Haryana

Karnal

CC/408/2023

Rajesh Gakhar - Complainant(s)

Versus

United India Insurance Company Limited - Opp.Party(s)

Sanjay Singh Lodhi

18 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.408 of 2023

                                                        Date of instt. 24.07.2023

                                                        Date of Decision:18.09.2024

 

Rajesh Gakhar, age 41 years, son of Shri Ramesh Kumar owner/insured of car registration no.HR-85-D-5266, resident of C-7/260, Gandhi Dham, Jagadhari, Yamuna Nagar-135001 through its SPA holder Shri Naresh Kumar age about 47 years son of Shri Som Nath, resident of village Sandhir, Tehsil Nilokheri, District Karnal. Mobile no.93156 30102.

                                                                        …….Complainant.

                                              Versus

 

1. United India Insurance Company Limited, Divisional Office, Shree Durga Bhawani Mandir, near Bus Stand, G.T. Road, Karnal through its Divisional Manager.
2. United India Insurance Co. Ltd. Divisional Office, Triloki Chambers, opposite Municipal Committee, Ambala Cantt. Through its Divisional Manager.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Sanjay Singh, counsel for the complainant.

                    Shri Ashok Vohra, counsel for the OPs.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the vehicle i.e. Volkswagen Polo Comfort line plus bearing Registration no.HR-85D-5266, Model 2020, seating capacity 1+4, was got insured by complainant for IDV of Rs.4,70,000/- under private car stand alone own damage policy no.1101003121P109441426, valid from 16.12.2021 to 15.12.2022 by paying a premium of Rs.8301/-. The car was inspected through Select Technical Services on 16.12.2021 at 1.01 p.m. as per the inspection report. The vehicle was quite fit, fine and roadworthy just before insurance. On 21.02.2022 at 8.30 a.m., while Mr. Naresh Kumar SPA was driving the car at ITI Chowk, Karnal and when the car reached at the spot of accident the ahead going Eicher canter took sudden brakes, but the insured car could not be stopped in time and dashed behind that canter from front side causing damages resulting into total loss. The damaged car was shifted at P.S.B. Auto sales Pvt. Ltd. Karnal on the same day. The estimate of repairs was prepared to the tune of Rs.18,75,849/- by M/s P.S. B. Auto Sales Pvt. Ltd. The intimation for survey was given immediately to the OP. Mr. J.K. Sharma Surveyor was deputed by the OP for survey and settlement of loss. The observation of surveyor is as under:-

“The car is extensively damaged and suitable for total loss/constructive total loss as the loss is more than the sum insured i.e. IDV and the assessment arrived at is to the tune of Rs.5,88,000/- which is more than the IDV of insured vehicle being Rs.4,70,000/-. Hence, the payable amount is Rs.4,70,000/- (-) excess clause of Rs.1000/- and value of wreck being Rs.80,000/- with RC. No GDR/FIR was lodged as there was no bodily injury/loss to anybody. Moreover, the loss conducting Eicher canter had fled away from the spot of accident. Hence, it was found appropriate to shift the vehicle to safe and uninterruptable place i.e. at P.S.B. Auto Sales Pvt. Ltd. being the nearest repairer.”

Since the vehicle was under process of transfer/sale and accordingly the RC of vehicle had been under process of transfer of ownership and the ownership transfer was not completed and communicated to either of the transferee or transferor which evidently leads to the aspect that vehicle was very much under the ownership/responsibility of previous owner Mr. Rajesh Gakhar and it was still insured in his name and accordingly the claim of compensation has been found payable to him or to his wish to SPA Mr. Naresh Kumar. Moreover, the register of registering authority shows that process of transfer of vehicle in the name of transferee was completed only on 22.02.2022 or thereafter. Since the policy was existing in his name and the loss is payable under the policy at the date and time of accident being 21.02.2022 at 8.30 a.m. Moreover, as per section 157(2) of Motor Vehicles Act, 1988, the transfer of insurance can be applied for within 14 days of transfer of RC in favour of transferee which much have taken place only after 22.02.2022. It is further pleaded that the intimation with the OP was lodged on the same day of accident. The surveyor inspected the vehicle at PSB Auto Sales Pvt. Ltd. repairers at Karnal. The documents were provided to the surveyor and lateron to the investigator as well, showing no mis-representation/concealment on the part of the complainant. The claim of complainant is not payable by the OP despite repeated requests. Due to this act and conduct of OPs, complainant has suffered mental pain, agony, harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

2.             On notice, OPs appeared and filed its written version raising preliminary objection with regard to maintainability; jurisdiction; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the claim of complainant was duly processed, considered on merits and the same was not found payable because the claim bearing no.1101003121C050681001 was closed vide order dated 16.12.2022 on the ground that the vehicle in question was sold by Shri Rajesh Gakhar complainant to Shri Naresh Kumar on 11.02.2022 and Shri Naresh Kumar has not submitted any letter or application in the office of OPs for transfer of insurance in his name. Now as per Registration Certificate Shri Naresh Kumar is the registered owner of the vehicle and there is no valid and effective insurance policy available on his name against the said vehicle and the complainant is not having any insurable interest on the said vehicle as on date of loss. So, in the absence of the valid and effective insurance on the name of registered owner and being no insurable interest on the name of complainant, this claim was not proceeded by the company further and claim file was closed on the basis of final survey report submitted by Shri J.K. Sharma on the opinion that the car was transferred in the name of Naresh Kumar but endorsement of policy was not done. As such, complaint is not maintainable. It is further pleaded that complainant sold the car in favour of Naresh Kumar in the month of January, 2022 as it is established that the NOC was taken from Licensing Authority Ambala on 13.01.2022 in the name of Naresh Kumar mentioned as name of Transferee. Naresh Kumar further applied for the transfer of said car in his name and as such he deposited transfer fee vide receipt dated 11.02.2022 with Licensing Authority, Karnal. Naresh Kumar has not applied for the transfer of policy of said car in his name. Alleged accident took place on 21.02.2022, while Naresh Kumar was driving the said car being owner but he has no insurable interest as the policy stands in the name of previous owner. It is further pleaded that OPs company appointed surveyor who has visited and inspected the vehicle at P.S.B. Auto Sales Pvt. Ltd. No FIR/DDR qua the said accident was lodged by the complainant against the alleged canter going in front of the car of the complainant, which was duly driven by Naresh Kumar transferee. The alleged transferee has not disclosed the registration number of the said canter. No alleged accident took place but the cause of accident has concealed by the complainant knowingly and intentionally due to the reasons best known to him. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy Ex.C1, copy of intimation-cum-claim form Ex.C2, copy of RC Ex.C3, copy of estimates Ex.C4, copy of driving licence of Naresh Kumar Ex.C5, copy of Motor Survey Report Ex.C6, copy of job card report Ex.C7, copy of satisfaction note Ex.C8, copy of claim closure letter dated 16.12.2022 Ex.C9, copy of vehicle transfer register dated 22.02.2022 Ex.C10, copy of aadhar card of complainant Ex.C11 and closed the evidence on 09.11.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Pankaj Singh authorized representative of OP Ex.OP1/A, affidavit of J.K. Sharma Surveyor Ex.OP2/A   copy of cover note Ex.O1, copy of claim closure letter dated 16.12.2022 Ex.O2, copy of RC transfer receipt Ex.O3, copy of email of OP Ex.O4, copy of Motor Survey Report dated 19.08.2022 Ex.O5, copy of report dated 22.05.2022 of Gurmit Singh Investigator Ex.O6 and closed the evidence on 19.07.2024 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle with the OPs. On 21.02.2022 the said vehicle was driven by Naresh Kumar, met with an accident near ITI Chowk, Karnal and badly damaged. The intimation was given to the OPs. On receipt of intimation, OPs appointed Mr. J.K. Sharma Surveyor to inspect the vehicle and assessment of the loss. The estimate of repairs was prepared to the tune of Rs.18,75,849/- by M/s P.S.B. Auto Sales Pvt. Ltd. Complainant submitted the claim with the OPs but OPs did not pay the claim and repudiated the same on the false and frivolous ground and prayed for allowing the complaint.

8.             Per contra, learned counsel for OPs, while reiterating the contents of written version, has vehemently argued that the vehicle in question was sold by complainant to one Shri Naresh Kumar on 11.02.2022 and Shri Naresh Kumar has not applied for transfer of insurance in his name. As per Registration Certificate, Shri Naresh Kumar is the registered owner of the insured vehicle and there is no valid and effective insurance policy in his name against the said vehicle. Neither complainant nor Naresh Kumar was having any insurable interest on the said vehicle on date of loss. Thus, the claim of the complainant has rightly been repudiated by the OPs and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, complainant got insured his vehicle with the OP and same was met with an accident during the subsistence of the insurance policy. It is also admitted that the vehicle in question sold by complainant to Naresh Kumar on 11.02.2022. It is also admitted that now the RC of the vehicle is in the name of Naresh Kumar being an owner.  It is also admitted that the insured declared value of the vehicle was Rs.4,70,000/-.

11.           The claim has been repudiated by the OPs, vide repudiation letter Ex.C9/Ex.O2 dated 16.12.2022 on the ground, which is reproduced as under:-

“We wish to draw your kind attention towards the claim intimation of the captioned vehicle. On receipt of the intimation Shri J.K. Sharma was deputed for survey and loss assessment of the captioned vehicle and on receipt of the final survey report it came to notice of the office that the said vehicle was sold your goodself to Shri Naresh Kumar on 11.02.2022 and Shri Naresh Kumar has not submitted any letter or application in the office for transfer of insurance in his name. Now as per RC Shri Naresh Kumar is the registered owner of the vehicle and there is no valid and effective insurance policy available on his name against the said vehicle your goodself is not having any insurable interest on the said vehicle as on date of loss. So, in absence of valid and effective insurance on the name of registered owner and being no insurable interest on the name of the claimant, this claim cannot the proceed further and claim file is being closed. This is for your information please”

12.           The claim has been repudiated by the OPs on the abovesaid ground.  The complainant had sold the vehicle in question to Naresh Kumar on 11.02.2022 and Naresh Kumar applied for transfer of the ownership of the vehicle in his name before the Registering Authority and deposited the fees, vide receipt Ex.O3 dated 11.02.2022. The process for transfer of vehicle in question has been completed on 22.02.2022, this fact has been proved from copy of vehicle transfer register Ex.C10. As per section 157(2) of Motor Vehicles Act, 1988, the transferee shall apply for transfer of the insured policy, within fourteen days from the date of transfer of RC in favour of transferee. The Section 157 of Motor Vehicles Act, 1988 is reproduced as under:-

157. Transfer of certificate of insurance. –

(1) Where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.

(2) The transferee shall apply within fourteen 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 and the policy described in the certificate in his favour, and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance”

And as per the Central Motor Vehicle Rules, 1989 Rule 144. Transfer of certificate of insurance.—When the ownership of a motor vehicle covered by a valid insurance certificate is transferred to another person together with the policy of insurance relating thereto the policy of insurance of such vehicle shall automatically stand transferred to that other person from the date of transfer of ownership of the vehicle and the said person shall within fourteen days of the date of transfer intimate to the authorised insurer who has insured the vehicle, 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 authorised insurer may make the necessary changes in his record.

 In the present case, complainant had sold the vehicle in question to Naresh Kumar on 11.02.2022 and the vehicle was met with an accident on 21.02.2022. On the date of accident, the transfer process of the vehicle has not been completed and vehicle in question was yet in the name of complainant. The prescribed period for applying for transfer of insurance policy in the name of purchaser had not yet been expired. Naresh Kumar could have applied for transfer the insurance policy within 14 days from the transfer of vehicle in his name. Hence, plea taken by the OPs that the insurance policy has not been transferred in the name of purchaser has no force.

13.           Furthermore, now a days it has become a trend of insurance companies, they issue the policies by giving false assurances and when insured amount is claimed, they make such type of excuses. Thus, the denial of the claim of complainant is arbitrary and unjustified. In this regard, we place reliance on the judgment of Hon’ble Punjab and Haryana High Court titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

                Keeping in view the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, the act of the OPs while closing the claim amounts to deficiency in service and unfair trade practice.    

14.           The complainant has claimed the Insured Declared Value (IDV) of the vehicle in question i.e. Rs.4,70,000/- on the basis of assessment prepared by the surveyor of the OP, vide his report Ex.C7/Ex.O5 dated 09.08.2023. The surveyor  has assessed the loss to the tune of Rs.5,80,000/-, which is more than the IDV of the vehicle. Hence complainant is entitled for Rs.4,70,000/- the IDV of the vehicle alongwith interest, compensation for mental pain, agony and harassment and litigation expenses.   

15.           Now the vehicle in question has been transferred in the name of Naresh Kumar son of Som Nath, resident of village Sandhir, tehsil Nilokheri, District Karnal. The present complaint has also been filed by the said Naresh Kumar being Special Power of Attorney of complainant. Now Naresh Kumar being owner can only complete the formalities with regard to transfer/cancellation of the Registration Certificate. Hence, the awarded amount can be paid either to the complainant or to SPA Naresh Kumar, present owner of the vehicle in question. Complainant has also submitted in para no.5 of the complaint that awarded amount be paid to him or to his wish to SPA Naresh Kumar. Hence, in view of the above, for avoiding the further litigation and in the interest of justice, the awarded amount be paid to Naresh Kumar, present owner of the vehicle in question on furnishing the No Objection Certificate by the complainant i.e. previous owner.

16.           Thus, in view of the above discussion, we allow the present complaint and direct the OPs to pay Rs.4,70,000/- (Rs. four lakhs seventy thousand only) the IDV of the vehicle alongwith interest @ 9% per annum from the date of closing of the claim i.e. 16.12.2022 till its realization to  Naresh Kumar owner of the vehicle. We further direct the OPs to pay Rs.25,000/- to Naresh Kumar on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. It is made clear awarded amount be paid to Naresh Kumar only on furnishing the No Objection by the previous owner Rajesh Gakhar. However, Naresh Kumar is also directed to complete all the formalities with regard to transfer/cancel of the RC of the vehicle in question in favour of OPs and also handed over the salvage to the OPs.  This order shall be complied within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 18.09.2024                                                           

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

         (Neeru Agarwal)               (Sarvjeet Kaur)

            Member                           Member