KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

   APPEAL  NO. 696/2004

                                 JUDGMENT DATED:23..06..2010.

PRESENT

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

SRI.M.K. ABDULLA SONA                                   : MEMBER

Manager,

National Insurance Company Ltd,

Kasaragod Branch, IInd floor,

High Lane Plaza, M.G.Road,                                : APPELLANT

Kasaragod.

(By Adv:Sri.Rajan.P.Kalliyath)

            Vs.

1.         Ahamad Kutty, S/o Abdul Rahiman,

Badaja House, Urlandy, Puttur,

Now residing at Arimala House,

Kadambar Village and Post,

Kasaragod Taluk.

(By Adv:Sri.S.V.Balakrishna Iyer)

                                                                        : RESPONDENTS

2.         U.M.ibrahim, S/o Hussain,

Nishana Manzil, Margathale Uliya,

Permanoor Post, Mangalore, D.K.District.

                                        JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant was the 1^st opposite party and respondents 1 and 2 were the complainant and 2^nd opposite party respectively in OP.244/03 on the file of CDRF, Kasaragod.  The complaint therein was filed alleging deficiency of service on the part of the 1^st opposite party in repudiating the insurance claim preferred by the complainant with respect to the insured motor cycle bearing registration No.KA-19-L-778.  The 1^st opposite party entered appearance before the Forum below and filed written version denying the alleged deficiency of service.  The insurance company contended that the complainant had no insurable interest in the insured vehicle on the date of theft of the vehicle and thereby the 1^st opposite party/insurance company justified their action in repudiating the insurance claim preferred by the complainant.

2. The 2^nd opposite party, the registered owner and the insured of the motor cycle bearing registration No.KA-19-L-778 remained absent through out the proceedings in OP.244/03.

3. Before the Forum below Exts.A1 to A12 documents were marked on the side of the complainant and Exts.B1 to B6 documents on the side of the 1^st opposite party.  Witness from the side of the 1^st opposite party was examined as DW1.  No oral evidence was adduced from the side of the complainant.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated:19^th May 2004 directing the 1^st opposite party/National Insurance Company Ltd to pay to the complainant a sum of Rs.27,000/- towards the value of the insured vehicle with compensation of Rs.1500/- and cost of Rs.500/-.  Aggrieved by the said order, the present appeal is filed by the 1^st opposite party/Insurance company.

4. We heard the learned counsel for the appellant/1^st opposite party.  There was no representation for respondents 1 and 2.  First respondent/complainant had entered appearance through counsel of his choice;  But there was no representation for the 1^st respondent.  The 2^nd respondent/2^nd opposite party remained absent through out this appeal proceedings.

5. The learned counsel for the appellant/1^st opposite party, National Insurance Company had submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He pointed out the fact that on the date of the theft (16-6-2002) the 1^st respondent/complainant had no sort of right or ownership over the insured vehicle bearing registration No.KA-19-L-778 and that admittedly the complainant got the vehicle transferred into his name only on 15-7-02.   It is further submitted that the 2^nd respondent/2^nd opposite party, the owner and insured of the vehicle has not preferred any claim with respect to the theft of the vehicle.  It is also pointed out that there was no privity of contract between the appellant/1^st opposite party and the complainant with respect to the insured vehicle bearing registration No.KA-19-L-778 and there is also no evidence forthcoming to show that on 16/6/002 the complainant had right or ownership over the insured vehicle.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.

6. There is no dispute that the motor cycle bearing registration No.KA-19-L-778 was insured with the appellant/1^st opposite party/ National Insurance Company Limited and during the subsistence of the policy of insurance the said vehicle was stolen on 16/6/2002.  Admittedly on 16/6/2002 the 2^nd respondent/2^nd opposite party was the registered owner of the motor cycle bearing registration No.KA-19-L-778 and that the said vehicle was insured in the name of the 2^nd opposite party, U.H.Ibrahim.  No document is forthcoming from the side of the 1^st respondent/complainant to show that he had purchased the vehicle from the registered owner and insured, U.H.Ibrahim on or before 16/6/2002, the date on which the vehicle was stolen.

7. It is alleged by the complainant that he purchased the insured vehicle on 7/6/2002 for a sum of Rs.40,000/-; but the complainant could not produce any piece of paper to support his case that he had purchased the insured vehicle on 7/6/2002.  On the other hand, the registration certificate of the vehicle would show that the vehicle was transferred into the name of the complainant only on 15/7/2002.  It would show that on the date of theft of the vehicle on 16/6/2002, the complainant had no manner of right or ownership over the vehicle.  This would give an indication that the complainant had no insurable interest in the said vehicle on 16/6/2002.  If that be so, the complainant is not entitled to get any insurance claim with respect to the insured vehicle bearing registration No.KA-19-L-778.

8. The complainant reported the police about theft of the vehicle.  The police was informed about theft of the vehicle on 17/6/2002.  Based on the first information given by the complainant, the police registered A5 FIR as crime No.223/02 of Manjeshwar Police Station.  Ext.A5 FIR would show that the complainant had given the statement to the police to the effect that he purchased the vehicle from one Nazeer.  The Forum below ignored the aforesaid FI statement given by the complainant regarding the purchase of the vehicle from Nazeer.  It is to be noted that there is nothing on record to show that at any point of time the insured vehicle was owned by a person by name Nazeer.  The complainant has not given any explanation for giving such a statement to the police in connection with lodging of crime No.223/02.  This is a circumstance that would create genuine doubt about the right and ownership of the complainant over the insured vehicle.  This circumstance would also give an indication that on 16/6/2002 the complainant had no idea about the right and ownership of the vehicle.  At any rate, it can be concluded that on 16/6/2002 the complainant in OP.244/03 had no right or ownership or insurable interest in the insured vehicle.

9. The complainant informed the 1^st opposite party/insurance company about theft of the vehicle only on 30/7/02.  No explanation is forthcoming from the side of the complainant for the aforesaid delay of more than one month in informing the insurer of the vehicle about the theft.  There is no evidence available on record to show that the complainant approached the 1^st opposite party prior to 30/7/02 intimating theft of the vehicle and preferring the insurance claim with respect to the insured vehicle.  This circumstance would also strengthen the case of the 1^st respondent/1^st opposite party/insurance company that on 16/6/02, the date of theft of the vehicle, the 1^st respondent/complainant had no insurable interest in the insured vehicle.

10. The 1^st respondent/complainant has not filed any document evidencing purchase of the insured vehicle from the 2^nd opposite party, U.H.Ibrahim on or before 16/6/02.  It is to be noted that the 2^nd respondent/2^nd opposite party was not interested in preferring a claim.  He has not given any authorization to the complainant to prefer the claim with respect to the insured vehicle.  The only person having the right and authority to prefer the insurance claim was only the 2^nd opposite party, U.H.Ibrahim, the registered owner and insured of the vehicle.  The 2^nd opposite party was the registered owner and insured of the vehicle on the date of the peril, ie on the date of theft of the vehicle ie on 16/6/2002.  But the 2^nd opposite party has not preferred any claim.  The 2^nd opposite party has also no case that the complainant was the owner of the vehicle on 16/6/02.  Thus, it can very safely be concluded that on the date of the peril there was no privity of contract between the complainant and the 1^st opposite party/insurance company and so the insurance claim preferred by the complainant for getting the insurance amount with respect to the insured vehicle based on theft of the vehicle on 16/6/02 cannot be entertained.  The 1^st opposite party/insurance company has rightly repudiated the insurance claim preferred by the complainant.

11. The Forum below has not appreciated the facts, circumstances and the admitted evidence on record in its correct perspective.  The Forum below omitted to note the fact that there was no privity of contract between the complainant and the 1^st opposite party/insurance company.  The Forum below also omitted to note the important fact that there was no material available on record to show the insurable interest of the complainant over the insured vehicle.  The mere fact that the stolen vehicle bearing registration No.KA-19-L-778 was insured with the 1^st opposite party/National Insurance Company Limited cannot be taken as a ground to hold that the complainant is entitled to get the market value of the stolen vehicle.  The complainant has to establish his right over the insured vehicle on the date of the peril.  But the complainant miserably failed to prove his insurable interest in the vehicle.  In such a situation, the Forum below has gone wrong in allowing the insurance claim preferred by the complainant. 

12. The mere fact that the approved surveyor estimated the market value of the insured vehicle at Rs.27,000/- cannot be taken as a ground to hold that the 1^st opposite party/insurance company is liable to pay the said amount to the complainant.  The fact that subsequently on 15/7/02 the complainant got the insured vehicle transferred in his name cannot be treated as sufficient ground to allow the insurance claim with respect to the insured vehicle which was stolen on 16/6/02.  The lodging of a complaint before the police regarding theft of the vehicle stating that he is the owner of the vehicle cannot be treated as a reasonable and sufficient to hold that the complainant was the owner of the vehicle or that he was having insurable interest in the vehicle on the date of the peril.  It is to be noted that anybody can prefer a police complaint with respect to  criminal offence.  Theft of the vehicle is a criminal offence and that every citizen has got a duty to inform the police about commission of offence.  So, lodging of a police complaint would not make the complainant eligible to get the insurance claim.  A perusal of the statement given to the police would give an indication that he was not the owner in possession of the vehicle on the date of theft of the vehicle.  Thus, in all respects the impugned order passed by the Forum below is liable to be quashed.   Hence we do so.

In the result the appeal is allowed.  The impugned order dated:19/5/04 passed by CDRF, Kasaragod in OP.244/03 is set aside.  The parties are directed to suffer their respective costs.

M.V. VISWANATHAN : JUDICIAL MEMBER

M.K. ABDULLA SONA : MEMBER

VL.