National Consumer Disputes Redressal
The New India Assurance Co. Ltd. vs Sanjib Nandi Majumder on 5 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1224 OF 2012 (Against the order dated 02.01.2012 in First Appeal No. 25/2011 of the State Commission Tripura) The Branch Manager ........ Petitioner The New India Assurance Co. Ltd. Agartala Branch, 4 Mantribari Road Agartala, Tripura, West Through its authorized and Constituted attorney Manager, The New India Assurance Co. Ltd. Regional Office No.1, Level-V, Tower-II, 124, Jeewan Bharti Building Connaught Place, New Delhi 110001 Vs. Sanjib Nandi Majumder ......... Respondent s/o Shri Nirmal Jyoti Majumder r/o Ramnagar, Road No. 4/5 P.S. West Agartala, District West Tripura BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr.A.K.Raina, Advocate For the Respondent : Ms.Aditi Mittal, Advocate PRONOUNCED ON : 05th September, 2013 ORDER
This revision petition is directed against the order of the State Commission dated 02.01.2012 whereby the State Commission, Tripura accepted the appeal against the order of the District Forum, West Tripura, Agartala and issued following directions:-
7.
For the reasons aforementioned we allow this appeal and direct the insurer to pay assured sum of Rs.4,55,000/- (four lakhs fifty five thousand) plus Rs.2,00,000/- (two lakhs) towards compensation. The entire amount of Rs.6,55,000/- shall carry interest @ 9% from the date of filing the complaint petition. The Insurance Company shall also pay Rs.15,000/- (fifteen thousand) as cost of this appeal which has to be deposited in the Legal Aid Account of this Commission. The entire amount shall be paid within two months from today failing which the rate of interest will be 12% p.a. from the date after expiry of two months without prejudice to other action that can be taken for enforcement of this order.
2. Briefly put facts relevant for the disposal of this revision petition are that respondent Sanjib Nandi Majumder filed a consumer complaint under section 12 of the Consumer Protection Act, 1986 against the petitioner / opposite party before the Distrct Consumer Forum , West Tripura, Agartala, claiming that his brother Rajiv Nandi Majumder purchased truck number AS-OIR-9961 from the registered owner Dulal Deb on 23.03.2007. The truck at the time of sale was insured in the name of Dulal Deb with the petitioner / insurance company. Rajib Nandi Majumder got the ownership of the truck transferred in the registration certificate. On 25.07.2007, the truck accidentally fell into a gorge 40 feet deep at Jaintia Hill near Sonapur.
Rajib Nandi Majumder died in the accident and driver as well as the assistant sustained serious injuries. Accident was reported to the police at Omking Outpost, Sonapur, Mehrauli and the insurance company was also informed about the loss of truck. The Surveyor appointed by the insurance company allegedly visited the spot of accident four months later and sought various documents to substantiate the claim from the father of the deceased. Relevant documents were submitted to the surveyor. The Opposite Party, however, failed to settle the claim. Feeling aggrieved, Sanjib Nandi Majumder filed the claim in his personal capacity as also the attorney of the parents of the deceased.
3. The petitioner / opposite party contested the complaint mainly on two grounds i.e. at the time of accident. Rajib Nandi Majumder had no insurable interest in the truck in question as it was owned by Dulal Deb. It was also pleaded in the written submissions that the surveyor on spot visit did not find any trace of damaged truck and since the truck could not be traced, the assessor was prevented from estimating the loss.
4. On consideration of evidence the District Forum held that Late Rajib Nandi Majumder was the owner of the vehicle. However, the complaint was dismissed on the ground that complainant had failed to establish the accident of the vehicle. Being aggrieved of the order of the District Forum, the respondent / complainant preferred an appeal before the State Commission Tripura. The State Commission on consideration of the record of the District Forum concluded that non-availability of the wreckage of the truck in question was due to the delay on the part of the petitioner / opposite party to send the surveyor. The State Commission, thus, accepted the appeal and directed the petitioner / opposite party to pay to the respondent a sum of Rs.4,55,000/- against the insurance claim plus Rs.2,00,000/- as compensation with 9% interest thereon from the date of filing of the complaint. Besides the above amount, cost of Rs.1500/- was also imposed on the insurance company to be deposited in the Legal Aid Account of the State Commission. It was also directed the entire amount shall be paid within two months failing which the rate of interest shall be 12% p.a. from the date of expiry of two months.
5. Shri A.K. Raina, Advocate, learned counsel for the petitioner / opposite party has assailed the impugned order on the ground that order of the State Commission is based upon incorrect appreciation of the evidence. Firstly, it is contended that State Commission has committed a grave error in failing to appreciate that the complaint was not maintainable as there was no privity of contract between the respondent / complainant and the petitioner / opposite party. Expanding on the argument, learned counsel for the petitioner contended that perusal of the complaint would show that it has been filed in the name of Sanjib Nandi Majumder who admittedly was not the owner of the registered vehicle. Thus, he could not have maintained the consumer complaint.
6. We do not find merit in this contention. On perusal of the complaint, we find that this complaint has been filed on behalf of the legal heirs of Rajib Nandi Majumder who died in the accident and who was claimed to be the registered owner of the vehicle in question. Since Rajib Nandi Majumder had died in the accident, his legal heirs surely had the right to maintain the consumer complaint. No doubt in the title of the complaint filed before the District Forum, respondent Sanjib Nandi Majumder is described as the complainant but in para 1 of the complaint, respondent has made it clear that he has filed the complaint as Attorney of the parents of the deceased Rajib Nandi Majumder who obviously after his death are his legal heirs.
It is not the case of the petitioner that deceased Rajib Nandi Majumder had left behind any other legal heir besides his parents. Thus, the complaint preferred by the respondent against the petitioner is maintainable provided Rajib Nandi Majumder at the time of accident was the owner of the insured truck and there was no impediment in Rajib Nandi Majumder maintaining the complaint if he had not died in the accident. In this regard, registration certificate of the vehicle assumes importance. On perusal of the order of the District Forum, we find that while dealing with this aspect in para 6.2. of the order, District Forum concluded that on the date of the accident, Rajib Nandi Majumder was the owner of the vehicle. The relevant observation of the District Forum is reproduced thus:
The registration certificate of the vehicle shows an entry in the back page in the name of Rajib Nandi Majumder as transfer and the entry was made by the District Transport Officer Kamrup on 25.07.07. It was a peculiar entry and on the basis of what the entry was made nothing was mentioned.
On behalf of the District Transport Officer someone put signature and a seal was put at the bottom in the last page of the registration certificate. Anyway based on that entry we may arrive at a decision that Rajib Nandi Majumder was the owner of the vehicle.
7. Learned counsel for the petitioner has also contended that even if it is assumed that the ownership of the vehicle was transferred in the registration certificate, that by itself does not transfer the insurance policy in the name of the transferee because he had not taken any step to get the insurance policy obtained by the previous owner transferred in his name. In order to appreciate this contention, it is necessary to have a look on section 157 of Motor Vehicle Act, which is reproduced thus:
157. Transfer of certificate of insurance : (1) Where a person in whose favour the certificate of insurance has been issued in accordance with the provisions of this Chapter transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate shall be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred with effect from the date of its transfer.
(Explanation.- For the removal of doubts, it is hereby declared that such deemed transfer shall include transfer of rights and liabilities of the said certificate of insurance and policy of insurance.) (2) The transferee shall apply within fourteen days from the date of transfer in the prescribed form to the insurer for making necessary changes in regard to the fact of transfer in the certificate of insurance and the policy described in the certificate in his favour and the insurer shall make the necessary changes in the certificate and the policy of insurance in regard to the transfer of insurance.
8. On reading of the above, it is clear that if an insured owner of the vehicle transfers the ownership of the vehicle to another person, the certificate of insurance and the policy described in the certificate shall automatically get transferred to the transferee of the motor vehicle.
9. Clause ( 2) of section 157, however, puts a rider and casts an obligation on the transferee to apply within 14 days from the date of transfer of vehicle to the insurer for necessary changes in regard to the fact of transfer in the certificate of insurance and the insurance policy. No doubt in the instant case, no application of transfer of insurance policy under section 157 (2) of the Motor Vehicle Act was made. However, from the record, it is evident that accident took place on the date on which the ownership of the vehicle was transferred in the registration certificate.
The period of 14 days for applying transfer of insurance policy had not lapsed. As such the petitioner cannot take advantage of non-compliance of section 157 (2) of the Motor Vehicle Act because the accident took place on the date of transfer of registration.
10. The next ground taken by the petitioner is that the State Commission has failed to appreciate that allegation of accident resulting in the vehicle felling into a gorge is highly doubtful as the Surveyor did not find any trace of damaged vehicle at the spot of accident.
This aspect has been dealt by the State Commission in para 6 of the impugned order which is reproduced thus:
The other ground taken by the insurer is that there was no trace of the damaged vehicle and, therefore, the accident involving the vehicle is doubtful. The District Forum appears to have accepted that argument.
But we do not agree with such a view.
It is apparent from the record that the vehicle with heavy load of fertilizer had fallen into a deep gorge about 400 ft. down the road. The vehicle was completely damaged as it had fallen on a river side the damaged parts might have gone into the river. For long four months no investigation was done by the insurer. It is very much possible that the miscreants might have, during this period, taken away some broken parts of the vehicle which did not go into the river. There is no reason to disbelieve the police record and other documentary evidence about the accident. The circumstances are so eloquent that the principles of res-ipsa-loquitor would apply for taking a view that the vehicle was involved in the said accident causing the death of the deceased.
It is to be understood that as there was no change in the record of the insurer about the change of ownership, Sri Dulal Deb, the original owner made the claim on behalf of the legal heir of the deceased owner. But later, when the father of the deceased entered into the scene Sri Deb ceased to make any claim. The insurance policy shows that the policy was for Rs.4,55,000/-.
We hold that for non availability of the damaged vehicle the insurer was entirely responsible and, therefore, liable to pay the assured amount with interest from the date of filing of the petition. The value of the vehicle was Rs.7,09,118/- in February 2004 when it was manufactured. The value of such a vehicle came to be Rs.9,48,011/- in 2008. The accident had occurred in July 2007. Therefore, the full amount assured in the policy should be the liability of the insurer.
11. We do not find any fault with the approach adopted by the State Commission.
From the record, it is evident that accident was reported to the police on the same day and the police investigation did not find the report to be false. It is undisputed that Rajib Nandi Majumder died at the spot and driver as well as his assistant sustained injuries. This could not have happened unless the truck met with an accident. Further, investigation into the claim of loss of vehicle in the accident was conducted by the petitioner / insurer after inordinate delay of four months. Therefore, if after such a delay there was no trace of vehicle which as per the claimant had fallen in a 400 deep gorge, the complainant cannot be disbelieved particularly when the police investigation does not dispute the correctness of allegation of accident. Thus, we tend to agree with the finding of the State Commission.
12. In view of the discussion above, we do not find any illegality or material irregularity in the impugned order of the State Commission which may call for interference in exercise of the revisional jurisdiction. Revision petition is, therefore, dismissed with cost of Rs.25000/- to be deposited by the petitioner with Consumer Legal Aid Account of this Commission within four weeks.
Sd/-.
(AJIT BHARIHOKE, J) ( PRESIDING MEMBER) Sd/-
(SURESH CHANDRA) MEMBER Am/