IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.CC 69/2016.
Date of Filing: 05.05.2016. Date of Final Order: 14.06.2017.
Complainant: Enamul Hoque alias Md. Enamul Hoque, S/O Late Ainul Hoque,
Vill. Jadupur, P.O. Kamlabari, P.S. English Bazar, Dist. Malda.
-Vs-
Opposite Party: 1. The Oriental Insurance Company Ltd, Rep. by General Manager,
1-25/27, Asaf Ali Road, New Delhi-110002.
2. The Oriental Insurance Company Ltd, Rep. by
Branch Manager, 3/20/A, K.K. Banerjee Road, P.O. Berhampore,
Dist. Murshidabad. Pin 742101.
Present: Sri Anupam Bhattacharyya …………………. President.
Sri Samaresh Kumar Mitra ……………………..Member.
FINAL ORDER
Sri Anumpam Bhattacharyy, Presiding Member.
The instant complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for Insurance Claim of Rs.5 lakh along with interest for theft of Truck and compensation of Rs.50,000/- for harassment and mental agony.
The complainant’s case , in brief, is that the complainant purchased a TATA LPT 2515 CEX from Santosh Sarkar of Ballapur, Farakka, Murshidabad on 24.7.13 having the policy of that Truck with OP Insurance Com and on his application for change of ownership Truck was registered in his name on 26.7.13 being No. WB 59B/3094. The said Truck was stolen on 02.08.2013. The complaint lodged FIR with English bazaar P.S. on 3.8.13 and the said incident of theft was reported to OP Insurance Co. The said Truck was the livelihood of the complainant. He approached OP several times for realization of claim amount of Rs. 5 lakh . The complainant received letter dt. 28.12.15 from the OP Insurance Co. regarding repudiation of claim for non-compliance of the policy condition as to change of ownership of the policy within 14 days of such change of ownership giving an opportunity to file documents to that effect within two weeks. The complainant submitted all the documents. The OP-officials turned down to issue receipt against filing such clarification and documents. The complainant gave his advocate notice dt. 26.02.16 to the OP but no result. Hence, the instant complaint case.
The written version filed by OP-Insurance , in brief, is that the complaint never informed about his purchase to this Insurance Company nor he complied with the formalities as per provision as laid down in the provisions of the Motor Vehicle Act. The petitioner as per provision of M.V. Act must apply within 14 days from the date of transfer in the prescribed form to the Insurer for making necessary charges in the certificate and the Policy in regard to the transfer of Insurance. But the petitioner never complied the provision of law. In order to get claim there must be an Agreement between the Insurer and the transferee. In the instant case there is no contract or agreement between the petitioner and the Insurance Company. This Opposite Party never recognized the petitioner as Insured. So, the petitioner is not entitled to get any claim. There is no deficiency of service on the part of the Opposite Party. The application is liable to be rejected.
Considering the pleadings of both parties the following points have been raised for the disposal of the case.
Point for Consideration
- Whether the complaint is maintainable in its present form and law?
- Whether the complainant is a consumer under the ambit of C. P. Act, 1986?
- Whether the case is barred by law of Limitation?
- Whether the complainant is entitled to get any relief as prayed for?
- To what other relief/reliefs the complainant is entitled to get?
Decision with Reasons.
Point Nos. 1 to 5.
All the points are taken up together for the sake of convenience.
The instant complaint is for getting Insurance Claim of Rs.5 lakh along with interest for theft of Truck and for compensation of Rs.50,000/- .
The complainant’s main case is that the complainant purchased a Truck having Insurance Policy with OP –Insurance Co. from Santosh Sarkar on 24.7.13 and ownership was changed on 26.7.13 and the Truck was stolen on 2.8.13 but the complainant has not got the claim for not changing the name of ownership of the policy within 14 days from the date of Transfer as per mandatory provision U/S 157(2) of M.V Act.
On the other hand the OP’s main case is that OP has rightly repudiated the claim of the complainant for non-compliance of the provision of Sec. 157(2) M.V. Act as to changing the ownership within 14 days of such change the same mandatory.
To prove the case the complaint has adduced evidence on affidavit along with the relevant documents in support of his case.
From the documents as well as from the evidence of the complaint with affidavit it is clear that the impugned Truck bearing WB59B-3094 was purchased by the complaint on 24.07.2013 from the previous owner Santosh Sarkar who had insurance policy of that Truck with the OP and the ownership was changed on 26.07.2013 and the truck was stolen on 02.8.2013 and lodged FIR on 3.8.2013.
In this regard the OP’s main case is that the complainant has not applied before the OP Insurance Company for the date of transfer of ownership for necessary changes in the certificate of Insurance in his favour and in support of their case the ld. lawyer for the OP Insurance Co has advanced arguments referring a reported decision in AIR 1996 SC 586 in the case in M/S Complete Insulation (P) Ltd –Vs.-New India Assurance Co. Ltd.
To that effect as to non-compliance of the provision of 157(2) M.V Act the complainant has relied upon the letter dt. 28.12.2015 of OP-Insurance Co in response to the letter dt. 06.8.13 of complaint received on 07.08.13 where the OP gave opportunity to the complainant to substantiate his claim within two weeks from receipt of this letter after two years of the claim of the compliant by letter dt. 6.8.13 which has not come before this forum to disclose the nature of that letter where the said letter was praying for change of name of policy holder insured or mere intimation as to the theft of that Truck.
In the above letter dt. 25.12.15 the OP Insurance Co has informed the complainant indicating that as per Indian M.V. Act following a transfer of ownership of a vehicle, the new owner has to get the Insurance Policy of the previous owner changed/transferred in his name within 14 days from the date of such transfer of ownership to avail the benefit of Insurance policy of previous owner and also indicated that from their record it was found that at the material point of time the complainant was not insured person.
Admittedly, the claim is for theft of vehicle after change of ownership.
Where , in the reference of the above letter dt. 28.12.15 it has been mentioned as claim for accident of vehicle on 2.8.13.
But, this is not a case for motor accident claim.
In response to the above letter dt. 28.12.15 of the OP, the complainant gave advocate’s notice to the OP dt. 22.02.16 stating that the complainant purchased the vehicle on 24.7.13 and the vehicle was stolen on 02.08.13 and for that the complainant did not get sufficient time to inform the OP-Insurance Company for change of name in the Insurance Policy for transfer of ownership and requested to realize the situation faced by the complainant during the period from 02.08.13 to 05.08.13 and requested for payment of claim amount of the policy.
From the letter of the OP dt. 28.12.15 in response to the letter of the complainant dt. 6.8.2013 giving opportunity to the complainant to substantiate the claim of the complainant as the name of the complainant is not in their record as insured at the material point of time. Where it is clear that the complainant’s letter dt. 6.8.13 claiming policy amount for theft of the purchased insured vehicle which was received by the OP-Insurance Co on 7.8.2013 with 14 days from the date of purchase as per provisions u/s 157(2) M.V.Act.
Further, the complainant has also referred the decision of Hon’ble Supreme Court in appeal No. 3409 of 2008 in National Insurance Co. Ltd Vs- Nitin Khandelwal where in it has been held that the Insurance Co. cannot repudiate the claim in toto in case of los of vehicle due to theft even if there was breach of condition of the insurance policy and the Insurance Co. ought to have settled on non-standard basis.
Challenging the above argument advanced by the Ld. lawyer for the complainant, the ld. lawyer for the OP Insurance Co has advanced argument referring the reported decision in AIR 1996 SC-586 in M/s Complete Insulation (P) Ltd. –Vs.-New India Assurance Co. Ltd that the complication pf provision u/s 157 M.V. Act within 14 days is mandatory.
Ld. Lawyer for the OP-Insurance Co has advanced argument regarding the above decision of Hon’ble Supreme Court in appeal No. 3409/08 in National Insurance Co. Ltd Vs Nitim Khandelwal where question of violation of policy was whether the vehicle was used for private purpose or commercial purpose and that violation is against the company but the present violation of the instant case is for non-compliance of provision u/s 157(2) MV Act which is violation of law and the decision of Hon’ble Supreme Court in AIR 1996 SC 586 is a three Bench Decision.
He has also advanced argument that the complainant cannot take advantage of his own wrong.
In the aforesaid case in AIR 1996 SC-586 the car met with an accident where Managing Director of the appellant Company sustained serious injuries and his sister died before changing the transfer of policy.
But, in the instant case there is no question of third party risk as involved in the aforesaid reported decision.
In the instant case there is question of theft of vehicle immediate after transfer of ownership.
And the decision of the Hon’ble Supreme Court relied upon by the complainant is identical with this case for theft of vehicle after transfer of ownership without changing the same Insurance Policy and it has been held that the claim is to be settled on non-standard basis and cannot be repudiated in toto in case of loss of vehicle due to theft.
Considering the above discussions as a whole relying upon the latest decision of Hon’ble Supreme Court in an identical case of theft of vehicle without changing of name of policy holder after transfer of vehicle we are of view that the complainant will get claim of the policy amount for theft of vehicle being the vehicle was insured and duly transferred by the policy holder-seller Santosh Sarkar in favour of the complainant Enamal Haque.
On the basis of above discussions we find that all the points are disposed of in favour of the complainant in part and as such the complainant will get the policy amount along with interest @7% p.a from the date of incident till realization according to coverage.
Hence,
Ordered
that the Consumer Complaint No.69/2016 be and the same is hereby allowed on contest in part.
The complainant will get the policy amount along with interest @7% p.a. from the date of incident till realization according to coverage.
The OPs are directed to pay the complainant the policy amount along with interest @7% p.a. from the date of incident till realization according to coverage within 60 days from the date of this order, failing which the OPs are to pay fine @Rs.50 per day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post to the concerned parties as per rules, for information and necessary action.
