State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Ravinder Kumar on 27 November, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA, CAMP AT HAMIRPUR. --- FIRST APPEAL NO.212/2008. DATE OF DECISION: 27.11.2009. The New India Assurance Company Ltd., Dev Paul Chowk, Hamirpur, through its Senior Divisional Manager, IIIrd Floor, Block No.7, SDA Complex, Kasumpti, Shimla-171009. Appellant. Versus Sh. Ravinder Kumar son of Sh. Kulwant Rai, R/O Village Leh, Tappa Kuthera, Tehsil and District Hamirpur, H.P. Respondent. ---------------------------------------------------------------------------------------------- Honble Mr. Justice Arun Kumar Goel (Retd.), President. Honble Mr. Chander Shekhar Sharma, Member. Whether approved for reporting? Yes For the Appellant: Mr. Ratish Sharma, Advocate. For the Respondent: Mr. Shiv Raj Singh Patiyal, Advocate, vice Mr. Ajay Sharma, Advocate. ---------------------------------------------------------------------------------------------- O R D E R
Justice Arun Kumar Goel (Retd.), President (Oral).
1. Admitted facts giving rise to this appeal are that, vehicle bearing registration No. HP-22-9536 was initially owned by Shri Krishan Kumar as is evident from Annexure C.1, photo copy of the registration certificate (R.C.). It further shows that it was transferred in favour of Ravinder Kumar, respondent, on 8.3.2006. As per insurance document, Annexure C.2, certificate of insurance, vehicle in question was insured in favour of its erstwhile registered owner i.e. Shri Krishan Kumar.
2. From the record as well as other material placed on the complaint file, it could not be disputed on behalf of the respondent that the insurance had not been got transferred by the respondent after having complied with the provisions of Section 157 of the Motor Vehicles Act read with General Regulation 17 of the India Motor Tariff, 2002, which came into force on and with effect from 1.7.2002. What is its effect, shall be dealt with hereafter.
3. It is again not disputed between the parties that this vehicle met with accident on 27.5.2006 after it had been transferred in the name of the respondent by its registered owner, Shri Krishan Kumar.
However, as noted hereinabove, insurance certificate continued to be in the name of Krishan Kumar.
4. Now the dispute starts. Reason being that after accident, intimation was given by the respondent to the appellant who deputed Shri Umesh Kumar, Surveyor and Loss Assessor for the purpose of finding out if there is any loss justifying further final survey. Claim lodged by the appellant was declined in June, 2006 as per the averments made in the complaint on the ground of non completion of claim formalities. This resulted in filing of Consumer Complaint No.152/2006, alleging deficiency of service. As according to the respondent, he had spent Rs.6,500/- for bringing the vehicle to Hamirpur for repairs from the spot of accident and he incurred another sum of Rs.40,000/- for getting it repaired. Requisite documents were provided to the appellant by the respondent, still his claim was declined in the month of June, 2006 without any justifiable reasons.
In this background, he prayed for the grant of Rs.40,000/- on account of repair charges, Rs.6,500/- as recovery Van charges, Rs.10,000/- for causing unnecessary harassment and mental torture besides Rs.6500/- as litigation cost.
5. When put to notice, complaint was contested by the appellant alleging therein that respondent had no insurable interest, as such they were not liable to indemnify him in the face of the provisions of India Motor Tariff, 2002 and Section 157 of the Motor Vehicles Act, 1988. District Forum below after considering the entire material before it has allowed the complaint thereby directing the appellant to pay Rs.35,091/- with 9% interest per annum from the date of filing of the complaint i.e. 19.10.2006 till realization alongwith Rs.2,000/- as cost. Hence this appeal.
6. Only ground urged by Mr. Ratish Sharma, learned Counsel for the appellant in support of this appeal was that on a plain reading of Section 157 of the Motor Vehicles Act, 1988, alongwith G.R. 17 of the India Motor Tariff, 2002, as in force with effect from 1.7.2002, this appeal deserves to be allowed. On the other hand, learned Counsel for the respondent submitted that the impugned order suffers from no infirmity, as according to him mere non transfer of the insurance policy would not affect the transfer as well as liability of the appellant to indemnify his client. In this behalf, he drew our attention to a judgment of the Division Bench of the Honble High Court of Himachal Pradesh in the case of Ishwar Lal Chaudhary and another Versus National Insurance Company and others, 2008 (2) Shim. LC 310, and submitted that on the basis of this decision, the impugned order deserves to be upheld.
7. A perusal of the decision relied upon by Mr. Patiyal for dismissal of this appeal shows that consideration before the Honble High Court was in the context of a third party claim under Section 149 of the Motor Vehicles Act, 1988. It was in that context that the transfer was held to be not bad. This question has already been set at rest by a number of decisions of the Honble Supreme court wherein amongst other things, it has been held that even after indemnifying the claimant who is a third party, an insurer is entitled to recover the amount so paid from the insured even in cases where the insurer was not liable for any reasons.
8. Admittedly that is not the situation in this case because here we are dealing with an own damage claim. In this behalf, Section 157 read with G.R.17 assumes significance, as such both are reproduced hereinbelow:-
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.
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:.
GR.17. Transfers On transfer of ownership, the Liability Only cover, either under a Liability Only policy or under a Package policy, is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer.
The transferee shall apply within fourteen days from the date of transfer in writing under recorded delivery to the insurer who has insured the vehicle, with 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 insurer may make the necessary changes in his record and issue fresh Certificate of Insurance.
In case of Package Policies, transfer of the Own Damage section of the policy in favour of the transferee, shall be made by the insurer only on receipt of a specific request from the transferee along with consent of the transferor. If the transferee is not entitled to the benefit of the No Claim Bonus )NCB) shown on the policy, or is entitled to a lesser percentage of NCB than that existing in the policy, recovery of the difference between the transferees entitlement, if any, and that shown on the policy shall be made before effecting the transfer.
A fresh Proposal Form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies.
Transfer of Package Policy in the name of the transferee can be done only on getting acceptable evidence of sale and a fresh proposal form duly filled and signed.
The old Certificate of Insurance for the vehicle, is required to be surrendered and a fee of Rs.50/- is to be collected for issue of fresh Certificate in the name of the transferee. If for any reason, the old Certificate of Insurance cannot be surrendered, a proper declaration to that effect is to be taken from the transferee before a new Certificate of Insurance is issued.
9. National Commission in the case of United India Insurance Company Ltd. & Anr., Versus Harinder Kaur, III (2007) CPJ 411 (NC), has held that when no steps were taken for the transfer of policy after transfer of car, transferee was not held entitled to get benefit of insurance policy and the complaint was dismissed. To similar effect is the decision of this Commission in the case of Man Singh Kapoor Versus The New India Assurance Co. Ltd., 2009 (3) CPR 207. Nothing to the contrary was brought to our notice on behalf of the respondent.
10. In the light of above decisions of the National Commission as well as this Commission and the decision of the Honble High Court of Himachal Pradesh being clearly distinguishable, we are of the view that there is no option but for allowing this appeal. Ordered accordingly.
11. No other point was urged.
In view of the aforesaid discussion, while allowing this appeal, order passed by District Forum, Hamirpur, in Complaint No.152/2006 on 12.6.2008 is set aside, and as a result of it said complaint is dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Learned Counsel for the appellant submitted that he shall collect copy of this order free of cost from the Court Secretary at Shimla, whereas Mr. Patiyal, learned Counsel for the respondent submitted that copy of this order may be sent to him in the like manner at his address, District Courts at Hamirpur. While accepting this prayer, office is directed to do the needful.
Hamirpur, November 27, 2009.
( Justice Arun Kumar Goel ) (Retd.) President /BS/ ( Chander Shekhar Sharma ) Member