This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 35 of the Consumer Protection Act, 2019. The case of the complainant is that the complainant is a businessman and he is the vehicle owner of Bulero Pickup Model of Mahindra & Mahindra Limited bearing Registration No. WB-69 7287 which he purchased on 9^th July, 2014. The complainant have purchased an insurance policy to the O.Ps for his above said vehicle vide Policy No. 3003/160948148/00/B00 for the period from 11^th December, 2018 to Midnight 10^th December, 2019. After purchasing of this vehicle the complainant  issued one general power of attorney in favour of Tahida Begam, W/O – Asraful Alam. On 05/06/2019 the above said vehicle was stolen from the house of Tahida Bengam and therefore, she informed the Madarihat Police Station and lodge an F.I.R. vide PS Case No. 48/2019 Dated – 05/06/2019 u/s. 379 IPC. After that the complainant informed the matter to the O.Ps for his claim and after receiving the information the O.Ps issued a letter to the complainant and informed him they generated a claim vide No. MOTO8979570 against the goods and carrier of the complainant and they also informed the complainant that they appointed an external surveyor who will coordinate with the complainant and assist the complainant for fulfillment of documents / papers  and  statements of the records for purpose of the motor theft claim. On 27/07/2019 O.Ps appointed one Shakti Service (Investigator) issued one registered letter in favour of the complainant and informed him they have been appointed by the O.Ps for investigate the above motor theft claim.  After receiving the letter complainant supplied all relevant documents / papers to the investigator which is the same the investigating authority informed the complainant. On 23/08/2019 O.Ps issued another letter to the complainant to provide those documents / papers and after receiving this letter complainant again supplied all relevant documents / papers to the O.Ps. Thereafter, the complainant visited the office of the O.Ps in several times but till today O.Ps did not disburse any genuine claim amount. That non-payment the genuine claim is deficiency in service from the part of the O.Ps due to the whimsical act of the O.Ps. The complainant passing his days mental agony and harassment and also suffering monitory loss. The complainant has claimed Rs. 3,30,000/- along with interest 18% per annum till the realization of the claim amount from the O.Ps and also claim Rs. 1,00,000/- for compensation for his mental agony and sufferings and Rs. 60,000/- for his litigation costs.

           O.Ps have contested the case by filing written version. According to the written version O.Ps have denied all the allegations made by the complainant.

           The case of the O.Ps are that after receiving the claim application they have investigate the matter and according to the report of the investigator it was found that the complainant has transferred the vehicle in the name of the Tahida Begam amounting to Rs. 5,00,000/- but it was not informed to the O.Ps and at present the complainant is not the owner of the vehicle at the same time Tahida Begam is not the insured to the O.Ps. They have prayed for dismissal of the case.

             We have perused the materials on record meticulously. Considering the above pleadings the following issues are necessarily come out to consideration to reach just decision of the case.

                                                  POINTS FOR CONSIDERATION

1. Is the complainant a consumer u/s. 35 of Consumer Protection Act, 2019?
2. Has this Commission jurisdiction to entertain the instant case?
3. Have the O.Ps any deficiency in service as alleged by the complainant?
4. Is the complainant entitled to get any relief/reliefs as he prayed for?

    DECISION WITH REASON

           Considering the nature and character of the case all the points are taken up together for consideration for the sake of brevity and convenience.

Point Nos. 1 & 2:- Admittedly the complainant is the insured of the vehicle to the O.Ps and the said insurance was still in active at the time of cause action and the policy was issued in favour of the complainant. The allegation is that the O.Ps did not settle the claim of the theft of the vehicle and there is allegation and deficiency in service. So, according to the provision of the C. P. Act the complainant is the consumer and the cause of action arose within the jurisdiction of this Commission.

Point Nos. 3 and 4:- In this case the admitted position is that the complainant purchased the vehicle of Bulero Pickup Model of Mahindra & Mahindra Limited and the said pickup has been insured with the O.Ps with a valid policy which was continued from 11^st December, 2018 to Midnight of 10^th December, 2019 and the vehicle of the complainant was theft on 05/06/2019. It is also admitted that the complainant applied for insurance claim from the O.Ps and the O.Ps after investigating the matter repudiated the said claim. Against this repudiation the complainant has filed this case with a claim of Rs. 3,30,000/- along with interest and Rs. 1,00,000/- for compensation for his mental agony and sufferings and Rs. 60,000/- as  litigation costs.

After hearing the argument of the parties it reveals that the complainant executed the one general power of attorney in favour of one Tahida Begam wife of Ashraful Alam for plying of the vehicle. After perusal of that documents it appears that the complainant specially stated in the power of attorney that he has sold the vehicle to Tahida Begam.  If it is true then the complainant is not the owner of the vehicle at the time of cause of action. If the vehicle is transferred during the loan period the purchaser should inform the matter to the insurance company regarding the said transfer and the complainant has the duty to inform the matter to the insurance company along with execute the transfer documents to the RTO and others but here no such documents have been executed by the complainant. The O.Ps have filed several documents before this Commission where from it appears that Tahida Begam made one statement stating that she has purchased the said vehicle from the complainant with an amount of Rs. 5,00,000/- on 04/06/2019 and thereafter, it was stolen. Another statement has been filed from one Jaful Hossain who also stated that Tahida Begam has purchased the vehicle bearing No. WB-69 7287 from the complainant with an amount of Rs. 5,00,000/- but curious enough that no document of transfer was executed by the complainant. The complainant also did not inform the said transfer to the insurance company or the RTO and the policy was not transfer in the favour of the purchaser. In a case law reported in Hon’ble N.C.D.R.C. between Oriental Insurance Company Limited Vs Shamsher Singh and Anr. Dated-26/07/2016 wherein the Hon’ble N.C.D.R.C. has opined  in Para - 10 “The Power of Attorney in favour of Shri Rakesh Kumar having been executed on 27/12/2010 and the said document being a camouflage to cover the true nature of the transaction of sale of the vehicle, the purchaser Shri. Rakesh Kumar became owner of the vehicle on that date. As far as recording the change of owner ship of the vehicle in the records of the concerned RTO is concerned, that being the statutory requirement under Motor Vehicle’s Act, it was for Shri. Rakesh Kumar to get the records changed accordingly, but as far as ownership of vehicle is concerned, it stood transferred to him on the date of Power of Attorney was executed” and Para - 11 “Since the complainant Shri. Shamsher Singh did not own the vehicle on the date it met with an accident, he did not have insurable interest in the subject matter of the insurance and consequently is not entitled to any reimbursement. As far as Shri. Rakesh Kumar is concerned, since there was no privity of contract between him and the petitioner company, he having neither got the insurance transferred in his name nor having applied for such transfer, despite purchasing the vehicle from Shri. Shamsher Singh, and the statutory period of 14 days from the date of transfer for applying to the insurer for transferring the certificate of insurance in his favour having already expired before the accident happened on 26/01/2011, he also is not entitled to any reimbursement from the petitioner company.”   Which reveals that in the present case the attorney holder who has purchased the Bulero Pickup has no insurable interest in the subject matter of the insurance and consequently it is not entitled to get any benefit. At the same time the complainant who transferred the vehicle by way of power of attorney is not entitled to get any claim as the vehicle is not within his ownership.  The complainant has suppressed the fact before the insurance company and the insurance company rightly repudiated the said claim due to the suppression of original facts. There is no deficiency in service from the part of the O.Ps. The complainant is not entitled to get any benefit from this case.

Therefore, we find that the claim of the complainant is not correct as because he is not the owner of the vehicle at the relevant time of the insurance and the case is liable to be dismissed.

Thus all the points are disposed of accordingly.

            Hence, for ends of justice; it is;-

   ORDERED

that the instant case be and same is dismissed on contest against O.Ps without costs.

Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.

Dictated & Corrected by me