IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 14th Day of March 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.97/2018
Noushad : Complainant
S/o Basheerkutty
Rajeela Manzil
Velichikkala P.O,Adichanalloor
Kollam-691573.
[By Adv.M.A Rasheed]
V/s
The Divisional Manager : Opposite party
Divisional Office
Oriental Insurance Co.Ltd.
LIC Building
Residency road,
Chinnakkada, Kollam-1
[By Adv.S.Dileep Kumar]
FINAL ORDER
Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
- This is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.
- The averments in the complaint in short are as follows:-
The complainant is the registered owner of Maruti Swift Dezire car bearing Registration No.KL 02 AD 222 which was purchased from one Mohammed Ziya, Amina Manzil, Ramankulangara, Kollam-3. The opposite party is the insurer of the above vehicle who had issued live policy in the name of the previous owner Mohammed Ziya w.e.f 24.11.2017 to 23.11.2018. It is a comprehensive policy covering own damage. After purchasing the said car from its prior owner the complainant submitted an application before the registered authority Kollam on 30.11.2017 for changing the ownership of the vehicle in his name. While the said application was under process with the registering authority the vehicle met with an accident on 03.12.2017 at 3.30 pm at Pooyappally Kizhakke junction. On 05.12.17 the complainant has received the registration certificate from the registering authority by duly entering his name as owner. The transfer of ownership in his name has been endorsed w.e.f 30.11.2017. After getting the RC the complainant approached the opposite party and requested by filing an application to transfer the insurance policy in his name and also intimated the fact of accident. Since the request for the transfer of insurance policy in favour of the complainant as the transferee of the vehicle is made within 14 days provided under Section 157 of the Motor Vehicles Act, the opposite party has a statutory obligation to transfer the insurance policy in the name of the transferee/complainant and to admit the own damage claim sustained to the vehicle.
3. After the accident the vehicle was taken to M/s Indus Motors, Kollam which is the authorized service centre of Maruti vehicles. On the basis of intimation regarding the accident received from the complainant the opposite party has issued a claim form for submitting the same duly filled and signed. Accordingly the opposite party has appointed Mr. Arun.S , Surveyor for assessing the extent of loss. As per the directions of the surveyor Indus Motors carried out the entire repairs and replacement and also issued a bill for Rs.1,40,903/-. Since the opposite party has not paid the repair charges to M/s Indus Motors, Kollam, the complainant was constrained to take delivery of the vehicle after paying the entire repair charges. Being the insurer of the vehicle the opposite party is liable to pay the entire cost of the repair and the complainant is entitled to get the same. But the opposite party denied the claim of the complainant on technical reasons that since the vehicle is met with an accident before transferring the policy in the name of the complainant and it is difficult to pay the own damage claim submitted by the complainant. The above attitude of the opposite party has caused much loss, miseries and hardship to the complainant. In the circumstances the complainant is entitled to get the entire cost of repair and replacement of the vehicle and also compensation for mental agony and tension suffered by the complainant.
4. The request made by the complainant for transferring the insurance policy in his name is within the statutory period of 14 days as envisaged under Section 157 of the Motor Vehicles Act. Hence the opposite party is bound to transfer the policy in his name w.e.f the date of transfer of ownership and to admit the own damage claim made by the complainant. But the application for transfer of insurance policy in the name of the complainant/transferee is still pending with the opposite party insurance company and so far it is not rejected or returned. As per Section 157 of the Motor Vehicles Act when the ownership of the Motor Vehicle in respect of which insurance was taken the policy described in the certificate shall be deemed to have transferred w.e.f the date of transfer. Such transfer shall include transfer of rights and liabilities of the certificate of insurance and policy of insurance. If so, the insurance policy in this case is deemed to have been transferred in the name of complainant from 30.11.2017 the date of transfer of the vehicle itself. The complainant believed that the opposite party is reluctant to transfer insurance policy in favour of the complainant within the statutory time limit only to evade from the legal obligation to indemnify the complainant from the own damage liability. The above deliberate act of the opposite party is an unfair trade practice and deficiency in service. The complainant caused to sent a lawyer notice on 03.03.2018 requesting to transfer the insurance policy in the name of the complainant and to entertain his own damage sustained to the insured vehicle and to release the amount towards damages within 15 days from the date of receipt of the notice. The opposite party has sent a reply stating untenable contentions. Hence the complaint.
5.The opposite party resisted the complaint by filing a detailed written version raising the following contentions. The complaint is not maintainable either in law or on facts. There is no consumer service provider relationship between the complainant and the opposite party to attract the provision of the Consumer Protection Act. The complainant is a stranger to the opposite party with whom no contract of insurance was subsisting in relation to the vehicle sustained damages in the alleged accident. The complainant has no locus standi to file the present complaint against the opposite party. The complainant was neither an insured of the vehicle bearing KL 02 AD 222 nor a party to the contract of insurance in respect of the afore mentioned vehicle as on the alleged date of accident. However the opposite party would admit that they had issued a private car comprehensive policy for the vehicle bearing Reg.No.KL 02 Ad 222 in the name of one Mohammed Zia for a period commencing from 24.11.2017 to 23.11.2018. The actual insured Mr.Mohammed Zia sold the above vehicle in favour of Mr.Aneez much prior to the date of accident mentioned in the complaint and he was in possession and ownership of the vehicle. The transferee owner Mr.Aneez failed to change the registration certificate of the vehicle and insurance policy in his name. The complainant in fact purchased the said vehicle from Mr.Aneez on 30.11.2017 on the basis of sale agreement executed between Mr.Aneez and the complainant. The claim of the complainant that he purchased the vehicle from Mr.Mohammed Ziya is absolutely false and baseless.
6. On 05.12.2017 an intimation regarding the accident involving the insured vehicle has been reported before the opposite party in the name of Mr.Noushad.P who is the complainant herein. The opposite party immediately on receipt of the claim intimation had issued a claim form with a request to retransmit the same duly filled and signed. The above claim form was submitted by the complainant on 07.12.2017 along with an estimate from the repairer. Thereafter the opposite party deputed Mr.Arun.S a competent insurance surveyor and a loss assessor for inspect the damaged vehicle and to assess the extent of loss suffered by the vehicle. Accordingly the surveyor has inspected the damaged vehicle and assessed the extent of loss to the tune of Rs.1,15,429/- and submitted the survey report before the opposite party on 05.03.2018. The surveyor has reported that though the ownership of the vehicle has been transferred in the name of the complainant w.e.f 30.11.2017 as per the registered certificate of the vehicle verified by him, the insurance policy in respect of the vehicle still remains in the name of the previous registered owner of Mr.Mohammed Ziya as on the date of accident. Though the complainant has purchased the vehicle as early on 30.11.2017 he failed to change the insurance policy in his name by submitting necessary request and fresh proposal form before the insurance company along with the acceptable evidence showing the ownership of the vehicle in his name. As on the date of accident the complainant is a stranger to the opposite party. As per the provisions of GR-17 of the Indian Motor Tariff, in case of package policies, transfer of the own damage risk of the policy in favour of the transferee shall be made by the insurer only on receipt of specific request from the transferee along with acceptable evidence of sale and a fresh proposal form duly signed by the transferee and on payment of prescribed fee for issue of fresh certificate of insurance in the name of the transferee. But in the instant case the complainant never approached the opposite party with a request for changing the insurance policy in his name, either before the accident or after the accident within the stipulated time. But in the present case the complainant failed to submit any such application requesting to transfer the insurance policy in his name even after the ownership of the vehicle has been changed in his name in the registration certificate of the vehicle. The claim of the complainant that on 05.12.2017 he requested the opposite party by submitting necessary application to transfer the policy in his name is absolutely baseless and false and hence denied. The complainant never made any steps at any point of time in changing the insurance policy in his name and he was totally a stranger to the opposite party in the subject matter of the claim. The own damage risk covered under the policy is personal contract of indemnity which shall not automatically transferred in the name of transferee unless and until certificate of insurance has been transferred in his name. The transferee owner is eligible to claim own damage risk under the policy only after the policy has been transferred in his name. The opposite party has sent a registered letter dated 05.03.2012 repudiating the claim to the actual insured in whose name the policy has been issued by the opposite party by stating that the ownership of the vehicle has been transferred in the name of the present complaint. But the policy has not been transferred in his name and thereby the original insured has lost the insurable interest in the vehicle. The compensation claimed by the complainant towards expenses incurred for repair of the vehicle is not admissible since the complainant has no right to claim the extent of damages. The opposite party further pray to dismiss the complaint with heavy compensatory costs.
7. In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or any unfair trade practice on the part of the opposite party in repudiating the insurance claim in respect of the vehicle bearing No.KL 02 AD 222 belongs to the complainant?
- Whether the complainant is entitled to get re-imbursed the own damage claim to the tune of Rs.1,40,903/- in connection with the accident occurred to the car bearing No.KL 02 AD 222 on 03.12.2017?
- Whether the complainant is entitled to get compensation for mental agony and sufferings due to the denial of own damage claim to the complainant?
- Reliefs and costs.
8. Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P7,P8 series and P9 series documents. No oral evidence has been adduced on the side of the opposite party. But got marked Ext.D1 to D4 without any objection and Ext.D5 subject to proof.
9. Both sides have filed notes of arguments. Heard both sides and perused the records.
Point No.1& 2
10. For avoiding repetition of discussion of materials these 2 points are considered together. Materials available on record would indicate that the complainant has purchased one Maruti Swift Dezire car bearing Registration No.KL 02 AD 222 on 30.11.2017 from the previous registered owner by name Mohammed Ziya. The opposite party is the insurer of the above vehicle. Ext.P6/D1 insurance policy issued in respect of the vehicle in the name of the previous owner was valid from 24.11.2017 to 23.11.2018 and the said policy was a comprehensive policy covering own damage. During the validity of the above insurance policy in respect of the vehicle the complainant purchased the said vehicle on 30.11.2017. There after the complainant filed an application before the registering authority, Kollam to transfer the registered certificate in his name which is evident from Ext.P2 receipt. However the vehicle involved in an accident on 03.12.2017 which is evident from the oral evidence of PW1 coupled with Ext.P4 and P5 documents. In fact the opposite party has no dispute with regard to the accident. Later on 05.12.2017 the RTO transferred the vehicle in the name of the complainant w.e.f 30.11.2017 which is the date of purchase of the vehicle from its prior owner. While the application for transferring the RC to the name of the complainant was pending the accident occurred at 3.30 pm on 03.12.2017. According to PW1 on getting the name transferred in his name he approached the office of the opposite party on 05.12.2017 and filed an application to transfer the insurance policy in his name and also intimated the facts of accident that after the accident the vehicle was taken to M/s Indus Motors, Kollam which is the authorized service centre of Maruti Vehicle. As per the intimation regarding the accident made by the complainant the opposite party insurance company has issued a claim form. It is also brought out in evidence that the duly filled up claim form was submitted to the opposite party within 2 days and on the basis of the claim form the opposite party has appointed S.Arun, Surveyor for assessing the extent of loss and the said Surveyor has filed Ext.D3 report before the opposite party. As per the directions of the surveyor Indus Motors carried out the entire repair and replacement of work and issued Ext.P8 series bills for Rs.140903/-. It is also brought out in evidence that since the opposite party insurance company repudiated the claim by issuing Ext.D4 repudiation letter and has not paid the repair charges the complainant was constrained to take delivery of the vehicle after paying the amount for repair and replacement of the vehicle. The complainant caused to send Ext.P9 series lawyer notice to the opposite party calling change the insurance policy in the name of the complaint as per the application of the complainant and also to pay the amount claimed as per Ext.P8 series bills. According to the complainant the opposite party insurance company is liable to pay the entire cost of the repair and replacement and as the opposite party failed to pay the same he paid it and got the vehicle released from the workshop and therefore he is entitled to get that much amount from the opposite party. According to the complainant the opposite party denied the payment of repairing charges on technical reasons stating that the vehicle met with the accident before effecting transfer of policy in the name of the complainant and therefore the opposite party is not bound to pay the own damage claim submitted by the complainant.
11. According to the learned counsel for the opposite party the complainant is a total stranger and he has no locus standi to claim the benefit of insurance, since the insurance policy was standing in the name of the prior owner of the vehicle as on the date of accident. It is also contented that there must be an agreement between the insurer and transferee of the vehicle undertaking to cover the risk of damage to the vehicle since there was no such agreement and since the insurer has not transferred the policy of insurance to the transferee the insurer is not liable to make good the damages to the vehicle. The learned counsel for the complainant has argued that since the application for transfer of insurance policy in favour of the complainant as the transferee of the vehicle is made within 14 days provided u/s 157 of the Motor Vehicles Act the opposite party has a statutory obligation to transfer the insurance policy in the name of the transferee/complainant and to admit the own damage claim sustained to the vehicle.
12. Ext.P3 is the copy of the certificate of registration issued by the Additional Registering Authority, Kollam which would indicate that the vehicle stands in the name of the complainant w.e.f 30.11.2017. Ext.P6 is the copy of the Motor Insurance Certificate from Policy Schedule Private Car Package Policy. The said certificate would indicate that insurance was issued in the name of Mohammed Ziya the previous owner of the vehicle on 22.11.2017. The validity of the policy is from 24.11.2017 to 30.11.2018. Ext.P9 series copy of the Lawyer Notice dated 03.03.2018, postal receipts and postal acknowledgment card would clearly indicate that on receipt of the registration certificate transferring the registration of the vehicle involved in this case in the name of the complainant he had approached at the office of the opposite party for changing insurance policy in his name and also intimated the fact of accident to the insurer. But the opposite party insurance company has not changed the insurance policy in the name of the complainant within statutory limit time with a view to evade from the contractual obligation to indemnify the complainant from the own damage liability of the vehicle.
13.Admittedly the vehicle bearing Registration No.KL 02 AD 222 was having valid insurance coverage from 24.11.2017 to 23.11.2018 in the name of the previous owner from whom the complainant has purchased the vehicle. The said policy was comprehensive policy covering own damage. As on the date purchase a full fledged policy was live in respect of the vehicle. It is an admitted fact that before effecting transfer of the insurance policy in the name of the complainant/present owner the vehicle met with an accident on 03.12.2017. However the RTO transferred the vehicle in the name of the complainant w.e.f 30.11.2017. Ext.P3 copy of the RC book would clearly indicate that as on the date of accident the vehicle is in the name of the complainant. But admittedly the insurance policy was not transferred from the name of the prior owner to the present owner. It is brought out in evidence that after getting the ownership transferred in the name of the complainant he approached the insurance company to effect transfer of the insurance policy. But in the mean time the accident was occurred. The complainant has also requested the insurance company to transfer the policy to his name and also to make amend the damage sustained to the vehicle. But the insurance company has admittedly denied the claim on the ground that as insurance policy was not changed to the name of the complainant and therefore the complainant is not entitled to get the claim allowed.
14. The learned counsel for the opposite party has vehemently argued that the complainant is a total stranger to the insurance company and the complainant has not even made any application with necessary document and paid any fee to effect transfer of the insurance in his name and therefore the repudiation of the claim is legal and proper. It is true that though the complainant would claim that he approached the opposite party and applied for effecting transfer of insurance, he has not produced any documentary evidence except Ext.P9 lawyer notice which is a self serving document. The learned counsel for the opposite party by relying on the dictum laid down by the Hon’ble National Commission reported in 2016 CPJ Volume (4) Page 382(United India Insurance Company Ltd. Vs Surendra Kumar) has argued that insurance company is not under obligation to indemnify the subsequent purchaser who has not got the insurance policy transferred in his name. It is further argued that the complainant has neither produced any evidence to prove that he applied for transfer of insurance policy in writing nor he has produced any evidence to show that previous owner gave his consent for transfer of insurance policy in his name. Hence according to the learned counsel for the opposite party the complainant had no insurance interest in the vehicle and therefore repudiation of the claim as per Ext.D4 letter is justifiable. However in view of the dictum laid down by the Hon’ble Supreme Court in M/s United India Insurance Company Ltd. Vs Ram Prakash Raturi reported in 2008 KHC 4120 the denial of the claim of the complainant to make amend the damage sustained to his vehicle by the insurance company on the ground that the policy was standing in the name of the previous owner is not legal and proper.
15. In the above quoted decision the Hon’ble Supreme Court has pointed out that the vehicle which was the subject matter of insurance stood in the name of Smt. Roopa Sharma who is the prior owner. But even then the Hon’ble Supreme Court is of the view that the insurance company is liable to indemnify the damage caused to the vehicle since the vehicle is the subject matter of insurance and it is immaterial as to whether there was any transfer of insurance policy in the name of the previous owner.
16. The learned counsel for the complainant has argued by relying on the dictum laid down by the Hon’ble High Court of Kerala in National Insurance Company Ltd. Vs Sindhu reported in 2011(3)KLT 590 that policy of insurance will stand transferred to the name of the transferee w.e.f the date of transfer and such transfer will take within its sweep all compulsorily insurable risk covered under the policy. On perusal of the above dictum it is seen that the Division Bench of the Hon’ble High Court of Kerala has decided the above case on the basis of the dictum laid down by the Hon’ble Supreme Court in 5 cases which are AIR 1996 SC 586, AIR 1999 SC 1398, JT 2005(10) SC 440, JT 2007(3) SC 586, In the above quoted Division bench decision of the Hon’ble High Court of Kerala it is held that where transfer of a motor vehicle takes place then notwithstanding the fact that the transfer has not been specifically noted in the policy of insurance, there is deemed transfer of policy of insurance from the transferor to the transferee. On such transfer the policy is deemed as transferred in the name of the transferee and will operate to protect the interest of the transferee owner and 3rd party claimants against him. This is notwithstanding the failure/omission on the part of the transferee to get the policy of insurance formally transferred to the name of the transferee as stipulated u/s 157 of the Motor Vehicles Act.
17. The learned counsel for the complainant by relying on the dictum laid down in the decision United India Insurance Company Ltd. Vs Saji John reported in 2016(4) KLT 304 has further argued that the policy will go along with the vehicle. It is also argued on behalf of the complainant by relying on Maniyan Vs Velayudhan Nair reported in 2007(3) KLT (short note) 72 that even if the insurance policy stands in the name of the previous owner the insurer is liable to indemnify subsequent purchaser. It is held in the above decision that even if a transfer of vehicle is not intimated to the insurer and the transfer is not recorded in the RC book the insurer is liable. The Hon’ble High Court of Kerala has pointed out in the above quoted decision that the lorry(here in this case the car) is movable article and sale of which is governed by the Sale of Goods Act and not by the provisions of the Motor Vehicles Act and even if the change of ownership is not noted in the RC book and even if policy stands in the name of the original owner, in view of the provisions contained u/s 15 of the Motor Vehicles Act there was an automatic transfer and the transferee is entitled to claim the benefit.
18. In view of the dictum laid down by the Hon’ble Supreme Court and High Court of Kerla which are discussed above and relied on by the learned counsel for the complainant it is crystal clear that even if the complainant has not approached the insurance company for effecting transfer of the insurance policy in his name the policy will go along with the vehicle and therefore the complainant who purchased the vehicle is entitled to get the benefit of insurance policy. Therefore the opposite party insurance company is liable to reimburse the claim lodged as per Ext.P8 series bills. In the circumstances it is clear that the denial of the eligible claim as per Ext.P8 series bills amounts to deficiency in service and unfair trade practice on the part of the opposite party. Points answered accordingly.
Point No.3
19. According to the complainant after the accident he brought the vehicle to the authorized service centre which is Indus Motors and intimated the fact to the opposite party insurance company who deputed Mr.Arun the authorized surveyor who assess the loss and also issued claim form. The complainant has returned the duly filled up claim form as directed by the surveyor the Indus Motors has repaired and replaced certain damaged part of the vehicle to the tune of Rs.1,40,903/-. But the opposite party has not paid the amount to the Indus Motors nor paid the amount to him to the complainant. According to the complainant the opposite party is the insurer of the vehicle who is liable to compensate the damage to the vehicle failed to do so and thereby the complainant was constrained to pay the amount as cost of repairs and replacement at the authorized service centre and got released the vehicle which according to the complainant has caused much mental agony apart from financial loss and therefore he is entitled to get compensation.
20. It is further to be pointed out that the complainant has a case in Ext.P9 series lawyer notice that he paid Rs.28000/- towards compensation to the property of the owner for reconstruction of damaged compound wall due to the hit of the car. But the complainant due to the reasons best known to him has not claimed the said amount of 3rd party damage paid by him. He has also not sought for any such claim in the relief portion also. Therefore the Forum/Commission is not inclined to consider the 3rd party damage sustained during the accident.
21. In view of the facts and circumstances of the case we are of the view that the compensation claimed by the complainant is a little bit excessive. In view of the facts and circumstances of the case and mental agony sustained by the complainant we are inclined to grant compensation to the tune of Rs.30,000/-. As the matter is seriously contested one the complainant is entitled to get costs of the proceedings also.
Point answered accordingly.
Point No.4
22. In view of our finding under point No.1 to 3 the complaint stands allowed.
- The opposite party is directed to reimburse the own damage claim of Rs.1,40,903/- in connection with the accident occurred to the insured car bearing Reg. No.KL 02 AD 222.
- The opposite party is directed to pay compensation to the tune of Rs.30,000/- for the mental agony and sufferings sustained to the complainant due to the denial of own damage claim of the complainant.
- The opposite party is directed to pay Rs.5000/- as costs of the proceedings.
The opposite party is directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the above amount with interest @ 9% p.a except for costs from the opposite party insurance company and its assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 14th day of March 2022.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 : Noushad
Documents marked for the complainant
Ext P1 : Copy of RC in the name of Mohammed Ziya
Ext P2: Copy of receipt showing remittance of fee for change of ownership in the registration certificate.
Ext.P3 : Copy of certificate of registration in the name of Noushad.
Ext.P4: Copy of police complaint.
Ext.P5: Copy of General Diary.
Ext.P6 : Insurance certificate cum policy schedule of Mohammed Ziya.
Ext.P7 : Copy of Driving license of Noushad.
Ext.P8 series: Job card retail with cash receipt.
Ext.P9 series : Lawyer notice, postal receipt and acknowledgement card.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-
Ext.D1: True copy of the insurance policy in the name of Mohammed Ziya in respect of vehicle bearing Reg.No.KL-02 AD/222
Ext.D2: Quotation dated 21.03.2017 for Rs.2,65,000/-
Ext.D3: Copy of reply notice.
Ext.D4: Survey report.
Ext.D5: Copy of sale agreement.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
