The Branch Manager, United India Insurance Co. Ltd., Sindhanoor V/S Mr. Shakir @ Shakirsab S/o. Allasab, Raichur - Consumer Court Case

Karnataka

Raichur

CC/10/104

Mr. Shakir @ Shakirsab S/o. Allasab, Raichur - Complainant(s)

Versus

The Branch Manager, United India Insurance Co. Ltd., Sindhanoor - Opp.Party(s)

Sri. T.M. Swamy

01 Mar 2011

ORDER

Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
Dist. Consumer Disputes Redressal Forum, Sath Kacheri, Raichur.
consumer case(CC) No. CC/10/104

Mr. Shakir @ Shakirsab S/o. Allasab, Raichur						...........Appellant(s)
Vs.
The Branch Manager, United India Insurance Co. Ltd., Sindhanoor						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by one complainant Shakir @ Shakir Sab against Opposite United India Insurance Company Ltd., U/sec. 12 of Consumer Protection Act, for to direct the opposite to pay an amount of Rs. 80,000/- towards damage to his vehicle, Rs. 10,000/- towards deficiency in service and Rs. 20,000/- cost of litigation with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he purchased a Car bearing No. KA-34/MB9099 from its previous owner and RC Holder one Pratap Patil, R/o. Maski insured with opposite Insurance Company and thereafter on 21-02-09 on Maski Sindhanur Road it met with an accident while driving by himself with valid driving licence. In the said accident his vehicle badly damaged, the Insurance Policy of the vehicle with opposite was inforce as on the date of the accident. Thereafter it was intimated to opposite, surveyor was appointed and got surveyed, he filed claim petition with all records, but opposite Insurance Company, shown its negligence in settling his claim, in spite of repeated oral and written requests and thereby opposite found guilty under deficiency in its service. 3. Opposite Insurance Company appeared in this case through its Advocate, filed written version by denying the claim of the complainant, as there is no privity of contract in between the complainant and Insurance Company. The previous owner got insured the said vehicle, but the transfer of the said vehicle from previous owner to this complainant was not intimated to it. As such there is clear violation of the terms and conditions of the Insurance Policy and thereby opposite Insurance Company not liable to make payment under Insurance Policy and thereby it prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he purchased Car bearing No. KA-34/MB 9099 from its previous owner and RC Holder one Pratap Patil, R/o. Maski, insured with opposite Insurance Company and thereafter on 21-02-09 on Maski Sindhanoor Road, the said car met with an accident while he was driving with valid driving licence, vehicle badly damaged in the accident, it was intimated to Insurance Company but opposite Insurance Company not shown interest in settling his claim and thereby opposite Insurance Company found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. In order to prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-6 are marked. Affidavit-evidence of one witness Maheboob was field, he was noted as PW-2. On the other hand affidavit-evidence of Assistant Manager of opposite Insurance Company was filed, he was noted as RW-1. One document is marked as Ex.R-1. Written arguments field. 7. As per the pleadings of the parties, the Car bearing No. KA-34/MB9099 met with an accident on Maski Sindhanoor Road, on 21-02-09 while Insurance Policy was inforce. As per the RC Book (Copy) the said vehicle stands in the name of complainant Shakir Sab which was transferred in his name on 12-02-09. 8. Ex.P-1 is the Insurance Policy of the said vehicle. Ex.P-5 is the FIR Copy regarding the accident dt. 22-02-09. 9. It is undisputed fact between the parties that, RC, now stands in the name of complainant from its previous owner one Pratap Patil. It is further undisputed fact that, complainant not intimated the transfer of RC of the said vehicle in his name to the Insurance Company well within time or at later stage till today. 10. In view of the facts and circumstances, the first point for our consideration is that, whether Insurance Company is liable to indemnify the loss said to have sustained by the complainant due to damage of the vehicle incident, in view non-intimating the change of ownership of the vehicle in his name. 11. The main contention of the opposite Insurance Company is that, as per section 157(2) MV Act, the complainant must to give notice of (14) days to Insurance Company for to issue fresh Insurance Policy in his name due to said transfer. The complainant has not given such intimation or notice to Insurance Company and thereby he is not liable to indemnify any kind of loss said to have sustained by the complainant due to damage of the vehicle. 12. The learned advocate for complainant contended before us that, even though the complainant not intimated the transfer of ownership of the vehicle to the Insurance Company, but Insurance Policy was inforce as on the date of the accident and RC changed in his name, as such Insurance Company is liable to indemnify the loss sustained by him, due to damage of his vehicle. 13. In support of this arguments the learned advocate for complainant relied on the following rulings:- i) I. 2009 CPJ 183 (NC) Oriental Insurance Company Ltd., V/s. Om Prakash Gupta. ii) II 2009 CPJ 324 (NC) National Insurance Company Ltd., V/s. Subhash Chand Khataria and another. iii) 2009 ACJ 2167 Karnataka High Court United Insurance Company Ltd., V/s. Vijaya Kumar and others. iv) II (2010) CPJ 9 SC Amelendu Shaho V/s. Oriental Insurance Company Ltd., 14. On the other hand the learned advocate for opposite relied on the following rulings in support of his arguments: i) AIR 2009 (NOC) 2158 (AP) New India Assurance Company Ltd., V/s. Petlu Nagaratnam and others. ii) AIR 2009 (NOC) 1654 (NCC) Madan Singh V/s. Div. Manager, United India Insurance Co. Ltd., iii) ILR 1996 KAR 799 M/s. Complete insulations (P) Ltd., V/s. New India Assurance Co. ltd., 15. Among the rulings submitted on both sides. The ruling of the Honble Supreme Court relied by the learned advocate for complainant reported in: Amelendu Shaho V/s. Oriental Insurance Company Ltd., reported in: II (2010) CPJ 9 SC. The ruling of the Honble Supreme Court M/s. Complete Insulations (P) Ltd., V/s. New India Assurance Company Ltd., reported in ILR 1996 Karnataka 799 relied by the Insurance Company have much significance to appreciate the facts of the present case. 16. In the ruling referred by the learned advocate for complainant, the Honble Supreme Court dealt a case wherein the vehicle insured for personal use, but it was used as a hire. Hence the Honble Supreme Court directed to settle the claim on non standard basis. 17. In the ruling referred by the learned advocate for opposite Insurance Company, wherein their lordships of the Honble Supreme Court observed as: Motor Vehicles Act 1988, (Central Act No. 59 of 1988) Chapter XI. Section 157 : Motor Vehicles Act 1939 (Cental Act No. 4 of 1939)- Section 103A-Distrinction- insurers right of refusal to transfer certificate of insurance withdrawn under New Act, making transfer automatic-Insurance compulsory only in respect of third party risks. Fiction under section 157 limited only thereto, Certificate of insurance relating thereto; provisions under both Acts substantially same in relation to third party liability- Transferee-insured not third party qua vehicle-Damage to vehicle of insured himself would be outside chapter XI in the reaim of Contract requiring agreement between insurer and transferee undertaking to cover risk or damage to vehicle- in the absence of such agreement insurer not liable to make good damage to vehicle. 18. In view of the observations of their lordships, in the absence of specific agreement in between insurer and insured for undertaking to cover risk or damage to the vehicle, his claim is not maintainable. 19. The facts of the present case are similar to the facts of the case of M/s. Complete Insulation (P) Ltd. In the present case there was no agreement in between insurer and transferee for undertaking to cover risk or damage to the vehicle, as such with great respect to their lordships of the Honble Supreme Court as observed in Amalendu Shahos Case, we are of the view that, the facts of the that case are different to the facts of this case, accordingly we have followed the principles of the ruling of the Supreme Court in M/s. Complete Insulation (P) Ltd., 20. The other rulings noted by the learned advocate for complainant are in consistent to the principles of the rulings of the Honble Supreme Court in M/s. Complete Insulation (P) Ltd., accordingly, we respectfully not followed the principles of those rulings. 21. In view of facts and circumstances discussed above, we are of the clear view that, the present complainant committed fundamental breach of terms and conditions of the Insurance Policy by not intimating the transfer in his name well within the time as stipulated U/sec/ 157(2) MV Act. As such, he failed to establish any kind of deficiency in service on the part of opposite Insurance Company. Other submissions made by the learned advocate for complainant are not helpful for him, in view of the decision of the Honble Supreme Court in M/s. Complete Insulation (P) Ltd., accordingly we answered Point No-1 in Negative. 22. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in his complaint, POINT NO.3:- 23. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-02-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi, President:- This is a complaint filed by one complainant Shakir @ Shakir Sab against Opposite United India Insurance Company Ltd., U/sec. 12 of Consumer Protection Act, for to direct the opposite to pay an amount of Rs. 80,000/- towards damage to his vehicle, Rs. 10,000/- towards deficiency in service and Rs. 20,000/- cost of litigation with other reliefs as deems fit to the circumstances of this case. 2. The brief facts of the complainants case are that, he purchased a Car bearing No. KA-34/MB9099 from its previous owner and RC Holder one Pratap Patil, R/o. Maski insured with opposite Insurance Company and thereafter on 21-02-09 on Maski Sindhanur Road it met with an accident while driving by himself with valid driving licence. In the said accident his vehicle badly damaged, the Insurance Policy of the vehicle with opposite was inforce as on the date of the accident. Thereafter it was intimated to opposite, surveyor was appointed and got surveyed, he filed claim petition with all records, but opposite Insurance Company, shown its negligence in settling his claim, in spite of repeated oral and written requests and thereby opposite found guilty under deficiency in its service. 3. Opposite Insurance Company appeared in this case through its Advocate, filed written version by denying the claim of the complainant, as there is no privity of contract in between the complainant and Insurance Company. The previous owner got insured the said vehicle, but the transfer of the said vehicle from previous owner to this complainant was not intimated to it. As such there is clear violation of the terms and conditions of the Insurance Policy and thereby opposite Insurance Company not liable to make payment under Insurance Policy and thereby it prayed for to dismiss the complaint among other grounds. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, he purchased Car bearing No. KA-34/MB 9099 from its previous owner and RC Holder one Pratap Patil, R/o. Maski, insured with opposite Insurance Company and thereafter on 21-02-09 on Maski Sindhanoor Road, the said car met with an accident while he was driving with valid driving licence, vehicle badly damaged in the accident, it was intimated to Insurance Company but opposite Insurance Company not shown interest in settling his claim and thereby opposite Insurance Company found guilty under deficiency in its service.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In Negative. (2) In Negative. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. In order to prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-6 are marked. Affidavit-evidence of one witness Maheboob was field, he was noted as PW-2. On the other hand affidavit-evidence of Assistant Manager of opposite Insurance Company was filed, he was noted as RW-1. One document is marked as Ex.R-1. Written arguments field. 7. As per the pleadings of the parties, the Car bearing No. KA-34/MB9099 met with an accident on Maski Sindhanoor Road, on 21-02-09 while Insurance Policy was inforce. As per the RC Book (Copy) the said vehicle stands in the name of complainant Shakir Sab which was transferred in his name on 12-02-09. 8. Ex.P-1 is the Insurance Policy of the said vehicle. Ex.P-5 is the FIR Copy regarding the accident dt. 22-02-09. 9. It is undisputed fact between the parties that, RC, now stands in the name of complainant from its previous owner one Pratap Patil. It is further undisputed fact that, complainant not intimated the transfer of RC of the said vehicle in his name to the Insurance Company well within time or at later stage till today. 10. In view of the facts and circumstances, the first point for our consideration is that, whether Insurance Company is liable to indemnify the loss said to have sustained by the complainant due to damage of the vehicle incident, in view non-intimating the change of ownership of the vehicle in his name. 11. The main contention of the opposite Insurance Company is that, as per section 157(2) MV Act, the complainant must to give notice of (14) days to Insurance Company for to issue fresh Insurance Policy in his name due to said transfer. The complainant has not given such intimation or notice to Insurance Company and thereby he is not liable to indemnify any kind of loss said to have sustained by the complainant due to damage of the vehicle. 12. The learned advocate for complainant contended before us that, even though the complainant not intimated the transfer of ownership of the vehicle to the Insurance Company, but Insurance Policy was inforce as on the date of the accident and RC changed in his name, as such Insurance Company is liable to indemnify the loss sustained by him, due to damage of his vehicle. 13. In support of this arguments the learned advocate for complainant relied on the following rulings:- i) I. 2009 CPJ 183 (NC) Oriental Insurance Company Ltd., V/s. Om Prakash Gupta. ii) II 2009 CPJ 324 (NC) National Insurance Company Ltd., V/s. Subhash Chand Khataria and another. iii) 2009 ACJ 2167 Karnataka High Court United Insurance Company Ltd., V/s. Vijaya Kumar and others. iv) II (2010) CPJ 9 SC Amelendu Shaho V/s. Oriental Insurance Company Ltd., 14. On the other hand the learned advocate for opposite relied on the following rulings in support of his arguments: i) AIR 2009 (NOC) 2158 (AP) New India Assurance Company Ltd., V/s. Petlu Nagaratnam and others. ii) AIR 2009 (NOC) 1654 (NCC) Madan Singh V/s. Div. Manager, United India Insurance Co. Ltd., iii) ILR 1996 KAR 799 M/s. Complete insulations (P) Ltd., V/s. New India Assurance Co. ltd., 15. Among the rulings submitted on both sides. The ruling of the Honble Supreme Court relied by the learned advocate for complainant reported in: Amelendu Shaho V/s. Oriental Insurance Company Ltd., reported in: II (2010) CPJ 9 SC. The ruling of the Honble Supreme Court M/s. Complete Insulations (P) Ltd., V/s. New India Assurance Company Ltd., reported in ILR 1996 Karnataka 799 relied by the Insurance Company have much significance to appreciate the facts of the present case. 16. In the ruling referred by the learned advocate for complainant, the Honble Supreme Court dealt a case wherein the vehicle insured for personal use, but it was used as a hire. Hence the Honble Supreme Court directed to settle the claim on non standard basis. 17. In the ruling referred by the learned advocate for opposite Insurance Company, wherein their lordships of the Honble Supreme Court observed as: Motor Vehicles Act 1988, (Central Act No. 59 of 1988) Chapter XI. Section 157 : Motor Vehicles Act 1939 (Cental Act No. 4 of 1939)- Section 103A-Distrinction- insurers right of refusal to transfer certificate of insurance withdrawn under New Act, making transfer automatic-Insurance compulsory only in respect of third party risks. Fiction under section 157 limited only thereto, Certificate of insurance relating thereto; provisions under both Acts substantially same in relation to third party liability- Transferee-insured not third party qua vehicle-Damage to vehicle of insured himself would be outside chapter XI in the reaim of Contract requiring agreement between insurer and transferee undertaking to cover risk or damage to vehicle- in the absence of such agreement insurer not liable to make good damage to vehicle. 18. In view of the observations of their lordships, in the absence of specific agreement in between insurer and insured for undertaking to cover risk or damage to the vehicle, his claim is not maintainable. 19. The facts of the present case are similar to the facts of the case of M/s. Complete Insulation (P) Ltd. In the present case there was no agreement in between insurer and transferee for undertaking to cover risk or damage to the vehicle, as such with great respect to their lordships of the Honble Supreme Court as observed in Amalendu Shahos Case, we are of the view that, the facts of the that case are different to the facts of this case, accordingly we have followed the principles of the ruling of the Supreme Court in M/s. Complete Insulation (P) Ltd., 20. The other rulings noted by the learned advocate for complainant are in consistent to the principles of the rulings of the Honble Supreme Court in M/s. Complete Insulation (P) Ltd., accordingly, we respectfully not followed the principles of those rulings. 21. In view of facts and circumstances discussed above, we are of the clear view that, the present complainant committed fundamental breach of terms and conditions of the Insurance Policy by not intimating the transfer in his name well within the time as stipulated U/sec/ 157(2) MV Act. As such, he failed to establish any kind of deficiency in service on the part of opposite Insurance Company. Other submissions made by the learned advocate for complainant are not helpful for him, in view of the decision of the Honble Supreme Court in M/s. Complete Insulation (P) Ltd., accordingly we answered Point No-1 in Negative. 22. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in his complaint, POINT NO.3:- 23. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order: ORDER This complaint filed by the complainant is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-02-11) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.