Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by the original opposite party/insurance company feeling aggrieved by the order dated 25/02/2011 passed by the District Consumer Forum of Yavatmal in consumer complaint No.270/2010, by which the complaint has been partly allowed.
2. The facts in brief giving rise to the present appeal are as under.
The two wheeler called as motor cycle bearing registration No.MH-29/P/3001 was owned by Madansingh Shripad Rathod, the deceased father of the respondent No.1, 2 and 4 and husband of respondent No.3 herein. It was insured with the appellant for the period from 06/06/2009 to 05/06/2010. It was being used by the respondent No.1 namely Dinesh Madansingh Rathod. It was stolen away on 13/06/2009 i.e. during the period of policy. The respondent No.1 therefore lodged report at the police station Pusad on 13/06/2009. The respondent No.1 also made an application to the appellant on 24/06/2009 giving intimation to the appellant in brief to the effect that the vehicle in question was belonging to his disease father Madansingh Shripad Rathod and that he expired on 11/09/2008 and that he is using that vehicle which was insured with the appellant for the above period and that the said vehicle has been stolen on 13/06/2009 of which the report is lodged with the police. He had requested in that application that he may be informed about the documents required for getting the claim under policy.
3. Thereafter on 09/12/2009 the respondent No.1 again moved second application to the appellant making the same submission as above and further submitting that he is producing copy of the policy and other documents for getting the claim and hence necessary action may be taken immediately.
4. However the claim of the respondents was not settled and therefore they filed consumer complaint before the District Consumer Forum of Yavatmal on 25/11/2010 against the appellant seeking direction to the appellant to pay them Rs.28,000/- towards the sum assured under the policy and further to pay them compensation of Rs.50,000/- for mental and physical harassment and litigation cost of Rs.5000/-.
5. The District Consumer Forum below issued notice of the said complaint to the original O.P./appellant herein by registered post A.D. on 14/12/2010. The District Forum received acknowledgment about service of that notice to the appellant. The appellant/original O.P. did not appear before the District Consumer Forum below. Hence District Consumer Forum below proceeded ex-parte against the appellant/original O.P. The District Consumer Forum below then on hearing the advocate of the complainants/respondents herein passed the impugned order which is challenged by the original O.P. by filing this appeal.
6. The District Consumer Forum below under the impugned order accepted the aforesaid case of the respondents and held that respondents are entitled to Rs.20,000/- out of the claim of Rs.28,000/- as the vehicle was three years old. The District Consumer Forum therefore directed the original O.P./appellant to pay to the original complainants Rs.20,000/- with interest @ 6% P.A. from 25/11/2010 till its realization by them and also to pay them compensation of Rs.2000/- for physical and mental harassment and litigation cost of Rs.1000/-, within a period of 30 days from the receipt of copy of that order.
7. The notice of this appeal was duly served to the original complainants/respondents. On receiving that notice, advocate Shri Wankhede had appeared for the respondents before us and filed his power on 27/08/2014. He sought adjournment for filing written notes of arguments on that date and also subsequent date i.e. on 23/03/2015.
8. However, none appeared for the respondents thereafter though the appeal came to be adjourned from time to time for filing written notes of arguments and for final hearing. The appellant’s advocate filed written notes of argument. Today though the advocate Mr.H.N.Verma is present for the appellant, none appeared for the respondents for final hearing. We have therefore heard advocate of appellant and proceeded to decide the appeal on merits. We have also called the original record and proceedings of the complaint No.270/2010 and perused the same.
9. The learned advocate Mr.H.N.Verma has brought to our notice a letter dated 24/06/2009 filed by the respondent No.1 before the District Consumer Forum below, stating therein that his father Madansingh Shripad Rathod died on 11/09/2008 and that the period of policy was from 06/06/2009 to 05/06/2010. The learned advocate of the appellant therefore argued that the policy in the name of deceased Madansingh Shripad Rathod was obtained by the respondents by suppressing from the appellant that deceased Madansingh Shripad Rathod had already died before making proposal for the said policy. He thus submitted that though the policy and aforesaid letter were produced by respondents before the District Consumer Forum, the said documents were not considered by the District Consumer Forum below. He also argued that neither the vehicle was transferred in the names of the respondents nor the policy was transferred in their names and the respondents also did not obtain policy in their names. Thus respondents had not entered into contract of policy with the appellant and therefore they are not entitled to make any claim under the policy which was standing in the name of deceased Madansingh Shripad Rathod on the date of the theft of the vehicle. He therefore submitted that though the appellant was proceeded ex-parte before the District Consumer Forum, the complaint was not maintainable and hence the District Consumer Forum erred in partly allowing the complaint. He therefore requested that the impugned order may be set aside.
10. After considering the evidence brought on record we find substance in the aforesaid submission of the learned advocate of the appellant. The copies of the policy and the aforesaid letter dated 24/06/2009 were produced before the District Consumer Forum below, which proved that the deceased Madansingh Shripad Rathod had already died on 11/09/2008 and the period of policy was from 06/06/2009 to 05/06/2010. Thus it can be said that the said policy was obtained from the appellant by respondents by suppressing from it that deceased Madansingh Shripad Rathod had died on 11/09/2008. Moreover we find that the District Consumer Forum below ought to have taken into consideration the material fact that the policy did not stand in the name of the original complainants and therefore had no insurable interest in the vehicle and thus they were not entitled to make any claim under the policy, and particularly when the vehicle was also registered in the name of Madansingh Shripad Rathod in record of R.T.O. at the time of theft of the vehicle.
11. Thus there was no privity of contract in between the complainants and the appellant herein and hence complaint filed before the District Consumer Forum for making claim under the policy was not maintainable. The District Consumer Forum below thus over looked the policy document and aforesaid letter and legal position and erred in partly allowing the complaint. In the result the impugned order deserves to be set aside.
// ORDER //
- The appeal is allowed.
- The impugned order is set aside.
- The complaint stands dismissed.
IV. No order as to costs in the appeal.
V. The original record and proceedings of the complaint
bearing No.270/2010 be returned forthwith to the District
Consumer Forum of Yavatmal.
VI. Copy of this order be furnished to both the parties free of
cost.
