IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of September, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 270/2018 (filed on 28-12-2018)
Petitioner : Muhammad Abdul Kareem C.A.
S/o. C.P. Abdul Asees,
Chakkalakkal House,
Erumeli P.O. Kanjirappally Taluk,
Pin – 686 509.
(Adv. Usha Menon)
Vs.
Opposite Parties : 1) The Oriental Insurance Co. Ltd.
Divisional Office,
Peeranvelil Building,
Near Mini Civil Station,
Kanjirappalli – 686 507.
Rep. by its Divisional Manager.
(Adv. P.C. Chacko)
2) Hashim Ibrahim K.
Kochanimoottil House,
3rd Mile, Koottikkal P.O.
Mundakkayam, Kottayam.
O R D E R
Sri. Manulal V.S. President
Briefly stated relevant facts are that a ford fiesta car bearing KL-34-D-114 which was owned and possessed by the complainant was insured with the first opposite party for the period of 24-12-2016 to 23-12-2017. The complainant availed the policy of the first opposite party by paying the premium amount and other documents to the second opposite party who is the agent of the first opposite party. Second opposite party handed over the policy to the complainant. On 17-8-2017 at about 11.45 pm while the said car was driven by one Vasim Peer Muhammad from Erattupetta to Erumely when reached at KanthariValavu after Kuruvamozhi, the car lost control and rushed to the property of one Sasidharan. Due to the accident severe damages were caused to the car. Accident was duly informed to the Kanjirappally police station and the same was entered into the general diary of the police station. It was averred that on18-8-2017 after taking the photographs the car was towed to the Kairaly ford service centre at Kottayam. Vasim Peer Muhammad who was the driver at the time of the accident had valid driving license till 4-10-2033. After getting the detailed estimate from the workshop the complainant had launched a claim before the opposite party along with all the relevant documents on 21-8-2017. But on 22-8-2017 the complainant had received a claim repudiation letter from the opposite party. In that letter it was stated that though the ownership of the vehicle was transferred in the name of the complainant on 2-09-2016, the insurance policy for the period 24-12-2016 to 23-12-2017 was in the name of Ajmal P.H. and the complainant has no insurable interest on the subject vehicle. It was alleged in the complaint that immediately after the change in the ownership when the complainant approached the office of the opposite party to transfer the insurance policy in the name of the complainant, they sent him back by stating that there was no need to change policy at that time and the policy would be transferred in the name of the complainant at the time of renewal. The second opposite party who was present there at that time collected the details of the complainant and later he collected the money from the complainant for renewal of insurance policy of the vehicle. After the lapse of some time he handed over the policy to the complainant. It is alleged in the complaint that due to the negligence and mistake committed by the opposite parties the name of the insurer was wrongly entered in the policy certificate and the opposite parties have no right to repudiate the claim. The complainant had spent Rs.1,69,993/- for repairing the vehicle. The opposite parties are bound to perform their part as per the contract of insurance. By repudiating the claim of the complainant the opposite parties have committed deficiency in service. Hence this complaint is filed praying an order directing the opposite parties to pay Rs.193089/- along with a compensation of Rs.Two lakhs.
Upon notice first opposite party appeared before the commission and filed version. Though the notice was received the second opposite party neither appeared nor filed version.
First opposite party contested the complaint by filing written statement stating that the policy was issued in the name of Ajmal P.H., Puthenparampil house, Erumely .P.O. for the period from 24-12-2016 to 23-12-2017. Meanwhile the said vehicle allegedly met with an accident on 17-8-2017 at about 11.45 p.m. The complainant later lodged claim for the damage of the vehicle with the first opposite party on 21-8-2017. During the process of the claim it is revealed that the complainant had no insurable interest at the time of accident.
Though the said vehicle was purchased by the complainant and its registration was got transferred to his name on 2-9-2016, he did not take any steps to transfer the policy to his name. Thereafter again he has taken the policy in the name of the previous owner. The complainant never informed about the transfer of the vehicle in his name to the opposite party till he lodged the claim. Since the complainant had not transferred the insurance policy to his name and did not take any policy when it was renewed in his name, as such he had no insurable interest in the vehicle and accordingly, the opposite party was not liable to pay any amount to the complainant. Ajamal P.H. was not the registered owner of the vehicle with effect from 2-9-2016. The allegation that the complainant came to the office of the first opposite party to transfer the policy to his name and he was informed that the name of the insured need not be changed in the present policy and when new policy was issued his name will be included in it etc., are false. The allegation that the second opposite party was in the office of the first opposite party and the complainant’s phone number and policy details were provided to him and the complainant has paid money towards premium and RC copy for renewal of the policy to the second opposite party and the second opposite party handed over the policy to the complainant much later etc are false. The allegation in the complaint that the first opposite party has incorporated wrong name in the policy is a false story. The policy was issued on the basis of the details furnished by the complainant. There was no negligence or latches on the part of thee first opposite party in issuing the policy. The complainant neither came to the office of the first opposite party nor offered any reply to the repudiation letter.
The claim was intimated to the first opposite party by the complainant and not by the insured. The claim intimation, estimate and the final bills were prepared in the name of the complainant. The complainant or the insured did not intimate the accident immediately to the first opposite party denying the opportunity of spot survey of the vehicle. Since the complainant had no insurable interest or valid contract of insurance with the first opposite party on the date of accident, even though the registration of the vehicle was transferred to his name, he is not entitled for any own damage portion of benefit under the said policy and the first opposite party is not liable to pay any amount to him, as claimed. It is further submitted in their version that the complainant had no case that he made any application for the transfer of the policy to his name till the expiry of the said policy or made any proposal for a new policy for incorporating his name.
Evidence of the this case consists of the deposition of Pw1 and Dw1. Santhosh K.P, who is the Divisional Manager and principal officer of the first opposite party filed proof affidavit in lieu of chief examination. Exhibits A1 to A6 were marked from the side of the complainant and Exhibits B1 to B4(a) were marked from the side of the opposite parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points.?
- Whether there is any deficiency in service on the part of the opposite parties?
- What are the reliefs?
For the sake of convenience we would like to consider the point number 1 and 2 together.
Point No.1 and 2
It is admitted by Pw1 who is the complainant that he had purchased a ford fiesta car bearing KL-34-D-114 from previous owner, namely, T.H. Ajmal and got transferred the registration particulars in his name on 2-9-2016. Exhibit A1 is the registration certificate of the said car.
On 17-8-2017 at about 11.45 pm while the said car was driven by one Vasim Peer Muhammad from Erattupetta to Erumely met with an accident. Exhibit A3 G D entry extract which is dated 18-8-2017 proves that the said vehicle had been met with an accident. Thereafter on 21 -8-2017 the complainant lodged Exhibit A4 claim form with the first opposite party narrating all the particulars of the policy and details of the accident. It is proved by Exhibit A6 which is the credit bill issued by the Kairaly ford that the complainant had spent Rs.168993 for repairing the vehicle. According to Pw1 though his vehicle had a valid insurance coverage with the first opposite party at the time of accident, the first opposite party illegally repudiated the genuine claim of the complainant.
On the other hand the first opposite party contended that though the registration certificate of the car was transferred in name of complainant but the policy relating to the vehicle was not transferred. It is contended that there is no privity of contract between the complainant and first opposite party as such the first opposite party is not liable to pay the claim.Pw1 who is the complainant would depose before the commission that the Exhibit A2 insurance policy under which the vehicle was insured with first opposite party at the time of the accident was in the name of Ajmal T.H. But on perusal of Exhibit A2 policy certificate we
can see that it was for the period of 24-12-2015 to 23-12-2016. Though Pw1 deposed before the commission during the cross examination that he had applied for the transfer of the policy along with application for the transfer of the ownership, but the same was neither stated in the complaint nor his proof affidavit. Moreover he did not adduce any evidence before us to show that he had applied for the transfer of the policy in his name before the accident. The specific case of the complainant is that he had entrusted application fee for transfer the policy in his name along with application form and previous policy certificate to the second opposite party who is the agent of the first opposite party . However he did not depose the amount and the date on which the same was entrusted to the second opposite party.
The complainant did not produce the policy certificate for the period of 24-12-2016 to 23-12-2017 before the commission. Exhibit B1 is the policy certificate for the period of 24-12-2016 to 23-12-2017. Though the change in ownership was made with effect from 02-09-2016 and B2 was valid at that time. But the renewal of the policy vide B2, was made in the name of the previous RC owner. Even after the expiry of B2 policy, the complainant did not show due diligence to get the insurance to get the B3 insurance coverage to his name. It is pertinent to note that the accident was occurred on 17-8-2017. On perusal of exhibit B1 we can see that the insured was Ajmal P.H. and not the complainant. The said policy was transferred in the name of the complainant only on 13-10-2017 vide Exhibit B4. Thus we are of the opinion that the complainant is not the insured of the vehicle bearing no. KL-34-D-114 on 17-8-2017.
It is contended that the present case is governed by GR 17 of Indian Motor Tariff which came in force with effect from 01.07.2002. It is submitted that as per GR 17, the complainant was required to apply within 14 days from the date of transfer in writing to the insurer who had insured the vehicle with necessary details of the registration of vehicle, date of transfer of vehicle, name of previous owner of vehicle, and date and No. of policy so that insurer may make necessary change in the record and issue fresh certificate of insurance to the respondent/complainant. It is contended that the complainant did not apply within 14 days from the date of transfer of ownership to first opposite party for getting insurance certificate and policy transferred in his name and as such is not entitled for any amount.
Section 157(2) of the Motor Vehicle Act, provides that transferee should apply within 14 days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance policy and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and policy of insurance in regard to the transfer of insurance. GR -17 of Indian Motor Vehicle Act, which is applicable from 30.06.2002 regarding transfer of insurance policy reads as under:
“GR.17. Transfers On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer.
The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with the details of the registration of the vehicle, the date of transfer of the vehicle, the previous owner of the vehicle and the number and date of the insurance policy so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance.
In case of Package Policies, transfer of the “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 consent of the transferor. If the transferee is not entitled to the benefit of the No Claim Bonus (NCB) shown on the policy, or is entitled to a lesser percentage of NCB than that existing in the policy, recovery of the difference between the transferee’s entitlement, if any, and that shown on the policy shall be made before effecting the transfer.
A fresh Proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.
Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and a fresh proposal form duly filled and signed. The old Certificate of Insurance for the vehicle, is required to be surrendered and fee for the same is to be collected for issue of fresh Certificate in the name of the transferee. If for any reason, the old Certificate of Insurance cannot be surrendered, a proper declaration to that effect is to be taken from the transferee before a new Certificate of Insurance is issued”.
In the present case the insurance policy was not transferred in the name of complainant nor it is a case of complainant that he had applied for transfer of the policy within 14 days from the date of transfer. In these circumstances, even if the RC was in the name of the complainant, it cannot be said that complainant had any insurable interest in the vehicle. The insurance policy was never transferred in the name of the complainant. The opposite party was not liable to make good the loss of the vehicle.
In the New India Assurance Co. Ltd. v. Akbar I(2014) CPJ 395 (NC), the National
Commission has held that the complainant would be entitled for reimbursement of damages only if policy had already been transferred in his name before theft took place.
Similar view has also been taken by the National Commission in the judgment of Mohammad Ishakbhai Timberwala v. Tata AIG General Insurance Co. Ltd. II(2016) CPJ 592 (NC).
In view of above discussion, the complaint stands dismissed.
Pronounced in the Open Commission on this the 24th day of September, 2021.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Witness marked from the side of complainant
Pw1 – C.A. Muhammad Abdul Kareem
Witness marked from the side of opposite party
Dw1 – Binu Varkey
Exhibits marked from the side of complainant
A1 – Copy of Registration Certificate (KL-34-D-1144)
A2 – Policy certificate issued by opposite party dtd.23-12-15
A3 – Copy of GD extract of Kanjirapplly Police station on 18-08-17
A4 – Motor claim form dtd.21-08-17
A5 – Letter dtd.22-08-17 by 1st opposite party to petitioner
A6- Tax invoice dtd.13-10-17 to petitioner
Exhibits marked from the side of opposite party
B1 – Certified copy of policy certificate issued by opposite party for the period
of 24-12-2016 to 23-12-2017
B2 – Certified copy of policy certificate issued by opposite party for the period
of 24-12-15 to 23-12-16
B3 – Certified copy of policy certificate issued by opposite party in the name of
petitioner dtd.13-10-2017
B4 – Survey report dtd.12-01-18 from Binu Varkey
B4(a) – Photos of vehicle
By Order
Senior Superintendent
