The petitioners Abdul Latif and Hazi Jalaluddin Biswas filed a petition u/s.12 of the Consumer Protection Act for seeking relief.

The fact of the case as revealed from the petition as well as from the evidence is that Abdul Latif ,S/o . Samser Ali, Vill. Darivita,P.O. Fatepur, P.S.Balarampur, Dist. Katihar and another complainant Hazi Jalaluddin Biswas  the son of Late  Md. Hanif Biswas, Vill. Raghabpur, P.S. Karandighi, Dist. Uttar Dinajpur are the joint complainant of this case. From the evidence it is found that O.P.No.1 i.e Bajaj Allianz General Insurance Co. Ltd. is a business concern dealing in various Insurance businesses like vehicle insurance, fire insurance etc. and the O.P.No.2 is the agent of O.P.No.1 who resides within the jurisdiction of this Forum. The petitioner No.1 intends to purchase a Bolero car vehicle bearing No.WB74X/5044 with the help of financial assistance of Mahindra and Mahindra Finance Service Ltd.  The petitioner No.1 contacted with the O.P.No.2 to purchase a Insurance policy with respect  to the vehicle in question after payment of premium and the O.P.No.1 issued a Insurance policy valid from 04.12.13 to 03.12.14 for the vehicle in question and the sum assured of Rs.4,00,000/- and  O.P.No.2 handed over the policy of the vehicle to the petitioner. From the evidence and petition it is found that due to the engagement of another business the petitioner No.1 could not maintain and look after the vehicle. For that reason the petitioner No.1 executed a power of attorney in favour of petitioner No.2 dt.18.02.14. On the basis of such power of attorney petitioner No.2 used to look after the vehicle. From the evidence and petition it is found that on 21.02.14 the petitioner No.2 Park the vehicle in question in front of his house after lock and key condition. Moreover he locks the vehicle with an additional chain and thereafter he went to his bed. When he woke up at 5 a.m. on 22.02.14 in the morning he saw the vehicle was not there and he did not find the vehicle in the said place. Thereafter, inspite of several searches he did not trace out the vehicle. That vehicle was theft by some miscreants. After the incident the petitioner No.2 informed the matter to the petitioner No.1 and on the same date he informed the matter to the O.P.No.1 and the petitioner No.2 lodged a written complaint before the I.C., Karandighi P.S. On the basis of such written complaint Karandighi P.S. started a case bearing No.139/14 dt.22.02.14 u/s.379 I.P.C. and after investigation police submitted a final report. The petitioner No.2 submitted a claim to the office of O.P.No.1 for getting the sum assured of the theft of the vehicle in question as the vehicle was insured with the O.P.No.1 and at the time of occurrence the vehicle was in force. On 08.03.14 the O.P.No.1 issued a letter asking the petitioner why the claim of the petitioner should not be repudiated. Thereafter the petitioner submitted all required documents with proper clarification for getting his claim but on 18.03.14 the O.P.No.2 issued another letter stating that the claim should not be repudiated. During the negligence act of the O.P petitioner has suffered irreparable loss and injury. For which the petitioner has come before the Forum for getting relief. Thereafter by an amendment the petitioners claimed that the O.P.No.1 be directed to pay the sum of Rs.4,00,000/- only to the complainant No.1. The word complainants in para 7(a) of the petition was omitted.

The petition has been contested by the O.P.No.1 i.e Bajaj Allianz General Insurance Co. by filing the written version denying all the material allegations leveled against him contending inter alia that the petition is not maintainable in law and the case is barred by the principle of res judicata. There is no cause of action to file this case.

The further defence case is that the insurance policy is a contract of both the parties under the obligation to obey/fulfill of terms and conditions of the policy. The further defence case is that Abdul Latif sold the vehicle to Hazi Zamaluddin without any prior intimation to the Insurance Company and after completion of the sale deed neither the petitioner No.1 nor the petitioner No.2 given any intimation to the Insurance Company i.e. insurer Bajaj Allianz General Ins. Co. There is no previty of contract in between the complainants and O.P, as such no relief can be granted to the complainants. The further defence case is that as per Motor Vehicle Act the fact of change of ownership of the vehicle is required to be intimated to the Ins. Co. within the stipulated period as mentioned in the Act. But nothing was done. So, considering such facts and circumstances the prayer as made by the complainants is required to be dismissed with heavy cost

In order to prove the case the petitioner No.1 Abdul Latif was examined as p.w.1 and he filed documents and he was cross examined. On the other hand O.P.No.1 examined Shri Ajit Chakraborty as O.P.W.1, but he did not face the cross examination. So, actually          it would be said that the O.P. did not examine any witness to prove his defence case.

 Case law submitted by the complainant: 1) AIR 1961 Calcutta 359, 2) IV (2005) CPJ 110 (NC), 3)2006(3) CPR 81, 4) 2006 (3) CPR 85 and unreported case Mr.Jeewanjee Hoosenibhai Vs. The New India Assurance Co. Ltd.

On the other hand the O.P submitted the case laws: 1)2015 C.J 342 (NC),2) 2015 C.J 626 (NC) and 3) 2015 C.J 2014 (NC).

                                       DECISION WITH REASONS

At the time of argument the Ld. Lawyer for the complainant submitted that the complainant No.1 could not maintain and look after the vehicle that is why he executed a power of attorney in favour of complainant No.2 on 08.02.14 and handed over the vehicle to the complainant No.2. Now, let us consider whether the petitioner No.1 has come to the Forum with clean hand or not. On perusal of the document filed by the petitioner it is found that there was an agreement for sale between the petitioner No.1 and petitioner No.2. By that agreement of sale the delivery of the possession of the vehicle was handed over to the petitioner No.2. So the petitioner No.1 has completely suppressed the agreement of sale. Moreover, from the FIR it is found that the petitioner No.2 lodged a written complaint before the Karandighi P.S that he purchased the vehicle on 08.02.14 and that vehicle was theft away in front of his house. So definitely the complainant has not come to the Forum with clean hand as because he did not state the fact that the vehicle was handed over to the complainant No.2 Hazi Jalaluddin. It may be argued but no argument made by the complainant that it is a deed of agreement for sale, it is not sale deed. But in the case of movable property the delivery of a good is very vital. Delivery of possession is the main criteria as to the transfer of property in the case of movable property. For the instant case it is found that possession was handed over to the complainant No.2 by the complainant No.1. So, definitely the complainant No.1 has gave a misleading statement before the Forum.

Now the next point is to be considered whether the complainant No.1 has any insurable interest in the vehicle or not. Though, it is fact that the Insurance policy was in force during the period of occurrence, but the petitioner No.1 transferred the vehicle and delivered the possession of the vehicle to the complainant No.2. So, at the relevant time the complainant No.1 has no insurable interest. The contract between complainant No.1 and the Insurance Co. seized to an end due to transfer and delivery of the possession of the vehicle.

Now the next point is to be considered whether the complainant No.2 has an insurable interest or not. According to the M.V.Act and the Motor Tariff Regulation that the transferee in the present case the complainant  No.2 shall apply within 14 days from the date of transfer in writing under recorded delivery to the insurer who has 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 date of the insurance policy, so that the insurer may make the necessary changes in his record and issue fresh Certificate of Insurance. Moreover, Rs.50/- is to be deposited for issuing a fresh certificate in the name of transferee. But on perusal of the record no such record is found of the complainant No.2 made any prayer before the Insurance Co. to record his name as transferee of the vehicle. So, actually we did not find that any contract between the Insurance Co. and the complainant No.2. In this regard the Ld. Lawyer for the petitioner submitted the case law reported in 2006 (3) CPR 81. By that case law it is found that the Ld. Lawyer of the petitioner argued that the Ins. Co. cannot repudiate the Insurance claim in such case. On perusal of the case law it is found that the Insurance Co. alleging that the vehicle was sold after the incident. No proof tender, registration is standing in the name of the complainant which is duly insured. But the fact of the case law is not applicable to the present case as because there is a complete proof that the complainant No.1 transfers the vehicle in favour of complainant No.2. So, the case law has no application for this case. Another case law submitted by the Ld. Lawyer of the complainant reported in IV 2005 CPJ 110 (NC). It is not understood how this case law helps the complainant to substantiate his claim. On perusal of the case law it is found that policy not transferred in complainants name, claim not settled in his favour , as such according to Sec.157 of the M.V.Act does not help the complainant at all. For the instant case it is also found of the same fact that the policy was not transferred in the name of complainant No.2. So, the above case law has no application in this case.

On the other hand the Ld. Lawyer for the O.P submitted the case laws by which it is found that when the vehicle was not transferred in the name of transferee after the sale by the owner, vehicle was stolen from the custody of the transferee who had no insurable interest on the date of theft, the Insurance Co. has no liability.

Now the next point argued by the Ld. Lawyer of the O.P is that the case is barred by the law of res judicata. According to the argument as advanced by the Ld. Lawyer of the O.P is that whether Abdul Latif filed a case against the O.Ps bearing No.18/2015 and on 09.02.16 on the basis of the prayer of the complainant  the Forum permitted to withdraw  the case only. No permission is granted to sew a case.  After withdraw of the case petitioner Abdul Latif and Hazi Jalaluddin filed the instant case. But in the opinion of the Forum, the earlier case bearing No.18/2015 was not disposed on merit. So, the principle of res judicata is not applicable in this case. Moreover, Hazi Jalaluddin was not party in the previous case. So, considering all the facts and circumstances and considering the above discussion the instant case is liable to be dismissed

Fees paid are correct.

Hence, it is

ORDERED,

That the instant consumer complaint being No. CC - 27/2016 be and the same is dismissed on contest but without any cost.  .

Let a copy of this order be given to the parties free of cost