Date of filing : 06-05-2013
Date of order : 23-09-2014
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.138/2013
Dated this, the 23rd day of September 2014
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
P.Gopalan, S/o.Late Kunhiraman, : Complainant
R/at Vinu Nivas, Pollakada, Pullur Village,
Hosdurg Taluk, Po.Haripuram,671531,
Kasaragod.Dt.
(Adv.N.P.Ravindran, Hosdurg)
The Manager, National Insurance Company Ltd, : Opposite party
Branch office, High Lane Plaza, MG.Road,
Kasaragod. 671121.
(Adv.M.Balagopalan, Kasaragod)
O R D E R
SMT.SHIBA.M.SAMUEL, MEMBER
The complainant’s case is that he had purchased a Maruthi 800 LMV Motor car bearing Reg.No.KL-14-J 3476 from one M.Narayanan on 27-12-2012. The vehicle was insured by M.Narayanan with the opposite party herein with effect from 30-04-2012 to 29-04-2013. The RC of the said vehicle was transferred infavour of the complainant on 27-12-2012 and he had also entrusted the RC to transfer insurance certificate in his favour. On 29-12-2012 the above vehicle had an accident and caused heavy damage to the vehicle. On intimation to the opposite party about the accident they repudiated the claim stating that insurance policy is not transferred in his name and the act of the opposite party amounts to deficiency in service.
2. On receiving notice, the opposite party appeared and filed version contending that there is no deficiency in service from opposite party’s part, opposite party rightly repudiated the claim of the complaint, the complainant failed to apply for the transfer of policy and he is not entitled for the benefit U/s 157 of MV Act. The complainant was examined as PW1 and Exts A1 to A7 were marked and from opposite party’s side, Ext.B1 also marked.
3. Points for consideration
1 Whether the insurable interest of the transferor will automatically transferred
in the name of the transferee?
2 Whether there is any deficiency in service from the opposite party?
3 If so, what is the relief and costs?
4. Point No.1: While answering the 1st point, the counsel for the opposite party vehemently argued that since insurance is not transferred in the name of PW1 at the time of accident, he is not entitled for any damages. PW1 has not applied for transfer of Insurance Policy. But it is pertinent to note that on the scrutiny of the Ext.A4 the Forum convinced that the accident was occurred within 14 days which is the statutory period prescribed for the change of name of the insured in the insurance certificate after the transfer of the RC.
5. The learned counsel for the opposite party relying on many decisions of Hon’ble National Consumer Disputes Redressal Commission has vehemently argued that the deemed transfer under Section 157 of the MV Act is restricted to 3rd party risk and does not apply to other risk and does not apply to the risk like damage caused to the vehicle of the insured of himself which falls outside chapter XI of the new Act and is in the realm of contact for which there must be an agreement benefit the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle and the Hon’ble National Commission has rendered the above dictum by relying on the decision of the Hon’ble Apex Court in the case of complete insulation Pvt. Ltd V. New Assurance Co.Ltd . But with due respect to all the judgments of the Hon’ble National Commission, we are of the view that the contention of the opposite party is not sustainable. PW1 herein is entitled to get his loss indemnified by the opposite party and then he deserves an order in his favour in view of Section 157(1) of the Motor Vehicles Act 1989 as amended up to date. In this case it is evident that the vehicle is transferred in the name of PW1 w.e.f. 27-12-2012 and the accident was occurred on 29-12-2012. So if section 157 (1) of the Motor Vehicles Act as amended in 1994 is applied then it has to be considered that the certificate of insurance and the policy described in the certificate shall be deemed to have transferred infavour of the transferee, i.e. PW1 w.e.f. date of transfer i.e. 27-12-2012 itself. Hence there is no iota of doubt that PW1 is entitled for the relief for his damages. The further contention of the opposite party is in view of Section 157(2) of MV Act the transferee (PW1) ought to have got the certificate of insurance and the policy described in the certificate there to transferred in his name within 14 days from the date of transfer of the vehicle to claim the benefits as per Section 157 (1) of the Act.
6. On close perusal of Section 157(1) & 157 (2) of the MV Act it is vivid that now there is no requirement of applying to the insurer for transfer of policy and it gets transferred to the transferee by operation of law. Eventhough Section 157 (2) of the Act gives 14 days time from the date of transfer to the transferee to make an application to the insurer for making necessary changes in regard to the effect of transfer in the certificate of insurance and the policy described in the certificate in his favour, the liability of the insurer can not be absolved even if such transfer is not consequently effected by it since Section 157 (2) specifically says that the insurer shall make necessary changes in the certificate and in the policy of insurance with respect to the transfer of insurance when such application is made Sub Section 2 of Section 157 of the Act provides only a procedure to intimate fact of transfer of vehicle to the insurer in order to make necessary changes in the certificate of insurance and the policy to bring it in conformity with the deemed transfer as contemplated U/s.157 (1) of the Act for the purpose of indemnifying the transferee relating to the risk covered under the policy and that non-compliance with this procedure does not automatically invalidate the deemed transfer that had taken by virtu of the operation at law as contemplated U/s 157(1) of the MV. Act.
7. IInd point : By virtue of the above interpretation, the act of repudiation of the claim of complainant amounts deficiency in service from the part of the opposite party since the section 157 (1) of the Act has undergone amendment mainly because of the inconvenience faced during its operation due to the frequent transfer of motor vehicle without transferring the insurance policies and the consequential denial of own damages insurance claim by the insurer. Therefore an explanatory note was added to Section 157 (1) of the Act by way of an amendment.
8. Explanation: For removal of doubt, it is hereby declared that such deemed transfer shall ‘include’ transfer of ‘rights’ and ‘liabilities’ at the said certificate of insurance and policy of insurance. On analyzing amendment the sub section 1 of Section 157 of the Act in the back ground of its objects, purposes and reasons it is clear that what is aimed by the legislature is the absolute transfer of the certificate of insurance and policy relating there to and therefore the court has to choose that interpretation which requests the true interpretation of the legislature. Therefore the repudiation of the claim in the above case is nothing but a deficiency in service of opposite party.
9. IIIrd Point: According to PW1, due to the accident, the vehicle suffered extensive damages. But he had produced only Exts A6 & A7. Ext.A6 is the cash bill for Rs.9130/- and Ext.A7 is the labour charge receipt for Rs.7,000/- he further contended in his affidavit that he had irrecoverably lost the remaining bills issued by electrician, service station etc from his custody. But it is pertinent to note that eventhough the opposite party contended that the loss was assessed by the surveyor was to the tune
Rs. 10,709/- only. But they have not produced the report of the surveyor. Therefore we are inclined to accept the Exts A6 & A7 to quantity the damages sustained to the vehicle of PW1 and he is entitled for that amount.
Therefore the complaint is allowed and the opposite party is directed to pay a sum of Rs.16,130/- together with a cost of Rs.5,000/- and opposite party is further directed to pay compensation of Rs.10,000/- to the complainant. Time for compliance of order is limited to 30 days from the date of receipt of copy of order. Failing which opposite party shall be further liable to pay interest @ 12% for Rs.16,130/- from today till payment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1.Photocopy of RC.KL-14-J-3476
A2. 1-1-2013.Photocopy of Motor Claim Intimation Form
A3. Photocopy of Motor Claim Form
A4. 21-03-2013 Copy of Lawyer notice.
A5.11-022013 letter sent OP to complainant.
A6.11-1-13 Cash Bill for an amount of Rs.9130/-
B1. Copy of Policy issued by OP to complainant.
PW1. P.Gopalan.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTEND
