Delhi District Court
Smt. Jasbeer Kaur W/O Late Jaspal Singh vs Bajaj Allianz General Insurance Co. Ltd on 22 July, 2020
-1-
IN THE COURT OF SH. GURDEEP SINGH
DISTRICT JUDGE (COMMERCIAL COURT)-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
In the matter of:-
CNR No. : DLWT01-004652-2019
CS(Comm.) No. 212/2019
1. Smt. Jasbeer Kaur W/o late Jaspal Singh
2. Sh. Daljeet Singh S/o late Jaspal Singh
3. Sh. Harjeet Singh S/o late Jaspal Singh
All at :
House No. 16/759-61,
Block H-16, Bapa Nagar, Karol Bagh,
Delhi - 1100 15 ...............Plaintiffs
VERSUS
1. Bajaj Allianz General Insurance Co. Ltd.,
Blopck No. 04, 7th Floor, DLF Tower 15,
Shivaji Marg, New Delhi - 11 0 015
..................Defendant
Date of Institution : 07.06.2019
Date of transfer to this court : 23.01.2020
Date of reserving order : 08.07.2020
Date of pronounced of order : 22.07.2020
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 1 of 18 -2- of Rs.612066/- alongwith pendente lite and future interest at the rate of 18% per annum filed by plaintiffs who are legal representative of deceased /insurance policy holder in respect of car bearing registration no. DL-4C-AN-8905 against the defendant Bajaj Allianz General Insurance Co. Ltd., which is a company incorporated and registered under the Companies Act, 1956 and having its registered office at Block No. 04, 7th Floor, DLF Tower 15, Shivaji Marg, New Delhi- 110015.
2. It is averred in the plaint that husband of plaintiff no.1 namely Late Sh. Jaspal Singh had purchased a Honda Amaze Car from Ring Road Honda, Rohtak Road in July 2013 in his own name. It is further averred that the husband of plaintiff no. 1 had paid some down payment and got loan sanctioned for the remaining amount of Rs.5,00,000/- from HDFC Bank Ltd. in the form of Auto Loan No. 24936328. It is further stated that the car was registered with Transport Department, Janakpuri bearing registration no. DL-4C-AN-8905. The husband of plaintiff no. 1 had also got the said car insured with the defendant company at the time of purchase which was a term policy and valid upto 10th July, 2014. The husband of plaintiff no. 1 died on 19.01.2014 whereas the policy remained valid till July, 2014. The information of demise of husband of plaintiff no. 1 was duly reported to the concerned insurance agent and also the CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 2 of 18 -3- defendant company but the official of the defendant company had advised to pay the insurance premium to keep the policy in force and in continuation. It is further stated that the plaintiffs were neither informed by the officials nor by representatives nor by agent about the transfer of policy in the name of heirs nor about any other information related to this. Hence, the plaintiff no. 2 had been paying the premium on regular basis from the account of plaintiff no. 2 and got the policy renewed as it was in the name of late Sh. Jaspal Singh and the last policy which the plaintiffs had got renewed, was valid till 10.07.2016.
3. It is further stated that on 29.06.2016, the said car was stolen from the locality of the plaintiffs and accordingly an e-FIR No. 019130 was lodged by the cousin brother of plaintiff no. 2 through electronic medium.
4. It is further stated that the plaintiff no. 2 had raised a claim before the defendant company on 23.07.2016 with claim bearing no. OC-17-1101-1801-00007626 of the said car bearing registration no. DL-4C-AN-8905. Plaintiff no. 1 had also informed the MLO of RTO Janakpuri about the theft of the said car vide application dated 26.07.2016.
CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 3 of 18 -4-5. It is further stated that the defendant company deputed one "Sailja Insurance Services" for verification of the theft claim and the deputed company concern had sent a notice dated 23.07.2016 to plaintiff no.2 and asked the plaintiffs for cooperation in the verification process and requested for some documents.
6. It is further stated that the plaintiffs had submitted the documents asked for by the verifying company. On 27.08.2016, plaintiff no. 1 had received a rejection show cause letter from the defendant company in which the defendant had arbitrarily rejected the claim of plaintiffs by stating that "as per the policy terms and conditions in the event of death of the insured, the policy should be transferred in the name of legal heir within three months from the date of death of insured" and made a reference to condition no. 9.
7. It is further stated that the plaintiffs were oblivious of the terms and conditions as alleged by the defendant company. It is further stated that the plaintiffs were neither informed by the defendant company in this regard nor were advised to get the policy transferred and instead the defendant company has accepted the premium towards the insurance policy renewal after the demise of the policy holder and that too from third CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 4 of 18 -5- person's account i.e. Plaintiff no. 2 without objecting or rejecting the same and the aforesaid information has been informed to the defendant company against the show cause notice issued by it.
8. It is further stated that the defendant company despite being served with the information is deliberately evading its liability towards the plaintiffs by alleging a frivolous condition to reject the valid claim of the plaintiffs.
9. It is further stated that the plaintiffs being aggrieved with no response from the defendant company sent a legal notice dated 12.09.2018 to the defendant company through its counsel at the correct address of the defendant company thereby calling upon them to pay the claim amount of Rs.5,12,066/- along with Rs.1,00,000/- as compensation with interest at the rate of 18% per annum and other incidental charges forthwith within fifteen days from the receipt of the notice. It is pertinent to mention that the said legal notice was duly served upon the defendant company and the defendant company despite due service, has failed to pay the valid claim of the plaintiffs. Hence, the present suit for recovery of Rs.6,12,066/- along with pendente lite and future interest at the rate of 18% per annum.
CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 5 of 18 -6-10. Summons of suit was issued to defendant. The suit is contested and written statement was filed and in preliminary objections it is mentioned that the vehicle bearing no. DL-4C-AN-8905 was neither registered nor insured in the name of plaintiffs on the date of loss/theft. The defendant company has further taken a preliminary objection that the renewed policy bearing no. OG-16-1149-1801-0031113 for the period 11.07.2015 to 10.07.2016 in respect of vehicle bearing no. DL-4C-AB-8905 in the name of a dead person by deliberately concealing the fact of his death and hence, the plaintiffs are not entitled to any benefit under the policy.
11. It is further stated that the first policy was obtained by Sh. Jaspal Singh, husband of plaintiff no.1 for the period 11.07.2013 to 10.07.2014. It is further stated that as per the case of the plaintiffs, Sh. Jaspal Singh died on 19.01.2014 but the insurance policy was not got transferred in the name of his legal heirs and the policy was got renewed in the name of Sh. Jaspal Singh without disclosing the fact of his death. Relevant condition of the policy reads as under:
"In the event of the death of the sole insured, this policy will not immediately lapse but will remain valid for a period of three months from the date of the death of insured or until the expiry of the policy (whichever is earlier). During the said period, legal heirs of the CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 6 of 18 -7- insured to whom the custody and use of the motor vehicle passes may apply to have this policy transferred to his/her/their names or obtain a new policy for the motor vehicle".
12. From the aforesaid condition, it is clear that there was no valid policy on the date of incident i.e. 29.06.2016 as it was neither transferred in the names of the plaintiffs nor did they obtain a fresh policy in their names.
13. The defendant company has further taken a preliminary objection that the suit is time barred as the claim in the present case was repudiated vide letter dated 09.09.2016 and the present suit has been filed in June, 2019 which is hopelessly barred because as per the terms and conditions of the policy if a claim gets denied and the said claim is not made subject matter of a suit within a period of 12 calendar months then all the benefits under such a claim shall be forfeited and shall no further be recoverable.
14. In the reply on merits, the defendant company besides disputing the claim of the plaintiffs, has stated that the plaintiff had submitted her statement to the present defendant dated 02.09.2016, wherein it was specifically mentioned that she had forgotten to comply with the terms and conditions of the policy. It is further denied that the plaintiffs are entitled to CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 7 of 18 -8- payment of Rs.5,12,066/- or any part thereof and Rs.1,00,000/- or any part thereof as compensation.
15. The plaintiffs have filed replication to the written statement of the defendant company, thereby refuting the contents of the written statement and reiterating the contents of the plaint. It is further stated that the defendant cannot deny the claim of the plaintiffs before this Court as acceptance of payment by defendant itself creates estoppal against the defendant. It is further stated that the defendant had advised to pay the premium despite having knowledge of the fact of the death of the original policy holder Sh. Jaspal Singh and the defendant company had accepted the payment from third party account without objecting or reusing the same and duly renewed the erstwhile policy in the name of the deceased Sh. Jaspal Singh. It is further denied that the plaintiffs obtained the renewed policy bearing no. OG-16-1149-1801-0031113 for the period 11.07.2015 to 10.07.2016 in respect of vehicle bearing no. DL- 4C-AB-8905 in the name of a dead person by deliberately concealing the fact of his death.
16. Vide order dated 06.03.2020, following issues were framed:
1. Whether plaintiff is entitled to recover Rs.6,10,266/-
from defendant as beneficiary of the deceased policy CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 8 of 18 -9- holder? O. P. P.
2. Whether plaintiff is entitled to pendente lite interest @ 18% per annum? O. P. P.
3. Relief.
17. Since the issues were legal and based on admitted facts, therefore without leading the evidence, same could be disposed off and hence matter was fixed for final arguments.
18. It is worthwhile to mention that on 06.03.2020 after framing the issue matter was posted for 08.04.2020 for arguments as issues are legal and can be decided by way of arguments without leading evidence. However, in view of direction of Hon'ble High Court of Delhi and Ld. District & Sessions Judge, West District, THC on account of outbreak of Covid- 19, the present case was adjourned en bloc for 03.06.2020 and thereafter for 26.08.2020. Thereafter in pursuant to further direction of Hon'ble High Court of Delhi and Ld. District & Sessions Judge, West District, THC regarding hearing through video conferencing, the matter was preponed on 01.06.2020 and posted for arguments through video conferencing with direction that both parties may file written submission on the email id i.e. [email protected]. and both parties shall exchange written submission with each other on CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 9 of 18 -10- their respective e-mail id/ Whatsapp number. The counsel for plaintiff as well as defendant were informed accordingly by way of SMS on their respective mobile number available on their respective vakalatnama/record.
19. Written submission was filed by both parties on e-mail.
Perused.
20. I have heard Sh. Varun Agarwal, counsel for plaintiff and Sh. Navdeep Singh, counsel for defendant/ insurance company through through video conferencing (Cisco Webex Meeting App.). I have also gone through the record.
21. My issue wise findings are as under :-
Issue no.1 and 2
22. The salient features not in dispute are that the husband of the plaintiff no.1, who was registered owner of the vehicle and policy holder, has died on 19.01.2014 during the currency of insurance policy which was firstly obtained from 11.07.2013 to 10.07.2014 and thereafter policy was again renewed from 11.07.2014 to 10.07.2015 and again lastly on 11.07.2015 to 10.07.2016 which is now in question. It is also not in dispute that vehicle was not transferred in the name of plaintiffs from the name of deceased policy holder. Further the SHO and the CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 10 of 18 -11- RTO office concerned were informed regarding theft of the vehicle vide communications dated 26.07.2016 and 27.07.2016 respectively and there is no document to show on record that the insurance company was informed regarding death of the insured prior to theft of the vehicle.
23. In support of his submissions, Ld. Counsel for plaintiff cited judgments in case of Dr. Vimla v. Delhi Administration 1963 AIR 1572 and National Insurance Co. Ltd. v. Nitin Khandelwal MANU/SC/7639/2008.
24. On the other hand, Ld. Counsel for defendant submitted that policy in the name of dead person is nullity as held by Nirasha Singh v. HDFC Ergo General Insurance Company Pvt. Ltd. Dated 18.08.2017, a judgment of Hon'ble National Consumer Dispute Redressal Commission (NCDRC), wherein on similar facts the vehicle was stolen but the policy was issued in the name of dead person therefore insurance company was not liable. He also cited case of Complete Insulation [P] Ltd. v. The New India Assurance Co. Ltd. 1996 SCC (1) 221 and judgment of National Consumer Dispute Redressal Commission in case of New India Assurance Co. Ltd. v. Chanrakant Bhujangrao Jogdandi II (2010) CPJ, 170 (NC) and United India Insurance Co. Ltd. v. Rakhwant Singh CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 11 of 18 -12- II (2016) CPJ 685 (NC). He also cited judgment of State Dispute Redressal Forum titled as Reliance General Insurance Co. Ltd. v. Harish Ahuja (citation not given).
25. Ld. Counsel on behalf of plaintiff has also given rebuttal submission and distinguished judgment of Nirasha Singh (supra).
26. Before going into rival submission, lets have overview of the legal position. In a recent judgment titled as Balwant Singh & Sons Vs. National Insurance Company Limited (2019) SCC Online SC Page 1015, the Hon'ble Supreme Court surveyed the law on the subject. In the said case, National Consumer Disputes Redressal Commission dismissed the revision petition filed by the appellant whereby National Consumer Disputes Redressal Commission upheld the view of District Consumer Disputes Redressal Commission, Jalandhar and of the State Consumer Disputes Redressal Commission, Chandigarh that the insurer was not liable on a claim preferred under a policy of insurance for the loss of a vehicle occasioned by theft. In the said case, hire/purchase agreement was entered into with ICICI Bank in respect of the vehicle. A few installments were paid but then default was committed upon which the possession was taken by the bank.
CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 12 of 18 -13-The vehicle was put to auction and was purchased by the appellant. Besides the payment of earnest money, the appellant paid the balance by a cheque dated 31.03.2006. Possession of the vehicle was handed over to the appellant on 07.04.2006 after the cheque was encashed together with a certificate of possession of the vehicle. The bank issued a letter dated 19.04.2006 to the respondent which had insured the vehicle for cancellation of entry of hypothecation for the registration certificate of the vehicle. On 22.05.2006, the appellant got the vehicle insured by the first respondent against premium of Rs.6,999/-. The insurance policy contained the name of the appellant together with his business address. The Hon'ble Supreme Court while deciding the issue considered the judgment of Hon'ble Supreme Court in Life Insurance Corporation of India V. Raja Vasireddy Komalavalli Kamba, (ii) Complete Insulations (P) Ltd. V. New India Assurance Company Ltd., (iii) Prakash Chand Daga V. Saveta Sharma and (iv) Naveen Kumar V. Vijay Kumar.
27. The Hon'ble Supreme Court after having surveyed the law and the relevant provisions of the Motor Vehicles Act i.e. having observed as under :
"20. This Court dealt with the provisions of Chapter XI and explained that it concerns only third party risks and CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 13 of 18 -14- as a result the fiction contained in Section 157 must be limited for that purpose. The above extract emphasises that if the policy covers other risks that would be a matter which falls outside Chapter XI and would rest in the domain of contract for which there has to be an agreement between the insurer and the transferee. In that case the Court held that there was no such agreement since the insurer had not transferred the policy of insurance in relation thereto to the transferee and was held therefore not to be liable to make good the damage.
21. Another line of judgments specifically deals with the obligation to satisfy third party claims with reference to the provisions contained in Chapter XI. A three judge Bench of this Court in Naveen Kumar(supra) adverted to the judgments of this Court in T. V. Jose V. Chacko PM, P. P. Mohammed V. K. Rajappan and Pushpa V. Shakuntala.
23.The principle that emerges from the precedents of this Court is that even though in law there would be a transfer of ownership of the vehicle, that by itself would not absolve the person in whose name the vehicle stands in the registration certificate, from liability to a third party. So long as the name of the registered owner continues in the certificate of registration in the records of the RTO, that person as an owner would continue to be liable to a third party under Chapter XI of the Motor Vehicles Act, 1986. The above decisions, therefore, deal with the obligation of the registered owner to meet third party claims.
24. The principles which have been elucidated by this Court in the context of the liability of the registered owner of the vehicle in satisying third party claims CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 14 of 18 -15- consequently has no application to the present case. For this reason, the three judge Bench of this Court in Complete Insulations (P) Ltd. (supra) carefully noted that third party claims with reference to insurance policies issued un Chapter XI stand on a different footing. Hence, it was held that if the policy of insurance covers other risks, that would be a matter of the contract of insurance between the insurer and the transferee in whose favour the risk is assumed."
Emphasis added.
28. Therefore, the Hon'ble Supreme Court of India had distinguished between contract of insurance simplicitor and contract of insurance which is statutory. The third party insurance is statutory and law on the said subject is different from contract of insurance of simplicitor.
29. Now coming to submissions. It is submitted by counsel for plaintiffs that in the similar facts in case of Dr. Vimla (supra) where policy was issued in the name of daughter but signed by mother and subsequently police registered the FIR that forgery was committed, the policy was repudiated by the insurance company on the ground forgery was committed. On these facts the Hon'ble Supreme Court of India held that it was bona fide mistake and acquitted the mother. Since the said matter was with respect to mense rea and it was held that she being mother had signed in the name of minor daughter and there CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 15 of 18 -16- was no mense rea to commit forgery and acquitted the accused from the charges of forgery. Criminal liability and civil liability are distinct. Therefore the said judgment is not applicable to the facts of the present case.
30. Further, he submitted that in the present case, the agent of the insurance company was required to inform the plaintiff regarding transfer of the vehicle and to take policy in her name and despite knowing the fact that registered owner is no more, he continued to issue policy and take premium and relied upon judgment of Nitin Khandelwal (supra) wherein he submitted that Hon'ble Supreme Court held that in case of theft of vehicle, breach of condition is not germane. In the said case, the vehicle was insured and sent to Jaipur. On the way, some unknown people stopped the vehicle, tied the driver and snatched away the vehicle. Report was lodged with police. Insurance policy was repudiated by insurance company solely on the ground that the vehicle though registered and insured as a private vehicle, at the time of theft was being used a taxi for carrying passengers on payment which was being used contrary to the terms and conditions of the insurance policy. On these facts, National Commissioner after considering facts that the vehicle was used for commercial purpose granted reimbursement on non standard basis. Hon'ble Supreme Court CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 16 of 18 -17- held that law is well settled that in case of theft of vehicle, nature of use of vehicle cannot be looked into and the Insurance Company cannot repudiate the claim on that basis.
31. Therefore the cited judgment of Nitin Khandelwal (supra) is distinguishable on facts as question in case in hand before us is whether insurance policy in the name of dead person is nullity.
32. As per law laid down by Hon'ble Supreme Court there are two types of risks covered in the insurance policy; one is with respect to the statutory insurance of third party risk and the other is contractual insurance in respect of vehicle of theft / damage etc. In the present case, since this is a case of vehicle theft and not of third party risk, therefore the contract of insurance would come into play. It is settled law that the insurance cannot be done in the name of a dead person and it was the responsibility of the legal heirs of the deceased to get the insurance policy transferred in their name. Even if they have not done so during the currency of the year in which the owner died, however, in subsequent years they should have got the insurance policy transferred in their name. Merely by alleging that the agent has not advised them would not suffice. Therefore, the plaintiff is not entitled to any relief.
CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 17 of 18 -18-33. The issues nos. 1 and 2 are accordingly decided against the plaintiff.
Issue no.3
34. In view of my findings in respect of issues nos. 1 and 2, plaintiff is not entitled to any relief as prayed for and accordingly the suit is dismissed with cost.
35. Counsel may file certificate of fees within a week by way of e-mail and thereafter decree sheet be prepared.
36. File be consigned to record room.
Announced in Open Court Digitally signed
by GURDEEP
today i.e. 22-07-2020 GURDEEP SINGH
SINGH Date: 2020.07.22
15:42:29 +0530
(GURDEEP SINGH)
DISTRICT JUDGE (COMMERCIAL COURT)-02
WEST DISTRICT/THC/ 22-07-2020
CS (Comm.) No. : 212/2019 Jasbeer Kaur & Ors. v. Bajaj Allianz General Insurance Page 18 of 18