Kerala

Kottayam

CC/188/2018

Lowely Varkey - Complainant(s)

Versus

The Oriental Insurance Companu Limited - Opp.Party(s)

Anil Nambudiri

27 Apr 2023

ORDER

Consumer Disputes Redressal Forum, Kottayam
Kottayam
 
Complaint Case No. CC/188/2018
( Date of Filing : 11 Sep 2018 )
 
1. Lowely Varkey
Muriyanikal House Veloor P O kottayam
Kottayam
Kerala
...........Complainant(s)
Versus
1. The Oriental Insurance Companu Limited
The Divisional Manger The Oriental Insurance company Limited Divisional Office Jyothi Super Bazar Thodupuzha
Kerala
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. V.S. Manulal PRESIDENT
 HON'BLE MRS. Bindhu R MEMBER
 HON'BLE MR. K.M.Anto MEMBER
 
PRESENT:
 
Dated : 27 Apr 2023
Final Order / Judgement

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 27th day of April, 2023

  Present: Sri.Manulal.V.S, President

                                                                                           Smt.Bindhu.R, Member

                                                                                              Sri.K.M. Anto, Member

 

CC No. 188/2018 (Filed on 11.09.2018)

 

Complainant          :         Lovely Varkey, W/o Varkey Abraham

Muriyanickal House, Veloor P.O, Kottayam-686003

                                                (By Adv.Anil Namboothiri)

 

                                                          Vs

 

Opposite party                :         The Divisional Manager,

                                                The Oriental Insurance Company Limited

                                                Divisional Office, Jyothi Super Bazar

                                                Thodupuzha-685584

(By Adv.P.C.Chacko)  

                                                                  

                            

                                                O R D E R

 

Sri.Manulal.V.S, President

The complaint is filed under section 12 of the Consumer Protection Act 1986.   

         

The brief facts of the case are that the Complainant is the registered owner of the car bearing No. KL-26E-9721. She purchased the said vehicle from One K.Krishnakumar on 29-08-2016. At the time of purchase the said vehicle was insured with the opposite party vide Insurance Policy bearing No. 442600/31/2016/11647   for a period from 16-09-2015 to 15-09-2016. The said policy was in the name of Krishnakumar who was the prior owner of the vehicle. The said vehicle was hypothecated with HDFC bank. On 30-08-2016 the said Krishnakumar filed an application before the Adoor R.T.O. to cancel the hypothecation and to transfer the ownership in the name of the complainant along with the original R.C. book, insurance certificate etc. Complainant received the R.C. book from the Kottayam R.T.O Office on 15-11-2016. The prior owner on 29-08-2016 handed over the insurance sale letter to the opposite party.  While so on 11-09-2016 the said vehicle met with an accident at Kuttikkanam and thereby caused severe damage to the vehicle. It was submitted that the FIR was lodged in this regard and an intimation regarding accident was also given to the opposite party. The said vehicle was taken to the workshop of TVS at Kottayam and the complainant had paid Rs.2,84,500/- towards the repairing cost.  However, the claim was repudiated vide letter dated 10-04-2017 despite submission of all relevant information and documents by the complainant. Hence, the complainant had filed this complaint  being aggrieved by the act of the opposite party in repudiating the claim and had sought relief of the insured value of Rs.2,84,500/- along with interest and compensation of Rs.50,000/- and cost of Rs.25,000/-.

The opposite party appeared before the commission and resisted the complaint and denied all the allegations filing the version contending as follows:

 It was submitted that the policy was issued to the vehicle KL-26-E-9721 for the period from 16-09-2015 to 15-09-2016.  The insured of the said vehicle was K.Krishnakumar, Vadakkottucharinjathil, Thonnalloor, Pandalam P.O.   Meanwhile, the said vehicle met with an accident on 11-09-2016. During the process of the claim it is revealed that the complainant had no insurable interest with the opposite party at the date of accident. Though the vehicle was purchased by the complainant and its registration was got transferred to the name of the complainant, she did not take any step to transfer the policy to her name. She was not even cared to inform the transfer of the vehicle to her name to the opposite party till she lodged the claim. As per Indian Motor Tariff General Regulation 17, the transferee of the vehicle will get a benefit of cover under the change of name of the insured in the policy in the name of the transferee within 14 days of such transfer to avail the benefits under the policy. Since the complainant has not transferred the insurance to her name, she did not have any insurable interest or valid contract of insurance with the opposite party.

The said Krishnakumar was not the registered owner of the vehicle w.e.f. 30-08-2016. The allegation in the complaint that the complainant got the R.C. book from the R.T.Office Kottayam on 15-11-2016 is incorrect. The claim intimation, estimate and final bill were prepared in the name of the insured Krishnakumar. On the basis of the intimation by the repairer, the opposite party as the usual course of practice conducted a survey of the vehicle. On receipt of the report it was noticed that the claim form which was submitted on a later date was filled and signed by the complainant. The complainant had not informed the opposite party regarding the claim or intimated the transfer of the policy in her favour till the expiry of the policy.  Thus there is a clear violation of general regulation 17 and there is no insurable interest or valid contract with the complainant as on the date of accident. The allegation in the complaint that the complainant had spent Rs.2,84,500/- to the repairer  etc are false.

Since the claim was not maintainable, the opposite party sent a letter dated 10-03-2017 to the complainant stating that the claim is not maintainable and sought for further clarification if any from the complainant. To the said letter the complainant sent a reply letter stating untenable contentions and thus the opposite party was forced to repudiate the claim and the same was intimated to the complainant.  It was further submitted that the opposite party had rightly repudiated the claim. Hence, the opposite party prayed for dismissal of the complaint.  

 Evidence of this case consists of deposition of PW1 to PW4 and Exhibit A1 to A13 and X1 and X2 for the side of the complainant and deposition of Dw1 and exhibit B1 to B3 from the side of the opposite party.

On the basis of the contention of the rival parties we framed the following issues for consideration. 

  1. Whether the opposite parties committed any deficiency in   service as alleged?
  2.  Regarding the relief and costs?

Point number 1 and 2

There is no dispute on the fact that complainant purchased the car bearing No. KL-26-9721 from one K.Krishnakumar on 29-08-2016.  It is an admitted fact that at the time of purchase the said vehicle was insured with the opposite party vide Insurance Policy bearing No. 442600/31/ 2016/11647   for a period from 16-09-2015 to 15-09-2016. On 11-09-2016 the said vehicle met with an accident At Kuttikkanam and thereby caused severe damage to the vehicle. The claim of the complainant was rejected by the opposite party stating that the complainant did not have insurable interest or valid contract of insurance with the opposite party.

Exhibit A2 is the certificate of registration of the vehicle bearing reg.no. KL-26- E -9721. On perusal of exhibit A2 the said vehicle was originally registered in the name one. Krishnakumar K, S/o Krishnankutty Nair, Vadakkottu Charinjathil, Thonnalloor, Pandalam P.O, Adoor.   It is proved by exhibit A1 that the registration of the said vehicle was transferred in the name of the complainant with effect from 30-08-2016.  It is further proved by exhibit A6 which is the extract of General Dairy of Peerumedu Police Station   dated 11-09-2016  that the vehicle of the complainant had met with an accident on 11-09-2016 at Kuttikkanam. Exhibit A7 is the retail invoice issued by T V Sundaram Iyengar & sons Pvt Ltd to the complainant for an amount Rs.2,84,854/- towards the repair cost of the said vehicle. Complainant had paid Rs.2,84,500/- to the repairer   vide exhibit A9 .

The specific case of the complainant is that though Krishnakumar  who is the prior owner had filed an application before the  Adoor R.T.O. to cancel the hypothecation  and to transfer the ownership in the name of the complainant along with the original R.C. book,  insurance certificate etc., the complainant received the R.C. book from the Kottayam R.T.O Office only on  15-11-2016.  Thus she could not get the insurance of the vehicle transferred in her name before the date of accident.  Pw1 who is the power of attorney holder of the complainant deposed before the commission that she did not apply to transfer the insurance policy in her name or not paid the fees for the same. He categorically deposed before the commission that the development officer of the opposite party informed him that without transferring the registration certificate she couldn't transfer the insurance policy in her name. PW4 who is the additional registering authority of Adoor R.T.O Office, during chief examination denied that the prior owner of the vehicle 0n 30-08-2016 applied for the transfer of ownership of the vehicle in the name of the complainant.   He categorically deposed that any application with respect to the ownership of the subject vehicle had not been received in his office. PW3 who is the Additional Registering Authority of R.T.O office Kottayam deposed that Exhibit A4 is the Chelan issued for the remittance of fee for transferring the ownership in registration certificate. According to him the new owner had applied for transferring the ownership in her name only on 11-11-2016. X2 is the print out taken from the website regarding details of change of ownership from other offices. On perusal of X2 we can see that the date of application was 11-11-2016 and the registration certificate is issued on 14-11-2016. Thus evidence of record curtails the root of the case of the complainant that the prior owner of the vehicle had applied for the transfer of the ownership.

It was contended by the Insurance Company that as on the date when the accident occurred, the vehicle stood transferred to the complainant, whereas the policy was issued in the name of the previous owner of the said vehicle. It is contended that, by virtue of the stipulations contained in Section 157(2) of the Motor Vehicles Act, 1988, the transferee/complainant had an obligation to intimate the Insurance Company as to the said transfer within a period of 14 days from the date of such transfer. In this case, no such intimation has been given by the complainant and, therefore, no liability can be fastened upon the opposite party, since there is violation of statutory stipulations.

Hon’ble Supreme Court in Complete Insulation (P) Ltd.  Vs. New India Assurance Co. Ltd., 1996 AIR 586”, the claim qua own damage suffered by the complainant was similarly held to be not covered, although the Apex Court held that the indemnifying Clause qua 3rd party risk to indemnify was enforceable.  On perusal of the following observations of the Apex Court -

“The moot question involved in the case is whether on the above facts, without the insurance policy being transferred in the name of the appellant, it was entitled to be indemnified by the insurer.  The National Consumer Disputes Redressal Commission held that under Section 157 of the Motor Vehicles Act, 1988, (hereinafter called ‘the New Act’) a certificate of insurance is deemed to have been transferred in favour of the person to whom the vehicle is transferred but that the said provision applied only in relation to third party risk and did not apply to a policy covering risk of damage to the vehicle or person of the insured.  The National Commission placed reliance on a judgment of the High Court of Andhra Pradesh in Madinani Kondaiah and Ors. etc. v. Yaseen Fatima and Ors. etc. MANU/AP/0221/1985: AIR 1986 AP 62.”

Thereafter, the Apex Court held inter alia –

 “10. Section 157 appears in Chapter XI entitled ’Insurance of Motor Vehicles against Third Party Risks’ and comprises sections 145 to 164. Section 145 defines certain expressions used in the various provisions of that chapter. The expression ’Certificate of Insurance’ means a certificate issued by the authorised insurer under section 147(3). ’Policy of Insurance’ includes a certificate of insurance. Section 146(1) posits that ‘no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of this chapter’ of course this provision does not apply to vehicles owned by the Central or State Government and used for Government purposes not connected with any commercial enterprise. This provision corresponds to section 94 of the Old Act. Section 147 provides that the policy of insurance to be issued by the authorised insurer must insure the specified person or classes of persons against any liability incurred in respect of death of or bodily injury to any person or damage to any property of a third party as well as against the death of or bodily injury caused to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place. This provision is akin to section 95 of the Old Act. It will be seen that the liability extends to damage to any property of a third party and not damage to the property of the owner of the vehicle, i.e. the insured. Sub-section (2) stipulates the extent of liability and in the case of property of a third party the limit of liability is rupees six thousand only. The proviso to that sub-section continues the liability fixed under the policy for four months or till the date of its actual expiry, whichever is earlier. Sub-section (3) next provides that the policy of insurance shall be of no effect unless and until the insurer has issued a certificate of insurance in the prescribed form. The next important provision which we may notice of is Section 156 which sets out the effect of the certificate of insurance. It says that when the insurer issues the certificate of insurance, then even if the policy of insurance has not as yet been issued, the insurer shall, as between himself and any other person except the insured, be deemed to have issued to the insured a policy of insurance conforming in all respects with the description and particulars stated in the certificate. It is obvious on a plain reading of this provision that the legislature was anxious to protect third party interest. Then comes Section 157 which we have extracted earlier. This provision lays down that when the owner of the vehicle in relation where to a certificate of insurance is issued transfers to another person the ownership of the motor vehicle, the certificate of insurance together with the policy described therein shall be deemed to have been transferred in favour of the new owner of the vehicle with effect from the date of transfer. Sub-section (2) requires the transferee to apply within fourteen days from the date of transfer to the insurer for making necessary changes in the certificate of insurance and the policy described therein in his favour. These are the relevant provisions of Chapter XI which have a bearing on the question of insurer’s liability in the present case.

11. There can be no doubt that the said chapter provides for compulsory insurance of vehicles to cover third party risks. Section 146 forbids the use of a vehicle in a public place unless there is in force in relation to the use of that vehicle a policy of insurance complying with the requirements of that chapter. Any breach of this provision may attract penal action. In the case of property, the coverage extends to property of a third party i.e. a person other than the insured. This is clear from Section 147(1)(b) (i) which clearly refers to ’damage to any property of a third party’ and not damage to the property of the ’insured’ himself. And the limit of liability fixed for damage to property of a third party is rupees six thousand only as pointed out earlier. That is why even the claims Tribunal constituted under Section 165 is invested with jurisdiction to adjudicate upon claims for compensation in respect of accidents involving death of or bodily injury to persons arising out of the use of motor vehicles, or damage to any property of a third party so arising, or both. Here also it is restricted to damage to third party property and not the property of the insured.

            Thus, the entire chapter XI of the New Act concerns third party risks only. It is, therefore, obvious that insurance is compulsory only in respect of third party risks since Section 146 prohibits the use of a motor vehicle in a public place unless there is in relation thereto a policy of insurance complying with the requirements of Chapter XI. Thus, the requirements of that chapter are in relation to third party risks only and hence the fiction  of Section  157 of  the New Act must be limited thereto. The certificate of insurance to be issued in the prescribed form (See Form 51 prescribed under Rule 141 of the Central Motor Vehicles Rules, 1989) must, therefore, relate to third party risks. Since the provisions under the New Act and the Old Act in this behalf are substantially the same in relation to liability in regard to third parties, the National Consumer Disputes Redressal Commission was right in the view it took based on the decision in Kondaih’s case because the transferee-insured could not be said to be a third party qua the vehicle in question. It is only in respect of third party risks that Section 157 of the New Act provides that the certificate of insurance together with the policy of insurance described therein "shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred". If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself, that would be a matter falling outside Chapter XI of the New Act and in the realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle. The view taken by the National Commission is therefore correct.

This Commission is, of the view that on the existing position of law in this regard, claim   of the complainant is not tenable. This is so because it has to be noted that breach of Policy conditions which in the present case happen to be failure to get the Policy transferred in the name of the complainant within the time prescribed, ipso facto disentitles him from claiming the compensation, as there was no privity of contract between him and the Insurance Company.

This Commission, therefore, is of the opinion that the complainant failed to establish any deficiency in service on the part of the opposite party and the complaint is to be dismissed. In the result the complaint is dismissed.

Pronounced in the Open Commission on this the 27th day of April, 2023.

Sri.Manulal.V.S, President   sd/-

Smt.Bindhu.R, Member          sd/-

Sri. K.M. Anto, Member         sd/-

Appendix

Exhibits marked from the side of complainant.

A1-    Copy of the R.C.book of complainant.

A2-    Copy of the R.C.book of Krishnakumar K.

A3-    Insurance Sale Letter to Insurance Officer, The Oriental Insurance Co.Ltd dated 29.08.2016.

A4-    Transfer of ownership within state (KL-26-E-9721) issued by RTO, Kottayam, dated 30.08.2016.

A5-    Motor Insurance Certificate Cum Policy Schedule issued by the Oriental Insurance Company Limited.

A6-    Copy of certificate issued by Sub Inspector of Police Peerumedu

A7-    Retail invoice of T.V.Sundram Iyengar & Sons Private Limited.

A8-    Copy of the Vehicle condition report form/ job record dated 11.09.2016 issued by S & S Crane Service & Roadside Assistance.

A9-    Cash voucher dated 12.15.2016.

A10-  Registered notice from the Oriental Insurance Company Limited, dated 10.03.2017.

A11-  Copy of the letter to the Divisional Manager, Oriental Insurance Company Ltd, dated 21.03.2017.

A12-  Registered letter dated 10.04.2017 from the Oriental Insurance Company Limited.

A13-  Original power of attorney dated 25.11.2020

 

Court Exhibits

X1-    Email dated 27.02.2021

X2- Print out from the website regarding details of Change of ownership (Reg.no. KL-26E-9721) dated 26.02.2021.

Sworn statement from the side of complainant

PW1- Varkey Abraham, S/o M.P.Abraham, Murianickal House, Veloor P.O

PW2- Deepu D, P Divakaran Nair, Motor Vehicles Inspector, Sub RT Office, Adoor

PW3- D.Jayaram, S/o Dasappan Nair, Joint RTO , Kottayam

PW4- N.C.Ajithkumar, Joint R.T.O, Sub R.T Office, Adoor.

 

Exhibits marked from the side of opposite party

B1 & B1 (a) – Motor Insurance Certificate cum policy schedule –issued by the Oriental Insurance Company Limited.

B2-    Copy of R.C Book

B3-    Registered notice dated 10.04.2017 issued by the Oriental Insurance Company Limited.

 

Sworn statement from the side of opposite party 

DW1- Nina George, D/o P George Thomas, Mangalathil House, Athirampuzha P.O, Kottayam.

 

 

By order

 

                                                                                       Sd/-

 Assistant Registrar

 
 
[HON'BLE MR. V.S. Manulal]
PRESIDENT
 
 
[HON'BLE MRS. Bindhu R]
MEMBER
 
 
[HON'BLE MR. K.M.Anto]
MEMBER
 

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