Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 23/17.02.2022
Ms. Poonam Narang w/o Sh. Sanjeev Kumar Narang
R/o H. No. 825, Gali No. 16, Joshi Road, Karol Bagh,
New Delhi-110005 …Complainant
Versus
Oriental Insurance Company Limited
Regd. Office at Oriental House, P.B. No. 7037,
A-25/25, Asaf Ali Road, New Delhi-110002 ...Opposite Party
Date of filing: 17.02.2022
Date of Order: 01.12.2023
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant has grievances of deficiency of service against the OP, since complainant’s brother Sh. Vikas Anand (since deceased, died on 04.02.2016) owned vehicle bearing registration no. HR-26CL-1008 Scorpio (hereinafter referred as ‘the vehicle’) and it was insured with the OP. Its insurance cover was renewed by the complainant from OP in the name of Vikas Anand w.e.f. 29.11.2017 to 28.11.2018 for sum insured/IDVRs. 7,50,000/- against payment of premium [after death of Vikash but before receipt of succession certificate]. The vehicle was stolen on 13.05.2018 during tenure of renewed policy. When the claim was lodged with the OP, the OP failed to reimburse the claim despite furnishing requisite documents inclusive of succession certificate issued by the competent civil court and also directions by insurance Ombudsman to settle the claim.
1.2. Whereas, the OP opposed the claim that there is no deficiency of services, since the complainant failed to inform the OP as per terms and conditions of policy within three months from the death of Vikas Anand for appropriate endorsement or new policy and in terms of clause 3.6 of those terms, the complainant is not entitled for any relief. The decision of Insurance Ombudsman was erroneous.
2.1. (Case of complainant) – Complainant Poonam Narang is sister of Vikas Anand. Their parents have already expired. Complainant’s brother Vikas Anand had purchased Scorpio/vehicle on 09.12.2014, however, Vikas Anand died intestate on 04.02.2016. The complainant has been in possession & use of the vehicle after his demise. The complainant got renewed insurance policy of the vehicle in the name of Vikas Anand vide policy no. 131300/31/2018/22111 w.e.f. 29.11.2017 to 28.11.2018.
2.2. On 22.03.2016 (after the death of Vikas on 04.02.2016), the complainant filed case for succession certificate u/s 372 of India Succession Act 1925 before the Court of Civil Judge, Gurgaon, vide petition no. 27/2016, it was allowed on 27.03.2018 and the succession certificate was issued to the complainant on 29.05.2018, whereby she became legal heir of deceased Vikas. However, during the pending of this petition, the vehicle was stolen from Shalimar Bagh as per information received from her son on 14.05.2018 and an FIR no. 0161088/2018 was registered in P.S. Shalimar Bagh about theft of the vehicle. The complainant filed motor claim for theft of the vehicle against policy no. 131300/31/2018/22111. On 16.09.2019, the complainant received a registered letter of OP advising that claim is not payable and two weeks' time was given to make representation as the claim was to be repudiated under clause 3.6 of the policy, stating “the policy has to be transferred in the name of legal heirs within a period of three months from the date of death of the insured” which has not been complied with. The OP was apprised that Vikas Anand had died intestate all of sudden and for want of nomination anyone (including complainant) could become his legal heir, the complainant had filed case for succession certificate which took almost two years and certified copy of the judgment was received on 02.04.2018. The complainant had stated all these facts and features to the OP in letter dated 27.09.2019. But despite it, the claim was repudiated by the complainant by letter dated 16.10.2019.
The complainant approached grievances cell of OP against repudiation letter dated 16.10.2019, it was not considered and the same was rejected for which e-mail letter dated 17.07.2020 was received. The complainant further pursued the matter with IRDAI by email, it was referred to SDC for resolution and complainant was advised to approach Ombudsman for future course of action. On 30.09.2020, a complaint was filed before the Insurance Ombudsman, Delhi with complete detail. On 22.02.2021, the Insurance Ombudsman, Delhi passed an award with direction to settle the claim in favour of complainant within 30 days.
2.3. On 21.06.2021, the OP had sought documents from the complainant again, despite all documents were already furnished. The complainant was asked for further documents, the same was also furnished as advised by OP. The complainant has been pursuing the matter either by correspondence or by email or otherwise but the claim was not settled, therefore, on 23.01.2022 the complainant asked the OP to settle the claim within seven days from receipt of the email but OP is not ready to process the claim of complainant, despite directions by Ld. Ombudsman. It seems the OP is not ready to give the claim amount as per policy, she is suffered financial losses of Rs. 7,50,000/- and had she received the amount, it would have been utilized or invested in the business and she would earn Rs. 5,00,000/- or more. That is why the complaint for insurance amount of Rs. 7,50,000/- with interest at the rate of 18% from 23.05.2018 till realization of amount and compensation of Rs. 2,00,000/- on account of mental agony, physical hassle and stress due to OP, besides other appropriate relief.
2.4. The complaint is accompanied with copies of - identify proof of complainant, RC of vehicle, death certificate of Vikas Anand, insurance policy, judgment dated 27.03.2018, surviving member certificate, copy of FIR, OP's letters dated 16.09.2019, 16.10.2019, emails, order of Insurance Ombudsman, OP's letter dated 21.06.2021, its compliances by letter dated 30.07.2021 by complainant with documents, photograph of key, crossed-cheque, letter to RTO Haryana, form no. 28,29 & 30, other letters, letter of undertaking , indemnity bond, letter of subrogation, email from 30.08.2021 onward 23.01.2022.
3.1 (Case of OP) - The OP opposed the complaint that there is no deficiency of services on the part of OP. The complaint is abused of process of law and in fact it has been filed for harassing and pressuring the OP. The complaint is without merits and it is based on misleading and misrepresentation of facts. The complainant is not a consumer as she has no insurable interest in the insurance policy.
3.2 As per complainant’s own case her brother Vikas had expired on 04.02.2016, which is much before theft on or around 14.05.2018. The complainant did not take any step to have insurance policy transferred in the name of legal heir as per the terms of policy. However, leaving aside this aspect, the complainant did not inform the insurance company about the death of policy holder vis-à-vis she dishonestly got the insurance policy renewed in favour of Vikas Anand for a period w.e.f. 29.11.2017 to 28.11.2018, when Vikas had already expired on 04.02.2016, which is more than one and half year ago. This is a gross misrepresentation and concealment of facts besides a clear breach of terms of the policy.
The insurance contract involves utmost goodwill and entails full and frank disclosure of all material facts to the insurer, it was not done in the present case. The insurance policy is subject to conditions, clauses, warranties, exclusions, IMTs and OIC endorsement mentioned, which are available on the website of the company or it may be demanded from the policy issuing office. The title of the policy is 'Private car package Policy', which is also available on the website and also filed with the reply.
3.3 The date of alleged theft is 14.05.2018 and the judicial proceeding of succession certificate had attained finality on 27.03.2018, therefore, the complainant has wrongly narrated that theft took place during the pending of those judicial proceedings. Moreover, it is wrongly claimed by wrong statement in the FIR about the ownership of the vehicle. Further, the subject matter of theft was vehicle, whether theft had actually taken place, since there is no final report/charge-sheet by the police. The clause no. 3.6 of the policy stipulates in that the event of death of the insured, the name of legal heir may be applied within three months from the date of death or to get new insurance policy, since, Vikas Anand had expired on 04.02.2016 and there was period of three months, which ends on 04.05.2016, in which period any legal heir contestant for claim of insurance policy in the name of themselves should have at-least intimated to the insurance company, however, the complainant failed to do it. Section 157 of Motor Vehicle Act 1988 and General Regulation no. 17 of India Motor Tariff also prescribes period of 14 days to inform for transfer of certificate of insurance by the transferee, the OP failed to do so. The complainant had ample time to inform the OP about death of her brother and had it been so done, the OP would have apprised the complainant for the procedure for change in policy or change of name of policy holder etc.
3.4 The OP also denies other allegations of the complaint that the claim was rightly repudiated in terms of provisions of law and conditions of the policy. The complainant had approached the office of Ld. Ombudsman, however, the decision of Insurance Ombudsman was erroneous. The complainant had no insurable interest in the subject vehicle, therefore, the claim was rightly repudiated and there is no merit in the complaint. 3.5 The reply is accompanied with copies - of policy schedule, letters, terms and conditions of policy, letter dated 16.10.2019 and power of attorney in favour of Sh. Kewal Singh Bodh, Regional Manager, who authored the reply.
4. (Replication of complainant) --The complainant filed replication, she denies all allegations of the written statement that neither the FIR was lodged on wrong statement nor there was any concealment of fact but complainant has narrated all the facts and features, duly supported by documentary record, on the basis of factual matrix. Her claim and complaint are bona-fide. The complainant was constraint to have authenticity of being legal heir by virtue of succession certificate and then material was presented. There was no mala-fide in renewal of the insurance policy but because of circumstances narrated. This is the pitch and substance of replication.
5. (Evidence of parties) - Complainant led her evidence by filing her detailed affidavit fortified with documents of complaint. On the other side, OP led evidence by filing affidavit of Sh. Kewal Singh Bodh,, the affidavit is on the lines of reply, coupled with documents filed with the reply.
6.1 (Final hearing) - The complainant and the OP have filed their written arguments, the same are replica of their cases. The parties were also given opportunity to make oral submissions, Sh. Kuldeep Gola, Advocate for complainant and Sh. Anupam Kishor Sinha, Advocate for OP presented their oral submissions. However, the respective contentions are not being repeated here, since they will be considered, while adjudicating the issues.
6.2 Further, earlier complainant had filed copy of judgment in the case for succession certificate and today colour photocopy of succession certificate has also been filed on behalf of complainant.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the material on record, statutory provisions of law and other circumstances inclusive of terms and conditions of policy referred.
7.2 On assessment of the pleadings and evidence of the parties, inclusive of documentary record, there are certain undisputed facts that the vehicle was insured in the name of complainant’s brother Sh. Vikas Anand, who died intestate on 04.02.2016. After his death, the complainant got renewed policy w.e.f. 29.11.2017 to 28.11.2018 vide policy no. 131300/31/2018/22111 that too in the name of Vikash Anand. There is no reference of previous policy number or its tenure by the parties, however, since the latest policy was renewed, it means the previous policy would have been from 29.11.2016 to 28.11.2017. The complainant has filed and proved copy of judgment dated 27.03.2018 passed in petition no. 27/22.03.2016 u/s 372 of Indian Succession Act by the competent City Civil Court. Today, photocopy of succession certificate has also been filed on behalf of complainant. To say, that the complainant is successor of the deceased and his assets, securities, etc. With this preliminary introduction, now the other disputed issues are taken one by one.
7.3. The first objection by OP and it is in respect of contents of FIR that complainant’s son had given wrong statement to the policy that vehicle belongs to him. Whereas, according to complainant, there was nothing as alleged by the OP. On the eve of theft of the vehicle, a general narration was given that the vehicle left by deceased has been stolen and FIR was lodged by the son of complainant.
7.3A. The copy FIR is on the record (Exh. CW1/7) and it clearly depicts in para-7 that the vehicle is registered in the name of Sh. Vikas Anand and in para-12 material detail was given by the complainant’s son that his vehicle has been stolen. (the contents have been narrated in ‘first person’ by using expression “I” and “my”; but nowhere in those expression, registered ownership of author was mentioned in FIR). This contention of OP carries no merit.
7.4. The OP has been mentioning clause no. 3.6 of policy throughout in the reply, however, the documentary record filed [inclusive of terms and conditions of the policy under Private Car Package Policy], by OP, no such clause 3.6 (in respect of death of sole insured) is mentioned . In the reply, the OP advices that private car package policy available on the website of OP.
However, the complainant has reservation that the circumstances are to be viewed from the point of obtaining of succession certificate, which was made available after judgment dated 27.03.2018 and the certificate was issued subsequently on 29.05.2018. The succession certificate authenticates the complainant as legal heir to succeed and secure assets of the deceased.
7.4A. As already mentioned, there is no such clause 3.6 in the policy document (Exh. RW1/2) filed by the OP. As per settled law, the OP/Insured is under legal and contractual obligation to provide terms and conditions of the policy. The complainant had filed insurance policy cover issued in three pages. However, in the policy filed by the OP, there is a clause no. 9, in respect of situation to death of sole insured , which is alike clause 3.6 referred in the reply.
7.5. According to OP, the things attained finality on 27.03.2018 when petition u/s 372 was disposed off and consequently the complainant failed to act upon it and the event of theft took place on 13.05.2018 subsequent to judgment dated 27.03.2018. But on the other side, the complainant has reservation that the judgment was passed on 27.03.2018 but its copy was made available subsequently and certificate was issued on 29.05.2018, therefore, the event of theft took place during the pending of petition for succession certificate.
7.5A Under the Indian Succession Act 1925, there are various aspects on succession like probate of Will, Letters of Administration and succession certificate, being dealt under appropriate chapters of the Act 1925. By these judgments, rights are determined by way of judgment and then certain compliances are to be done by petitioners.
Similarly, it is also mentioned in the judgment dated 27.03.2018 for certain compliances. Therefore, the reasons of OP are misplaced that the finality attained on 27.03.2018, as the subsequent compliances were done after judgment dated 27.03.2018. This contention is disposed off against OP.
7.6. The complainant has contentions that there were finding by Ombudsman, Delhi that OP should consider to settle the claim in favour of complainant within 30 days by cognizance of fact that complainant was provided copy of judgment on 21.04.2018, the vehicle was stolen on 13.05.2018 and complainant had submitted the intimation to the insurer on 23.05.2018, the period of three month required for change of ownership under the insurance policy should be counted from the date of succession certificate which was made available by the competent court.
Whereas, the OP has reservation and the OP opposes the contentions on the ground that decision of Ombudsman, Delhi is erroneous as the material was not appreciated in right prospective. The legal heir in possession of the vehicle had to apply for change of name in the insurance policy or for new insurance policy within three months from the date of death, it was not done. Therefore, the complainant cannot derive any benefit from the succession certificate.
7.6A In order to appreciate this contention of the parties, it is relevant to reproduce the policy clause no.9 , dealing with the component of death of the insured which reads as " in the event of death of the sole insured, this policy will not be immediately lapse but will remain valid for the period of three months from the date of death of insured or until the expiry of this policy (whichever is earlier). During the said period, legal heir(s) of the insured to whom the custody and use of motor vehicle passes, may apply to have this policy transferred to the name(s) of the heir(s) or obtain a new insurance policy for the motor vehicle Where such legal heir(s) desire(s) to apply for a transfer of this policy or obtain a new policy for the vehicle such heir(s) should make an application to the company accordingly within the aforesaid period. All such application should be accompanied by - (a) death certificate in respect of deceased, (b) proof of title of vehicle and (c) original policy” .
Moreover, there is another provision in section 50(2) [of transfer of ownership] under the Motor Vehicle Act, 1988 when registered owner dies and person succeeding in possession may apply for transfer of ownership of vehicle. In addition, there is a notification no. G.S.R. 275(E) dated 08.04.2021 issued by Ministry of Road Transport and Highways and its rule no. 56 (transfer of ownership on death of the owner of the vehicle) of Central Motors Vehicle Rule 1989 were amended, while providing that the nominee of deceased or the legal heir of the deceased owner succeeding with the possession in use of the vehicle may, within three months from the death of the deceased, apply to the registering authority for transfer of the certificate in the name of such nominee or legal heir by furnishing appropriate form to this effect. In the eventuality of want of nomination and a succession certificate under the Indian Succession Act 1925 is not produced within three months by the legal heir then the registering authority may register the vehicle in the name of legal heir appearing to be entitled to get the vehicle registered in its name.
7.6B. By taking into account these provisions of law & rules in respect of transfer of ownership and also scheme of insurance policy, there is fiction that immediately after death of registered owner, the person in possession in use of vehicle [being heir of the deceased registered owner] may for the period of three months be treated as if vehicle is transferred in his name as owner and in that time period the heir may apply and then vehicle may be transferred in the name of such heir by operation of law.
Similarly, the covenant of policy is also based on this norm that policy does not lapse immediately on the death of insured but by legal fiction the policy remains valid for three months or till the expiry of policy (whichever is less). However, during that tenure the legal heir has to apply transfer the policy in its name or to have a new policy in its own name, that too, subject to furnishing of requisite documents.
7.6C The existing policy was upto 28.11.2017 and as per record, the complainant had not applied for transfer of policy in her name nor informed the OP about demise of her brother/insured. The insurance policy ended on 28.11.2017. The complainant’s brother had died on 04.02.2016. It means he had expired during the currency of previous policy from 28.11.2016 to 28.11.2017.
The incident of theft took place on 13.05.2018. This incident of theft happened during the currency of this latest/renewed policy for period from 29.11.2017 to 28.11.2018. To say, complainant’s brother was already dead on 04.02.2016 prior to commencement of new policy w.e.f 29.11.2017. It is settled law that insurance policy is also a contract. The contract is governed by the Indian Contract Act, 1872. The section 10 of the Contract Act, 1872 lays down law as to what agreements are enforceable to be called contract and one of the essentials is 'consent of parties competent to contract'. Section 11 of the Act, 1872 is regarding 'parties competent to contract (i.e. majority age, sound mind and other otherwise disqualified under the law to contract). This is matter of policy of law for making contract. The contract can be between two competent persons.
The renewed policy no. 131300/31/2018/22111 is for period from w.e.f. 29.11.2017 to 28.11.2018 It is in the name of Shri Vikas Annd, brother of complainant, however, he was not alive (since expired on 04.02.2016) on date of renewal to make contract of insurance policy with the OP. There cannot be insurance contract between a dead person and insurance company/Insurer. However, by legal fiction in section 50 (3) of Motor Vehicle Act 1988 read with Rules, especially amended Rules 2021 and also in the contract policy documents, theme of accountability is introduced for a limited period of three months so that appropriate action is taken by legal heir or succession in possession and use of vehicle in that period for transfer of insurance policy or new policy or ownership.
7.6D The covenant of policy applies only when there is a valid contract and insured had expired during tenure of valid policy and in that eventuality the legal heir may get its name transferred in policy or may obtain new insurance policy in its own name, being terms and condition of policy. Whereas, these elements are missing in the present case, since the renewed policy was got issued in the name of dead person without disclosing to OP that insured in the previous policy was already dead. A deceased person cannot entered into contract.
The complainant had also not informed OP death of insured within three months (since date of death is 04.02.2016 and policy tenure was upto 28.11.017) nor she requested the OP for endorsement of her name in that policy in place of name of deceased. The complainant has not obtained new insurance policy of vehicle in her own even as legal heir of deceased. Therefore, for want of valid contract of insurance policy in name of complainant, she lacks insurable interest in the policy. She has no contractual rights for want of contract of insurance policy.
However, another question arises that since she was pursuing the petition for succession certificate and it was decided on 27.03.2018 but certificate was issued later in May 2018, which was also considered by Ld. Ombudsman. Would it help the complainant for insurance policy?
The answer goes in negative, since the legal heir may have insurable interest under the covenant of policy to get the policy transferred or to obtain in new policy, within the time period provided under the policy. The filing of petition for succession certificate was no bar at all to inform the insurer and previous policy ended on 28.11.2017. The episode of theft is on 13.05.2018, and it was during the tenure of renewed policy w.e.f 29.11.017 to 28.11.018 and not under previous policy. The complainant being legal heir has no right or legal competence to make insurance policy agreement in the name of deceased with OP and since insurance policy w.e.f. 29.11.2017 to 28.11.2018 was not valid agreement, therefore, succession certificate would not remedy the situation, as the complainant never requested for transfer of existing policy in her name within three months from date of death (of 04.02.2026) nor the new policy was requested in her own name but it was obtained in the name of deceased and it would not remedy by invoking the succession certificate. [However, these observation are not for transfer of ownership of vehicle, since it is not issue in this complaint].
7.6E Further, it is also appearing from the record that complainant had been prosecuting the petition before the civil court to be successor of the deceased to his estate and the insurance policy was accordingly renewed in his name, it was being done under bona-fide. It does not involve element of dishonesty or fraudulent acts as alleged by the OP.
8.1 By considering all aspects and circumstances it cannot be construed deficiency of services on the part of OP and the OP cannot be held liable to pay the relief claimed of sum insured or of compensation in the complaint.
8.2. Simultaneously, when the complainant get renewed the insurance policy w.e.f. 29.11.017, she paid insurance premium of Rs.25,404/- to OP. Since it was not an enforceable insurance agreement, therefore, on the principle of equity, the OP is bound to return the premium amount of Rs.25,404/- to the complainant for want of insurable interest.
8.3. Accordingly, the OP is directed to return amount of Rs.25,404/- (which it had received in the form of premium) to the complainant within 30 days from the date of receipt of copy of this Order. In case the amount is not returned within 30 days, then amount will be payable with interest at the rate of 5% pa from the date of complaint till realization of the amount. No order as to costs of this complaint considering the issued involved.
8.4. The complaint is disposed off on aforementioned terms.
9. Announced on this First day of December 2023 [अग्रहायण 10, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
