Sri. Apurba Kr. Ghosh.........President.

The Complainant has filed the case against the Opposite Party and praying for the following Order/Relief  :-

1. Direction against the O.P. to pay a sum of Rs. 4,80,000/- (Rupees Four Lakh Eighty Thousand) only to the Complainant along with interest @ 24% per annum with effect from 28.09.2015 till the date of payment.
2. Direction against the O.P. to pay a sum of Rs. 2,00,000/- (Rupees Two Lakh) only to the Complainant for immense mental harassment and agony caused to the Complainant.
3. Direction against the O.P. to pay a sum of Rs. 200000/- (Rupees Two Lakh) only to the Complainant as compensation for deficiency in service as well as unfair trade practice.
4. Direction against the O.P. to pay a sum of Rs. 15,000/- (Rupees Fifteen Thousand) only to the Complainant towards cost of legal proceedings.

BRIEF FACT OF THE COMPLAINT

1. The Complainant is a law abiding citizen and Tashila Yonzone was the registered owner of a Mahindra Bolero VLX bearing Registration No. WB-76/7260, Engine No. KKB4F41518, Chassis No. MAIX02KKB2618648.
2. The vehicle was insured from the period of 19.10.2014 to midnight of 18.10.2015, the premium was duly paid by Tashila Yonzone which was duly accepted by the O.P.
3. That, on 24.12.2014 Tashila Yonzone transferred the ownership of the vehicle to the Complainant and since 24.12.2014 the Complainant became the registered owner and also the insured in respect of the motor vehicle policy being no. 1506003114630003335 under which the vehicle was insure form the period of 19.10.2014 to midnight of 18.10.2015.
4. The Complainant purchased the said car for earning of livelihood.
5. That, on 25.12.2014 the vehicle was stolen from the parking place of the residence of the Complainant which was parked at her resident, Complainant lastly saw the vehicle at 10:00 PM on 25.12.2014.
6. That, on 26.12.2014 the Complainant lodged FIR with the Police of Sadar Police Station, Darjeeling regarding theft of vehicle and the Police registered Sadar PS case no 180/2014 dated 26.12.2014 u/s 379 IPC.
7. That the Complainant raised her claim by giving intimation to the O.P. on their Toll Free No. and the Complainant’s claim was duly booked under Claim No. 15060031146390000161 dated 26.12.2014.
8. That, the O.P. thereafter requested the Complainant by a letter dated 06.05.2015 to submit all required documents.
9. That, the Complainant vide letter dated 03.06.2015 submitted all the documents and requested the O.P. to do the needful for processing the claim and to pay the insured amount at the earliest.
10. That, after receiving the letter of the Complainant, the O.P. issued a letter on 27.07.2015 which was delivered to the Complainant on 31.07.2015 where the O.P. told the Complainant that Insurance Policy with respect to the insured vehicle which had been stolen was issued to Tashila Yonzone and simply tried to deny the fiduciary relationship  between the O.P. and the Complainant and the O.P. further asked the Complainant to give specific reasons as to why the Complainant’s claim should not be repudiated.
11. That, on 03.08.2015 the Complainant in reply to the O.P’s letter dated 27.07.2015 informed the O.P. that the Complainant is legitimate claimant under the policy and that the ownership of the vehicle has been transferred in her name and that she has also paid the required tax and obtained Fitness Certificate.
12. That, the Complainant also reminded that the final report had been submitted denoting that the claim was genuine.
13.  That, soon after the receipt of the letter dated 03.08.2015 the O.P. repudiated the rightful claim of the Complainant on an illogical and baseless alibi vide letter dated 28.09.2015 and the reason stated by the O.P. is beyond the normal comprehension of a prudent man.
14. That, finding no other alternative the Complainant sent Legal Notice through her Ld. Advocate bearing Ref No. MP-LN/002/DEC/2015 dated 10.12.2015 which was duly received by the O.P. on 11.12.2015 where the Complainant requested the O.P. to settle the claim within 15 days from the receipt of notice and the O.P. sent a baseless reply on 28.12.2015 which was self contradictory to its own contention and the same has supported the claim of the Complainant.
15. The O.P. has refused the lawful claim of the Complainant though the Complainant is a rightful owner of the said vehicle and she has become the lawful insured in respect of the Policy Right from the time of transfer of the ownership of the vehicle in her name.
16. That, the O.P. has willfully adopted unfair trade practice and has repudiated the claim baselessly knowing fully well that they have no right to repudiate the same on the ground stated in the repudiation letter.
17. That the cause of action of this case arose on 28.09.2015 when the rightful claim of the Complainant was repudiated illegally by the O.P.

In support of the complaint the Complainant has filed the following documents :-

1. Photocopy of Certificate of Registration.
2. Photocopy of Permit.
3. Photocopy of Certified Copy in G.R. Case No. 492 of 2014.
4.  Photocopy of Formal F.I.R.
5. Photocopy of the written complaint dated 26.12.2014.
6. Photocopy of Final Report.
7. Photocopy of Letter being dated 13.04.2015 issued by Motor Vehicle Department.
8. Photocopy of Letter being dated 06.05.2015 issued by National Insurance Co. Ltd.
9. Photocopy of Letter being dated 03.06.2015 issued in favour to the Insurance Company.
10. Photocopy of Letter being dated 23.07.2015 issued by the National Insurance Company Ltd.
11. Photocopy of Letter dated 03.08.2015 issued by the Complainant to the Insurance Company.
12.  Photocopy of Repudiation Letter dated 28.09.2015.
13. Photocopy of Legal Notice being dated 10.12.2023 issued by the conducting lawyer of the Complainant to the National Insurance Company along with postal track report and A/D Card.
14. Photocopy of reply letter being dated 28.12.2015 issued by the National Insurance Company to the Conducting lawyer of the Complainant.

Notice was issued from this Commission to the OP . On receipt of notice, the O.P. appears before this Commission through Vokalatnama, filed Written Version, denied all the material allegations of the Complainant. The O.P. has stated that the Complainant has filed this case on some false allegation against the O.P., the case is not maintainable in law or on facts, the Complainant has filed this case on frivolous, vexatious, fabricated, baseless, false, whimsical unwarranted grounds and the Complainant has no locus standi to file the case against the O.P. It is also stated in the Written Version that the case is barred by law of limitation, waiver, estoppels, acquiescence as well as bad for mis-joinder of unnecessary party and non-joinder of necessary party. It is also stated that Paragraph No. 1 & 20 of the Complaint are not related to the O.P. and the O.P. has no comment in this regard. It is further stated that the Certificate of Insurance being Policy No. 15060031146390000161 dated 26.12.2014. for the period from 19.10.2014 to 18.10.2015 was issued to Tashila Yonzone for his passengers carrying commercial vehicle bearing no. WB 76/7260 subject to terms & condition, exception and limitation thereof. It is also stated that on receiving the claim intimation of the Complainant, the O.P. as per Norms and Regulation of the Insurance Act and IRDA, appointed an independent investigator A.K. Sinha & Associates to investigate the matter and after investigation the investigator submits the report to the O.P. and on the basis of available documents and on perusal of policy, its term & conditions, prescribe rules, regulations let down by the Tariff Advisory Committee in India Motor Tariff formulated by the IRDA to be followed mandatorily by insurer and the claim lodged by the Complainant did not qualify for payment and therefore the O.P. sent letter dated 23.07.2015 to the Complainantasking the Complainant to inform as to why she considered herself as a legitimate claimant. The O.P. has also stated that, on receipt of letter dated 03.08.2015 of the Complainant, the O.P. replied the same by issuing letter dated 28.09.2015 stating that, the policy was issued in the name of Tashila Yonzone for the period from 19.10.2014 to 18.10.2015 against the Vehicle No. WB-76/7260. It was also informed that the vehicle is sold to Tashila Yonzone to Car Scanners. It is also stated that, the Motor Insurance Policy is neither a negotiable instrument nor it is assignable from one person to another and in view of the Insurance Policy issued in the name of Tashila Yonzone ceased to have any operational effect so far the own damage claim is concern as the same was not transferred in the name of Car Scanner as per IRDA Tariff/ Guidelines and that’s why the transfer of Insurance Policy has not effected as per statutory and mandatory requirement. The O.P. has further stated that there was no contract of insurance between the Complainant and the O.P. and the insurance contract under policy no. 15060031146300003335 between Tashila Yonzone and O.P. have ceased and thereby the Complainant cannot be indemnified under the policy and thereby the claim of the Complainant was repudiated. The O.P. has also stated that, on receipt of Legal Notice of the Complainant, the O.P. sent reply on 28.12.2015disclosing the claim of the Complainant was not at all lawful and the O.P. repudiated the claim of the Complainant on the ground, that, there was no insurance contract between the Complainant and the O.P and on perusal of the available document as well as Insurance Policy the O.P. came to know that the vehicle in question, was not at all insured and covered in the name of the Complainant at any point of the time and also stated that, the policy had not been transferred in favour of the Complainant and for which the O.P. sent the letter of repudiation of claim. The O.P. has also stated that there was no insurance contract between the Complainant and the O.P. at the time of loss of the vehicle and the claim of the Complainant was not legally payable and the Complainant is not entitled to get any relief and the O.P. never adopted unfair trade practice towards the Complainant. The O.P. has also stated that, the Complainant has never faced any financial losses, the inhuman torture and harassment due to illegal activities of the O.P. By filing the Written Version, the O.P. praying for dismissal of the case.

To falsify the case of the Complainant the O.P. has filed the following documents:

1. Certificate of Insurance (Package Policy) bearing Police No. 150600/31/14/6300003335 issued in the name of TASHILA YONZONE valid from 19.10.2014 to 18.10.2015 in respect of vehicle no WB-76/7260.
2. Sale deed on Non Judicial Stamp Papers vide S.L. No. 20674 dated 28.08.2014 executed by the said TASHILA YONZONE in favour of M/S Car Scanner.
3. Money Receipt No. 025 dated 22.12.2014 issued by Car Scanner to Complainant.
4. Letter dated 23.07.2015 issued by the O.P. to Complainant.
5. Letter dated 28.09.2015 issued by the O.P. to Complainant.
6. Letter dated 28.12.2015 issued by the O.P. to Ld. Advocate of the Complainant.
7. General Regulation (GR) No. 17 of India Motor Tariff.
8. Investigation report issued by A.K. Sinha & Associates of Kolkata.
9. Other papers and documents will be filed at the time of final hearing of the above case and/or as and when directed by this Ld. Commission.

Having heard the Ld. Advocate of both the sides and on perusal of the Complaint, Written Version of the O.P. as well as documents filed by the parties, the following points are to be taken for consideration by this Commission.

Points for consideration

1. Whether the Complainant is a consumer?
2. Whether the case is maintainable under the C.P. Act ?
3. Whether there is any deficiency in service on the part of the O.P. as alleged by the Complainant?
4. Is the Complainant entitled to get any award and relief as prayed for as per the prayer of his Complaint?

Decision with Reasons

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

Complainant was given opportunity to prove its case by adducing evidence and by producing documents before this Commission. In order to prove this case, the Complainant has filed written deposition in the form of an affidavit. The Complainant has also filed several documents before this Commission including Certificate of Registration of the Vehicle, Permit, Copy of G.R. Case No. 492/2014, formal FIR, written complaint, Final Report, letter dated 13.04.2015 issued by Motor Vehicle Department, letter dated 06.05.2015 issued by National Insurance Co. , Letter dated 03.06.2015 issued in favour of O.P., letter dated 23.07.2015 issue by the O.P., letter dated 03.08.2015 issued by the Complainant to the O.P. , Repudiation letter dated 28.09.2015, Legal Notice dated 10.12.2015 along with reply letter dated 28.12.2015 against the Legal Notice.

At the time of argument Ld. Advocate of the Complainant submits that, the Complainant has been able to prove this case against the O.P. not only through written deposition but also by producing documents relating to the vehicle before this Commission. By filing Written Notes of Arguments Ld. Advocate of the Complainant also submits that the Complainant has been able to prove the fact that she purchased the vehicle in question and the name of owner was transferred in her favour from the Motor Vehicle Department. It is also argument of the Complainant that, prior to purchase of the instant vehicle, the previous owner Tashila Yonzone had purchased the Insurance Policy for the said vehicle. It is also argument of the Complainant that the name of the owner of the vehicle was transferred in favour of the Complainant and on the next day of said purchase the vehicle was stolen away and to that effect, the Complainant not only lodged an FIR with the Police of Sadar PS, Darjeeling but also raised the claim with the O.P. for settlement of the same . Ld. Advocate of the Complainant further argued that when the O.P. by issuing letter dated 27.07.2015 denied the fiduciary relationship between the Complainant and the O.P. the Complainant gave clarification and reminded that the final report in the matter was submitted. It is also argument of the Complainant that as soon as the vehicle is transferred from one registered owner to another the insurance policy relating to the vehicle also get transferred to the subsequent registered owner and the subsequent registered owner is required to intimate the change of registration within 15 days of transfer and thus the non registered owner gets the indemnity of 15 days within which the insurance shall be deemed to transfer to the non registered owner and the insurance company shall be in no way to deny its fiduciary liability towards the compensation of the loss. He further argued that the O.P. took alibi that the vehicle was not sold to the Complainant by Tashila Yonzone but it was sold by Car Scanner to the Complainant and that’s why O.P. is not liable to compensate the Complainant but the fact is that the Complainant purchased the vehicle from Tashila Yonzone when Car Scanner was just a mere agent and the name of Car Scanner does not appear in any documents of the Motor Vehicles and that’s why the alibi taken by the O.P. does not have any leg to stand. Ld. Advocate of the Complainant further argued that the O.P. has no valid grounds to repudiate the claim and in this regard Ld. Advocate of the Complainant referred decision which was reported in (2014) 2 CPJ 9 & decision of (2007) 4 CPJ 289. By referring those decisions Ld. Advocate of the Complainant submits that the Complainant has been able to prove the case against the O.P. and the Complainant is entitled to get the relief as prayed for.

Ld. Advocate of the O.P. by filing Written Notes of Argument submits that, the Complainant has filed this case on some false allegation and by suppressing the material fact knowing fully well that she will not be entitled to get any relief as prayed for. It is also argument of the O.P. that, only to extort huge compensation amount the Complainant has filed this case on some false allegation. Ld. Advocate of the O.P. further argued that the O.P. has explained the reasons for repudiation of claim of the Complainant and the O.P. after getting intimation of claim of the Complainant appointed an independent investigator A.K. Sinha & Associates to investigate the matter and after investigation the investigator submitted his report and following the rules & regulations, the O.P. has repudiated the claim as the claim lodged by the Complainant did not qualify for payment. It is also the argument of the O.P., that, the Complainant has falsely stated in her deposition that she purchased the vehicle from the owner Tashila Yonzone but actually she purchased the vehicle from M/S Car Scanner and there was no contract of Insurance Policy  issued to Tashila Yonzonefor for his passengers carrying commercial vehicle and there was no policy in the name of the Complainant as she never applied for transfer of the policy in her favour. It is further argument of the O.P. that, the Complainant is not a Consumer within the provision of section 2(d) of the Consumer Protection Act, 1986. Further argument of the O.P. is that, the policy had not been transferred in the name of the Complainant and in this regard, Ld. Advocate of the O.P. referred one decision of the Hon’ble Apex Court held in Complete Insulation (P) Ltd—Vs—New India Assurance Co. Ltd. (1996) 1 SCC 221 where it was laid down that the deemed transfer of policy under section 157 of the Motor Vehicle Act 1988 is restricted to third party risks and does not apply to other risks like damage caused to the vehicle of the insured himself and as there was no agreement between the insurer and the transferee and as the insurance policy stood in the name of the previous owner, the Complainant had no insurable interest under the said policy of the previous owner and for which the insurer was not liable to make good the damage to the vehicle.  Ld. Advocate of the O.P. further argued that on transfer of ownership the liability only cover under a liability only policy or under a package policy is deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of transfer and the transferee shall apply within 14 days from the date of transfer in writing with details of registration of vehicle, the date of transfer of vehicle, the previous owner of the vehicle, no. of the vehicle, date of insurance policy so that the insurer may make the necessary changes in its record and issued fresh certificate of insurance. It is also argument of the O.P. that a fresh proposal form duly completed is to be obtain from the transferee in respect of liability only and package policies and transfer of package policy in the name of transferee can be done only on getting acceptable evidence of sale and fresh proposal form duly filled and signed, the old certificate of insurance of the vehicle is required to be surrender and a fees of Rs. 50/- is to be collected for issuance of fresh certificate in the  name of transferee/ in the present case the vehicle in question was purchased and transferred in the name of the complainant and the relevant insurance policy was being continued in the name of previous owner Tashila Yonzone and the said policy was not transferred in favour of the complainant.

Ld. Advocate of the O.P. also refers another decision of the Hon’ble National Commission in the case of United India Insurance Co. Ltd Vs Goli Sridhar and another (2012) CPJ 101(NC) and also in New India Assurance Co Ltd. vs Shaik Dawood I (2013) CPJ 401 (NC) where it was held that on transfer of ownership, transferee is required to apply within 14 days from the date of transfer in writing.

            Ld. Advocate of the O.P. has also refers another decision of Hon’ble National Commission held in I (2015) CPJ 492 (NC) National Insurance Co. Ltd. Vs Chiranjit Singh Sandhu where it was opined that in respect of third party risks Sec 157 Of MV Act provides that the certificate of Insurance together with the policy of insurance describe therein shall be deemed to have been transferred in favour of the person to whom the Motor Vehicle is transferred. He further argued that as there was no contract between the complainant and the O.P. insurance company and as the insurance policy was not in the name of the complainant the complainant did not have insurable interest on the date when the vehicle was stolen. By filing the Written Notes of argument the O.P. praying for dismissal of the case.

                                                Having heard the LD. Advocate of both the sides and on perusal of the Plaint, Written version, Documents filed by the parties, Evidence of the complainant and the O.P. and on perusal of the written notes of argument of both the side it is admitted fact by both the parties that the vehicle in question was firstly owned by Tashila Yonzone. It is also admitted fact that, Tashila Yonzone purchased insurance policy being no. 15060031146300003335, in respect of the vehicle bearing Registration No. WB-76/7260 and the policy was valid from the period of 19.10.2014 to the midnight of 18.10.2015. It is also admitted fact by both the parties, that on 24.12.2014 the ownership of the vehicle was transferred from Tashila Yonzone to the complainant Gita Pradhan. It is not denied by the O.P. that the vehicle in question was not stolen on 25.12.2014. It is also not denied by the O.P. that the complainant lodged an FIR with the Police of Sadar Police Station, Dist Darjeeling on 26.12.2014. It is also fact that the complainant raised her claim by giving intimation to the O.P. on their Toll Free No. and claim was duly booked under claim no. 15060031146390000161 dated 26.12.2014. it is further admitted fact that on 03.06.2015 the complainant submitted all the relevant documents to the O.P for processing the claim and pay the insured amount and receiving the letter of the complainant the O.P. issued a letter on 27.07.2015 which was delivered to the complainant on 31.07.2015 where the O.P. told the complainant that the insurance policy with respect to the insured vehicle which had been stolen was issued to Mr. Tashila Yonzone. Ld. Advocate of the O.P. in the W/V as well as in the written notes of argument has claimed that, the O.P. asked the complainant to give specific reasons as to why the complainant’s claim should not be repudiated. It is needless to mention here that the complainant made a reply on 03.08.2015 to the O.P. in respect of their letter dated 27.07.2015 disclosing that the complainant was the legitimated claimant under the policy and ownership of the vehicle (registration) had been transferred in her name who paid the required fees.

Complainant in order to prove the case has filed the written complaint (FIR) dated 26.12.2014 along with formal FIR as well as final report wherefrom it is clear that immediately on getting information of stolen away of vehicle the complainant lodged the FIR with the Police authority and she also raised her claim to the O.P. for realization of compensation.

It is also needless to mention here that in respect of the vehicle bearing Registration No. WB-76/7260, Engine No. KKB 4F41518, Chassis No. MAIX02KKB2618648, the insurance policy is subsisting which was effective from 19.10.2014 to 18.10.2015. Regarding transfer of ownership of the vehicle it was contended before the Hon’ble Supreme Court in (2014 ) 2 CPJ 9 that once the ownership of the vehicle is admittedly proved to have been transferred the existing insurance policy in respect of the said vehicle will also be deemed to have been transferred to the new owner of the vehicle and the policy will not lapsed even if the intimation required u/s 103 of the MV Act, is not given to the insurer. Similarly in this case also during the subsistence/ continuance of the insurance policy the ownership of the vehicle was transferred in favour of the complainant and when the vehicle was stolen the insurance policy was till in force.

It was also held in (2007) 4 CPJ 289 Hon’ble National Consumer  Disputes Redressal Commission in Sri Narayan Singh VS New India Assurance Co. Ltd. that on transfer of a vehicle the benefits under the policy in force will automatically accrue to the new owner and it was also held that the insurance company ought not to have rejected the claim on the grounds that the vehicle was not transferred in favor of the complainant and in any set of circumstances, even u/s 157 of MV Act the transfer application is to be made within a period of 14 days and those 14 days were not over in the instant case and for which it was highly improper and unjustified act on the part of the insurance company to reject the claim.

In the case in hand there is an admitted transfer of ownership of the vehicle and the complainant has produced the documents relating to the transfer of ownership of the said vehicle and as the ownership of the vehicle is admittedly proved to have been transferred to the new owner the existing insurance policy in respect of the vehicle will also be deemed to have been transferred to the new owner and the policy will not lapsed even if the intimation as required u/s 103 of the MV Act is not given to the insurer.

To falsify the case of the complainant the O.P. has filed evidence, Written notes of arguments but has failed to thwart the case of the Complainant . On the other hand considering the evidence on record as well as documents filed by the parties we are of the view that the complainant has been able to prove this case against the O.P. and she is entitled to get relief as prayed for.

Hence, it is therefore,                                                                                                      

                                                                       O R D E R E D

That the instant consumer case being No. 13/2016 be and the same is allowed on contest but in part. The O.P. is directed to pay a sum of Rs. 4,80,000/-(Rupees Four Lakh Eighty Thousand) only to the complainant according to the Insurance Policy along with interest @ 5% per annum with effect from 28.09.2015 till the date of making payment of the entire amount. The O.P. is also directed to pay a sum of Rs. 30,000/-(Rupees Thirty Thousand) only to the complainant for mental harassment and agony caused by the O.P. to the complainant by not paying the claim amount. The O.P. is also directed to pay a sum of Rs. 20000/- (Rupees Twenty Thousand) only to the complainant for deficiency in service as well as unfair trade practice on the part of the O.P. The O.P. is further directed to pay a sum of Rs. 2000/- to the complainant towards cost of Legal Proceedings. The O.P. is also directed to pay a sum of Rs. 10,000/- to Consumer Legal Aid account of this commission.

The O.P. is directed to pay the awarded amount within 45 days from this day failing which the complainant will have the liberty to take proper steps against the O.P. as per law.

                                    Let a copy of this order be given to the parties free of cost.