BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. (ADDL. BENCH)
CONSUMER COMPLAINT NO.452/2015
DATED THIS THE 2nd DAY OF SEPTEMBER, 2023
PRESENT
SRI RAVI SHANKAR, JUDICIAL MEMBER
SMT. SUNITA C.BAGEWADI, LADY MEMBER
1. Sri.Hari Babu,
S/o A.Nageshwar Rao,
Aged about 40 years,
R/o Bharth Nilaya, JP Nagar, … Complainant/s
24th Main, 6th Phase,
Bengaluru-78
Also at No.859, 36th Street,
Korattur, Chennai
2. Dr.Elizabeth.J.
Aged 50 years,
No.284, 6th Cross,
Indiranagar, I stage,
Bengaluru
(By ASLF Law Offices, Advocate)
V/s
1. The Claims Manager,
HDFC Ergo General Insurance
Company Ltd, MG Road, ... Respondent/s
Bengaluru -01
2. HDFC Ergo General Insurance
Company Ltd, 1st Floor,
165-166, Backbay Reclamation,
HT Parekh, Church Gate,
Mumbai-400 020 ... Respondent/s
Reptd by its Board of Directors
(By Sri.H.S.Lingaraju, Advocate)
O R D E R
BY SRI.RAVISHANKAR, JUDICIAL MEMBER
This complaint is filed by the complainant against the Opposite Parties No.1 and 2 alleging deficiency in service in not settling the own damage claim and prays for settlement of the own damage to the tune of Rs.36.00 lakhs with 24% interest per annum along with compensation of Rs.1.00 lakh towards mental agony and deficiency in service.
2. The brief fact of the complaint is that, the complainant had purchased a BMW passenger car bearing Reg.No.KL-BQ-777 from the 2nd complainant by paying an amount of Rs.30.00 lakhs in the month of August, 2014. Immediately, the 1st complainant made all arrangements to transfer the registration into his name from RTO Cochin to RTO Bengaluru and he made an arrangement to obtain a fancy registration and furnish the all the required documents to the RTO Bengaluru for change of registration. Since the policy was about to lapse, the 1st complainant paid premium in the name of the 2nd complainant for renewal of the policy and the same was renewed by the Opposite Parties No.1 and 2 and he intimated the change of ownership was under process and requested to change the policy, subsequently after change of the registration certificate into his name. Accordingly the policy was renewed from the Opposite Parties from 23-10-2014 to 22-10-2015. After renewal of the policy the vehicle met with an accident on 31-12-2014 when he was coming from Chennai to Bengaluru. Due to said accident, the vehicle intensively damaged. Immediately the police have registered FIR and the same was also intimated to the Opposite Parties Company. After the accident, the complainant took the vehicle to one M/s.Navnit Motors Pvt. Ltd. for repair and the said repairer has provided estimation cost of repair to the tune of Rs.36.00 lakhs and the said repairer had demanded for payment of Rs.3,60,000/- being 10% of the repair cost as an advance. The complainant has paid a sum of Rs.1.00 lakh to the said garage.
The complainant further alleged that since he had no amount for repair of the vehicle, the complainant anticipated cashless reimbursement towards the repair of the vehicle and he made claim under the head of own damage by virtue of the policy, but the Opposite Parties instead of settling the own damage claim had repudiated on the ground that the 1st complainant had no insurable interest to claim the own damage under the policy. The complainant had tendered the vehicle for repair and the garage is charging Rs.35,000/- towards parking fee. The Opposite Parties are repudiated the claim only basing on the flimsy ground, the Opposite Parties have knowledge about purchase of the vehicle from the 2nd complainant and also have knowledge that the 1st complainant had made arrangements for transfer of the RC into his name and also in the knowledge that the complainant had paid the premium amount in the name of the 2nd complainant for renewal of policy at the time of purchase of the vehicle. Knowing all these facts, the Opposite Parties have repudiated the claim, hence alleging deficiency in service and claimed for payment of above said amount towards the repairs along with compensation of Rs.1.00 lakhs for deficiency of service as prayed above.
3. After service of notice, the Opposite Parties No.1 and 2 have appeared through their counsel and filed version and contended that they have issued a motor insurance policy with respect to BMW car bearing Reg.No.KL-07-BQ-777 in favour of Mrs. Elizabeth for the period from 23-10-2014 to 22-10-2015. The said policy is a private Car Package Policy. Under the said policy, risk towards third party and own damage claim is covered. At the time of obtaining the insurance policy, the 2nd complainant furnished her address as Mrs.Elizabeth.J, C/o. Haribabu, M/s.Creative INN, No.502, 2nd Floor, East End Main Road, Jayanagar 9th block, Bengaluru. Under the said policy, the liability of the Opposite Parties if any arising out of use of the said vehicle would be as per the terms and conditions and exceptions enumerated in the policy.
The Opposite Parties further contended that, in January, 2015 the insured informed that the vehicle met with an accident on 31-12-2014 at Sulagiri, Tamil Nadu. On the receipt of the claim they have arranged for survey and investigation during which some indisputable facts emerged. The vehicle in question was sold to one Haribabu the 1st complainant in August itself and the vehicle was in exclusive possession and custody of the 1st complainant then onwards. He was plying the vehicle for his use. Further the Registering Authority, Ernakulam issued NOC to RTO Bengaluru (East) on 12-11-2014 paying way for the 1st complainant to change the RC into his name, but the complainant had not changed the RC into his name and without getting RC changed to his name, the complainant took the risk of playing the vehicle in question in the state of Karnataka. There is no disclose that as on 31-12-2014, the 1st complainant had not made any efforts to get the RC of the vehicle changed into his name and he was freely running the vehicle in public road which amounts of violation of the provisions of the Motor Vehicle Act.
The Opposite Parties further contended that during the processing of the claim, the 1st complainant wrote a letter dated 10-3-2015 reiterating the above facts, confirmed that the vehicle was sold by Mrs.Elizabeth.J, to him and he is using the vehicle and also admits that the vehicle registration certificate was not changed into his name. Hence it is clear case of violation. After considering all these, the Opposite Parties repudiated the claim made by the 1st complainant as the 1st complainant has no insurable interest on the vehicle and at the same time the claim is not payable to the 2nd Opposite Party since she sold the vehicle to the 1st complainant and there is no any deficiency in service on the part of these Opposite Parties in repudiating the claim of the complainant.
The Opposite Parties further contended that these Opposite Parties are not aware that the complainant had tendered the vehicle for repairs at M/s.Navnit Motors Pvt. Ltd. and the same has given repair cost to the tune of Rs.36.00 lakhs and it is not knowledge that the complainant had paid an amount of Rs.1.00 lakh as advance towards the repair of the vehicle. Either the complainants are eligible to get cashless reimbursement under the policy. Insurer’s liability is directly dependents upon the insurable interest which a person has over the vehicle i.e. insured. Hence, a claims made by the complainants are not maintainable under the Consumer Protection Act as there is no deficiency in service, hence prays for dismissal of the complaint.
The Opposite Parties further contended that the complainants knowing fully aware that the claim is not legally maintainable had filed a false complaint in order to gain wrongfully. Hence prays to dismiss the complaint. There is no any obligation on the part of the Opposite Parties to pay the claim made by the complainant. Hence, prays for dismissal the complaint, in the interest of justice and equity.
4. The complainants filed affidavit evidence and marked documents as Exs.C1 to C12. The Opposite Parties also filed affidavit evidence and marked one document as Ex.R1.
5. Heard.
6. On perusal, the following points will arise for our consideration;
(1) Whether the complainants have proved deficiency in service on the part of Opposite Parties?
(2) Whether the complainants are entitled to the reliefs as sought?
(3) What Order?
7. The findings to the above points are;
(1) In the affirmative
(2) In the affirmative
(3) As per final order
R E A S O N S
Point Nos. (1) & (2):
8. On perusal of the pleadings, affidavit evidence and documents produced by both parties, it is an admitted fact that, the vehicle bearing Reg.No.KL-7-BQ-777 met with an accident near Oddayanur, Tamil Nadu the vehicle was intensively damaged. After the accident the vehicle was brought for repair to M/s.Navnit Motors Pvt. Ltd and it is also admitted fact that the vehicle was sold by the 2nd complainant to the 1st complainant, and the 1st complainant in continuation of the purchase of the vehicle, made requisition to the RTO Bengaluru for change of registration certificate into his name. In this regard, the complainant had produced Ex.C1 to show that Form no.28 which is issued by the RTO Authority, Tamil Nadu for change of RC into name of the 1st complainant by Bengaluru East RTO, Indiranagar, Bengaluru. Further the complainant had produced the policy copy marked as Ex.C2 which reflects that the vehicle insurance policy was renewed from 23.10.2014 to 22.10.2015, wherein we noticed that insured name is the 2nd complainant and the correspondence address is the 1st complainant which goes to show that the Opposite Parties have knowledge that the vehicle was sold by the 2nd complainant to the 1st complainant and we are of the opinion that the Opposite Parties have knowledge that the 1st complainant had made an application for change of registration of the vehicle into his name before RTO at Karnataka. The complainants further produced a copy of registration certificate which stands in the name of the 2nd complainant marked as Ex.C4 produced endorsement given by RTO East Bengaluru (KA-03) marked as Ex.C5 to show that he made an attempt to change the registration of the vehicle into his name. We are of the opinion that when the complainant has sincerely made an attempt for transfer of the RC as soon as he has purchased the vehicle from the 2nd complainant and the policy was renewed during that period in the name of early owner i.e. the 2nd complainant Mrs.Elizabeth.J. We consider the policy holds good for the purpose of settlement of the own damage. It is clear that the policy ought to be transferred in the name of the 1st complainant only when the RC was changed into his name. The process of changing of the RC is pending before RTO East Bengaluru (KA-03) at Karnataka Government. During that period, the vehicle met with an accident which is unaccepted and the vehicle was damaged. When the Opposite Parties have knowledge with respect to the transfer of the vehicle into the 1st complainant name and process is going on the own damage claim has to be settled during RC of the vehicle was going to be transferred in the name of subsequent purchaser i.e. the 1st complainant. The policy produced by the Opposite Parties which is marked as Ex.R1 clearly discloses the name of the 1st complainant for the purpose of correspondence address. The very purpose of mentioning the correspondent address is that the 1st complainant had paid the premium amount and undertaken to change the policy into his name as soon as the RC transferred into his name.
9. Section 157 of the IMV Act clearly says as here under:
“Section 157 of the Motor Vehicles Act, 1988
157. 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. 1[Explanation - For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]
(2) 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 the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance”.
When the accident took place within the grace period it is bounden duty of the Opposite Parties settle the claim under own damage either to parties. Here the 1st complainant had written a letter to the Opposite Parties with respect to the accident and also wrote a letter promptly stating that he made an application for the change of transfer of the RC and also paid premium amount. These facts are known to the Opposite Parties, the Opposite Parties ought to settle the claim of the complainants. Here we noticed the complainant had produced estimation to the tune of Rs.36.00 lakhs given by M/s.Navnit Motors Pvt. Ltd. The Opposite Parties are liable to pay the said amount to the 1st complainant by virtue of the policy under own damage claim.
10. We are of the opinion that it is clear case deficiency in service on the part of the Opposite Parties in repudiating the genuine claim made by the complainants. As such the Opposite Parties are liable to pay a compensation of Rs.3.00 lakhs for deficiency in service along with litigation expenses of Rs.25,000/-. As such the complaint is allowed and accordingly we proceed to pass the following:-
O R D E R
The complaint is allowed with litigation expenses of Rs.25,000/- to the 1st complainant.
The Opposite Parties are directed to pay the repair charges of Rs.36.00 lakhs towards the vehicle repair charges to the 1st complainant by virtue of the policy under own damage claim.
`The Opposite Parties are further directed to pay compensation of Rs.3.00 lakhs towards deficiency in service and mental agony to the 1st complainant.
Further the Opposite Parties are directed to comply the above order within 30 days from the date of receipt of this order. Failing which, the payable amount shall carry interest @9% p.a. from the date of default till realization.
Send a copy of this order to both parties.
Lady Member Judicial Member
Jrk/-
