K.R. UDAYABHANU: PRESIDENT
The appellants are the opposite parties/Insurance Company in CC No. 188/2007 in the file of CDRF, Kottayam. The appellants are under orders to pay a sum of Rs. 14,29,200/- with interest at 12% from the date of repudiation of the claim till realization and cost of Rs. 2,000/- with respect to the damage sustained to the vehicle that was covered by a package policy.
2. It is the case of the complainant that he is the owner of a Mercedes Benz Car which was purchased from M/s Friends Globe Travels, New Delhi. On expiry of the policy which was then insured by the prior owner. Smt. Selvi Sivakumar the authorized agent of the opposite party approached the complainant and requested to renew the insurance of the vehicle with the opposite party. The purchase of the vehicle, its ownership and the steps taken for transferring the registration of the vehicle in the name of the complainant had been informed to the said authorized agent. On getting directions Mr. K.S. Mariappan, the Manager Seematti Ernakulam which is the business concern of the complainant, contacted K.P. Suresh Kumar, the Branch Manager of the opposite party at Ernakulam Branch and informed the full and true facts with regard to the said vehicle. Upon the directions of the Branch Manger the complainant issued the at par cheque No. 520403 dated 17-05-2006 for a sum of Rs. 40,024/- from the account of Seematti, Kottayam drawn on South Indian Bank, Kottayam to the authorized agent. Thereafter, the opposite party issued a comprehensive insurance policy for a sum of Rs. 19,00,000/-. The opposite party has obtained the cheque and issued the policy fully knowing the real situation pertaining to the vehicle and accepted the cheque of Seematti, Kottayam and they fully understood the registered owners address at Delhi. The complainant had insured 10 vehicles of various types, buildings, showrooms and godowns of Seematti with the opposite party. It was requested by the complainant, at the time of renewal of the policy that the name of the owner of the vehicle should be accepted as the complainant. The vehicle met with an accident on 15-01-2007 and sustained heavy damages. The repair cost was assessed by the opposite partys authorized workshop M/s Rajasree Motors, Ernakulam. The claim was submitted for Rs. 19,00,000/-. The opposite party assessed the damages through its Surveyor. But the opposite party repudiated the claim by letter dated 31-05-2007 for the reason that there is no privity of contract between the complainant and the opposite party. The fact of the transfer of the vehicle has been intimated by the prior owner at the time of transfer. The rendering of services by the opposite party was not free of charge. Therefore the complainant is a consumer and deficiency in service is alleged. The complainant has sought for a sum of Rs. 19,00,000/-.
3. The opposite parties have filed version denying the allegations altogether. It is stated that the insured can give his own cheque or the cheque of a 3rd party for honouring the premium for the policy. The person whose cheque is issued is not a matter of concern for issuing a policy. It is denied that Mr. K.S. Mariappan, Manger of Seematti has contacted the Branch Manager. It is denied that the Branch Manger has given directions. It is denied that the opposite party is aware of the purchase of the vehicle by the complainant. It is contended that the person who purchases a vehicle with an existing policy should change the policy in the name of the purchaser after producing the relevant documents showing the ownership and remitting Rs. 50/- within 14 days after transfer vide GR No. 17 of India Motor Tariff. The Tariff Advisory Committee is a statutory body and its regulations are binding and statutory in nature. The privity of contract is only between M/s Friends Global Travels, New Delhi and Bajaj Alliance Insurance Company. The complainant has no insurable interest over the vehicle. It is contended that the complainant is not a consumer.
4. The evidence adduced consisted of proof affidavit filed by the respective sides, Exts. A1 to A3, B1, B2 and Ext.C1.
5. The Forum has relied on certain decisions of the National Commission ie, Shri Narayan Singh Vs. New India Assurance Company Ltd. IV 2007 CPJ 289 (NC) and National Insurance Company Ltd. Vs Subhash Chand Kataria and Another II (2008) CPJ 324 (NC) in support of the case for the complainant that on the basis of the circular issued by the General Insurance Company on transfer of vehicle the benefits under the policy in force will automatically accrue to the new owner and directed the opposite parties to pay the amount, the damages as assessed by the Commissioner vide Ext.C1 report.
6. The Counsel for the appellant has relied on the decision of the National Commission in Dharmendra Nath Thakur and Another Vs. United India Ltd. dated 29-01-2010 vide RP No. 221/06 unloaded from net wherein the National Commission has specifically held that GR 10 of India Motor Tariff which was in existence up to 30-06-2002 has been superseded by the New Motor Tariff Regulation and GR No.17 which is the new provision for transfers does not provide for any automatic transfer and mandates that the transferee will have to apply within 14 days from the date of transfer in writing and held relying on the decision in Complete Insulations (P) Ltd. Vs. New India Assurance Company Ltd. [(1996) 1 SCC 221] that the insured will not be entitled to compensation from the insurer for damage to the transferred vehicle in the absence of specific contract with the insurer covering the risk for the damage to the vehicle.
7. The Counsel for the respondent/complainant has stressed the fact that the opposite party have not specifically denied the case set up as to the receipt of the premium amount from the complainant. It was also pointed out that the ownership of the vehicle has been transferred in favour of the complainant and that the above fact has not been disputed. As per the Sale of Goods Act on paying the consideration and getting possession of the goods the purchaser becomes the owner of the goods. It is pointed out that the opposite party was aware of the transfer of ownership and the fact of receipt of cheque towards the premium amounting to Rs. 40,024/- has been admitted. The same amounts to notice as to the transfer of the vehicle. The complainant has specifically alleged that the previous owner has intimated the fact of transfer of the vehicle to the opposite party and the same has not been specifically denied. It is contended that the complainant is a beneficiary vide Sec. 2(d) of the CP Act even if it is conceded that the registered owner is the owner of the vehicle. It is pointed out that as the complainant has paid for the renewal of the insurance and the opposite party has received the amount the opposite party is not entitled to deny the benefits.
8. We find that the specific contention of the complainant that Smt. Selvi Sivakumar the agent of the opposite party approached the complainant and requested to renew the insurance with respect to the vehicle has not been refuted. The case of the complainant that 10 vehicles of various types, buildings, showrooms and godowns owned by the complainant have been insured with the opposite party has also not been denied. It s contended that the opposite party cannot deny the claim just on the technical ground of not transferring the RC in the name of the complainant. It is pointed out that the complainant is the real owner of the vehicle vide the Sale of Goods Act and Indian Contract Act. The CP Act does not annihilate his rights under the civil law vide Sec. 3 of the CP Act. It is also pointed out that the Motor Vehicle Act does not prohibit sale by virtue of the provisions of the Sale of Goods Act and deny title to the person who has purchased the goods on paying the consideration for the same. It is also pointed out that there is no specific condition in the policy insisting for the change of the policy. Further no prejudice is caused to the opposite party as there is no rival claimant and the registered owner had no objection. The complainant has notified the transfer to the insurer by informing the opposite party as to the transfer of the vehicle and the opposite party has impliedly admitted the same by receiving the premium amount from the complainant. It was the formalities of interstate transfer that caused delay to transfer the registered ownership.
9. We find that the facts of the present case has to be distinguished from the facts in Dharmendra Nath Thakur case (op.cit). In the above cited case the complainant therein has no such case as that has been raised by the complainant herein. The opposite party has admitted the receipt of the premium amount from the complainant by cheque drawn on the complainants account. Of course, GR 17 insists for a change of the policy within 14 days of transfer. But in the instance case, the preponderance of probabilities is infavour of the complainant that the appellant/opposite party was well aware of the transfer of the vehicle and that they knowingly received the premium amount from the complainant which is evidenced by the cheque of the complainant which was encashed by the opposite party. In the circumstances, we find that the claim of the complainant cannot be rejected outright by the opposite party.
10. All the same, it was pointed out by the Counsel for the appellant that the vehicle was purchased on 27-06-2005 and the RC was transferred only on 07-05-2007. The accident has taken place on 15-01-2007. It is about 1Â½ years subsequent to the date of purchase that the RC has been transferred. The above constitute a violation of GR 17. In the circumstances, we find that the opposite party should settle the claim at least on nonstandard basis vide the decision of the apex court in Amalendu Sahu Vs. Oriental Insurance Company Ltd. (AIR 2010 SC 2090).
11. It is also in evidence that the opposite parties had surveyed the vehicle. The survey report has not been produced. Ext.C1 is the report of the Commissioner appointed at the instance of the complainant. We find that it would be appropriate to remit the case to the Forum so as the opposite party may produce the survey report of the Surveyor and the Forum will consider the report of the Surveyor and Ext.C1 report of the Commissioner and arrive at the amount the complainant is entitled to ie, 75% of the quantum of damages.
With the above direction the case is remanded to the Forum. The case stands posted before the Forum on 29-07-2011.
The office will forward the LCR to the Forum along with a copy of this order urgently.