IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/81/2017.
Date of Filing: Date of Admission: Date of Disposal:
01.06.17 08.06.17 19.03.19
Complainant: Sk. Sadrul Alam @ Sadrul Alam
S/o Late Md. Heyadet Ali
Vill- Bahadurpur, PO-Fatepur,
Ps-Burwan, Dist-Mursidabad
Pin-742132
being the appointed Attorney on behalf of
Ashadul sk. S/o Safar Sk. Vill & PO-Ekghori,
PS-Burwan, Dist-Murshidabad
-Vs-
Opposite Party: 1. The Authorised Signatory,
Magma HDI General Insurance Co. Ltd.
24, Park Street, Anuj Chamber (2nd Floor)
Kolkate-700016.
2. The Branch Manager,
Magma Fincorp Limited,
Berhampore Branch, 155, R.N. Tagore Road,
PO-Berhampore, Dist-Murshidabad,
Pin-742101.
Agent/Advocate for the Complainant : Sri. Sadhan Kumar Saha.
Agent/Advocate for the Opposite Party No.1 : Sri. Nilabja Datta.
Agent/Advocate for the Opposite Party No.2 : Sri. Animesh Guin.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Sk. Sadrul Alam @ Sadrul Alam (here in after referred to as the Complainant) filed the case against the Authorised Signatory of Magma HDI General Insurance Co. Ltd. & Another (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant happens to be the Attorney appointed by one Ashadul Sk. who is the owner of a truck being registration No. WB-41A/0850. The Complainant was authorised to manage the business of the truck vide power of Attorney dated 14.11.16. On 30.11.16 at about 2.30 a.m. the said truck met an accident at Duckbunglow Bus Stand under Kansa P.S. on its way from Burdwan to Rampurhat. The truck was fully damaged but the driver and the helper were narrowly escaped. Then the Complainant moved the truck to a garage namely, Maa Tara Motor Works at Panagarh, District Burdwan and got an estimate of Rs.3,86,000/- only for repair. The Complainant paid Rs.2,48250/-, Rs.66,300/- and Rs.35,360/- to Biswakarma Auto Hardware for purchase of motor parts. The Complainant lodged an FIR with Kansa P.S. being M.A.C. case No. 30/2016 dated 08.12.16 and vehicle was seized on 08.12.16. The Complainant thereafter furnished claim form along with other documents to the OP No.1 who duly receive the same and caused an enquiry but did not compensate the loss due to such accident. The vehicle was insured with OP No.1 and the OP No.2 was conducting financing a business. The insurance policy was renewed on payment of requisite premium and there was a valid insurance policy on the date of accident. Ultimately, the OP No.1 sent a letter to the Complainant on 06.02.17 denying to compensate under the policy condition No.8 which is not tenable in law. Ashadul Sk. took loan for purchase of the truck from OP No.2 and he paid all installments leaving nothing due for the same. The duty of the OP No.1 is nothing but deficiency in service. Hence, the Complainant has filed the case praying for award regarding the cost of repair of the truck amounting Rs.3,49,910/- along with compensation of Rs.25,000/- for harassment and mental agony and interest @ 9% per annum against the OP No.1.
The OPs contested the case by filing written versions.
The OP No.1 filed written version on 25.10.17, contending that the case is not maintainable. It is the case of the OP No.1 that the lorry being No. WB-41A/0850 was insured with the OP No. 1 and the policy being No. P0017400002/4103/10312 was insured in favor of Mr. Ashadul Sk but the said lorry was transferred to some other person. Ashadul Sk. never informed regarding the change of ownership of the vehicle to the OP NO.1. Ashadul Sk. had sold the vehicle to the Complainant vide sale deed dated 20.08.13 prior to the date of alleged accident but the sale of vehicle was neither informed to the RTO nor to the insurance company which is in violation of law and insurer is to indemnify Ashadul Sk. for any defined loss as mentioned under the insurance policy within the terms and conditions mentioned there in but at the time of loss, Ashadul Sk. was not the owner of the vehicle. Hence, no loss occurred to him. The Complainant was never the insured and the insurance certificate has not been transferred or the OP No.1 was never informed of the change of ownership of the vehicle. So, the Complainant is not entitled for any indemnification. The OP No.1 had duly informed the insurer, Ashadul Sk. for non-admissibility of the claim vide letter dated 06.02.17. The Complainant is the present user of the vehicle being No. WB-41A/0850 and the registered owner is not the person in whose care and custody the vehicle met the alleged accident. According to the policy norms, it is the duty of the registered owner to keep the vehicle with proper care and his own custody but in the present case the registered owner without prior intimation/or without prior approval of the OP No.1 handed over the vehicle to the Complainant in violation of conditions No.8 of the policy. It is also the case of the OP No.1 that the OP No.1 surveyed the case through their authorised person and found that the estimate by the Complainant is excessive, vague and inadequate and without any basis and investigation disclosed that the insurer left his residence and resided at UAE for last 1 year. Hence, the OP No.1 has prayed for dismissal of the complaint with cost.
The OP No.2 filed written version on 30.08.17, contending that the Complainant is a debtor and the OP No.2 is a creditor. So, the complaint is not maintainable. The hirer of the Complainant availed financial assistance for purchase of a commercial vehicle and financial assistance was given on the strength of hire purchase agreement dated 01.06.13 and Complainant is a defaulter in payment of instalments. It is denied that the Complainant has paid all installments but the hirer/Complainant has paid the EMI through third party after due date and till date interest and other charges are due and to be payable by hirer/Complainant. The OP No.2 prays for dismissal of the complaint.
On the basis of the above versions following points are framed for proper adjudication of the case:
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP No.1 , as alleged?
- Is the Complainant entitled to get any relief against the O.P. No.1, as prayed for?
Point No.1
The Ld. Advocate for the Complainant submits that the Complainant is the power of Attorney holder of one Ashadul Sk. who is the registered owner of vehicle No. WB-41A/0850 and insured in connection with policy No. P0017400002/4103/101312. He argues that the Complainant is maintainable as the Ashadul Sk. hired the services of the OPs for consideration.
In reply, the Ld. Advocate for the OP No.1 submits that the case has been filed by Sk. Sadrul Alam alias Sadrul Alam but Ashadul Sk. has not filed the case. He argues that there is no privity of contract between Sadrul Alam and the OP No.1 in connection with the insurance policy of the vehicle No.WB-41A/0850 so the Complainant is not a consumer in terms of the provision of the C.P. Act, 1986.
The Ld. Advocate for the OP No.2 submits that the OP No.2 is not aware of the fact whether there was any accident of the vehicle on 30.11.16.
Perused the written complaint, written versions, documents and written arguments submitted by both sides. Admittedly, one Ashadul Sk. is the registered owner of vehicle No. WB-41A/0850. Admittedly, the vehicle was insured under the OP No.1 during the period from 29.05.16 to 28.05.17 vide policy No. P0017400002/4103/101311 in the name of Ashadul Sk. Admittedly, Ashadul Sk. lodged a claim before the OP No.1 and the OP No.1 repudiated the claim vide letter dated 06.02.17 for violation of policy condition No.8. It is the specific case of the OP No.1 that the Complainant transferred the vehicle without intimation to the OP No.1 and without approval of the registering authority by executing an agreement for sale dated 20.08.13 in favor of the Complainant Sadrul Alam. The Complainant has not denied the said fact in his evidence. In the present case, the Complainant Sadrul Alam has filed the case. On a careful consideration over the materials on record, we find that there is no privity of contract between the Complainant, Sadrul Alam and the OPs. Therefore, it cannot be said that the Complainant, Sadrul Alam is a consumer in terms of section 2 (I) (d) (ii) of the C.P. Act, 1986. Hence, we have no hesitation to hold that the Complainant is not a consumer in terms of section 2 (I) (d) (ii) of the C.P. Act 1986.
Point No.2
The Ld. Advocate for the Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of.
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Complainant is entitled to get the cost of repair and compensation from the OP No.1 and the repudiation of claim by the OP No.1 is without any basis.
In reply, the Ld. Advocate for the OP No.1 submits that Ashadul Sk (Insured) violated the condition No.8 of the insurance policy by not keeping the vehicle under his care and custody and so the Ashadul Sk. is not entitled to get any relief in this case. He further argues that Ashadul Sk transferred his vehicle No. WB-41A/0850 to the Complainant by executing an agreement dated 20.08.13 without any knowledge of the OP No.1 and the registering authority. He argues that the Complainant is not the registered owner of the vehicle No. WB-41A/0850 and so he is not entitled to get any relief in this case.
The Ld. Advocate for the OP No.2 submits that Ashadul Sk. took financial assistance from the OP No.2 and a sum of Rs.15,586/- is due as on 08.03.17 as per statement of account (Annexure-B). He submits that the Complainant cannot claim himself as owner of the vehicle.
We have already held that the complaint is not a consumer in terms of section 2(I) (d) (ii) of the C.P. Act, 1986. Sk. Sadrul Alam filed the case as the Complainant on the strength of a power of Attorney dated 14.11.16 but before execution of the power of Attorney, Ashadul Sk handed over his vehicle to the Complainant by executing an agreement for sale dated 20.08.13. The fact of transfer of ownership/transfer of possession of the vehicle has not been informed to the OP No.1. The Complainant, Sk. Sadrul Alam was the user of the vehicle but he has no privity of contract with the OP No.1. We think that the OP No.1 has rightly repudiated the claim of Ashadul Sk. For violation of Condition No. 8 by a letter dated 06.02.17 and the OP No.1 has no deficiency in service. Therefore, the Complainant is not entitled to get any relief in this case.
Reasons for delay
The Case was filed on 01.06.17 and admitted on 08.06.17. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case fails.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No.CC/81/2017 be and the same is hereby dismissed against the OPs without cost.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President.
Member President.
