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UNITED INDIA INSURANCE COMPANY LTD., BRANCH OFFICE, MALAPPURAM, REPRESENTED BY DR. MOHAN SHANKER V/S SUNEER PARAMBADAN, decided on Friday, June 18, 2010.
[ In the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, First Appeal No. A/10/4 (Arisen out of order dated 07/10/2009 in Case No. CC 221/08 of District Malappuram). ] 18/06/2010
Judge(s) : . VALSALA SARANGADHARAN MEMBER & . M.V. VISWANATHAN JUDICIAL MEMBER
Advocate(s) : Jagadish Kumar, Mohamed Kassim & R. Narayan.
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judgment - SHRI. M.V. VISWANATHAN JUDICIAL MEMBER The appellant was the opposite party and the respondent was the complainant in CC No. 221/2008 on the file of CDRF Malappuram. The complaint therein was filed against the opposite party United India Assurance Company Ltd. alleging deficiency in service in repudiating the insurance claim made by the complainant with respect to the insured vehicle bearing Registration No. KL-16/4464. The opposite party United India Assurance Company Ltd. entered appearance and filed written version denying the alleged deficiency of service. It was contended that the vehicle bearing Reg. No. KL-16/4464 was insured by the registered owner of the vehicle Sri. Abdul Rasheed and that there was no insurance contract between the complainant and the opposite party; that the complainant or the insured Abdul Rasheed never approached the opposite party in getting the policy of insurance of the vehicle transferred in the name of the complainant. The allegation in the complaint would show that on the date of theft of the insured vehicle the insured Abdul Rasheed had no insurable interest in the vehicle and that the complainant had no privity of contract with the opposite party Insurance Company. Thus the opposite party justified their action in repudiating the insurance claim preferred by the complainant and prayed for dismissal of the complaint.2. Before the Forum below Exts. A1 to A6 documents were marked on the side of the complainant and B1 to B3 on the side of the opposite party. On an appreciation of the documentary evidence on record the Forum below passed the impugned order dated 07-10-2009 allowing the complaint and directing the opposite party to pay to the complainant Rs. 4 lakh with interest at the rate of 6% per annum from the date of the complaint till payment and costs of Rs. 1 000/-. Hence the present appeal.3. We heard both sides. The learned Counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was no privity of contract between the appellant/opposite party and the respondent/complainant with respect to the insured vehicle and so the appellant/Insurance Company had no liability to indemnify the loss; if any sustained by the respondent/complainant. He also relied on the documentary evidence available on record and submitted that on the date of theft of the insured vehicle the insured Abdul Rasheed had no insurable interest in the insured vehicle and the complainant had not got the policy of insurance transferred in his name. Thus the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand the learned Counsel for the respondent/complainant supported the impugned order passed by the Forum below. He relied on the decision rendered by the Hon?ble National Commission in Shri Narayan Sing Vs New Indian Assurance Company Ltd. in Revision Petition No. 556/2002. He also relied on another decision rendered by the National Commission in Oriental Insurance Company Ltd. Vs Om Prakash Gupta and Anr. reported in I (2009) CPJ 183 (NC) and thereby justified the impugned order passed by the Forum below.4. The points that arise for consideration are:1. Whether there was any deficiency of service on the part of the appellant/opposite party in repudiating the insurance claim made by the complainant in CC No. 221/2008 with respect to the insured vehicle KL- 16/4464?2. Whether the case of the respondent/complainant that there will be an automatic transfer of the policy of insurance in the name of the transferee of the vehicle can be upheld?3. Whether the Forum below can be justified in allowing the complaint in CC No. 221/2008?5. Point Nos. 1 to 3: Admittedly the vehicle bearing Reg. No. KL-16/4464 was insured with the appellant/opposite party United India Assurance Company Ltd. for the period from 22-07-2006 to 21-07-2007. The insured of the said vehicle was Abdul Rasheed and the aforesaid policy was also issued by the appellant/Insurance Company in the name of Abdul Rasheed. It is the definite case of the respondent/complainant that the said vehicle was purchased by him from the aforesaid Abdul Rasheed and that the Certificate of Registration was transferred in the name of the complainant with effect from 31-07-2006. Ext.A1 photocopy of the registration certificate of the vehicle bearing Reg. No. KL-16/4464 would make it clear that the complainant Suneer Parambadan purchased the vehicle bearing Reg. No. KL-16/4464 and his name has been entered in the registration certificate with effect from 31-07-2006. It would also show that the said vehicle stood in the name of Abdul Rasheed when the vehicle was purchased by the complainant.6. Admittedly the policy of insurance with respect to the vehicle KL-16/4464 stands in the name of Abdul Rasheed. There is nothing on record to show that the policy of insurance with respect to the said vehicle was transferred in the name of the respondent/complainant. There is also nothing on record to show that the respondent/complainant or his transferor Abdul Rasheed approached the appellant/opposite party United India Assurance Company Ltd. to get the policy of insurance transferred in the name of the transferee Suneer Parambadan (complainant). There is no piece of paper to substantiate the case of the complainant that himself and his transferor Abdul Rasheed approached the appellant/opposite party United India Assurance Company Ltd. to get the policy transferred in the name of the transferee Suneer Parambadan. Thus the complainant has not succeeded in establishing his case that he approached the opposite party/Insurance Company with the transferor (insured) Abdul Rasheed to get the policy of insurance transferred in his name. The Forum below cannot be justified in entering on a finding that ?there is nothing to disbelieve the submissions made on the side of the complainant that they made earnest efforts to get the policy transferred into the name of the complainant?. The aforesaid finding and conclusion of the Forum below is not supported by any material on record. It is also to be noted that the complainant or his transferor Abdul Rasheed did not get into the witness box to depose in support of the case of the complainant that they made earnest efforts to get the policy transferred into the name of the complainant. So this Commission has no hesitation to set aside the aforesaid finding made by the Forum below.7. Ext.B1 copy of the policy issued by the opposite party/Assurance Company to Abdul Rasheed would show that the vehicle bearing Reg. No. KL-16/4464 was insured by the opposite party United India Insurance Company Ltd. in the name of the then registered owner Abdul Rasheed. The premium for the said policy was also paid by Abdul Rasheed vide B2 receipt dated 21-07-2006. Ext.B3 copy of the policy would also show that the comprehensive policy with respect to the said vehicle was issued by the opposite party New India Assurance Company Ltd. in the name of the then registered owner Abdul Rasheed and that the aforesaid Abdul Rasheed is the insured of the vehicle. There is nothing on record to show that the respondent/complaint had any privity of contract with the appellant/opposite party New Indian Assurance Company Ltd. So the appellant/opposite party Insurance Company had no liability to indemnify the respondent/complainant. As far as the appellant/opposite party Insurance Company is concerned the respondent/complainant is a total stranger and that the Insurance Company had no liability to indemnify the loss; if any sustained or suffered by the respondent/complainant. Thus the appellant/opposite party Insurance Company can be justified in repudiating the insurance claim made by the respondent/complainant.8. The respondent/complainant has got a case that the policy of insurance with respect to the insured vehicle KL-16/4464 would get automatically transferred in the name of the subsequent purchaser of the vehicle (transferee) as and when the ownership of the vehicle is transferred into the name of the transferee (complainant). The complaint much relied on General Regulation No. 10 (GR 10) of the General Regulations of India Motor Tarrif. The aforesaid GR 10 reads as follows:Transfers:-On transfer of a vehicle the benefits under the policy in force on the date of transfer shall automatically accrue to the new owner. If the transferee is not entitled to the benefit of the bonus or subjected to malus already shown on the policy the recovery of the differences between his entitlement (if any) and that shown on the policy shall be waived till the expiry of the policy. However on expiry and/or termination of the existing policy the transferee will be eligible for Bonus or subject to Malus as per his own entitlement. 9. So by virtue of GR 10 there must be an automatic transfer of the policy with effect from the date of transfer of the ownership of the vehicle. In other words the purchaser or transferee will get the benefit under the policy both under Act only Policy and also under the comprehensive/Package policy.10. But the aforesaid GR 10 was in force up to 30th June 2002. Thereafter new general regulations came into force. It is to be noted that the old GR 10 was replaced by GR 17 of the revised India Motor Tariff. The aforesaid GR 17 of the revised India Motor Tariff is as follows:?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 transferred with effect from the date of transfer?.11. The aforesaid GR 17 would make it clear that the transferee has to apply within 14 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 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 infavour of the policy shall be made by the insurer only on receipt of the specific request from the transferee along with consent of the transferor. It is also stipulated that a fresh proposal form duly completed is to be obtained from the transferee in respect of both Liability Only and Package Policies and that the 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. It is also made clear that the requisite fee of Rs.50/- is to be collected for issue of fresh certificate in the name of the transferee.12. There is nothing on record to show that the complainant submitted any such application with the proposal for getting the policy transferred in his name. It is to be noted that the complainant has not paid the required fee of Rs. 50/- to get the policy of insurance transferred in his name. Admittedly the insured vehicle KL-16/4464 was transferred in the name of the complainant with effect from 31-07-2006. So the relevant General Regulation which can be made applicable in the case of the complainant is GR-17 and it would also make it clear that the old GR 10 cannot be made applicable in the case of the complainant who got the insured vehicle transferred in his ownership only on 31-07-2006. So the case of the complainant that there will be an automatic transfer of the policy of insurance in his name cannot be upheld.13. The theft of the insured vehicle occurred on 20-03-2007. Ext.A2 FIR and A4 final report submitted by the CI of Police Kondotty before the Judicial First Class Magistrate Court- Malappuram would also make it clear that the insured vehicle was stolen on 20-03-2007. There can be no doubt about the fact that on the date of the peril the provisions of GR-17 of the revised India Motor Tariff was in force. In other words on the date of the peril the old GR-10 had no application. The Forum below cannot be justified in relying on the provisions of GR-10 of the old India Motor Tarrif. The Forum below has gone wrong in not relying on GR-17 of the revised India Motor Tarrif. The impugned order passed without considering the relevant provisions of GR -17 of the revised India Motor Tarrif is legally unsustainable and the same is liable to be quashed.14. The Forum below much relied on the decision rendered by the Apex Commission in Shri Narayan Sing Vs. New India Assurance Company Ltd. (RP No. 556/2002 decided on 22-05-2007) [IV (2007) CPJ 289 (NC)]. It is to be noted that the aforesaid decision was rendered by the Hon?ble National Commission based on GR-10 of the old India Motor Tarrif which was in existence only up to 30th June 2002. The insured vehicle in the aforesaid reported case was having Package Policy for the period from 3rd August 1994 to 2nd August 1995 and that the insured vehicle therein met with an accident on 04-06-1995. The insurance claim therein was repudiated by the New India Assurance Company Ltd. on the ground that the insurance policy was not transferred in the name of the owner (transferee) of the vehicle. But as far as the insured vehicle therein was concerned the provisions of GR 10 of the India Motor Tarrif was applicable and so the Hon?ble Commission by relying on the said provisions of the India Motor Tarrif directed the Insurance Company to indemnify the loss suffered by the transferee of the vehicle. Admittedly as per GR 10 of the India Motor Tarrif there will be an automatic transfer of the policy of insurance into the name of the transferee as and when the ownership has been transferred into the name of the transferee. But as far as the present case on hand is concerned the provisions of GR 10 of the old India Motor Tarrif has no application; but the provisions of GR17 of the revised India Motor Tarrif is applicable. It is pertinent to note that as per GR 17 of the revised India Motor Tarrif there cannot be any automatic transfer of the policy into the name of the transferee but the transferee must take steps as stipulated in GR 17 to get the policy transferred in his name. In other words as per the provisions of GR 17 the policy will not run with the vehicle but it will run with the insured person. The materials available in this case would show that there was no transfer of the policy into the name of the transferee (complainant). In such a situation appellant/opposite party Insurance Company has no liability to indemnify the loss suffered by the transferee/complainant. So the Forum below cannot be justified in relying on the principle enunciated by the Hon?ble National Commission in Shri Narayan Sing?s case. The other decision relied on by the learned Counsel for the respondent/complainant in Oriental Insurance Company Ltd Vs. Om Prakash Gupta and another reported in I (2009) CPJ 183 (NC) has no application in the present case. The aforesaid reported case (supra) was also based on GR-10 issued by Tariff Advisory Committee. The learned Counsel for the respondent/complainant further relied on the decision of the Hon?ble National Commission in National Insurance Company Ltd. Vs Subhash Chand Khataria and Another reported in II (2008) CPJ 324 (NC). It is to be noted that the aforesaid decision was also rendered based on the provisions of GR-10 of the old India Motor Tariff. It is true that as per GR-10 there will be automatic transfer of the policy into the name of the transferee. The accident involving the insured vehicle in the aforesaid reported case was also occurred while GR-10 of the India Motor Tariff was in force. But in the present case on hand the provisions of GR-10 of the India Motor Tariff had no application as the same was amended by the revised India Motor Tariff and by virtue of the revised India Motor Tariff GR-17 was made applicable in the place of old GR-10. So the impugned order passed by the Forum below is legally unsustainable and the same is liable to be set aside.15. The foregoing discussions and the findings thereon would make it clear that there was no deficiency of service on the part of the appellant/opposite party New India Assurance Company Ltd. in repudiating the insurance claim preferred by the respondent/complainant. The complaint in CC No. 221/2008 was liable to be dismissed. Therefore this State Commission is pleased to set aside the impugned order passed by the Forum below. These points are answered accordingly.In the result the appeal is allowed. The impugned order dated 07-10-2009 passed by CDRF Malappuram in CC No. 221/2008 is set aside. The complaint in the said CC 221/2008 on the file of CDRF Malappuram is also dismissed. The parties are directed to suffer their respective costs throughout.