Haryana

Ambala

CC/259/2020

Chetan Malik - Complainant(s)

Versus

The Oriental Insurance Co Ltd - Opp.Party(s)

Balkishan Verma

01 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	259 of 2020
Date of Institution	:	04.11.2020
Date of decision	:	01.03.2023

 

Chetan Malik S/o Sh. Subhash Chander, aged 30 years R/o Village- Udhowal Kalan, Tehsil & Sub-Division- Samrala, District- Ludhiana (Punjab) (UID-6150-7731-5730).

          ……. Complainant.

                                                Versus

The Oriental Insurance Co. Ltd. through its Branch i.e. Regional Office, through its Regional Manager, 2nd Floor, Jeevan Jyoti Building, Jagadhri Road, Ambala Cantt-133001

 ….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Anmol Verma, Advocate, counsel for the complainant.

                             Shri Rajeev Sachdeva, Advocate, counsel for the OP.                       

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To release the claim of Total Loss Vehicle amounting to Rs.6,66,350/- which has been assessed by their-own appointed surveyor- M/s Ametek Surveyor Loss Assessors.
2. To pay Rs.20,000/- as damages for deficiency in service as well as Rs.25,000/- for the cost of litigation as well as counsel fee also.

                             Or

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the vehicle in question was initially purchased by one Sh. Thakur Singh S/o Sh. Harnek Singh, R/o H.No.2063/5, Lehal Colony, Patiala, District- Patiala-147001. On 23.09.2019 the previous owner- Mr. Thakur Singh had requested for endorsement regarding the change of registration number No.PB-11CM- 0072 with new Number- PB-11-CS-6198 (Patiala) and the same had been updated vide endorsement No.OICE242596/31/2020/TMP/5386/01 dated 23.09.2019. The said vehicle was purchased by the complainant from previous owner and RC of the said vehicle was transferred in his name in the month of Dec 2019. The complainant has already orally informed the above fact to the OP vide e-mail dated 17.01.2020 alongwith all requisite documents i.e. New RC with the request for endorsement for change of ownership officially in the record of the above valid policy No.242596/31/2020/TMP/5386 of Vehicle No.PB-11-CS-6198, Engine No.101A2000-0710775, Chassis No.MAT624201HPJ24782 which has been duly received in the office of the OP. NOC dated 17.09.2019 was issued from Regional Transport Authority, Patiala in favor of RTA, Samrala, Ludhiana(PB) but at that time the RTA in Samrala did not start its working & registration work of RC was not started in Samrala. The file to transfer the ownership was submitted in O/o RTA, Ludhiana and new RC, after transfer of ownership in the official record, in the name of the present complainant-Owner, was received on 31 Dec 2019 from the O/o SDM cum RTA, Samrala, District- Ludhiana (Punjab) even- though the file was submitted in the month of September 2019 for transfer of ownership in RTA record. After transfer of ownership in the record of the RTA Samrala, the complainant became registered owner of the above said vehicle, only in the month of December 2019. The said vehicle met with an accident on 09.01.2020 when it was driven by the driver (employee) with valid Driving License, while going to Delhi, due to sudden arrival of Cow in- front of the vehicle in a running condition, as a result of which, the vehicle turned turtle. The driver suffered injuries in this accident. After receiving the information of accident, the OP appointed surveyor who carried out the physical inspection of damaged vehicle and assessed loss of Rs.6,66,350/- (which is a Total Loss of vehicle) parked in the Garage of M/s Gupta Motors, Ambala Cantt. The complainant could not contact the Garage due to injuries caused to the Driver and as such, he remained busy in his treatment in the hospital. However, receiving the intimation regarding the estimate of loss, the OP sent letter dated 03.06.2020, Annexure R-3 to the previous Owner- Sh. Thakur Singh S/o Sh. Hamnek Singh, in place of sending letter to the complainant-Chetan Malik (Registered Owner of the Vehicle) who is having insurable interest in the vehicle.  The  complainant served legal notice dated 22.06.2020 upon the OP in the matter. On 30.07.2020 the OP sent a letter of repudiation of claim again to the previous owner despite having knowledge about the change of Ownership in Registration Certificate.  The repudiation of the claim was illegal and arbitrary. Hence this complaint.
3.           Upon notice, the OP appeared and filed written version and raised preliminary objections with regard to maintainability, jurisdiction, cause of action, not come with clean hands and suppressed the true and material facts etc. On merits, while admitting the factual matrix of the case with regard to issuance of insurance policy in respect of the vehicle in question; purchase of vehicle by the complainant from previous owner and that accident took place during subsistence of insurance policy in question;- it has been stated that as per terms and conditions of the policy in question, "In case of package policies, transfer of own damage section of the policy in favour of the transferee, shall be made by the Insurer only on receipt of a specific request from the transferee along with the consent of the transferor". The same has to be made within 14 days of such purchase but in the present case, it was not made by the complainant within the specified time limit to the Insurance Company. The complainant has concealed the true and material facts that the agreement for the sale of the above said vehicle between complainant and previous owner Mr. Thakur Singh S/o Mr. Harnek Singh was executed in September 2019 which is ascertainable from the fact that the NOC Regarding the above said vehicle was obtained from RTA, Patiala on 17-9-2019. A requisition was not made by the transferee and the transferor to the Insurance Company as required by the law. Intimation of the claim was given to the Insurance Company on 11.02.2020 i.e. after delay of 33 days and DDR no.20 was lodged on 12.01.2020 i.e. after delay of 4 days after the occurrence of the accident on 09.01.2020, which is blatant violation of terms and conditions of the policy and also of law. On the date of the occurrence of accident, RC stood in the name of complainant whereas the insurance policy stood in the name of Sh. Thakur Singh, thus the complainant is not having any insurable interest at the time of accident. As per survey report, the surveyor assessed the repair cost Rs.5,22,017.24 as total amount after salvage with the highlight remarks that "The vehicle is registered in the name of Sh. Chetan Malik S/O Sh. Harnek Singh R/O 2063/5, Lehar Colony, Patiala. Therefore, the claim is not payable as per the terms and conditions of policy of Insurance. The R.C. has been transferred in the name of Sh. Chetan Malik. S/O Sh. Subhash Chander whereas the insurance has not been got transferred". Rest of the averments of the complainant were denied by the OP and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure CA/1, C-1 to C-12 and closed the evidence on behalf of the complainant. Learned counsel for the OP tendered affidavit of Ramesh Kumar, Manager TP HUB/Authorized Signatory for The Oriental Insurance Company, LIC Building, Ambala Cantt. and Vikas Kohli, director of Ametek Insurance Surveyors & Loss Assessors (P) Ltd. H.O Suite No.415, 4^th Floor, SCO 144-145, Sector 34-A, Chandigarh and B.O.SCO 22, Ist Floor, Amba Complex, Staff Road, Ambala Cantt. as Annexure OP-A and OP-B respectively alongwith documents Annexure R-1 to R-11 and closed the evidence on behalf of OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by repudiating the claim on bald ground  to the effect that the insurance cover was not got  transferred alongwith the registration of the vehicle in question, whereas, on the other hand, as per the provisions of Motor Vehicles Act, the  insurance deems to be transferred once the registration of the vehicle has been got done by the new/fresh purchaser of the vehicle,  the  OP is deficient in providing service, negligent and  adopted unfair trade practice, thereby causing huge financial loss and mental agony and harassment to the complainant.  
7.           On the other hand, learned counsel for the OP submitted that since it was mandatory on the part of the complainant to intimate the OP regarding purchase of the vehicle in question and also its registration thereof, within a period of 14 days therefrom, so that the insurance policy is also transferred ,which the complainant failed to do so, as such, his claim was rightly repudiated by the OPs as he was not having any insurable interest in the said vehicle, at the time of accident. In support of his contention the learned counsel for the OP has placed reliance on the judgment dated 27.10.2017, passed by the Hon’ble National Commission, in the case of Randhir Jain Vs. Oriental Insurance Company Limited.     
8.           It may be stated here that the facts with regard to purchase of the vehicle in question by the complainant from Sh.Thakur Singh; getting registration of the said vehicle by the complainant in his name; occurrence of accident of the said vehicle on 09.01.2020 during subsistence of the insurance policy in question i.e. 25.01.2019 to 24.01.2022; the report made by the surveyor vide letter dated 15.05.2020, Annexure R-11 to the effect that the loss of the vehicle in the said accident is attributed to the circumstances and the damages are consistent with the report cause of loss, which were found to be fresh; and repudiation of claim of the complainant vide letter dated 30.07.2020, Annexure R-8 by the OP on the ground that since it was mandatory on the part of the complainant to intimate regarding purchase of the vehicle in question and also its registration thereof, within a period of 14 days therefrom, which the complainant failed to do so, are not in dispute.

As such, under above circumstances, the only moot question which falls for consideration is, as to whether, the claim of the complainant was rightly repudiated by the OP or not. It may be stated here that a very similar question fell for determination before the Hon’ble Supreme Court inSurendra Kumar Bhilawe vs The New India Assurance Company, Civil Appeal No. 2632 of 2020 decided on 18 June, 2020, wherein it was held that since as per Section 157 of the Motor Vehicles Act where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate are to be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer. It was further held in this case that in case of accident of registered vehicle under such a situation, the insurance company cannot repudiate the claim of the registered owner. Relevant part of the said order is reproduced hereunder:-

“……….3. The National Commission also failed to appreciate that Section 157 of the Motor Vehicles Act provides that where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate are to be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer.

The explanation to Section 157 clarifies, for the removal of all doubts, that such deemed transfer would include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. The transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. There could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle.

The policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. The Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident.….”

9.           Similar view had also been taken by the Hon’ble Supreme Court in Mallamma (D) By Lrs vs National Insurance Co. Ltd. & Ors, CIVIL APPEAL No. 1391 OF 2009, decided on on 7 April, 2014 wherein also it was held that once as per the provisions of Section 157 of the M.V. Act, transfer of ownership of the vehicle is proved to have been transferred in favour of the new owner/purchaser, the existing insurance policy in respect of the same vehicle will also be deemed to have been transferred to the new owner and the policy will not lapse even if the intimation as required under Section 103 of the M.V. Act is not given to the insurer.  In view of above settled law by the Hon’ble Supreme Court in  Surendra Kumar Bhilawe  and Mallamma (D) By Lrs cases (supra),  it can easily be said that repudiation of the claim of the complainant by the OPs on the  ground that since the insurance company was not informed about the said registration of vehicle as such the complainant has no insurable interest therein, was illegal and arbitrary. Accordingly, the repudiation letter dated 30.07.2020, Annexure R-8 stands quashed
10.           It is evident from the surveyor report dated 15.05.2020, Annexure R-11 that the vehicle in question has suffered total loss in the said accident, as its repair cost comes at Rs.5,32,017/- i.e. beyond 75% of the IDV (Rs.611361/-). Under these circumstances, it is held that since the vehicle has been declared total loss by the surveyor, as such, the complainant is entitled to get an amount of Rs.6,10,361/- as assessed by the surveyor as on Total Loss Basis. However, the complainant shall handover the wreckage of the vehicle, if retained by him, to the OP.  Since, the genuine claim of the complainant was repudiated by the OP, thereby causing mental agony, harassment and financial loss to the complainant, as such, he needs to be compensated suitably in that regard.
11.           As far as the reliance placed by the learned counsel for the OP on the case of Randhir Jain Vs. Oriental Insurance Company Limited (Supra). It may be stated here that any finding given by the Hon’ble National Commission contrary to the law laid down by the Hon’ble Supreme Court of India in the above referred cases shall not hold the field. As such, the reliance placed by the learned counsel for the OP, on the case of Randhir Jain Vs. Oriental Insurance Company Limited (Supra) is misplaced.
12.           As far as the plea taken by Counsel for the OP in its written version that the claim of the complainant was also not payable because there was delay of 33 days in intimation regarding the said accident to the OP and delay of 4 days in lodging the DDR, it may be stated here that without touching these grounds on merits, it is significant to mention here that because these grounds are not the part of the repudiation letter, as such, the OP is restrained to raise the same in this complaint. Our this view fully finds support from the ratio of law laid down by the Hon’ble Supreme Court of India in Galada Power and Telecommunication Ltd. vs. United India Insurance Company Ltd & Another. 1 (2016) 14 SCC 161, wherein it was held that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation and this view was reiterated by the Hon’ble Supreme Court in Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd ,Civil Appeal no. 2059 of 2015, decided on December 13, 2019. Therefore, there is no force in this plea taken by the OP.
13.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-

1. To pay the claim amount of Rs.6,10,361/-  as assessed by the surveyor, to the  complainant, alongwith interest @4%p.a. from the date of repudiation of claim i.e. from  30.07.2020 onwards.
2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

The OP is further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OP shall pay interest @6% per annum on the awarded amount, for the period of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.File be annexed and consigned to the record room.

Announced:- 01.03.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President