modak,

Malaynagar, Renters Colony,

P.O. Agartala College, P.S. Srinagar, Agartala,

District - West Tripura, Pin:799004.

 

… … … … … Respondent/Complainant

 

Present

 

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Ch. Sharma,

Member,

State Commission, Tripura.

 

 

 

For the Appellant:                       Mr. Pradyumna Gautam, Adv.

For the Respondent:                Mr. Kushal Deb, Adv. & Mr. D.J. Saha, Adv.

Date of Hearing:                       18.02.2017.

Date of Delivery of Judgment:  14.03.2017.

J U D G M E N T

 

 

U.B. Saha,J,

The instant appeal is filed under Section 15 of the Consumer Protection Act, 1986 by the United India Insurance Company Ltd. (hereinafter referred to as Insurance Company) who was the opposite party against the judgment dated 17.05.2016 passed by the Ld. District Consumers Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No. C.C. 76 of 2015 whereby and whereunder the Ld. District Forum partly allowed the complaint case filed by the respondent-petitioner (hereinafter referred to as petitioner) directing the opposite party United Insurance Company Ltd. to pay Rs.1,29,000/- with cost of repairing of the vehicle and also to pay Rs.35,000/- as compensation and litigation cost, in total Rs.1,64,000/-. Amount is to be paid within two months, if the same is not paid within the aforesaid period, then it will carry interest @9% per annum.     

2. Heard Mr. Pradyumna Gautam, Ld. Counsel appearing for the appellant-Insurance Company as well as Mr. Kushal Deb and Mr. D.J. Saha, Ld. Counsels appearing for the respondent-petitioner.
3. Facts of the case are as follows:-

The appellant-petitioner Sri Gourdas Modak had purchased the vehicle bearing No.TR-01-X-1609 Truck (Ten wheelers) from Sri Balaram Dey on 27.06.2014 and the said vehicle was insured with the opposite party-Insurance Company at the time of purchase. Thereafter, the petitioner informed the matter to the opposite party-Insurance Company to transfer the insurance policy in his name, but the opposite party-Insurance Company asked to change the ownership first and then to apply for changing of insurance policy in his name. Accordingly, the petitioner submitted application to the Transport Authority to change the ownership of the aforesaid vehicle. The Transport Authority told the petitioner that the registration certificate would be sent to him by post. Unfortunately, the said vehicle met with an accident on 25.09.2014, where the vehicle was badly damaged. Accordingly, an application for insurance claim was submitted to the opposite party-Insurance Company on 28.07.2014 by the previous owner Sri Balaram Dey, as the ownership was not transferred in the name of the petitioner. On 03.07.2014, the ownership of the vehicle was transferred in the name of the petitioner, but the same was beyond his knowledge. Thus, the petitioner could not made any claim in his name.

After getting information of accident of the said vehicle, the opposite party-Insurance Company appointed a Surveyor, namely, Sri Bijan Chakrabarti who visited the repairing workshop on 13.08.2014 and 22.08.2014. He inspected the vehicle, took photograph and under his observation, the said vehicle was repaired. The aforesaid surveyor also assessed the loss as Rs.80,000/- only. Admittedly, the aforesaid vehicle was duly insured with the opposite party Insurance Company as package policy vide Policy No.1309003114P102041771 on 26.06.2014, which was valid up to 25.06.2015. As per the verbal instruction, the present petitioner submitted the detailed estimated cost for repairing of the said vehicle from ‘New Dwarika Engineering Welding’ & ‘New Sharma Body Buildings’ for the amount of Rs.1,47,760/- and Rs.1,98,485/- for spare parts and body building respectively against the said damaged vehicle. Accordingly, the said vehicle was repaired from New Sharma Body Buildings. On 17.12.2014, the surveyor appointed by the opposite party Insurance Company submitted his report with a remark in the column (h) of the last page that the Insurance Company has no liability as the ownership was transferred on 03.07.2014 from Sri Balaram Dey to the present petitioner i.e. 14 days prior to the date of accident, but the insurance policy is still in the name of Sri Balaram Dey from whom, the petitioner had purchased the vehicle. In his report, the surveyor also mentioned that the insurance policy transferred in the name of the petitioner on 12.12.2014. The appointed surveyor of the Insurance Company conducted all the procedures of inspection where the petitioner co-operated with the Insurance Company on every call. The opposite party-Insurance Company after elapse of seven months, repudiated the claim of the petitioner vide letter dated 06.02.2015 stating, inter alia, that the Insurance Company is not liable for the said claim and also informed that no correspondence would be entertained in future. According to the petitioner, the aforesaid action of the Insurance Company is nothing but a deficiency in service, hence, he made a petition before the Ld. District Forum for allowing him an amount of Rs.3,50,000/- as insurance claim with interest and also for an amount of Rs.50,000/- and Rs.20,000/- to the cost of mental pain and cost of litigation respectively.

4. The opposite party-Insurance Company appeared and filed written statement contending that the accident took place on 25.07.2014 and on that date, the insurance policy was in the name of Sri Balaram Dey, the previous owner of the said vehicle though the ownership was transferred to the petitioner Sri Gourdas Modak on 03.07.2014. It is also stated that the accident took place before 14 days from the date of transfer of ownership. The insurance policy was in the name of Sri Balaram Dey as issued on 12.12.2014. Petitioner-Gourdas Modak, the transferee should have applied within 14 days from the date of transfer in the prescribed form to the insurer for making necessary change in regard to the fact of transfer in the insurance policy certificate. That was not done. So, the opposite party-Insurance Company has no liability and accordingly, the claim was rightly repudiated.
5. The petitioner in support of his case produced the sale agreement certificate, surveyor report, letter, insurance package policy in the name of Balaram Dey, G.D. Entry, information of the accident to the opposite party-Insurance Company, letter to get the documents, which were marked as Exhibit-1 series by the District Forum. He has also examined two witnesses i.e. the petitioner himself and Sri Balaram Dey, the original owner of the vehicle who transferred the vehicle to the petitioner.

On the other hand, the opposite party Insurance Company produced the photocopy of assessment report, survey report, Certificate of registration, which were marked as Exhibit-1 series.

The opposite party also examined one Ashish Kumar Bhakta, Administrative Officer of the opposite party-Insurance Company.

6. The Ld. District Forum considering the pleadings of the parties as well as evidence on record has taken up the following points for decision and finally partly allowed the petition as stated (supra).
7. Mr. Gautam, Ld. Counsel while urging for setting aside the impugned judgment would contend that as per Section 157 of the Motor Vehicles Act, 1988, the certificate of insurance is deemed to have been transferred in favour of the person to whom the vehicle is transferred but the said provision applied only in relation to third party risk and will not apply to the policy covering the risk of damage to the vehicle or person of the insured. He has also argued that as per sub clause (ii) of Section 157, 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 if the same is not done, the policy shall be lapsed. In support of his aforesaid contention he has relied upon the judgment of the Hon’ble Apex Court in M/s. Complete Insulations (P) Ltd Vs New India Assurance Company Ltd., 1996 SCC (1) 221.  
8. Mr. K. Deb, Ld. Counsel for the respondent-petitioner while supporting the impugned judgment submits that 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. He also submits that the petitioner purchased the vehicle in question on 27.06.2014, when the policy regarding the vehicle was in force and not only that, the petitioner also informed regarding the fact of purchase to the opposite party Insurance Company with a request to transfer the insurance policy in his name, but the opposite party Insurance Company asked the petitioner to change the ownership first and then to apply for changing of insurance policy in his name. He further submits that admittedly, the vehicle met with an accident on 25.07.2014 within the valid period of package policy i.e. 25.06.2015. Thus, in no way, the opposite party Insurance Company can deny the claim of the petitioner on the ground that the policy was not transferred in favour of the petitioner. In support of his case, he has relied upon the decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as National Commission) in Narayan Singh Vs New India Assurance Company Ltd., 2008 (1) CLT 46 (NC), wherein, the Hon’ble National Commission held that “on transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner.” He has also relied upon the decision of the Hon’ble National Commission in National Insurance Company Ltd. Vs Shri Subhash Chand Kataria & Anr. in Revision Petition No.518 of 2008, and while decided the said case, the Hon’ble National Commission took note of Narayan Singh (supra) wherein the National Commission in Paragraph-5 of the said judgment stated as follows:-   
9.  
10.  

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. If the transferee wants to change the policy in his name, 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.”

In Shri Subhash Chand Kataria & Anr. (supra), the Hon’ble National Commission while dismissing the Revision Petition No.518 of 2008 filed by the National Insurance Company Ltd., observed in Para-6 of the judgment as follows:

• 6. In this connection, the National Commission has observed in Revision Petition No.566 of 2002 (Shri Narayan Singh Vs New India Assurance Company Ltd.) in its judgment and order of 22.05.2007 as under:

“It appears that in a number of cases Insurance Companies are suppressing this regulation and take undue advantage and contend with all force that as the insurance policy was not transferred in favour of the new purchaser, Insurance Companies are not liable to reimburse the insurers or the transferees of the vehicle because the transferees were not having any insurable interest.”

In the case of Narayan Singh (supra) Petitioner of that case purchased Maruti Van from his original owner on 31.05.1995. The original owner had taken insurance policy for a sum of Rs.1,40,000/- for a period between 3^rd August 1994 and 2^nd August, 1995. Unfortunately, within five days of its purchase, i.e. on 04.06.1995 when the Complainant alongwith his family was coming from Varanasi to Muzaffarpur, the said vehicle met with an accident on the way of Muzaffarpur at Village Moharrampur P.S. Bihta, Dist. Patna in which the said vehicle was totally damaged. Thereafter, the information regarding the accident was given to the Patna Regional Office of the Insurance Company. The Insurance Company appointed a Surveyor who assessed the loss. However, as the amount was not paid to the Complainant, the Complainant approached the Consumer District Forum, Muzaffarpur by filing Complaint Case No.187/1996. By order dated 16.09.1997, the District Forum allowed the complaint and directed the Insurance Company to reimburse a sum of Rs.1,40,000/- with interest @ 8% p.a. with further direction to pay Rs.5,000/- as compensation and costs. Against the said decision of the District Forum, the Insurance Company preferred Appeal No.590/1997 before the State Commission, Bihar. That appeal was allowed by order dated 26.12.2001 by observing that Muzaffarpur District Forum was not having territorial jurisdiction and also on the ground that insurance policy was not transferred in favour of the Complainant. Against which the Complainant/Petitioner Narayan Singh preferred Revision Petition before the Hon’ble National Commission wherein, the Hon’ble National Commission took note of the judgment rendered by the Chhattisgarh State Commission in the case of Ajimuddin Vs The New India Assurance Company Ltd., reported in 2006 (2) CPR 124, wherein the Commission has observed in paragraph 7 as under :

“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 Hon’ble 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 GR 10 provisions may be settled in full subject to the other terms and conditions of the policy.”

In Paragraph 10 of the Narayan Singh (supra), the Hon’ble National Commission also quoted that “In this view of the matter, 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 Vehicles Act 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.”

9. In the instant case, the Ld. District Forum while passing the impugned judgment took note of the Circular issued in the year 1994 by the General Insurance Company as well as Section 157 of the Motor Vehicles Act, 1988 and held that “As per Section 157 of the Motor Vehicles Act, the certificate of insurance is deemed to have been transferred in favour of the person to whom the vehicle is transferred. On transfer of vehicle, the benefits under the policy in force will automatically accrued to the new owner. The bonus/malus already applicable for the policy would continue until the expiry of the policy. If the transferee wants to transfer the policy in his name, it may be done on getting evidence for sale and proposal form duly completed. But if he fails to do so within 14 days, then the transfer will not be invalid. If the transfer remained valid, then as per 157 of the M.V. Act all interest of the transfer including the insurable interest automatically will be vested to the the new owner i.e. transferee. Nothing found in the section 157 to support that only 3^rd party interest only will be protected in application of these sections. On the transfer of the vehicle, the certificate of insurance policy deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer. These principles are laid down by the decision of the National Consumer Disputes Redressal Commission in the judgment passed on 29.02.2008 and on 22.05.2007. Section 157 of the new Act did not confine itself on the 3^rd party risk. So we do not agree with the contention raised by the learned advocate for the opposite party that in such a case only 3^rd party risk is covered. It is true that no fresh agreement was executed between the new owner and the Insurance Company to cover 3^rd party or 1^st party. The coverage is already enforced through the policy executed by old owner of the vehicle.”  
10. We have also gone through the evidence of Sri Balaram Dey, the original owner, the P.W.2, who in his deposition has specifically stated that he sold the vehicle in question to the petitioner on 27.06.2014 and the vehicle was insured with the United India Insurance Company at the time of purchased of the vehicle by the petitioner. It also appears from the evidence of the said P.W.2, the original owner of the vehicle that the vehicle in question met with an accident on 25.07.2014, when the insurance package policy regarding the vehicle was valid up to 25.06.2015. According to us, the plea of the Insurance Company that the petitioner is not entitled to get the benefits of the policy for the vehicle in question as the same remained in the name of the original owner on the date of accident has no force.
11. In view of the decision of the Narayan Singh (supra), wherein the Hon’ble National Commission categorically said that on transfer of a vehicle, the benefits will automatically accrue to the new owner. It also appears from the deposition of the petitioner as P.W.1, that just after he purchased the vehicle, he informed the matter to the Insurance Company to transfer the insurance policy in his name, but the opposite party-Insurance Company asked him to change the ownership first and then to apply for changing of insurance policy in his name. Even if, the insurance policy is not changed in the name of the petitioner, then also, according to us, the benefits under the policy in force at the time of accident will automatically accrue to the petitioner being owner of the vehicle as he admittedly purchased the vehicle before the accident and within the validity of the insurance policy.
12. The judgment of the Hon’ble Apex Court in M/s. Complete Insulations (P) Ltd. Vs New India Assurance Company Ltd. (supra) as relied upon by Mr. Gautam was considered by the Chhattisgarh State Commission in the case of Ajimuddin Vs The New India Assurance Company Ltd., which was referred in Narayan Singh (supra). We have also gone through the judgment in M/s Complete Insulations (P) Ltd. (supra). According to us, the fact of that case is totally different than the case in hand. In that case, the registration of the car was transferred to the appellant of that case on 15.06.1989 and on 26.06.1989, the appellant intimated the transfer of registration. But in the instant case, the petitioner immediately after purchase of the said vehicle verbally informed the appellant-Insurance Company regarding such purchase with a request to transfer the policy in his name. The request of the petitioner was not accepted by the appellant-Insurance Company on the ground that the transfer of registration was not done. Thus, we are unable to accept the contention of Mr. Gautam that Section 157 of the M.V. Act only speaks about the 3^rd party risk, not the damage of the vehicle.    

In view of the above facts and circumstances, we are of the considered opinion that the Ld. District Forum did not commit any error while passing the impugned judgment. Thus, no interference is called for.

The appeal is, accordingly, dismissed being devoid of merit. No order as to costs.

Send down the records to the Ld. District Forum, West Tripura, Agartala.

 

 

MEMBER State Commission Tripura MEMBER State Commission Tripura PRESIDENT State Commission Tripura