Ld Advocate for the complainant is present. Judgement is ready and pronounced in open Commission in 5 pages 3 separate sheet of paper.
BY - SRI ASISH DEB, PRESIDENT
The facts of the Complainant’s case can be stated in a nutshell as follows: The complainant has permanent residence within the jurisdiction of this DCDRC. The Opposite party is the High Official of Insurance Company whose office is within this jurisdiction. The complainant is the registered owner of vehicle being No. WB 29/7979 which was purchased from Mr. Buddhadeb Dhara S/o Rangalal Dhara of Vill. Raghunathchak, P.O. Barghasipur, P.S..Bhabanipur, Dist. Purba Medinipur, Pin 721657 having Chassis No.MB1KADWC4DPF-J3073 Engine No. DRPZ117720 Type of Body : Truck, which was registered in the name of the complainant on 07.12.2021.Previous owner Buddhadeb Dhara took an insurance from the Opposite party being Policy No. 0317003120P113838346 against the said vehicle for the period from 27.02.2021 to midnight of 26.02.2022 whose insured declare value of Rs. 14,00,000/-.The said insurance policy has not been transferred in the name of the complainant in the meantime. But unfortunately the said vehicle met with an accident on 31.01.2022 at midnight and the said vehicle was damaged badly and at the time of accident was the driver whose license was valid and he was injured seriously and in this regard Jhargram P.S. Case No. 31/2022 dated 31.01.2022 was started. The complainant and said Buddhadeb Dhara informed the said incident to the opposite party immediately after the accident and the opposite party engaged surveyor and according to the opposite party the said vehicle was repaired and the cost of repair was Rs. 5, 37,298/-.The complainant demanded the said cost of repair by submitting claim form dated 23.02.2022 from the opposite party, but till now the opposite party did not pay the same. But unfortunately the opposite party has repudiated the said claim by a letter dated 17.05.2022 for the reason that the said insurance policy has not been transferred in the name of the complainant at the date of accident of the said vehicle. The opposite party has failed to understand the provision of Sec. 157(1) of the M.V. Act 1988.At the time of accident the valid permit of the said vehicle was in the name of the complainant and the fitness certificate of the said vehicle was valid upto March, 2023.
In such circumstances’ the opposite party has done deficiency in insurance service for which the complainant has been suffering from mental agony. The cause of action has been arose on and from 17.05.2022.
Therefore, the complainant prays for directing the opposite party :-
- To pay said repair cost of Rs. 5,37,298/- to the complainant along with 9% interest from 31.01.2022 till realization.
- To pay a compensation of Rs. 1,00,000/- to the complainant for deficiency of insurance and for mental agony.
- To pay a litigation cost of Rs. 20,000/- for conduct of this case to the complainant and to pass other necessary order in favour of the complainant which the Commission may deem fit and proper.
Upon service of notice the op has entered appearance and contested the case by filing written version thereof. The sum and substance of the written version can be stated as follows: The statements which are not specifically admitted by this O.P. shall in no way, be deemed to have been admitted by this O.P. The instant complaint is not maintainable in its present form, prayer and in law. The instant complaint is not maintainable within the purview/provisions of the Consumer Protection Act, 1986 as the complainant is not a consumer within the definitions of the Consumer Protection Act. 2019 or by its implication. The Complainant can not get any benefit for any breach of specific terms and conditions of the Insurance Policy as issued by this O.P. The instant Consumer Case is not maintainable as the complainant was no relation as a consumer with this Opp. Party at the point of time of the stated accident for which the claim was raised and the instant case has been initiated. At the time of the stated accident or damage to the vehicle there was no insurable interest of the complainant with this Op. Party and for the same this Opp. Party has rightly repudiated the claim raised though this Opp. Party instantly on getting the information of the accident appointed an impartial, independent surveyor & loss Assessor namely ‘Associated Services’ for assessing the actual losses due to the stated accident and the Complainant also accepted by signing as to the final assessment of the damages of the vehicle by the surveyor who assessed the actual losses to be reimbursed if any, at Rs.2,85,000/- after thorough checking of the damages and the repairing including all the costs and charges of materials, spare parts, labour charges and towing charges. After receiving the report from the surveyor and on scrutiny of the office records, it has been detected that there was no insurable interest of the complainant with this Opp. Party and so the claim has been rightly repudiated as was informed to the complainant. The relation between the Insured and the Insurer rest on not only ‘Good faith’ but also on ‘Utmost good faith’ and on the above score it would be crystal clear that this O.P. Insurance Co. was/is not on fault in repudiating the claim of the Complainant while there is lack of insurable interest between the parties and there is also no negligence or deficiency of service on the part of this O.P. The instant complaint being filed on fraudulent claim the said is liable to be rejected ab-initio.
Contention of the parties :
Ld Advocate for the Complainant submitted that he informed about the incident to the opposite party immediately after the accident and the opposite party engaged surveyor and according to the opposite party the said vehicle was repaired and the cost of repair was Rs. 5, 37,298/-.The complainant demanded the said cost of repair by submitting claim form dated 23.02.2022 from the opposite party, but till now the opposite party did not pay the same. But unfortunately the opposite party has repudiated the said claim by a letter dated 17.05.2022 for the reason that the said insurance policy has not been transferred in the name of the complainant at the date of accident of the said vehicle. The opposite party has failed to understand the provision of Sec. 157(1) of the M.V. Act 1988. At the time of accident the valid permit of the said vehicle was in the name of the complainant and the fitness certificate of the said vehicle was valid upto March, 2023. According to him on sale of vehicle, benefits under policy in force on the date of transfer would automatically go to the new owner. In such circumstances’ the opposite party has done deficiency in insurance service for which the complainant has been suffering from mental agony. The learned counsel for the complainant has also drawn our attention to the order of the National Commission in Shri Narayan Singh versus New Assurance Company Ltd. In which it was held that the benefits under the policy automatically accrue to the new owner on transfer of the vehicle. The learned counsel also has drawn attention to order of the National Commission in “National Insurance Company Ltd. V. Subhash Chand Kataria & Anr. In which the same principle has been stated. In “Oriental Insurance Company Ltd. V. Om Prakash Gupta &Anr. The National Commission passed their order based on GR-10 issued by the Tariff Advisory Committee. Therefore, the complainant is entitled to get the relief as prayed for.
Per Contra :During the course of arguments Ld. Counsel for the op has argued that at the time of the stated accident or damage to the vehicle there was no insurable interest of the complainant with this Op. Party as the insurance policy was in the name of previous owner Buddhadeb Dhara. After receiving the report from the surveyor and on scrutiny of the office records, it has been detected that there was no insurable interest of the complainant with this Opp. Party and so the claim has been rightly repudiated which was informed to the complainant and there is also no negligence or deficiency of service on the part of this O.P. The instant complaint is liable to be dismissed.
In reply, the ld. Counsel for the complainant has argued that as per provision of section 157(1) of the Motor Vehicle Act, 1988, there is deemed transfer of insurance in the name of subsequent owner and complainant is entitled to be indemnified by the insurer.
Upon reading the pleadings of both parties and hearing contentions of Ld Advocates of rival parties the following points for determination are framed:
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have examined the entire materials on record and given a thoughtful consideration to the contentions of both parties. Indisputably, the complainant is the registered owner of vehicle being No. WB 29/7979 which was purchased from Mr. Buddhadeb Dhara S/o Rangalal Dhara of Vill.Raghunathchak, Truck, which was registered in the name of the complainant on 07.12.2021.Previous owner Buddhadeb Dhara took an insurance from the Opposite party being Policy No. 0317003120P113838346 against the said vehicle for the period from 27.02.2021 to midnight of 26.02.2022 whose insured declare value was of Rs. 14,00,000/-.The said insurance policy has not been transferred in the name of the complainant in the meantime. The said vehicle met with an accident on 31.01.2022 at midnight and the said vehicle was damaged badly and at the time of accident was the driver whose license was valid and he was injured seriously and in this regard Jhargram P.S. Case No. 31/2022 dated 31.01.2022 was started. The op appointed a Surveyor to cause investigation regarding the claim of the complainant. However the op repudiated the claim on the ground that at the time of the stated accident or damage to the vehicle there was no insurable interest of the complainant with this Op. Party as the insurance policy was in the name of previous owner Buddhadeb Dhara.
Now , it appears that the grounds for repudiation of the claim by the op were outcome of misconceived notion of settled law. The opposite party has failed to understand the provision of Sec. 157(1) of the M.V. Act 1988. As per provision of section 157(1) of the Motor Vehicle Act, 1988, there is deemed transfer of insurance in the name of subsequent owner and complainant is entitled to be indemnified by the insurer. At the time of accident the valid permit of the said vehicle was in the name of the complainant and the fitness certificate of the said vehicle was valid upto March, 2023. It is the trite law that on sale of vehicle, benefits under policy in force on the date of transfer would automatically devolve upon the new owner. In such circumstances’ the opposite party has done deficiency in insurance service for which the complainant has been suffering from mental agony. In this regard the contentions of the Ld Advocate for the Complainant should be accepted. On the contrary the contentions raised from the side of the op have got no substance.
In course of inspection of the subject vehicle at the repairer’s garage , the Surveyor appointed by the op observed that the nature of damages have consistency with the circumstances of accident . He further assessed that the estimate submitted by the insured has consistency with the damages and loss. He estimated the loss at RS.5,43,000/-.The complainant contended that he sent the bills of repair and parts via annexure 8 to14., the op also had caused further survey regarding repair. Finally the op repudiated the claim on the ground that at the time of the stated accident or damage to the vehicle there was no insurable interest of the complainant with this Op. Party as the insurance policy was in the name of previous owner Buddhadeb Dhara. This stand of the op is just for finding out a baseless ground for denial of the genuine claim of an insured. On assessment of the annexures 8,9,10,11,12 and 13 ( annexure-14 has not been taken into account as it does not reflect any date of issue) it appears that there can not be any doubt that complainant had spent Rs.5,24,298/- for repairing of the subject vehicle. Therefore, the complainant is entitled to get Rs.5,24,298/- as repairing costsand litigation costs of Rs.5,702/-from the op .
Accordingly, both the points are decided in favour of the complainant.
Thus the complaint case succeeds.
Hence, it is
O R D E R E D
That the CC/91 of 2022 be and the same is allowed on contest against the OP.
The OP is hereby directed to pay Rs.5,30,000/- (Rs.5,24,298/- repairing costs and litigation costs of Rs.5,702/-) to the complainant within 45 days from the date of this order; in default the OP will have to pay Rs. 200/- per day from the date after expiry of the said 45 days till the date of actual payment in addition to the said amount for non compliance of the order.
The complainant will be at liberty to put the order into execution ,if requires.
Let a copy of the judgment be supplied to each of the complainant and the OP free of cost.
