Telangana

Mahbubnagar

CC/11/36

Md. Daulat S/o Hussain sab - Complainant(s)

Versus

Bajaj Allianz General Insurance Co. Ltd and 2 Others - Opp.Party(s)

M. Chennaiah Goud

25 Jan 2012

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

   Wednesday, the 25^th day of January, 2012 

                                                          Present:- Sri P. Sridhara Rao, B.Sc., LL.B., President

        Sri A. Veerupakshi, B.A., LL.B., Member     

         Smt. D. Nirmala, B.Com., LL.B., Member      

C.C.NO. 36  Of   2011

Between:-

Md. Daulat S/o Hussain sab, age 34 years, Occ: Business, R/o H.No.1-48, Pudur village, Gadwal Mandal, Mahabubnagar District.

                                                                       … Complainant

And

1. Bajaj Allianz General Insurance Co. Ltd., 3^rd floor, Shop No.10, 11, 12, Alankar Plaza, Park Road, Kurnool, through its Branch Manager.
2. The Regional Manager, Bajaj Allianz General Insurance Co. Ltd., Regional Office, Par East Plaza, 3-6-111/8, Street #18, Main Road, Himayathnagar, Hyderabad.
3. The Branch Manager, Bajaj Allianz General Insurance Co. Ltd.,  Near HDFC Bank, Kaldi complex, Mahabubnagar.

                                                            … Opposite Parties

 This C.C. coming on before us for final hearing on 20-01-2012 in the presence of Sri M. Chennaiah Goud, Advocate, Mahabubnagar on behalf of the complainant and Sri M. Jagannatha Reddy, Advocate, Mahabubnagar for the OP-2 and the OPs.1 and 3 having been set exparte and the matter having stood over for consideration till this day, this Forum made the following:   

                                                                                                       O R D E R

 (Smt. D. Nirmala, Member)

1.  This is a complaint filed by the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to pay Rs.1,54,343/- with interest @ 18% p.a. from the date of accident i.e., from 6-7-2010 towards the sum assured and Rs.10,000/- towards damages besides costs of the complaint. 

2. The averments of the complaint in brief are that:- That the complainant had purchased the vehicle Bolero Maxi truck bearing No.AP.22/X-4922 from its original owner Mr. Muslim Maulali Son of Daulat Sab, Resident of Ralla Cheru Village, Itkyala Mandal on 9-11-2009 with a stipulation that the complainant has to pay cash of Rs.1,00,000/- and to pay the remaining 46 monthly installments of the loan at the rate of Rs.9,385/- per month and delivered the vehicle on executing the agreement on non judicial stamp and put signatures on relevant papers of transfer of vehicle on the name of  the complainant.  The said vehicle was insured with the opposite part no.1 vide policy No.OG-10-1086-1083-00002450 dated 13-8-2009 and the said insurance was valid till 1-8-2010.  Thereupon the complainant has started payment of due installments to the financier and he was also intending to get transfer the vehicle on his name.  At the same time it was learnt that till discharge of the debt to the financier, the vehicle cannot be transferred and so the complainant was waiting for the expiry of the period of loan discharge of debt. He further stated that on 6-7-2010 he was driving the said vehicle carefully on normal speed from Shaikpally village in order to go to Pudur. When the vehicle was entering on the national high way No.7 from Shaikpally a Safari car came from Kurnool side with a high speed and gave dash to his vehicle due to which the vehicle was damaged badly and the inmates of Safari Car have sustained injuries. The complainant further stated that after accident the vehicle of the complainant was not in position to start to move. So the complainant was busy in checking the damages to the vehicle and made arrangements for shifting the vehicle from the place of accident, as such he could not reach police station immediately in order to give complaint against the driver of Safari.  After shifting the vehicle from place of accident he had gone to police station Itkyal for giving information of the accident.  Thereupon the complainant has got repairs and servicing to damaged vehicle at Automotive Manufacturers, Private Limited, Kurnool on spending Rs.1,54,343/- and then the complainant has lodged claim before the O.P.No.1 for payment of sum assured in view of damages caused to his vehicle.  But the O.P.No.2 has repudiated the said claim through his letter dated 11-10-2010 on untenable ground alleging that he has no insurance contract with the complainant. The complainant further stated that due to subsisting charge over the vehicle he could not get the vehicle so also the insurance transferred on his name. He further stated that the insurance would be for the vehicle but not for particular person. For evading the payment of the sum assured regarding the damages of the vehicle the opposite parties repudiating the claim. The complainant further submits that due to unfair trade and deficient services of the opposite parties he has been put to pain and agony.  Therefore the present complaint is filed for the aforesaid reliefs.

3. The opposite party Nos.1 and 3 remained exparte though notices are served on them.

4. The opposite party No.2 filed his counter denying the averments of the complaint and stated there is no privity of contract between this opposite party and the complainant. As such this opposite party is not liable to compensate the complainant as claimed in the complaint. This opposite party further stated that he is not aware of the contractual terms and agreement between on Mr. Muslim S/o Daulat Sab R/o Ralla Cheruvu village of Itikyala Mandal Mahabubnagar and Sri Ram Transport Finance Company Limited Mahabubnagar as per the policy details available with this O.P. Muslim Moulali is the owner of the Bolero Maxi Truck bearing  No.AP22X-4922 and had insured the said vehicle with this O.P. vide policy No.OG-10-180-1803-00002450 on 13-8-2009 and is valid till 12-8-2010.  This O.P. further submitted that the policy is subject to IMT endorsement   No.7, therefore Sri Ram Transport Finance Company Ltd., Mahabubnagar must be added as party to the proceedings. This O.P. further submitted that the insured was not made as party to the proceedings to speak about the transfer of the vehicle in favour of the complainant. Therefore no conclusions can be drawn in respect of transfer of the vehicle. This O.P. further submitted that insured Muslim Moulali sold the vehicle to the complainant on 9-11-2009 through agreement of sale and delivered the vehicle to him by taking a sum of Rs.1,00,000/- and also executed the relevant documents for transfer of the vehicle in his name, so as on the date of accident the insured Muslim Moulali is not the owner of the said vehicle  since the same was sold to the complainant through agreement of sale  dated 9-11-2009. This O.P. further submitted that there is no contract of insurance with complainant herein.  Therefore, this opposite party is not liable to pay any compensation to the complainant. This opposite party further stated that as per Indian Motor Tariff formulated by IRDA, there should exist Insurance contract at the time of taking policy as well as at the time of loss. This opposite party further stated that the complainant got the vehicle repaired by spending a sum of Rs.1,54,343/- at Automotive Manufacturers is incorrect. The insured did not submit any claim form to this opposite party.  This opposite party further stated that the insured has no interest in the subject matter, as such this opposite party rightly repudiated the claim as not maintainable and sent a letter of repudiation to the insured.  So there is no deficiency of service on the part of this opposite party. Therefore, the complaint is liable to be dismissed.    

5. Thereupon the complainant in support of his claim filed his affidavit evidence and got marked Exs.A-1 to A-9. On the other hand, the OP-2 on his behalf filed his proof affidavit and got marked Exs.B-1 to B-5.  

6.  The points for determination now are: 

1. Whether there is any deficiency on the part of the opposite parties in  rendering service to the complainant as alleged?
2. Whether the complainant is entitled for the relief sought for by him?      

    (iii)  To what effect? 

7.  The undisputed facts of the case are that Mr. Muslim Moulali S/o Daulat Sab was the owner and insured of the vehicle Bolero Maxi Truck bearing No.AP 22 X 4922.

8. Point Nos.1 and 2:- It is the case of the complainant that after accident, he got the vehicle in question repaired and servicing to the damaged vehicle at Automotive Manufacturers Private Limited, Kurnool on spending Rs.1,54,343/- under Exs.A-5 to A-9.  Then the complainant has lodged the claim before OP-1 for payment of sum assured in view of damages caused to his vehicle.  The OP-2 has repudiated the said claim through his letter dated 11-10-2010 under Ex.A-3 on untenable grounds alleging that he has no insurance contract with the complainant. To prove his contention the complainant relied upon a decision reported in 2001 ACJ 2059 (Dr.T.V. Jose Vs. Chacko PM and Others).  On this aspect, the learned standing counsel for the OP-2 urged that the insured did not submit any claim form before this opposite party briefing the accident. He further argued that insured Muslim Moulali had sold his vehicle bearing No.AP22 X 4922 to the complainant on 9-11-2009 through an agreement of sale and deliver the vehicle to him by taking a sum of Rs.1,00,000/- and also executed the relevant documents.  As on the date of accident of the vehicle the insured Muslim Moulali is not owner of the insured vehicle bearing No.AP22 X 4922.  Since the vehicle was sold to the complainant through agreement of sale dated 9-11-2009 under Ex.B-3 and also gave possession of the vehicle to the complainant and there is no contract of insurance with the complainant herein, as such this opposite party rightly repudiated the claim as not maintainable and sent a letter of repudiation Ex.B-4. To prove his contention the opposite party relied upon the Judgment (National Insurance Company Limited Vs. V. Mahaboob Basha and Another) of A.P. State Commission passed in F.A.No.1371/2007, dt.13-4-2010, another decision reported in 1996 ACJ 65 (Complete Insulations (P) Ltd., Vs. New India Assurance Co. Ltd.,) of Hon’ble Supreme Court of India, and another decision reported in Revision Petition No.1528/2007 (New India Assurance Co. Ltd., Vs. Dalip Kumar) of Hon’ble National Commission.                         

9.  Now the question that has to be seen is whether the opposite party is justified in repudiating the claim?

10. The material placed on record reveals that Ex.A-1/B-1 is Mr. Muslim Moulali is the insured and he insured the vehicle in question.  It is a fact borne out from the record under Ex.B-3 that before the date of accident Moulali executed agreement of sale in favour of Md. Daulat on 9-11-2009 and sold the vehicle in question to the complainant herein.  So it is crystal clear that as on the date of accident i.e., 6-7-2010 the insured was not the owner of the vehicle and the policy was not transferred in the name of the complainant. At this stage, the contention of the complainant is that it was learned that till discharge of the debt the financier the vehicle cannot be transferred, hence the complainant was waiting for expiry of the period of loan.  He further contended that after accident to the vehicle he got repaired the damaged vehicle at Automotive Manufacturers, Kurnool on spending Rs.1,54,343/-. Except his self styled testimony the complainant did not produce any oral or documentary evidence to prove his contention. The complainant relied upon a decision reported in 2001 ACJ 2059 (Dr.T.V. Jose Vs. Chacko PM and Others) and stated that transferer still continued to remain liable to third parties as his name continued in the records of R.T.O. as owner.  But the facts of the case on hand are quite different from the facts mentioned in the decision.  To prove his contention the opposite party relied upon the Judgment of A.P. State Commission passed in F.A.No.1371/2007, dt.13-4-2010, reported that the complainant cannot claim the damages as the policy was not transferred in his name. The National Commission decision reported in Revision Petition No.1528/2007 of (New India Insurance Vs. Dalip Kumar) opined that on receipt of the information from the transferee the insurance company is required to make changes in its records and issue a fresh certificate of insurance. In the present case, admittedly as pointed out earlier the transferee, i.e., complainant did not get the vehicle transferred in his name and intimate the insurance company about the transfer of the vehicle within 14 days of the registration in his name to enable the insurer to make necessary changes in its records and issue a fresh certificate of insurance. The transferee did not get any novation of contract of insurance in respect of the person or property and therefore, we find that the complainant did not have any insurable interest on the date on which the vehicle met with an accident. From the above said facts and circumstances and the principles laid down in the decision it is clear evidence that as on the date of accident there is no privity of contract between the complainant and this opposite party No.2.  As such we are of opinion that the opposite party rightly justified in repudiating the claim. So for the reasons stated above, we hold that the complainant failed to establish the ground of deficiency of service on the part of this opposite party, as such the complainant is not entitled for the relief sought for by him.  Both the points are answered accordingly in favour of the opposite party and against the complainant.    

  11. Point No.3:- In the result, the complaint is dismissed.  No order as to the costs.  

         Typed to dictation, corrected and pronounced by us in the open Forum on this the 25^th day of January, 2012.    

 

                                                  I agree                                    I agree                                                                 

 

    MEMBER                             MEMBER                              PRESIDENT                  

  Appendix of evidence

      List of Witness examined

On behalf of Complainant:                          On behalf of Opposite Parties:   

- Nil -                                                                      - Nil -                                       

List of documents marked:-

On behalf of Complainant:-    

                        Ex.A-1: Copy of Policy Schedule, dt.13.8.2009.  

Ex.A-2: List of documents required for claim settlement.  

Ex.A-3: Copy of Letter, dt.11.10.2010.  

Ex.A-4: Copy of F.I.R., dt.6.7.2010.

Ex.A-5: Original Receipt, dt.7.9.2010.

Ex.A-6: Original Receipt, dt.22.7.2010.

Ex.A-7: Original Estimate, dt.31.8.2010.

Ex.A-8: Original Letter, dt.16.7.2010.

Ex.A-9: Original Cash Memo, dt.9.9.2010.

 On behalf of OP-2:               

                       Ex.B-1: Copy of Policy Schedule, dt.13.8.2009. 

                       Ex.B-2: Original Motor Insurance Claim Form.

                       Ex.B-3: Photostat copy of Sale Deed, dt.9.11.2009.

Ex.B-4: Copy of Letter, dt.11.10.2010.   

Ex.B-5: Copy of Preliminary Survey Report, dt.16.7.2010.                                                                                                                              

 

                                                                        PRESIDENT                    

Copy to:-

1. Sri M. Chennaiah Goud, Advocate, Mahabubnagar on behalf of the complainant.

2. Sri M. Jagannatha Reddy, Advocate, Mahabubnagar for the OP-2.

3.  Bajaj Allianz General Insurance Co. Ltd., 3^rd floor, Shop No.10, 11, 12, Alankar Plaza, Park Road, Kurnool, through its                            Branch Manager. (OP-1).

4. The Branch Manager, Bajaj Allianz General Insurance Co. Ltd., Near HDFC Bank, Kaldi complex, Mahabubnagar. (OP-3).