IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 25th Day of October 2022
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Sri.Stanly Harold, B.A.LLB, Member
CC.240/18
George Thomas.L : Complainant
Mulayazhikom
Mayyanad P.O, Kollam-691303.
[By Adv.M.A.Rasheed]
V/s
The Manager : Opposite party
National Insurance Co. Ltd.
Direct Agent’s Branch,
Parameswaran Pillai Bhavan
Hospital Road, Kollam-691001.
[By Adv.S.Dileep Kumar]
FINAL ORDER
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.
The averments in the complaint in short are as follows:-
The complainant is the registered owner of a Maruti A star VXI car bearing Reg.No.KL-02/AD 8269 which was purchased from its Registered owner Smt.Amina, Thenguvila Veedu, Aakkolil cherry, Eravipuram P.O., Kollam-11 on 24.04.2018. The opposite party is the insurer of the above said vehicle vide policy No.57050431166100005139. The said policy was issued covering the period from 09.12.2017 to 08.12.2018 in favour of Smt.Amina. It is a comprehensive policy covering own damage. After purchasing the above said car from its prior owner Smt.Amina, the complainant had submitted an application before the registering authority, Kollam on 24.05.2018 for changing the name of registered ownership of the vehicle in his name. On 28.04.2018 the complainant had received the registration certificate transferred in his name from the registering authority wherein the endorsement regarding transfer of ownership in his name has been made with effect from 25.04.2018. As per Sec.157(2) of the Motor Vehicles Act 1988 the transferee shall apply within 14 days from the date of transfer to the insurer for making necessary changes in the insurance policy in his favour and the insurer shall make necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance. However within the grace period of 14 days for effecting such transfer of insurance policy. But the subject vehicle met with an accident ie, on 03.05.2018 at 12.45 am at X-ray junction which is within the police station limit of Cherthala. The next day ie, on 04.05.2018 the complainant approached the office of the opposite party for changing the insurance policy in his name and intimated the fact of accident and the opposite party had issued forms for submitting the same duly filled and signed along with the estimate from the repairer for further proceedings in the matter. Accordingly the complainant had submitted an application for transfer of insurance along with own damage claim application within the prescribed grace period of 14 days ie, on 08.05.2018. Since the request for transfer of insurance policy in favour of the complainant as the transferee of the vehicle is made within 14 days as provided U/s 157 of the MV Act, the opposite party has a statutory obligation to transfer the insurance policy in the name of the transferee, the complainant and to admit the own damage claim sustained to his vehicle.
The Indus Motors, Cherthala carried out the entire repairs and replacements and they have estimated for a total sum of Rs.93,400/-. The complainant was informed by the opposite party to take delivery of the car after paying the repair charge and then to get it reimbursed. Accordingly the complainant paid the entire bill amount with regard to the repairing work caused due to the accident to M/s Indus Motors. The complainant was constrained to take delivery of the car after paying the entire bill amount of Rs.88,950/-. Being the insurer of the car, the opposite party is liable to pay the entire cost and the complainant is entitled to get the same. But the opposite party has denied his claim for a technical reason that since the vehicle in question is met with an accident before transferring the subject policy in the name of the complainant and it is difficult to pay the own damage claim submitted by the complainant. The complainant was put to untold miseries and hardships due to a technical reason raised by the opposite party.
The purpose of a comprehensive insurance coverage of a vehicle stipulates re-imbursement of own damage. Since the subject policy is a comprehensive policy covers own damage, the complainant is entitled to get reimbursement of the entire bill amount. Apart from that the opposite party is liable to pay compensation for the mental agony and tension suffered by the complainant which cannot be equated in terms of money. The request made by the complainant for transferring the insurance policy in the name of the complainant is within the statutory period of 14 days as envisaged under Section 157 of the Motor Vehicles Act, the opposite party is legally bound to transfer the policy in the name of the complainant and to admit the own damage claim requested by the complainant. As per Section 157 of the MV 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 been 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 subject policy in this case is deemed to have been transferred in the name of complainant from the date of transfer of vehicle itself ie on 25.04.2018. The reason for repudiation alleged by the opposite party is that the complainant has not intimated the office about the transfer within the prescribed time limit of 14 days. Actually on 04.05.2018 the complainant approached the office of the opposite party and requested through application for changing the insurance policy in his name and intimated the fact of accident, which is within the grace period permitted by law. Hence the reason for repudiation raised by the opposite party is not tenable either law or on fact. It is only an attempt on the part of the insurer/opposite party to wriggle out from their liability. The act of repudiation of claim by the opposite party amounts to deficiency in service and unfair trade practice. The complainant believes that the opposite party has hesitated to transfer the insurance policy in favour of the complainant within the statutory time limit only to evade the legal obligation to indemnify the complainant from the own damage liability. But the subject policy in this case is deemed to have been transferred in the name of complainant/transferee from the date of transfer of vehicle as per the Motor Vehicle Act. The deliberate act of the opposite party not transferring the policy in the name of the complainant within the statutory time limit and denying his own damage claim is an unfair trade practice and deficiency in service recognized by the Consumer Protection Act. The complainant sent a legal notice dated 09.08.2018 through is counsel to the opposite party requesting to transfer the insurance policy in the name of the complainant and to entertain own damage sustained to the insured vehicle and release the amount towards the damages sustained to the vehicle within 15 days from the date of receipt of notice. The opposite party duly received the said notice as evidenced by the acknowledgement card. But the opposite party has so far neither cared to entertain his claim, nor even to send a reply to the complainant. Hence the complaint.
The opposite party resisted the complaint by filing a detailed version raising the following contentions. The complaint is not maintainable either in law or on fact. The complainant is not a consumer of the opposite party as defined u/s 2(d) of the Consumer Protection Act 1986. There is no contract between the complainant and the opposite party. Hence there exist no relationship between the complainant and opposite party. The complainant is a stranger to the opposite party with whom no contract of insurance was subsisting in the subject matter involved in this case. The complainant has no insurance interest due to transfer of ownership in the vehicle alone in his name. However the opposite party would admit that it had issued a comprehensive policy for the subject vehicle in favour of Amina for a period from 09.12.2017 to 08.12.2018. The complainant in fact purchase the vehicle from the previous owner and changed the ownership of the vehicle in his name w.e.f 25.04.2018. But he has not transferred the insurance policy in his name within the stipulated period from the date of purchase of the vehicle. The complainant has approached the opposite party on 14.05.2018 in giving intimation regarding the involvement of the vehicle in the accident that occurred on 03.05.2018. The complainant has neither approached the opposite party for changing the insurance policy in his name nor intimated the accident of the vehicle at any point of time prior to 14.05.2018. Hence the claim raised by the complainant is inadmissible for the reason that policy of the vehicle has been transferred in his name prior to the date of accident. The policy was in the name of the previous owner Amina as on the date of accident. The complainant even after changing the registration particulars of the vehicle in the RC Book has failed within a period of 14 days for effecting transfer of policy in the name of complainant. Only sale deed with a request form shall sufficient to transfer the policy subject to payment of difference premium were ever applicable and the prescribed fee for changing the insurance policy in his name. The complainant in this case has not bothered to transfer the own damage cover in the policy in his name by complying the necessary formalities as prescribed in GR 17 of Indian Motor Tariff which shows the inactivity on the part of the complainant for changing the insurance policy in his name. Hence the complainant has no right to claim the benefits under the policy, which stood in the name of the previous owner as on the date of accident. The opposite party has repudiated the claim with specific reason after invoking the relevant provisions of Motor Tariff as per the repudiation letter issued by the opposite party to the complainant. The allegation made in the complaint that he had approached the opposite party on 08.05.2018 for changing the insurance policy in his name prior to the date of accident is absolutely false and baseless. The complainant has approached this Forum/Commission by suppressing materials facts with unclean hands for making unlawful gain. The claim of the complainant was repudiated by the opposite party on sound legal basis and after due application of mind. The opposite party further pray to dismiss the complaint with their costs.
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 in repudiating the claim of the complainant?
- Whether the complainant is entitled to get relief sought for in the complaint?
- Reliefs and costs.
No oral evidence has been adduced on the side of the complainant but got marked Ext.P1 to P7 documents. The opposite party has also not adduced any oral evidence. But got marked Ext.D1 to D3 documents. Both sides have filed notes of argument. Heard both sides.
Point No.1
The following are the admitted facts in this case. The vehicle bearing KL 02 AD 8263 originally owned by the registered owner Smt.Amina and insured with the opposite party for a period from 09.12.2017 to 08.12.2018. The complainant has purchased the said vehicle from the above Amina and ownership of the vehicle has been changed in the name of the complainant in the RC book w.e.f 25.04.2018. But he failed to transfer the insurance policy in his name within a period of 14 days from the date of transfer of ownership of the vehicle in his name. However in the mean time the vehicle met with an accident on 03.05.2018 and got damaged. The insurance claim raised by the complainant has been repudiated by the opposite party stating that as on the date of claim intimation the policy issued by the opposite party for the above vehicle is in the name of the previous owner Smt.Amina and there is no privy between the complainant and insurance policy. According to the complainant on the next day of the accident ie on 04.05.2018 he approached the opposite party office for effecting the change of insurance policy in his name and also intimated the fact of accident. Accordingly the opposite party issued necessary forms for submitting the same duly filled and signed along with the estimate from the repairer and he had submitted an application for transfer of insurance along with own damage claim application within the prescribed period of 14 days ie on 08.05.2018. Since the request for transfer of insurance policy has been filed within 14 days provided under Section 157 of the MV Act the opposite party has a statutory obligation to transfer the insurance policy in his name. But the opposite party failed to do so and now the opposite party claims that the complainant has not transferred the insurance policy in his name within the statutory period and said contention cannot be considered even for a moment as the opposite party has utterly failed to discharge their obligation in transferring the insurance policy within the statutory period on the basis of the application received in that behalf.
The specific case of the complainant in this regard is that on the next day of incident ie on 04.05.2018 the complainant approached the opposite party for changing the insurance policy in his name and also intimated the fact of accident and by knowing that fact the opposite party has issued necessary forms for submitting the same duly filled and signed along with estimate for further proceedings in the matter. Accordingly the complainant had submitted an application for transfer of insurance along with own damage claim application within the prescribed grace period of 14 days which will end on 08.05.2018. It is clear from the above averments in the complaint in paragraph 5 that the complainant has discharged his statutory burden of applying for the transfer of insurance policy within 14 days of the transfer of the vehicle in his name as provided u/s 157 of the Motor Vehicles Act. In the circumstances the opposite party insurance company is having the statutory obligation to transfer the insurance policy in the name of the complainant and to admit the own damage claim sustained to the vehicle. According to the opposite party insurance company though the complainant had purchased the vehicle from its previous owner and got transferred the ownership of the vehicle in his name w.e.f 24.05.2018. He has not transferred the insurance policy in his name within the stipulated period from the date of purchase of the vehicle. According to the opposite party the complainant has approached the opposite party only on 14.05.2018 in giving intimation regarding the involvement of the vehicle that occurred on 03.05.2018. Ext.P6 is the repudiation letter issued by the opposite party in favour of the complainant wherein it is stated that the complainant has neither approached the opposite party for change the insurance policy in his name nor intimated the accident of the vehicle at any point of time till the date of issuing Ext.P6 repudiation letter and hence the claim raised by the complainant is in admissible for the reason that policy of the vehicle has not been transferred in his name prior to the date of accident. But the complainant has not produced any satisfactory material to prove that what is stated in Ext.P6 repudiation letter is incorrect.
It is true that in Ext.P3 series lawyer notice dated 08.08.2018 the complainant has stated in tune with his case that he intimated the fact of accident on 04.05.2018 and applied for transfer of insurance policy as early on 08.05.2018 which is within the prescribed period of 14 days. But admittedly Ext.P3 lawyer notice has been sent much after getting Ext.P6 repudiation letter. Ext.D2 is the application admittedly filed by the complainant to the opposite party intimating the accident. The said application is dated 14.05.2018 and the same has been seen received by the opposite party on the same date. Even the complainant has no case that prior to the date of filing Ext.D1, he filed any petition and paid fee for getting the insurance policy changed in his name. In the circumstances the claim raised in Ext.P3 that the complainant had applied for getting transfer of insurance policy within the statutory period cannot be believed without any independent materials such as receipt regarding payment of prescribed fee or copy of application submitted by the complainant to that effect.
It is true that the opposite party has a statutory obligation to transfer the insurance policy in the name of the new owner within 14 days from the date of effecting transfer of ownership in his name u/s 157 of the MV Act. But the statutory duty of the insurance company to effect transfer of insurance policy is not an automatic process. The transferee owner has to file an application and pay the prescribed fee and balance amount of insurance charge as per rules. But the complainant has no case either in the complaint or in Ext.P3 lawyer notice or even in the notes of argument that he paid necessary fee and balance insurance charge along with his request to effect transfer of insurance policy in his name.
The learned counsel for the opposite party by relying on a full bench decision of the Hon’ble Supreme Court in Complete Insulations Pvt. Ltd. Vs New India Assurance Company reported in 1(1996) CPJ(1)SC that without the insurance policy being transferred in the name of the transferee owner of the vehicle he is not entitled to be indemnified by the insurer.
In view of the facts and circumstances of this case and also in view of the dictum laid down by the Hon’ble Supreme Court in the above quoted full bench decision we are of the view that the opposite party insurance company has rightly repudiated the insurance claim and hence no deficiency in service or any unfair trade practice can be inferred on the part of the opposite party. We find no merit in the complaint and the same is only to be dismissed.
Point No.3
In the result complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 25th day of October 2022.
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext P1 : Copy of General Diary Abstract.
Ext P2 : Copy of Certificate of Registration.
Ext.P3 : Copy of lawyer notice along with postal receipt and postal
acknowledgement card.
Ext.P4 : Copy of Service estimate.
Ext.P5 : Copy of insurance policy certificate.
Ext.P6 : Copy of repudiation letter
Ext.P7 : Cash receipts from Indus Motors
Witnesses Examined for the opposite party:-Nil
Documents marked for the opposite party:-
Ext.D1 : Certified true copy of the policy of the vehicle bearing
Reg.No.KL 02 AD/8296.
Ext.D2 : Claim intimation letter dated 14.05.2018.
Ext.D3 : Copy of the claim repudiation letter.
