Complainant:       1)   Shivanand S/o Ramanna Sullihalli

                                           Age:50 Yrs, Occ:Business,

                                        R/o Kunimellihalli, Tq:Haveri

                                        Dist:Haveri.

                                        (Rep. by Shri. C.R.Vadakannavar, Advocate)   

V/s

JUDGEMENT

JUDGEMENT DELIVERED BY SRI. RAJU.N.METRI, MEMBER

          The complainant has filed the complaint U/Sec. 35 of C.P Act, 2019 to direct the OPs to pay Rs.4,00,000/-  with interest @ 18% p.a. Rs.50,000/- towards mental agony and Rs.10,000/- towards cost of litigation.

          2. The brief facts of complaint are as under:

          Complainant is owner of Swift Car No. KA-27/N-2166 and insured his vehicle with Op.  On 05.01.2020 the complainant himself was driving his car from his native place to attend Pulageri Utsav  and after attending the function was returning to his place at night 11.00. P.M. When he was returning at 11.45 P.M. on Laxmeshwar-Savanur road near Agadi College at that time a dog was chasing an Oxe which at once suddenly came in front of vehicle and the complainant tried to avoid the same, as a result of which the car was turtled down and the alleged accident occurred, and the vehicle was fully damaged. One Chambanna Balikai lodged the complaint before the concerned  Lakshmeshwar P.S. and registered crime No.3/20. The complainant as per instruction of Op took his damaged Car to Standard Motors Garage Hubli for repair purpose and got his car repaired and the Ops visited the garage and saw his damaged Car when it was in garage and sent their surveyor and got surveyed the damage to Car and then told the complainant to get repaired his Car with assurance that the OP will pay the damages and as such the complainant got repaired his car by spending Rs.4,00,000/-.  Thereafter, the complainant submitted his claim application along with repair bill to the Ops and asked to pay the same, for which the Ops on 17.02.2020 repudiated his claim. Hence, filed this complaint.

          3.      After admitting the complaint, notice was issued to the OPs, who appeared through their counsels and Op-1 filed written version.

          4.     The brief facts of written version of OP No.1 is as under:

          The OP denied the contents of the complaint and contended that, the liability is subject to terms and conditions of the policy inforce as on the date of accident and further validity of transfer of name of insured in case if the vehicle is transferred to any other person from the insured. Vehicle met with accident on 05.01.2020 and the RC got transferred in the name complainant on 11.11.2019, but he has not applied for transfer of insurance in his name in his favour within the stipulated period of 14 days. In case of package policies, transfer of the “own damage” 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. No contractual, obligation between complainant and the Ops.  Accident occurred on 05.01.2020. But complaint was lodged on 06.01.2020, as such delay in lodging complaint. Therefore Ops repudiated the claim and there is no deficiency of service committed by the Ops.  Hence, prays to dismiss the complaint.

          5.  To prove the case, the complainant has filed affidavit and was examined as PW-1 and got the documents marked as  Ex.C-1 to Ex.C-31 Sri. Vadiraj  Shrinivasacharaya Sortur for OP No.1 filed affidavit and was examined as RW-1 and got marked the documents as Ex.OP-1 to Ex.OP-6.

          6. Counsel for Ops filed written argument. Heard the argument on both sides.

          7. The points for consideration are,

                    1. Whether the complainant proves the deficiency of                        service committed by the Opponents?

                    2. Whether the complainant is entitled for the reliefs

                     as sought for?

                    3. What order?

          8.  Our findings on the above points are as under:

               Point No 1. In the affirmative.

               Point No 2. In the partly affirmative.

              Point No 3. See final order.

REASONS

9 .Point No.1 and 2: The point No.1 and 2 are taken together to avoid the repetition of facts. The learned counsel for complainant argued that, as per evidence of PW-1 and Ex.C-1 to Ex.C-27 complainant proved the deficiency of service committed by the OPs. The learned counsel for Ops argued that, policy is repudiated due to non-intimation to Ops for change of ownership of insurance within 14 days.

10. On careful perusal of all the documents and materials placed before the commission, the complainant filed affidavit and was examined as PW-1 and he has reiterated the contents of complaint.  PW-1 has stated that, the complainant is owner of Swift Car No. KA-27/N-2166 and insured his vehicle with Op.  On 05.01.2020 the complainant himself was driving his car from his native place to attend Pulageri Utsav  and after attending the function was returning to his place at night 11.00. P.M. When he was returning at 11.45 P.M. on Laxmeshwar-Savanur road near Agadi College at that time a dog was chasing an Oxe which at once suddenly came in front of vehicle and the complainant tried to avoid the same, as a result of which the car was turtled down and the alleged accident occurred, and the vehicle was fully damaged one Chambanna Balikai lodged the complaint before the concerned  Lakshmeshwar P.S. and registered crime No.3/20. The complainant as per instruction of Op took his damaged Car to Standard Motors Garage Hubli for repair purpose and got his car repaired and the Ops visited the garage and saw his damaged Car when it was in garage and sent their surveyor and got surveyed the damage to Car and then told the complainant to get repaired his Car with assurance that the OP will pay the damages and as such the complainant got repaired his car by spending Rs.4,00,000/-.  Thereafter, the complainant submitted his claim application along with repair bill to the Ops and asked to pay the same, for which the Ops on 17.02.2020 repudiated his claim.

11. RW-1 has filed affidavit and reiterated the contents of the written version filed by OP No.1. RW-1 has stated that, the OP denied the contents of the complaint and contended that, the liability is subject to terms and conditions of the policy inforce as on the date of accident and further validity of transfer of name of insured in case if the vehicle is transferred to any other person from the insured. Vehicle met with accident on 05.01.2020 and the RC got transferred in the name complainant on 11.11.2019, but he has not applied for transfer of insurance in his name in his favour within the stipulated period of 14 days. In case of package policies, transfer of the “own damage” 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. No contractual, obligation between complainant and the Ops.  Accident occurred on 05.01.2020. But complaint was lodged on 06.01.2020, as such delay in lodging complaint. Therefore Ops repudiated the claim and there is no deficiency of service committed by the Ops.

          12. At the very outset, undisputed facts are that, the complainant has purchased the vehicle and got transferred the RC in his favour and the  insurance to the said vehicle was inforce as on the date of accident. The main contention of RW-1 is that, after transfer of the RC in favour of complainant, he has not intimated the Op No.1 for change of name in insurance and there is no contractual agreement between the complainant and Ops.

13. Ex.C-1 RC standing in the name of complainant,  Ex.C-2 policy was standing in the name of previous owner Shivakumar Gundagatti are not disputed by the Ops. Ex.C-3 FIR, Ex.C-4 complaint, Ex.C-5 Spot Mahazar, Ex.C-6 Motor Vehicle Accident Report, Ex.C-7 to 9 Charge Sheet, Ex.C-24 to Ex.C-27 Photo’s, clearly goes to show that, vehicle bearing No.KA-27/N-2166 met with an accident on 05.01.2020 and caused damage to the vehicle. Ex.C-10 letter submitted by complainant to Op No.1 to National Insurance Company, Haveri regarding vehicle accident. Ex.C-11 claim form submitted by complainant is also not disputed. Ex.C-12 repudiation letter reveals that as complainant has not got transferred the insurance within 14 days after RC transfer, there is no insurable interest. Ex.C-14 to Ex.C-22 Counter sale tax invoice, Ex.C-23 Original policy are also not disputed. Ex.C-28 to Ex.C-31, are certified copies of Petition, Joint memo, order passed in Lok-Adalat, Order sheet of MVC No.161/2020 on the file of Principal District and Session Judge and MACT, Gadag reveal that OPs got matter settled in Lok-Adalat with petitioner. So, Ops have admitted their liability to pay the compensation and already paid the compensation through Lok-Adalat.  On the contrary, Ops raised the objection in this case stating that, petitioner has not applied for transfer of insurance in his name in his favour within the stipulated period of 14 days. On one breath Ops admitted their liability before Lok-Adalat, without raising any objection for non-transfer of the RC within 14 days, on another breath again they raise their objection. So, such inconsistent objection cannot be accepted.

14. Ex.Op-1 Authorization letter, Ex.Op-2 copy of insurance policy, Ex.Op-3 copy of Sec.64 VB particulars, Ex.Op-4 repudiation letter, Ex.Op-5 Survey report, Ex.Op-6, Photo’s are also not disputed by the complainant. The contention of Ops that, delay in lodging complaint cannot be a reason to believe that, no accident has occurred as, complaint lodged is on 06.01.2020 immediately after accident on 05.01.2020 the very next day. Further, contention that, accident has occurred on 05.01.2020 and the complaint is filed in 2022 which is barred by limitation also cannot be accepted, as cause of action occurred on 17.02.2020 from the date of repudiation letter, but not the date of accident. So, complaint is filed within statutory period of two years from communication of repudiation letter to the complainant. Further contention that, as Indian Motor Tariff GR-17 “The transferee shall apply within 14 days from the date of transfer in writing in concerned, it is not mentioned in Ex.C-23 original policy. On the one hand Ops contending that the previous owner had transferred vehicle to the complainant and as such he did not have any insurable interest in the vehicle on the date of accident. The insurance Company was incumbent on its consumers, neither he has been able to show that, this provision GR-17 was duly included in the terms and conditions of the policy document. Insurance Company has not been able to point out anything from the record to show that, any stipulation in any manner whatsoever had been made to the previous owner Shivakumar Gundagatti the original policy holder that in case of transfer of the insured vehicle the transferee should inform the insurance Company within 14 days else insurance policy will not be treated to be transferred and will be treated to have lapsed. Such being the case the contention of Ops that, complainant was not having any interest under the insurance policy since information of the transfer had not been made within 14 days of the transfer and as such insurance Company was not liable to pay either of the two irrespective of the fact that, it had received the premium and there was no objection from the previous owner apropos settling the claim with the complainant.

15. It is not disputed that premium had in fact been paid. Ops have not stated in the written version that, the requirement of applying for transfer within 14 days had been built into the policy terms and conditions. When, insurance was in force at the time of accident it is the bounden duty of the Ops to settle the claim. Thus, repudiation of the claim filed by complainant is not proper and correct. So, Ops have committed the deficiency of service.

As per judgment passed in  R.P. No.857 of 2021 on the file of National Consumer Disputes Redressal Commission, New Delhi, in Liberty General Insurance Ltd., V/s Sheela, wherein, in para-7 to 15 observed that, “without producing the documents to show that, provision of GR-17 was duly included the terms and conditions of the policy document and also any stipulation in any manner whatsoever had been made to the previous owner that, in case of transfer of the insured vehicle the transferee should inform the insurance Company within 14 days else the insurance policy will not be treated to be transferred and will be treated to have lapsed”. 

Facts, circumstances and ratio of the above decision is aptly similar and applicable to case on hand.

          The learned counsel for ops are relying a decision, 1996 ACJ 65, in Complete Insulations (P) Ltd., V/ New India Assurance Co. Ltd, the Hon’ble Supreme Court of India at New Delhi, held as under:-

          “Motor Vehicles Act, 1988, Section 157-Motor insurance – Transfer of vehicle – Transfer of certificate of insurance – Liability of insurance company – Damage to vehicle, Transferee intimated the transfer of vehicle and requested the insurance company to transfer the insurance policy-policy was not transferred and the vehicle was damaged in accident- Whether the transferee was entitled to be indemnified by the insurer for the damage to vehicle-Held : No; fiction of section 157 is limited to third party risks and transferee is not a third party qua the vehicle. (1993 CCJ 705 (NC) confirmed)”

          Facts and circumstance of the above decision is not similar and applicable with case on hand, as provision of GR-17 was not duly included the terms and conditions of the policy document and also any stipulation in any manner whatsoever had been made to the previous owner that, in case of transfer of the insured vehicle the transferee should inform the insurance Company within 14 days else the insurance policy will not be treated to be transferred and will be treated to have lapsed. 

          16. For the above, reasons, the complainant has proved that OPs have committed deficiency of service and is entitled for the relief. Complainant has produced the receipts for expenditure, Ex.C-13 cash memo dtd:15.08.2020 issued by Standard Motors Hubli, for Rs.61,450/-. Ex.C-14 receipt dtd:19.02.2020 for Rs.22,607/-, issued by Shakti Auto mart, Ex.C-15 receipt dtd:20.02.2020 Rs.13,585/-. Ex.C-16 receipt dtd:21.05.2020 for Rs.22,984/-, issued by Shakti Auto mart, Ex.C-17 receipt dtd:26.05.2020 for Rs.3,750/-, Ex.C-18 receipt dtd:30.05.2020 for Rs.8,150/-, issued by Shakti Auto mart, Ex.C-19 receipt dtd:20.05.2020 for Rs.1,974/-, issued by Shakti Auto mart, Ex.C-20 receipt dtd:18.02.2020 for Rs.17,190/-, issued by Shakti Auto mart,  Ex.C-21 receipt dtd:25.02.2020 for Rs.1,243/-, issued by Shakti Auto mart, Ex.C-22 receipt dtd:11.08.2020 for Rs.7,069/-, issued by Shakti Auto mart, clearly goes to show that, he has paid total amount sum of Rs.1,60,002/-. Complainant is claiming Rs.4,00,000/-, but he has not produced other receipts, except Ex.C-13 to Ex.C-22. The learned counsel for complainant during his argument submitted that, the remaining receipts were not produced, as they were not traced. However, Ex.OP-5 surveyor report of OP itself reveals that, the summary net liability shown as is Rs.2,42,000/-. Therefore, in the absence of other receipts not traced, relying on the document Ex.Op-5 produced by the Op itself, the complainant is entitled for a sum of Rs.2,42,000/-. Complainant is claiming interest at the rate of 18 % p.a. which is on higher side.  So, as per rate of interest in the Nationalized Bank it is proper to award interest @ 9% p.a. from the date of repudiation letter Ex.OP-4 dtd:17.02.2020 till realization.  Complainant has suffered a lot due to nonpayment of the claim amount and Ops have repudiated the claim without reasonable grounds, he is entitled a sum of Rs.25,000/- towards mental agony and Rs.15,000/- towards cost of the litigation. Accordingly, we answer point No.1 in the affirmative and point No.2 partly in affirmative. 

          17.    Point No.3:- In the result, we proceed to pass the following: 

ORDER

          The complaint filed U/Sec. 35 of the consumer Protection Act, 2019 is hereby partly allowed. 

Ops are directed to pay Rs.2,42,000/- with interest at 9% p.a. since 17.02.2020 till realization.

Further, Ops are directed to pay the complainant a sum of Rs.25,000/- towards mental agony and Rs.15,000/- towards cost of litigation.

Ops shall pay the above entire amount within a period of two months from the date of this order.

Office is directed to send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, directly on computer, corrected and then pronounced by us in the Open Commission on this 16^th Day of
February-2022)

,            

(Shri Raju N. Metri)      (Shri. D.Y. Basapur)   (Smt.Yashoda Bhaskar. Patil)

        MEMBER                 PRESIDENT              WOMAN MEMBER

-: ANNEXURE :-

EVIDENCE ON BEHALF OF COMPLAINANT/S:

PW-1: Shivanand S/o Ramanna Sullihalli

DOCUMENTS ON BEHALF OF COMPLAINANT/S

Ex.C-1 : Copy of R.C.

Ex.C-2 : Copy of insurance.

Ex.C-3 : Copy of FIR.

Ex.C-4 : Copy of Police complaint.

Ex.C-5 : Copy of panchanama.

Ex.C-6: Copy of Motor Vehicles Accident Report.

Ex.C-7 to 9.: Copy of Charge sheet.    

Ex.C-10: Copy of Motor Claim intimation form.

Ex.C-11 : Copy of Motor Insurance claim form.

Ex.C-12 : Repudiation letter dtd:17.02.2020.

Ex.C-13 : Cash/Credit Memo Dtd:15.08.2020.

Ex.C-14 to 22 : Counter Sale Tax Invoice.  

Ex.C-23: Certificate Cum Policy Schedule.

Ex.C-24 to 27: Photo’s.

Ex.C-28:Certified copy of application U/Sec.166 of M.V.Act.

             bearing No.M.V.C. NO.161/2020.

Ex.C-29:Copy of Joint Memo dtd:14.08.2021.

Ex.C-30:Copy of the Lok-Adalat order dtd:14.08.2021.

Ex.C-31: Copy of the M.V.C No.161/2020 entire order Sheet.

EVIDENCE ON BEHALF OF OPs:

RW-1 : Sri. Vadiraj  Shrinivasacharaya Sortur

DOCUMENTS ON BEHALF OF OPs

Ex.OP-1 : Authorization letter.

Ex.OP-2 : Copy of certificate cum policy Schedule.

Ex.OP-3 : Copy of Section 64 VB Particulars.

Ex.Op-4 : Copy of repudiation letter.

Ex.Op-5 : Private and confidential Motor (Final) Survey report.

Ex.OP-6 : Photo’s

(Shri Raju N. Metri)    (Shri. D.Y. Basapur)    (Smt.Yashoda Bhaskar. Patil)

        MEMBER               PRESIDENT              WOMAN MEMBER