State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd. vs Murari Prasad Sahu on 24 December, 2010
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.194/2008
Instituted on 31.03.08
The Oriental Insurance Co. Ltd., Raigarh
Through: The Divisional Manager,
Division Office, Korba, Geetanjali Bhawan, Main Road,
KORBA (C.G.) ... Appellant.
Vs.
1. Murari Prasad Sahu, S/o. Shri Tapeshawari Sahu,
R/o. Laxmipur, P.O. Ambikapur, P.S. and Tah. Ambikapur,
Dist. SURGUJA (C.G.)
2. Suboth Dixit,
R/o. Behind Collector Bunglow, Ambikapur,
Dist. SURGUJA (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Abhishek Sinha, for appellant.
Shri Rakesh Shukla, for respondent No.1. None for respondent No.2.
ORAL ORDER Dated: 24/12/2010 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 19.02.08, passed by District Consumer Disputes Redressal Forum, Ambikapur-Surguja (hereinafter called "District Forum" for short) in complaint case No.143/04, whereby the complaint of respondent No.1 was allowed and the appellant insurance company has been directed to pay Rs.87,179/- to the complainant along with interest @ 9% p.a. from the date of filing of the complaint on account of damages to the insured vehicle in a road accident.
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2. It is not in dispute that vehicle No. CG 10 ZB 1650 was insured by the appellant insurance company for a period between 29.03.03 to 28.03.04 and in the insurance certificate, respondent No.2 Suboth Dixit was shown as its registered owner. The case of the complainant before District Forum was that he purchased that vehicle from Subodh Dixit. Intimation was also given to the insurance company and the vehicle was being operated by him. It suffered a road accident on 27.02.04 while transporting Bauxite from Mainpat to BALCO Industry Korba. A claim for compensation of damages was preferred to the tune of Rs.1,94,746/- before insurance company on account of damages to the vehicle, which was repudiated by the insurance company on the ground that the complainant / respondent No.1 was not having any insurable interest in the vehicle and insurance cover was not provided to him, therefore the insurance company was not liable to pay any compensation. When complaint was filed before District Forum, then in reply of that complaint also same defence was taken by the insurance company.
3. Learned District Forum after having considered the contentions raised by both parties, allowed the complaint by the impugned order.
4. We have heard arguments of both parties and perused the record of the District Forum.
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5. At the outset it is necessary to mention that earlier vide order dated 02.05.05 the complaint of respondent No.1 was allowed by the District Forum and then the insurance company came before this Commission by way of appeal No.214/05 and during the course of hearing of that appeal it was informed by the complainant that document Annexure A-21 was the intimation given by the complainant to the insurance company and then such document was also produced before District Forum but necessary statement regarding document could not be made. Then the matter was remanded back to the District Forum for consideration of that document and its effect.
6. The document Annexure A-21 is said to be the intimation given by the complainant / respondent No.1 to the insurance company on 08.12.03. In this document the complainant stated that he has purchased vehicle No. CG 10 ZB 1650 from Subodh Dixit on 28.11.03 and requested the insurance company to transfer the policy in his name. In the margin of that letter, there appears initials of someone, who had received that letter. Learned District Forum relying on this letter held that this intimation was given to the insurance company, prior to the date of accident, for transfer of the vehicle and thus there was proper compliance of the provisions of law and thus the insurance // 4 // company was required to transfer the policy in the name of the complainant and in not doing so, it committed deficiency in service.
7. Counsel for the appellant firstly argued that no such letter was ever received in the Office of the insurance company. In this regard he has drawn our attention towards affidavit of Branch Manager of the insurance company, wherein it has been stated that no such letter was ever received in the Office of the insurance company.
8. It has also been submitted by him that the letter is having a fabricated remark in respect of its receipt, as the same was never produced in the Office of the insurance company and below initials of the person neither his name nor his designation has been mentioned, who is said to have received that letter. There is also no seal impression to show that the document was in fact produced in the Office of the insurance company. Learned counsel submitted that these facts are sufficient to show that the remark, which has been made in the margin of the letter is not genuine and is forged one, as such letter was never produced in the Office of the insurance company.
9. Counsel for respondent No.1 / complainant submitted that the letter was in fact served to one Official of the insurance company, who failed to put his seal under his signature. Whatever may be the reason, // 5 // but prima facie for want of sufficient proofs, it appears difficult to accept the contentions of counsel for the complainant. Unless it is positively established by some cogent evidence that this letter was served in the Office of the insurance company, it cannot be said that due intimation was ever given regarding transfer of the vehicle.
10. Apart from it as argued by learned counsel for the appellant / insurance company the provisions of G.R. 17 which applies in the facts of the present case are very clear, which reads as under : -
"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 transferee's entitlement, if any, and that shown on the policy shall be made before effecting the transfer.
// 6 // 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".
From aforesaid provision it is clear that in case of transfer of own damage section of the package policy, name of the transferee can only be changed in the policy on getting acceptable evidence of sale and a fresh proposal form duly filled and signed. The application should be signed by seller as well as the purchaser both and then the old certificate of insurance for the vehicle, is required to be surrendered and a fee of Rs.50/- was also required to be paid.
11. There appears no material on the basis of which it can be said that all the aforesaid formalities have been complied by the complainant / respondent No.1. The document Annexure A-21 does not bear signature of seller Subodh Dixit. There appears no acceptance on his part for transfer of insurable interest in favour of the purchaser. He might have elected to retain the policy in his name for the purpose of getting bonus on no claim basis and that is why he had not signed // 7 // any such application. Whatever may be the reason, but unless application for transfer of insurance policy is signed by the old insured and the purchaser along with a new proposal form and deposit of necessary fee, it cannot be said that due proposal for transfer of policy has been made before the insurance company and therefore if the insurance company had not changed name of the insured in the policy, then it cannot be said to have committed deficiency in service.
12. Thus, primarily there appears no intimation to the insurance company regarding transfer of vehicle along with necessary formalities for transfer of policy and secondary there appears no complete compliance of GR.17 in respect of transfer of policy. The District Forum has not considered this aspect of the matter and unnecessarily burdened the insurance company for paying compensation for which it was not liable.
13. Learned counsel for the appellant has placed reliance upon pronouncement of Hon'ble National Commission in the case of New India Assurance Co. Ltd. Vs. Chandrakant Bhujangrao Jogdand, II (2010) CPJ 170 (NC), wherein similar principles have been laid down in respect of transfer of "own damage" part of package policy.
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14. In view of the aforesaid, the appeal is allowed. The impugned order passed by the District Forum is set aside and complaint of the respondent No.1 is dismissed. No order as cost.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/12/2010 /12/2010