DATE OF FILING : 23-06-2012.
DATE OF S/R : 23-07-2012.
DATE OF FINAL ORDER : 20-11-2012.
Rama Sankar Yadav,
son of late Shiv Pujan Yadav,
resident of P-37, Banaras Road, P.S. Liluah,
District –Howrah-------------------------------------------------------------- COMPLAINANT.
- Versus -
The Manager,
United India Insurance Company Ltd.
4/12, G.T. Road ( South ),
Howrah – 711101.-------------------------------------------------------------OPPOSITE PARTY.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
as amended against the O.P. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.P. to refund the insurance claim amount to the tune of Rs. 2,81,200/- together with Rs. 50,000/- as compensation for mental pain and agony and also for litigation cost as the o.p. turned a deaf ear to his prayer.
2. The complainant Rama Sankar Yadav is the owner of the vehicle being a
truck bearing no. WB 23A-3683 by way of purchase from one Kajal Singh dated 30-09-2011. The vehicle while kept on Banaras Road, Howrah, was stolen on 15-10-2011. Though the vehicle had valid insurance policy with the o.p. company, the o.p. company did not refund the claim amount in spite of repeated requests. Hence the case.
3. The o.p. United India Insurance Company contested the case by filing
written version and contended interalia that the insurance policy was issued in the name of Rama Sankar Yadav on 20-10-2011 after about five days from the alleged occurrence of theft; that the F.I.R. was lodged after 15 days of the date of occurrence ; that the vehicle was parked by the side of Benaras Road, Howrah, in front of Rashikal from 30-09-2011 in most insecured condition and that as there was no valid insurance policy in favour of the complainant on the date of occurrence i.e., 15-10-2011, the claim of the complainant was repudiated. So the complaint should be dismissed.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.P. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. Admittedly the complainant is the absolute owner of the vehicle being no. WB 23A-3683 since 30-09-2011. The smart card duly modified by the registering authority stands in the name of Rama Sankar Yadav. The agreement dated 30-09-2011 justifies that he purchased the vehicle from Kajal Singh and thereafter he became the absolute owner of the same. The vehicle had valid insurance from 26-02-2011 till 25-02-2012 in the name of Kajal Singh. Subsequently after purchase of the same the complainant approached the o.p. with no objection letter of Kajal Singh dated 20-10-2011 confirming the transfer of the said vehicle and with the stipulation that the transferor had no objection if the insurance certificate was transferred in favour of the complainant. After receiving such letter dated 20-10-2011 the o.p. insurance company issued a fresh proposal to the complainant and the complainant duly signed and submitted the said proposal form declaring that the o.p. would not be held liable for any loss earlier to the said date of proposal.
6. Ld. Lawyer for the o.p. insurance company pin-pointed this particular date i.e. 20-10-2011 as the most significant date for repudiating the claim. He further argued that on that very date the vehicle did not have any valid insurance as it was already stolen on 15-10-2011. In support of his argument he submitted several citations of the Hon'ble National Commission laying much emphasis to the inaction on the part of the complainant in lodging the FIR much after the date of incident.
7. Be that as it may, we cannot be unmindful to the fact that the complainant become the absolute owner of the vehicle in question on and from 30-09-2011 by virtue of the sale agreement. Though the erstwhile owner of the vehicle, Kajal Singh was divested from his ownership, the insurance policy initiated by him on 26-02-2011 was still in force till 25-02-2011. As per the Insurance Company's Regulations, the complainant being the subsequent owner had to sign in a separate proposal form for incorporating his name in the same insurance policy to get it validated till 25-02-2012. This requirement for recording his signature in a proposal form advanced by the insurance company is just a technical formalities and such hyper technicality cannot stand in the way of refunding the claim amount in the event of loss or theft of the said vehicle. Furthermore, we cannot be unmindful of Sections 10 and 11 of the Transfer of Property Act. Though these Sections namely 10 and 11 of the Transfer of Property Act deal with immovable property, the implications and tenor cannot be brushed aside theoretically in case of transfer of movable property. The vehicle in dispute was purchased by the complainant at a consideration and since after the purchase he became the absolute owner of the same. There was no rider in the deed of agreement and naturally the insurance company cannot have any say over the ownership of the complainant. They are only concerned with respect to the validity of the policy. We have already mentioned that there was a valid policy with respect to the vehicle initiated by the erstwhile owner Kajal Singh. Much have been argued over the complacency of the complainant who lodged FIR after 14 days of the alleged theft. It has further been argued that the truck was parked by the side of the Benaras Road keeping it vulnerable to any theft.
8. We come to know from the smart card as well as from the cause title that the residence of the complainant is at P-37 Benrars Road, P.S. Liluah, Howrah. Naturally we find that the truck was parked in the same road near the residence of the complainant. It is redundant to mention that a garage for a truck is not easily available in these days of paucity of accommodation for the vehicles. Most of the trucks are parked by the side of the road and the complainant cannot be held responsible for such action. With respect to the delay in FIR, we come to know that the complainant had been to his native village somewhere in Bihar and naturally it took time to come back to Howrah. Presumably he had to collect railway tickets which are not easily available on demand and that he might have been informed of the incident subsequently and naturally we trace no complacency on the part of the complainant though it would have been better if the FIR was lodged much earlier.
9. The decisions cited on behalf of the o.p. company can never be disputed and we are bound to bow down the principle as laid down there. But the fact remains that the decision reported in [ 2012(2) CPR 12 ( NC ) ] deals with a case where the FIR was lodged on 21st December, 2004 though the truck was stolen on 20th October, 2004 i.e. long after two months unlike the case at hand. In the other decision as cited [ 2012(2) CPR 91 ( NC ) ] the negligence on the part of the complainant is glaring. He handed over his jeep to a so-called mechanic on the road moving with two ranches in his hand for removing the defect in the brake of the jeep. This so-called mechanic on the pretexts of taking the jeep to his workshop fled away with the same which is not identical to our case at hand. The other cited case [ 2012 ( 2 ) CPR 398 ( N C ) ] demonstrated gross negligence as the driver left the key in the dumper itself and the cabin of the truck could not be locked which has no semblance to that of our case at hand. Furthermore Hon'ble Commission detected significant omission in the complaint petition vis-à-vis the FIR.
10. The negligence on the part of the complainant not being proved, we are of the view that the o.p. insurance company was not justified in repudiating the claim of the insured amount. Notionally valid insurance subsisted for the period starting from 26-02-2011 till 25-02-2012 irrespective of the changeover of the ownership. The hyper technicality cannot be counted in disbursing the claim amount. However, while allowing the complaint after passing direction upon the o.p. to refund the claim amount we are not allowing the prayer for compensation as prayed for. Points under consideration are accordingly decided.
In the result the complaint succeeds.
Hence,
O R D E R E D
That the C. C. Case No. 67 of 2012 ( HDF 67 of 2012 ) be allowed on contest with costs against the O.P.
The O.P., United India Insurance Company Ltd., be directed to refund the claim amount to the tune of Rs. 2,81,200/- to the complainant within 30 days from the date of this order failing the sum shall carry interest @ 12% per annum from the date of repudiation till full satisfaction.
The complainant is entitled to the litigation cost of Rs. 5,000/- from the o.p.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
No order as to compensation.
Supply the copies of the order to the parties, as per rule.
