Presented by Smt. A.Behera, Member.

Brief introductory facts :-

That the present Complainant is the registered owner of Bolero Pick-up Van bearing Regd. No. OR-15-17-L-2704 which was duly insured with the Opposite Parties vide policy No. OG-09-2412-0000074. That the vehicle met with an accident on Dt.11/03/2009 at Jamseth and all formalities has been completed by the Opposite Party No.5(five) who was managing the vehicle.

That the insurance company surveyor while inquiry met this Opposite Party No.5(five) and to this satisfaction filled in the claim form and took signatures on the form from Opposite Party No.5(five) which was subsequently repudiated.

That after the fact came to knowledge of the present complaint he filed the claim once again under his own signature as the owner of the vehicle which was subsequently further repudiated alleging that the vehicle in issue has already been sold to Opposite Party No.5(five) vide an agreement.

There are a series of common action happened in between the insurance company and present Complainant and also Opposite Party No.5(five) regarding the management of the vehicle.

To their contentions complaint filed the following documents and relies on them.

1. Bill from Nanhe Body Garage, Amount Rs.12,000/-(Rupees one thousand two hundred)only Dt.13/04/2009.

2. R.C. Book of vehicle OR-15-L-2704 in the name of Complainant.

3. Letter of Insurance Company to Complainant Dt.20/08/2009 regarding not responding of the insurance claim.

4. Letter of Complainant to Opposite Parties to reopening of the claim Dt. Nil.

5. Driving license from in the name of Dayasagar Bag, Driver.

6. Bills amounting of Rs.6,000/-(Rupees six thousand)only and Rs.490/-(Rupees four hundred ninety)only Dt.13/04/2009.

7. Bill Orissa Motors Dt.23/03/2009 amounting of Rs.44,650.12/-(Rupees forty four thousand six hundred fifty and twelve paise)only and Rs. 26,919/-(Rupees thenty six thousand nine hundred nineteen)only

8. R.C. Book particulars about the vehicle in issue.

9. Copy of F.I.R. Dt.11/03/2009.

10. Request letter for claim form Dt.30/05/2009 and receipt of acknowledgment.

11. Request letter for claim form Dt.01/05/2009 by OP No.5(five).

12. Policy document for the vehicle in issue.

13. Letter of Insurance Company to Complainant Dt.13/03/2009 to supply claim form and documents.

14. Letter from Opposite Party Insurance company to Opposite Party No.5(five) Dt.10/04/2009 repudiating the claim of Opposite Party No.5(five).

15. Bill Dt.13/04/2009 from Auto Electric Works.

16. Agreement of sale of the vehicle between Complainant and Opposite Party No.5(five).

Complainant also filed three numbers of citations to substantiate their cases:-

1. 91 (2001) CLT OSC Page 39.

2. 2012 SAR (Civil) Page 57 Para 12,19,21.

3. 2011(1) CLR (SC) 1076 Para-11.

Found no one fit and applicable for this case.

Opposite Parties appeared and filed their versions for Opposite Party No.1(one) and No.3(three) on Dt.31/05/2010 for Bajaj Alliance, GIC Ltd and others having some primary objections to the charges filed against them in the complaint petition. Opposite Party No.4(four) and No.5(five) were being set ex-parte for their absence on Dt.19/03/2010.

Allegations by the Opposite Party No.1(one) to No.3(three):-

1. That the vehicle was being used for commercial purpose hence does not come under the purview of Consumer Protection Act-1986.

2. The vehicle was already been sold to one Srikanta Mishra at the time of accident, so the present Complainant had no insurable interest on the vehicle so can not claim insurance benefit.

3. The statement of Complainant that the company surveyor assessed the damage to the tune of Rs.80,000/-(Rupees eighty thousand)only is not tune and it was only to the tune of Rs.19,960/-(Rupees nineteen thousand nine hundred sixty)only.

4. No deficiency of service accured by not entertaining the insurance claim as the vehicle in issue was already sold on Dt.25/02/2009 to one Srikanta Mishra who first claimed the insurance benefit.

Explanation to Point No.3(three):- Forum perused the documents to verify this statement of the Opposite Parties but it was found that no surveyors report is filed by any of the Parties relating to the assessment but a series of bills have been filed to the tune of Rs.91,084/-(Rupees ninety one thousand eighty four)only by the Complainant which in absence of challenge to the bills produced by the Opposite parties are accepted by the Forum.

Documentary evidences available:-

1. Both Parties have filed the policy document which is not disputed.

2. No Party files the surveyors report about the assessment of damages.

3. Complainant files a series of bills regarding repairing wons to the tune of vehicle bearing No. OR-15-L-2704 vide Bills Dt. 13/04/2013 amounting to Rs.12,000/-(Rupees twelve thousand)only, Rs.6,000/-(Rupees six thousand)only, Rs. 400/-(Rupees four hundred)only and Rs. 1,115/-(Rupees one thousand one hundred fifteen)only and Bills Dt. 23/03/2009 amounting to Rs. 44,650/-(Rupees forty four thousand six hundred fifty)only and Rs.29,919/-(Rupees twenty nine thousand nine hundred nineteen)only, in sum of total bills submitted by the Complainant is Rs.91,084/-(Rupees ninety one thousand eighty four)only. The Opposite Parties did not objected to these bills.

The Complaint is heard on Dt.23/07/2013 in the presence of both the party counsels who submitted their very causes and substantiated their points of concern and prayer.

Perused the case record and documents attached with the same. After hearing the counsels for both the Parties present and considering then all the following are the facts cause to the knowledge of the Forum.

Issue to decide:-

1. Whether the Complainant is a consumer under Consumer Protection Act-1986 ?

2. Whether he is entitled to get the insurance benefit for the vehicle in issue ?

3. Whether the Opposite Parties are liable for deficiency in service ?

4. Under the circumstance, what compensation can be granted in favour of the Complainant.

Issue No.1(one), Whether the Complainant is a consumer under Consumer Protection Act-1986 ?

The very first objection of the Opposite Parties was that the Complainant is not a consumer under the C.P. Act-1986 to get the benefit of the various provisions.

Forum finds that the vehicle owner/Complainant has purchased the vehicle and acquired a policy for the same vide policy No. OG-09-2412-0000074 which was active at the time of accident. So he is a consumer of the Opposite Parties.

Secondly the Opposite Parties alleged that the Complainant has obtained a commercial vehicle package policy and plying the vehicle for commercial vehicle for commercial purpose which do not come under the Consumer Protection Act-1986.

To substantiate their point they have filed citations:-

1. III (2011) CPJ 39 NC.

   “Which is about the time that no insurable interest lies if the vehicle has been sold before the accident happens.”

2. 2012 (4) CPR 608 NC.

   About locusstandi.

Gone though the decisions and found that even though they are similar, not fit for setting issues raised in this case.

Complainant at the time of hearing pleaded that, he has plying this commercial vehicle to earn to run his family and for reason he has to hand over the management of the vehicle to proforma Opposite Party No.5(five) but he never seized to he the owner till the time of accident. The Opposite Party did not filed any evidences and materials to prove that the vehicle was not used to make money for a living under the circumstances forum agree with the contentions of the Complainant and admits him to be a valid consumer under the provision of Consumer Protection Act.

Issue No.02(two), Whether he is entitled to get the insurance benefit for the vehicle in issue ?

The next objection of the Opposite Parties was that the Complainant has sold the vehicle vide one agreement dated 25/02/2009 to the proforma Opposite Party N0.5(five) and thus lost insurable interest on the policy and can not claim insurance benefit under the policy in question.

It was found that an agreement of sale has been structured between present Complainant and proforma Opposite Party No.5(five), but Opposite Parties were not able to prove that total transfer of the ownership has been happened because all the documents and materials on record shows only partial transfer of management of the vehicle and not a full ownership of the vehicle No. OR-15-L-2704. In issue in this case settled low and provision are that unless the R.C. Book is changed to the name of the new purchaser/owner through proper procedure and offices it can not be termed as a proper sale and until then the previous owner becomes the owner of the vehicle and he was got all the interest on the vehicle.

Under the circumstances it is admitted that the present complaint has got insurable interest to the vehicle in issue.

Issue No.3(three), Whether the Opposite Parties are liable of deficiency of service ?

Under the explained facts and circumstances forum finds the Opposite Parties jointly and deficiency in service has occurred on the part of the Opposite Parties.

Issue No.4(four), What compensation can be granted in favour of the Complainant and Order ?

1. Opposite Party No.4(four) the surveyor of the insurance company was not presented to the court neither any report prepared by him is filed with the court by either of the Parties. Again for own presence Opposite Party No.4(four) was set ex-parte on Dt.19/03/2010 by this Forum under the facts and circumstance forum finds no deficiency of service by this Opposite Party No.4(four) hence exonerated from all charges.

2. The Opposite Party No.5(five) was also set ex-parte on Dt.19/03/2010 for non appearance and forum finds that he is just a source of information to this case and no deficiency caused by him hence exonerated from all charges.

3. Under the facts and circumstances of this case the Opposite Party No.1(one), No.2(two) and No.3(three) are jointly and severally liable of the deficiency in service to the Complainant.

4. The Opposite Party No.1(one), No.2(two) and No.3(three) are directed to supply a fresh set of claim form to the Complainant of this case Tusabanta Joshi for vehicle bearing Regd. No. OR-15-L-2704 and entertain the form to settle him claim against the policy acordinating the process with Opposite Party No.2(two) and Opposite Party No.1(one).

5. Opposite Party No.1(one), No.2(two) and No.3(three) will also consider the bills provided by the Complainant and settle the claim accordingly to the tune of Rs. 91,084/-(Rupees ninety one thousand eighty four)only as per the bills filed before the Forum.

6. Opposite Parties will also pay Rs.5,000/-(Rupees five thousand)only as compensation and litigation cost to the Complainant.

7. All the above process to be completed within one month of this order failing which an interest of 12%(twelve percent) per annum will be charged till the final realization of the awarded and insurance claim ordered.

The case is disposed off accordingly.

Typed to my dictation

and corrected by me.

                          I agree,                                       I agree,                                                      I agree,

             ( Smt Anjalai Behera)                     ( Sri Pradeep Kumar Dash)               ( Miss Rajlaxmi Pattnayak)

                    M e m b e r.                                     M e m b e r.                                           P r e s i d e n t.