BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 21st April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.264/2012
(Admitted on 25.08.2012)
Mr. Mohammed Iqbal,
Aged 34 years,
S/o Mr. K Unha,
Residing at D.No.4.213,
Bajal, Mangalore Taluk,
Dakshina Kannada District.
….. COMPLAINANT
(Advocate for the Complainant: Sri KPAS)
VERSUS
M/s Shriram General Insurance Co.Ltd,
Represented by its Manager,
Head office III, E 8, RIICo Industrial Area,
Sitapura, Jaipur, Rajasthan 302022.
….......OPPOSITE PARTY
(Advocate for the Opposite Party: Smt. HM)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1.The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay Rs.1,98,000/ towards the loss of the aforesaid vehicle, to pay Rs.1,00,000/ towards loss of income, interest payable to the vehicle loan, mental agony, damages and physical hardship suffered by the complainant, to pay cost of Rs. 10,000/ and such other reliefs.
2. In support of the above complaint the complainant Mr. Mohammed Iqbal, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C16 as detailed in the annexure here below. Mr.Umesh P, filed affidavit evidence as (CW2). On behalf of the opposite parties Mr.Rajashekharappa Mundasad,(RW1) Legal officer, also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. The dispute is, the complainant vehicle under insurance coverage is stolen and the opposite party insurance company repudiated the claim. The complainant states that, he had purchased 2002 model Mahindra & Mahindra Load King Tempo (herein after called the vehicle) from Mr. Mohmmad Nasir on 25.11.2011which was covered by insurance package policy by the opposite party for Rs 1,98,000/. The said vehicle was stolen on 19.01.2011 and on claiming the insurance amount the opposite party repudiated illegally and hence alleges the deficiency in service on the part of the opposite party. The opposite party contradicted the allegation and said the opposite party is not liable to pay and not committed any deficiency in service. The opposite party submitted the complainant is not the consumer, there is no privity of contract, the vehicle and the insurance was not in the name of the complainant at the time of accident. Also there is breach of the terms of the insurance policy. These are being the facts of dispute, in resolving this dispute we are of the opinion to consider the following
POINTS FOR ADJUDICATION
On perusal of the complaint facts in detail and the evidence and documents produced the admissions are, the issue of the policy for the vehicle, the theft and the repudiation of the claim. However it is denied the liability of the opposite party that, the owner ship and the insurance policy of the vehicle is in the name of the complainant at the time of accident. It is also denied that, the complainant had informed the opposite party immediately after incident as per policy condition. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether opposite party proves that the repudiation is legal and they are not liable to pay the complainant and there is no deficiency in service on the part of them.
- Whether complainant is entitled for the relief prayed for?
- What order?
We have considered the evidence led by the parties and the documents produced. Notes of arguments taken into account and heard the party counsels’ submissions and answered the above points as under.
- In the affirmative.
- In the affirmative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1: The complainant had produced the RC copy of the vehicle Reg. No KA 19 A.8117 which has been transferred in the name of the complainant from 21.01.11 and the said vehicle is insured by the opposite party and it is in subsistence which is not in dispute. Hence prima-facie the complainant is the consumer of the opposite party and the opposite party is the service provider hence we answered the point no 1 in the affirmative.
POINT NO 2 & 3: The complainant alleges that the vehicle he purchased is covered by the insurance package policy issued by the opposite party and the said vehicle stolen and the opposite party is liable to pay the sum assured. The complainant to prove his case produced the copy of the C report issued by the police authority and produced the RC copy to show that the vehicle is purchased by him which has insurance cover. The opposite party repudiated the claim on the ground that the policy was not in the name of the complainant at the time of accident. The complainant not informed the purchase of the vehicle and also theft of the vehicle after being stolen as per policy condition. The opposite party also contended that the insurance policy not transferred in the name of the complainant after giving due application for transfer of the policy as per insurance terms and as per law. On these above grounds the opposite party repudiated the insurance claim.
2. Theft of the vehicle occurred in the intervening night of 18.01.2011 and 19.01.2011 in between 19 hours and 3 hours which is not in dispute and coverage of insurance is admitted. Other facts as per record and evidence shows that,
3. The complainant purchased the vehicle on 25.11.2011 from Mr Mohammad Nasir. But the RC of the vehicle was in the name of the one Mr.Stany Dsouza as per EX C 5. This RC was transferred in the name of the complainant on 21.01.2011(after 55 days), and it is after the theft occurred. So at the time of the accident the vehicle was not in the name of the complainant.
4. The complainant had purchased the vehicle on 25.11.2011on which date the insurance of the vehicle was in the name of the above said Mr.Stany D’souza and on 29.01.2011 the complainant got endorsed the policy in his name(after 65 days of purchase and after 10 days of theft). So at the time of accident the policy was not in the name of the complainant and also the transfer of the policy was not made within 15 days of the purchase.
5. The theft occurred on 19.01.2011 at 3 am but the policy was endorsed in the name of the complainant on 29.01.2011. Opposite party contends that at the time of requesting for endorsement the complainant not revealed about the theft of the vehicle but only informed of theft on 19.04.2011. The complainant not denied it and also while answering the interrogatories in
Q No 33 : Whether you have informed(theft) it to RTO, Insurance company?
Ans; Yes it is mentioned in the B extract.
Q No 36: When you have informed (theft) the same to the insurance company?
Ans: Yes, I have submitted the claim form to the insurance company.
Both these answer reveal that the complainant not informed the opposite party immediately after the theft. ‘B’ extract do not carry anything to show the theft informed to the insurance company.
6. In gist the vehicle was not in the name of the complainant at the time of theft, the insurance was not transferred in the name of the complainant at the time of the theft even though the 56 days passed after purchase of the vehicle at the time of theft. No explanation why the transfer of RC and the insurance policy delayed. Also no explanation given for not informing the insurer immediately after the theft even though the policy condition prescribes under COMMETRCIAL VEHICLE PACKAGE POLICY (Now marked as EX R 2) condition No 1which says Notice shall be given in writing to the company immediately upon occurrence of accidental loss or damage... Also as per condition no 5 which read: the insured shall take all reasonable steps to safeguard the vehicle insured…. The opposite party alleges that the complainant neither informed the police nor the insurance as to take reasonable care to safe guard the vehicle.
7. Based on these above these facts we are of the opinion that the complainant not transferred the insurance policy in his name within statutory time frame which led to the vehicle was not in the name of the complainant at the time of theft as well as the policy was not in the name of the complainant. Also the complainant not taken reasonable care to safe guard the vehicle by giving timely information to the authorities to take proper steps as well as the opposite party to give an opportunity to mitigate or avoid the loss. Hence we are of the opinion that at the time of theft the vehicle was not in the name of the complainant and no documents produced to show that the complainant had purchased the vehicle before the theft occurred, the opposite party is not liable for the complainant to settle the claim on theft of the vehicle. To support the view taken by us we quote the decision rendered by our Honourable National Commission REVISION PETITION NO. 3216 OF 2015 in FUTURE GENERAL INDIA INSURANCE CO. LTD. V. SOMBIR S/O SHRI MAHENDER SINGH, it is held that, 20. From the facts and circumstances of the case, it is made out, therefore, that the repudiation of claim by the Insurance Company was in order, because there was no privity of contract between the complainant and the insurance company. Although the vehicle had been purchased and delivered to the complainant on 24.07.2012, the complainant failed to make application for transfer of insurance policy to the insurance company within time and hence, the claim made by him for compensation on the theft of the vehicle is not payable by the said insurance company. The revision petition is, therefore, allowed and the orders passed by the State Commission as well as the District Forum are set aside” and the consumer complaint stands dismissed.
8. With these discussions and on the force of the above cited authority we hold the opposite party succeeded in proving that, they are not liable for the complainant to allow the claim and there is no deficiency in service on their part. Hence we answered the point no 2 in the affirmative and the point no 3 in the negative.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 21st April 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 :Mr. Mohammed Iqbal,
CW2: Mr.Umesh P
Documents marked on behalf of the Complainant:
Ex.C1: Affidavit
Ex.C2: Xerox copy of the cheque
Ex.C3: General power of attorney.
Ex.C4: Rent agreement.
Ex.C5: Xerox copy of the RC.
Ex.C6: Insurance policy.
Ex.C7: Xerox copy of the B extract of Mahindra and Mahindra Load king tempo, bearing registration No.KA 19 A 8117
Ex.C8: True copy of the C Report in crime No. 41/2011 of Mangalore Rural Police Station.
Ex.C9: Office copy of legal notice 12.6.2012 sent to Opposite Party.
Ex.C10: Original Acknowledgement card.
Ex.C11: Returned envelope with acknowledgement card.
Ex.C12: Original B extract.
Ex.C13: Certified copy of the C Report in Crime No. 41/2011 of Mangalore rural police station.
Ex.C14: True copy of the by Praveen credit souharda.
Ex.C15: certified copy of G.P.A.
Ex.C16: Xerox copy of Bank statement dated 25.11.2010.
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Rajashekharappa Mundasad, Legal officer
Documents marked on behalf of the Opposite Party:
Nil
Dated: 21.4.2017 MEMBER
