West Bengal

Birbhum

CC/38/2017

Jamarul Islam S/o. Muselem Sk - Complainant(s)

Versus

1.Branch manager.National Insurance Co Ltd. - Opp.Party(s)

Achintya Chattopadhyay

26 Jul 2023

ORDER

Shri Sudip Majumder. President in Charge.           

The complaisant / petitioner files this case U/S 12 of the Consumer Protection Act, 1986.  The fact of the case in brief is that one Jamarul Islam S/O. Musclem SK. resident of vill. – Bhangarpara, P.S.- Rampurhat, District-Birbhum purchased a Bus being Registration No. WB.19A.3571, Engine No. 69L62103783, Chassis No. 400060LTO133477  from Proforma OP No. 3/Jakirul Islam of Rampurhat and the same vehicle was transferred in the name of the petitioner  by R.T.O. Birbhum on 14/7/2016. The above vehicle was insured in the name of the previous owner i.e. Proforma OP No. 3/Jakirul Islam with the OP Nos. 1 and 2, vide Insurance Policy No. 156007311510002617 and was valid from 10/11/2015 to 09/11/2016.

It is the further case of the complainant that the complainant informed the same with a request to transfer the insurance policy in favour of the complainant and the OP NO. 1/ National Insurance Co. Ltd., Rampurhat also acknowledging the same with an official stamp, signature dated 15/7/2016. The complainant alleged that the OP No. I was reluctant to transfer the Insurance policy in favor of the Complainant/petitioner. Finally, the Insurance Policy was transferred in the name of the complainant/ petitioner by the OP No. 1 on 20/7/2016.

 

 

 

 

It is the next case of the complainant that on 18/7/2016 the said vehicle dashed against a truck in between village-Chakpara and Majkhanda under P.S. Rampurhat, Dist. Birbhum, and in that accident one person died and severals were injured and the above vehicle was severely damaged and in connection with the above accident a case had been started by the Rampurhat P.S. vide No. 157/2016 and seizure list was made by the Rampurhat police and also G.R. case was started in the Ld. Court of S.D.J.M., Rampurhat, Birbhum, vide G.R. No. 673/16 U/S 279/338/304(A) I.P.C.

It is also necessary to mention that OP already paid the third party insurance claim.

It is the specific version of the complainant that after the accident petitioner immediately informed the OP No. 1 of the matter and filed claim with the OP Nos. 1 and 2 with all original relevant documents with quotation and final bill for repair of the above vehicle of repairing agency i.e. “Data Body Builders” Rampurhat, Birbhum and the final bill for repair was Rs. 3,53,315/ which was duly paid to the repairing agency by the petitioner on 03/09/2016, but after accepting all the relevant documents the OP Nos. 1 and 2 rejected the claim of petitioner with a tricky way that “you have applied for transfership before us on 19/07/2016 and made endorsement with effect from 20/07/2016 where as the date of accident was 18/07/2016 and on the basis of the above, close the claim as ‘No Claim’.

It is also necessary to mention that the complainant had purchased the said bus from Jakirul Islam and for this Jakirul Islam is also made as necessary Party/Proforma OP as OP No. 3 in this case.

Hence, after finding no other alternative complainant is compelled to file this case/complainant before this Forum/Commission for proper relief and prays for:

1. To pass an order directing OP NOs. 1 and 2 to pay Rs. 3,53,315/(Three lakh fifty three thousand three hundred fifteen) only with 10% interest from the date of filing the claim to the Ops i.e. 29/07/2016.
2. To pass an order of Rs. 2100,000/ (One lacks only)  for compensation, mental agony and harassment.
3. To pass an order to pay Rs. 20,000/(Twenty thousand only) for litigation cost.
4. To pass an order for other relief/reliefs as the Ld. Court may deem fit and proper and all the claim may please be granted against the OP Nos. 1 and 2.

The OP/National Insurance Co. Ltd., Suri Branch has contested the case by filing written version denying all material allegations of the complainant and stated that there was no deficiency in service on the part of the OP No. 1 and the case is not maintainable, either in law or in fact.

 

 

 

 

 

 

OP/National Insurance Co. Ltd. stated in para 16 of their written version as “that the surveyor of the OP/Insurance Company Ltd. Ashok Kumar Mukhopadhyay submitted a preliminary survey report after examining and verifying the accidental vehicle which is correct cogent and genuine in all respect.

The OP/National Insurance Co. Ltd. stated in para 20 of their written version as “that after receiving the above claim-file and on scrutiny of the above claims OP National Insurance Co. Ltd. observe that the Insured applied for transfer of ownership on 19/07/2016 before Rampurhat Business Centre and made an endorsement (T.O.) on 20/07/2016 whereas the R.C Book transferred to Mr. Jamarul Islam on 13/07/2016. At the material time of accident of the vehicle in question i.e. on 18/07/2016 the policy was in the name of Mr. Jakirul Islam. In this connection, the claimant, Mr. Jamarul Islam has not any insurable interest at the material time of accident i.e. on 18/07/2016 as the Policy has not made any endorsement regarding transfer of ownership on that day.

Therefore, on the basis of the above, we assume that the Company has not liability regarding the said Motor OD Claim, and that’s why placed before the original claim docket before the Competent Authority treated as NO CLAIM.”

Ultimately the OP No. 1 prayed for dismissal of the case.

            Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and compared with original documents. Thereafter, respective Ld. Advocates for the OP No. 1 also submitted some documents with Firisti.

            Heard Ld. Advocates for both sides.

            Considered.

            Perused all the documents.

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

   In this case, the petitioner is the owner of vehicle (Bus) Registration No. WB.19A.3571, Engine No. 69L62103783, Chesis No. 400060LTO133477, who purchased the same from previous owner i.e. Proforma OP No. 3/Jakirul Islam of Rampurhat and the same vehicle was transferred in the name of the petitioner  by R.T.O. Birbhum on 14-7-2016 and the above vehicle was insured in the name of the

 

 

previous owner i.e. Proforma OP No. 3/Jakirul Islam with the OP Nos. 1 and 2, vide Insurance Policy No. 156007311510002617 and was valid from 10/11/2015 to 09/11/2016 and the same was informed  to the OP No. 1 on 15/07/2016 as the petitioner became the owner and possession the above insured vehicle.

Thus the complainant is a consumer under the OP/National Insurance Company Ltd. and the                 OP No. 1/National Insurance Company Ltd. is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 i.e. Rs. 20,00,000/-. OP No. 1/National Insurance Co. Ltd., Suri Branch situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 05/03/2019 and the case has been filed on 18/02/2017 and as such it can be said that the complainant has been filed in this case within the statutory period of the C.P. Act, 1986 and, as such, the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant is

owner and possessor of the vehicle (Bus) Registration No. WB,19A,3571 and the complainant purchased the same from previous owner Jakirul Islam, Proforma OP No. 3 of this case and the same vehicle was transferred in the name of the petitioner/complainant by R.T.O., Birbhum on 14/7/2016. The above vehicle was duly insured in the name of the previous owner i.e. Proforma OP No. 3 with the OP Nos. 1 and 2, vide Insurance Policy No. 156007311510002617 and was valid from 10/11/2015 to 09/11/2016.

            The complainant also informed the change of ownership in written to OP No. 1 on 15/07/2016 and the complainant also submitted the acknowledgement which was received from OP No. 1 before this Commission and compared with original. The insurance policy was transferred in the name of the complainant by OP No.1 on 20/07/2016. On 18/07/2016 the above vehicle met with an accident with a truck in between vill.-Chakpara and Majkhanda under P.S.- Rampurhat and one person died and above vehicle severely damaged. After that the complainant informed the same to OP Nos. 1 and 2 and filed claim for cost of repairing of Rs. 3,53,315/ with original relevant documents. But the OP/NICL repudiated the claim on 18/02/2017 and argued that “We would like to inform you that as you have applied for transfer of ownership before us on 19/07/2016 and made an endorsement (T/O) with effect from 20/07/2016 whereas the date of accident was 18/07/2016.

            On the basis of the above, we regret to inform you that we have no other alternative to close the above claim as NO CLAIM.”

 

The complainant also cited the rules and regulation of transfer of certificate of Insurance as per Sec. 157 of Motor Vehicle Act, 1988 as “ 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, transfers 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 clarified 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.”

            In this case, the complainant was purchased the said vehicle from Proforma OP No 3 and the same vehicle was transferred in the name of the complainant by RTO, Birbhum on 14/07/2016 and the complainant also informed the same in written to the OP No. 1 i.e. without any delay, and OP No. 1 also acknowledging the same with an official stamp, signature dated 15/07/2016. The complainant also submitted the same before us and we compared with original. Complainant applied for transfer of name of the insurance policy on 19/07/2016 and the said vehicle was transferred in the same of the complainant on 20/07/2016 and the date of accident was 18/07/2016.

            From the above discussion this Commission is of the view that as the complainant informed the fact of the transfer of the insurance policy vide letter dated 15/07/2016 to OP No. 1 and the OP No. 1 also acknowledged the same and the date of accident was 18/07/2016. Now it is crystal clear that the OP No. 1 already was aware about the name of the new owner of the said vehicle before the accident took place. Thereafter, OP members can’t deny the claim of the complainant.

            The OP/NICL on several occasion harassed the complainant and did not pay the insurance claim to the complainant which is proved beyond all reasonable doubts that there is/was deficiency in service as per Sec. 2(1)(g) of the C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1)(r) of the C.P. Act, 1986 on the part of the OP Nos. 1 and 2.

Point No. 4:

            From the documentary evidence as available in the case record it is crystal clear that the complainant informed to OP No. 1 of the transfer of the insurance policy in the name of the complainant

 

on 15/07/2116 and the accident took place on 18/07/2016. Therefore, the OP No. 1 already was aware about the transfer of the new owner of the said vehicle before the accident took place. Hence, the OP/NICL cannot denied the insurance claim of the complainant of Rs. 3,53,315/- as filed by the complainant with relevant document.

As in this case, it is proved that there is deficiency in service on the part of the OP No. 1/National Insurance Co. Ltd. Hence, the complainant is entitled to get relief or compensation as prayed for.

            Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubt.

• In Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• In Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

            In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. calculating from the date of filing of this case.

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 38/2017 be and the same is allowed in part on contest with costs. The OP Nos. 1 and 2 jointly/severally are directed to pay the insurance claim of Rs. 3,53,315/ (Three lakh fifty three thousand three hundred fifteen only) to the complainant along with interest @ 9% per annum calculation on and from 26/04/2017 (i.e. from the date of filing of this case) till realization. OP Nos. 1 and 2 jointly/severally are also directed to pay Rs. 10,000/ (Ten thousand only) to the complainant/petitioner as cost of litigation.

The entire decree will be complied by the OP Nos. 1 and 2 within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.