GOPAKUMAR v. ORIENTAL INSURANCE CO. LTD.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 26TH DAY OF JUNE 2019 / 5TH ASHADHA, 1941** ## **WP(C).No.15272 of 2009** ## **PETITIONERS:** **GOPAKUMAR AGED 46, GOKULA, PEELIYANKONAM, KULATHOOR,UCHAKKADA P.O., NOW WORKING AS BRANCH MANAGER, INDIAN BANK, MINNAL BRANCH, ARKONAM TALUK, VELLORE DISTRICT, TAMIL NADU.** **BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENTS:** **1 ORIENTAL INSURANCE CO. LTD. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE-1,, PAZHAVANGADI POST BOX NO.5012, TRIVANDRUM 695 023. 2 INSURANCE OMBUDSMAN, OFFICE OF INSURANCE OMBUDSMAN, KOCHI.** **BY ADVS.** **SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON 26.6.2019 DELIVERED THE FOLLOWING:** WP(C).No.15272 of 2009 2 ## **C.R.** ## **JUDGMENT** This writ petition is filed by the petitioner challenging Ext.P7 order passed by the 1[st] respondent Insurance company dated 7.2.2005 repudiating the claim raised by the petitioner against theft of a vehicle bearing registration No.KL-01/T 6495, Ext.P8 order passed by the Assistant General Manager of the 1[st] respondent Insurance Company dated 30.5.2005 in the appeal submitted by the petitioner affirming Ext.P7 order, and Ext.P10 order passed by the Insurance Ombudsman in complaint No.10/KCH.G1/11-005-225/2005-06 affirming Exts.P7 and P8 orders respectively. Brief material facts for the disposal of the writ petition are as follows; 2. Petitioner purchased a Maruti Zen vehicle specified above on 20.2.2003 availing a vehicle loan. According to the petitioner, registration of vehicle was changed in favour of the petitioner immediately thereafter, and as on the date of purchase of vehicle, there was a valid insurance policy covered by the 1[st] respondent upto November, 2002 undertaking to indemnify WP(C).No.15272 of 2009 3 all third party risk, theft and for any other unforeseen contingencies. The transfer of vehicle is evident from Ext.P1. The said vehicle was stolen from the house of petitioner on 22.5.2003 and crime No.84/2003 of Poozhiyoor Police Station was registered. However, the vehicle could not be traced out during the course of investigation and it remains undetected, and therefore, a report accordingly was submitted by the Investigating Officer before Court, evident from Ext.P2 dated 13.3.2004 in Crime No.84/2003. 3. Thereupon petitioner claimed an amount of Rs.2,44,900/-, on account of the policy existing against the vehicle. However, the policy was repudiated as per Ext.P7 order by the insurance company. The case projected by the petitioner is that, whatever documents sought for by the 1[st] respondent was handed over to the 1[st] respondent insurance company, however, the claim was repudiated without taking into account any of the aspects. On the appeal filed before the Appellate Authority of the insurance company, a non-speaking order is passed affirming Ext.P7 order. It was thereupon that, the claim was raised before the Insurance Ombudsman. WP(C).No.15272 of 2009 4 4. I have heard learned counsel for petitioner, learned counsel appearing for the 1[st] respondent and perused the pleadings and documents on record. 5. On a reading of Ext.P7 order passed by the 1[st] respondent, it is clear that, the policy was issued to the previous owner of the vehicle viz., one K.Thulaseedharan to cover the vehicle w.e.f.7.11.2003 for a period of one year and since Thulaseedharan was the registered owner of the vehicle, he had an insurable interest on the vehicle. However, when the ownership of the said vehicle was transferred to petitioner's name on 20.2.2003, Mr.Thulaseedharan ceased to have any insurable interest on the vehicle. The date of theft is 21.5.2003 and though the ownership of the vehicle was in the name of the petitioner as on the date of theft and petitioner had an insurable interest on the vehicle but there was no valid insurance policy in the name of the petitioner as on the date of theft to cover the insurable interest on the vehicle. It is also stated thereunder the policy was transferred in the name of the petitioner on the request of the petitioner only on 26.5.2003 i.e., after the date of theft and much after 14 days period from WP(C).No.15272 of 2009 5 the date of transfer of ownership of the vehicle as allowed under the tariff regulations. It was thereupon that the policy was repudiated. The Appellate Authority examined the papers and has concurred with the decision of the Divisional Office of the 1[st] respondent company. The Insurance Ombudsman after assimilating the factual situation has concurred with the findings rendered by the Divisional Officer as well as the Appellate Authority after finding that there was no valid policy of insurance in the name of the petitioner so as to cover theft of the vehicle at the hands of the petitioner. 6. I have evaluated the rival submissions made across the Bar. It is an admitted fact that, though the previous owner has transferred the vehicle in the name of the petitioner before the Motor Vehicles Registration Authority before theft, petitioner has not cared to file any application before the insurance company within the time period prescribed in order to transfer the insurance policy. However the case projected by the petitioner is that, in accordance with section 157 of the Motor Vehicles Act, 1988 the transfer of certificate of insurance is automatic. WP(C).No.15272 of 2009 6 Section 157 of the Motor Vehicles Act read thus: _**“157. Transfer of certificate of insurance.-** (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfer to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer._ _**Explanation.-** For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance._ _(2) The transferee shall apply within fourteen 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 insurance in regard to the transfer of insurance.”_ 7. But fact remains, section 157 comes under Chapter XI of Act, 1988 dealing with insurance of Motor vehicles against third party risk. Therefore, the automatic transfer of the certificate of insurance and WP(C).No.15272 of 2009 7 the policy as is stipulated under section 157 is only in respect of 3[rd] party risk, but, there is no third party risk involvement in the case on hand, being a theft, enabling the petitioner to secure any statutory benefit out of it. Which thus means, since the policy is not transferred by the petitioner within the statutory period of 14 days, petitioner is not entitled to get any relief against the theft of the vehicle on account of the policy in question and the liability under section 157 of Act, 1988 is confined to third party risk alone. To put it otherwise, there is no contract of insurance by and between the petitioner and the insurance company. Though learned counsel for the petitioner has also relied upon the judgment of the Apex Court in **M/s.Complete Insulations (P) Ltd. v. New India Assurance Co. Ltd.** [AIR 1996 Supreme Court 586] to canvass the said proposition, to my considered view, in the said judgment, Apex Court only considered the issue with respect to the liability of the insurance vis-a-vis the fiction created under section 157, and held that, the liability is limited to 3[rd] party risk alone. Therefore, petitioner is not entitled to get any benefit out of the proposition of law so laid down WP(C).No.15272 of 2009 8 by the Apex Court also. 8. Having gone through the orders passed by the insurance company and the respective statutory authorities, I am of the considered opinion that, petitioner was provided with sufficient opportunity of hearing and it was after taking into account all the inputs produced by the petitioner, the claim raised by the petitioner was repudiated, and affirmed respectively. Therefore, petitioner has not made out any case to interfere with the orders passed, exercising the power of judicial review. Resultantly writ petition fails, accordingly it is dismissed. **Sd/-** ## **SHAJI P.CHALY** Smv 22.6.2019 **JUDGE** WP(C).No.15272 of 2009 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF RELEVANT PAGE OF R.C.BOOK. EXHIBIT P2 TRUE COPY OF U.N.REPORT DATED 13.03.2004 IN CRIME NO. 84/2003.** **EXHIBIT P3 TRUE COPY OF APPLICATION DATED 26.05.2003. EXHIBIT P4 TRUE COPY OF THE RECEIPT DATED 26.05.2003.** **EXHIBIT P4 A TRUE COPY OF RECEIPT. EXHIBIT P5 TRUE COPY OF POLICY IN THE NAME OF PETITIONER.** - **EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 19.10.2004. EXHIBIT P7 TRUE COPY OF LETTER DATED 07.02.2005. EXHIBIT P8 TRUE COPY OF THE REJECTION ORDER DATED 30.05.2005** **EXHIBIT P9 TRUE COPY OF THE COMPLAINT BEFORE THE 2ND RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER DATED 02.02.2006 BY 2ND RESPONDENT. EXHIBIT P11 TRUE COPY OF THE ORDER OF TRANSFER DATED 19.04.2006**