BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.249 of 2016

Date of Instt. 13.06.2016

Date of Decision: 02.05.2018

1. Navjot Kaur w/o Late Sh. Charanjit Singh and now wife of Sh. Gurcharan Singh R/o House No.52, Village Threeke, Ferozepur Road, Ludhiana.

2. Jasmeet Kaur w/o Sh. Amarjit Singh R/o House No.634, Guru Hargobind Nagar, Phagwara.

..........Complainants

Versus

1. The New India Assurance Company Limited, BMC Chowk, Jalandhar through its Branch Manager/Authorized Manager.

2. The New India Assurance Company Limited, Regd & Head Office: New India Assurance Bld., 87, Mahatma Gandhi Road, Fort, Mumbai-400001 through its Authorized Head.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. AK Rattu, Adv Counsel for the Complainant.

Sh. RK Sharma, Adv Counsel for the OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant No.1 namely Navjot Kaur being owner of one vehicle Honda Aviator bearing No.PB10-CL-7945, Model 2008, got it insured from the OP, vide Policy No.058395/LDH/2014 on 16.03.2015 by paying a premium of Rs.880/-. The policy was known as full insured policy to the vehicle, which is commenced from 16.03.2015 to midnight of 15.03.2016. Thereafter, the complainant No.1 namely Navjot Kaur sold the said vehicle to complainant No.2 Jasmeet Kaur with mutual understanding. However, the complainant No.2 Jasmeet Kaur did not get transfer the said vehicle in her name. But unfortunately, on 04.04.2015, the above said vehicle was stolen and intimation to this effect was duly given by complainant Jasmeet Kaur to the nearest Police Station and got registered FIR No.194 on 27.04.2015 u/S 379 IPC, PS City Phagwara against unknown person. As the above said vehicle was stolen and the same was duly insured and thereafter, the complainants approached the office of the OP No.1 and further applied for compensation from the office of the OPs, but the OPs kept the matter pending on one pretext or the other and failed to pass any appropriate order on the claim of the complainants.

2. That the complainant No.1 has purchased a policy by paying premium to the OPs, so, in this way, the complainant No.1 is consumer of the OPs. The complainants again and again visited the office of the OP No.1 for the compensation, but till today, the OPs did not pay any single penny to the complainants as compensation, which is a clear cut deficiency in services on the part of the OPs. Due to the above said illegal act on the part of the OPs, the complainants have suffered the great pain, agony and undue harassment, for which the OPs are equally liable. The complainants are entitled for appropriate claim for the loss of their vehicle, which was duly insured with the OPs and it was the duty of the OPs to pass and pay the appropriate claim to the complainants and thereafter, the complainants also served a legal notice dated 04.03.2016 through their counsel Sh. Sarabjit Singh Kalsi, Adv, but all in vain and as such, necessity arose to file the present complaint with the prayer that the OPs may be directed to pass the genuine claim of the complainants and further to pay Rs.50,000/- on account of mental tension, agony, harassment and deficiency in service.

3. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed a joint reply, whereby contested the complaint by taking preliminary objections that the instant complaint is not maintainable as such, the same is liable to be dismissed and further averred that the complainants have no locus-standi to file the present complaint. The complainant No.1 has collided with the complainant No.2 to cause illegal loss to the OP, which is candidly clear from its act and conduct. Admittedly, the vehicle Honda Aviator bearing No.PB-10-CL-7945 stand sold by Navjot Kaur to Jasmeet Kaur about six months prior to the alleged date of theft i.e. 04.04.2015. The complainant No.2 by misrepresentation and fraud has got the vehicle insured in the name of Navjot Kaur/Complainant No.1 by concealing the fact of having purchased the vehicle from complainant No.1 by complainant No.2. Even after getting the vehicle insured in the name of complainant No.1, neither the complainants approached the OP nor any intimation was given to the OP for the transfer of the insurance policy in the name of complainant No.2. It is settled law that as per provisions of Section 157 of 'Motor Vehicles Act', on the transfer of vehicle from the name of transferor of the name of transferee by way of sale, the certificate of insurance and policy described in the certificate shall be deemed to have been transferred in favour of the transferee, only in the case of claim by the “Third Party” and not in case of “Own Damage” as such, the complaint is liable to be dismissed. Otherwise also any contract on the basis of misrepresentation and fraud is void ab initio and complaint is liable to be dismissed on this ground. It is further alleged that the complainants have not given any intimation to the OP for transfer of Insurance Policy in the name of Complainant No.2 Jasmeet Kaur and even after getting the vehicle insured in the name of complainant No.1 by misrepresentation and fraud. So far as the “own damage” case is concerned, the intimation about the transfer vehicle had to be sent to the insurance company under Section 157 of Motor Vehicle Act and G. R. 17 of India Motor Tariff, 2002 for transferring the insurance in the name of the subsequent owner/transferee and on receiving of the intimation/request, the insurance policy would had been transferred in the name of the complainant No.2 after completion of certain formalities. It is further alleged that the complainants have failed to furnish Claim Form and as such, there is no deficiency on the part of the OP because the complainant declined after considering that illegal of insurable interest and lack of privity of contract in terms of law does not amount to deficiency is service or unfair trade practice on the part of the OPs and as such, the complaint is liable to be dismissed. It is further submitted that this Forum has no jurisdiction to entertain, try and decide the present complaint as no cause of action has accrued within the jurisdiction of this Forum and further alleged that the OPs deputed Investigator Nirvair Singh for getting the matter investigated, who conducted the investigation and submitted his Investigation Report dated 18.01.2016 with the OPs with a conclusion that there exists no insurable interest as Jasmeet Kaur Complainant No.2 stated in her statement recorded in the FIR that she had not got the vehicle transferred in her name. On merits, the factum in regard to issue of insurance in the name of the complainant No.2, is admitted, but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavits of both the complainants Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-7 and closed the evidence.

5. Similarly, counsel for the OPs tendered into evidence affidavit of Poonam Sharma as Ex.OA alongwith some documents Ex.O-1 to Ex.O-5 and closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. After taking into consideration the facts narrated in the complaint as well as in the written reply, we find that the complainants themselves stated in the complaint that the vehicle Honda Aviator Scooter bearing No.PB10-CL-7945 sold by the complainant No.1 Navjot Kaur to complainant No.2 Jasmeet Kaur, but the ownership of the same has not got transferred in the name of purchaser and then unfortunately, the said scooter was stolen on 04.04.2015, regarding that a case was also got registered and copy of the FIR is Ex.C-3 and same was not traced by the policy and ultimately, Untrace Report Ex.C-4 was submitted in the Court and then complainant asked to the OP to indemnify the complainant for loss caused to the complainant due to theft of that scooter, being reason the scooter in question was got insured with the OP by Navjot Kaur original owner and copy of the insurance cover note is Ex.C-2 and copy of the RC is Ex.C-1.

8. The case of the complainant is refuted by the OP, simply on the ground that the complainant No.1 was owner of the scooter in question and she admittedly sold to OP No.2 about six months prior to the said incident of theft, but as per Section 157 of 'Motor Vehicles Act' and GR-17 of 'Indian Motor Tariff Act 2002', the insurance of the sold vehicle is to be got transferred within 14 days from the date of transfer, by filing written application, with the consent of previous owner and proof of the ownership, but in this case, the case of the complainant is not so that they have ever applied for transfer of insurance policy in the name of complainant No.2 Jasmeet Kaur and even the RC in question is still in the name of original owner i.e. Navjot Kaur complainant No.1 and copy of the same is available on the file Ex.C-1. So, it is clearly established that the insurance policy was stand in the name of the original owner Navjot kaur on the day of incident of theft i.e. 04.04.2015 and even the complainant has not applied for the transfer of the same. So, under these circumstances, the above provisions as referred by the counsel for the OP i.e. Section 157 of 'Motor Vehicles Act' and GR-17 of 'Indian Motors Tariff Act 2002' or apparently applicable in this case and further in support of this observation, we like to refer a pronouncement of Hon'ble National Commission, cited in 2015(3) CPR 612, titled as “Budhi Parkash Jain Vs. Bajaj Allianz Gen. Insu Co.”, wherein his Lordship held as under:-

“Section 157(2)- Repudiation of claim, instant case, damage to car in accident, complaint dismissed by State Commission in appeal, non-fulfillment of requirement of Section 157 (2) of Motor Vehicles Act, 1988 by complainant, complainant had no insurable interest in vehicle at the time of accident, State Commission has not committed any error in allowing appeal and dismissing complaint, Revision dismissed.”

On the same point, we further like to refer an other pronouncement of Hon'ble National Commission, cited in 2016(4) CPR 151, titled as “Murlidhar Vs. National Insurance Co. Ltd. and Others”, wherein his Lordship held as under:-

“Theft of vehicle, Repudiation of claim, Validity, Vehicle was in the name of previous owner, in case of own damage policy there is no deemed transfer but a proper application has to be made by transferee within a period of 14 days from date of transfer along with consent of previous owner of vehicle, petitioner/complainant has not been able to prove that application for transfer was duly made to Insurance Company, Petitioner is not liable to get claim because policy stands in name of original owner and hence, petitioner/complainant does not have any insurable interest in the matter, impugned order passed by State Commission reflects correct appreciation of facts and circumstances on record, No illegality, irregularity or jurisdiction error found in the order passed by State Commission, No interference required, Revision petition dismissed.”

9. In the light of above detailed discussion, coupled with the aforesaid judgments of the Hon'ble National Commission, itself established that the case of the complainant having no force in the eyes of law and accordingly, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

02.05.2018 Member President