DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  25^th  day of July,  2022

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member                                   Date of Filing:  20/11/2019

     CC/279/2019

Baiji Denny,

W/o.Late Denny Sebastian,

Edassery House,

Karimba PO.,

Pudukkad, Mannarkkad                                               -          Complainant

(By Adv.B.Ravikumar)

                                                                                     Vs

1.The New India Assurance Co.Ltd.,

    Divisional Office, 2^nd Floor,

    JRJ Complex, Main Road,

    Ottapalam – 679 101

    Rep.by its Manager.

2. The New India Assurance Co.Ltd.,

     Cherpulassery Micro Office,

    1^st Floor, Keezhzadiyil Complex,

    Near LIC Office, Ottapalam Road,

    Cherpulassery, Palakkad – 679 503

    Rep.by its Manager

3. Muthoot Vehilce & Asset Finance Ltd.,

     1^st Floor, AV Plaza, RS Road,

     Palakkad.                                                                            -           Opposite Parties

       (OPs 1 & 2 by Adv.T.P.George)

       (3^rd OP by Adv.P.M.Ramesan)

O R D E R 

By Sri. Vinay Menon V., President

1. Complainant is the widow of one Denny Sebastian who died on 28/8/2016.  The vehicle bearing No.KL52D-7433 was owned by the aforesaid deceased Denny Sebastian.  On 20/10/2018 the vehicle met with an accident and had to be repaired expending huge amounts. At the time of accident,  the vehicle was having a valid and subsisting policy in the name the RC owner of the vehicle, deceased Denny Sebastian.

Since the vehicle was under hire purchase agreement, the RC could not be transferred in the name of the complainant or other legal heirs of the deceased without the sanction of third opposite party.  All payments pertaining to the vehicle and change of ownership are to be done by the 3^rd opposite party. The insurance policy was being  taken by the 3^rd opposite party. The complainant was under bonafide impression that the 3^rd opposite  party would have changed the ownership of the vehicle. As  the 3^rd opposite party failed to intimate the insurance company, they repudiated the complainant’s claim for the amounts expended for repair of the vehicle.

This complaint is filed seeking an amount of Rs.2,24,782/- being the amount expended for repairing the vehicle with 12% interest and for incidental and ancillary reliefs.

2. Upon entering appearance the opposite parties filed their respective versions.

2(a)      The 1^st and 2^nd opposite parties filed joint version stating their inability to honour  the claim of the complainant since they had no notice regarding the death of the RC owner of the vehicle and  the subsisting policy was in the name of a person who had died two years ago. Policy, being in the name of a dead person, is void.  On this ground they sought for dismissal of the complaint.

2(b)  The 3^rd opposite party filed version contending that they had no notice regarding the death of the RC owner. They also came to know of the death of the RC owner when the hire purchase amounts had become due and the case for settlement of accounts was settled between the parties in the adalath.  Even though this opposite party had remitted one premium, the payment was effected not upon coming to know of death of original owner  but, as per request of the complainant. 

3. On a reading of the pleadings, the following issues arise for consideration.

1. Whether, there existed a valid and subsisting policy as on the date of accident ?
2. Whether there is any deficiency in service on the part of opposite party No.3 ?
3. Whether the complainant is entitled to any of the reliefs sought for  ?
4. Reliefs, if any ?

4.         Evidence on the part of the complainant consisted of proof affidavit and Exts.A1 to A6. Evidence on the part of OP1 & 2 consisted of proof affidavit and Exts.B1 to B6.  OP3 also filed proof affidavit, but did not adduce any documentary evidence.   Exts.A5 & 6 were objected to on the ground that Ext.A5 can be marked only through the person who prepared it and Ext.A6 was objected to on the ground that it was only an estimate.  Since Ext.A5  and Ext.A6 are valuations,  the accuracy of the amounts contained therein can be ascertained only by way of examining the person who prepared it. But for any other purposes we do not find any impediment in taking recourse  to Ext.A5 & A6.

            Issue No.1

5.         Ext.A1 is the policy document issued by the insurance company in favour of the deceased RC owner, Denny Sebastian.  At the time of issuance of Ext. A1, Denny Sebastian had been dead for nearly two years.  Since an agreement with a              non-existent person is a nullity, Ext.A1 is not a valid policy. Hence, there did not exist a valid and subsisting policy binding the opposite parties 1 & 2.  The opposite parties 1 & 2 were perfectly within their right in repudiating the claim of the complainant.  There is no deficiency in service on the part of opposite parties 1 & 2.

            Issue No.2

6. Section 50 (2) (a) of the Motor Vehicles Act not withstanding, complainant has raised a contention that the opposite party no.3 being the financier, they ought to have informed the Insurance Company regarding the change of ownership arising out of  death of Denny Sebastian.  The 3^rd opposite party  has contested this claim stating that they were not  aware of the death of Denny Sebastian. They averred that they came to know of the death of the original RC owner only when they came into contact with the complainant for settling the dues that were due to the OP3.  The complainant has not adduced any evidence to show that she had informed the 3^rd opposite party of the death of  Denny Sebastian.

7.         Even though the pleadings and proof affidavit of the opposite party 3 does not disclose the date when the case was settled and they came to know of the death of the original RC owner, Ext.A5 shed a light on this aspect.  Ext.A5 is the private and confidential Motor Final Report dated 18/5/2019 prepared at the behest of the 1^st  opposite party. The item II shows the vehicle was under HPA with OP3.   Ext.A1 policy was issued on 27/6/2018. Hence, from available evidence, and for want  of better evidence from either sides, we presume that the vehicle was under hypothecation on the date of  accident.  Hypothecation was lifted later after settling the dues in the adalath. The opposite party No.3 came to know  of the   death of  original RC owner only during the settlement. Hence, it is clear that at the time of accident the opposite party No.3 had no knowledge of death of the original RC owner.      

8.         Hence, we hold that there is no deficiency in service on the part of OP3. Accordingly this complaint is dismissed.

Issue Nos.3 & 4

9.         As a result of the discussions supra, we hold that the complainant is not entitled to any of the reliefs sought for.  This being a case wherein  a widow is trying desperately for a claim arising out of an insurance policy, however irrecoverable, the amount be, we are taking a lenient view and no cost is being imposed on the complainant. The parties are therefore directed to bear their respective costs.

            Pronounced in open court on this the 25^th  day of July, 2022.

                    Sd/-

                                                                                                             Vinay Menon V

                                                      President

                                                       Sd/-

    Vidya.A

                        Member     

                            Sd/-

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1  -Original of Policy bearing no.76270431180100001085 dt.27/6/18

Ext.A2 – Original  of Registration Certificate bearing Vehicle No.KL52D7433

Ext.A3 – Original letter dated 7/6/2019 bearing ref No.NIA/OTP/ODCMS/2019-20

Ext.A4 –  Photocopy of death certificate dated 7/9/16

Ext.A5 – Photocopy of Private and Confidential Motor Final Report dt.18/5/19

Ext.A6 – Photocopy of estimate dated 6/2/2019 issued by VN Motors.

Exhibits marked on the side of the opposite party

Ext.B1  - True copy of Ext.A1

Ext.B2 –  Photocopy of Ext.A4

Ext.B3 – Original of Motor Claim Form

Ext.B4 – True copy of Ext.A3

Ext.B5 – Original of Communication issued by complainant to DM, New India Assurance

Ext.B6 – Photocopy of Ext.A2

Witness examined on the side of the complainant

 NIL

Witness examined on the side of the opposite party

NIL

Cost :  No cost allowed.

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.