DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad 678001, Kerala

Dated this the 31^st day of January, 2009

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member

C.C.No.09/2007

Bava,

S/o.Moidu,

M/s.Gem Fuels,

Kumbidi, Anakkara,

Ottapalam Taluk,

Palakkad. - Complainant

(By Adv.P.K.Mohanan)

Vs

1. The Manager,

The Oriental Insurance Co. Ltd.,

Pranavam Building,

Mele Pattambi,

Ottapalam Taluk 679 306.

(By Adv.P.Ramachandran)

2. Binu,

S/o.Narayanan,

2/67, Changarayil House,

Post Anakkara,

Via Kuttipuram. - Opposite parties

O R D E R

By Smt.Preetha.G.Nair, Member

The brief facts of the complaint is as follows:

The complainant purchased an autorikshaw bearing Regn No.Kl9 L1199 from the 2^nd opposite party for using it as a hired vehicle to meet his livelihood. The complainant had purchased the vehicle for a consideration of Rs.65,000/- and transferred the ownership in his name on 18/8/2005. While purchasing the vehicle there was a comprehensive insurance coverage for the vehicle in the name of the 2^nd opposite party till 24/7/06. The 1^st opposite party was the insurer and policy No. was 442001/3564/2006. On 7/1/2006 morning the vehicle was found missing from the complainant's courtyard. In this incident the Trithala

Police has registered crime No.155/06 u/s 379 of Indian Penal Code. The vehicle is not yet recovered. In this connection the complainant had submitted the necessary papers and lodged an insurance claim with the 1^st opposite party. But the 1^st opposite party repudiated the claim on the ground that the transfer of ownership was not intimated to the Insurance Company. On 28/11/2006 the complainant has caused a registered lawyer notice to the 1^st opposite party. In the reply 1^st opposite party stated that the complainant has no insurable interest. The repudiation of an insurance claim on flimsy ground is a deficiency of service. Hence the complainant had approached before this forum and filed this complaint seeking an order directing the 1^st opposite party to pay an amount of Rs.55,000/- the value covered by the insurance policy and also to pay Rs.5,000/- as compensation for the delay and deficiency of service.

2. After admitting the complaint, notice was served to opposite parties for their appearance before the forum. 2^nd opposite party was absent inspite of accepting notice from the forum. Hence he was called and set exparte. 1^st opposite party appeared through their counsel and filed version stating the following contentions. The main contention of the 1^st opposite party is that the complainant was not the owner of the autorikshaw, at the time of the alleged theft. The complainant has not produced any records to show that the complainant was the owner of the autorikshaw. Hence the complainant has no locus standi to file the complaint against 1^st opposite party. Further the 1^st opposite party stated that there was no contractual liability between the complainant and 1^st opposite party. There was no valid insurance policy in the name of the complainant. Also the complainant has not paid any sum to the 1^st opposite party for getting service. The 1^st opposite party stated that the complainant has not produced any document to show that he had purchased the vehicle. According to the 1^st opposite party the complainant failed to transfer the policy in his name as contemplated u/s 157(2) of Motor Vehicle Act. The 1^st opposite party further stated that the contention in the complaint that changing name in the policy is only an empty formality is not correct and section 157(2) of Motor Vehicle Act is a mandatory provision. The 1^st opposite party submits that there was deficiency in service on their part and also the complainant is not eligible for any of the reliefs prayed for in the complaint. Hence the 1^st opposite party prays before this forum to dismiss the complaint accepting the submissions made above.

3. Complainant and 1^st opposite party filed proof affidavits. Complainant filed

documents marked as Ext.A1 to A6. Evidence closed and matter heard.

4. The issues to be decided are;

1. Whether there is any deficiency of service?

2. If so, what is the relief and costs?

5. Issues 1 & 2: We perused relevant documents on record. The learned counsel for the complainant argued that the complainant had purchased the vehicle for a consideration of Rs.65,000/- and transferred the ownership in his name on 18/8/2005. The complainant produced Ext.A2 as the copy of the permit to show that the permit was given in the name of the complainant. When the complainant purchased the vehicle, there was insurance coverage in the name of 2^nd opposite party till 24/7/2006. But the 1^st opposite party stated that the complainant has not produced registration certificate of the vehicle. Also there was no valid insurance policy in the name of the complainant. The complainant further stated that the 2^nd opposite party is arrayed as an opposite party for avoiding the technical plea of non-joinder of necessary parties. 2^nd opposite party was set exparte. The attitude of the 2^nd opposite party will lead to the inference that what is stated in the proof affidavit of complainant is true.

6. The question there arises for determination is whether in absence of transfer of certificate of insurance in the name of transferee, the 1^st opposite party can be held liable to make good, for the theft of the vehicle. The answer to the question, we say with respect to found in National Insurance Company Ltd V. Subbah Chand Kataria and Another II 2008 CPJ 324(NC), the Hon'ble National Commission held that on transfer of a vehicle, the benefits under the policy in force will automatically accrue to the new owner.

7. In this case it is clear from the records that the vehicle was insured and theft occurred during the period of the insurance policy.

8. In view of the above circumstances, we are of the view that there is deficiency of service on the part of opposite parties. In the result complaint is allowed.

9. We direct the 1^st opposite party to pay an amount of Rs.55,000/- the value covered by the insurance policy and Rs.1,000/- as compensation for delay and

Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant. The order to be complied within one month from the date of communication of the order failing which the whole amount shall carry 9% interest from the date of order till realisation.

10. Pronounced in the open court on this the 31^st day of January, 2009

Sd/-

Seena.H

President

Sd/-

Preetha.G.Nair

Member

Sd/-

Bhanumathi.A.K

Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Copy of the policy

Ext.A2 – Copy of the permit

Ext.A3 – Copy of the FIR

Ext.A4 – Letter received from the 1^st opposite party

Ext.A5 (Series) – Copy of the lawyer notice along with postal receipt and acknowledgement

Ext.A6 – Reply notice of 1^st opposite party

Exhibits marked on the side of opposite parties

Nil

Cost(allowed)

Rs.1,000/- (Rupees One thousand only) as cost of the proceedings to the complainant