KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 754/03 JUDGMENT DATED: 7.9.10 PRESENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER The Oriental Insurance Co.Ltd., : APPELLANT P.B.No.3, Jaseela Complex, Nilambur Road, Manjeri. (By Adv.Saji Issac.K.J) Vs. 1. Ashok Leyland Fiance Ltd., : RESPONDENTS C/o T.V.Sundaram Iyengar & Sons Ltd., Valluvambram, Manjeri Road, Malappuram District. 2. K.Abubacker Sidhique Palliyalil House, Post Kumminiparamba, Kondotty, Malappuram District. (By Adv.Devaprasanth.P.J., Counsel for R2) JUDGMENT JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellant is the 2nd opposite party/Insurance Co. in OP.3/2001 in the file of CDRF, Malappuram. The appellant is under orders to pay to the complainant a sum of Rs.1,25,655/- together with interest at 12% per annum from 10.10.2000 and cost of Rs.2000/-. It is also specified that the appellant is entitled to work out the rights if any against the 1st opposite party/financier for excess payment. 2. The case of the complainant is that the mahindra jeep owned by him and insured with the 2nd opposite party was stolen on 7.3.2000. The vehicle was purchased on 10.11.99. The complainant had availed finance from the 1st opposite party which was liable to be repaid at the rate of Rs.10400/- per month for the first 10 months and at the rate of Rs.8550/- per month for the next13 instalments. The theft was intimated to the police and crime registered. The theft could not be detected. The complainant paid the further installments to the financier as they threatened the complainant and the ladies at home. The complainant had spent a sum of Rs.52000/- for the additional fittings in the jeep. The complainant had approached the opposite parties on several times for getting the insurance amount. Subsequently it was known that the 2nd opposite party colluded with the 1st opposite party and settled the claim. It is after much delay that the 1st opposite party paid a sum of Rs.92,318/- to the complainant and told that they will pay 25% more after some time. The complainant has sought for an order directing the opposite parties to pay Rs.1,56,634.20 with interest at 15% per annum from 7.6.2000 ie, three months after the date of theft and also Rs.50000/- as compensation for the mental agony etc. and Rs.2000/- as costs. 3. The 1st opposite party has denied the allegations made in the complaint. It is pointed out that the price of the vehicle was Rs.3,46,250/-. The opposite party had provided finance on hire purchase basis to the extent of a sum of Rs.1,75,000/-. The complainant paid the initial hire charges of Rs.1,71,250/- and the financed amount was to be repaid in instalments. The total hire purchase was fixed at Rs.2,15,150/-. It is also alleged the complainant was irregular in making the payment. The complainant had paid only Rs.10,400/- into 8 instalments. Thereafter the complainant did not make further payments after settling the claim with the 2nd opposite party. The opposite party collected the dues pending as per hire purchase and the balance was paid to the complainant. A sum of Rs.92318/- was refunded to the complainant. The 2nd opposite party has only paid Rs.2,12,750/- out of the claim settlement amount of Rs.2,85,000/-. It was told that the 25% of the claim amount will be paid in future. The above amount if paid will be refunded to the complainant. The complainant had collected Rs.34,537.60 towards excise duty refund since the vehicle was purchased for plying as taxi. The 1st opposite party has denied any liability. 4. The 2nd opposite party/appellant/insurer had admitted policy coverage. It is stated that the complainant was making repeated representation for the early settlement on the ground that the liability as per the hire purchase agreement was amounting day by day . In the absence of final report from the police the insurer could not have settled the claim. As per the survey report the value of the vehicle was assessed at Rs.2,85,000/- after adjusting the subsidy of Rs.34,265/-. A sum of Rs.1000/- is further deductible by way of policy excess. A sum of Rs.2,12,750/- was paid to the 1st opposite party being 75% of Rs.2,85,000/-. The final report from the police was not received. The delay was caused on account of the failure to submit the final report. The balance 25% of Rs.2,85,000/- can be disbursed only on receipt of final report from the police. 5. The evidence adduced consisted of Exts.P1 to P10 and R1 to R9. 6. The Forum has found fault with the appellant in settling the claim with the 1st opposite party/financier without the involvement of the complainant. It is pointed out that the appellant ought not to have settled the claim without the consent of the owner of the vehicle. The Forum has also held that assessing the value of the vehicle at Rs.2,85,000/- was incorrect. As the theft has occurred within 6 months the value of the vehicle should not have been reduced from the purchase value. The value of the vehicle on the date of theft should have been taken as Rs. 3,11,985/- after deducting the subsidy of Rs.34,265/-. The Forum has calculated the amount due to the 1st opposite party at Rs.1,86,330/-. It was held that the balance amount of Rs.1,25,655/- is liable to be paid by the appellant to the complainant. It was contended b y the appellant that the appellant has already paid Rs.2,13,750/- to the 1st opposite party ie, 75% of Rs.2,85,000/-. Only 25% of Rs.2,85,000/- is liable to be paid to the complainant and the same would be Rs.71,250/-. The above amount was withheld as the complainant did not produce the final report from the police. 7. We find that as pointed out that the counsel for the respondent/complainant the insurer/appellant is not entitled to reduce the purchase value of the vehicle as the theft has been taken place within 4 months of purchase. As per the copy of the policy produced by the appellant themselves. It is provided there would be no depreciation if the peril takes places with in a period up to 6 months. Hence we find the assessment of the value of the vehicle at Rs.2,85,000/- is improper. The complainant is entitled to have the value of the vehicle as its price ie, Rs.3,11,985/- which is the purchase value of the vehicle ie, Rs.3,46,250/- less subsidy of Rs.34,265/-. Hence the difference in this regard with respect to the price of the vehicle would work out to Rs.26,985/- (Rs.311985/- -Rs.2,85,000/-). The opposite party/appellant is also liable to pay admittedly the remaining 25% of Rs.2,85,000/- which would work out at Rs.71,250/-. Hence the total amount to be paid would work out to Rs.98235/-. The complainant has produced the copy of the final report of the appellants. The theft remains undetected. 8. We find that the Forum has calculated the amount due to the 1st opposite party/financier without having the sufficient data in this regard. The complainant has not produced the receipts of payments made to the 1st opposite party. Of course the appellant ought not have settled the matter with the financier/1st opposite party without the involvement of the complainant the insured as per Ext.R1/P4 policy. Hence evidently there is deficiency in service on the part of the appellant/insurer. It is also pertinent to note that the insurer in the version has stated that the complainant was making persistent demands to have the claim settled at the earliest. In the circumstances the order of the Forum is modified as follows. The 2nd opposite party/appellant would be liable to pay sum of Rs.98,235/- to the complainant with interest at 9% per annum from 10.10.2000 till realization and cost of Rs.2000/-. The amount is to be paid within 3 months from the date of receipt of copy of this order failing which the complainant would be entitled for interest at 12% per annum from the date of this order of this Commission. In the circumstances the appeal is allowed in part as above. Office will forward the LCR along with the copy of this order to the Forum at the earliest. JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SRI.M.K.ABDULLA SONA : MEMBER ps |
