BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 499 of 2019
Date of Institution : 27.8.2019
Date of Decision : 13.09.2021.
Rajesh Kumar, aged 27 years, son of Shri Bharat Singh, resident of village Chaharwala, Tehsil and District Sirsa.
……Complainant.
Versus.
United India Insurance Company Ltd., Sirsa, District Sirsa, through its Divisional Manager at Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. JASWANT SINGH………………PRESIDENT
SMT. SUKHDEEP KAUR………… MEMBER
Present: Sh. M.K. Singla, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment as under Section 35 of the Consumer Protection Act, 2019) against the opposite party (hereinafter referred to as Op) on the averments that complainant is the registered owner of a motor cycle make Royal Enfield bearing registration No. HR-24U/ 3108 which the complainant had purchased from its previous owner Shri Paras Phutela. The ownership of this motor cycle was transferred in favour of complainant on 27.11.2014. It is further averred that complainant being the registered owner of aforesaid motor cycle got the same insured with op vide insurance policy no.1119003116P102124950 for the period 17.5.2016 to 16.5.2017. That on 17.5.2016, the complainant was the registered owner of the aforesaid motor cycle, but the op in a very careless and negligent manner issued the above policy in the name of previous owner of this vehicle namely Paras Phutela son of Shri Ravi Kumar, resident of Rania Gate, Sirsa. That on 11.3.2017, the aforesaid motor cycle of complainant met with an accident and suffered extensive damages. Intimation in this regard was given by father of complainant to the op, but the op refused to entertain the claim of complainant on the ground that insurance policy is not in the name of complainant, so no claim can be settled. It is further averred that at the time of issuance of the policy, the complainant was the registered owner of aforesaid vehicle and thus, it was negligence on the part of op which issued policy in the name of its previous owner for which complainant cannot be blamed. That the op continued putting off the complainant with the pretext that op will settle his claim and will pay him adequate compensation, but op refused to entertain the claim of complainant, which amounts to gross deficiency in service on the part of op. That complainant approached the op and requested to settle his claim and to make payment of the amount of compensation to it, but op did not pay any heed to the same. Ultimately, complainant got served a legal notice upon op on 28.4.2017 and then a reminder notice of the same was given on 13.10.2017 but to no effect. It is further averred that earlier complainant had filed a consumer complaint bearing No.276 of 2018 against the op regarding same cause of action before this Forum which was deposed of on 15.5.2019 with the direction to complainant to lodge claim alongwith all required documents with op within a period of 15 days from the date of receipt of copy of order and thereafter, op was directed to consider and decide the claim of complainant within 45 days from receipt of claim alongwith papers from complainant. That after passing of order dated 15.5.2019, the complainant accordingly lodged his claim with op and provided all required documents to the op for settlement of his claim. However, the op vide its letter reference No Legal : C-348 dated 28.6.2019 repudiated the claim of complainant on the grounds “ Claim is not payable as at the time of alleged accident, insured was Paras Phutela and registered owner was Rajesh Kumar i.e. two different persons and there was no contract of insurance to indemnify complainant or to pay the O.D claim of said vehicle, but during the period of policy i.e. 17.5.2016 to 16.5.2017, complainant never intimated about getting the endorsement of change of name in the policy in his name, hence claim is hereby repudiated”. That the ground/ reason taken by op for repudiating the claim of complainant is very flimsy and illogical in nature and same is nothing but an excuse to repudiate the genuine claim of complainant. It is further averred that in motor vehicle insurance, the vehicle is insured by the company and change of ownership is not fatal to the genuine claim of the owner of the vehicle. So, the said letter dated 28.6.2019 issued by op repudiating the claim of complainant is liable to be set aside and complainant is entitled to claim amount alongwith interest besides compensation of Rs.50,000/- for harassment, mental agony and he is also entitled to litigation expenses of Rs.5500/-. Hence, this complaint.
2. On notice, opposite party appeared and filed written version taking certain preliminary objections that complainant is estopped by his own act and conduct to file the present complaint as complainant is not consumer of answering op and complainant has no cause of action against answering op in any manner, hence complaint is liable to be dismissed; that there is no deficiency in service in any manner on the part of company or its officials, as complainant has not hired the services of company/ answering op in any manner by paying consideration. The policy in question has been got issued by and in the name of Mr. Paras Phutela either himself or through his representative by making payment of premium to the insurance company for coverage of vehicle No. HR24U 3108 for the period 17.5.2016 to 16.5.2017 and while getting the coverage he (Paras Phutela/ his representative) had supplied photo copy of registration certificate, which was in the name of Mr. Paras Phutle and submitted the proposal form and there is no intimating by Mr. Paras Phutela for selling of vehicle No. HR24U- 3108 allegedly to the complainant and getting the change in name from the Registration Authority. It is further submitted that neither complainant, who is alleging himself to be the registered owner nor Mr. Paras Phutela had ever intimated insurance company for getting the change in the name in the policy by paying the charges for getting that changes by way of endorsement in the insurance policy, hence answering op cannot be held liable in any manner for indemnifying the complainant or compensating him for the loss, if any, hence complaint is liable to be dismissed. That question of entertaining the contention of complainant in any manner does not arise and answering op cannot be compelled/ forced to pay the claim to the complainant without any contract of insurance with him, in violation of norms, rules regulation of Insurance Act and M.V. Act, which prescribe a clear procedure to be followed by purchaser and seller of the vehicle with regard to the insurance effected in their name and that process has not been followed by complainant, even if he is registered owner of the vehicle, claim is not payable to complainant. That claim of damages to motor cycle has been registered only as per order passed by this Forum, which otherwise ought to have been registered, entertained and proceeded with in the name of insured who should have been registered owner and in absence of compliance of two, the claim cannot be paid for want of insurable interest, which is after adoption of due process regarding change of name in policy and creating insurable interest in case of own damage of the vehicle as per Insurance Act, M.V. Act and according to police term and conditions and guidelines, norms of insurance. It is further submitted that it is matter of strange that complainant is relying upon the policy No. 1119003116P102124950 for the period w.e.f. 17.5.2016 to 16.5.2017 for the motor cycle No. HR24U-3108 and this motor cycle allegedly met with an accident on 11.3.2017, meaning thereby after 10 months of having/ taking policy mentioned above, which was/ is in the name of Mr. Paras Phutela and the allegation of careless and negligence has been attributed against answering op in the year 2018 that above said policy has been issued in the name of previous owner by answering op, hence there is no deficiency on the part of answering op, which otherwise according to common sense reflect either deficient, negligent, careless act on the part of complainant himself and he cannot get benefit for own wrong, mistake, as ignorance of law is no excuse before the courts of law and it cannot be presumed that he (complainant) did not ever see the policy containing the name of Paras Phutela as insured, prior to the date of alleged accident. It is further submitted that after lodging the claim by complainant as per order passed by this Forum, Surveyor & Loss Assessor Mr. Rajan Bansal was deputed, who assessed the loss of vehicle to the tune of Rs.26,874.10 after deduction of salvage value & excess clause, but the same has not been paid due to fact and circumstances mentioned above, as insured of vehicle on the date of accident was Paras Phutela and complainant is claiming himself to be registered owner on the said day. Even if complainant is registered owner, but has never entered into contract of insurance with answering op with regard to above said motor cycle for the period 17.5.2016 to 16.5.2017, so damages cannot be paid, as he never approached answering op about correction of name of insured in the policy at any point of time during the period in which policy of motor cycle was in existence in the name of Paras Phutela, hence answering op cannot be said to be deficient in service in any manner. On merits, the pleas taken in the preliminary objections are reiterated, contents of complaint are denied and prayer for dismissal of complaint made.
3. The parties then led their respective evidence.
4. Complainant tendered in evidence his affidavit Ex.C1, affidavit of one Rajesh Kumar son of Shri Rattan, resident of village Chaharwala, Tehsil and District Sirsa as Ex.C2, copy of legal notice Ex.C3, copy of reminder of legal notice Ex.C4, copies of postal receipts Ex.C5, Ex.C6, copy of bill of spare parts Ex.C7, copy of bill of tyre, tube and front wheel Ex.C8, copy of driving licence of Rajesh Kumar son of Rattan Singh Ex.C9, copy of order dated 15.5.2019 Ex.C10, copy of claim application moved by complainant on 27.5.2019 Ex.C11, copy of claim repudiation letter dated 28.6.2019 Ex.C12, copy of certificate of insurance Ex.C13 and copy of certificate of registration Ex.C14.
5. On the other hand, op has tendered in evidence affidavit of Sh. Balram Bhadu, Senior Divisional Manager as Ex.R1, affidavit of Sh. Sonu Lega Agent of United India Insurance Company Limited as Ex.R2, affidavit of Sh. Rajan Bansal Surveyor & Loss Assessor Ex.R3, copy of repudiation letter Ex.R4, copy of motor survey report dated 23.6.2019 Ex.R5, copy of motor claim form Ex.R6, copy of motor insurance proposal form Ex.R7, copy of certificate of registration Ex.R8, copy of policy schedule Ex.R9 and copy of insurance policy Ex.R10 and copy of order dated 15.5.2019 Ex.R11.
6. We have heard learned counsel for the parties and have gone through the case file carefully.
7. Learned counsel for complainant has contended that complainant had purchased the motor cycle in question from its previous owner namely Mr. Paras Phutela and ownership of the same was transferred in his name on 27.11.2014. The complainant being registered owner of said motor cycle got the same insured with op vide insurance policy No.1119003116P102124950 for the period 17.5.2016 to 16.5.2017 as on 17.5.2016 the date of issuance of policy in question, the complainant was registered owner of the motor cycle in question, but the op in a very careless and negligent manner issued the policy in the name of previous owner namely Paras Phutela. He has further contended that when the complainant became the registered owner of the vehicle in question on 27.11.2014, it is not believable that complainant would get insured his vehicle in the name of another person or in the name of previous owner. The said motor cycle of complainant met with an accident on 11.3.2017 and it suffered extensive damages, the intimation of which was given to the op by father of complainant, but the op refused to entertain the claim of complainant on the ground that insurance policy of motor cycle is not in the name of complainant, so no claim can be settled. He has further contended that at the time of issuance of policy in question, the complainant was registered owner of motor cycle but the op without verifying the said fact from the registration authority in negligently manner issued the policy in the name of previous owner. The op has not settled and paid the claim of complainant despite passing of the order dated 15.5.2019 in earlier complaint filed by complainant on same cause of action and he has to file present complaint for getting genuine claim from op and prayed for acceptance of the complaint.
8. On the other hand, learned counsel for op while reiterating the version of written version has contended that claim of complainant is not payable as per terms and conditions of the policy as he has no insurable interest in the vehicle in question. It is not possible that a registered owner of a vehicle will not go through the insurance papers for such a long time. The proposal form for obtaining insurance policy of said motor cycle from 17.5.2016 to 16.5.2017, was filled in by Mr. Paras Phutela and at that time it was not disclosed by him that he has already sold his vehicle to the complainant and registration certificate has also been transferred in the name of complainant. Not only this, said Paras Phutela also produced copy of registration certificate which was in his name and therefore, op issued the policy in question in favour of said Paras Phutela. He has further contended that after passing of the order dated 15.5.2019 by this Forum in earlier complaint, whereby complaint was disposed of with a direction to the complainant to lodge claim alongwith all required documents with the op within a period of 15 days from the date of receipt of copy of the order and the op was directed to consider and decide the claim of complainant within 45 days from the receipt of claim alongwith papers, documents from the complainant, the op deputed Surveyor and Loss Assessor namely Sh. Rajan Bansal who submitted his survey report Ex.R5 and assessed the loss to the motor cycle to the tune of Rs.26,874.10 but the claim of complainant has been repudiated vide letter dated 28.6.2019 as per terms and conditions of the insurance policy as claim was not found payable and prayed for dismissal of complaint.
9. We have considered the rival contentions of the parties. Admittedly, the motor cycle in question bearing registration No. HR-24U/3108 was previously owned by one Paras Phutela son of Sh. Ravi Phutela and complainant purchased the motor cycle from its previous owner and ownership of the said motor cycle was also transferred in his name on 27.11.2014 as is evident from copy of registration certificate placed on record by complainant as Ex.C14. According to complainant, said motor cycle of complainant met with an accident on 11.3.2017 during the subsistence of policy in question as motor cycle was got insured by him with op from 17.5.2016 to 16.5.2017 and intimation of the accident was also given to op by his father. According to complainant, he has spent an amount of Rs.37024/- for repair of his insured motor cycle, but op refused to entertain the claim of complainant on the ground that insurance policy is not in the name of complainant but complainant is not at fault for mentioning the name of previous owner in the insurance policy and it is a matter of common sense that when complainant has already purchased the motor cycle from previous owner and registration certificate has also been transferred in his name on 27.11.2014 i.e. about one year and six months ago before 17.5.2016 i.e. the date of purchasing insurance policy, it is not believable that complainant will get insured his vehicle still in the name of previous owner of motor cycle and the law also does not permit for the same. According to complainant, the op without verifying the ownership of the motor cycle from registration authority issued the policy in the name of previous owner as it might have been in possession of registration certificate of previous owner and complainant cannot be allowed to suffer on account of lapses on the part of op.
10. There is also no dispute that the earlier complaint filed by complainant on the same cause of action was disposed of by this Forum vide order dated 15.5.2019 on the statements of the parties with the direction to the complainant to lodge claim alongwith all required documents with the op within a period of 15 days from the date of receipt of copy of the order and thereafter, op was directed to consider and decide the claim of complainant within 45 days from submission of the same. Accordingly complainant vide his application dated 27.5.2019, copy of which is placed on file by complainant as Ex.C11, he lodged his claim with the op alongwith all the required documents as is evident from application itself. Thereafter, op also deputed Mr. Rajan Bansal Surveyor & Loss Assessor to assess the loss to the motor cycle of complainant who submitted his report Ex.R5 wherein he assessed the loss to the tune of Rs.26,874/- after making depreciation from the estimated amount of Rs.37,024/- and after applying less excess clause as per policy and also deducting salvage value of the damaged parts as per rates of material and labour as per authorized dealer price list, but in the column No.3 of the Remarks he also give his remarks that the insured of the vehicle is Sh. Paras Phutela son of Sh. Ravin Kumar, but the registered owner of the vehicle is Rajesh Kumar son of Sh. Bharat Singh.
11. The reason given by opposite party in the repudiation letter dated 28.6.2019 Ex.C12 is also that claim is not payable as at the time of alleged accident insured was Paras Phutela and registered owner as Rajesh Kumar (complainant) i.e. two different persons and there was no contract of insurance to indemnify the complainant or to pay the O.D. claim of the said vehicle and that during the period of policy i.e. 17.5.2016 to 16.5.2017, complainant never intimated about getting the endorsement of change of name in the policy in his name, hence claim is hereby repudiated. The op has also placed on record copy of motor insurance proposal form Ex.R7 in which proposer’s name is mentioned as Paras Phutela son of Ravi Phutela. The op has also placed on file copy of certificate of registration as Ex.R8 which was issued on 9.10.2014 and name of registered owner in this certificate Ex.R8 is mentioned as Paras Phutela son of Sh. Ravi Kumar. The op has also tendered in evidence Ex.R2 affidavit of Sh. Sonu Lega, Agent through whom the insurance of the vehicle was got done with op in the name of Paras Phutela. In his affidavit Ex.R2, said Sonu Lega agent has deposed that proposal form was also signed by the person who visited him for getting the insurance coverage for the vehicle No. HR24U-3108 and visiting person also submitted photo copy of registration certificate to him, which was in the name of Paras Phutela. But however, it is not understandable that when vehicle has already been sold to the complainant by Paras Phutela and certificate of registration has also been transferred in the name of complainant on 27.11.2014, then why the previous owner Paras Phutela will get insured the vehicle in his name. Though, the op has placed on file copy of insurance policy as Ex.R10 which is in the name of Paras Phutela, but op has not placed on file receipt of the amount of premium received by op for insuring the motor cycle in question from which it could be proved that actually who came to the said agent Sonu Lega for getting insurance coverage to the motor cycle in question. The possibility that copy of registration certificate in the name of previous owner Paras Phutela was already in possession of op or its agent and doing of insurance by seeing the said registration certificate in the name of Paras Phutela cannot be ruled out. Though in the copy of proposal form Ex.R7, name of proposer is mentioned as Paras Phutela but it is not proved on record by leading cogent and convincing evidence that proposer was actually Paras Phutela because the column of “Signature of the Proposer” bears only initial and it is not proved on record that actually Paras Phutela made this initial on the said column of signature. Moreover, agent Sonu Lega in his affidavit Ex.R2 has also stated that policy was issued without any addition, deletion or omission of any particular submitted by the representative of owner/ insured Paras Phutela meaning thereby that he has also no certainty that who had come to him for insurance of the motor cycle. It is not believable and possible that a person who has already sold his vehicle one and half years ago, will go to the agent of the insurance company for getting insured same vehicle in his name and will pay premium amount for getting insurance coverage for a sold vehicle. In these circumstances, possibility of manipulation of proposal form Ex.R7 by mentioning the name of previous owner Paras Phutela in order to save the skin of op cannot be ruled out. No doubt, the plea of op that it is not possible that a person who has become a registered owner of vehicle will not see insurance policy/ papers of his vehicle for such a long time of about 10 months has some substance, but at the same time the fact cannot be ignored that the op has done insurance of the motor cycle in question without verifying the name of the registered owner from the registering authority. If the insurance companies which have burden to pay claim amounts to the insurer will do such like things i.e. doing the insurance without verifying the name of the registered owner of the vehicles either from its registered owner/ proposer or from registering authority, what will be expected from a common man. Not only this, now a days there is also tendency of the insurance companies to earn more and more business and there is competition in the field of doing insurance and even the insurance companies go to the extent of doing insurance of the vehicles through online mode on the basis of previous documents without verifying the fact that whether ownership has been changed or not and in our opinion that happened in the present case. The agent of the insurance companies in order to earn business and to earn commission who are also known to the insured also bear premium amount from their own for some time and receive the premium amount after some time after doing the insurance. The situation would have been different if during the subsistence of the policy in question, the vehicle would have been sold to the complainant by the previous owner but change of name in the policy would not have been applied by the complainant but in the present case, the vehicle was already sold to the complainant prior to one and half years of the purchase of policy in question and vehicle was already registered in the name of complainant on 27.11.2014. So, the plea of the op that Paras Phutela gave proposal for insurance coverage of the motor cycle in question does not appear to be valid and same is false and baseless and is not proved by leading cogent and convincing evidence. Moreover, in case titled as Mallamma (Dead) by LRs Vs. National Insurance Co. Ltd. & Ors., 2014 (2) Civil Court Cases, 694 (SC), it has been held as under:-
“ That whenever a vehicle is transferred from one person to another, the benefits of the insurance policy shall also be transferred to the new owner- policy shall also be transferred to the new owner- policy will not lapse even if the intimation as required U/s 103 of the Act is not given to the insurer.
In case titled as Narayan Singh Vs. India Assurance Company Ltd. Revision Petition No. 556 of 2002 decided on 22.5.2007 it has been held that :-
“ Transfer of vehicle- Automatic transfer of policy- Indian Motor Tariff Regulations- Circular issued in 1994 with regard to transfer of vehicles and transfer of insurance benefits automatically- Contention of Insurance Company that transferee was not entitled to get relief as the policy was not transferred in favour of transferee- Insurance Company could not justify its plea- Highly improper and unjustified act on part of insurance company to reject the claim on such ground and harassed the complainant for years together insurance company directed to pay Rs.1,40,000/- with interest at 12% p.a. after six months from date of accident to complainant- Insurance Company further directed to pay punitive costs of Rs. one lakh not disclosing that Indian Motor Tariff Regulation was applicable.”
12. Though, the above said judgments are related to the cases where vehicles were sold and transferred to the transferee during subsistence of the insurance policies, but same are also helpful to the case of complainant to some extent as the present case is one of the example of the negligence of the op insurance company where it has done insurance in the name of previous owner of the vehicle which was already sold to the complainant about one and half years ago of the obtaining of insurance policy in question. The complainant has suffered severe harassment and mental agony due to the act and conduct of the op as he is awaiting for such a meager amount of genuine claim since more than five years. The complainant should have been given amount of Rs.26,874/- as assessed by the Surveyor as we have also found no ambiguity in assessment of the amount of Rs.26,874/- on account of repair of the motor cycle in question by the Surveyor who has assessed the rates of material and labour as per authorized dealer.
13. In view of above discussion, we allow the present complaint and direct the opposite party to pay the amount of Rs.26,874/- ( to make it in round figure Rs.27,000/-) as claim amount to the complainant alongwith interest @9% per annum from the date of repudiation of the claim i.e. 28.06.2019 till actual realization within a period of 45 days from the date of receipt of copy of this order, failing which the above said amount of Rs.27,000/- will carry interest @12% per annum. We also direct the op to pay a sum of Rs.15,000/- as compensation to the complainant for harassment and mental agony and also direct the op to further pay a sum of Rs.5500/- as litigation expenses to the complainant. However, the op is at liberty to recover 50% of the compensation amount of Rs.15,000/- and 50% of litigation expenses of Rs.5500/- from its agent/ official who has acted in such a negligent manner in doing insurance in the name of previous owner and 50% of the above said amounts will be borne by op itself for causing harassment etc. to the complainant for not paying his genuine claim in time. It is also made clear that at first instance, the op will be liable to pay all the above said amounts to the complainant and thereafter, op can recover 50% of the amounts from concerned agent/ official. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Commission. Member President,
Dated:13.09.2021. District Consumer Disputes
Redressal Commission, Sirsa.
Typed by:
Jagdish Kumar (Stenographer)
