DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
Complaint No. : 114
Date of Institution: 31.08.2015
Date of Decision : 4.03.2016
Charanjit Singh s/o Inder Singh r/o VPO Fakarsar, Tehsil Gidarbaha, District Sri Muktsar Sahib.
...Complainant
Versus
Tata AIG General Insurance company Ltd, Peninsula Business Park, Tower A, 15th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400013 through its MD
Kwality Diary India Ltd, N-601, Hill View opposite Sector 46, Faridabad through its MD.
Shri Shiv Kirpa, G-7, Jaina Tower-III, A-1, Janak Puri, New Delhi-110058 through its proprietor.
.....Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. Ajit Aggarwal, President,
Smt Parampal Kaur, Member,
Sh P Singla, Member.
Present: Sh. Ashu Mittal, Ld Counsel for complainant,
Sh. Neeraj Maheshwary, Ld Counsel for OP-1,
OP-2 & 3 Exparte
(Ajit Aggarwal, President)
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of insurance claim of Rs.5,93,989/-and for further directing OPs to pay Rs. 50,000/- as compensation for harassment, inconvenience, mental agony besides litigation expenses.
2 Briefly stated, the case of the complainant is that complainant purchased the car bearing no. HR-51-AP-0120 from OP-2 for Rs 7,15,000/-through OP-3 and said vehicle was insured with OP-1. Complainant paid Rs50,000/- on 03.05.2015 to OP-2 and made payment of remaining amount on 8.05.2015 and thereafter, OP-2 and 3 delivered the custody of insured vehicle to complainant and gave an affidavit dt 7.05.2015 alongwith documents to complainant and promised to give NOC shortly. On 20.05.2015, said vehicle met with an accident at Faridkot and intimation regarding same was given to Police as well as OP-1, who sent a Surveyor namely Piara Singh at the accident site. Said Surveyor inspected the vehicle and told complainant to take the vehicle at any service station for getting it estimated for repairs. Complainant took the vehicle at the workshop of Radiant Toyota at Moga and who gave an estimate of loss to the tune of Rs 5,93,989/-and then, complainant applied for insurance claim to OP-1 and after completion of one month, when complainant did not receive any response from OP-1, he approached said Surveyor, who told complainant that OP-1 has denied the claim of complainant as OP-2 which is the registered owner of vehicle has sold the vehicle to complainant and on this pretext OP-1 has repudiated the claim of complainant. it is further submitted that after purchasing the vehicle from OP-2, OP-2 transferred all the rights of ownership as well as insurance to complainant and therefore, complainant is the consumer of Ops, but Op-1 has illegally and wrongly repudiated the genuine claim of complainant. Complainant also approached OP-2 and 3, but they did not hear his request and even did not issue NOC till 5.08.2015 and that is why registration certificate is not transferred in the name of complainant. complainant made many requests to OP-1, but till now, they have not made payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice on the part of Ops and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay Rs 50,000/-as compensation alongwith litigation expenses besides the main relief of insurance claim of Rs.5,93,989/-. Hence, the present complaint.
3 The counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.09.2015, complaint was admitted and notice was ordered to be issued to the opposite party.
4 OP-1 filed written statement taking preliminary objections that complaint is bad for misjoinder of necessary parties and complainant has filed this complaint only to injure the goodwill and reputation of OPs and it is false and frivolous and complicated questions of law and facts are involved in this case, which cannot be decided in summary proceedings and therefore, complaint is not maintainable in this Forum. Complainant has concealed the material fact and complainant has not informed OP-1 about transfer of ownership of vehicle and complaint contains false allegations. However, on merits, it is admitted that vehicle in question was insured with OP-1 vide policy no. 0101005637 from 6.07.2014 to 5.07.2015 and claim under policy is admissible subject to terms and conditions. It is further averred that answering OP was never informed regarding sale of said vehicle and therefore, OP-1 is not liable for any loss to complainant. Vehicle in question met with an accident and intimation regarding same was given to answering OP on 21.05.2015 by Mr Charanjit Singh alleging to be the employee of OP-2 and driving the said vehicle at the time of accident and on receipt of information, OP-1 appointed an independent Surveyor, who assessed the loss to the tune of Rs. 6,56,099/-subject to the terms of policy. After receipt of report on 1.08.2015, representative of OP-2 informed Op-1 that said vehicle is sold to Mr Prem Dhingra and it was delivered to him vide receipt dt 18.04.2015, but intimation regarding said sale was not given to answering OP. OP-1 vide letters dt 8.08.2015 and 28.09.2015 invited the comments of OP-2 with respect to non intimation of sale of vehicle to them, as answering OP did not receive any response from OP-2 and therefore, OP-1 repudiated the claim of complainant vide letter dt 8.10.2015. It is further averred that OP-1 has no contract with complainant and hence, OP-1 is not liable for any loss. It is asserted that as per Own Damage Section that covers damage to the insured vehicle, the Transferee has to make a specific request alongwith No Objection of the transferor for transfer of policy in the name of transferee on payment of necessary charges or premium, but complainant has failed to approach answering OP for transfer of policy and said policy remained continue in the name of previous owner and thus, there is no contractual relationship between complainant and OP-1 and as such, answering OP is not liable to indemnify the loss as demanded by the complainant. All the other allegations levelled by complainant are denied being wrong and incorrect and it is reiterated that there is no deficiency in service or unfair trade practice on the part of answering OP. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.
5 Registered cover containing copy of complaint and summons was sent to OP-2 and 3, which did not receive back. Even after expiry of statutory period, OP-2 and 3 did not appear in the Forum either in person or through counsel and therefore, they were proceeded against ex-parte vide order dt 26.10.2015.
6 Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-13 and then, closed his evidence.
7 In order to rebut the evidence of the complainant, OP-1 tendered in evidence, affidavit of Mohd. Azhar Wasi as Ex OP-1/1 and documents Ex OP-1/2 to OP-1/7 and then, evidence of OP-1 was closed by the order of this Forum.
8. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.
9. Ld. Counsel for the complainant argued that the complainant is owner in possession of vehicle bearing registration no. HR-51-AP-0120 which was insured with OP-1 valid from 06.07.2014 to 05.07.2015, originally this vehicle was owned by OP-2 and complainant purchased the said vehicle from OP-1 through OP-3 for Rs.7,15,000/-. He paid amount of Rs.50,000/- as advance on 03.05.2015 and paid balance amount on 08.05.2015. After receiving the entire sale price OP-2 & 3 delivered the custody of the said vehicle to the complainant and gave an affidavit dated 07.05.2015 along with other documents of the vehicle. Copy of the registration certificate is Ex C-10, Insurance Certificate Ex C-12, affidavit dated 07.05.2015 Ex C-8 and copies of the receipts regarding the payment are Ex C-5 & C-6 and copy of statement of bank account of complainant Ex C-11, showing the payment to OP-2. On 20.05.2015, the vehicle in dispute met with an accident at Faridkot, the complainant gave intimation regarding it to police. The copy of the DDR dated 20.05.2015 Ex C-9. He duly gave intimation regarding it to OP-1, after intimation they sent their surveyor namely Piara Singh for spot inspection who after inspection of the vehicle told to complainant to take the vehicle at service station for getting the estimate for repairs. The complainant took the vehicle to the workshop of RADIANT Toyota at Moga who gave estimate to the tune of Rs.5,93,989/-. The copy of estimate is Ex C-13. The complainant applied for the insurance claim with OP-1 along with estimate and other documents but when he found no response from them after passing one month he contacted the Surveyor who told that OP-1 has rejected his claim as OP-2 who is registered owner of the said vehicle has sold the vehicle to the complainant, so on this ground OP-1 repudiated his claim which is altogether wrong and illegal. After purchasing the said vehicle, the complainant has come into footsteps of the OP-2, they transferred all the rights of ownership as well as insurance to the complainant, so the complainant is consumer of the OPs. The complainant approached to OPs many times and requested them to pass his genuine claim but they did not hear. OP-1 wrongly and illegally repudiated the claim of the complainant on false ground which amounts to deficiency in service and trade mal practice on their part, the complainant suffered mental agony, harassment and financial loss due to these acts of the OPs. The Counsel for the complainant prayed that the present complaint may be accepted, the OPs may be directed to pay insurance amount in question along with interest and compensation.
10. To controvert the arguments of the complainant, Ld. Counsel for the OP-1 argued that complainant is not consumer of the OP-1, there is no deficiency in service on the part of OP-1. The complainant does not have any contract with OP-1 and is not entitled for any compensation. He filed the present complaint only to injure the goodwill and reputation of OP-1. He has no cause of action to file the present complaint. The complainant never gave any intimation to OP-1 regarding the transfer of ownership of the vehicle. However, they admitted that the vehicle in question was insured with them subject to terms and conditions of the policy. It is wrong that OP-2 who was registered owner of the vehicle sold the said vehicle to the complainant, they never informed regarding the sale of vehicle to OP-1 and OP-1 is not liable for any loss to the vehicle. However, it is correct that the vehicle met with an accident and complainant gave intimation regarding it to OP-1 and after receiving the intimation OP-1 appointed Surveyor to inspect and assess the loss to the vehicle who assess the loss to the tune of Rs.6,56,099/-. Copy of the Surveyor report is Ex OP-1/6. As per terms and condition of the insurance policy and General Regulations 17 of All India Motor Tariff “ the transferee shall apply within 14 days from date of transfer in writing under recorded delivery to the insurer who has insured the vehicle with the details of registration of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh certificate of insurance.”
In the present case no such procedure has been followed by the parties, there is no transfer of RC and policy of the alleged purchaser of the vehicle, as per terms and conditions of All India Motor Tariff and Motor Vehicle Act. As such OP-2 does not have any insurable interest in vehicle on the date of alleged accident and complainant does not have any contract with answering respondent. The contract of insurance is personal contract and does not insure, the benefits to any 3rd party to the contract and 3rd party cannot claim any benefit under the policy. Hence, answering OP-1 is not liable to pay any compensation to either of the parties and complaint is liable to be dismissed. Moreover during the process of claim the OP-1 contact to OP-2 one Mr. Avinash inform that the vehicle in question is sold to some Mr. Prem Dhingra on 18.04.2015 and sale of vehicle to the complainant never informed to OP-1. OP-1 sent letters dated 08.10.2015, 28.09.2015 and 08.08.2015 to M/s Kwality Dairy India Ltd inviting his comments with respect to non intimation of sale of vehicle and regarding repudiation of claim. The copies of the letters are Ex OP-1/3 to OP-1/5, as the OP-1 does not have any contract with complainant. As the complainant failed to approach OP- 1 to transfer the policy and the policy continued the name of OP-2 and there is no contractual relationship between the complainant and OP-1, so they are not indemnify the loss as demanded by the complainant. The Ops rightly and legally repudiated the claim of the complainant in question, they are not liable to pay anything to complainant. There is no deficiency in service and trade mal practice on their part. The complainant filed false and frivolous complaint against the OPs which may be dismissed with cost.
10. We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he purchase the vehicle in question from OP-2 through OP-3 on 07.05.2015 which was insured with OP-1 the said vehicle met with an accident on 20.05.2015, he duly gave intimation to OP-1 who appointed the Surveyor to assess the loss of the vehicle but they wrongly and illegally repudiated the claim on the false ground that as OP-2 sold the vehicle to complainant, so he has no insurable interest in the vehicle. In reply the OPs admitted that the vehicle in question was insured with them and OP-2 was registered owner of the vehicle. They also admitted that the complainant gave intimation regarding accident to them, they appointed the surveyor to assess the loss to the vehicle but they argued that as OP-2 is sold vehicle to the complainant and they gave no information regarding this sale to them and not got the policy transferred in the name of complainant with a stipulated period of 14 days as per General Regulations no.17 of Motor Vehicle Act, so there is no insurable interest in the vehicle either of OP-2 or complainant and they rightly repudiated the claim of the said vehicle. On it the counsel for the complainant argued that earlier the OP-2 was owner of the vehicle who got insured the said vehicle with OP-1, he purchased the said vehicle from OP-2 along with all rights on the vehicle and the insurance policy is also automatically transferred in his favour and he has all insurable interest in the said vehicle. In his support he put reliance on the citation 2014 (3) Consumer Law Today, 63 Case titled as Mallamma (Dead) by LRS Vs National Insurance Company Ltd & Ors whereas our Hon’ble Apex Court held that Motor Vehicle Act, 1988, Section 157-Insurance Claim-Transfer of Ownership-Once the ownership of the vehicle is admittedly proved to have been transferred, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the Motor Vehicle Act is not given to the insurer.
He argued that in the light of above decision of the Hon’ble Apex Court, the insurance policy is also transferred in favour of the complainant along with ownership of the vehicle and the OP-1 cannot repudiate the claim on the ground that the insurance policy was not transferred. He further argued that if the plea of OPs admitted that as per Rules he had to get transfer the insurance policy in his favour within 14 days from the purchase of the vehicle as per General Regulations no.17 in that case also he purchase the vehicle on 08.05.2015 and same met with an accident on 20.05.2015 which is admitted by the OP-1 themselves in that case also the period of 14 days had not elapsed and vehicle met with an accident within the period of 14 days and OP-1 cannot reject his claim on this ground, on this point he put reliance on the citation 2014 (2) Consumer Law Today, 443, titled as Shish Pal Vs Reliance General Insurance Company Ltd. & Others where Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U.T. Chandigarh held that Consumer Protection Act, 1986, Section 2 ( 1) (g) –Insurance Claim (Truck)-theft of vehicle-Change of ownership-Transfer of insurance policy-Claim repudiated-On the ground that the complainant had no insurable interest, in the truck, in question, at the time of theft and that the truck, already stood transferred/sold, in favour of the complainant, and no intimation, in respect of the same, had been given to insurance company, for transfer of the insurance policy, in his name-The truck was registered, in the name of complainant on 10.10.2011-According to the GR-17, the complainant, could intimate the insurer, within 14 days, from the date of registration of the truck, in this name-However before that time lapsed, in the meanwhile, the truck was stolen-Held- it could not be said that, on the date of theft of the truck, there was no insurable interest, or there was violation of GR17.
So, in these circumstances and in view of the decision of Hon’ble Supreme Court and State Commission, the OP-1 illegally and wrongly repudiate the claim, the vehicle in question and they are liable to pay the compensation for loss of the vehicle.
11. We have thoroughly gone through the evidence and case law produced by the complainant, if we admit the version of the OP-1 then also as per General Regulation no. 17, transferee should inform the insurer for getting transfer the insurance in his favour within 14 days and in the present case, the complainant purchased the vehicle in question on 08.05.2015, as per affidavit Ex C-8 and vehicle met with an accident on 20.05.2015 as per DDR Ex C-9 and also admitted by the OP-1 themselves so the period of 14 days has not yet was lapsed as per Regulations of the OP-1, so they cannot deny the claim for the loss to the vehicle.
12. We are fully convinced with the arguments advanced by the Counsel for the complainant and case law produced by him and come to the conclusion that the OP-1 wrongly and illegally repudiate the claim to the vehicle of the complainant and the complainant is entitled for the payment of compensation for the loss of his vehicle. However, the loss to the vehicle assessed by the Surveyor to the tune of Rs.6,56,699/- and M/s Radiant Toyota gave estimate for the loss to the tune of Rs.593989.34 but complainant fails to prove that he actual spent this much amount for the repair of his vehicle and not produce the bills for this much amount. He succeeds to produce the bills only for the amount about Rs.2,00,000/-.
11 In the light of above discussion, the present complaint is hereby partly allowed. The OP-1 is directed to pay Rs.2,00,000/- for the loss to the vehicle of the complainant along with interest @ 12 % PA from 08.10.2015 when they repudiate the claim of complainant till final realization. The OPs are also burdened to pay Rs.3000/- as litigation expenses to the complainant. Ops are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.
Announced in Open Forum
Dated 04.03.2016
Member Member President
(P Singla) (Parampal Kaur) (Ajit Aggarwal)
