Karnataka

Chitradurga

CC/73/2017

G.Rajeshbabu S/oG.Channaveeraswamy - Complainant(s)

Versus

K.Hussain Peer S/o Chota peer sab - Opp.Party(s)

Sri.H.T.Jagannath

27 Apr 2018

ORDER

COMPLAINT FILED ON:10/07/2017

DISPOSED      ON:27/04/2018

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 73/2017

 

DATED:  27^th APRIL 2018

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        : MEMBER

                          B.A., LL.B., PGDCLP   

……COMPLAINANT/S	G. Rajesh Babu, S/o G. Channaveeraswamy, Major, Vijaya Mahanthesh Nilaya, Double Tank Road, Gandhi Nagar, Challakere, Chitradurga.   (Rep by Sri.H.T.Jagannath, Advocate)
V/S
…..OPPOSITE PARTIES	1. H. Hussain Peer, S/o Chota Peer Sab, Owner of Tank bearing No.KA-28/A-5235, Near Aishwarya Hotel, NH-13, Bijapur.   Since Dead by LR Smt. Moulan Bi W/o Late K. Hussain Peer, Major, Near Darbar House, Bijapur.                                    2. The Manager, Reliance Insurance Company Limited, I Floor, Maganoor Complex, P.B. Road, Chitradurga.   (Rep by Sri. OP No.1 ex-parte and OP No.2 Sri.K.E. Mallikarjuna, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay Rs.10,00,000/- towards compensation, damages, inconvenience, pain, mental agony, torture along with interest at the rate of 24% p.a and such others reliefs.

2.      The brief facts of the case of the above complainant are that, he is the owner of the tanker lorry bearing Registration No.KA-28           A-5232 which was purchased from one deceased K. Hussain Peer S/o Chata Peer Sab and the same has been handed over to the complainant by said Hussain Peer.  Now the said vehicle is in possession of the complainant and the same was used for transportation of oil.  The above said lorry was taken possession by the complainant from K. Hussain Peer as per the order of the Hon’ble High Court, Gulbarga Circuit Bench in W.P.No.81863/2009 and Mis.C.W.No.80988/2009 under certain terms and conditions that, the complainant shall execute the indemnity bond for a sum of Rs.9,00,000/- in favour of Deputy Commissioner, Commercial Tax, value added tax section, Visveswaraiah Nagar, Belgaum, the complainant shall furnish two solvent surety who have firm roots in the society and own immovable properties for a sum of Rs.2,00,000/- each, not to alienate the vehicle in any way, not to create any hypothecation or change in respect of the vehicle, the complainant shall produce the vehicle before the Deputy Commissioner, Commercial Tax, Chitradurga or any investing officer as and when required, the complainant shall not change the color of the vehicle, he shall ensure the proper maintenance of the vehicle and keep on paying the taxes insurance premium etc., and shall keep the vehicle in good condition.  Further it is submitted that, the Hon’ble High Court, Gulbarga Circuit Bench holds that the complainant is the owner and is in possession and enjoyment of the said tanker lorry.  But, all the vehicular documents are standing in the name of the deceased K. Hussdain Peer even to this date, same are not changed in the name of complainant due to arrears of tax was due by the deceased K. Hussain Peer.  It is further submitted that, the Assistant Commercial Taxes has issued letter to the RTO, Bijapur not to change the vehicular documents in the name of complainant by imposing certain conditions released the vehicle in favour of the complainant as per the Court order dated 25.02.2010.  It is further submitted that, when the said vehicle was in possession of the complainant, met with an accident on 10.07.2015 near Ranebennur, Haveri District and fully damaged, for that, the complainant has incurred huge amount of Rs.3,50,000/- towards repairs and replacement of damaged portion.  After that, the complainant has submitted all the necessary documents to the OP No.2 for settlement of the claim.  The policy was stands in the name of previous owner K. Hussain Peer vide policy No.1406552334001456 valid for the period from 10.05.2015 to 09.05.2016 and the same was in force as on the date of accident.  Due to standing of vehicular documents and policy in the name of deceased K. Hussain Peer, the OP No.2 refused to pay the compensation towards damages to the complainant, which is a deficiency in service on the part of OP No.2, which caused the complainant to great loss and injury and the complainant has suffered lot of mental agony, shock and pain.  The OP No.2 is bound to settle the claim of the complainant towards the damage caused to the vehicle.  The complainant got issued legal notice to OPs through RPAD, the same was served to the OPs but, the OPs never replied or settled the claim and the OP has repudiated the claim stating that, the policy was not transferred within the stipulated period.  The cause of action for this complaint has arose on 10.07.2015 when the lorry was met with an accident and the complainant got issued legal notice through Advocate on 31.05.2017 and subsequently, the OP No.2 repudiated the claim of the complainant which is within the jurisdiction of this Forum.  Therefore, the complainant respectfully prayed before this Forum to allow her complaint with cost. 

3.      After issuance of notice to the OPs, one Sri. K.Veerabhadrappa, Advocate appeared on behalf of LR of OP No.1 and filed version and Sri. K.E. Mallikarjuna, Advocate filed version. 

As per the version of the LR of OP No.1, the deceased K. Hussain Peer is the owner of tanker lorry bearing Registration No.KA-28 A-5232.  During the life time of said Hussain Peer, he has sold the said lorry in favour of complainant for valuable consideration and further admits that, he has handed over the possession of the same to the complainant.  Now the said vehicle is with the possession of the complainant.  During the life time of said Hussain Peer, he has obtained the insurance policy from OP No.2.  After selling the vehicle, the documents were not transferred in the name of complainant.  When the vehicle was in the custody of the complainant, it met with an accident and completely damaged and the complainant get repaired the same by paying the cost of repairs.  Complainant is the proper person to indemnify the insurance coverage and OP No.1 has no objection to release the insurance amount to the complainant. 

According to OP No.2, the complaint filed by the complainant is not maintainable either in law or on facts and the complainant is put to strict proof of the same.  As per the documents produced by the complainant, the complainant is not the owner or policy stands in the name of complainant with respect to lorry bearing Registration No.KA-28 A-5232.  OP No.2 has no knowledge with regard to selling of the vehicle in favour of complainant by the deceased K. Hussain Peer.  OP No.2 has no knowledge about using of the vehicle by the complainant for transportation of oil and the said lorry was taken possession by the complainant from deceased K. Hussain Peer as per the order of Hon’ble High Court, Circuit Bench, Gulbarga in W.P No.80988/2009.  Further it is not correct to say that, the complainant is the owner of the tanker lorry and he is in possession and enjoyment of the said lorry.  The complainant is put to strict proof of the same.  Further it is true that, all the relevant documents are stands in the name of deceased Hussain Peer.  Further, the averments made in para 4 to 10 are all false and the complainant is put to strict proof of the same.  It is further submitted that, there is contractual relationship between the complainant and OP No.2 and complainant is no way concerned to the OP No.2, therefore, the complainant is not maintainable.  Further it is submitted that, the OP No.2 has not collected any premium amount from the complainant.  OP No.2 has sent repudiation letter to the complainant on 16.11.2015 narrating the reasons for repudiation of the claim.  When the vehicle sold to any other person, the ownership of vehicle shall transfer within 14 days in the name of purchaser within state, suppose the vehicle purchased out of state within 45 days.  In this case, the policy has not been transferred in the name of the complainant.  It is further submitted that, the complainant claims ownership in view of the interim order passed by the Hon’ble High Court, Circuit Bench, Gulbarga in W.P. No.80988/2009 (T-Res) dated 27.11.2009.  In the said W.P, the OP No.2 was not a party and there is no direction to this OP to effectuate necessary changes in the policy.  Further the said order is not binding on this OP No.2.  The said order passed way back in the year 2009 whereas the accident took place in the year 2015, almost after six years till then, the complainant has not effectuated necessary changes in his name.  Hence, the complainant is not maintainable.  The Hon’ble High Court has passed only interim order and it is not the rights of the parties.  The said W.P filed by Shriram Transport Finance Corporation Ltd., being the financier, the vehicle is hypothecated to the said company during the currency of the hypothecation period the insurer illegally sold the vehicle to the complainant, the Hon’ble High Court only to protect the roadworthiness of the vehicle released the vehicle in favour of the complainant and does not mean to say that he is the owner of the said vehicle and hence on the basis of the said interim order claim made by the complainant is not legally justified and unsuitable and hence, the complaint is liable to be dismissed.  It is further submitted that, Shriram Transport Finance Corporation Ltd., filed W.P No.81863/2009 before the Ho’ble High Court, Gulbarga Circuit Bench, wherein the Hon’ble Court in its order dated 02.12.2011 passed an order holding that, the Court cannot pass interim orders beyond the scope of final order.  In view of the said order the earlier order becomes perincurim.  It is further submitted that, the vehicular documents including the policy stands in the name of K. Hussain Peer.  When such being the case, the complainant has no locus-standie to maintain the complaint and hence, the complaint is liable to be dismissed.  It is further submitted that, the complainant in his complaint at para 5 stated that, the Assistant Commissioner of Commercial Tax issued letter to RTO, Bijapur not to change the RC in the name of complainant vide its order dated 09.03.2010, the same was not questioned by the complainant, therefore, the present complaint is totally false, frivolous, vexatious and is wholly misconceived, groundless and unsustainable either in law or on facts and the same has been filed with a malafide intention to harass the OP No.2.  Further it is submitted that, the complainant has no locus-standie to maintain the complaint since it is no way concerned to the dispute and further this Forum has no jurisdiction to entertain and to adjudicate upon the dispute involved in this case as it is not a consumer dispute and the complainant is not comes under the definition of complainant, complaint, consumer dispute and service as defined under Section 2(1) of the Act and hence, prayed for dismissal of the complaint.

4.      The complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-17 were got marked and closed his side. OP No.1 has not filed any affidavit and documents.  On behalf of OP No.2, one Sri. H.B. Guruprasad, the Area Manager, has examined as DW-1 by filing the affidavit evidence and never produced any documents and closed his side.    

5.      Arguments of both sides heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

(1)  Whether the complainant proves that, on the date of accident, the vehicle was with his possession and further proves that, as per the order of Hon’ble High Court, Circuit Bench, Gulbarga in W.P. No.80988/2009, the complainant is the owner in possession of the vehicle and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

          7.      Our findings on the above points are as follows:-

          Point No.1:- Partly in Affirmative.

          Point No.2:- As per final order.

REASONS

8.      It is not in dispute that, the complainant has purchased the tanker bearing Registration No.KA-28 A-5232 from one deceased K. Husssain Peer for valuable consideration and taken possession.  The said K. Hussain Peer was tax due to the Assistant Commissioner of Commercial Tax.  After that, the complainant is using the tanker for transportation of oil.  The said K. Hussain Peer has taken loan from Shriram Transport Corporation for the purpose of purchasing the vehicle.  The Assistant Commissioner of Commercial Taxes have seized the vehicle for non-payment of the tax by the complainant.  After that the complainant has taken possession of the said vehicle by the orders of the Hon’ble High, Gulbarga Circuit Bench in W.P.No.81863/2009 and Mis.C.W.No.80988/2009.  As per the orders of the Hon’ble High, Gulbarga Circuit Bench, the tanker was handed over to the complainant by imposing certain conditions i.e., the complainant shall indemnify the bond for a sum of Rs.9,00,000/- with two solvent surety, shall not alienate vehicle to anybody and shall not create any hypothecation or change in respect of vehicle, shall produce before the Deputy Commissioner, Commercial Tax when required, the complainant shall not change the color of the vehicle, he shall ensure the proper maintenance of the vehicle and keep on paying the taxes insurance premium etc., and shall keep the vehicle in good running condition.  The Assistant Commissioner of Commercial Taxes has issued letter to the RTO, Bijapur not to change the vehicular documents in the name of complainant by imposing certain conditions and released the vehicle in favour of the complainant as per the Court order dated 25.02.2010.  The said vehicle met with an accident on 10.07.2015 near Ranebennur and completely damaged.  The complainant has spent huge amount of Rs.3,50,000/- towards repairs and replacement of damaged portion.  Thereafter, the complainant has submitted claim for along with all the necessary documents to the OP No.2 for settlement.  The OP No.2 has repudiated the claim statig that, on the date of accident, the complainant is not the RC owner of the vehicle and the policy was stands in the name of previous owner K. Hussain Peer.  As per the orders of the Hon’ble High Court, Gulbarga Circuit Bench and the letter issued by the Assistant Commissioner of Commercial Taxes, Bijapur to the RTO, the vehicle was not transferred in the name of complainant.  Due to the order of the Hon’ble High Court and letter issued by the Assistant Commissioner of Commercial Taxes, the complainant has not moved before the concerned authority to change the RC and other necessary documents.  When there is a direction from the Hon’ble High Court, Gulbarga Circuit Bench, the complainant keeping the vehicle intact.  When the complainant has taken possession of the vehicle as per the order of the Hon’ble High Court, it shows that, the complainant is the RC owner of the vehicle.  But, mere transfer of documents in the name of complainant, he shall not lose his rights to claim the compensation from the OP insurance company.  The OP No.2 itself admits that, the vehicle is in possession of the complainant at the time of accident.  Merely the OP No.2 has taken a contention that, the RC and insurance policy was not transferred in the name of the complainant.  In this case, according to the OP No.2 and complainant, the lorry bearing Registration No.KA-28 A-5232 is having insurance.  When the vehicle is having insurance at the time of accident, the insurance company is liable to pay compensation to the party. 

9.   We have gone through the entire documents, version, affidavit and exhibits filed by the complainant and OPs.  It clearly goes to show that, the complainant has taken possession of the above said lorry as per the orders of the Hon’ble High Court, Gulbarga Circuit Bench in W.P.No.81863/2009 and Mis.C.W.No.80988/2009 and the complainant kept the vehicle intact and the Assistant Commissioner of Commercial Taxes, Bijapur has issued a letter not to change the vehicle in the name of complainant, the complainant could not change the RC and policy in his name.  As per the orders of Hon’ble High Court, Gulbarga, the vehicle is in possession and enjoyment of the complainant.  The complainant has also filed an application before the concerned authority to get the RC in his name and other relevant documents but, the same was not possible as per the letter issued by the Assistant Commissioner of Commercial Taxes, the RC has not been changed in the name of complainant.  The letter dated 09.03.2010 issued by the Assistant Commissioner of Commercial Taxes, Bijapur                                                                 is marked as Ex.A-13 and further the same authority has issued another letter dated 07.09.2017 stating that, “ªÁºÀ£À ¸ÀASÉå PÉJ-28 J-5232 «µÀAiÀÄPÉÌ ¸ÀA§AzsÀ¥ÀlÖAvÉ, ¸ÀzÀj ªÀvÀðPÀgÀÄ £ÀªÀÄä PÀbÉÃjAiÀÄ°è ¨sÀgÀuÁ ªÀiÁqÀ¨ÉÃQzÀÝ ¥ÀÆtð vÉjUÉAiÀÄ£ÀÄß ¢£ÁAPÀ 29.05.2017 gÀAzÀÄ ¨sÀgÀuÁ ªÀiÁrgÀÄvÁÛgÉ.  PÁgÀt, ¸ÀzÀj ªÁºÀ£À ¸ÀASÉå PÉJ-28 J-5232 £ÀÄß ¨ÉÃgÉAiÀĪÀjUÉ ªÀUÁðªÀuÉ ªÀiÁqÀ®Ä AiÀiÁªÀÅzÉà C¨sÀåAvÀgÀ«gÀĪÀÅ¢®è”.  Therefore, as per the above letter, they have no objection to change the necessary documents in the name of complainant.  So, as per the letter given by the Assistant Commissioner of Commercial Taxes, Bijapur, the RC has been changed in the name of complainant as per Ex.A-6.  Therefore, as per the documents produced by the complainant, we come to the conclusion that, the complainant is the RC owner of the tanker bearing Registration No.KA-28 A-5232 and he is in possession of the same at the time of accident and the insurance policy was also in force.  Such being the case, the OP No.2 is entitled to pay the compensation to the complainant.  The complaint as against OP No.1 is liable to be dismissed because it has taken a contention that, due to some technical problem, the vehicular documents are not transferred in the name of complainant and if any compensation awarded by the Forum, the same has to paid by the OP No.2 and he has no objection to receive the compensation from the insurance company.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of C.P Act 1986 is partly allowed.

It is ordered that, the OP No.2 is hereby directed to pay a sum of Rs.3,50,000/- to the complainant towards repair and replacement of damaged portion with respect to tanker lorry bearing Registration No.KA-28 A-5232 along with interest at the rate of 9% p.a from the date of accident till realization.

It is further ordered that, the OP No.2 is hereby directed to pay Rs.10,000/- towards mental agony and  Rs.5,000/- towards cost of the proceedings to the complainant. 

Complaint as against LR of OP No.1 is hereby dismissed.

It is further ordered that, the OP is hereby directed to comply the above order within 30 days from the date of this order.

(This order is made with the consent of Member after the correction of the draft on 27/04/2018 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OP:

DW-1:  Sri. H.B. Guruprasad, Area Manager of OP No.2 by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	True copy of the order in W.P.No.81863/2009
02	Ex-A-2:-	True copy of Order Sheet in W.P.No. 81863/2009
03	Ex-A-3:-	Legal Notice dated 31.05.2017
04	Ex-A-4:-	Postal Receipts
05	Ex-A-5:-	Postal Acknowledgements
06	Ex-A-6:-	B-Register Extract
07	Ex-A-7:-	Letter dated 07.09.2017 by the Assistant Commissioner of Commercial Taxes, Bijapur
08	Ex-A-8:-	Letter dated 16.11.2015 by the OP No.2
09	Ex-A-9:-	RC and Fitness Certificate
10	Ex-A-10:-	Form KMV 50
11	Ex-A-11:-	Policy Schedule
12	Ex-A-12:-	Letter dated 09.03.2010 by the Assistant Commissioner of Commercial Taxes, Bijapur
13	Ex-A-13:-	Panchanama
14	Ex.A-14:-	Cash Bill dated 30.08.2015 with regard to repairs
15	Ex.A-15:-	Cash Bill dated 30.08.2015 with regard to repairs
16	Ex.A-16 & 17:-	Cash Bills  dated 26.07.2015 and 01.08.2015

 

Documents marked on behalf of OPs:

-Nil-

 

 

MEMBER                                                            PRESIDENT

Rhr**