State Consumer Disputes Redressal Commission
Om Shriwas vs Manager United India Insurance Co. Ltd. on 22 March, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2015/645
Instituted on : 26.12.2015
Om Shrivas, Age 26 years,
S/o Shri Gopi Shrivas,
R/o : Pandit Deendayal Upadhyay Nagar,
Raipur, Tehsil & District Raipur (C.G.)
Present Address : Kripal Nagar, Kohka,
Bhilai, Tehsil & District Durg (C.G.) ... Appellant.
Vs.
Manager,
United India Insurance Company Limited,
Tara Complex, G.E. Road, Power House,
Bhilai, Tehsil & District Durg (C.G.) 490011 ...Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
Shri P.K. Paul, for the respondent.
ORDER
Dated : 22/03/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 28.10.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth called "District Forum") in Complaint Case No.C.C./2015/170. By the impugned order, the District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated, the facts of the complaint of the appellant (complainant) are that the vehicle bearing registration No.C.G.17.G.A.0877 was insured by the respondent (O.P.) through registered owner of the said vehicle Smt. Renu Saxena, W/o K.K. Saxena. The insurance policy number was 191500/31/12/01/00004610 and was effective for the period from 04.07.2012 to 03.07.2013. The appellant (complainant) had taken the above vehicle from Smt. Renu Saxena in the capacity of her friend. On 12.04.2013 at 5.30 P.M. the above vehicle met with an accident near Kurud, Police Station Lalbag, District Rajnandgaon. After accident, the appellant (complainant) gave intimation regarding the incident to the respondent (O.P.) and the vehicle was given to Khetan Automobiles, Bhilai for repairing work. The photographs were taken by the establishment of the non-applicant and also gave valuation report, thereafter the vehicle was got repaired in Khetan Automobiles in which he spent a sum of Rs.1,84,880/-. Besides this, a sum of Rs.1,10,000/- was spent in the parts. Thus a total sum of Rs.2,94,880 was spent by the appellant (complainant) in repairing of the vehicle. The appellant (complainant) submitted claim form along with bill (parts) and repairing expenses of Khetan Automobile to the respondent (O.P.). The respondent (O.P.) did not pay the compensation till date and also did not make clear any reason for not paying the same, due to which the appellant (complainant) suffered mental agony and financial loss, whereas as per terms and // 3 // conditions of the insurance policy, the appellant (complainant) immediately gave intimation regarding the incident to the respondent (O.P.) and also submitted bills regarding purchase of the parts, insurance policy, R.C. Book before the respondent (O.P.) but till date the respondent (O.P.) did not pay the compensation to him. The appellant (complainant) sent legal notice to the respondent (O.P.) on 02.03.2015, but even then the respondent (O.P.) did not give any reply and also did not settle the claim of the appellant (complainant) by making payment of the compensation. Hence, the appellant (complainant) filed consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The respondent (O.P.) filed its written statement and averred that the appellant (complainant) purchased the insured vehicle from the insured Smt. Renu Saxena, but the appellant (complainant) and the insured Smt. Renue Saxena did not give intimation regarding the same to the respondent (O.P.). On 01.07.2013 when the intimation regarding the incident was received by the respondent (O.P.), the respondent (O.P.) appointed Surveyor Shri Ravinder Bagga and demanded Survey Report, on the basis of which the Surveyor assessed the loss on repairing basis to the tune of Rs.1,35,000/- and submitted survey report before the respondent (O.P.) on 31.12.2013. Smt. Renu Saxena has submitted claim form before the respondent // 4 // (O.P.) and not the appellant (complainant). The appellant (complainant) did not submit any claim before the respondent (O.P.). There is no contract between the appellant (complainant) and respondent (O.P.) for making compensation in respect of the insured vehicle. The appellant (complainant) is not "consumer" of the respondent (O.P.). In these circumstance, in absence of any insurance contract, the appellant (complainant) is not entitled to get any compensation. On claim being submitted by insured Smt. Renu Saxena before the respondent (O.P.), the respondent (O.P.) appointed Shri Krishna Kumar G.R. for conducting investigation and Shri Ravinder Bagga for conducting survey, through whom it came to know that the insured had sold the insured vehicle to the appellant (complainant) Om Shrivas prior to the date of incident and the insured had suppressed the important fact from the respondent (O.P.) at the time of submitting claim and when the respondent (O.P.) demanded necessary documents, then she did not submit the above documents. The insured violated the terms and conditions of the insurance policy, therefore, on 21.04.2014 the respondent (O.P.) repudiated the claim and gave intimation regarding the same to Smt. Renu Saxena. According to the appellant (complainant) the cause of action arisen on 04.07.2012, in these circumstances, the claim/complaint of the appellant (complainant) is liable to be dismissed as it is time barred. According to the appellant (complainant) the incident occurred at Lalbag // 5 // Rajnandgaon, in these circumstances, no cause of action has arisen under jurisdiction of the District Forum, therefore, for want of jurisdiction, the complaint is liable to be dismissed. According to the appellant (complainant) the incident occurred on 04.07.2012 and the cause of action has arisen on 04.07.2012. According to the Consumer Protection Act, 1986 the complaint has to be filed within 2 years from the date of accrual of cause of action. The appellant (complainant) has filed the instant complaint after 9 months of the expiry of the prescribed period and has not given any reason for the delay, therefore, the complaint of the appellant (complainant) is liable to be dismissed being time barred.
4. The appellant (complainant) filed document. Document Ex.P-1 is First Information Report (Under Section 154 Cr. PC), Ex. P-2 is letter dated 22.08.2013 sent by Shri Krishna Kumar G.R. to Smt. Renu Saxena, Ex. P-3 is Certificate of Insurance Private Car Package Policy, Ex.P-4 to Ex. P-7 are bills issued by Jaya Automobiles on various dates, Ex. P-8 & Ex.P-9 are Cash Memo dated 14.10.2014 issued by Khetan Automobiles, Ex.P-10 to Ex.P.12 are Bill No.18280, 18277 and 18279 dated 07.08.2014 issued by Bhilai Auto Agency, Durg (C.G.), Ex.P-13 is Estimate Memo No.C-12 dated 29.05.2014 issued by Coolage, Raipur (C.G.), Ex.P-14 is Estimate No.331 dated 14.08.2014 issued by Preet Motors, Bhilai (C.G.), Ex.P-15 is bill dated 08.05.2014 issued by Capital Auto Electrical Repairing Works, Ex.P-16 is Estimate dated 28.04.2014 // 6 // issued by Amar Lubricants, Bhilai (C.G.), Ex.P-17 is Bill No.2291 dated 22.08.2014 issued by Amar Auto Stores, Bhilai (C.G/), Ex.P-18 is Bill No.883 dated 06.04.2015 issued by Amar Auto Stores, Bhilai (C.G.), Ex.P-19 is registered notice dated 02.03.2015 sent by Shri Sanjay Kumar Agrawal, Advocate on behalf of the appellant (complainant) to the respondent (O.P.).
5. The respondent (O.P.) has filed documents. Document Ex.D-1 is Motor Final Survey Report dated 30th December, 2013 of Shri Ravinder Bagga, Surveyor & Loss Assessor, Ex. D-2 is Investigation Report dated 25.11.2013 of Shri Krishna G.R., Ex. D-3 is statement of the appellant (complainant) recorded by the Investigator, Ex.D-4 is notice, Ex.D-5 is statement of Shri Devesh Shrivas recorded by the Investigator, Ex.D-6 is statement of Shri Gopi Shrivas recorded by the Investigator, Ex.D-7 is Motor Claim Form, Ex.D-8 is letter dated 21.04.2014 sent by the respondent (O.P.) to the appellant (complainant).
6. Learned District Forum after having considered the material placed before it by the parties, has dismissed the complaint of the appellant (complainant).
7. Shri R.K. Bhawnani, learned counsel appearing for the appellant (complainant) has argued that the vehicle in question was duly insured with the respondent (O.P.). The appellant (complainant) purchased the said vehicle form Smt. Renu Saxena and the appellant // 7 // (complainant) is owner of the vehicle in question, therefore, the appellant (complainant) has insurable interest in the vehicle in question. The impugned order passed by the learned District Forum, is erroneous and learned District Forum, did not consider the plea taken by the appellant (complainant) and without going through the affidavits and documents filed by the appellant (complainant), the District Forum passed the impugned order, therefore, the same is liable to be set aside.
8. Shri P.K. Paul, learned counsel appearing for the respondent (O.P.) has supported the impugned order passed by the District Forum and submitted that Smt. Renu Saxena had transferred the vehicle in question to the appellant (complainant), but the appellant (complainant) did not inform the respondent (O.P.) regarding transfer of the vehicle in question by Smt. Renu Saxena in his favour and he did not bother to change the name of the appellant (complainant) in the insurance policy instead of name of the previous owner. Even the claim was filed by Smt. Renu Saxena in respect of the vehicle in question before the respondent (O.P.), therefore, the appellant (complainant) has no insurable interest in vehicle in question. Hence the impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission. He place reliance on Revision Petition No.4126 of 2014 - The New India // 8 // Assurance Company Limited Vs. Shri Surendra Kumar Bhilawe, decided by Hon'ble National Commission on 23.02.2015.
9. We have heard learned counsel for both the parties and have perused the record of the District Forum.
10. The appellant (complainant) has pleaded in para no.2 of his complaint that the vehicle bearing registration No.C.G.17-GA-0877 was previously owned by Smt. Renu Saxena and the appellant (complainant) had taken the said vehicle from her. In the complaint, the appellant (complainant) nowhere pleaded that he had applied for transferring his name in the Certificate of Registration or in the insurance policy. The appellant has not filed any document to establish that he had applied before the concerned R.T.O. and the respondent (O.P.) for changing the name in Certificate of Registration and insurance policy respectively.
11. The respondent (O.P.) filed document Ex.P-2 i.e. Report of the Investigator Shri Krishna Kumar G.R. dated 25.11.2013. In the Investigation Report it is mentioned that he had enquired the matter with Mr. Gopi Shrivas, father of Mr. Om Shrivas. He has stated that his son Mr. Om Shrivas purchased the Mahindra Scorpio bearing registration No.C.G.17/GA-0877 in September, 2012 from Smt. Renu Saxena, but the ownership of the vehicle was not transferred in the name of his son. Under the head Conclusion he mentioned thus :-
// 9 // "As per the above investigation proceedings on 12.04.2013 at about 05.30 a.m, the driver of the Scorpio vide registration No.C.G.17/GA-
0877 was dashed his vehicle to a road side tree after dashing two cyclists by high speed and negligent driving near Village - Sivni Khurd pond, Police Station - Lal Bag, Distt. - Rajnandgaon and caused damages to the insured vehicle and injuries to himself as well as the occupants of his vehicle and two cyclists, however after sending registered post letter also the insured Smt. Renue Saxena has not make herself available for necessary enquiries it seems that she is not interested in the aforesaid claim because she has sold the accidental vehicle to Mr. Om Shrivas. Even Mr. Om Shrivas has informed the Police authorities in written that he has purchased the vehicle no.CG- 17/GA-0877 from Smt. Renu Saxena of Jagdalpur. Mr. Om Shriwas and his family members have also CONFIRMED the same in their statements."
12. The Investigator recorded the statements of Om Shrivas, the appellant (complainant), Devesh Shrivas, brother of the appellant (complainant), in which they have stated that the appellant (complainant) purchased the vehicle from Smt. Renu Saxena and a sum of Rs.2,00,000/- was paid to her and the rest of the amount was to be paid after transferring the ownership of the vehicle in his name.
13. In Complete Insulations (P.) Ltd. Vs. New India Assurance Co. Ltd. Vs. New India Assurance Co. Ltd., 1996 (1) T.A. 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 // 10 // 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....."
14. 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 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 // 11 // 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."
15. In Cholamandalam MS General Insurance Co. Ltd. vs. Naresh Laxminarayan Bhutada & Anr. II (2015) CPJ 167 (NC), Hon'ble National Commission has observed thus :-
"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."
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16. 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."
17. 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 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."
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18. 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." 19 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 (Supra), 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 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."
// 14 // 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.
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."
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20. Looking to the documents and the pleadings of the appellant (complainant) and Investigator Report of Shri Krishna Kumar G.R., we find that it is clearly established that Smt. Renu Saxena had transferred the vehicle in question to the appellant (complainant) and had also handed over the possession of the same to the appellant (complainant). The vehicle in question was registered in the name of Smt. Renu Saxena at the time of the 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 Smt. Renu Saxena to the appellant (complainant) therefore, it was necessary for the appellant (complainant) to have made a prayer to the respondent (O.P.) 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 has been made. Thus appellant (complainant) has not become insured of the respondent (O.P.), therefore, the appellant (complainant) was not having insurable interest in the vehicle in question, hence the respondent (O.P.) has rightly repudiated the claim and it has not committed any deficiency in service.
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21. We are of the view that the impugned order dated 28.10.2015, passed by the District Forum, is just and proper and does not suffer from any infirmity, irregularity or illegality, hence does not call for any interference by this Commission.
22. Therefore, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 22/03/2016 22/03/2016 22 /03/2016 22/03/2016