SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint under Consumer Protection Act 2019, seeking to get an order directing OP No.1 to pay Rs.7,27,989/- the total claim amount to the complainant alleging deficiency in service on the part of 1st opposite party.
The facts of the case, in brief are that complainant purchased a second hand TATA Punch ACC 1.2P BS 6 AMT Car bearing Reg. No. KL 13AV 2790 for Rs.8,25,000/- on 01/09/2022 from 2nd OP. The above vehicle was originally owned by 3rd OP and the car was insured with 1st OP vide policy No.P0023200001/4111/802221 for a period from 13/05/2020 to 12/05/2023 and the coverage period for own damage is 01/07/2022 to 30/06/2023 as per policy. Immediately after purchase of this car, complainant telephoned the insurance company regarding the transfer of policy in the name of complainant but the branch manager informed him that the policy can be transferred in the name of the complainant only after transferring the RC in his name. Accordingly, the complainant made an application to RTO Kannur on 02/09/2022 for transferring the RC in his name. It is informed from the office of the RTO that the RC book will be delivered to the complainant by Registered post within 30 days after its transfer. Accordingly complainant received the RC book on hand only on 29/09/2022. Meanwhile on 23/09/2022, the complainant and his wife along with 3 young children travelling in KL 13AV 2790 car from Kannur to Taliparamba side driven by the wife of the complainant viz., Archana Thomas and when the Car reached at Mangad, Kalliasserry, Opp. To Mangad toddy shop hit to the road divider recently erected by the NH-66 construction contractors and it capsized and as a result the vehicle was serious damaged. On 24/06/2022, the complainant applied for RC particulars through online media to RTO Kannur and obtained the RC particulars by remitting Rs.50/- and learned that RC was changed in his name on 13/09/2022. Along with the RC particulars obtained from RTO office, complainant applied for change of insurance on 24/09/2022. Further complainant informed the 1st party regarding the accident through mail on 24/09/2022. Insurance policy was changed in the name of complainant on 26/09/2022. After the accident, complainant took this car to the Yard of KVR Dreams Vehicles Pvt. LTD by towing the same and took an estimate regarding the damage and its copy sent to OP No.1. Complainant received a letter dated 09/11/2022 from OP No.1 denying the claim of the complainant stating that “as there is no contract of insurance that covers the risk of complainant’s vehicle, OP No.1 cannot accept any liability towards the complainant’s claim and OP NO.1 intend to repudiate the claim”. Further, stated that the insured is 3rd OP at the time of accident and not complainant. In fact this car was insured with OP No.1 for damage for a period form 01/07/2022 to 30/06/2023. If OP No.3 was insured, the contention of OP No.1 will withstand. Here the vehicle belonged to OP No.3 was insured for damage with OP No.1 and hence the denial of claim was injustice, opposed to public policy and deficiency of service. There is no deliberate latches for changing he insurance policy in the name of complainant till the date of accident. Complainant tried his level best to change the policy. Since there is a valid policy to make good the damage of the insured vehicle that too incurred during the tenure of the policy, OP No.1 cannot deny the complainant’s legal right to get the damage of the insured vehicle. The denial of damage of the insured vehicle is absolutely illegal and deficiency of service. Complainant took a survey report from an insurance Surveyor and the damage incurred to the vehicle is Rs.6,93,139/- with other expenses and surveyor’s fees. The insured declared value (IDV) as per KL 13AV2790 was Rs.8,05,505/- and the constructive . Total Loss (CTL) of the vehicle is Rs.6,93,139/- and the percentage CTL is 86% of IDV and hence the complainant has to get the constructive Total Loss (CTL) of the vehicle as per the guideline issued by IRDA. Hence the complaint.
After receiving notices OPs 1 and 2 filed separate written version stating their contentions.
OP 1 has admitted that the mail sent by the complainant was received by this OP on 24/09/2022. This OP has transferred the insurance policy without delay and the complainant has no case that the insurance policy has got delayed. OP vehemently denies liability for the accident that occurred on 23/09/2022. It is imperative by law and the bounden duty of the complainant to wait for the insurance policy properly transferred in his name before plunging into any risk of taking the vehicle on the road. Driving a vehicle without any insurance policy in the name of the owner, the owner should not have handed over the vehicle to his driver. As stated in the repudiation letter this OP reiterates that the insured is one Valappile Veettil Sukumaran (3rd OP) and not the complainant at all. As such, the complainant does not have any insurable interests left in the vehicle at the time of the alleged loss, the company expresses the inability to consider the claim of the complainant. As an insurer OP1 has not meted out any kind of negligence, unfair trade practice or deficiency of service. It is submitted that the complainant has not suffered any kind of pain or mental agony. The complainant is not entitled to any kind of compensation. Hence, prayed for the dismissal of the complaint.
OP2 stated that this OP is an unnecessary party to this complaint, as there is no deficiency of service from this OP. The complainant is not entitled for any relief from this OP. The complainant has no claims against this OP. There is no lack of services or any unfair trade practices proved by the complainant against this OP. Hence, prayed for the dismissal of complainant against OP No.2.
At the evidence stage, complainant has filed his chief affidavit and documents. He has been examined as Pw1 was subjected to cross-examination by OPs 1 and 2.
No evidence either oral or document has been adduced from the side of any of the OPs. Complainant here in has allegation only against 1st OP insurance company.
After that the learned counsel of complainant has made oral argument and the learned counsels of OPs 1 and 2 have filed their written argument notes with decision of Hon’ble National commission, New Delhi.
We have perused the material placed on the record from the side of complainant in the light of the legal aspect of the case and also considered the submissions of the learned counsels of the parties.
There is no dispute regarding the accident of the car bearing Reg.No.KL 13 AV 2790. The General Diary copy of Kannapuram police station and the survey Report of the insurance Surveyor and loss Assessor deputed by the Insurance company have not disputed the genuiness of the accident. The main question in this case is as to whom loss happened to the insured vehicle should be indemnified. The Insurance Company OP No.1 has admitted that the complainant had submitted the claim form, but the claim was repudiated on the ground that the policy of the vehicle is in the name of Valappile Veettil Sukumaran (OP 3) at the time of accident and not in the name of complainant. The complainant is being denied the claim on the ground that there is no privity of contract between the complainant and the Insurance Company and therefore the complainant is not a consumer of the Insurance Company. Thus according to OP, the complainant cannot allege deficiency in service on the part of the Insurance Company. The Insurance Company has also stated that the complainant in taking the vehicle on public road without a valid registration is a clear violation of the provision of Motor Vehicle Act/Rules as well as fundamental breach of terms and conditions of the policy.
On perusal of documents, through Ext.A3 complainant proved that he had purchased the car in dispute from OP No.2 on 01/09/2022 for an amount of Rs.8,25,000/-. Ext.A2 shows that the disputed car had insured with OP No.1, Magma HDI General Insurance company Ltd. on 01/07/2022 and the motor liability period was from 01/07/2022 to 30/06/2025 and own damage period was from 01/07/2022 to 30/06/2023. In Ext.A2 the name of insured is Mr. Valappile Veettil Sukumaran (OP No.3).
Ext.A4 shows that complainant has applied for getting RC of the vehicle in his name on 02/09/2022 before RTO department, Kannur. Further Ext.A6 shows the vehicle particular issued by RTO Kannur in favour of the complainant. In Ext. A6 it is clearly mentioned that “2 Insurance from Magma HDI General Insurance Co. Ltd. vide policy certificate No.P0023200001/4/802221 is valid from 01/07/2022 to 30/06/2025. NOC details, NOC issued on 13/09/2022 by RTO Kannur. Ext.A7 shows that on 24/09/2022, the next day of accident, complainant has informed about the accident to OP No.1 Insurance Company. Also informed about the change of RC in his favour on 13/09/2022. Ext.A8 shows that the postal article, pertaining to the change of RC in the complainant’s name was delivered on 29/09/2022. Ext.A9 is the RC of the vehicle shows that RC became effective on 13/09/2022. Ext.A10 is the insurance transferred in the complainant’s name for a period from 26/07/2022 to 30/06/2023.
From the above documents it is evident that on the next day of purchasing he vehicle in question, complainant has informed and applied for getting RC in his favour and RC was changed w.e.f. 13/06/2022. Further on the date of accident complainant was the RC owner of the vehicle. Further the insurance was changed in the name of complainant on 26/09/2022.
Here insurance company has failed to examine the complainant’s claim in the light of its legal aspect. The word “owner” has been defined under section 2(30) of the MV Act 1988 and it means a person in whose name a motor vehicle stands registered. It is an admitted fact that complainant has paid the amount to OP3 and has transferred the vehicle was the Registered owner w.e.f. 13/09/2022. Hence from 13/09/2022 actual transfer of the ownership vehicle had completed.
Unfortunately before getting the required document for such transfer in his hand, and submitting before Insurance Company for transferring the policy, accident was happened. Thus the ‘owner’ of the vehicle as defined under the Motor Vehicle Act 1988 was Mr. George Thomas by the time of accident. In Ext.A10, policy OD period as shown is from 01/07/2022 to 30/06/2023 which means on the date of accident 23/09/2022 contract of insurance was very well existence on the insured vehicle. The Insurance Company could have repudiated the claim of complainant on the ground of such as accident was doubtful or the claim was not for the damage caused in the accident alleged etc, but the claim has not been repudiated on such grounds.
The claim has been repudiated through Ext.A13 on the ground that there is no contract of insurance that covers the risk of your vehicle. We are of the view that this ground of repudiation of the claim is legally incorrect because in the policy issued infavour complainant Ext.A10 it is clearly stated that policy own damage period is from 01/07/2022 to 30/06/2023.. Moreover, there was no delay happened on the part of complainant in getting the transfer of RC and also in getting the transfer of insurance in his favour.
One of the contention raised by the OP1 is that complainant had violated the policy conditions ie without having a valid registration, complainant taking the vehicle in public road. We are of the view that this contention of OP is not correct. In pursuance of a written agreement and sale letter in form 29, the process of transfer had started. Meanwhile, during the period from signing the sale letter and actual transfer of vehicle by the competent authority, the transferee has right to drive the vehicle, but other rights and liabilities get transferred only when the vehicle is transferred in the name of the complainant by the competent authority. Therefore, we are of the view that the insurance company was not justified in repudiating the claim of complainant. Further the learned counsel of OP1 could not establish us any such clause in the policy which stipulates that the contract of insurance between the insured and the Insurance Company shall cease as soon as the insured signs the sale letter in Form 29.
Further, by virtue of the sale letter, the status of the complainant will be that of a beneficiary for the purpose of the insurance policy because it is complainant who has an insurable interest in the vehicle. Had the vehicle been transferred on 01/09/2022 (Ext.A3), the insurance policy would have been deemed as transferred in favour of the complainant. The learned counsel OP1 has taken another contention that the deemed transfer of insurance policy is with regard to third party insurance and not for own damage. This plea is also not sustainable because the contract for third party insurance and own damages is executed by a single policy. If the insurance policy is treated as deemed transferred in favour of the complainant, then it will cover own damages also. At the time of executing Ext.A3 document and during the payment of the vehicle, the 3rd OP (seller) had handed over all the documents including insurance policy to the complainant.
Further it was not the person but the motor vehicle which was insured by the Insurance company and the policy had not ceased and was in existence (Ext.A10). Therefore in the case of an accident, which was found genuine (Ext.A11) by the policy and also by the surveyor appointed by the Insurance Company, the insurance company shall have to pay the compensation for the loss. The claim should have been settled in favour of the owner of the vehicle (complainant). It would be highly unjustified on the part of the Insurance company (OP No.1) to repudiate the complainant’s claim on the ground that there was no privity of contract between the Insurance company and the complainant.
With regard to calculation of the quantum of loss, the surveyor who has been appointed by the Insurance company after getting claim of complainant has submitted a survey report with photos dated 22/11/2022, which was marked as Ext.A14. In Ext.A14, the surveyor and loss Assessor calculated the total Assessment as rs.693139. In the insurance policy the IDV value of the vehicle is Rs.805505/-. Hence complainant is entitled to get the amount assessed by the surveyor with towing charge Rs.3,500/-.
Since complainant has no allegation and claim against OPs 2 and 3, both OPs 2 and 3 are exonerated from the liability.
In the result, complaint is allowed in part. Opposite party No.1 is directed to pay Rs.6,93,139+3500=6,96,639/- to the complainant. Opposite party No.1 is also directed to pay Rs.15,000/- to the complainant towards cost of the proceedings. Opposite party No.1 shall comply the order within one month after receiving the certified copy of this order. Failing which Rs.6,96,639/- will carry interest at the rate of 9% per annum from the date of order till realization. Complainant can execute the order as per the provision in Consumer Protection Act 2019.
Exts.
A1- RC
A2- Policy
A3- Purchase invoice
A4- E-Fee receipt issued by RTO
A5- Driving liscence of Archana Thomas
A6- RC particulars & Archana Thomas
A7- Mail copy send to OP No.1
A8- Post delivery manifest
A9- Transferred RC infavour of the complainant.
A10- Transferred policy
A11- General diary copy
A12- Estimated issued by Tata
A13- Claim denial letter dated 09/11/2022
A14- Vehicle surveyor report.
A15- RC-IRDA instructions (printed copy from the website)
Pw1- Complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
