West Bengal

Paschim Midnapore

CC/118/2011

Sk. Jalal - Complainant(s)

Versus

The Manager, Bajaj Allianz General Insurance Co. Ltd - Opp.Party(s)

25 Sep 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.118/2011                                                         Date of disposal: 25/09/2012                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

 

    For the Complainant/Petitioner/Plaintiff: Mr. S. Das. Advocate.

    For the Defendant/O.P.S.                          : Mr. P.Sengupta & Mr.T. Adhya. Advocate.

            Sk. Jalal son of Sk. Kamal @ Sk. Kalam, of Panchberia (Kajimahalla), P.O. Inda, P.S.   

            Kharagpur Town, Dist-Paschim Medinipur………Complainant.

                                                              Vs.

1. The  Manager, Bajaj Allianz General Insurance Co. Ltd., 2^nd Floor, M.S. Towers II, Atwal Real Est., O.T. Road Inda (Near Kharagpur College), P.O. Inda, P.S. Kharagpur Town, Dist-Paschim Medinipur.
2. Arup Haldar son of Raghunathpur, P.O. & P.S. Balurghat, Dist. Dakshin Dinajpur, Pin 733102.

The case of the complainant, in short, is as follows:-

The complainant in this case Sk. Jalal is said to have purchased the vehicle bearing No.WB-33A-1185 on 10/12/2010 at a consideration of Rs.8,25,000/- (Eight lakh, twenty five thousand only) from the original owner of the vehicle Arup Halder, the Op NO.2.  The said vehicle was insured with the Op NO.1 and the period of insurance was from 1/11/2010 to 31/10/2011. In the night of 09/10.4.2011 the driver Sultan Ali parked the Truck near New Bus Stand and went to his house. After coming back at about 4 a.m., in the same night Sultan Ali did not find the truck as the same was stolen by some unknown persons.  After the complainant came to know about it from Sultan Ali, he lodged an F.I.R. with Kharagpur Town P.S. on the basis of which Kharagpur Town P.S. Case No.98/2011 dated 10/4/2011 under Section 379 I.P.C. was started.  The Op No.1/Insurance Company was also informed about the incident.  Police took up investigation of the case but could not recover the vehicle and on completion of investigation police submitted charge sheet in Court. The complainant stated that although the vehicle in question was insured with the Op No.1 and the Op No.1 was informed about the theft

Contd………….P/2

- ( 2 ) -

of the vehicle, the Op NO.1 did not pay any compensation to the petitioner.  So, the petitioner claimed Rs.8,00,000/- (Eight lakhs only) towards value of the truck and compensation and litigation cost.

    The Op No.2 contested the case by filing W/O supporting the main contention of the complainant and stating that since the vehicle was insured with the Op No.1,  the Op No.2 has no objection if the complainant gets compensation from the Op No.1.

     The Op No.2 also contested the case by filing W/O. The main contention of the Op No.1 was that although the vehicle in question was insured with the Op No.1, since it was sold to the complainant by the Op No.2, the insurable interest was lost by the Op No.2.  The Op No.1 further contended that there was no relationship of customer and service provider between the complainant and the Op No.1 and as per law the complainant was required to get the insurance policy transferred in his name but he failed to do so.  Accordingly, the Op No.1 contended that he is under no obligation to pay anything to the complainant.

     Now, we are to consider as to whether the complainant is entitled to get the relief as claimed.

                                                 Decisions with reasons:

      It is undisputed that the Truck bearing No.WB-33A-1185 belonged to the Op No.2 and the said truck was insured with the Op No.1.  It is also undisputed that the vehicle in question was transferred to the complainant by the Op No.1.  The contention of the complainant is that the truck was stolen in the night of 09/10.4.2011.  Such contention is supported by the documents on record wherefrom we find that on the basis of a complaint lodged with the Kharagpur Town P.S. by the complainant regarding the theft of the Truck in question, Kharagpur (Town) P.S. Case No.98/2011 dated 10/4/2011 under Section 379 I.P.C. was started.  The materials on record further shows that after investigation police submitted final report in that case and the police could not trace out the whereabouts of the vehicle.  The only dispute in this case is regarding the admissibility of the insurance claim to the complainant.  The vehicle in question was insured for the period from 1^st November 2010 to 31^st October 2011.  The vehicle was sold by the Op No.2 to the complainant on 10/12/2010.  The vehicle was stolen on 9/10.4.2011.  So, apparently the vehicle was under the coverage of insurance at the time of its theft, the question before us is whether the complainant is entitled to get compensation under the insurance policy.

     While arguing in the case the Ld. Lawyer for the petitioner submitted that since the vehicle was sold by the Op No.2 to the complainant during the period of coverage of insurance, it shall be deemed that the vehicle was transferred alongwith insurance policy to the complainant.  In this regard the Ld. Lawyer for the complainant relied upon the decision of the Hon’ble Supreme Court in the case of Utter Pradesh State Road Transport Corporation (U.P.S.R.T.C.) Vs.

Contd………….P/3

 

- ( 3 ) -

Kulsum & others (2011(4) TAC 15 (SC).  The Ld. Lawyer appearing for the Op No.1 maintained that the decision upon which the Ld. Lawyer for the complainant relied is not applicable in this case in view of the fact that the complainant had no insurable interest on the date of theft since the transfer of vehicle was not intimated to the Op-Insurance company and the insurance policy was not transferred in favour of the complainant.  In support of such contention the Ld. Lawyer for the OP NO.1 referred to the decision of the Hon’ble National Consumer Disputes Redressal Commission in the case of New India Assurance Company Ltd. Vs. Divya Prashad (2011(1) CPR 119 (NC)) and the decisions of Punjab State Consumer Disputes Redressal Commission in the cases of National Insurance Company Ltd. Vs. Arjun Singh (2010(4) CPR 145) and United India Insurance Company Ltd. Vs. Dr. Satish Khanna and another (2010 (4) CPR 468).

     The Ld. Lawyer appearing for the Op No.2 submitted that since the Op No.2 sold the vehicle in question to the complainant, he has nothing to say safe and except that any amount if the complainant is found  to be entitled, the Op-Insurance Company should be asked to pay it.

      We have given anxious consideration to the submissions made by the Ld. Lawyers for the Parties. We have also gone through the decisions upon which Ld. Lawyers for the complainant and the Op-Insurance Company relied.

                  In the case upon which the Ld. Lawyer for the complainant relied as referred to above, the owner of a mini bus by virtue of an agreement allowed the U.P.S.R.T.C to ply the mini bus on the route as per permit issued by RTO in its favour.  Except for the services of the driver which was to be provided by the owner, all other rights of the owner were to be exercised by the corporation only.  Subsequently, the said mini bus met with an accident causing death of some persons. Upon claim made by the near relations of the deceased, the tribunal made award on the claim and the corporation was asked to make payment.  In that case the Hon’ble Supreme Court held that following the agreement the vehicle was given by the owner of the vehicle together with its existing and running insurance policy as such the insurance company can not escape its liability to pay the compensation.  The Hon’ble Supreme Court further held that for all practical purpose for the relevant period, the corporation had become the owner of the vehicle for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred alongwith the insurance policy in existence to the corporation and thus, the insurance company would not be able to escape its liability to pay the amount of compensation.

       In the case at our hands the vehicle in question was sold outright.  It was not transferred for any specific period alongwith the insurance policy as was done in the case which was before the Hon’ble Supreme Court.  The factual matrix of the case before the Hon’ble Supreme Court and that at our hands are completely different and distinguishable from each

Contd………….P/4

 

- ( 4 ) -

other. So, in our considered view the decision upon which the Ld. Lawyer for the complainant relied, cannot be of any help for the complainant.

      On the other hand, in the case of New India Assurance Company Ltd. Vs. Divya Prashad, the Hon’ble National Commission held that since the vehicle was sold for consideration and the fact of transfer of ownership was not intimated to the insurance company which was inviolation of the terms and conditions of the insurance policy, there was no insurable interest of the transferee on the date of accident and consequently no liability of the insurance company was there.  The ratio of decisions in this case is squarely applicable in our case.  In other two cases also the Hon’ble Punjab State Commission held that after the New GR-17 came into force and the transferee had not taken the insurance policy in his own name, the transferee had no insurable interest against the insurance company. Similar view was taken in both the cases before the Hon’ble Punjab state Commission as referred to above.  The ratio of decisions made in both the cases by the Punjab State commission is that after the ownership of the vehicle is transferred, the transferee should within 14 days from the date of transfer apply in writing under recorded delivery to the insurer who has insured the vehicle with all details.  In the present case, it is undisputed that even after about 4 months of purchase of vehicle in question by the complainant from the Op No.2, the complainant did nothing for getting the insurance Policy transferred in his favour.  It is wellknown that no person can take advantage of his own wrong or mistake.  In the present case, the complainant clearly appears to have not complied with the requirements of law.  He did not apply for transfer of insurance in his favour.  The Op-insurance company was in fact kept in the dark about the transfer of the vehicle.  He could only knew about the transfer after the incident of theft and claim made by the complaint.  We think that no law permits the complainant to get the compensation as claimed.  Because on the date of theft the complainant did not have legal and valid insurable interest.

     Consequently, the complainant is not entitled to get the relief as prayed for.  Accordingly the case should fail.

                            Hence, it is,

                                               ordered,

                                                            that the complaint Case No.118/2011 is dismissed on contest but considering the circumstances, without cost.

Dic. & Corrected by me

                                                          I agree                I agree                      

              

         President                                  Member             Member                    President

                                                                                                                  District Forum

                                                                                                              Paschim Medinipur.