DATE OF FILING: 13.7.2012.
DATE OF DISPOSAL: 3.3.2016.
Miss S.L.Pattnaik, President:
Alleging deficiency in service the case has been filed by the complainant to direct the Opposite Parties ( In short O.Ps) to pay an amount of Rs.2,25,000/- (Rupees two lakh twenty five thousand) only towards the value of damages of the car alongwith Rs.25,000/- towards compensation and Rs.10,000/- for mental agony, harassment and litigation cost.
2. The complainant filed this case on the ground that he is the registered owner of “Santro Zing XL Hundai car “bearing registration No. OR-07-M- 0540 and insured the same with the Opposite Parties i.e. I.C.I.C.I. Lambard Motor Insurance Berhampur Branch, Ganjam on payment of premium, the assured amount being Rs.2,14,373/- under private car packages policy No. 3001/530841343/01/B00 which was valid from 13.12.2008 to the midnight of 12.12.2009, which is covered under third party liability. On 22.8.2009, during the subsistence of the policy, while the said car was being driven by Dr. Dillip Kumar Tripathy, who was having a valid and effective driving license bearing No.768/1996-97 met with an accident with a truck bearing No.WB-15/ 7119 near village Nikarda under Khallikote Police station vide P.S. Case No. 109 dated 22.8.2009 which was ultimately registered as G.R. Case No. 323/2009 in the court of JMFC Khallikote. The complainant immediately submitted an application before the O.P.No.1 with relevant documents claiming the damaged caused to the vehicle and after receiving the claims papers the O.P. Company deputed a surveyor who investigated the matter and verified the condition and nature of the accident and recorded the statement of the complainant but till now no such claim amount has been given to the complainant. Being aggrieved the complainant send legal notice thrice to the O.P.No.1 to 3 but in vain. Hence, alleging the entire action of the opposite parties amount to deficiency in service he filed the aforesaid case claiming a sum of Rs.2,60,000/- in total alongwith other relief if deems fit by the Forum, in different head as mentioned above. In support of his case, the complainant has filed the following documents.
(a)The registration certificate issued in favour of the complainant by R.T.O. Chhatrapur.
(b) Copy of Insurance policy bond bearing No.53084134.
© Copy of driving license of Dr. Dilip Kumar Tripathy.
(d) Copy of legal notice dated 13.5.2011.
(e) Copy of reminder notice dated 1.1.2012.
(f) Copy of further legal notice dated 26.5.2012.
(g) Copy of postal receipts.
(h) Copy of F.I.R., copy of final form, copy of property seizure memo.
The complainant filed written argument alongwith the decision in support of his case which are attached to the case record.
(i) New India Insurance Co. ltd. versus Smt. Bimlesh (2015) CJ 77 (N.C.)
(ii)National Insurance Co. ltd. Versus Smt. Ram Rati and others (2014) Acci. C.R. 272 Allahabad High court.
(iii)N.Gopal versus National Insurance Co. ltd. (2015) CJ 106 (NC).
3. The Opposite Parties on being noticed appeared before this Forum through their advocate and filed written version by controverting the claim of the complainant on different grounds. The grounds taken by the Opposite parties is on the maintainability of the case challenges the status of the complainant besides contending that the complainant have played fraud and has deliberately suppressed the material evidence for the purpose of the claim and the case is bad for non-joinder of necessary party as he has not made party to the financer i.e. ICICI Bank. It is submitted by the O.Ps in their written version that the complainant has already sold the alleged santro car to Dr. Dilip Kumar Tripathy prior to the accident and Dr. Tripathy was in possession of the above alleged vehicle the present complaint is not maintainable. The O.Ps submitted that in the F.I.R. the informant who is the brother of the deceased has claimed that the owner of the alleged vehicle is Dillip Kumar Tripathy , hence it is proves that the complainant is not the owner of the above alleged vehicle on the date of accident. Further the O.Ps submitted that a claim case MAC 603/2011 pending before the 2nd M.A.C.T. Berhampur has filed by the wife and children U/S 166 of M.V.Act towards the accidental death of the deceased Dr. Dillip Kumar Tripathy, where in the wife and children of the deceased are petitioner and in the above said claim case the petitioner in column 22 have claimed towards the damage of the above alleged vehicle. Hence it proves that the present complainant is attempting fraud for the above insurance claim and therefore the case is not maintainable. Further the Ops submitted in the written version that on the date and time of accident, the deceased Dillip Kumar Tripathy who had driven the car had no valid driving license which is a clear violation of conditions of insurance policy as well as the provisions of Motor Vehicle Act. According to the Opposite party, there is no deficiency of service on their part, so the complaint case should be dismissed. In support of their case the O.Ps filed one document i.e. copy of petition U/S 166 MV Act filed by wife of Dr. Dillip Kumar Tripathy in MAC 603/2011 and written argument.
4. We heard arguments from both sides at length and gone through the complaint petition, written version and written argument and documents available in the case record. The only question which arises for our consideration is as to whether the complainant has an insurable interest in the vehicle? On perusal of the whole record we found that though the O.Ps have submitted in their written statement that
(A) The complainant has already sold the alleged Santro car bearing Registration No. OR-07M-0540 to the deceased Dr. Dillip Kumar Tripathy since long prior to the accident.
(B) Dr. Dillip Kumar Tripathy was in possession of the above alleged vehicle and on the dates of accident, the alleged vehicle was plying by the said Dillip Kumar Tripathy and met with accident resulting his death and Dr. Dillip Kumar Tripathy had no valid driving license at the time of accident.
© On the date and time of accident, the complainant is not the owner of the vehicle.
(D) In the F.I.R. brother of the deceased claimed that the owner of the above alleged vehicle is Dillip Kumar Tripathy.
(E) In column No.22 of the claim case MAC 603/2011 pending before the Hon’ble 2nd MACT, Berhampur filed by the wife/children U/S 166 of M.V.Act towards the accidental death of the deceased who are petitioner claimed towards the damaged of the above alleged vehicle. Hence it proves that the present complainant is not the owner of the above alleged vehicle on the date of accident and therefore he has no insurable interest and the case is not maintainable against the Opposite parties.
5. Regarding the above contention of O.P. there is no documentary proof filed by the O.Ps regarding their contention that ownership had been transferred in the name of Dr. Dillip Kumar Tripathy. There is no document filed by the O.P. that the alleged vehicle had been transferred in the name of Dr. Dillip Kumar Tripathy in the record of the concerned R.T.O. No presumption can be done in the absence of any cogent and convincing evidence either oral or documentary to prove the contrary. So the O.Ps only tried to make allegation but the same is not tendered in evidence. There must be the execution of sale letter and there must be Certificate of Registration, which is a requirement for the purpose of Motor Vehicle Act. There must be any kind of reporting or permission of the registering authority before the transfer of ownership. But here there is nothing in the record to show that the ownership of vehicle in question passed from the complainant to Dr. Dillip Kumar Tripathy. On perusal of the registration certificate issued in favour of the complainant by R.T.O. Chhatrapur shows that the complainant got the vehicle in question registered in his name vide registration No. OR 07 M 0540 and vide date 15.12.2005 and the fitness is valid up to 14.12.2020. O.P. also issued insurance policy in favour of the complainant from the above referred vehicle for the period from 13.12.2008 to 12.12.2009. The vehicle got damaged due to accident during the validity period of the aforesaid insurance policy. The vehicle got damaged due to accident during the validity period of the aforesaid insurance policy and the Dr. Dillip Kumar Tripathy who was driving the vehicle had the valid driving license at the time of accident for the period from 16.12.96 to 11.1.2012 and he is also authorized to drive L.M.V. The contention of O.P. that the person who driving the vehicle has no valid driving license is not sustainable. Further of some statement in the F.I.R. does not establish and create ownership of a person in a vehicle because F.I.R. is not a substantive piece of evidence. It can be used for the purpose of contradiction and corroboration of evidence of the person who gave the information since the O.Ps has neither produce evidence the person who lodged the F.I.R. in police station nor the person who recorded in the Police station it was held only the documents i.e. R.C.Book/Sale paper established ownership. So the O.Ps contention without documentary proves is not sustainable. Since the complainant is the registered owner and insurance policy and ownership not transferred in favour of Dr. Dillip Kumar Tripathy, the O.P. Company will be held liable. The decisions filed by the complainant are holds good. It is admitted by both the parties that the accident occurred on dated 22.8.2009 and the vehicle was damaged which further proves from the G.R. case record. The O.Ps have not been able to establish beyond reasonable doubt through crediable evidence that the complainant has fraudulent activities. The liability to prove fraudulent act of the complainant lies heavily on the Insurance Company. Thus the O.Ps contention in this regard is that unjustified and is not sustainable in this regard.
Admittedly the insured had paid premium in the policy and as such and as per the terms of the policy the Ops are bound to pay the insured amount and refusal to make the payment amount to deficiency in service. Since the O.Ps without proper verification and without any valid ground delayed the legitimate claim as such they are also liable to pay the compensation for causing mental agony to the complainant.
In the result the complaint case is allowed on merit against the O.Ps. The Opposite Parties are hereby directed to pay the insured amount of Rs. 2,14,373.00 (Rupees two lakh fourteen thousand three hundred seventy three) only as claimed by the complainant. The O.Ps also further burdened with cost of litigation which we quantify to be Rs.2000/- (Rupees Two Thousand) only as a whole in the facts and circumstance of the case which in our considered view, would meet the ends of justice in the instant case. Compliance of the order be made within one month from the date of receipt of this order.
Pronounced in the Open Forum today on 3rd March 2016.
Copies of the order be supplied to the parties free of cost.
