State Consumer Disputes Redressal Commission
Samuel Mathew, S/O Mathew vs 1. The Branch Manager, on 27 August, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/747 (Arisen out of Order Dated 26/08/2011 in Case No. CC/10/78 of District Pathanamthitta) 1. Samuel Mathew Thundikizhakkethil Veedu,Muttom,Thumpamon,Pathanamthitta Pathanamthitta Kerala ...........Appellant(s) Versus 1. The Branch manager,Oriental Insurance Co Ltd Market Jn,Tripunithura,Cochin Ernakulam Kerala ...........Respondent(s) BEFORE: Smt.A.RADHA PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 747/11
JUDGMENT DATED : 27.08.2012
PRESENT:
SHRI. M.K. ABDULLA SONA : HON.ACTING PRESIDENT
SMT. A. RADHA : MEMBER
Samuel Mathew, S/o Mathew
Thundikizhakkethil Veedu,
Muttom P.O., Thumpamon,
Pathanamthitta. : APPELLANT
(By Adv. S. Ajith Prabhav)
Vs
1. The Branch Manager,
The Oriental Insurance Co. ltd,
Market Juncton, Tripunithura,
Cochin - 682 301.
: RESPONDENTS
2. The Oriental Insurance Co. Ltd.,
Represented by Divisional Manager,
Division Office No.IV, P.B.No.42.,
2nd Floor, Palackattu Building,
Market Junction, Thripunithara
Kochi - 682 301.
(By Adv. Varkala B. Ravikumar)
JUDGMENT
SMT. A. RADHA : MEMBER Appellant is the complainant who is dissatisfied by the order of dismissal by CDRF, Pathanamthitta in CC No.78/2010 came up in this appeal.
2. Complainant was the owner of a bus involved in an accident on 3.12.07 which was purchased availing a loan from Tata Motor Finance executing a hire purchase agreement. The vehicle was insured with the opposite parties/respondents for a period from 23.08.2007 to 22.8.2008. At the time of accident the complainant was at Mumbai and a case was registered as the motorcyclist died in that accident. The bus sustained extensive damages and repairing charges came to Rs.3,13,405/-. The accident was reported to the opposite parties and a surveyor was deputed. A claim form was submitted before the opposite parties through the complainant's agent one Mr. K.N. Suresh. It is the case of the complainant that the vehicle during the subsistence of the hypothecation agreement cannot be transferred. Even if transfer occurs the registered owner will continue to be the real owner till the liabilities cleared. It is also the assertion of the complainant that as per Sec.51 of Motor Vehicle Act it is mandatory that the vehicle under hypothecation cannot be transferred except with the written consent of the financier. As far as the hypothecation is not cleared the registered owner will continue to be owner. It is the very case of the complainant that he entrusted the management of the vehicle with one Mr. K.N. Suresh while he was in Mumbai especially at the time of accident. The claim form submitted was an unsigned one. The definite case of the complainant is that he had incurred a huge sum of money whereas the surveyor assessed the damages only to the tune of Rs.1,00,535.30. Admittedly, the vehicle was in different workshops for more than one year and the complainant incurred heavy loss which had to be indemnified by the insurance company. The claim was rejected on the ground that the vehicle was already sold to Mr. K.N. Suresh on 29.06.06. Even though the complainant submitted the hire purchase agreement, the opposite parties were not ready to look into the claim. Neither, the registration book, nor the insurance policy transferred to the name of the K.N. Suresh on the date of accident. The date of termination of hire purchase agreement was on 22.10.2008. The complainant was the owner of the vehicle subject to the hire purchase agreement and no legal transfer can take place without terminating the hire purchase agreement. The complainant affirmed that he was the owner of the vehicle involved in the accident and the opposite parties are liable to indemnify his claim. The rejection of the claim by the opposite parties caused financial loss and mental agony to the complainant and the complaint is filed for getting the claim amount along with interest, compensation and cost.
3. Opposite parties filed version stating that the complaint is not maintainable either in law or on facts. It is admitted that the vehicle was insured with the opposite parties during the period from 23.08.07 to 22.08.08. On receiving the claim form from the complainant an approved surveyor was deputed to assess the loss of the vehicle and the report was filed on 24.01.08 which comes to Rs.1,00,535.30 and payable amount after deduction comes to Rs.98,824.30. It is stated that on enquiry it was revealed that the complainant had already transferred the vehicle to one Mr. K.N. Suresh on 29.06.06 and the transfer effected in the RC book only on 6.02.09. It is also stated that the insured had no insurable interest at the time of accident. As far as the transferee K.N. Suresh is concerned, there is no privity of contract between him and the insurer. Further contention is that as per the criminal case records the vehicle was transferred to one Mr. K.N. Suresh and is also the allegation of the opposite parties that the final bill submitted by the complainant was issued in the name of one Mr. K. N. Natarajan, who is none other than the father of Mr. K.N. Suresh. Subsequent to the transfer the complainant's insurable interest cannot be entertained hence the opposite parties are not liable to pay any amount claimed by the complainant as he is not the owner of the vehicle involved in the alleged accident.
4. To prove the case the complainant was examined as PW1, documents marked as Exts. A1 to A15. On the side of the opposite parties examined DW1 and documents marked as Exts. B1 to B8. On appreciation of the evidence and documents the Forum came to the conclusion that the complainant does not have any insurable interest and he is not entitled for any claim from the insurance company and dismissed the complaint.
5. The learned counsel for the appellants submitted that at the time of accident the complainant was in Mumbai and the management of the bus service was entrusted to K.N. Suresh. A claim form was also submitted during the visit of the investigating officer. It is also submitted that the hypothecation was prevalent till 22.10.08 with Tata Motors limited, a finance company. The date of termination of hire purchase agreement itself is evident that the complainant was the owner of the vehicle as the hire purchase agreement was not terminated. As per the Motor Vehicle Act itself a vehicle cannot be legally transferred without terminating the hire purchase agreement. He also relied on the decision of 1996 (2) KLJ 39 S. Sudhakaran & Ors. Vs. A.K. Francis & Ors wherein it is held that :-
"the sale deed will become complete only after discharging the entire liability due to the bank on account of hire purchase agreement in respect of the lorry and the ownership of the vehicle will be transferred only after discharging the entire liability due to the bank on account of the hire purchase agreement."
As per the Motor Vehicle Act 1988 Sec 51 (4) reads thus:-
" No entry regarding the transfer of ownership of any motor vehicle which is held under the said agreement shall be made in the certificate of registration except with the written consent of the person whose name has been specified in the certificate of registration as the person with whom the registered owner has entered into the said agreement".
In the instant case, the transfer in the RC book was effected only on 06.02.09 ie after the termination of the hire purchase dues paid on 22.10.08. It is also argued that the documents alleged to be the sale deed between Mr. K.N. Suresh and the complainant is not proved properly. The respondents produced a photo copy of (Ext.B6(b), B6(c) are said to be transferred in the name of K.N. Suresh whose name is nowhere in the RC book. The vehicle was transferred to one Mr. K.N. Natarajan in the year 2009 only. The respondents have not proved in evidence or not taken any steps to examine the transferee to prove the allegation. Though the criminal case records produced by respondents it is not proved properly. He also submitted that as there is no evidence available on records to prove that the complainant is not the real owner of the vehicle, the insurer is liable to pay the loss incurred by the insured.
6. The Learned counsel for the respondent submitted before us that the complainant was not the owner of the vehicle during the time of the accident. When the accident was reported the complainant was in Mumbai and one Mr. K.N. Suresh was managing the vehicle. It is also argued that K.N. Suresh submitted the claim form without the signature of the appellant. It is also the allegation by the counsel for respondent that the vehicle was sold to K.N. Suresh on 29.06.06 evidencing the criminal case records as per Ext.B6(a) B6(b), B6(c), B6(d), B6(e). These documents were submitted before Panthalam Police Station as (moonnam sthana kai cheettu) Ext. B6 (b). So also B6(e) is the agreement executed between the complainant and K.N. Suresh, son of K.A. Natarajan on 29.06.06. As per the agreement he had sold the vehicle to K.N. Suresh for an amount of Rs.1,50,000/- and the acceptance of one and half lakhs rupees shows that he had accepted the consideration from Suresh on account of the sale of the vehicle which means sale procedure completed as per Sale of Goods Act. It is also in evidence that the final bill issued on account of the repair of the vehicle in dispute was in the name of one Mr.K.A. Natarajan, who is none other than the father of K.N. Suresh. The accident took place on 3.12.07. The insurance coverage was for a period from 23.08.07 to 22.08.08 as the transfer of the vehicle took place on 29.06.06, the complainant was not the owner of the vehicle at the time of accident. It is to be pointed out that the complainant transferred the vehicle without informing the RT office and did not make any alteration in the RC book, so also the transfer took place without the prior notice of the hire purchaser also. Facts being so, the complainant does not have any insurable interest at the time of accident of the vehicle and he is estopped from demanding any insurance claim.
7. The learned counsel also relied on Sec.157 of the Motor Vehicle Act wherein the act provides-
" that the certificate of insurance together with the policy of insurance described therein shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred. If the policy of insurance covers other risks as well, e.g., damage caused to the vehicle of the insured himself that would be a matter failing outside Chapter X1 of the New Act and in realm of contract for which there must be an agreement between the insurer and the transferee, the former undertaking to cover the risk or damage to the vehicle. In the present case since there was no such agreement and since the insurer had not transferred the policy of insurance in relation thereto to the transferee, the insurer was not liable to make good the damage to the vehicle."
This observation was made in the case M/s. Complete Insulations (P) Ltd. Vs New India Assurance Co. Ltd. 1996 (1) SCC 221 wherein it is held that Sec 157 of the Motor Vehicle Act prevails. In this case, the appellant/complainant already sold the vehicle as per Ext.B6 (e) to one Mr.K.N. Suresh. Hence the appellant/complainant is no more the owner having sold the vehicle, he violated the terms of policy and could not claim the amount by sale of agreement he had abandoned his ownership to K.N. Suresh.
Sale of goods Act Sec.4 (1) :- A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.
Sale of goods Act Sec.4 (4) :- An agreement of sale becomes a sale with the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
So in no way, the appellant/complainant is eligible for the claim amount from the respondents.
8. Considering the arguments advanced by both the learned counsels for the parties we are of the view that at the time of accident the ownership was in the name of the appellant/complainant. The appellants contention that he had transferred the vehicle to one Mr.Natarajan was only on 2009 after discharging the liability under the hypothecation. It is to be pointed out that if there is an agreement for sale, if there exists any conditions to be fulfilled it will be subject to the fulfillment. For a moment agreeing to the agreement for argument sake there is a condition to fulfill which runs with the transfer of vehicle is the condition of hypothecation. Unless and until that condition is fulfilled the sale cannot be absolute. The records produced before the Lower Forum are not proved properly, moreover, the documents produced are photocopies and no value can be attached to that document. As long as there is no claim raised any claim regarding the ownership of the vehicle so far, the appellant/complainant is to be presumed as the owner of the vehicle. It is the submission that the transfer took place only after discharge of the hypothecation liability and it was transferred to one Natarajan. Even if we take a view that the documents are not objected in marking before the Lower Forum, the respondents/opposite parties failed to prove their case regarding the ownership of the vehicle. In the absence of conclusive proof and also in the absence of the survey report on record we are of the considered view that the case is to be remanded back. The Forum is directed to give opportunity for both parties to adduce evidence for a fair disposal of this case.
In the result, the appeal is allowed in part and remitted back to the Forum below for adjudicating the case giving opportunity to both parties to adduce evidence.
The parties are to appear before the Forum below on 10.10.12.
Office is directed to send a copy of this order to the Lower Forum with the LCR.
A. RADHA : MEMBER
M.K. ABDULLA SONA : HON.ACTING PRESIDENT
Da
[ Smt.A.RADHA] PRESIDING MEMBER