National Consumer Disputes Redressal
Shri N. Gopal vs Branch Manager, The National Insurance ... on 10 September, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1437 OF 2012 (Against the order dated 12.12.2011 in Appeal No.226/2011 of the State Commission, Karnataka) Shri N. Gopal S/o Sri Narasegowda R/o T.B.Extension Nagamangala District Karnataka ....... Petitioner Versus Branch Manager, The National Insurance Co.Ltd. V.V.Road, Mandya, Karnataka Rep. by the Manager, Regional Office, Shubhram Complex 144, Mahatama Gandhi Road Bangalore 560001 (Karnataka) ... Respondent BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr.S.N.Bhat, Advocate Pronounced on : 10th September, 2014 ORDER
REKHA GUPTA Revision Petition No. 1437 of 2013 has been filed by the petitioner/complainant against the order dated 12.12.2011, passed by Karnataka State Consumer Disputes Redressal Commission, Bangalore (short, State Commission) in First Appeal No.226 of 2011.
2. The facts of the present case as per petitioner/complainant are that he had purchased for his own use a car bearing Chasis No. MAL. Ch 41 WR4M 100036 and Engine No.D3-EA-4436774 having registration number KA-11-MC-0007 from the Managing Director of M.K. Agro Tech Pvt. Ltd., M.R.Road, Srirangapatna on 3.11.2007.
3. The petitioner submitted that subsequent to the date of purchase of the vehicle, the petitioner informed the Traffic Officer to transfer the ownership of the vehicle to his name by producing all the documents. The authority concerned had transferred the aforesaid vehicle into the name of the petitioner on 14.1.2008. Thus, the petitioner became absolute owner of the said vehicle on that day.
4. The previous owner of the vehicle had taken the policy from 1.12.2007 to 30.11.2008 of the vehicle bearing Chasis No. MAL.
Ch 41 WR4M 100036 and Engine No.D3-EA-4436774 from the respondent - company. The policy No. is 602401/31/07/6100004209 and all the dues and premium of the policy was paid by the previous owner of the vehicle without any dues or delay. On 25.1.2008, the aforesaid vehicle met with an accident on the Tumkur-Mysore main road near Bellur. Due to this accident on the said vehicle was fully damaged. The petitioner being the absolute owner of the vehicle, after the accident, informed the respondent about the accident. The respondent/ opposite party company appointed a surveyor and got a survey report. The petitioner submitted all the necessary documents and requested to sanction the policy amount of the damaged vehicle. The respondent was dragging the matter by giving one or other untenable reasons.
5. After several demands and requests made by the petitioner on 7.11.2008, the respondent issued a letter giving an untenable reply. The respondent issued another letter on 9.3.2010 with untenable reasons.
6. The petitioner being the absolute owner of the vehicle and the policy being in force on the date of the accident, and the vehicle had been fully damaged by accident for which he spent Rs.2,90,170/- for repair, the petitioner was entitled for the claim amount as provided in the provision of the policy.
7. The cause of action arose on the date of the accident. Wherefore, the petitioner prays that this Honble Forum to direct the respondent to pay the claim amount of Rs.2,90,170/- for damaged of the vehicle with 24% interest from the date of the accident, compensation of Rs.50,000/- for his mental agony and cost of this complaint and such other relief as deem fit.
8. The respondent/opposite party in their written version before the District Consumer Disputes Redressal Forum, Mandya (short, District Forum) admitted that :-
1.
It is true that the car bearing Registration No.KA-11/MC0007 stood insured with the opposite party and as per the policy the name of the owner/insured of the car was Managing Director, M.K.Agro Tech PVt. Ltd., Mandya and that the policy was in force from 1.12.2007 to 30.11.2008.
2. It is true that one Sri N.Chethan, R/o the old P.O. Road, T.N. Badavane, Nagamangala gave an accident intimation letter dated 14.2.2008 stating that the car in question had met with an accident on 25.1.2008 and it was also mentioned in this letter that M/s Agro Tech Pvt. Ltd. was its registered owner. Later, it is true that a claim was lodged by the complainant claiming himself to be the owner of the car in question.
On verification and investigation, it was found that the claimant/complainant was not the owner cum insured of the car but the said M.K.Agro Tech Pvt.Ltd. was the owner on record. Naturally the opposite party to get the facts clarified, corresponded with the said insured on record and also made efforts to obtain the necessary documents from the concerned RTO to ascertain the ownership of the car. It is true that in response to the letter written by the petitioner, the insured M/s Agro Tech Pvt. Ltd. replied stating that they had sold the said car to the complainant on 3.11.2007. But till this day, the complainant has got the ownership changed to his name, if he had purchased the car from the insured. Till date the R.C. stands in the name of M/s Agro Tech Pvt. Ltd., in fact the policy in question is a package type of policy, wherein it is stipulated that the transfer of ownership, if any has to be intimated to the insurer within fourteen days from the date of issue of No Objection Certificate from the Transport Authority and see that the policy is transferred to his name. The complainant was neither diligent enough to inform the insurer about NOC issued to the insurer and got the policy transferred to his name nor did he get the RC transferred to his name till today. As such, the complainant cannot be considered as the insured under the contract as his name does not find a place in the policy and consequently the complainant being a stranger to the contract without insurable interest cannot be a consumer also as provided under the Act.
Hence, the complainant is only an outsider to the existing contract and no privity of contract exists between the complainant and the opposite party and consequently bound to indemnify the loss if any caused to the complainant as alleged.
3. The opposite party submits that Section 157 of the Motor Vehicles Act, 1988, requires the owner of the vehicle that in case he intends to transfer the ownership of the vehicle, in respect of which the insurance was taken the insurance shall be deemed to have been transferred in favour of the person to whom the vehicle is transferred with effect from the date of its transfer and such deemed transfer shall include the transfer of rights and liabilities. It is also incumbent on the part of the transferee to apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in the policy with regard to the fact of transfer of ownership as described in the said provision of law. Since, the complainant has not chosen to comply with the legal formalities to get the policy transferred to his name, he has no legal and contractual competency to seek for the benefits under the policy in question.
4. It is false to say that the complainant made several demands for the claim amount. In fact, except filing the claim before the opposite party, he has never approached the opposite party in person.
It is further false to have alleged that the opposite party dragged on the settlement with pretext. The complainant is called upon to prove the same.
5. It is absolutely false to say that the complainant is the absolute owner of the car in question and that he has spent Rs.2,90,170/- towards repair of the car and the repair bills produced by them are not genuine, but are created for the purpose of the case. The complainant is called upon to prove these allegations and averments made in the complaint.
9. District Forum vide their order dated 22.2.2012, while partially allowing the complaint passed the following order :-
Under Section 12 of the Consumer Protection Act, 1986, the complainant Sri N.Gopal filing a complaint against the opponent National Insurance Co.Ltd. on
10.6.2010 is partially allowed and the opponent insurance company is directed to release the insurance cover amount Rs.2,90,170/- to the complainant. If failed to pay within a period of one month, along with an interest of 9% per annum, till the entire amount is recovered the complainant has right to recover.
10. Aggrieved by the order of the District Forum, respondent filed an appeal before the State Commission. State Commission, vide their order dated 12.12.2011, while allowing the appeal observed that :-
7.
There is no dispute with regard to the ownership of the vehicle regarding the vehicle bearing No.KA-11/MC-007. Insurance policy was issued in favour of M/s Agro Tech Pvt. Ltd. for a period from 1.12.2007 to 30.11.2008 and the RC was transferred in his name. There is a delay in transferring of vehicle in his name.
The RTO of Nagamangala transferred the same on 28.4.2010 for which he is not responsible.
8. Of course, respondent/appellant has taken a contention if the vehicle has been transferred and documents also to be transferred in the name of purchaser including the insurance policy.
Actually, the vehicle in question was sold on 3.11.2007 and it was registered and the policy was issued. But the respondent has not got it transferred in his name. as per the provisions of Motor Vehicle Act within 15 days from the date of transfer of vehicle the name of the purchaser also to be transferred. But in the instance case, it is not so. Therefore, policy issued in favour of M/s Agro Tech Pvt. Ltd. was continued. But the findings recorded by the District Forum that the respondent stated to have been purchased the vehicle from M/s Agro Tech Pvt. Ltd. on 3.11.2007.
9. There was delay in transferring the vehicle in the name of the respondent the delay if any occurred was not due to the fault of the respondent. Being a purchaser of vehicle from the original owner he has to get it transferred immediately. Failure on the part of the respondent/complainant having purchased the vehicle from M/s Agro Tech Pvt. Ltd. and the vehicle met with an accident is because of respondent negligence. In this behalf a true copy, the policy indicates that policy was issued in favour of M/s Agro Tech Pvt. Ltd. which was in force from 1.12.2007 to 30.11.2008. In this behalf, the learned counsel for the appellant relied upon a decision passed by the Honble Apex Court in the case of M/s Complete Insulations Pvt. Ltd. vs. New India Assurance Co. Ltd., reported in AIR 1996 SC 586 (1). According to the Section 157 of Motor Vehicle Act, 1988, the respondent/complainant himself has violated the terms and conditions. Therefore, there is no relationship between the insured and the insurer. Hence, in our consider opinion that the impugned order under challenge is liable to be set aside. Accordingly, we pass the following order.
ORDER Appeal is allowed Impugned order passed by the District Forum is set aside.
The complaint filed by the complainant before District Forum is dismissed.
The parties are directed to bear their own cost.
The amount deposited by the appellant in this appeal shall be refunded to the appellant if a memo is filed.
11. Hence, the revision petition.
12. The main grounds for the revision petition are that ;
Because the State Commission committed grave error in proceeding to interfere with well arrived at finding of facts of the District Forum on the footing that since the car in question was sold to the petitioner on 3.11.2007, the petitioner being purchaser of the said car was required to get the ownership of the said transferred in his name immediately. The State Commission ought to have appreciated that since there was no delay on the part of the petitioner to get transferred the ownership of the car in his name, the same could not have been made a basis for denial of the genuine claim of the petitioner. However, the State Commission failed to consider the same in the proper perspective which has resulted in miscarriage of justice.
Because the State Commission failed to appreciate that merely for the reason that the purchase of the said car was not intimated by the petitioner to the respondent within 14 days as required under Section 157 of the Act and meanwhile the car met with an accident on 25.1.2008, the same could not have been made a basis by the respondent for repudiating the claim of the petitioner in the facts and circumstances of the present case.
However, the State Commission failed to consider the same in the proper perspective which has resulted in miscarriage of justice.
13. We have heard the learned counsel for the petitioner and carefully gone through the record.
14. It is an admitted fact that the petitioner had purchased the vehicle from M/s Agro Tech Pvt. Ltd. on 3.11.2007.
However, at the time of accident, the said vehicle was not registered in his name. During the arguments, learned counsel for the petitioner on query could not give the date on which the petitioner had applied for transfer of registration to his name. On the date of accident, the insurance policy was also in the name of Managing Director of M/s Agro Tech Pvt. Ltd. It was transferred to the petitioners name only on 28.4.2010.
15. As per Section 50 of the Motor Vehicle Act, 1988, the procedure laid down for transfer of ownership, reads as under ;
50. Transfer of ownership. - (1) Where the ownership of any motor vehicle registered under this Chapter is transferred.
(a) the transferor shall, -
(i) in the case of a vehicle registered within the same State, within fourteen days of the transfer, report the fact of transfer, in such form with such documents and in such manner, as may be prescribed by the Central Government to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee ; and
(ii) in the case of a vehicle registered outside the State, within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i)-
(A) the no objection certificate obtained under section 48 ; or (B) in a case where no such certificate has been obtained, -
(I) the receipt obtained under sub-section (2) of section 48 ; or (II) the postal acknowledgement received by the transferee if he has sent an application in this behalf by registered post acknowledgement due to the registering authority referred to in section 48, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted ;
(b) 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.
16. Section 157 of the Motor Vehicle Act, 1988, the procedure for transfer of certificate of insurance read as under ;
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 transfer to another person the ownership of the another 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.
16. It is our thus evident that at the time of accident neither was the petitioner the registered owner of the vehicle nor had the insurance policy been transferred to his name as the provisions of the Motor Vehicle Act, 1988. Hence, petitioner has no insurable interest in the said vehicle and also there is no privity of contract between the petitioner with the respondent. We agree with the well-reasoned order of the State Commission that the respondent is guilty of deficiency of service repudiating the claim of the petitioner.
17. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd.
2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.
The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
18. In view of the above, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with no order as to cost.
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(AJIT BHARIHOKE, J.) PRESIDING MEMBER ....
(REKHA GUPTA) MEMBER Sonia/