State Consumer Disputes Redressal Commission
Bharti Axa General Insurance Co.Ltd vs Subhash Thakur & Anr. on 17 June, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/160
Instituted on : 26.04.2016
Bharti Axa General Insurance Company Limited,
Through : Branch Manager and Raghu, Manager Claim,
Branch Office - 3rd Floor, Chawla Complex,
Devendra Nagar, Near Railway Crossing,
Raipur (C.G.) ... Appellant
Vs.
1. Subhash Thakur, S/o Vinod Thakur,
Aged about 22 years, R/o : Bhatgaon,
Abhanpur, District Raipur (C.G.)
2. Ram Khatwani, S/o No known,
Agent, Bharti Axa General Insurance Co. Ltd.,
Branch Office, 3rd Floor, Chawla Complex,
Devendra Nagar, Near Railway Crossing,
Raipur (C.G.). .... Respondents
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Manoj Prasad, for the appellant.
Shri S. Pandya, for the respondent No.1.
None for respondent No.2.
ORDER
Dated : 17/06/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 30.01.2016, passed by the District Consumer Disputes Redressal Forum, Raipur (C.G). (henceforth "District Forum" for short), in Complaint Case No.549/2014. By the impugned order, learned District Forum, has // 2 // partly allowed the complaint of the respondent No.1 (complainant) and directed that :-
(a) The O.P.No.1 Insurance Company will pay the claim amount Rs.29,930/- and amount of stepney Rs.4,000/- i.e. total amount of Rs.33,930/- (Rupees Thirty Three Thousand Nine Hundred Thirty) to the complainant along with interest @ 9% p.a. from 05.09.2014 i.e. filing of the complaint till date of payment.
(b) The O.P.No.1 Insurance Company will pay a sum of Rs.5,000/- (Rupees Five thousand to the complainant towards compensation for mental agony.
(c) The O.P.No.1 Insurance Company will pay a sum of Rs.2,000/- (Rupees Two Thousand ) to the complainant.
2. Briefly stated, the facts of the case are that on 25.11.2013 the complainant purchased a Maruti Swift Car bearing registration No.C.G.04-H-6664 from Naveen Jaynani through agent Ram Khatwani and on 25.11.2013 itself the complainant gave amount to the agent Ram Khatwani from transfer of ownership of the vehicle and for change of name in the insurance policy. Ram Khatwani informed the complainant that within a period of one week, in the R.C. Book and in the insurance policy the name will be got changed. The O.P.No.2 Ram Khatwani, got change in the ownership on 05.12.2013 and in the // 3 // meantime on 22.12.2013 while the car was standing, it was dashed by unknown vehicle The claim was submitted before O.P.No.1 through O.P.No.2. The O.P. No.2 got filled up the claim form. In the meantime, the complainant got repaired the vehicle in which he spent a sum of Rs.29,330/- and the amount of the stepney was Rs.4,000/-. The claim of the complainant was registered as Claim No.F 0355674. After lapse of long time, the complainant contacted the O.P. No.1, it was informed that his claim was repudiated. The complainant contacted the O.P.No.2, then he gave vague reply. The complainant himself went to the Insurance Company and made inquiry then he was informed that at the time of accident the insurance policy was not transferred in his name and on 16.01.2014 policy was transferred in his name. The complainant informed the Branch Manager and Mr. Raghu that on 25.11.2011 the complainant provided fees for transfer of policy in his name and transfer of ownership to the O.P.No.2 Ram Khatwani and Ram Khatwani informed the complainant that he deposited the fees with the O.P.No.1 for transfer of the insurance policy prior to 22.12.2013. The O.P.No.1 deliberately committed delay and did not change name in the insurance policy. The complainant had paid the fees for change of name in the insurance policy, but even then the Insurance Company changed the name in the insurance policy on 16.01.2014, whereas the complainant provided all the amount to the authorized agent of the Insurance Company, Ram Khatwani on // 4 // 25.11.2013. It is settled law that if amount is received by the agent then it will be presumed that the Insurance Company has received the amount. The Insurance Company committed deficiency in service and unfair trade practice by changing the name in the policy belated and by repudiating the claim of the complainant. Ram Khatwani got the ownership transferred on 04.12.2013 but for change of name in the insurance policy amount was provided to him and according to him he provided the amount to the Insurance Company but the Insurance Company transfer the policy belatedly. The O.P.No.2 is authorized agent of the O.P.No.1 and if the O.P. No.2 committed any mistake then the O.P.No.2 is liable for the same because the complainant believed on O.P.No.2 and provided the entire amount. If the O.P.No.2 deposited the amount in the Insurance Company belatedly, the it comes in the category of deficiency in service, for which the O.P.No.2 is liable. The act of OPs comes in the category of deficiency in service and unfair trade. Therefore, the complainant filed consumer complaint before the District Forum, and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
3. The O.P.No.1 Insurance Company filed it's written statement and averred that the name of the complainant is not mentioned as insured in the documents, which are available with the O.P. No.1 therefore the complainant is not consumer of O.P.No.1 and he is not // 5 // competent to submit any claim or file complaint against O.P.No.1, hence the complaint is liable to be dismissed. In the documents which are available with the O.P.No.1, on 22.12.2013 the name of the complainant is not mentioned as insured therefore the complainant was not having insurable interest in the vehicle in question, hence he is not entitled for getting any amount, and the complaint is liable to be dismissed on this ground alone. When the Insurance Company examined the record then it was found that in the instant case the name of the complainant is not mentioned in the insurance policy as insured, therefore, he has no insurable interest in the vehicle, hence the claim of the complainant was repudiated. The previous owner of the vehicle bearing registration No.C.G.04-H-6664 Mr. Naveen Jaynani wrote a letter to the O.P.No.1 on 13.01.2014 and requested to take back the claim lodged by him on 23.12.2013 and closed his claim. Submission of claim by previous owner and taking back the claim shows that on 23.12.2013 i.e. next day of the accident, the vehicle was registered in the name of previous owner otherwise the claim could have been submitted by the complainant. As per provisions of G.R. 17 after sale purchase of the vehicle and transfer of ownership, the purchaser will submit an application before the Insurance Company within 14 days for entering the name of the purchaser as insured in the insurance policy, but the respondent No.1 (complainant) did not do so. The complaint is liable to be dismissed.
// 6 //
4. None appeared for the O.P. No.2 before the District Forum in spite of service of notice, therefore, the O.P.No.2 did not file written statement, affidavit and documents.
5. The respondent No.1 (complainant) filed documents. Document Ex. P/1 is photo copy of the Motor Insurance Claim Form, Ex.P/2 is photocopy of repairing bill of Mahamaya Motors dated 23.12.2013, Ex.P-3 is photocopy of bill issued by Mahamaya Motors in respect of spare parts dated 23.12.2013, Ex.P-4 is photocopy of certificate of registration of vehicle bearing registration No.C.G.04-H- 6664, Ex.P-5 is photocopy of vehicles details, Ex.P-6 is insurance policy of Car bearing registration No.C.G.04-H-6664.
6. The appellant (O.P.No.1) filed documents which are photocopy of letter dated 13.01.2014 sent by Mr. Naveen Jaynani to the Bharti Axa General Insurance Co. Ltd., Raipur (C.G.), Relevant extract of Rules (GR-17) in respect of transfer of the vehicle.
7. Learned District Forum after having considered the material placed before it by the parties has partly allowed the complaint and directed the appellant (O.P.No.1) to pay amounts to the respondent (complainant), as mentioned in para one of this order.
8. Shri Manoj Prasad, learned counsel for the appellant (O.P. No.1) has argued that the impugned order passed by the District Forum, is // 7 // erroneous and is liable to be set aside. He further argued that initially the vehicle Maruti Swift Car bearing registration No.C.G.04-H-6664 was owned by Naveen Janyani and the respondent No.1 (complainant) purchased the said vehicle from Naveen Janyani prior to the date of incident, but the respondent No.1 (complainant) did not inform the appellant (O.P.No.1) regarding the transfer of the vehicle in question in his favour and he did not bother to change his name in the insurance policy instead of name of previous owner of the vehicle, therefore, the impugned order passed by the District Forum, is erroneous and illegal. The respondent No.1 (complainant) has no insurable interest in the vehicle and he is not entitled to get any compensation from the appellant (O.P.No.1) under the insurance policy. The impugned order passed by the District Forum, is illegal and is liable to be set aside. The appeal of the appellant (O.P. No.1) may be allowed.
9. Shei S. Pandya, learned counsel for the respondent No.1 (complainant) has supported the impugned order passed by the District Forum and submitted that the vehicle in question was owned by the respondent No.1 (complainant). The vehicle in question was transferred in the name of the respondent No.1 (complainant) and was duly registered in the name of the respondent No.1 (complainant), therefore, the respondent No.1 (complainant) has insurable interest in the vehicle in question. The accident took place on 22.12.2013 and the // 8 // name of the respondent No.1 (complainant) was already entered in the R.C. book on 05.12.2013. The respondent No.1 (complainant) gave the amount to respondent No.2 (O.P.No.2) Ram Khatwani, who is agent of the appellant (O.P.No.1) for changing the name in the insurance policy and Ram Khatwani assured the respondent No.1 (complainant) that his name will be entered in the insurance policy instead of name of Naveen Janyani, therefore, if his name was not changed in the insurance policy, the respondent No.1 (complainant) is not responsible for the mistake committed by the respondent No.2 (O.P.No.2). Therefore, if any mistake was committed by the respondent No.2 (O.P.No.2), then the appellant (O.P.No.1) is responsible for it. The respondent No.1 (complainant) gave the amount to the respondent No.2 (O.P.No.2) for changing name of the insured in the insurance policy and if the name was not changed in the insurance policy, the respondent No.1 (complainant) is not responsible for it and the respondent No.1 (complainant) is entitled to get compensation from the appellant (O.P.No.1). The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission. He placed reliance on National Insurance Company Ltd. Vs. Subhash Chand Kataria & Anr. II (2008) CPJ 324 (NC).
10. None appeared for the respondent No.2 (O.P.No.2) before us on 15.06.2016 when the case is fixed for final arguments.
// 9 //
11. We have learned counsel appearing for the parties and have also perused the record of the District Forum as well as impugned order.
12. According to the respondent No.1 (complainant), the accident took place on 22.12.2013. The respondent No.1 (complainant) filed document Ex. P/5, which is particulars of registration of vehicle baring registration No.C.G.04-H-6664. Initially the vehicle in question was owned by Naveen Janyani and the in the Certificate of Registration, the name of Subhash Singh Thakur was entered and ownership of the vehicle was transferred on 05.12.2013. It appears that at the time of the accident, the name of the respondent No.1 (complainant) was already entered in the R.C. book. The respondent No.1 (complainant) filed photocopy of the insurance policy (Ex. P-6) in which it is mentioned that policy is transferred in the name of Subhash Singh Thakur on 16.01.2014. In the said document, the effective date of the policy is mentioned as 16/01/2014. It appears that the name of the respondent No.1 (complainant) was entered in the insurance policy o on 16.01.2014 i.e. after the date of accident. It is admitted fact that the vehicle in question was initially owned by Naveen Janyani and Naveen Janyani sold the vehicle to the respondent No.1 (complainant.) Naveen Janyani submitted a claim before the appellant (O.P.No.1) and thereafter he wrote a letter on 13.01.2014 to the appellant (O.P.No.1) for cancellation of his claim. It appears that at the time of accident, the name of the // 10 // respondent No.1 (complainant) was not entered in the insurance policy. On the date of accident, the name of previous owner was mentioned in the policy. The respondent No.1 (complainant) submitted that he gave amount to the respondent No.2 (O.P.No.2) Ram Khatwani for changing name of the insured, but no document has been filed by the respondent No.1 (complainant) regarding giving amount to the respondent No.2 (O.P.No.2). Merely averment made in the affidavit of the respondent No.1 (complainant) is not sufficient to prove that the respondent No.1 (complainant) gave amount to the respondent No.2 (O.P. No.2) for changing the name of the insured in the insurance policy. If the respondent No.2 (O.P.No.2) had received the amount from the respondent No.1 (complainant), the name of the owner could have been changed in the R.C. Book and definitely the respondent No.2 (O.P.No.2) got changed the name of the insured in the insurance policy. It shows that no amount was paid by the respondent No.1 (complainant) to the respondent No.2 (O.P.No.2). It appears that the name of the respondent No.1 (complainant) could not be entered because the respondent No.1 (complainant) had not intimated the appellant (O.P.No.1) regarding transfer of vehicle in question.
13. The respondent No.1 (complainant) has not filed any document which shows that he informed the appellant (O.P. No.1) regarding transfer of the vehicle and requested to change the name of the insured // 11 // in the insurance policy. Even the respondent No.1 (complainant) has not moved any application before the appellant (O.P.No.1) for changing name of the insured in the insurance policy instead of previous owner prior to 16.01.2014.
14. GR.17 - Transfers reads thus :-
"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 issued 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, record of the difference between the transferee's 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 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 // 12 // 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, declaration to that effect is to be taken from the transferee before a new Certificate of Insurance is issued."
15. In Complete Insulations (P.) Ltd. Vs. New India Assurance Co. Ltd., 1996 (1) T.A.C. 340 (SC), Hon'ble Supreme Court, has observed thus :-
"10. ..............It is only in respect of third party risks that Section 157 of the New 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 who 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 falling outside Chapter XI of the New Act and in the 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....."
16. In Oriental Insurance Co. Ltd. vs. Mushtaq Khan & Anr. II (2015) CPJ 145 (NC), Hon'ble National Commission has observed thus :-
"Learned Counsel for the petitioner submitted that as vehicle as well as insurance policy not transferred in the name of complainant at the time of accident, petitioner was not liable to make any payment towards claim. In support of his contention he has placed reliance on judgment delivered by me reported in I (2014) CPJ 493 (NC) - Sandeep Gupta v. United India Insurance Co. Ltd. & Anr., in // 13 // which it was held that if transferee fails to inform Insurance Co. about transfer of registration certificate in his name and policy is not transferred in his name, Insurance Company cannot be held liable to pay claim in case of own damage of vehicle. Same view has been taken by me in I (2014) CPJ 128 (NC), New India Assurance Co. Ltd. vs. Ashok Thakur. Learned Counsel for the respondent placed reliance on judgment of this Commission in IV (2007) CPJ 289 (NC), Shri Narayan Singh v. New India Assurance Co. Ltd., on which State Commission has also placed reliance in which it was observed that benefits under policy automatically accrue to new owner on transfer of vehicle. In the aforesaid case, accident occurred on 2.8.1995, but after 30.06.2012, as per GR 17, subsequent purchaser was under an obligation to get the vehicle and insurance policy transferred in his name within 14 days from the date from the date of transfer of registration certificate in his name for claiming damages to the vehicle. In the case in hand, neither registration certificate was transferred in the name of complainant, nor insurance policy stood transferred in the name of complainant at the time of accident and in such circumstances, in the light of aforesaid judgments complainant was not entitled to any claim regarding damages to the vehicle and petitioner has not committed any deficiency in repudiating claim and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed."
17. In Cholamandalam MS General Insurance Co. Ltd. vs. Naresh Laxminarayan Bhutada & Anr. II (2015) CPJ 167 (NC), Hon'ble National Commission has observed thus :-
// 14 // "9. Though the transfer was made in May, 2007, no application was made before the RTO for transfer of ownership. Section 50(1)(b) clearly lays down, as under :-
"the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he has the residence or place of business where the vehicle is normally kept, as the case may be, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration."
18. In the case of New India Assurance Co. Ltd. v. Dalip Kumar, IV (2011) CPJ 579 (NC), Hon'ble National Commission has observed that "transferee fails to inform Insurance Company about transfer of Registration Certificate in his name - Policy is not transferred in name of transferee then Insurance Company cannot be held liable to pay claim in case of own damage of vehicle - Insurance Company justified in repudiating the claim."
19. In the case of Oriental Insurance Co. Ltd. v. Kamal Tours and Travels, III (2011) CPJ 39 (NC), Hon'ble National Commission has observed thus :-
"9. It is not in dispute that Respondent had got the vehicle insured with the Petitioner / Insurance Company which was involved in an accident causing loss of the vehicle and which was assessed by the Petitioner's Surveyor at Rs.2,57,455/-. There is, however, credible // 15 // documentary evidence in the instant case that at the time when the accident took place, insuree had already sold the vehicle to another person. He also did not inform the Petitioner/Insurance Company regarding the sale of vehicle nor was the vehicle transferred in the name of new owner. As stated by the Counsel for Petitioner, in a case under similar circumstances, this Commission has given a clear ruling that if a vehicle is sold by the insuree to another person without intimation to the Insurance Company then in case of any claim covered under the insurance policy, the insuree ceases to have an insurable interest."
20. In the case of Mushtaq Mohd. & Anr. v. National Insurance Company Ltd., I (2013) CPJ 64 (NC), Hon'ble National Commission, observed that "complainant failed to transfer insurable claim within 14 days from the date of registration, transferee had no insurable interest at the time of accident. He had no locus standi to file the claim."
21. In Revision Petition No.4126 of 2014 The New India Assurance Co. Ltd. vs. Shri Surendra Kumar Bhilawe decided by Hon'ble National Commission on 23.02.2015, Hon'ble National Commission has observed thus :-
"8. Section 19 of the Sale of Goods Act, 1930, which deals with the stage when the property (title) in movable property passes to the buyer reads as under :-
"19. Property passes when intended to pass (1) Where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the // 16 // buyer at such time as the parties to the contract intend it be transferred.
(2) For the purpose of ascertaining the intention of the parties regard shall be had to the terms of the contract, the conduct of the parties and the circumstances of the case. (3) Unless a different intention appears, the rules contained in sections 20 to 24 are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer."
It would thus be seen that the title in a movable property is transferred to the purchaser only at the time the parties to the transaction intend it to be so transferred. The intention of the parties would be gathered primarily from the terms of the contract coupled with the conduct of the parties and the circumstances of each case.
9. Section 20 of the Act, which deals with passing of property in the good which are in a deliverable state reads as under :-
"20. Specific goods in a deliverable state. - Whether there is an unconditional contract for the sale of specific goods in a deliverable stage, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of the payment of the price or the time of delivery of the goods, or both, is postponed.
Thus, the property i.e. ownership of vehicle in question passed from the previous owner to the complainant, on execution of the sale agreement dated 02.04.2004, since, there is nothing on record to indicate that the parties intended to postpone the passing of the property in vehicle in question to the complainant, till the time it was got registered in her name in the record of the RTO.
// 17 //
10. In our view, when the owner of a vehicle sells the said vehicle to another person, and executes a sale letter, without in any manner postponing the passing of title/property in the vehicle, the ownership in the vehicle passes to the purchaser on execution of sale letter itself. The delivery of the vehicle only reinforces the title which the purchaser gets to the vehicle on execution of the sale letter in his favour. As far as transfer of the vehicle in the name of the purchaser in the record of the RTO is concerned, that is a requirement for the purpose of the Motor Vehicle Act but that does not postpone the transfer of the ownership in the vehicle to the purchaser till the time the vehicle is transferred in his name in the purchaser in the record of the concerned RTO."
22. Looking to the documents and the pleadings of the respondent No.1 (complainant), we find that it is clearly established that the Naveen Janyani had transferred the vehicle in question to the respondent No.1 (complainant) and also handed over possession of the same to the respondent No.1 (complainant). The vehicle in question was registered in the name of the respondent No.1 (complainant) at the time when it met with an accident. The vehicle in question is a movable property and the provisions of Sale of Goods Act, 1930 applies in the case of sale of the vehicle and therefore, when the vehicle in question was delivered to new owner and the new owner took possession of the vehicle in question, then the sale of the movable property was complete. Thus, the vehicle in question was transferred by Naveen Janyani to the respondent No.1 (complainant), therefore, it was necessary for the respondent No.1 (complainant) to have made a // 18 // prayer to the appellant (O.P.No.1) as per provisions of G.R.17 as well as under Sub Clause (2) of Section 157 of the Motor Vehicles Act, 1988 for change in the name of the insured in the insurance policy. No such prayer was made by the respondent No.1 (complainant) within 14 days as per provisions of GR-17. Thus, the respondent No.1 (complainant) has not become insured of the appellant (O.P.No.1), therefore, the respondent No.1 (complainant) was not having insurable interest in the vehicle in question, hence, the appellant (O.P.No.1) has rightly repudiated the claim of the respondent No.1 (complainant) and it has not committed any deficiency in service.
23. We are of the view that the impugned order dated 30.01.2016, passed by the District Forum, is erroneous and is not sustainable in the eye of law and is liable to be set aside.
24. Hence the appeal filed by the appellant (O.P. No.1) is allowed and the impugned order dated 30.01.2016, passed by the District Forum, is set aside. Consequently complaint of the respondent No.1 (complainant) shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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