Tamil Nadu

South Chennai

CC/396/2014

M/s.M.D.Hussain - Complainant(s)

Versus

M/s.The Reliance General Insurance Co. Ltd., - Opp.Party(s)

M/s.C.Sundaramurthy

11 Oct 2018

ORDER

                                                                        Date of Filing  : 14.08.2014

                                                                          Date of Order : 11.10.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.396/2014

DATED THIS THURSDAY THE 11^TH DAY OF OCTOBER 2018

                                 

M.D. Hussain,

S/o. Mr. S.L. Hussain,

No.7/269, Muthallamman Koil Street,

Contonment,

Pallavaram,

Chennai – 600 043.                                                      .. Complainant.                                                    

 

                                                                                                  ..Versus..

 

1. The Manager,

The Reliance General Insurance Co. Ltd.,

Reliance House,

No.6, Haddows Road,

Nungambakkam,

Chennai – 600 006.

 

2.  The Manager,

Arihant Auto Finance,

New No.25, Veerappan Street,

1^st Floor, Sowcarpet,

Chennai – 600 079.

 

3. The Regional Transport Officer,

RTO, (East Pulianthope),

Chennai – 600 012.                                                 ..  Opposite parties.

          

Counsel for complainant           :  M/s. C. Sundaramurthy & another

Counsel for 1^st opposite party  :  Mrs. Elveera Ravindran

Counsel for 2^nd opposite party :  Exparte

Counsel for 3^rd opposite party  :  Mr. Ponram Rajaa

 

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.1,00,000/- for purchase of a similar auto in a second hand rate together with 12% interest p.a. and to pay a sum of Rs.5,000/- towards compensation for mental agony with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he purchased a three wheeler Auto Rickshaw bearing Registration No.TN07 AC 6203 on hire purchase basis from the 2^nd opposite party by making initial payment of Rs.21,000/- and EMI of Rs.3,300/- for 25 months.  Thereby, the complainant paid a sum of Rs.82,500/- towards the cost of the vehicle for a third hand auto on 23.08.2011.   Further the complainant submits that when the complainant parked the Auto Rickshaw infront of his house at Pammal Main Road for obtaining Fitness Certificate to the vehicle where it was found missing and stolen by some unknown persons.  After making diligent search the complainant lodged a complaint before Shankar Nagar Police Station and due FIR No.1497/2012 dated:31.03.2012 was registered.  The fact of theft was also informed to the 2^nd opposite party.   Further the complainant submits that the 1^st opposite party in his letter dated:29.08.2012 informed that the vehicle was purchased by one Mr. Nallathambi and there is no endorsement in the name of the complainant and there was a delay of 129 days in intimating the 1^st opposite party insurer and repudiated the claim.   The complainant submits that initially, the said vehicle was purchased by Mrs. Yasodha and the name of the financier Mr. D. Babulal was settled and the vehicle was transferred to the 2^nd opposite party a financier  and One Mr. Nallathambi purchased the vehicle on Hire Purchase Agreement with the 2^nd opposite party.  The 2^nd opposite party cancelled the ownership of Nallathambi and entered into an agreement with the complainant, sold the vehicle to the complainant.   The complainant submits that the complainant furnished all details regarding the insurance claim and the policy is subsisting in the name of Mr. Nallathambi. The complainant thereafter filed Criminal O.P. No.6813/2013 before the Hon’ble High Court directing the Police to conduct enquiry.  The police after thorough enquiry issued Non-Traceable Certificate.  Thereafter, the complainant issued notice dated:11.12.2013 to the opposite parties but  the opposite parties has neither replied nor come forward to settle the demands of the complainant.   The act of the opposite parties caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 1^st opposite party submits that the complainant is not a ‘Consumer’ u/s (1) d (i) of the Consumer Protection Act, since the vehicle bearing Registration No.TN 07 AC 6203 was purchased for commercial purpose.  The 1^st opposite party states that the averments of purchase of three wheeler Auto Rickshaw bearing No.TN 07 AC 6203 under Hire purchase with the 2^nd opposite party is incorrect.   The opposite party intimated that there was no insurable interest since the name of the policy sought to be relied upon by the complainant i.e. Policy No.1201712339001184 covering the period from 26.08.2011 to 25.08.2012 was in the name of one P. Nallathambi and the complainant had not sought to get the transfer of ownership in his name both at the RTO and Insurance company which is mandatory.   Further the 1^st opposite party states that the complainant pleaded that he was using the Auto Rickshaw having valid and effective driving licence, paid Rs.3,300/- for 5 months and thereafter, the vehicle was stolen.   Further the 1^st opposite party states that there is an inordinate delay in informing the fact of theft to the 1^st opposite party.   As per the policy conditions which reads as follows:

“1. Notice should have been given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter, the insured shall give all such information and assistance as the company shall require”.

The 1^st opposite party further states that on the belated intimation received from the complainant had sent letter dated:29.08.2013 clearly intimating to the complainant the reasons for the repudiation or the claim.  There was a delay of 129 days in intimating the claim to the 1^st opposite party.   Hence the 1^st opposite party was diligent and the lapse was only on the part of the complainant.   Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     The notice sent to the 2^nd opposite party was retuned as “unclaimed” and the service held sufficient”.   Hence the 2^nd opposite party was set Exparte.

4.      The brief averments in the written version filed by the 3^rd opposite party is as follows:

The 3^rd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.     The 3^rd opposite party states that there is no Consumer and Service Provider relationship between the complainant and the 3^rd opposite party.  The 3^rd opposite party is discharging duties as Regional Transport Officer as provided in the statute only and has done all his duties without any default or deficiency.   Hence the complainant cannot invoke the provisions of the Consumer Protection Act as no service is provided to him and also submits that no any consideration was paid by the complainant to the 3^rd opposite party.   Further the 3^rd opposite party states that only the transfer of ownership was entered into original Registration Certificate by the 3^rd opposite party in favour of one Nallathambi which was mentioned in the complaint in paragraph No.9.   The 3^rd opposite party further submits that the complainant himself has admitted in para No.8 of the complaint that the endorsement of initial owner of one Mrs. Yasoda and the cancellation of the ownership of one D. Babu Lal was made in the original Registration Certificate of RTO, Chennai South.  But the said RTO has not been impleaded in the complaint.   Therefore, there is no deficiency in service on the part of the 3^rd opposite party and hence the compliant is liable to be dismissed.

5.    To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A11 are marked.  Proof affidavit of the 3^rd opposite party is filed and documents Ex.B1 & B2 are marked on the side of the 3^rd opposite party.    Proof affidavit of the 1^st opposite party is filed and documents Ex.B3 & B4 are marked on the side of the 1^st opposite party.

6.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards the cost of the vehicle with interest at the rate of 12% p.a. as prayed for?
2. Whether the complainant is entitled to a compensation of Rs.5,000/- and cost as prayed for?

7.      On point:-

Both the complainant and 1^st opposite party filed their written arguments.  The 2^nd opposite party remained Exparte.  The 3^rd opposite party has not filed any written arguments.   Heard both the complainant  and 1^st opposite party counsel also.   Perused the records namely the complaint, written version, proof affidavits, documents etc.  The learned Counsel for the complainant contended that he purchased a three wheeler Auto Rickshaw bearing Registration No.TN07 AC 6203 on hire purchase basis from the 2^nd opposite party by making initial payment of Rs.21,000/- and EMI of Rs.3,300/- for 25 months.  Thereby, the complainant paid a sum of Rs.82,500/- towards the cost of the vehicle.  On 23.08.2011, due agreement also executed, Ex.A4 series is the Finance Certificate with receipts.   But the complainant has not produced the copy of R.C. Book, driving license etc to prove that the complainant is the Hire Purchase Agreement Holder under 2^nd opposite party and also not produced any documents for payment of Rs.82,500/-.   Further the contention of the complainant is that when the complainant parked the Auto Rickshaw infront of his house at Pammal Main Road for obtaining Fitness Certificate to the vehicle where it was found missing and stolen by some unknown persons.  After making diligent search the complainant lodged a complaint before Shankar Nagar Police Station and due FIR No.1497/2012 dated:31.03.2012 was registered as per Ex.A6.  The fact of theft also informed to the 2^nd opposite party.   But neither the complainant nor the financier informed the fact of theft to the insurance company the 1^st opposite party. 

8.     Further the contention of the complainant is that the 1^st opposite party in his letter dated:29.08.2012 informed that the vehicle was purchased by one Mr. Nallathambi and there is no endorsement in the name of the complainant and there was a delay of 129 days in intimating the 1^st opposite party insurer and repudiated the claim.   Further the contention of the complainant is that initially the said vehicle was purchased by Mrs. Yasodha as per Ex.A1. The name of the financier Mr. D. Babulal was settled and the vehicle was transferred to the 2^nd opposite party financier as per Ex.A2 and One Mr. Nallathambi purchased the vehicle on Hire Purchase Agreement with the 2^nd opposite party as per Ex.A3.  The 2^nd opposite party cancelling the ownership of Nallathambi and entered into an agreement with the complainant, sold the vehicle to the complainant as per Ex.A4.  But the complainant’s name is not registered in the R.C. Book either as a Hire Purchaser or as an owner.  On a careful perusal of Ex.A1 to Ex.A3, it is apparently clear that Nallathambi is the owner, the 2^nd opposite party is the financier proves that the complainant has no loco standi for maintaining any claim with the 1^st opposite party, insurance company.   Further the contention of the complainant is that as per Ex.A5, the complainant furnished all details regarding the insurance claim and the policy is subsisting in the name of Mr. Nallathambi.   The complainant thereafter filed Criminal O.P. No.6813/2013 before the Hon’ble High Court directing the Police to conduct enquiry as per Ex.A9.  The police after thorough enquiry issued Ex.A7, Non-Traceable Certificate.  Thereafter, the complainant issued notice dated:11.12.2013 as per Ex.A10 to the opposite parties.   Since the 1^st opposite party repudiated the claim, the complainant was constrained to file this case for deficiency in service and claiming compensation.

9.     The complainant’s Counsel cited a decision reported in:

Supreme Court of India

between

National Insurance Co. Ltd.

-Versus-

Nitin Khandelwal

Held that

“In the case in hand, the vehicle has been snatched or stolen.  In the case of theft of vehicle breach of condition is not germane.  The appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer.  The respondent submitted that even assuming that there was a breach of condition to the insurance policy, the appellant Insurance Company ought to have settled  the claim on non-standard basis.  The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft”.

10.    The learned Counsel for the opposite parties contended that the complaint filed by the complainant is not at all maintainable. The complainant is not a ‘Consumer’ as per the Consumer Protection Act, 1986.  Admittedly, the Auto Rickshaw was purchased by the complainant for commercial purpose.  As per Section (1) d (i) of the Consumer Protection Act, 1986, this complaint is unsustainable.   Further the contention of the opposite parties is that the averments of purchase of three wheeler Auto Rickshaw bearing No.TN 07 AC 6203 under Hire purchase with the 2^nd opposite party is incorrect.   Neither the complainant nor the 2^nd opposite party has proved the said allegation of Hire Purchase of the vehicle by the complainant.   As per the policy issued by the 1^st opposite party and the R.C.  Book, it shows that the 2^nd opposite party is the financier, one Mr. Nallathambi is the purchaser and the vehicle was insured for the period from 26.08.2011 to 25.08.2012 vide policy No.1201712339001184. The allegation of Hire purchase by the complainant has not been proved in a proper manner.  Further the contention of the opposite parties is that the complainant pleaded that he was using the Auto Rickshaw having valid and effective driving licence, paid Rs.3,300/- for 5 months and thereafter, the vehicle was stolen.   The said fact cannot be accepted because the complainant is not at all the owner of the vehicle.   Further the contention of the opposite parties is that there is an inordinate delay in informing the fact of theft to the 1^st opposite party.   As per the policy condition No.8, the theft should be informed immediately.  Neither the complainant nor the 2^nd opposite party and Mr. Nallathambi has informed anything about the theft immediately after the alleged theft. 

11.    The learned Counsel for the 1^st opposite party cited a decision reported in:

2013 (1) CPR 394 (NC)

Between

Shri Kuldeep Singh

-Versus-

IFCO Tokio General Insurance Co. Ltd.

Held that

 

        “Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Insurance – Theft of Truck – Claim of complainant closed as “No Claim” – Complaint allowed by District Forum – Order of District Forum was reversed and set aside by State commission vide its impugned order – In case of theft, matter should be reported immediately – Information to Insurance Company was given after twelve days from date of alleged accident – No FIR was recorded in concerned police station on date of theft – there was violation of condition of policy – State Commission rightly non-suited complainant – Revision petition dismissed”.

Considering the facts and circumstances of the case, this Forum is of the considered view that the complaint has to be dismissed.

In the result, this complaint is dismissed.  No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 11^th day of October 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANTS’ SIDE DOCUMENTS:

Ex.A1	09.07.2004	Form of certificate of registration in favour of Mrs. Yasoda
Ex.A2	28.07.2006	Copy of cancellation of ownership between Babulal the financier and the second opposite party by RTO South
Ex.A3	05.04.2010	Copy of Transfer of ownership in favour of Nallathambi 2nd opposite party through RTO East
Ex.A4	23.08.2011	Copy of 2nd opposite party auto financier hire purchase documents with complainant
Ex.A5	26.08.2011	Copy of Insurance Policy of first opposite party for coverage of insurance
Ex.A6	31.03.2012	Copy of FIR No.1479/12
Ex.A7	20.08.2013	Copy of not deductable certificate issued by the policy
Ex.A8	29.08.2012	Copy of the 1st opposite party notice to the complainant
Ex.A9	01.10.2013	Copy of order of Hon’ble High Court passed in Criminal O.P.No.6813/2013
Ex.A10	11.12.2013	Copy of legal notice of the complainant
Ex.A11	17.12.2013	Copy of acknowledgment card for the receipt of the above notice

 

3^RD OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B1	06.04.2010	Copy of screen shot report on ownership of vehicle No.TN07  AC 6203
Ex.B2		Copy of computer print on ownership of vehicle TN 07 AC 6203 having fitness, insurance and other validities

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS: 

Ex.B3		Copy of Policy of Insurance
Ex.B4		Copy of Terms and conditions of the policy

 

 

MEMBER –I                                                                      PRESIDENT