IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SONITPUR AT TEZPUR
District: Sonitpur
Present: Smti A. Devee
President,
District Consumer D.R Forum,
Sonitpur, Tezpur
Sri P.Das
Member
District Consumer Disputes
Redressal Forum, Sonitpur
Smti S.Bora
Member
District Consumer Disputes
Redressal Forum,Sonitpur
CONSUMER COMPLAINT NO.15/2018
1.Sri Rupjyoti Sarmah : Complainants
S/o Sri Gunanda Sarmah
Vil: Deurigaon, P.S Tezpur,
Dist:Sonitpur (Assam)-784001
2.Sri Lalit Kumar Borah
S/o Late Jagyeswar Borah
Resident of Vill: Da Parbatia,
PO & PS: Tezpur,
Dist:Sonitpur (Assam) -784001
Vs.
1.The New India Assurance Co.Ltd. : Opp. party
Tezpur Divisional Office,Opp. Car Parking-
Place, Main Road, Tezpur (Assam) 784001
2.Registered & Head Office
The New India Assurance Co.Ltd
New India Assurance Building
87 M.G Road, For Mumbai-400001
Appearance:
Mr.R.Bharali, Advocate. : For the Complainant
Mr P.C.Sarmah,Advocate : For the Opp. party
Date of argument : 08-11-2018, 12-12-2018 & 05-02-19
Date of Judgment : 20-02-2019
J U D G M E N T
- The case, in brief, is that the complainant No.2 Sri Lalit Kumar Borah is the registered owner of the vehicle bearing registration No.AS-12-AC-0873 (a Mahindra Bolero Pick up). The vehicle was purchased on 14/04/14 on financial assistance of Mahindra and Mahindra Finance Co. Ltd.,Tezpur, and thus the vehicle was under hypothecation of the financier. The vehicle was duly insured with the opp. party New India Assurance Co.Ltd. Tezpur branch. The IDV of the vehicle was Rs.4,78,206/-. It is stated that the custody of the vehicle was given to the complainant No.1 Sri Rupjyoti Sharma by the complainant No.2 Sri Lalit Kumar Borah by an agreement of sale of the vehicle with the condition that the remaining 30 nos of instalments were to be paid by the complainant No.1 on behalf of complainant No.2 to the financier and after completion of full and final payment of the instalments, the registration certificate shall be transferred to the name of the complainant No.1. It is stated that the complainant No.1, after purchase of the said vehicle approached the opposite party New India Assurance Company Ltd. to transfer the insurance policy in the name of the complainant No.1 from the complainant No.2. But the insurance company asked the complainant No.1 to either make a new and fresh policy by paying the insurance premium of Rs.23,165/- or to produce the registration certificate of the vehicle in the name of the complainant No.1 to continue the previous insurance policy by transferring the ownership of the insurance policy in the name of the complainant No.1. As 30 nos of monthly instalments were due to the financier therefore, for want of no objection certificate from the financier, neither the R/C of the vehicle could be transferred in the name of the Complainant No.1, nor transfer of the insurance in the name of the complainant No.1, did materialize as a consequence. Complainant intimated this fact to the opp. party insurance company who suggested the complainant No.1 to continue the existing insurance policy in the name of the complainant No.2 till its expiry on 13-02-16. That unfortunately, on 11-02-16, the vehicle was stolen from the residential house of the complainant No.1. Complainant No.1 lodged FIR on 12-02-16 before the Tezpur P.S and also informed the incident to the opp. party insurance company through complainant No.2. Police registered the case under number 232/16 u/s 379 IPC. The vehicle being untraceable, Police, after investigation into the matter, finally submitted Final Report. The vehicle being under an effective insurance policy bearing Policy No.53070431140100011322 effective from 14-02-2015 to 13-02-16, opp. party asked the complainant No.1 to lodge insurance claim through complainant No.2 and directed the complainants to produce the copy of FIR, Final Report of Police and the copy of order of acceptance of final report, which accordingly the complainants complied with. But on 22-12-17, the opp. party insurance company vide letter No.531100/MB/CLM/2017/683 repudiated the claim of the complainants as
“No claim”. Complainant served a legal notice in this respect to the opp. party insurance company but to no avail.Hence, the instant complaint before the Forum praying a direction of the Forum to the Opp. party insurance company to pay the IDV of the vehicle with interest thereon, and an amount of Rs.10,000/- for mental pain, harassment etc. and Rs.10,000/- for cost of litigation.
- Opp. party contested the case by filing written version denying the allegations made by the complainant. It is stated that complainant No.1 is not a consumer as he is not the insured of the stolen vehicle and as he has not paid a single paise to the insurance company. It is further pleaded that although opp. party admits the fact that the complainant No.2 is the insured of the vehicle in question but the complainant no.2, having illegally and unlawfully sold the said vehicle without prior information given to the opp. party or after handing over possession of the vehicle to the complainant No.1 till the date of alleged theft of the vehicle, has committed gross violation of the conditions of the insurance policy and therefore, none of the complainants are entitled to get insurance benefit for their wrongful act. Opp. party has asserted that it has rightly repudiated the claim of the complainants and prayed for dismissal of the complaint.
- Complainants have submitted their respective evidence on affidavit and have exhibited several documents. Both the complainants were cross-examined by opp. party. Opp. party has not adduced evidence of any witness on its side.Opp.party has submitted certain documents viz., the letter of repudiation, Motor Accident/Damage Claim Form along with original copy of ejahar as per direction of the Forum.
We have gone through the entire materials available on record and carefully examined the documents submitted by both sides. We have also considered the written argument filed on both sides as well as the additional argument on behalf of Opp. Party.
4. POINTS FOR DETERMINATION
(i)Whether the complainants are consumers of the opp. party Insurance company as defined under the Consumer Protection Act ?
(ii)Whether there is any deficiency in service on the part of the opp. party insurance company in settlement of the claim of the complainants ?
(iii)Whether the Complainants are entitled to get any relief ?
5.Point No.(i): Although either of the complainants have claimed in the complaint petition that the vehicle was intended to be sold out to the Complainant No.1 Rupjyoti Sarmah by Complainant No.2 Sri Lalit Kumar Borah and therefore, an agreement was arrived at between the two complainants, but contradicting their own statements the complainant No.1 during cross-examination has stated that “It is a fact that the vehicle was not purchased but was taken possession of from the owner under an agreement in the
Court” and the complainant No.2 stated during cross examination that- “I
borrowed money from Rupjyoti Sarmah for my medical treatment by pignorating the vehicle with him”. However, the Complainant No.2 has submitted a photocopy of a Sale Agreement as per direction of the Forum, but the same is neither registered before any competent authority nor there has been any evidence of the same been produced before the Regional Transport Authority/D.T.O to
obtain proper R/C/ Sale Certificate of the vehicle. That apart, from the evidence in cross-examination of the Complainants, we have found that the Sale Agreement cannot be considered as a Document of Sale and as such, we are of the opinion that there was no sale at all.Further the vital documents, such as the R/C of the vehicle, and insurance policy, having not stood in the name of the complainant No.1, Rupjyoti Sharma and those at the material time of theft of the vehicle having stood in the name of the Complainant No.2 Lalit Kumar Borah, it is thus,we find that the complainant No.1 Rupjyoti Sharma has no locus standi in the case as he had no insurable interest in the case. It is the complainant No.2 Lalit Kumar Borah, who has insurable interest in this case against the insurance company.
The point No.1 is thus decided in the affirmative in respect of complainant No.2 and in the negative against complainant No.1.
6.Point No.(ii) & (iii): For the sake of convenience of discussion and to avoid repetition, these two points are taken up together for decision. Opp. party in its W.S has admitted the fact that complainant No.2 Lalit Kumar Borah is the registered owner and insured of the vehicle in question. The claim of the complainant is repudiated only on the ground of breach of contract.
7. In the case of National Insurance Co.Ltd. Vs. Nitin Khandelwal (Civil appeal No.3409 of 2008 arising out of SLP(Civil) No.20902 of 2006) the hon’ble Supreme Court held that-
“In the case in hand the vehicle has been snatched or stolen. In the case of theft of vehicle breach of condition is not germane. The appellant insurance company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy for the loss caused to the insurer. The respondent submitted that even assuming that there was a breach of condition of the insurance policy, the appellant insurance company ought to have settled the claim on non-standard basis. The insurance company cannot repudiate the claim in case of loss of vehicle due to theft”.
8. It is thus, in the light of the discussions made above and in the light of the observation of the hon’ble Apex Court, we deem it fit and proper to direct the opp. party to settle the claim of the complainant No.2 Sri Lalit Kumar Borah on non-standard basis and to pay 75% of the IDV as on the date of loss. The point No.(ii)and (iii)are thus answered in the affirmative.
O R D E R
In the result, the complaint is allowed on contest. Opp. party Insurance
Company is directed to settle the claim of the complainant No.2 Sri Lalit Kumar Borah on non-standard basis and to pay 75% of the IDV of the vehicle as on the date of loss. Opp. party is further directed to pay a lump sum amount of Rs.3000/-(Three thousand)only to the Complainant as cost & compensation. Opp. party is directed to settle the claim within 2 (two) months from the date of receipt of copy of the judgment and order. Default in any manner shall entail interest @9% per annum on the entire sum awarded herein above from the date of order till realization in full.
Given under our hands and seal of this Forum this 20th day of February, 2019.
Written by: ( Smt S. Bora), Member
We agree:- (A. DEVEE)
President
(Sri P.Das) District Consumer Disputes Redressal Forum,
Member Sonitpur,Tezpur
