Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order : 08.07.2015

                    Sri Sheo Shankar Prasad Singh

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To pay the sum assured amount i.e. Rs. 3,50,000/- ( Rs. Three Lac Fifty thousand only ) with an interest @ 12% per annum from dated of loss to final payment.
2. To pay Rs. 1,00,000/- ( Rs. One Lac only ) as Compensation.

2. Brief facts of the case which led to the filing of complaint are as follows:-

1. This instant case is, with regard to the disputes and differences arisen out of letter dated 29.06.2011 issued by the Opposite Party No. 1. By the said letter the claim of the complainant has been rejected on the ground of “ Non Insurable Interest ” in connection with Insurance Policy no. 331109/31/2003/5387. ( Vide Annexure – 1 )
2. The complainant is a policy holder of Insurance Policy No. 33/109/31/2009/5387 and the Opposite Party No. 1 is insurer. The opposite party nos. 2 and 3 are vehicle sellers and service providers to the complainant. ( Vide Annexure – 2)
3. The opposite party no. 3 had assured to the complainant that he would help him as and when required under the law. While entering into the sale agreement. The second opposite party has also agreed with the complainant that he will help, as and when required under the law in connection with changing ownership of the sold vehicle and it is further agreed that the opposite party nos. 2 and 3 will submit all relevant document/ fee/ no objection certificate/ etc. before the registration authority. All liabilities/ responsibilities are rest upon the opposite party nos. 2 and 3 in connection with sale certificate of the vehicle. On this strong assurance of the opposite parties the complainant agreed to purchase a SUMO VICTA, registration bearing BR-01AP-1288 from the opposite party nos. 2 and 3. ( Vide Annexure – 3 )
4. In between transferring the ownership of the vehicle to the ownership of the vehicle, to the complainant contracted with the opposite party no. 1 with regard to insurance policy of the vehicle no. BR-01AP-1288. The opposite party no. 1 physically verified the vehicle. After completing all legal formalities the opposite party no. 1 issued a policy bond to the complainant, policy was covered from 10.03.2009 to 09.03.2010 for the sum of Rs. 3,50,000/- ( Rs. Three Lac Fifty thousand only ) ( I.D.V). That in between 15.03.2009to 16.03.2009 night, the said vehicle was stolen by unknown person. While it was parked. The local police Station refuses to take F.I.R. against this issue, then the complainant filed a complaint case before the A.C.J.M., Patna. After hearing the learned Court ordered to investigate the matter and file final report form before the Court. In the light of order of the Court the Police lodged F.I.R. and the investigation officer did investigate the matter. After completing all enquiries the Police submitted final forms before the Court stating therein that the case is true but clueless. ( Vide Annexure – 4)
5. After considering all the facts/ circumstances of the case in hand learned Court has accepted final form filed by the police that the insured filed a claim petition before the opposite party no. 1 and claimed for payment/compensate the loss. The complainant filed all relevant documents in the office of the opposite party no. 1 that without considering/ perusing documents/ evidence the opposite party no. 1 has repudiated the claim of the claimant. Now, the complainant has no option but to file this complaint petition before this forum against the repudiation letter dated 29.06.2011, therefore the present complainant case is being filed.
6. The impugned letter dated 29.06.2011 is bad and against the law. It should be rejected/set aside under the Consumer Protection Act. That the impugned letter is bad because we know that under the motor vehicle Act 1988 under Section 2(30) owner means: a person in whose name a motor vehicle stands registered and the person possession of the vehicle under that agreement. In this case the vehicle no. BR-01AP-1288 is under possession of the complainant. No one has filed any complaint/objection with regard to and in connection with the vehicle no. BR-01AP-1288 as yet. So legal ownership of the vehicle lies with this complainant under the law. That the opposite party nos. 2 and 3 was duty bond to file an application before the concerned R.T.O./D.T.O. for changing ownership of the vehicle under the law, therefore, the opposite party no. 3 filed no objection certificate before the concerned office. Vide Annexure – 4 of this petition.
7. It is submitted that the ownership of the vehicle still stood in the name of Kamlesh Kumar, matter of transferring of ownership in the name of the complainant from the earlier owner was pending before the authority. The opposite party nos. 2 and 3 had already made an application for transfer of ownership in the name of the complainant. But due to certain official formality was to be fulfilled/completed before ownership changing and in the mean time the insured vehicle was stolen by unknown person. In the process sometime was inevitably consumed. The complainant has not committed wrong under the law rather the opposite party no. 1 has committed wrong. Hence the impugned letter dated 29.06.2011 must be rejected.
8. It is submitted that the vehicle was comprehensive insured. It is well settled law that in case of theft of vehicle nature of use of vehicle/breach of terms and condition can not be looked into and insurance company and cannot repudiate the claim on that ground alone. So the impugned letter is bad and against the law. It should be rejected.
9. It is submitted that it is also a well settled law by the Hon’ble Apex Court of India that the insurance contract is just like an another contract. If contract is completed then benefit should not be rejected under the law.
10. It is well settled law that the complainant ( insured) should not suffer on account of agent. Insurer fault. Loss must be compensated. Insurer has committed fault without verifying the documents insurance policy should not be issued. Hence the letter dated 26.06.2011 is fit to be rejected.
11. It is also well settled law that claim should be considered under non standard claim if breach of term and condition. It is submitted that transfer of name of the complainant was merely an official formality because the complainant has already became actual owner of the vehicle during the accident / theft so the purpose of indemnification of the loss cannot be denied. From Annexure it appears that process was on. So the complainant is entitled for benefit under the law.
12. From perusal of Annexure it appears that the opposite party no. 1 has committed wrong under the law. Therefore, the impugned letter must be rejected.
13. All ground and evidences, petitions shall be filed at the time of hearing if required under the law.

3. The Opposite Party No. 2 in his written statement has submitted the following facts in opposition to the submission of the complainant :-

1. The case as framed and filed by the complainant is not maintainable in the eye of law as well as fact.
2. The complainant has got no cause of action to file the instant case against the answering opposite party, hence, it is fit to be dismissed.
3. The complainant is not maintainable, as there is no deficiency in service on the part of answering opposite party, as such the same is fit to be dismissed.
4. The present complaint is hopelessly barred by law of limitation as the vehicle was purchased on 17.02.2009 and the complainant continuously using the said vehicle for more than two years and the complaint has been filed on 28.07.2011 after laps of two years as prescribed in Sec. 24 A (1) of Consumer Protection Act, 1986. On the point of limitation Hon’ble Supreme Court has dismissed a consumer’s complaint after setting aside all the three forum orders ( i.e. District Forum State Commission and National commission ) stating that limitation is a law point and it can be considered at any point of time and once it is clearly seen that the complaint is filed beyond limitation or it is barred by limitation, there is no need to go into the merits of the case and hence dismissed the original complaints, on this precedent alone the complaint requires to be dismissed with cost.
5. The present case filed by complainant is only for getting insurance claim from Insurance Company i.e. opposite party no. 1, therefore, the dispute in this case is only between complainant and Insurance Co. and these answering opposite party has no role in this case, hence fit to be dismissed.
6. The case is barred by mis – joinder of parties as the complainant has made party to the answering opposite party without any cause of action hence fit to be dismissed.
7. The answering opposite party delivered the vehicle in question to the complainant in good condition at the time of delivery of vehicle. There is no allegation in the complaint petition regarding manufacturing defects in the vehicle. Therefore, no deficiency in service proved in the part of answering opposite party. Hence, this complaint is fit to be dismissed.
8. There is no specific allegation against this answering opposite party and made a formal party in the complaint and the complainant demanded the compensation only from opposite party no. 1 ( Insurance Company) in his complaint. Therefore, this case is fit to dismiss on the ground also.

The complainant self admitted in the complaint petition that all the relevant papers have been handed over to him by the answering opposite party on the same day, therefore, no any deficiency in service committed by the answering opposite party and hence the case should be dismissed against the opposite party no. 2.

9. If he Insurance Company ( opposite party no. 1) without considering of papers/documents of complainant rejected or repudiated the claim of complainant for which the answering opposite party is not responsible for any way, hence, present complaint is fit to be dismissed against answering opposite party.

4. The Opposite Party No. 1 in his written statement has admitted the following facts in opposition to the submission of the complainant :-

1. The very outset it is stated that the present complainant case as filed by the complainant are not maintainable against the answering opposite party for the reason that the complainant has no insurable interest over the vehicle in question, therefore the claim of the complainant regarding theft of Sumo Victa bearing no. BR-01AP-1288 has been rightly repudiated by the opposite party vide letter dated 29.06.2011.
2. It is very much important to point out that Sec. 157(2) of the MV Act clearly speaks that transferee shall apply within 14 days from the date of transfer of the vehicle in the prescribed form to the insurer for making necessary changes in the certificate of insurance, but in the present case the vehicle was sold to Smt. Rinki Sinha on 17.02.2009 and the occurrence took place on 15.03.2009 i.e. after the laps of near about a month but no steps were taken by the complainant to change the name in the certificate of insurance till the date of verification of R/C book by the investigator Sri Anil Kumar i.e. 28.05.2009. Therefore it is the admitted fact that the complainant had no insurable interest over the vehicle.
3. It is also very important to point out that it is well settled law that the Insurance company is not liable to indemnity the complaint for any loss or damages sustained to the vehicle if the complainant is not having any insurance interest in the vehicle in question.
4. It is very much apparent from the complaint itself that the vehicle was left un attended in the road side for the whole night without taking any reasonable care which is violation of the policy term condition no. 5 which speaks that the insured will take all reasonable care to safe guard the vehicle from any loss or damages therefore in such circumstances no liability can be saddled against the answering opposite party. It is further important to point out that it is well settled law that the “insured not entitled to compensation from insurer for damage to the vehicle transferred to him in absence of a specific contract with insurer laid down by the Apex Court in a judgement reported in (1996) SCC 221 Complete Insulation (P) Ltd. Vs. New India Assurance Co. Ltd.
5. In the present case since there was no such agreement as the policy was not transferred to the transferee the insurer is not liable to make good the damage to the vehicle, because there must be an agreement between the insurer and the transferee to cover the risk or to damage the vehicle.

Perused the documents placed on the record and also heard the learned counsel for the complainant and the opposite parties.

From whatever discussions that have been made by the parties we are of the opinion that manner in which policy was issued is itself sufficient to decide the issue at stake.

From the written argument filed on behalf of Oriental Insurance Company it appears from Para 4 & 5 there of that the policy was obtained by the complainant by fraud by making wrong submissions and therefore this contract have now become no meaning because it was based on good faith.

On the other hand the complainant submission is that policy has been issued in her favour by the Insurance Company on the basis of the documents made available to the Insurance Company, only after being satisfied with those documents and on that basis the Insurance Company is liable to make payment.

The reasons assigned by the Insurance Company that policy has been taken by the complainant by fraud is not based on documentary evidence and in our opinion this plea appears to have been taken by the Insurance Company just to deny the legitimate claim of the complainant.

Thus, We find deficiency on the part of opposite party no. 1 and accordingly, we direct the Opposite Party no. 1   to pay the insured amount of Rs. 3,50,000/-  ( Rs. Three Lac Fifty Thousand only ) with interest @ 9% ( nine ) per annum from 29.06.2011, date of repudiation, within a period of two months from the date of receipt of this order failing which the interest rate will be 12% ( twelve ) per annum till its final payment.

Aforesaid opposite party no. 1 is further directed to pay Rs. 10,000/- ( Rs. Ten Thousand only ) to the complainant as composite charge for compensation and litigation within the aforesaid period of two months.

Accordingly, this case stands allowed to the extent indicated above.

                                        Member                                                         President