BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.588 of 2019
Date of Instt. 10.12.2019
Date of Decision: 29.05.2023
Tarlochan Singh, aged about 31 years son of Harjinder Singh resident of H. No.21, Mohalla Navipur, VPO Alawalpur, Distt. Jalandhar.
..........Complainant
Versus
1. Tata AIG General Insurance Co. Ltd., through its Authorized Representative, Third Floor, Shanti Tower, SCO No.37, PUDA Complex, Opp. Tehsil Complex, Jalandhar-144001.
2. Tata AIG General Insurance Co. Ltd., through its Authorized Representative, registered office Peninsula Business Park, Tower-A, 15th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Puneet Sareen, Adv. Counsel for the Complainant.
Sh. A. K. Arora, Adv. & Sh. Nitish Arora, Adv. Counsels for the OPs No.1 & 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant has purchased Toyoto Fortuner four wheeler bearing registration No.PB07-AF-8787. Said vehicle was earlier owned by Mr. Satwinder Singh. Said vehicle was duly insured with OPs, having policy no.0100816390. After purchasing the vehicle by the complainant, the registration certificate of vehicle was got transferred in the name of resident of complainant. The insurance done by OPs was valid from 02.08.2018 to midnight of 01.08.2019. After the complainant had purchased the vehicle, he had informed to OPs regarding purchasing the same from previous owner namely Satwinder Singh and to transfer the policy in the name of the complainant and representative of OP had assured complainant that it will take time and complainant shall be informed by post regarding the same. But the same was never done by the OP. Unfortunately, the complainant met with an accident in above mentioned vehicle no PB07-AF-8787 on 18.04.2019. In said accident, the complainant also got severe injuries and he remained hospitalized for about three weeks as he had fractured in his left leg and right hip bone. Even after getting discharge from the hospital, the complainant remained bed ridden as was advised bed rest by the doctor for about three months and he was not allowed to walk. After getting fine, complainant time and again had been approaching the OP for transferring the insurance policy in the name of the complainant and also for settling the accidental claim. Thereafter opposite party vide letter dated 04.02.2019 had written to the previous owner Mr. Satwinder Singh regarding accidental claim of vehicle no.PB07-AF-8787, having reference claim no.0821607239-A under policy no.0100816390. OP had also sent the same letter to the complainant vide email dated 05.09.2019. In response to said letter, complainant had replied to above mentioned letter. Thereafter, OP vide letter dated 08.11.2019, addressed to Mr. Satwinder Singh had informed not to pass the accident claim for the vehicle. The same was also sent to the complainant through email. OP had illegally refused to settle the accidental claim of complainant, whereas complainant was having a valid driving license, registration documents of the vehicle and a valid insurance as on the date of accident. The acts, conducts, omission etc. of OP, has caused mental trauma and mental pressure to the complainant as opposite party had indulged in unfair and restrictive trade practices contrary to the claim of the OP portrayed to general public at large alluring providing adequate insurance services. The complainant had in time applied for transfer of the registration certificate of the vehicle which was applied on 01.03.2019 and the same was delivered to the complainant after a long time. Thereafter, the complainant unfortunately met with an accident as detailed above, but had been contacting OP time and again for transfer of the insurance policy and settling the accidental claim. The OP has no right to repudiate the own damage claim merely on the point that insurance policy was not transferred in the name of new owner. At least, the OP can pay the compensation regarding own damage claim to Sh. Satwinder Singh. Thus, the complainant is entitled to compensation from the OP on account of mental trauma, tension and pressure. The complainant had also got issued a legal notice dated 16-11-2019 to the OP, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to issue an order to the opposite party to clear the accidental claim no.0821607239-A under policy no.0100816390 vehicle no.PB07- AF-8787 Toyota Fortuner and to pay the amount of Rs.50,000/- for causing mental trauma, pain and agony to the complainant and Rs.10,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed written reply and contested the complaint by taking preliminary objections that the complainant is not the consumer of OP and has no right whatsoever to file the present complaint against the OP before this Forum. It is further averred that there is no privity of contract between the complainant and the OP and as such the present complaint is not maintainable. The complainant has no locus-standi to seek any service from the answering respondent for the claim that has been lodged by complainant with the OP and as such has no right to claim any amount from OPs. The policy of insurance in respect of the vehicle in question was issued by the opposite party in the name of Mr. Satwinder Singh. Mr. Satwinder Singh sold the vehicle to Mr. Tarlochan Singh who applied to the RTO for transfer of registration of the vehicle in his name on 01.03.19. The accident to the vehicle in question occurred on 18.04.2019. Thus as on the date of accident, Mr. Satwinder Singh was not the owner of the vehicle in question and as such was not having any insurable interest in the vehicle and we have no privity of contract with the new owner Mr. Tarlochan Singh. It may be noted that no request for transfer of the Insurance Policy in the name of Mr. Tarlochan Singh was ever made by either of the persons. That since, on the date of loss/accident, the Complainant had no insurable interest in the said Vehicle, the Complainant was not entitled to the claim amount and in view of same, the claim was repudiated under intimation to Mr. Satwinder Singh. It is worth mentioning that the claim was reported to the OP herein by the new owner & the claim form was also filled by him. On the date of loss/theft of subject Vehicle, Mr. Tarlochan Singh, was the owner/registered owner of the subject vehicle; however, he did not take any step to transfer the existing Insurance policy of the subject vehicle in his name from the name of the Complainant/Insured. Since, on the date of loss to the subject Vehicle, the answering OP did not have any contract with Mr. Tarlochan Singh in respect of insurance of the subject vehicle hence, he has neither locus standi to make a claim against the opponent herein nor is he entitled to payment of claim under the policy. As per clause GR 17 of India Motor Tariff, it is mandatory for the transferee to apply within fourteen days from the date of transfer of ownership in writing to the insurer. Since, in the instant matter, Mr. Tarlochan Singh, purchaser of the subject vehicle/complainant, the transferee of the subject vehicle failed to apply for transfer of the insurance policy within 14 days, and further, the insured was left with no insurable interest in the subject vehicle, the present claim was not payable and accordingly, the same was rightly repudiated by the OP. It is further averred that on the receipt of intimation of loss in respect of the accident in question, Mr. Nishant Gupta Engineer, an independent IRDA licensed Surveyor and Loss Assessor was appointed to assess the loss. It is further averred that there is no deficiency in service or unfair trade practice on the part of the OP and that being so, the present complaint is not maintainable. On merits, the factum with regard to purchasing of vehicle by the complainant, getting it transferred in his name, insurance of vehicle is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. The complainant has proved on record that he had purchased Toyoto Fortuner four wheeler bearing registration No.PB07-AF-8787, which was earlier owned by Mr. Satwinder Singh. He has proved on record the e-fee receipt regarding transfer of RC from Satwinder Singh to his name Ex.C-22 and copy of RC Ex.C-17. He has alleged that the vehicle was duly insured with the OP, which was valid from 02.08.2018 to midnight of 01.08.2019. After the purchase of the vehicle, the complainant has informed the OP to transfer the policy in the name of the complainant which was assured by the representative of the OP, but the same was not done by the OP. The complainant has further alleged that he met with an accident on 18.04.2019 and got fractured his leg and right hip bone. He was hospitalized and remained bed ridden. He has proved on record the medical prescriptions, discharge summary and other medical record Ex.C-6 to Ex.C-15. He has also proved on record the insurance policy Ex.C-19. The grudge of the complainant is that he filed a claim before the OPs, sent emails to the OPs and letters were duly written by the previous owner to the OPs and the reply were also given by the OP to the previous owner, but the OP has wrongly repudiated the claim on the ground that the policy was not transferred in the name of the complainant.
7. He has proved on record the copies of emails Ex.C-3 to Ex.C-5, letters written by the previous owner to OP Ex.C-16 and the letters written by OP to the previous owner Ex.C-20 and Ex.C-21.
8. The OPs contested the matter and have admitted the insurance policy in the name of Satwinder Singh. It was argued by the counsel for the OPs that the complainant is not the consumer of the OP and the present complaint is not maintainable. The policy of insurance was in the name of Mr. Satwinder Singh. Though, the vehicle was sold to the complainant, but the policy was never transferred in the name of the complainant. On the date of accident, as per the RC, Mr. Satwinder Singh was not the owner of the vehicle in question, therefore he was not having any insurable interest in the vehicle. Similarly, on the day of accident, the insurance policy was not in name of the complainant and there was no privity of contract between the OP and the complainant. They have denied that the request was ever made by the complainant to transfer the policy.
9. These facts that the complainant purchased the vehicle from Satwinder Singh is not disputed rather it is admitted and proved also. As per the RC, the vehicle was registered in the name of the complainant and the driving license has also been proved. The accident has also been proved and the admission of the complainant in the hospital and purchase of medicines has also been proved by the complainant by proving all the prescriptions, medical bills and the discharge summary. It is also proved that he suffered injuries. The discharge summary has also been proved by the complainant, which clearly proves that the complainant was admitted on 18.04.2019 in the Dr. Dang’s Nursing Home, Jalandhar with compound fracture left leg, fracture acetabular right side and soft tissue injury chest. He was duly treated. The claim submitted by the complainant has also not been disputed. Now the controversy is as to whether there was any privity of contract between the complainant and the OP and the complainant is the consumer of the OP. The deficiency in service is also to be proved in case the consumer is proved as consumer.
10. As per discharge summary Ex.C-15, the complainant was admitted on 18.04.2019. The previous owner namely Satwinder Singh wrote a letter to the OP raising no objection if the accidental claim of the vehicle no.PB07-AF-8787 is settled and given to Tarlochan Singh i.e. the complainant. He had written this letter to the OP on 13.09.2019. The insurance policy Ex.C19 shows that the same was valid from 02.08.2018 to 01.08.2019. The insurance policy is in the name of the Satwinder Singh i.e. the previous owner. The legal notice was sent via email to the OP, which has been proved as Ex.C-1 and the same was sent via post also, postal receipts have been proved as Ex.C-2. The letters written to Satwinder Singh by the OP Ex.C-20 and Ex.C-21. Ex.C-20 is the letter written to Satwinder Singh, the previous owner dated 04, September, 2019, it was informed to the Satwinder Singh that the vehicle is registered in the name of Tarlochan Singh, but the insurance policy is in the name of Satwinder Singh. The clause General Regulation of point 17 of All India Motor Tariff has been mentioned by the OP in the letter, which reads as under:-
‘In case of Package Policies, transfer of the "Own Damage" section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor.
A fresh Proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.
Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and a fresh proposal form duly filled and signed. The old Certificate of Insurance for the vehicle, is required to be surrendered and a fee of Rs.50/- is to be collected for issue of fresh Certificate in the name of the transferee. If for any reason, the old Certificate of Insurance cannot be surrendered, a proper declaration to that effect is to be taken from the transferee before a new Certificate of Insurance is issued.
It was informed that the insurable interest does not exist as the policy is on the name of Satwinder Singh. No request for transfer of policy was received either from Satwinder Singh or from Tarlochan Singh. Ex.C-21 shows that the claim of the complainant was declined on the ground that there is no privity of contract between the complainant and the OP and there was no request for transfer of the policy. The OP has proved on record the report of the Surveyor Nishant Gupta, in which he also gave the opinion that insurable interest does not exist as the insurance policy stands in the name of Satwinder Singh, therefore, the claim is not maintainable.
11. The complainant has relied upon the law laid down by the Hon’ble Punjab and Haryana High Court, in a case titled as ‘Bhup Singh Vs. United India Insurance Co. Ltd. and Another, 2020(1) R.C.R. 978, in which the Hon’ble High Court has observed that as per the terms of Section 157 (1) of 1988 of Motor Vehicles Act, which contains deemed provision, certificate of insurance and policy also deemed to have been transferred to the purchaser. Therefore, insurer cannot escape its liability. The insurance company alongwith driver was held jointly and severally liable in the case relied upon by the counsel for the complainant. Section 157 (a) provides as under:-
‘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.’
12. As per this Section, where the owner of the vehicle transfer the ownership to the other person, 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.
13. In the present case, the owner of the vehicle Satwinder Singh has admitted vide letter written to the OPs on 13.09.2019 that he has sold the vehicle No.PB07-AF-8787 in favour of Tarlochan Singh S/o Harjinder Singh. He has categorically stated in Ex.C-16 that the registration certificate was also transferred in the name of Sh. Tarlochan Singh. Before the intimation regarding this transfer be given to the insurance company, the vehicle met with an accident. The RC Ex.C-17 shows that the ownership has been transferred in the name of the complainant. As per law laid down by the Hon’ble Punjab & Haryana High Court and as per Section 157 (1) of the Motor Vehicle Act, the insurance is deemed to be transferred in the name of the purchaser from the date of transfer of the ownership. Since, the provision of Section 157 (1) of the Act is deemed provision, therefore the insurer cannot escape its liability by saying that since there is no privity of contract between the complainant and the OP nor there was request for transfer of the policy, therefore claim cannot be given. There is no such condition mentioned in the section 157 (1) of the Motor Vehicle Act as the same is deemed provision, therefore the repudiation is wrong and illegal and thus, the same is hereby set-aside and the complainant is entitled for the relief.
14. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to clear the accidental claim No.0821607239-A of the complainant as requested. Further, OPs are directed to pay a compensation of Rs.15,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
29.05.2023 Member Member President
