DOF.23.10.2009 DOO.27.1. 2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 27th day of January 2011 CC.288/2009 M.Anil Kumar, Mutta House, Kanhirode, P.O.Kanhirode. Complainant (Rep. by Adv.E.R.Vinod ) 1. Manager, ICICI Lombard Insurance Co.Ltd., City Plaza,2nd floor, YMCA Cross Road, Kozhikode. (Rep. by Adv.K.Sajeevn) 2. The Manger, INDUS Ind. Bank Ltd., Rabby Tower, Opp.Railway Station, Kannur. Opposite parties O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay an amount of `40,090 with interest @ 9% per annum from 21.7.08 as claim amount and to pay an amount of `25,000 as compensation together with `2500 as cost of this proceedings. The case of the complainant in brief is as follows: The complainant insured his vehicle with the 1st opposite party, the 2nd opposite party is the financier. The total invoice amount of the vehicle was `40090. Out of which an amount of `27000 was financed by 2nd opposite party. Complainant surrendered the vehicle with the 2nd opposite party on 21.7.08 because of financial stringency. 2nd opposite party acknowledge the surrender. At the time of surrendering the vehicle complainant had requested to adjust the value of the vehicle to the loan account and to return balance amount to complainant after deducting the due amount to 2nd opposite party. 2nd opposite party directed the complainant to contact after one week. When he went there after one week he came to know that the vehicle was stolen from the custody of 2nd opposite party and the 2nd opposite party lodged a complaint regarding the incident on 25.7.08 before the SHO, Kannur Town Police station and then registered a crime as 588/2008. As per the request of 2nd opposite party for getting the insurance benefit from 1st opposite party the complainant had comply all the requirements. During the time of theft the vehicle was in the custody of 2nd opposite party. So 2nd opposite party instructed complainant to issue an authorization letter in favour of 2nd opposite party to receive the insurance claim benefit and thus the complainant issued the authorization letter to 2nd opposite party. But even after one year after the incident the 2nd opposite party did not pay the claim amount which the complainant is legally entitled. The 2nd opposite party also did not take any sincere effort to get the same. This is a clear intention to deficiency of service and unfair trade practice from both the opposite prates. Even after receiving the refer notice from the police authorities both opposite parties did not care to discharge their legal liabilities. But colluding each other both the opposite parties are trying to deny the legal right of the complaint and acting against the interest of the complainant with some ulterior motives. The complaint is only liable to pay the balance due amount with interest only up to 21.7.08 to the 2nd opposite party since the complainant had surrendered the vehicle on that day. Even though complainant contacted the opposite parties several times both in person and over telephone in order to get the claim amount but they were not respond positively by dragging one or other lame excuses. Even after receiving the letter dt. 18.5.09 from the complainant both parties keeping mum. It is a great misconduct and unfair trade practice on the part of opposite parties. It caused much agony to the complainant. Lawyer notice was sent on 24.7.09 it was acknowledged on 27.7.09 by 1st opposite party and on 25.7.09 by 2nd opposite party. Both parties neither sent reply nor paid the amount. The silence even after receiving the lawyer notice is an admission on the part of opposite parties that the claim of the complainant is reasonable. The model of the vehicle was 2007 and the total invoice amount was ` 40,090. The date of contract of loan was on 29.8.07 and the vehicle was surrendered on 21.7.08, hence it is clear that at the time of theft of the vehicle it was having hardly one year age. The compliant is entitled to get an amount of `40,090 as claim amount. So also interest and compensation. Hence this complaint. Pursuant to the notice opposite parties 1 and 2 entered appearance and filed version. The brief facts of the version filed by 1st oppsoit party are as follows: This opposite party was the insurer of motor cylcle KL.13/R.7900. The policy of insurance stand in the name of the complainant Anilkumar. The complaint was the owner in possession of the vehicle in question up to 21.7.08. The complainant surrendered his ownership of the vehicle to 2nd opposite party on 21.7.08.The surrender slip was obtained by him from 2nd opposite party. There after 2nd opposite party became the owner in possession of the vehicle in question from 21.7.08. The motor cycle was kept in the premises of 2nd opposite party. The vehicle was stolen from his premises on 21.7.08. It was reported to police only on 25.7.08. The delay in lodging the FIR was not known only to complainant and 2nd opposite party. This opposite party was intimated regarding the theft only on 1.8.08. Since the 2nd opposite arty became the transferee owner of the vehicle. The 2nd opposite party has step in to the shoes of the complainant. There was no privity of contract between 2nd opposite party and this opposite party. No effective step was initiated by the 2nd opposite party or the complainant to transfer the policy in the name of 2nd opposite party. No authorization was given by the complainant to the 2nd opposite party as alleged. There is no insurable interest between the 2nd opposite party and 1st opposite party. The fact of repudiation was intimated to the concerned parties in time by this opposite party. No unfair trade practice was done by the 1st opposite party as alleged. The value and age of the vehicle shown are without any basis. The liability if any of this opposite party is subject to the terms and conditions of the policy issued to the complainant. This opposite party is not liable to pay any amount to the compliant. Hence to dismiss the complaint. The version filed by 2nd opposite party is as follows:- It is true that the complainant availed loan from 2nd opposite party for purchasing the vehicle KL.13/R.7900. The total invoice amount of the vehicle was `40090. Out of this amount complainant availed loan for an amount of `27,000 on 29/3/07 from 2nd opposite party. The complainant surrendered the vehicle on 21.7.08 since he could not repay the loan amount. Surrendered letter was also issued by the complainant to the 2nd opposite party. The vehicle was stolen on the same day and complanant was lodged before the Town police Kannur and a case was registered on the basis of the complaint as crime No.588/08. 2nd opposite party supplied all the relevant documents in respect of the vehicle to complainant so as to get the insurance amount from 1st opposite party. The complainant also informed all the documents were received and produced before 1st opposite party. Though complainant alleged that there are deficiency in service on the part of 2nd opposite party it does not contain what is the deficiency committed by the 2nd opposite party. But at the same time 2nd opposite party has given all the relevant documents together with legal opinion. So that 2nd opposite party is not liable for any mental agony or economic loss in not getting the insurance amount from the 2nd opposite party. Opposite party did not reply to the legal notice dt.25.7.09 is not intentional. It is because of the fact that 2nd opposite party has no role for the loss sustained by the complainant. There is no deficiency in service on the part of 2nd opposite party hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, DW1 & DW2, Exts. A1 to A8 and B1 to B5. Issue Nos.1 to 3 It is an admitted case that complainant availed loan from 2nd opposite party for an amount of `27,000 and the vehicle was insured with 1st opposite party. Complainant surrendered the vehicle with 2nd opposite party on 21.7.08. The vehicle was stolen from the custody of 2nd opposite party. The complaint was lodged by 2nd opposite party before Kannur Town Police station and a crime registered as 588/2008. The case of the complainant is that though he has comply all the requirements in presenting the claim before 1st opposite party including submission of the relevant documents and necessary application. The claim was repudiated by 1st opposite party without justifiable reason. It is a result of collusion of both opposite parties and playing unfair trade practice in order to deny the legal right of the complainant. Complainant is entitled for the claim amount and2nd opposite party is liable to give the balance amount after adjusting the due amount. The case of 1st opposite party on the other hand is that the 2nd opposite party became the transferee owner after the surrender of the vehicle by the complainant. There is no privity of contract between the 2nd opposite party and 1st opposite party the 2nd opposite party has not taken effective steps to transfer the policy in his name. Complainant was not given authorization to 2nd opposite party and there is no insurable interest between 2nd opposite party and 1st opposite party and the fact of repudiation was intimated to concerned parties. 2nd opposite party contended that he has given to the relevant documents to complainant and he has no role in allowing the insurance amount and he is not liable for any loss out of non receiving the insurance amount. Complainant sent legal notice to opposite parties 1 and 2 on 24.7.09. Ext.A4 and A5 proves that the notice has been sent to both opposite parties. All the facts narrated in the complaint have been seen written in the notice sent to opposite parties. It was specifically called upon the notice that 1st opposite party is required to pay the claim amount to complainant after adjusting the principal loan amount with interest only up to 21.7.08 to 2nd opposite party. It has also written that as per the request of 2nd opposite party complainant had complied all the requirements including submitting of all the relevant documents which includes the duly filled up claim form and original insurance policy copy and all other documents. It has also stated that complainant has already issued authorization letter infavour of 2nd opposite party to get the insurance claim benefit. Complainant also alleged that even after one year of the incident the 1st opposite party did not pay the claim amount and the 2nd opposite party did not take any sincere effort to get the same. It can be seen that though complainant has specifically alleged his case in notice none of the opposite parties sent reply to the legal notice. Non reply of this notice itself reveals that there is unfair trade practice committed by opposite parties 1 and 2. Opposite parties have no case that the complainant has not complied with the requirement of submitting claim form and original insurance policy copy and other documents. Opposite party contended that surrender slip was obtained by complainant from 2nd opposite party. That means the concerned document had been produced before 1st opposite party and 1st opposite party is well aware that 2nd opposite party is transferee owner. The vehicle was stolen on 21.7.08 and the theft was intimated opposite party on 1.8.08 within a span of 10 days. Opposite party contended that it is contrary to the contract entered into between the complainant and 1st opposite party. Hence the claim was repudiated. 1st opposite party did not produce any document to substantiate his contention. He has repeatedly stated in affidavit, evidence that “ The 1st opposite party’s act of repudiation is legal as per clause 1 of conditions in the insurance policy. As the second opposite party alone has intimated the loss that too with delay of 5 days the claim can be rejected”. Company has been informed the theft within five days. What does clause(1) says is that “In case of theft or other criminal act which may be the subject of a claim under the policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”. The facts of the case reveal that the vehicle in question was stolen on 21.7.08. 1st opposite party admitted that information of theft received but with a delay of 5 days. It can be seen that at the time of theft, the vehicle was in the custody of 2nd opposite party. Complainant alleged that as per the instruction of 2nd opposite party he has issued an authorization letter in favour of 2nd opposite party to receive the insurance claim benefits from the 1st opposite party. 1st opposite party raise three grounds (a) lack of security (b) Delay in lodging FIR (c) and delay in giving due intimation to the company by the insured. It is the 2nd opposite party who has to keep the vehicle in safe custody since it was surrendered to him by complainant. As far as the second point is concerned 2nd opposite party is responsible for the delay in informing the police since the vehicle was in his custody. So also it can be seen that 2nd opposite party became the transferee owner from the date of surrender i.e. from 21.7.08 onwards and 2nd opposite party has the obligation to inform the incident immediately to 1st opposite party. 2nd opposite part has no case that complainant did not follow the directions given by them. Complainant alleged that he has submitted claim form and all other documents before 1st opposite party as directed by 2nd opposite party. That is not denied by 2nd opposite party. 1st opposite party contended that no effective step was initiated by the 2nd opposite party or the complainant to transfer the policy in the name of 2nd opposite party. It is a fact that the vehicle was stolen on the same day of surrender. Even then 1st opposite party admits that if effective steps have been taken to transfer the policy, things would have been alright. Whatever maybe the technicalities if there is insurance there will be insurable interest. 1st opposite party do not explain what is preventing them from allowing the claim to party to whom with insurable interest lies. 1st opposite party also contended that no authorization was given by the complainant to the 2nd opposite party as alleged. Who told opposite party that it is not given by the complainant? What is the interest of 1st opposite party to enquire whether authorization given to 2nd opposite party or not? Here arose reasonable doubt that there is collusion with opposite parties 1 and 2. 2nd opposite party is responsible for the delay which has been taken as main ground to repudiate the claim. It cannot be ignored both opposite parties kept mum after getting the legal notice of complainant without answering to the allegation of complainant. That itself is a clear cut deficiency in service as far as this case is concerned. It can be seen that legal notice has been send on 24.7.09 in which complainant has specifically written that the authorization letter has been issued to 2nd opposite party. 1st opposite party is aware that complainant has the case that it is given to 2nd opposite party. Version filed much after filing the complaint. 1st opposite party raise contention in version for and on behalf of 2nd opposite party that the complaint has not issued authorization letter purposefully to save 2nd opposite party. 2nd opposite party also contended that same point. Hence there is no doubt that there is collusion between opposite parties 1 and 2 for the purpose of avoiding the complainant and to escape from the liability. Hence there is no doubt that there is unfair trade practice on the part of opposite parties 1 and 2. There is no justification in denying the claim amount to complainant. Hence we are of opinion that complainant is entitled to get the claim amount after adjusting the principal loan amount with interest up to the date of surrender 21.7.08 to 2nd opposite party. Thus the issues 1 to 3 are found infavour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay the claim amount to complainant after adjusting the principal loan amount with interest up to the date of surrender of the vehicle 21.7.08 to second opposite party. The complainant is also entitled to get `1000 (Rupees One Thousand only) as cost of this litigation. Comply the order within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1 & A2. Copy of letter dt.18.5.09 sent to OPs A3. Copy of the lawyer notice sent to Ops. A4 & A5. Postal Ads A6. RC Book of the vehicle A7. Copy of statement of account issued by 1st OP A8. Copy of FIR in Cr.588/08 of JFCM (I),Kannur. Exhibits for the opposite party B1. Copy of claim form for motor vehicle submitted by complainant B2. Letter dt.19.12.08 sent by complainant B3. Copy of FIR B4. Copy of certificate cum policy schedule B5. Copy of the letter dt.31.3.09 sent to complainant Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: DW1.Viju Janardhanan DW2.Pramodh /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
