KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 90/2011
JUDGMENT DATED:11-07-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI.M.K. ABDULLA SONA : MEMBER
1. The Manager,
M/s ICICI Lombard General Insurance-
Co. Ltd., Maximus Commercial Complex,
C-22, 2nd floor, 2 HH road, Opp. KMC,
Mangalore-575 001.
2. Authorised Signatory,
M/s ICICI Lombard General Insurance-
Co. Ltd., Zenith House, Corporate Office,
Kashorao Khader Marg. Mahalaxmi, : APPELLANTS
Mumbai – 400 034.
3. Anoop, ICICI Lombard Executive,
City Centre, Bank Road,
Kasaragod.
(By Adv: Sri.Prasannakumaran Nair)
Vs.
1. Abdul Hameed.P.M,
S/o Muhammed Haji,
R/at Kandathil House, Poochakkad.P.O,
Keekan, Hosdurg Taluk, Kasaragod as agent
Of Shameer Koolikkad, H.No.11/296,
M.A.House, South Chithari, Chithari.P.O, RESPONDENT
Hosdurg Taluk, Kasaragod Dist.
2. Abdul Shameer, SS com, 1st floor,
Citty Centre, Bank road, Kasaragod.
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellants are the opposite parties 1, 2 and 4 and respondents are the complainant and 3rd opposite party respectively in CC.171/09 on the file of CDRF, Kasaragod. The complaint was filed by one Abdul Hameed P.M as representative/agent of Shameer, Koolikkad claiming compensation on the ground of deficiency of service on the part of the appellants/opposite parties 1,2 and 4 in repudiating the insurance claim with respect to the insured vehicle bearing registration No.KL-14 E 8130. The opposite parties 1, 2 and 4 (appellants) entered appearance and filed written version denying the alleged deficiency of service. They challenged the maintainability of the complaint because the complainant, Abdul Hammed had no locustandi to file the complaint on behalf of Shameer, Koolikkad. They also contended that the insured, Shammer Koolikkad had transferred his vehicle to a 3rd party and that the complainant Abdul Hameed is the defacto owner of the insured vehicle. Thus, the appellants/opposite parties justified their action in repudiating the insurance claim preferred by the complainant.
2. Before the Forum below Exts.A1 to A3 documents were marked on the side of the complainant. The Manager of the opposite party, ICICI Lombard General Insurance Company Limited was examined as DW1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:31st August 2010 directing the opposite parties to pay a sum of Rs.90,000/- with interest at the rate of 9% per annum from the date of complaint till payment to the complainant, Abdul Hameed. The opposite parties are also directed to pay cost of Rs.3000/- to the complainant, Abdul Hameed. Hence the present appeal by the opposite parties 1, 2 and 4.
3. Admittedly, the vehicle bearing registration No.KL-14 E 8130 was insured with the opposite party/ICICI Lombard General Insurance Company Limited. There is no dispute that Mr.Shameer Koolikkad was the registered owner and insured of the vehicle, at the time of taking the insurance policy for the said vehicle. The appellants have got a case that Shameer Koolikkad had transferred his right over the vehicle one year prior to the taking of the policy. But the appellants have not adduced any evidence to substantiate their case regarding the transfer of the vehicle by the insured Shameer Koolikkad to a 3rd party. The appellants have also failed to adduce any evidence in support of their contention that the present complainant, Abdul Hameed is the defacto owner of the insured vehicle. It is to be noted that the appellant/opposite party, ICICI Lombard General Insurance Company Limited had the bounden duty to verify the vehicular documents and to ascertain the fact as to whether Shameer Koolikkad is having any insurable interest in the insured vehicle on the date of taking the insurance policy. The issuance of the policy in the name of Shameer Koolikkad is an admitted fact. So, it can only be presumed that Shameer Koolikkad was having the insurable interest in the vehicle on the date of the policy. Thereby the appellant/opposite party, ICICI Lombard General Insurance Company Limited being the insurer of the vehicle is bound to indemnify the insured with respect to the damage caused to the insured vehicle.
4. The complainant, Abdul Hameed has come up with the complaint in CC.171/09 in his capacity as the agent or representative of the insured Shameer Koolikkad, but the complainant Abdul Hameed miserably failed to prove his case that he is an authorized agent of the insured Shameer Koolikkad. The complainant has also failed to produce the so called authorization or power of attorney executed by the insured Shameer Koolikkad in favour of the complainant Abdul Hameed. If that be so, the Forum below cannot be justified in directing the appellants/opposite parties to pay the insurance amount to the complainant Abdul Hameed. It is further to be noted that the complainant, Abdul Hameed has not come forward to depose in support of his case in the complaint. Thus, in all respect it can very safely be concluded that the complainant, Abdul Hameed was not having any authorization to represent the insured Shameer Koolikkad. So, the impugned order passed by the Forum below directing the appellants/opposite parties to pay compensation to the complainant, Abdul Hameed is legally unsustainable and the impugned order is liable to be cancelled. Hence we do so.
5. Considering the facts and circumstances of the case, the complainant, Abdul Hameed is to be given an opportunity to produce the authorization or power of attorney said to have been executed by the insured Shameer Koolikkad. So, this is a fit case to be remitted back to the Forum below to consider the relevant aspects of the case afresh and to pass an order on merits.
6. Appellants have got a case that the insured Shameer Koolikkad had no insurable interest in the insured vehicle KL-14 E 8130 on the date of the accident. It is interesting to note that the date of the accident is not mentioned in the complaint or in the affidavit filed in lieu of examination in chief. More over, the registration certificate of the vehicle is also not forthcoming from the side of the complainant or the insured. It is the definite case of the appellants that the insured, Shameer Koolikkad transferred his interest in the vehicle to the present complainant Abdul Hameed and that the insured was not having any sort of right over the insured vehicle on the date of accident. There can be no doubt about the fact that the burden is heavily upon the appellants/opposite parties to substantiate their contention that the insured Shameer Koolikkad had no insurable interest in the vehicle on the date of the accident. Unfortunately, appellants failed to adduce any evidence in support of the aforesaid contention. So, the appellants are also given an opportunity to adduce further evidence in support of their contention regarding the transfer of the vehicle and that the insured Shameer Koolikkad had no insurable interest in the vehicle on the date of the accident. Thus, in all respects the matter is to be remanded to the Forum below for fresh consideration of the matter and disposal of the same on merits.
In the result, the appeal is allowed. The impugned order dated:31/8/2010 passed by CDRF, Kasaragod in CC.171/09 is set aside and the matter is remanded to the Forum below for fresh consideration and disposal of the same on merits. It is made clear that the parties to the complaint in CC.171/09 are at liberty to adduce further evidence in support of their respective pleadings in the aforesaid case. As far as the present appeal is concerned, parties are directed to suffer their respective costs throughout.
Parties are directed to appear before the Forum below on 27/8/2011.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
