By Sri. MOHAMED ISMAYIL.C.V, MEMBER
1. Case of the complainants:-
The first complainant is the wife, the second and the third complainants are minor children of the deceased Zakkir Hussain K.P. The complainants No.4 to 8 are the brothers and sister of the deceased Zakkir Hussain K.P. and they are impleaded in this complaint as the legal heirs of the mother of the deceased Zakkir Hussain K.P. named Smt. Unnipathu, who died after the demise of above said Zakkir Hussain K.P. The deceased Zakkir Hussain K.P. had purchased an auto rickshaw bearing registration No. KL-58/S 9943 from the second opposite party and registration certificate transferred in favour of deceased Zakkir Hussain K.P. on 05/09/2019. But on 06/09/2019 , after obtaining fitness certificate of the auto rickshaw, the deceased Zakkir Hussain K.P while returning to his residence met with an accident at Anakkayam by throwing out of driving seat after the vehicle was fell in to the road edge pit. He was seriously injured and taken into hospital and succumbed to injuries. At the time of accident, the deceased Zakkir Hussain K.P was the driver cum owner of the above said vehicle and same was insured with the first opposite party as per policy No.01601736340000 for the period from 17/08/2019 to 16/08/2020 and policy certificate was issued in favour of the second opposite party, who transferred the ownership in the name of Zakkir Hussain K.P. The registration certificate of the vehicle transferred in the name of Zakkir Hussain K.P on 05/09/2019 and the unfortunate accident occurred on 06/09/2019, the very next day.
2. As per the insurance policy, Rs. 15,00,000/- is under the head of compulsory personal accident cover for owner/driver. The complainants are the legal heirs of the deceased Zakkir Hussain K.P and they are entitled to get the said amount as compensation. On 09/10/2019, the complainants No.1 to 3 along with mother of deceased sent a lawyer notice to the first opposite party demanding to pay the compensation but the first opposite party turned down. According to the complainants the act of the first opposite party has caused gross deficiency of their service as well as unfair trade practice. Due to the said act, the complainants suffered great hardship, mental agony and pain. The complainants are also entitled to get Rs.1,00,000/- as compensation for the same. The complainants prayed for a direction to the first opposite party to pay Rs. 15,00,000/- to the complainants as compensation under the head of compulsory personal accidental cover for owner – driver. The complainants also claimed Rs. 25,000/- as cost of the proceedings of the complaint.
3. The complaint is admitted. Notice issued to the opposite parties and received the same. The first opposite party appeared and filed version. The second opposite party did not turn up and hence set exparte.
4. In the version, the first opposite party contended that the complaint is not maintainable either in law or on facts. The first opposite party disputed the status of the complainants as legal heirs of the deceased Zakkir Hussain K.P and demanded to prove the case by providing legal heirship certificate. The averments in the complaint is that the deceased Zakkir Hussain K.P purchased the auto rickshaw bearing registration No. KL-58/S 9943 from the second opposite party and registration certificate transferred to his name on 05/09/2019 and on 06/09/2019, he obtained Fitness Certificate from RTO, Malappuram and on his return journey from RTO, Malappuram Zakkir Hussain K.P faced road accident and sustained fatal injuries and Zakkir Hussain did not get time to transfer the policy and at the time of accident Zakkir Hussain K.P. was the owner cum driver of the auto rickshaw are not admitted in the version by the first opposite party. But the first opposite party admitted the fact that the vehicle was insured with the first opposite party at the material time of accident and the insured as per the policy is the second opposite party. The claim of the complainants are that being the legal heirs of the deceased Zakkir Hussain K.P entitled for compulsory personal accidental cover in the policy for owner- driver and so they are entitled to Rs. 15,00,000/- from the first opposite party is not admitted in the version. The contention of the complainants that they sent registered notice to the first opposite party demanding the policy amount and no response was received is not correct. According to the first opposite party there were no deficiency of services and unfair trade practices from the side of the first opposite party and so not liable to pay Rs.1,00,000/- as compensation for mental agony and hard ship. According to the first opposite party there is no cause of action for the complaint.
5. As per the contention of the first opposite party the liability under the policy is limited to the terms and conditions of the policy and to the relevant provisions of the Motor Vehicles Act and the Rules. The contract of the Insurance was with the owner of the vehicle, the second opposite party and he was the insured as per the policy. According to the first opposite party, as per registration certificate vehicle was sold to deceased Zakkir Hussain K.P on 20/08/2019. As on the date of accident, the ownership of the vehicle was vested with Mr. Zakkir Hussain K.P, but the contract of insurance continued in the name of the second opposite party. The settled proposition of law is that the contract of the insurance terminate when one of the parties ceases to insurable interest over the property insured. It is also contended, the transferee of the vehicle must have applied for the transfer of the insurance immediately after purchase of the vehicle by submitting consent of the transferor and a fresh proposal form. The deceased Zakkir Hussain K.P. had not taken any steps to transfer the insurance in his name though he became the registered owner of the vehicle on 20/08/2019. Even as on the date of accident, the period envisaged under Motor Vehicles Act for transfer of insurance policy in the name of the transferee had expired. Thus, as on the date of accident no contract of insurance existed between the first opposite party either with Mr. Zakkir Hussain K.P or with the second opposite party. As on the date of loss, there is no subsisting contractual relationship between the first opposite party and Mr. Zakkir Hussain K.P.
6. It is admitted by the first opposite party that on 03/12/2019 the complainants intimated a claim for Personal Accident cover to the first opposite party and documents relating to the vehicle shared. But when scrutiny was conducted it found that on the date of accident, the vehicle was used on the road without permit and this act is a clear breach of policy terms and conditions as well as provision of Motor Vehicles Act, 1988. It is contented in the version that the first opposite party had intimated the complainants about inability to honour the claim for personal accident cover on 03/12/2019 and subsequently on 22/01/2020 based on the available records. It is added that the first opposite party repudiated the claim on 06/03/2020 and sent final repudiation letter to the complainants. According to the first opposite party, they did not commit any deficiency in service or unfair trade practice. So the first opposite party prayed for dismissal of the complaint and the complainants are not entitled for any relief.
7. The complainants and the first opposite party filed affidavits. The documents produced by the complainants marked as Ext. A1 to A9. Ext. A1 document is the true copy of FIR in crime No.416/2019 of Manjeri Police Station, Ext.A2 document is the true copy of final report in crime No. 416/2019 of Manjeri Police Station, Ext. A3 document is the copy of the Post mortem report of the Zakkir Hussain K.P. issued from medical College Hospital, Manjeri, Ext. A4 document is the copy of the death certificate of Zakkir Hussain issued from Department of Urban Affairs , Manjeri Municipality, Ext. A5 document is the copy of the Certificate of Registration and Fitness Certificate issued in favour of deceased Zakkir Hussain, Ext.A6 document is the copy of the Policy Certificate No.01601736340000 issued by the first opposite party in favour of the second opposite party, Ext. A7 document is the copy of the driving licence issued in favour of the deceased Zakkir Hussain K.P, Ext.A8 document is the copy of the Family Membership Certificate issued in favour of the complainants from the Village Office, Pandallur, Ext. A9 series documents are the copy of lawyer notice dated 09/10/2021 along with copy of postal receipt and copy
of acknowledgement card issued to the first opposite party by the complainants.
8. The documents produced by the first opposite party marked as Ext. B1 to B3. Ext.B1 document is the copy of the letter dated 03/12/2019 sent by the first opposite party to the complainant intimating it’s in ability to pay personal accident cover, Ext. B2 document is the copy of repudiation letter dated 06/03/2020 sent by the first opposite party to the complainant, Ext. B3 document is the true copy of the policy terms and conditions issued to the second party.
9. Heard both sides in detail. The complainants and first opposite party also filed argument notes. The affidavit and the documents also perused. The points arised before the Commission are as follows:-
- Whether any deficiency in service or unfair trade practice are committed by the opposite parties?
- Relief and cost?
10. Point No.1
It is stated in the complaint that the complainants are the legal heirs of deceased Zakkir Hussain K.P, who had purchased an auto rickshaw bearing registration No.KL -58/S 9943 from the second opposite party and transfer of the ownership of the vehicle was made on 05/09/2019. The registration certificate of the vehicle is produced by the complainants and same is marked as Ext.A5. As per the complaint, on 06/09/2019, after obtaining the Fitness Certificate of the above said vehicle, Zakkir Hussain K.P was returning to his residence met with an accident and died. The death certificate of the deceased Zakkir Hussain K.P was produced by the side of the complainants and marked as Ext.A4. In connection with the occurrence of the accident Manjeri Police registered a case as Crime No.416/2019. The copy of FIR and final report are produced and marked as Ext. A1 and A2 respectively. According to the complainants, the vehicle was insured with the first opposite party for the period of 17/08/2019 to 16/08/2020 and policy certificate is produced by the complainants and marked as Ext. A6. The complainant contended that they are entitled to get insured amount as compensation from the first opposite party. The complainants demanded to pay the amount as per Ext. A6 document, but rejected by the first opposite party.
11. In the version and affidavit it is stated by the first opposite party that the liability under the policy is limited to the terms and conditions of the policy and to the relevant provisions of the Motor vehicles Act and Rules. The first opposite party admitted the fact that the vehicle was insured with the first opposite party at the material time of accident and insured as per policy is the second opposite party. So according to the first opposite party, the claim of Rs.15,00,000/- by the complainants as the legal heirs of the deceased Zakkir Hussain K.P under compulsory Personal Accident Cover in the policy for owner cum driver cannot be admitted. It is also contended by the first opposite party that the contract of insurance was with the second opposite party and the date of transfer of vehicle was on 20/08/2019. When going through the evidences adduced by both sides, it can be seen that at the material time of accident the vehicle was registered in favour deceased Zakkir Hussain K.P. As per S.157(2) of the Motor Vehicles Act 1988 , the transferee shall apply within 14 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 the insurance in regard to the transfer of insurance. It is crystal clear that 14 days are allowed as period for changing the name in insurance policy certificate. According the first opposite party, the date of transfer is on 20/08/2019. But the complainants categorically stated that the date of transfer as on 05/09/2019. When considering the plea of the complainants and the evidences available on record the deceased Zakkir Hussain K.P could have made necessary changes in the insurance policy within 18/09/2019 and the grace period allowed as per the provisions of the act will end only on 18/09/2019. For making changes in the insurance policy, the transferee should have produced fresh registration certificate before the first opposite party. Then the grace period of 14 days can be reckoned only from the date of reception of fresh registration certificate in favour of the transferee. Ext. A5 document shows that the date of issuance of the certificate is as on 05/09/2019. So this Commission can calculate 14 days period from 05/09/2019 and the date of ultimatum ends only on 18/09/2019. In this situation, it can be construed that at the time of accident the contract of insurance lays between the deceased Zakkir Hussain K.P and the first opposite party. The first opposite party did not state before the Commission that even without change in the registration certificate the contract of insurance can be changed. So the Commission finds that there is no legal backing in rejecting the claim of the complainants as the first opposite party is liable to pay the compensation under compulsory personal accidents cover insurance policy on the basis of in Ext. A6 document.
12. The first opposite party also contended in proceedings that the complainants
had no status to file the complaint before the Commission. This contention is not sustainable because Ext. A8 is the Family Membership Certificate issued by the Revenue Department Authority which shows that the complainants have got direct connection with the deceased Zakkir Hussain K.P.
13. In the scrutiny of evidence availed in the case, it can be seen that actions taken by the first opposite party was based on feeble claims. The deceased Zakkir Hussain K.P purchased the vehicle registered in another office. There is reasonable time allowed in the provisions of the Motor Vehicles Act and the Rules to change documents in his favour. This Commission cannot reject the ground reality of the situation by taking in to account of the existing procedure. So the validity of the policy is not conterminous with the validity of the permit of the vehicle to use on the road. Moreover the permit to use the vehicle sanctioned only to the registered owner of the vehicle. It is also found that the vehicle is granted with Fitness Certificate by the authority. So the complainants got every right to claim the amount as per contract of Insurance from the first opposite party.
14. It find in the evidences that the legal heirs approached the first opposite party for getting the claim amount as per insurance policy coverage. But the claim was rejected by the first opposite party. The letter produced along with Ext.A9 series documents show that efforts are made by the complainants to get the insured amount from the first opposite party. But no steps were taken by the first opposite party to disburse the claim amount. After a period of three month, the first opposite party sent Ext. B2 repudiation letter to the complainants. So it can be seen from the conduct of the first opposite party there is deficiency in service on the part of the first opposite party.
15. Point No.2
In the light of the above stated facts the Commission allows the complaint as follows. This order is not binding the second opposite party as there is no relief sought against him in the complaint.
- The first opposite party is directed to pay Rs. 15,00,000/-(Rupees Fifteen lakh only) as insurance policy amount under the head of compulsory Personal Accident Cover for owner/driver to the legal heirs of the deceased Zakkir Hussain K.P after producing necessary documents before the first opposite party.
- The first opposite party is also directed to pay Rs. 1,00,000/- (Rupees One lakh only) to the complainants as compensation for deficiency in service on the part of the first opposite party.
- The first opposite party is also directed to pay Rs.10,000/- (Rupees Ten thousand only) to the complainants as the cost of the proceedings.
The first opposite party shall comply this order within one month from thedate of this order failing which the entire amount shall carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 12th day of August, 2022.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A9
Ext.A1 : True copy of FIR in crime No.416/2019 of Manjeri Police Station.
Ext.A2 : True copy of final report in crime No. 416/2019 of Manjeri Police Station.
Ext.A3 : Copy of the Post mortem report of the Zakkir Hussain. K.P issued from
Medical College Hospital, Manjeri.
Ext.A4 : True copy of the death certificate of Zakkir Hussain K.P issued from
Department of Urban Affairs, Manjeri Municipality.
Ext.A5 : Copy of the Certificate of Registration and Fitness Certificate issued in
favour of deceased Zakkir Hussain K.P.
Ext.A6 : Copy of the Policy Certificate No.01601736340000 issued by the first
opposite party in favour of the second opposite party.
Ext.A7 : Copy of the driving licence issued in favour of the deceased Zakkir Hussain.
Ext.A8 : Copy of the Family Membership Certificate issued in favour of the
complainant from the Village Office, Pandallur.
Ext.A9(S): The copy of lawyer notice dated 09/10/2021 along with copy of postal
receipt and copy of acknowledgement card issued to the first opposite
party by the complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B3
Ext.B1 : Copy of the letter dated 03/12/2019 sent by the first opposite party to the
complainant intimating it’s in ability to pay personal accident cover.
Ext.B2 : Copy of repudiation letter dated 06/03/2020 sent by the first opposite
party to the complainant.
Ext. B3 : True copy of the policy terms and conditions issued to the second party.
MOHANDASAN.K, PRESIDENT
PREETHI SIVARAMAN.C, MEMBER
MOHAMED ISMAYIL.C.V, MEMBER
