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A. Venkateswara Rao Vs. the New India Assurance Co., Ltd., and Another - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh State Consumer Disputes Redressal Commission SCDRC Hyderabad
Decided On
Case NumberF.A.No.849 Of 2008 Against C.C.No.368 Of 2005 District Forum-II Hyderabad
Judge
AppellantA. Venkateswara Rao
RespondentThe New India Assurance Co., Ltd., and Another
Excerpt:
.....the transfer of insurance policy in the name of the transferee is available only for the third party claims and not for the own damage claim. therefore, by any stretch of imagination it cannot be said that section 157 of m.v.act can be invoked for the deemed transfer of the insurance policy in favour of the complainant. the decision relied upon by the complainant that the original policy holder has locus standi to file the complaint is not applicable to the facts of the case and also in view of the change in law and decisions subsequently made to the decision relied upon by him. the complainant has got transferred the insurance policy in respect of the vehicle by 15.4.2003 by suppressing the fact of his purchasing the vehicle on 4.2.2003 and only the vehicle was involved in the.....
Judgment:

Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member)

1. The unsuccessful complainant is the appellant wherein his complaint was dismissed by the District Forum.

2. The case of the complainant as seen from the complaint is that he purchased Goods carriage vehicle bearing No.AP 10T 9776 from the opposite party no.2 on 4.2.2003 and the vehicle was insured by the opposite party no.2 with the opposite party no.1 insurance company vide policy No.612800 for the period from 30.10.2002 to 29.10.2003. The vehicle was involved in an accident on 6.4.2003. The complainant had submitted claim to the opposite party no.1 which was repudiated by the opposite party no.1 on the ground that the claim was not within the purview of the policy. The complainant sustained a loss of `80,298/- as per the surveyor report submitted to the opposite party no.1.

3. The opposite party no.1 filed counter stating that the claim was repudiated for the reason that on the date of the accident neither the complainant nor the opposite party no.2 have any insurable interest under the insurance policy. The police covers the risk on the person or the property of the third parties only. The opposite party no.2 seized to have insurable interest in the said policy when he has sold the vehicle. The policy remains in force only in respect of damages and personal risks caused to the third parties. The complainant did not take any steps to get the insurance policy transferred in his name. He approached the insurance company on 15.4.2003 for transfer of the policy and the insurance company without any delay on the same day has transferred the policy and issued the policy with a transfer endorsement with effect from 15.4.2003 to 29.10.2003. The contract of insurance between the complainant and the opposite party no.1 has started on 15.4.2003. On the date of accident there was no privity of contract between the insurance company and the complainant. On transfer of ownership, the liability under the policy is deemed to have been transferred in favour of the person to whom the vehicle is transferred with the effect from the date of transfer.

4. The opposite party no.1 has repudiated the claim of the complainant. 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 policy described in the certificate in his favour and the insurer would make the necessary changes in the certificate and the policy of insurance in regard to the transfer of the insurance coverage. The complainant failed to take steps within the stipulated time. The complainant did not mention the time, place and manner of accident in the complaint. The complainant has failed to furnish copy of FIR, Charge Sheet, MV Inspector report, rough sketch of scene of offence and a scene of offence observation panchanama to prove the occurrence of the accident. In the absence of the said documents, the complaint is not maintainable. The complainant did not file copies of invoice or bills pertaining to repair charges or surveyor report. The accident was occurred due to collision of the two vehicles i.e., the insured vehicle and APSRTC bus and as such there is contributory negligence on part of the both the drivers. The complainant ought to have approached the civil court and impleaded the APSRTC as a party. There is no deficiency in service on the part of the opposite party.

5. The complainant has filed his affidavit and documents Exs.A1 and A2. On behalf of the opposite party no.1 Exs.B1 to B4 had been marked.

6. The points for consideration are:

1) Whether the insurance policy issued by the opposite party was transferred in the name of the appellant by the date of the accident?

2) Whether there was any deficiency in service on the part of the opposite parties?

3) To what relief?

7. POINTS NO 1 and 2: The complainant has purchased the vehicle No.AP 10T 9776 from the opposite party no.2 on 4.2.2003. The vehicle was involved in the accident on 6.4.2003 i.e., after the complainant has purchased it from the opposite party n o.2. There is no dispute of the fact that the vehicle was insured with the opposite party no.1 or opposite party no.2 for the period from 30.10.2002 to 29.10.2003. By the time of the accident, the insurance policy was in force. After the accident, the complainant states that he had got it repaired and incurred an amount of `80,298/- for reimbursement of which he had lodged claim with the opposite party no.1. The opposite party no.1 repudiated the claim on 19.6.2003 with the observation that the claim was not within the purview of the insurance policy. Prior to the repudiation of the claim and after receipt of the same from the complainant, the opposite partyno.1 had deputed a surveyor who assessed the loss at `80,298/-. The contention of the complainant is that Section 157 of the M.V.Act and General Regulation No.17 of the Indian Motor Tariff is not applicable to his case. The complainant has relied on the decision of the Honble National Commission in Mr.Banwarlal Agarwal Vs National Insurance Company Limited and another reported in 2005(2) CPC 592. In that case the Honble National Commission held that the words used in Section 157(1) of the M.V.Act shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred and the flaw in the case was held to be that the subsequent purchasers had no locus standi to file the complaint on the premise that he was not the insured and it was held that the claim should have been filed by the original policy holder.

8. The action by the insured for an insurance claim on the foot of an insurance policy belongs to the realm of enforcement of an insurance contract. The ground theme of any insurance contract that is agreed between the parties is indemnification in monetary terms for the risk covered therein. Its enforceability and sweep of operation again depend not only on the express terms but also on the law supplying some more flesh and blood to such contract

9. The Supreme Court in “Complete Insulations Pvt. Ltd. Vs. New India Assurance Company Ltd”. reported in I (1996) CPJ 1 (SC) clearly held that Section 157 of the M.V. Act is applicable only in cases of 3rd party risk and in the matter of others, the claim has to be decided only on the basis of actual terms of the contract of insurance policy. The Supreme Court upheld the decision of the National Commission which dismissed the claim of the transferee, referring to the full bench judgment of Andhra Pradesh High Court in ‘Madineni Kondaiah and others vs Yaseen fatima and others . reported in Kondiahs case (AIR 1986 A.P. 62) .

10. The honble National Commission followed the dicta of the Supreme Court in Complete Insulations (P) Ltd. Vs. New India Assurance Company Ltd. reported in II (1996) ACC 536 (SC) = 1996 ACJ 65 and Rikhi Ram and Another Vs. Sukhrania and Others reported in II (2003) SLT 62 = 1 (2003) ACC 368 (SC) and held that the provisions of Section 157 of the M.V. Act apply only to cases of 3rd party risk and by implication, holding that in any other case the actual transfer would only govern the course of rights. The National Commission refused to give any relief in ‘own property damage cases reported in IV (2008) CPJ 65 and I(2009) CPJ 158 (NC)

11. Indian Motor Tariff Regulation issued by Tariff Advisory Committee a creature of Sec. 64U of Insurance Act 1938 as amended by Amendment Act 62 of 1968 w.e.f. 7.6.GR-10 of the IMT was issued by Tariff Advisory Committee under Indian Motor Tariff and it came into force from 1.4.1990 claiming statutory status under the provisions contained in Part-II-B of the Insurance Act, obviously overlooking the substantive provisions of law relating to transfer of insurance policies for own damage in cases of comprehensive or package policies. The Indian Motor Tariff regulation was originally framed with effect from 1.4.1990. The said version lasted till 30.6.2002. G.R.-10 of IMT issued by Tariff Advisory Committee under Indian Motor Tariff applicable for the period from 1.4.1990. It reads as follows:

 “10. Transfers:”

On transfer of a vehicle the benefits under the policy in force on the date of transfer shall automatically accrue to the new owner. If the transferee is not entitled to he benefit of the bonus or subjected to malus already shown on the policy, the recovery of the differences between his entitlement (if any) and that shown on the policy, shall be waived till the expiry and/or termination of the existing policy the transferee will be eligible for Bonus or subjected to malus as per his own entitlement.

12 There is a clear distinction all along, as borne out from the dicta contained in Supreme Court judgment, between the 3rd party risk under the Motor Vehicles Insurance Act and the other benefits flowing out of comprehensive insurance policy. Section 157 of the M.V. Act reads as follows:

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.

1[Explanation.-For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.]

(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.

13. It is to be noted that Indian Motor Tariff Regulations had undergone an amendment with effect from 30.6.2002.

14. The complainant has got the vehicle only transferred in his favour and he has not made any attempt till 15.4.2003 for transfer of the insurance policy. In this regard, a specific request has to be made by the complainant within 14 days from the date of his purchase of the motor vehicle from the opposite party no.2 to the insurance company that has issued the insurance policy and get the endorsement of transfer in the insurance policy by the insurance company. It is contended on behalf of the opposite party that in case of transfer of policy, the transfer can be effected in the name of the transferor subject to the submission of evidence of sale and on submission of proposal to be filed and signed by the transferee. It is contended that there was no contract between the complainant and the opposite party no.1 for own damage risk.

15. The Honble Supreme Court in National Insurance Company Vs Laxmi Narayana reported 2009 CTJ held that the deeming provision concerning the transfer of insurance policy in the name of the transferee is available only for the third party claims and not for the own damage claim. Therefore, by any stretch of imagination it cannot be said that Section 157 of M.V.Act can be invoked for the deemed transfer of the insurance policy in favour of the complainant. The decision relied upon by the complainant that the original policy holder has locus standi to file the complaint is not applicable to the facts of the case and also in view of the change in law and decisions subsequently made to the decision relied upon by him. The complainant has got transferred the insurance policy in respect of the vehicle by 15.4.2003 by suppressing the fact of his purchasing the vehicle on 4.2.2003 and only the vehicle was involved in the accident on 6.4.2003. The complainant has no locus standi to claim any reimbursement of the amount stated to have incurred by him for getting the vehicle repaired.The liability of the insurance company in respect of the claim of the complainant came to an end on transfer of the vehicle by the opposite party no.2 to him as the procedure prescribed for transfer of policy was not fulfilled.

15. For the aforementioned reasons, we hold that the complainant is not entitled to the relief sought for and the impugned order does not warrant interference in the appeal. The appeal is liable to be dismissed.

16. In the result, the appeal is dismissed confirming the order of the District Forum. No costs.


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