BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th September 2016
PRESENT
SMT. C.V. SHOBHA : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.199/2013
(Admitted on 23.07.2013)
1. Smt. Olivia Rebello,
D/o John Rebello,
W/o Lancy D Souza,
Aged about 34 years,
R/at. Rebello Compound,
Maril House, Darbe,
Puttur, D.K.
…….. COMPLAINANT
(Advocate for Complainant: Sri SD)
VERSUS
The Manager,
United India Insurance Co. Ltd.,
Prabhu Building, 1st Floor,
Main Road,
Puttur 574201.
……OPPOSITE PARTY
((Advocate for Opposite Party: Sri AKK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to refund Rs.17,013/ with 12% interest from 12/05/2012 till payment, to pay a sum of Rs.20,000 as compensation andto pay Rs.10,000 as expenses in the above case.
II. The brief facts of the case are as under:
The top Number Complaint lodged by the complainantagainst the above of the opposite party Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant has purchased Honda Motor Cycle bearing Regd. No.KA.21.J.9582 from one Wilfred Pinto on 09.05.2012 and on the same day the complainant has given application for transfer of ownership to R.T.O. Puttur. And also stated that the above Motor Cycle is insured with the opposite party as per policy No.070805/31/11/01/00011177 for Rs. 23,300/ and the policy is valid from 22.10.2011 to 21.10.2012.
Thereafter, while using the same vehicle by the complainant the vehicle met with an accident on 12/05/2012. Thereafter the complainant has immediately informed the opposite party over the phone. Hence the opposite party surveyor has conduct survey of the damaged vehicle and submitted survey report. The vehicle was kept at Thirumala Honda Authorised Sales and service of Honda 2 Wheeler, Darbe, Puttur for repair.
The complainant has spent Rs. 17,013/ for the repair. Thereafter the complainant has submitted claim form along with original repair bills to the opposite party has repudiated the claim by addressing letter dated 11/09/2012 to the earlier owner Mr. Wilfred Pinto. Hence the complaint got issued registered lawyer’s notice dated 05/10/2012 to the opposite parties and the opposite party has issued reply dated 26/10/2012 stating that the opposite party is ready to settle the claim as assessed by the surveyor on transfer of insurance policy in the name of the complainant. Thereafter, since the opposite party has repudiated the claim as per letter dated 11.09.2012 the complainant has changed the insurance and insured the vehicle with National Insurance Co. Ltd, Puttur.
Inspite of it, to change the insurance coverage the owner must submit the Registration Certificate to the opposite party. It is stated that before the R.C. could be changed in the name of the complainant the above vehicle met with accident. Hence the insurance could not be changed in the name of the complainant. The opposite party cannot bring technicalities to deny the benefits under the policy to the complainant. It is insurable interest to claim the insurance benefits. Further the insurance coverage is for the vehicle and not for the person. Hence the liability of the opposite party is not extinguished even though the policy is not transferred in the name of the complainant. Hence the opposite party is duty bound to pay the entire claim of the complainant. The non-payment of the claim money to the complainant amounts to deficiency of service by the opposite party. Apart from that, the opposite party is duty bound to pay the claim amount of the complainant. Hence, they are not doing so in order to make unlawful gain and cause loss to the complainant. Due to the wanton and negligent act of the opposite party hence, the matter raised for claiming an adequate compensation and other appropriate reliefs. On the strength of the same there is also a ground of prolonging the service by the concerned opposite party. This also covered with deficiency of service in all the angle. That apart continues with unfair trade practice in the business transactions. Hence this complaint.
- Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to the opposite party by RPAD with copies of the complainant. The opposite party appeared through their counsel filed separate version. The opposite party stated that he admits the issue of Motor Insurance Policy bearing No.070805/31/11/01/00011177 if any, under the said policy is subject to the terms, conditions and exclusion clauses attached therein. It is stated that the opposite party does not aware and hence denies that the complainant has purchased the Honda Motor Cycle bearing Registration No. KA.21.J.9582 from one Mr. Wilfred Pinto on 09.05.2012 and same day application for transfer of ownership was given to RTO Puttur. Hence the averments that said vehicle was accident on 12.05.2012 and immediately the complainant has informed the opposite party over the phone and thereafter the opposite party surveyor has done survey of said vehicle and submitted report etc are the matter on record and does not require any explanation. Further stated that the complainant kept the above said vehicle for repair in Thirumala Honda, Darbe, Puttur for repair and the complainant has spent Rs.17,013/ for repair and the complainant has submitted the claim form along with original bills. However this opposite
party has received the claim form and repair bills through insured namely Wilfred Pinto, but not through the complainant. The opposite party states that while processing the claim of the insured Wilfred Pinto after receiving the claim form with documents, it was found that the insured Wilfred Pinto was no longer the RC owner of the insured vehicle and RC has been transferred to the name of the complainant. Therefore the insured has no insurable interest in the said vehicle and under those circumstances this opposite party repudiated the claim of the insured Wilfred Pinto and same was intimated to Wilfred Pinto accordingly vide opposite parties letter repudiation letter dated 11.09.2012. The insured Wilfred Pinto though transferred the RC in the name of Complainant, neither the insured Wilfred Pinto nor the complainant has intimated applied to this opposite party for transfer of certificate as required under section 157(2).
Further it is stated that there is no Insurer and Insured relationship between this opposite party and the complainant, hence the complaint is not maintainable. The opposite party admits the receipt of legal notice dated 05.10.2012 sent by the complainant and same has been properly replied by this opposite party on 26.10.2012 asking the complainant to transfer the Certificate of Insurance in her favour and in spite of such proposal of this opposite party, the complainant failed to get transfer of the Certificate of Insurance in her name till this date. Hence the present complainant is not maintainable. It is stated that the liability, if any, of the opposite party, shall be to the extent of assessment of actual loss accessed by Mr. Vishnu Marathe, the surveyor and loss assessor, Belthangady, subject to depreciation and policy excess applicable under the policy.
Further stated that there is no consumer dispute or any deficiency in the service on the part of the opposite party. Further it is stated that the complainant is not entitled to any reliefs claimed in her complaint all other allegations are denied and sought for dismissed of the complaint with costs.
On the other hand the dispute raised by opposite party that as on the date of accident i.e. 12.05.2012 the vehicle Honda Motor Cycle bearing Reg. No. KA.21.J.9582 was standing in the name of Mr. Wilfred Pinto. As such the complainant is or was not at all the registered owner to the said vehicle motor cycle. Accordingly on that ground only the opposite party prays for dismissal of the complaint as it is not liable to pay any amount even as per the Insurance Policy, since the said Insurance Policy to the said vehicle was issued by opposite party only to the said Sri Wilfred Pinto, except this contention on the head of raising the dispute and to say that they are not liable, remaining of the fact and circumstances, whatever made out in the complaint by the complainant has been completely admitted.
On this above mentioned two contra aspects i.e. claim made by the complainant, admittedly the complainant is not at all the R.C. owner, but claim made out on the ground that, though the complainant is not at all the RC Owner even as on the date of accident which the vehicle met with, the said vehicle’s insurance policy stood in the name of only Sri. Wilfred Pinto. Still whether this complainant as a purchaser cum later RC Owner of the vehicle is entitled for recovery of the amount as sought for in the complaint, even only on the considering of the said vehicle was insured with the opposite party and the said insurance was in coverage. Accordingly, this point of issue only to be adjudicated in the case by us.
Apart from that we also consider of the available pleadings on either the side together with the receipt evidence both of the sides along with the available exhibited documents i.e. ExR1 to R8 with thorough observation. We come to a proper analysis and later raised the following points as follows:
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite
- Whether the complainant entitled for the relief as sought by her from the opposite party? If so,
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i): As per Affirmative
Point No. (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINT Nos. (i)& (ii): For the evidence we assigned the reason for both above point No.1 and 2 together. As stated above, except the dispute for make payment and also for settlement of the claim by the opposite party to the complainant, even in its repudiation letters as per Ex.R3 dated 11.09.2012 addressed to Sri Wilfred Pinto and Ex.R2 dated 26.10.2012 addressed to Sri Sanjay D Advocate, the same copy also to this complainant, which regarding repudiation of the said claim made by the above case, as well as opposite party is not liable. On this aspect it is clear even in the admission of the opposite party is that the said vehicle in question bearing Reg. No. KA.21.J.9582 was insured with the opposite party even as on the date of accident i.e., 12.05.2012 as the said policy was in force and also it was in coverage, with respect to the claim. On that ground it is clear that the opposite party is in the wrong path in which where the defence taken by them in the case. Because, the intention of the opposite party is only to avoid from make payment or settlement of the claim. Further, the opposite party when admitted the policy issued to the said vehicle has been completely ignored. But the contention which taken by the opposite party regarding only the name of the RC Owner of the vehicle to the date of the accident shown that one said Sri. Wilfred Pinto. Further, we are unable to note that why the name of the RC Owner is require to make settlement of the claim by the opposite party. Because, with once such a case come out before opposite party, it should be consider with proper application by them on the strength of the Law of contract as well as the law indemnity because, even in the case on hand admittedly the vehicle in question it was not transferred in the Registration Certificate by the competent RTO authority to the name of complainant. Merely because, it was either to refuse or to repudiatethe claim of the complainant is amounting to virtual Unfair Trade practice as well as pure deficiency in service. On the same strength, if the opposite party is in the right path, it is the bounden duty of the opposite party atleast prior to making the said document either Ex.R3 dated 11.09.2012 or Ex.R2 dated 26.10.2012 respectively. Apart from that it is also bounden duty of the opposite party to take care of the protection of complainant. Because, when once the vehicle in question has been insured with them including pertaining into its registration number of the vehicle as well as Engine No and its chassis number of the same. Once it was made out and admitted it is enough to conclude that it is of clear violation of the terms and conditions which made in the policy issued. Further, it is also a clear picture that even though the name of the RC Owner not shown in the policy in question it is to be treated that, it has been DEEMED TRANSFER. Such, being so, the facts and circumstances happened in the case is also an identical one, where in the policy of the admitted document to the said vehicle, which involved in the case, is also not shown the name of the complainant, it is the bounden duty of the opposite party to comply and also to make payment and settle the claim of the complainant. Hence, we said the case at this stage without discussion more, the act of the opposite party itself is enough to the above points, in the affirmative as the opposite party is in deficiency of service to the complainant as contemplated under the policy, since the complainant is also a consumer under the provision of Consumer Protection Act. Such being so, regarding the quantum of award is concerned to the vehicle which met with the accident that on 12.05.2012 and got damaged. Later, all procedure activities taken up with the opposite party even under documents, as available in the matter. To that extent there so no any dispute even by the opposite party side. So that, the later aspect regarding quantum even in the claim and also as per Ex R8 dated 02.08.2012 of M/s. ThirumalaHonda of Puttur, is of Rs. 17,013/. So that, for that entire amount of Rs.17,013, to be refunded to the complainant as she is entitled for the same, as it is of her legal claim and demand with the opposite party. Further, the same is also covered with the interest at the rate of 10% per annum from the date of the accident i.e. 12.05.2012 till make full payment, for that also the complainant is entitled.
Such being the case as noted above by us the opposite party with mollified intention the said Ex R3 & R2 dated 11.09.2012 and 26.10.2012 have been made out. The same is enough to show that the opposite party made its efforts to escape from make payment in the matter. It reveals that the same will only compensated to the complainant, only in the event of imposing compensation, as the complainant is also entitled. The same is awarded on the strength of suffering caused to the complainant from the date of accident till its complete repair. And also from the date of payment of its repair charges as 12.08.2012 as per Ex R8, though the said vehicle is under coverage with the said insurance policy of the opposite party as per Ex R1 document. So that till the date from date of accident as well as the date of Ex R8 document, the complainant is virtually suffering with both economic loss and damage including a mental agony due to the act of the opposite party. So that we are in an considerable opinion that, on this count we are awarding a sum of Rs.10,000/ on the head of compensation for which the complainant is entitled. That apart another sum of Rs.5,000/ is also awarded towards cost and litigation expenses incurred by her.
POINTS No. (iii): In the result, accordingly we pass the following Order:
ORDER
The Complaint is allowed in part. The Opposite party is liable to pay for a
sum of Rs.17,013/ (Rupees Seventeen thousand and thirteen only) together with
interest at the rate of 10% per annum from 12.05.2012 till realization. Further, opposite party is also liable to pay a sum of Rs.10,000/ (Rupees Ten thousand only) towards compensation including another sum of Rs.5,000/ (Rupees Five thousand only) towards cost of litigation expenses incurred by the complainant. Hence the payment shall be made within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 11 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28th day of September2016)
MEMBER PRESIDENT
(SMT.LAVANYA M. RAI) (SMT. C.V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1:Smt. Olivia Rebello
Documents produced on behalf of the Complainant:
No.1 22/10/2011 Copy of the Insurance Policy of the Opposite Party.
No.2 02/10/2012 Copy of the Insurance Policy of Nationa Insurance Co. Ltd.
No.3 09/05/2012 Copy of the Form No.30
No.4 02/08/2012 Attested Copies of the bills (6)
No.5 11/09/2012 Repudiation letter of the opposite party
No.6 05/10/2012 Office copy of regd notice.
No.7 26/10/2012 Reply of the opposite party.
Witnesses examined on behalf of the Opposite Party:
RW1 Amar Kumar Sinha, Senior Divisional Manager, United India
Insurance Co., Ltd.,
Documents marked on behalf of the Opposite Party:
R1 Copy of Insurance Policy bearing No. 070805/31/11/01/00011177 to vehicle bearing Regn No.KA.21.J.9582
R2 Letter dated 26.10.2012 issued by opposite party to the Complainant s counsel
R3 Office copy of the letter dated 11.09.2012 sent by the insured Wilfred Pinto
R4 Claim Form submitted by the insured Wilfred Pinto
R5 5 copies of the R.C. of vehicle bearing Regn No.KA.21.J.9582
R6 Surveyor s Report
R7 Job Estimation submitted by Thirumala Honda
R8 Repair Bills (Original)
Dated:28.09.2016. PRESIDENT
