IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

             CASE No.  CC/115/2018.

 Date of Filing:                    Date of Admission:                Date of Disposal:

    03.07.18                                    13.07.18                                  15.01.2020            

Complainant: Mijan Sk

S/O- Majid Sk, Vill- Ramna Dadpur,

PO & PS- Rejinagar,

Pin- 742163

-Vs-

Opposite Party: 1. Branch Manager, The New India Assurance Co. Ltd.

 Berhampore Branch

7A, R.N.Tagore Road,

PO & PS- Berhampore,

 Pin- 742101

   2. Oyahidur Rahaman

S/O Harun Saha Fakir,

 Vill. Baranaldaha,

P.O. Chota Naldaha, P.S. Tehatta, Nadia,

Pin 741156.

Agent/Advocate for the Complainant                        : Sri.  Partha Majumder

Agent/Advocate for the Opposite Party No. 1            : Sri. Ajay Bhattacharyya.

Agent/Advocate for the Opposite Party No. 2            : Sri. Sanku Das.

                       Present:   Sri Asish  Kumar Senapati………………….......President.                              

                                           Sri Subir Sinha Ray…………..……………………..Member.

FINAL ORDER

  Asish Kumar Senapati, Presiding Member.

            One Mijan Sk. (here in after referred to as the Complainant) filed the case against  the Branch Manager, The New India Assurance Co. Ltd. and 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 purchased a Tata Motor Truck being Engine No. 10B62841071, Chasis No. MAT426023A0B03360, Registration No. WB-23-B-9766 from the OP No.2 who purchased the same on hire purchase agreement from Indusind Bank. Thereafter, The OP No.2 insured the vehicle with the OP No.1 for the period from 10.03.15 to 09.03.16 being policy No. 51290031140100062738. The Complainant purchased the  vehicle from OP No.2 by on 25.10.11 and the OP No.2 appointed the Complainant as attorney by way of executing a general power of attorney. The Indusind Bank had not issued NOC till 30.10.15. On 30.10.15, Indusind Bank issued NOC in favour of the OP No.2. Thereafter, the Complainant filed an application for registration of the said vehicle in his name before the RTO, Murshidabad at Berhampore who fixed the date of hearing on 30.11.15 .That on 14.11.15, the said vehicle was stolen from the  garage of Eid Mohammed Sk near Takipur Petrol Pump. Then the Complainant went to Rejinagar P.S. for lodging a complaint on 15.11.15 but the Police Officer did not receive such complaint for which the Complainant filed an application under section 156 (3) Cr. P. C. in the Court of Ld. CJM, Murshidabad at Berhampore and Rejinagar P.S. case No. 232/2015 dated 14.12.15 was started U/S 379 IPC and the IO filed FRT on 30.08.16 and it was accepted on 05.10.16. The Complainant tried to lodge a claim against the theft of such vehicle before the office of the OP No.1 but the OP No.1 did not accept the same till 11.04.18. The Complainant sent all papers including claim application to the OP No.1 by registered post with AD on 12.04.18 and the OP No.1 received the same on 13.04.18. Even after receipt of the claim application of the Complainant by the OP No.1, the claim was not settled till 27.05.18 and the Complainant issued a lawyer’s letter on 28.05.18 but the OP NO.1 did not pay any heed to it. As the OP No.1 was original owner of the said vehicle and the registration booked was lying in the name of the OP No.2, The OP No.2 is made a party in the proceeding. As the OP No.1 did not settle the claim of the Complainant, the OP No.1 has deficiency in service. Hence , the Complainant has prayed for a direction upon the OP No.1 to pay insured amount of Rs.10,50,000/- including interest @ 18 % per annum and compensation of Rs. 1,00,000/- and litigation cost of Rs.50,000/-.

            The OP No.1 contested the case by filing written version on 22.11.18 contending that the complaint is not maintainable and the Complainant has no cause of action to file the case and the case is barred by law of limitation. It is the specific case of the OP No.1 that the vehicle in question was hypothecated to Indusind Bank and the O No.2 sold out the vehicle on 25.10.11 to the Complainant and the OP No.1 was informed on 22.12.15 i.e.  long after the alleged theft of the vehicle. The Complainant has failed to establish why he lodged complaint to the P.S. after a long time from the date of alleged theft. The Complainant submitted the claim form in his own hand writing and stated that theft was committed on 14.11.15 but he submitted the claim form on 21.12.15 which was received by the Insurance Company on the same date and FIR was lodged on 14.12.15. So, it is clear that the Complainant violated the condition of the policy. And as such the Insurance Company has no liability to pay compensation. On receipt of the claim form, the Insurance Company appointed Sri. Subir Mukherjee as investigator and the Insurance Company repudiated the claim on 19.01.18. The OP has no deficiency in service. Hence, the OP No.1 prays for dismissal of the complaint with cost.

            The OP No.2 also filed written version on 06.09.18 contending that he purchased the truck being registration No. WB-23-B-9766 on hire purchase agreement from Indus Ind Bank and insured the vehicle with the OP No.1 for the period from 10.03.15 to 09.03.15 being policy No. 51290031140100062738. Thereafter, the Complainant purchased the vehicle from him on 25.10.11 by an agreement and appointed the Complainant as his attorney by way of executing a general power of attorney. The OP No.2 has no objection if the Complainant receives any compensation from the OP No.1.

            On the basis of the above version the following points are framed for proper adjudication of the case :

Points for consideration

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Has the OP No. 1 any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Point no.1

The Ld. Advocate for the Complainant submits that the Complainant is a consumer as the vehicle was stolen during the period of insurance and the premium was paid.

The Ld. Advocate for the O.P. no. 1 submits that the complainant is not a consumer as he never hired services of the O.P. No. 1 for consideration. It is contended that the insured of the vehicle was Oyahidur Rahaman and the complainant has not paid premium for insurance of the vehicle.

On going through the complaint, written version and other materials on record and on a careful consideration over the submission of both sides, we find that the Complainant claimed that he purchased the vehicle from the O.P. No. 2 on 25.10.11 but no document for transfer of ownership had been filed by the complainant for registration of ownership.  Therefore, we hold that the complainant is not a consumer.

Point No.2

            The Ld. Advocate for the Complainant submits that the cause of action of this case arose within the territorial jurisdiction of this Forum and the claimed amount is within pecuniary limit of this 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.

Point Nos.3&4

            The Ld. Advocate for the Complainant submits that the Complainant is the owner of the vehicle as he purchased the vehicle from the OP No.2 by executing deed dated 25.10.11. He further argues that the OP No.2 also authorised the Complainant to look after and manage the said vehicle by executing a power of attorney dt. 12.11.11. He submits that the Complainant applied for registration of the vehicle in his name and the date of hearing was fixed on 31.11.15 but the vehicle was stolen on 14.11.15 from the garage of Eid Mohammed Sk near Takipur Petrol Pump. It is submitted that the vehicle was stolen during the period of insurance of the vehicle. He argues that the OP No.1 has deficiency in service as the O.P. No. 1 has not settled the claim.. He prays for a direction to upon the OP No.1 to pay the insured sum of Rs.10,50,000/- and to pay compensation of Rs.1,00,000/- and  ligation cost of Rs.50,000/-.

            In reply, the Ld. Advocate for the OP No.1 submits that the Complainant is not a consumer as he never hired the services of the OP No.1.It is urged that the OP No.2 was the owner of vehicle No. WB-23-B-9766 who purchased the vehicle on hire purchase agreement of Indusind Bank but the OP No.2 sold out his vehicle to the Complainant without intimating the O.P. No.1. It is contended that the OP No.1 received claim and repudiated his claim by issuing a letter dated 19.01.18. He submits that the OP No.1 has no deficiency in service and the Complainant is not entitled to get any relief in this case.

            We have gone through the written complaint, written versions and documents filed by both sides. Admittedly, the OP No.2 was the owner of vehicle No. WB-23-B-9766 who purchased the vehicle on hire purchase agreement from Indusind Bank. It appears from the written complaint, written version of the OP No.2 and the sale deed dated 25.10.11 who was notarized on 28.11.11 that the OP No.2 sold out the vehicle to the Complainant.

            It also appears from the general power of attorney duly notarized on 18.11.11 that the O.P. No.2 appointed the Complainant as his attorney to look after and manage the vehicle.

            Admittedly, the vehicle was insured during the period from 10.03.15 to 09.03.16 and the OP No.2 was the insured.

            The Complainant was not the registered owner of the vehicle No.WB/23B/9066 on 14.11.15 i.e. the date of alleged theft of the vehicle. Therefore, the vehicle was not insured in the name of the Complainant on the alleged date of theft of the vehicle. Therefore, we have no hesitation to hold that the OP No.1 has no deficiency in service for not entertaining the claim of the Complainant.  We have already held that the complainant is not a consumer.

            In our considered view, the Complainant is not entitled to get any relief in this case against the O.P. no.1..

Reasons for delay

The Case was filed on 03.07.18 and admitted on 13.07.18 . 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.

Fees paid are correct.

In the result, the complaint case fails. Hence, it is

                                    ORDERED

that the Consumer Complaint Case No. CC/115/2018 be and the same is hereby dismissed on contest 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.