Kerala

Idukki

CC/82/2020

Benny Scariya - Complainant(s)

Versus

Bajaj Alayance general insurance - Opp.Party(s)

06 Jul 2023

ORDER

DATE OF FILING : 24.6.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  6^th  day of  July, 2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.82/2020

Between

Complainant                                         :       Benny Scaria, S/o. Scaria,

                                                                   Mundamchirayil House,

                                                                   Kambam Medu P.O.,

                                                                   Karunapuram, Udumbanchola.

         (By Adv: Tajlee Tom)

And

Opposite Parties                                    : 1. Bajaj Alliance General Insurance

                                                                             Company Ltd.,

                                                                   Bajaj Alliance House,

                                                                   Airport Road, Yerwada,

           Pune – 411006.

      2.  Bajaj Alliance General Insurance

                                                                             Company Ltd.,

                                                                   Represented by its

                                                                   Branch Manager,

                                                                   YMCA Building,

                                                                   Shasthri Road, Kottayam.

(Both by Advs: Arundas K.S. & Lissy M.M.)

 

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          1.  This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant is a heart patient.  He is also  registered owner of Toyota Innova car, bearing Reg. No.KL-63C-4516.  Complainant had purchased the same from one Jaya Raghavan.  Car has comprehensive insurance from 15.6.2019 till 14.6.2020 under a Certificate of Insurance issued by Bajaj Alliance General Insurance Company Ltd., which is the 1^st opposite party herein.  2^nd opposite party is Kottayam branch of the Company represented by its Branch Manager.  After purchasing the vehicle, complainant had got its ownership transferred to his name on 27.10.2019.  He had immediately entrusted original RC with copy, insurance certificate along with necessary                                                                                                           (cont….2)

• 2  -

fees with one Mathew Martin Jose, who was the then bank manager of HDFC and also an agent of 2^nd opposite party.  However, due to his latches, policy was transferred to the name of complainant only on 18.2.2020.  In the meanwhile, on 7.12.2019, at about 3 pm, complainant’s car had collided with one school bus bearing Reg. No.KL-57D-2577, while complainant was travelling in it from Ernakulam to Kambam Medu within the limits of Vazhakkulam Police Station.  Car was entrusted to Muvattupuzha branch of Nippon, which is the authorized dealer of Toyota company for necessary repairs.  When complainant had approached opposite parties for claiming insurance money, opposite parties had refused to grant insurance coverage on the premises that insurance of the vehicle was not transferred to the name of complainant.  This had caused mental agony to complainant who was a heart patient.  His disease had aggravated for which he had to take separate treatment.  All these had transpired due to latches of agent of 2^nd opposite party.  Vehicle had availed insurance coverage at the time of accident.  It provided for own damages also.  Claim was declined without any reason.  Since claim was not sanctioned by opposite party, complainant had to borrow money on interest and to pay Rs.5,74,682/-/- towards repair charges.  Complainant submits that these acts of opposite parties amount to deficiency in service.  Hence he prays for reimbursement of repair charges amounting to Rs.5,74,682/- from opposite parties, compensation of Rs.25,000/- and other reliefs which this Commission may deem fit to grant.

 

          2.  Complaint was taken on file and notice was issued to opposite parties.  Both had entered appearance and filed written version jointly.  Their contentions are briefly discussed hereunder :

 

          According to opposite parties, complaint is not maintainable in law or upon facts.  There was no deficiency in service or unfair trade practice from the side of opposite parties.  Case involves consideration of complicated question of facts and law for which elaborated evidence is necessary.  This is not possible in a trial of summary nature conducted by this Forum.  Therefore, complaint is to be returned to complainant.  Policy of insurance is based upon a contract, the terms of which are binding upon the insurer and insured.  Claim can be settled only within the precincts of policy.  Apart from this, both opposite parties are residing outside the limits of this Commission.  Complainant has no cause of action within Idukki District to prefer a complaint of this nature against opposite parties before this Forum.  Complainant is not a consumer of opposite parties.  Complainant had not intimated the incident to the insurance company immediately.  He has given information only after 7 days of the accident.  Besides, ownership change of the vehicle has to be intimated within 14 days of transfer to the insurance company.  This has not been done by complainant.  At the time of accident, vehicle was under the ownership of complainant, but the policy was standing in the name of Jaya Raghavan. There was no contract of insurance between complainant and insurance company.  Upon facts, it is contended that complainant had approached opposite party with an accident                                                                                                                    (cont….3)

• 3  -

claim on 13.12.2019.  Opposite parties had accepted his claim form and registered the same as OC – 20 – 1602 – 1801 – 00004015.  Upon verification, it was learned that claimant has not taken any insurance policy from opposite parties.  This was intimated to complainant and his clarification was sought as per letter dated 18.12.2019.  Complainant had instead of clarifying the issue, raised some untenable contentions.  Hence a letter was again issued on 26.12.2019 seeking further clarification.  There was no response for the same.  Therefore opposite parties had repudiated the claim and communicated it to complainant, as per letter dated 3.1.2020.  Contentions that complainant had entrusted his documents with Mathew Martin Jose, who is an authorized agent of opposite party to change certificate of insurance to his name are not within the knowledge of opposite parties.  Change of name and address in certificate of insurance is a real time procedure involving electronic application.  So called Mathew Martin Jose has not been arrayed as a party in this case.  It is further contended, without prejudice to the defense taken and without admitting the liability, that if at all opposite parties are found to be liable for the claim, they will not be liable to pay more than the loss assessed by surveyor.  Complaint is of an experimental nature.  Costs and compensation claimed are without any basis.  Complainant is not entitled for the reliefs prayed for.  Case is to be dismissed with costs of Rs.25,000/- to opposite parties, under Section 26 of the Consumer Protection Act of 1986.

 

          3.  After filing of written version, case was posted for steps and then for evidence.  After repeated adjournments for evidence, mostly at the instances of complainant, case was finally posted to 3.5.2023 for evidence.  On that date, complainant and one witness was present.  Both opposite parties were absent.  There was no representation from their side. Complainant and his witness were examined as PW1 and PW2.  6 documents produced by complainant were marked as Exts.P1 to P6.  Thereafter we have heard the complainant.  Now the point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there is any deficiency in service or unfair trade practice from the side of opposite parties ?

3)  Whether complainant is entitled for reliefs prayed for ?

4)  Final order and costs ?

 

4.  Point No.1 :

 

          First contention taken is pertaining to lack of inherent jurisdiction. According to opposite parties, complainant is not their consumer.  These contentions are addressed upon the premises that at the time of accident, insurance policy was standing in the name of previous owner, one Jaya Raghavan.  Complainant claims that policy was transferred belatedly on 18.2.2020 to his name owing to latches from the side of one Mathew Martin Jose, who was the then Manager of HDFC Bank and also an authorized agent of                                                                                                                  (cont….4)

• 4  -

2^nd opposite party.  However, this Mathew Martin Jose had not been made a party to the present proceedings.  Nothing has been produced by complainant to prove that the said Mathew Martin Jose was an authorized agent of 2^nd opposite party either.  Opposite parties have contended that insurance certificate is to be transferred to the name of purchaser within 14 days of transfer of vehicle to his name.  Admittedly, this has not been done.  Complainant, on the other hand has contended that policy was live at the time of accident and not withstanding the facts that insurance certificate was not in the name of complainant, vehicle was already transferred to him and he was it’s RC owner.  In short, contentions with regard to applicability of Section 157 of Motor Vehicle Act 1988 are raised.  These contentions are not at all formidable, since Section 157 of the Motor Vehicle Act, pertains to 3 party claims and not for own damage.  This position has been made clear by hon’ble High Court of Kerala in complaint, Gopakumar Vs. Oriental Insurance Company ltd and Others (2019 3 KHC 996).  Since insurance certificate was not in the name of complainant at the time of accident, it has to be taken that there is no privity of contract between complainant and insurance company.  That being so, the claim was rightly repudiated by opposite party.  Since complainant  was not a consumer of opposite parties, claim cannot be maintained.

 

          In so far as the question of territorial jurisdiction is concerned, complainant is shown to be residing in Karunapuram Village, within the limits of this Forum.  However, 1^st opposite party has its office in Pune, Maharashtra and 2^nd opposite party has its office in Shasthri road, Kottayam, that is, in Kottayam District.  Both opposite parties are having their respective offices outside the jurisdictional limits of this Commission. Accident took place in Vazhakulam police station limits, which is in Ernakulam District. However, allegations in the complaint are to the effect that one Mathew Martin Jose who is the branch manager of HDFC bank in Kattappana was approached by complainant for change of policy to his name.  That due to his latches, transfer of insurance certificate took place belatedly only on 18.2.2020. These pleadings would show that part of cause of action has arisen within the jurisdiction of this commission.  Under these circumstances, we find that this Forum has territorial jurisdiction as such to try this case, were the complaint to be maintainable, which is not so.  Point No.1 is answered accordingly.

 

5.  Point Nos.2 to 4 are considered together :

 

          We have already found that claim was rightly repudiated.  As mentioned earlier,  the so  called Mathew Martin Jose is not a party to this case.  Though going by the pleadings he is a necessary party.  Nothing was produced to show that the said Mathew Martin Jose had any nexus with 2^nd opposite party.  Affidavit assertions are not sufficient to prove this.  Entrustment of documents and money for change in name and address of insured in the policy to said Mathew Martin Jose as mentioned in affidavits of                                                                                                               (cont….5)

• 5  -

PWs1 and 2 cannot be considered without Mathew Martin Jose in the party array. There is no deficiency in service since repudiation of claim was in accordance with policy conditions.  The so called agent is not proved to be an agent; nore is it proved that he is guilty of any latches. Therefore complainant is not entitled for the reliefs prayed for.

 

In the result this complaint is dismissed, under the circumstances, without costs. Parties to take back extra copies.

 

          Pronounced by this Commission on this the  6^th  day of July, 2023

 

                                                                                                Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

                             Sd/-

         SMT. ASAMOL P., MEMBER

 

                                    Sd/-

        SRI. AMPADY K.S., MEMBER