State Consumer Disputes Redressal Commission
Bajaj Alliance General Insurance Co Ltd vs Ajikumar.P.B on 29 January, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO. 611/2013 JUDGMENT DATED 29/01/2016 PRESENT: SMT. A. RADHA : MEMBER SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER SMT. SANTHAMMA THOMAS : MEMBER APPELLANTS: Bajaj Allianz General Insurance Co, Ltd., Bajaj Allianz General Insurance Co, Ltd., Bajaj Allianz General Insurance Co., Ltd., 1/82, Nanjammas Complex, Thudiyalur, Coimbatore. (By Adv: Sreevaraham G Satheesh) Vs RESPONDENTS: Ajikumar.P.B., Puthuparambl House, Ezhumattoor P.O., Mallappally, Pathanamthitta-689 586. Baburaj.M., Elapumkal House, Pullad P.O., Koipram Village, Kozhencherry Taluk, Pathanamthitta-689 548. (By Adv: K.S. Satheesh Kumar) JUDGMENT
SMT. A. RADHA : MEMBER Aggrieved by the order passed in C.C.No.29/2013 on the file of CDRF, Pathanamthitta the opposite parties came up in appeal.
2. The case of the complainant is that the 1st complainant is the Power of Attorney holder of 2nd complainant who is the registered owner of Scorpio Car. On 23/2/2011 the 2nd complainant entered into an agreement with the 1st complainant for the sale of the vehicle for Rs.4,50,000/- out of which Rs.4,00,000/- was received as advance and the balance amount of Rs.50,000/- to be paid within 30 days. In the meantime on 3/3/2011 the vehicle met with an accident and sustained damage. It is also stated in the complaint that the 1st complainant failed to raise the balance amount and another sale agreement was executed on 28/2/2011 whereby the 2nd complainant took over the possession of the vehicle. The damages sustained to the vehicle was inspected by the surveyor and the estimate for repairing was calculated to Rs.4,60,231/-. The 2nd complainant also incurred Rs.3,000- for towing the vehicle. The opposite parties refused the insurance claim holding that there is no contract of insurance between the complainant and opposite party and this was informed to the complainant on 26/9/2011. The accident was reported to the Police Station where the date of accident was mistakenly noted as 3/2/2011 instead of 3/3/2011. This was explained by letter dated 30/6/2001 issued by the Sub Inspector of Police. The delay in finalizing the insurance claim and the rejection of insurance claim arbitrarily by the opposite parties amount to deficiency of service as there existed no contract of insurance between the 2nd complainant and the opposite parties. The complaint is filed for direction to pay an amount of Rs.4,88,231/- with 12% interest towards compensation.
3. The main contentions raised by the opposite parties are that the complaint is time-barred and not maintainable in view of condition No.7 of the policy. The policy is admitted for the period from 26/2/2011 to 25/2/2012 and the damage due to the accident sustained on 3/3/2011. The transfer of the vehicle was not intimated to the insurance company at the time of renewal of policy and the policy is in the name of the 2nd complainant itself. The non-disclosure of suppression of the fact of ownership was revealed during the investigation conducted by the surveyor. As per the sale agreement entered into between the 1st and 2nd complainant on 23/2/2011 the vehicle was in possession and ownership of the 1st complainant. Hence the policy lapsed on 25/2/2011. The policy was renewed for another one year till 25/2/2012. The policy renewal was in the name of the 2nd complainant and the non-disclosure of suppression of material fact of ownership is void abinitio. The own damage claim raised by the 2nd complainant was during the period when the 2nd complainant was not the owner of the insured vehicle. It is contended that the 2nd complainant had no insurable interest and is not entitled to receive the benefits of insurance policy. Hence the opposite parties repudiated the own damage claim made by the 2nd complainant for the reason of no insurable interest. The non-payment of the balance sale consideration to the 2nd complainant resulted in taking possession of the vehicle from the 1st complainant on 28/2/2011. Though the 1st complainant had 30 days for payment of balance sale consideration the possession of taking over of the vehicle by the 2nd complainant in the name of resale is only the result of conspiracy between the 1st complainant and 2nd complainant to mislead the Consumer Forum to claim the insurance policy. The transfer of ownership was admitted prior to filing the complaint before the Kerala State Human Rights Commission on 13/8/2011 1st complainant has re-iterated as the owner over the insured vehicle. As per the general diary prepared by the Police on 3/3/2011 the ownership and possession mentioned is with the 1st complainant. It clearly reveals that if the accident reported to be after the date of sale he will not be entitled to own damage claim amount because of the change of name has not made in the R.C. book. The non-disclosure of the transfer of the vehicle with the 1st complainant, the opposite parties could have renewed the policy in the name of 1st complainant itself. In this case the 1st complainant has no privity of contract with the opposite parties and there is no locus-standi to allege deficiency in service on the part of opposite parties. The repudiation of the claim of the 2nd complainant was in accordance with the principles of insurance and utmost good faith. This principle was not complied by the 2nd opposite party by suppressing the material fact of ownership. Hence the complaint is only to be dismissed.
4. The complainant was examined as PW1 and documents were marked as Exbts. A1 to A11 and on the part of opposite parties DW1 was examined and documents were marked as Exbts. B1 to B6.
5. It is argued by the counsel for the appellant that on intimation of the accident the 2nd respondent appointed a surveyor to assess the damage. The vehicle had to be towed and prepared an estimate and the claim form filed wherein the respondent was directed to furnish the clarification regarding the accident. The complaint is filed by the 1st respondent as the Power of Attorney of 2nd respondent who is the registered owner of the vehicle. The vehicle was sold to 1st respondent on 23/2/2011 as per the sale agreement and hence the 2nd respondent lost the ownership of the vehicle from 23/2/2011. The accident occurred as on 3/3/2011 and as per the GD of the Police Station the date of accident was marked as 3/2/2011 which itself shows that the accident happened while the 2nd complainant was not the owner of the vehicle as per the sale agreement produced as Exbt: A5. So also the complaint was filed before the Human Rights Commission, by the 1st complainant as owner of the vehicle for claiming own damage to the vehicle. The 2nd respondent is not entitled to claim own damage as he is not the owner of the vehicle as per the sale agreement. Though the insurance was not transferred to the name of 1st respondent, there also the 2nd respondent is not entitled to claim the insurance amount as he is not the owner. Further argument raised is that the 1st respondent also had not transferred the insurance policy to his name at the time of accident also prohibits the first respondent to claim the insurance amount. The insurance policies are issued on utmost good faith and in this case the 1st and 2nd respondents filed the complaint in collusion and claimed own damage claim to the vehicle. The claim was repudiated by the appellants on the ground that the 2nd respondent has no insurable interest over the vehicle. The District Forum allowed the complaint and directed to pay an amount of Rs.4,60,231/- with 10% interest and also with compensation to the 2nd respondent which is challenged in this appeal. As there is no privity of contract between the 1st respondent and the appellant the claim lodged by the complainants is only to be dismissed. The suppression of material facts by the 2nd respondent is a fraudulent approach to claim the insurance amount. The condition No.7 of the policy was not followed and any claim against the disclaimer made beyond12 months the claim is not maintainable. The counsel pointed out the decisions of the Hon'ble National Commission that without transfer of policy the right to claim own damage of vehicle will not pass on to the purchaser. The counsel also relied on the observation made by Hon'ble Supreme Court in the case of G. Govindan Vs New India Assurance Company Limited (AIR 1999 SC 1398) that any claim of the transferee in respect of his person or property cannot be enforced against Insurance Company without transfer of policy. These legal positions were ignored by the District Forum and allowed the complaint to the insurer who has no insurable interest over the vehicle.
6. Refuting the arguments, the counsel for the respondent submitted that the 1st respondent is the power of attorney holder of the 2nd respondent. It is admitted that the 1st respondent purchased the vehicle from the 2nd respondent for an amount of Rs.4,50,000/- with a condition to pay the balance amount of Rs.50,000/- within 30 days. Due to financial difficulties the 1st respondent returned the vehicle executing another agreement by handing over the vehicle to the 2nd respondent itself on 28/2/2011. The accident occurred on 3/3/2011 while the 1st respondent was driving the said vehicle. The accident was reported to the Police Station wherein a mistake occurred in the date of accident which was corrected by the Sub Inspector of Police evidenced by Exbt: A6 letter dated 30/6/2011. Hence the dispute regarding the date of accident was corrected by the official authorities itself. Exbt.A8 receipt issued by the KPL Crane Service, Mannarkad, Kottayam pertains to the damaged vehicle of the 2nd respondent. The receipt for towing charges is dated 4/3/2011. We find that the registered owner of the vehicle was not changed even though the sale agreement executed on 23/2/2011. It is pertinent to point out that no where it is evident that the 1st respondent is the registered owner nor the insurer of the vehicle except the sale agreement. The sale agreement of 28/2/2011 by returning the vehicle to the 2nd respondent, it is evident that the 2nd respondent is the registered owner and the insurer of the said vehicle. The 2nd respondent is thus having insurable interest over the vehicle. The right to claim own damage of vehicle is still with the 2nd respondent. Hence the contention of the appellant that the claim of the transferee in respect of person or properly cannot be enforced by the Insurance Company without transfer of policy which does not exist in this case. The complaint is filed by the complainant as the 1st respondent, Power of Attorney Holder of 2nd respondent. The claim of the 2nd respondent repudiated by the appellant stating that the 2nd respondent has no insurable interest on the date of accident. The repudiation of the claim was on 6/7/2011 and on that date as per records the 2nd respondent is the sole owner and insurer and there is no ground for rejecting the claim and the repudiation of the claim amounts to deficiency on the part of the appellant. The Exbt: A10 is not objected by the appellant and we are of the considered view that the Forum Below rightly allowed the complaint.
In the result, appeal is dismissed upholding the order passed by the Forum Below.
The order is to comply within 30 days on receipt of this order.
The office is directed to send a copy of this order to the Forum Below along with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL NO.611/2013
JUDGMENT DATED 29/01/2016
Sa.