Per  Shri Bhaskar B. Yogi – Hon’ble President

1.         The complainant is the husband of the deceased Smt Premlata Janak Raj Gupta who is the registered owner of vehicle named Renault Duster bearing number MH 35 - P 4949 which was insured with the opposite party.

That Smt. Premlata J. Gupta met with an accident near Sagar, Madhya Pradesh on 30.05.2015 and she died in the said accident.        

2.       It is case of the complainant that unfortunately the above said vehicle again met with an accident on 10th December 2015 at Gondia and the vehicle got damaged substantially during policy period.

          The opposite party appointed registered surveyor who has submitted his report after inspection of the damage and submitted documents to opposite party during the period the complainant got estimate of cost of repairing of the vehicle from the Unnati Motors authorized showroom and service centre of the company at Nagpur for Rs.4,50,000/-.  He had submitted his claim with the opposite party but wide letter dated 15th February 2016 opposite party repudiated the claim citing violation of the policy condition No. 9.

          That it is out of place to mention here that the original owner i.e. the wife of complainant has purchase the above said vehicle on finance from Sundaram Finance Limited after the first accident the complainant received the vehicle in the month of September 2015 after repair.

3.       After receiving the vehicle from the company the complainant applied for transfer of the vehicle and paid the requisite fee of Rs.350/- on 7th September 2015.  The Deputy RTO Gondia redirected the complainant to bring NOC from the finance company and accordingly the complainant applied for the NOC of the vehicle from Sundaram Finance Limited but the Sundaram Finance Company issued letter to the complainant on 9th September 2015 stating that they are unable to process the NOC for transfer of vehicle unless the loan amount is cleared. Due to such anamolies situation the vehicle could not be transferred in the records of RTO office in the name of the complainant and till the vehicle is not transferred in the name of the complainant in registration certificate of vehicle the policy could not be transferred in the name of the complainant. All these circumstances where beyond the control of the complainant.

4.       The opposite party has filed a written version and also filed their pursis to treat the written version as Affidavit of Evidence and written notes. The opposite party has taken the defence of Jurisdiction. Other contentions were merely denied.

5.       Considering the Rival contentions of the parties considering the record and keeping in view of the scope of the complaint following points arose for our determination and our findings thereupon are noted for the reasons on below:-

6.       As per petition and arguments and documents filed on record following points came for consideration:-

REASONING & FINDINGS

7.       Point NO. 1 :-      The opposite party has not denied the ownership of late Premlata Janak Raj Gupta they also not denied the policy period and the complainant was registered as nominee in the insurance cover note.

          The complainant has paid the premium at Gondia and also the policy document has been supplied at residential address of the complainant at Gondia therefore this Hon’ble Consumer Forum has jurisdiction to entertain, try and decide the case under section 11(2)(c) where part of cause of action arise.

          Hence we are not in agreement to the contentious put forth by the opposite party and reject their defence as to jurisdiction and Hold that this Hon’ble Forum have jurisdiction to entertain, try and decide the complaint, and accordingly we answer Point No. 1 in affirmative. 

8.       Point No. 2 :-       The bone of contention revolves around the clause No. 9 of the terms and conditions of the policy which is Reproduced for quick reference here as under:-

                   Condition 9 : In the event of death of the sole insured, this policy will not immediately laps but will remain valid for a period of 3 months from the date of the death of insured or until the expiry of this policy whichever is earlier during the said period legal heir(s) of the insured to whom the custody and use of the motor vehicle passes may apply to have the policy transferred to the names of the heir(s) or obtain a new insurance policy for the motor vehicle.

           Where such legal heirs desire(s) to apply for transfer of this policy or obtain a new policy for the vehicle such heirs should make an application to the company accordingly within the aforesaid period also. All these applications should be accompanied by:- 

a) Death Certificate in respect of the insured

b) Proof of title to the vehicle 

c) Original policy.

9.       The compliment relied upon the ruling of Maharashtra State Consumer Dispute Redressal Commission, Mumbai Circuit Bench at Aurangabad in Appeal No. 617 of 2008 between United India Insurance Company Limited versus Sri Sahebrao Munjaji Kalyankar decided on 23rd April 2010 in which it was held by the Hon’ble Commission by citing the ruling of Hon’ble National Commission in the judgement of Narayan Singh vs New India Assurance Company reported in 2008 (I)CLT-46 (NC)  held that, Insurance companies had issued Indian Motor tariff regulation G.R. 10 in 1994 under section 159 of Motor Vehicles Act 1988 by which the transfer of insurance policy was made automatic on the transfer ownership of the vehicle The Hon’ble National Commission reproduce the circular under-

 “Transfers:

          On transfer of a vehicle the benefit under the policy in force will automatically accrue to the new owner the bonus/malus already applicable for the policy would continue until expiry of the policy on expiry or cancellation of the policy bonus/malus will apply as per the new owner’s entitlement.

          If the transferee want to change the policy in his name it may be done on getting evidence of sale and a proposal form duly completed the old certificate of insurance must be surrendered to the insurance company and a new certificate of insurance can be issued by collecting a fee of Rs.15/-.  If the old certificate is not surrendered, a declaration is to be taken from the new owner before issuing a new certificate.”

          The Hon’ble National Commission also made a reference to the judgement of Hon’ble Chhattisgarh State Consumer Dispute Redressal Commission reported in Ajimuddin versus The New India Assurance Company Limited 2006 (2)CPR 124 in which it was held by Chhattisgarh State Commission as under:

          “Learned counsel for the appellant submitted that GIC has issued special instructions regarding settlement of claim in case of transfer of policy. It was submitted that as per the said instructions the transfer policy in favour of the purchaser the complainant appellant should be treated as automatic. It appears that the Tariff Advisory Committee issued a circular regarding automatic transfer of the policy to the new owner/purchaser of the vehicle.  In the said circular the decision of Supreme Court in Complete Insulations Private Limited versus New India Assurance Company Limited - I (1996) CPJ 1 was referred to.  In The said circular it was stated that for polices issued as per revised Motor Tariff own damage claim which Falls within the purview of G.R. 10 provisions maybe settled in full subject to the other terms and conditions of the policy”.

          Further in case of Oriental Insurance Company Limited versus Om Prakash Gupta and another 2009(1) CPR 185 (NC) Hon’ble National Commission has observed in Para 6 of the judgement Mere perusal of the G.R. 10 leaves us no doubt that on sale of vehicle benefit under the policy inforce on date of transfer would automatically accrue to the new owner i.e. the complainant.

          The complainant also relied upon Allahabad High Court judgement cited at III(2012)ACC 260 ALLAHABAD HIGH COURT between United India Insurance Company Limited versus Mohammed Ishaq and others bearings Civil Misc Writ Petition No. 34269, 49098 of 2008 decided on 27-02-2012 wherein the Hon’ble Allahabad High Court discuss the terms and policy conditions and held that Insurance of vehicle is a benefit attached to vehicle and not to owner and change of ownership does not affect its insurance. New owner of insured vehicle is fully entitled to benefit of insurance and he is not required to get it insured again if the period of insurance got done by the previous owner is continuing. Benefit of Insurance of vehicle available to legal heirs.

          The complainant also relied upon the judgement of Orissa High Court cited at AIR 2010 ORISSA 142 between Smt. Tulasi Sahukar versus New India Assurance Company Limited and others in MACA no. 452 of 2004 decided on 2nd February 2010.

          Wherein it was held by the Hon’ble Orissa High Court that Insurance policy issued in favour of offending vehicle never cancelled and it cover period of accident. Transfer of ownership takes place on the date of sale and death of owner when succession-in-interest succeeds possession. Change of entry in registration certificate do not convey ownership. Also transfer of insurance policy is automatic in case of death of insured transferee in possession has to be Deemed to have been covered under policy.  Appellant/transferee having got ownership transferred was deemed to have been covered by policy mere delay in not getting ownership transfer within prescribed time limit - would not exonerate insurer of its statutory liability against third party /transferee.

          In the said judgement Para No. 11 it was also mentioned as registration certificate does not convey the ownership, Transfer of ownership of motor vehicle is governed by the provisions of Sale of Goods Act or Laws of Succession as the case may be.  In this connection, decision of Kerala High Court in V. Prakashan vs Pankajakshan and another 1985 criminal Law Journal 951 and of Bombay High Court in Virendra Kumar J Handa versus Dilawar Khan Alij Khan and others 1992 Criminal Law Journal 2476 may be referred to. Further in Para No. 12 after citing section 157 of MV Act which deals with the transfer of certificate of insurance held that the language of sub-section 1 of section 157 of the Motor Vehicles Act is un-ambiguous in stating that certificate of insurance as well as the policy described in the certificate shall be deemed to have been transferred in favour of the transferee with effect from the date of its transfer.  Transfer of insurance policy is automatic therefore in case of death of the insured transferee in possession has to be Deemed to have been covered by the policy.

10.     LD. advocate for the opposite party relied upon the rulings of Hon’ble National Commission cited at II (2018)CPJ 381(NC) in case of Shriram General Insurance Company Limited versus Prem Prakash decided on 5th January 2018. Where is it was held that on date of incident of theft registration certificate existed in name of the previous owner.  Transferee of vehicle has to inform Insurance Company within 14 days of transfer.  Even registration was not obtained in name of transferee/Complainant and did not have any contract of insurance with O.P. and automatic transfer of insurance only for third party and not for owner of vehicle. complaint dismissed.

          Hon’ble National Commission in Para No. 13-Noted as it is important to note that GR 17 of the Indian Motor tariff provides us under:- 

GR-17 - Transfers

          On Transfer of ownership the liability only cover either under a liability only policy or and a package policy is due 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 14 days from the date of transfer in writing under recorded delivery to the insurance was 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 the date of insurance policy so that the insurer may make 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 then 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.

          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 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 fee of Rs.50/- is to be collected for issuance of 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.

          The opposite party also relied upon the judgement of Hon’ble National Commission in Revision Petition No. 356 of 2016 between Satwant Singh Vs United India Insurance decided on 9^th January 2017.

          In Para-2 it was held that the insured had sold the car to someone else on 24th February 2007 therefore the insured had no insurable interest in the insurance policy of the said car.

          Now, here it is to be noted that in the present complaint the original owner late Smt. Premlata Janakraj Gupta whose name is registered in the Insurance policy and the complainant’s name is shown as Nominee in the policy by virtue  of marriage the company and husband is in possession and in succession of the vehicle after death of his wife and there is no sale transaction in this case.  With due respect, the  Hon’ble National Commission has dealt with the case of transfer where the vehicle is subject matter of sale, under the Sale of Goods Act. Therefore the facts cited by the opposite party in the above two rulings are different than in the present case.  Here the complainant is Legal Heir, Nominee and beneficiary as defined under the C. P. Act.

          In the policy terms and conditions there is an exclusion clause which does not deal with transfer cases and thereafter there are certain conditions, one of the condition deals with transfer of name in the insurance policy in case of death of the sole owner.

          Therefore, Hon’ble Allahabad and Orissa High Court Judgments are more relevant and relating to the facts in the present case considering the decisions of Allahabad and Orissa High Court, we are of the view that Insurance Company cannot deny the claim of the motor vehicle merely on technical Grounds that too when there is no sale of the vehicle and the complainant being a nominee in the policy. Further it does not affect in the terms and conditions of the policy and insurance company has already received the premium under the policy which is continuous on the date of the occurrence of accident and being so, there is no statutory provisions which deals with the transfer by way of succession and Hence the condition NO. 9 is directory in nature and not a mandatory condition which would frustrate the policy & right of policy holder.

          The Hon’ble Apex Court in case of  CASE NO.: Appeal (civil) 3409 of 2008 National Insurance Co. Ltd vs. Nitin Khandelwal DATE OF JUDGMENT: 08/05/2008  has held at breach of certain conditions is not germane. The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.

          Here the Condition No. 9 in the policy document is not Germane and does not effect the policy. The Insurance company cannot repudiate the whole claim on technical grounds. Hence we Answer point No. 2 in affirmative

11. Point No. 3:    It is pertinent to note that in the present case it is necessary to discuss regarding the concept of “Insurable Interest.”

          An occasions arose to discuss insurable interest before THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI, GOA Appeal No. 26/2010 - The National Insurance co. v/s  Smt. Princy Roy,

          Wherein it was held in Para 19. “We proceed on the assumption that existence of an insurable interest, is a sine qua non, of a contract of insurance. A comprehensive definition of Insurable Interest has not been attempted in any statute. It can roughly speaking, be said to be an interest which can be protected by a contract of insurance. It is an interest of such a nature that the occurrence of the event insured against would cause financial loss to the insured or would otherwise affect him adversely. The assured, for example, obviously suffers in the case of personal accident insurance if he loses his life or limb, or, in the case of property insurance, if his goods are stolen. Undeniably, he has an insurable interest for the purpose of a personal accident and burglary insurance respectively. In third party insurance, the assured also has an insurable interest as he will suffer financially if an accident takes place for which he is liable to pay to another person (see page 11 of Law Relating to Insurance with special reference to the C.P. Act by R.M. Vats, Universal Law Publishing Company Pvt. Ltd.) In the case at hand, Mr. Shivanandan had not only sold the van but had also parted with the possession of the same (emphasis supplied).

          Similarly in the present case also the husband of the original owner have Insurable Interest in the vehicle. An Insurance Company cannot deny the claim merely by taking shelter under condition No. 9 which is not mandatory by statute. Hence we answer point NO. 3 “Yes.”

12. Point No. 4:-   The opposite party has repudiated the claim only on technical ground which is also not Germane​ to the policy, which amounts to deficiency in service for which the consumer has to knock the door of the Consumer Forum and suffered mental agony and physical pain apart from monetary loss. The complainant in Para No. 4 of the complaint stated that the estimated cost of repairing the vehicle is about Rs.4,50,000/- but no documentary evidence has been produced of actual bills.  The opposite party is also duty bound to appoint Surveyor and ask his/her report to arrive at a particular cost of repair as per policy term & conditions.  The opposite party by not appointing a Licensed Surveyor indulged in unfair trade practice and not followed the mandate of IRDA guidelines. Hence the claim is settled on Non-Standard Basis at 40% of the estimated cost which is Rs. 1,80,000/- (4,50,000x40%) would be appropriate in the interest of justice.  Therefore  we are allowing the complaint under section 14 in favour of the complainant who is a senior citizen who undergone the mental pain & suffered the financial losses .  Thus we answer point 4 in affirmative.

13.     In view of answers of Point No.1, 2, 3 and 4 the complaint deserves to be allowed. Hence, we pass the following order :-

ORDER

          1.       Consumer complaint is partly allowed.

          2.       Opposite party is directed to pay Rs.1,80,000/- to the complainant along with interest @ 9% p.a. from the date of complaint.

          3.       Opposite party is directed to pay Rs.10,000/- to the complainant for mental pain & suffering and Rs.5,000/- towards legal costs.

          4.       Opposite party is directed to comply the order no. 2 & 3 within 30 days from the date of receipt of the order.  Otherwise they has to pay interest @12% p.a.till its realization on the above amount.        

          5.       Certified copy of order be provided free of cost.

          6.       Two sets of consumer complaint be returned to the complainant as per rules.