D.O.F. 24.01.2009

                                          D.O.O. 08.11.2010

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 8^th day of Novermber, 2010.

C.C.No.29/2009

M.V. Avarankutty,                   

S/o. Mohammed,

Madathil Valappil House,

Athavanad Post,                                          :                  Complainant

Thirunavaya, Malappuram Dist.                                    

 (Rep. by Adv. P. Sreenivasan)   

Branch Manager,

National Insurance Company Ltd.,

Perumal Buildings,                                     :                  Opposite party

First Floor, Perumba,

Payyannur, Kannur Dist.

 (Rep. by Adv. V.K. Rajeev)               

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay of ` 3,07,875  to complainant with interest @ 12% and a cost of ` 5,000.

          The case of complainant in brief are as follows :  The complainant is the owner of Scoda Octavia 1.9 TDI car with registration No.TN 37/AD 001.  The vehicle was insured with opposite party insurance company for the period from 23.12.2006 to 22.12.2007.  The schedule of premium in the policy shows the declared value of the car as ` 4,00,000.  The car met with an accident on 18.07.2007 at Begave, near Gundelpet in Karnataka. Claim was submitted.  The Surveyor assessed the loss on repair basis.  As per Surveyor’s report it was require an amount of ` 3,07,873 for repair.  The opposite party repudiated the claim on the ground that the complainant had sold the vehicle before the accident.  The complainant is the owner of the vehicle and he had not sold the vehicle. He is the owner of the vehicle at the time of accident and repudiation is illegal, improper and irregular.

          Pursuant to the notice opposite party entered appearance and filed version denying the material allegations of complainant.  The contents raised by the opposite party in brief are as follows:

          The vehicle T.N. 37/AD0001 was insured with them.  On receipt of the claim, alleged to be signed and sent by the complainant the opposite party deputed Sri. N.G. Saseendran, the licensed Surveyor and loss assessor to conduct the Survey and to assess the damages.  The opposite party had also entrusted the matter to “Crime Cure” Private Detective Agency, Tali, Calicut to conduct an investigation and they submitted the report dated 17.04.2008.  As per the report it is understood that the insured vehicle was sold by the complainant prior to the accident to one K. Firoz, S/o. Kunhi Mohammed for a valuable consideration and the vehicle was in the ownership and possession of the said K. Firoz at the time of accident.  Since the complainant had sold and delivered the vehicle to K. Firoz prior to the accident and he was not having any insurable interest over the vehicle at the time of the accident and thus he is not entitled to claim the insurance amount as per the insurance policy and its conditions.  Hence the claim repudiated and informed the complainant.  The averment of the complainant that the assessment of damage by the Surveyor on repair basis was ` 3,07,873 is not correct.  The survey report was based on salvage loss basis and the financial assessment was for a net loss of ` 1,79,000 only.  It was made on the estimate of expenses and not on the basis of the actual repair bills.  The vehicle is not repaired till this date.  Complainant is not certain about the actual amount required for the repair.  As per the release order of the vehicle issued by the Judicial First Class Magistrate, Gundelpet the vehicle was released to K. Firoz and not to the complainant.  The statement of complainant would also show that the vehicle was sold by him to Firoz for a consideration of ` 5,75,000 one month prior to the accident.  Hence it is evident that Firoz was the owner in possession of the vehicle at the time of the accident as per the sale of goods Act.  The repudiation of the claim, on the ground that the complainant was not having insurable interest at the time of accident is therefore reasonable and as per policy condition.  The claim of repair charges is based on the estimate made by Malamkulam Bus Body Builders.   The said workshop is owned by K. Firoz and his brothers.  The claim of the complainant is a fraudulent one. The claim papers were prepared and signed by K. Firoz in the name of the complainant.  Complainant had consented to settle the claim for ` 1,79,000 as full and final satisfaction of the claim vide his letter dated 04.10.2007.  This claim before the Forum is unreasonable.  Since the repudiation of claim is made on valid ground complainant is not entitled for any remedy.  Hence prayed to dismiss the complaint.

          On the above pleadings the following issues have been taken to consideration.

1.           Whether there is any deficiency in service on the part of opposite party?

2.           Whether the complainant is entitled for the remedy as prayed in the complaint?

3.           Relief and cost.

The evidence consists of the oral evidence of DW1, DW2, Ext.A1 to A4 and B1 to B10.

Issues 1 to 3 :

          Admittedly the vehicle in question was insured with the opposite party at the time of the alleged accident.  The claim of the complainant but, repudiated on the ground that he had no insurable interest over the vehicle at the time of the accident.  Opposite party contended that the ownership of the vehicle was with K. Firoz, who had purchased the vehicle for a consideration from the complainant one month prior to the accident.

          The relevant point in the present case to be decided from the outset is whether or not the complainant had insurable interest over the vehicle at the time when the vehicle was met with accident.  The definite case of the complainant is that he is the owner of the car and he had not sold the vehicle as alleged by the opposite party.  Complainant filed chief affidavit in lieu of chief examination but taken back since he has no oral evidence.   Complainant produced Ext.A1 photocopy of the policy schedule which proves that the vehicle in question was insured during the period 23.12.2006 to 22.12.2007 in the name Mr. M.V. Avarankutty, the complainant.  Ext.A2 is the certified Photostat copy of the FIR.  FIR reveals that Firoz and Anwar were driving to Bangalore.  Ext.A3 is the Survey report.  Ext.A1 shows that Mr. Avarankutty is the insured.

          Opposite party contented that Mr. K. Firoz was the owner of the vehicle at the time of accident.  The case of the opposite party is that complainant had sold and delivered the vehicle to K. Firoz prior to the accident and he was not having any insurable interest over the vehicle at the time of the accident.  Opposite party adduced evidence by means of chief affidavit in lieu of chief examination and producing Ext.B1 to B10.  Opposite party filed chief affidavit in tune with the pleadings.  DW1 stated in chief affidavit that the complainant had no insurable interest.  He has also stated that the investigations conducted by the opposite party reveals that complainant had sold and delivered the vehicle prior to date of the accident and thereby ceased to be the owner of the vehicle.  Opposite party has produced Ext.B1 to B10 documents.  None of the document produced by opposite party do not prove that the vehicle was sold by complainant to anybody.  Moreover, DW2, Surveyor in his cross examination deposed that “A]-I-S-k-a-b¯v h­n-bpsS R.C. owner  FT.-hn. Ah-dm³Ip-«n, S/o. FT. ]n. apl-½-Zv…………BWv. Report X¿m-dm-¡n-bXv       27.12.2007\mWv. Report X¿m-dm-¡n-bt¸mÄ Ct±lT Xs¶-bmWv R.C. owner.” DW2 Surveyor examined the relevant document in connection with the vehicle and Ext.B6 in his report.  His evidence to this affect the ownership of vehicle at the time of accident carries much relevancy.  He has concluded his report Ext.B6 with a recommendation that the claim may be settled on Salvage Loss Basis for a net sum of ` 79,000 subject to cancellation of insurance policy.  DW1 in his cross examination specifically admitted that “Agreement H¶pT Rm³ I­n-«n-Ã.  hml-\T ssIam-d-dT \S-¯n-b-Xmbn ImWn-¡m³ bmsXm-cp-hn[ tcJ-bpT lmP-cm-¡n-bn-«n-Ã.”  In the given circumstances with the available evidence both oral and documentary it can only be concluded that complainant is the R.C. owner at the time of accident.  Opposite party is not able to prove that the vehicle was sold to anybody by the complainant at this relevant period.  Documents so far produced by the opposite party are not sufficient to prove that the complainant was not the R.C. owner at the time of accident.  The original of the R.C. of the above vehicle was produced before the Forum and its certified copy marked as Ext.A4.  Hence there is no substance in contenting that the complainant has no insurable interest over the disputed vehicle.  Complainant has insurable interest over the vehicle and thereby entitled for the amount under insurance.

          It can be seen that after receiving the claim opposite party appointed Mr. N.G. Saseendran Surveyor and Loss Assessor for assessment of loss sustained and accordingly he made assessment.  The report of the Surveyor marked as Ext.B6.  The summary of assessment reveals that the Surveyor made assessment on Repair Basis, Total Loss Basis, Salvago Basis and Cash Loss Basis.  Ext.B4 is the consent letter of the complainant.  Complainant placed request by Ext.B4 for settlement of the claim under Salvage Basis.  Page No.2 of Ext.B4 will show that complainant was under perfect understanding that in the event of the insurers settling of the claim on Salvage Loss Basis a sum of ` 1,79,000 will only be paid.  Clause-7 of he consent letter states thus : “That I agree to accept a sum of ` 1,79,000 being the full and final settlement.  Under Salvage Loss Basis subjected to terms and conditions of the insurance policy and admissibility of the claim and that there will be no further claim on the insurers in respect of damages to the vehicle”.  Ext.B4 consent letter has not been challenged by the complainant.  Since this document express clear intention of the complainant there is no need to discard the same to search for a new solution, running after with the scattered facts and figures here and there.   On going through the evidence we take into account Ext.B4 as an important document very much dependable to derive at a conclusion that an amount of ` 1,79,000 is just and reasonable for which complainant is entitled as the claim amount.  Complainant is also entitled for an amount of ` 1000 as cost of this litigation.  Thus issues 1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing the opposite party to pay an amount of ` 1,79,000 (Rupees One Lakh Seventy Nine Thousand only) as claim amount to the complainant along with a sum of  ` 1000 (Rupees One thousand only) as cost of this litigation 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 after the expiry of one month.

                            Sd/-                       Sd/-                      Sd/-          

       President                Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Policy schedule

A2.  First Information Report.

A3.  Private and confidential motor (final) survey report.

A4.  R.C. dated 12.09.2002.

Exhibits for the opposite party

B1.  Insurance Certificate.

B2.  Letter dated 20.07.2007.

B3.  Motor claim form.

B4.  Consent Letter dated 04.10.07.

B5.  Accidental Repair Estimate.

B6.  Private and Confidential Motor (final) Survey Report.

B7.  Registered Letter dated 01.02.2008.

B8.  Registered Letter dated 04.02.2008.

B9.  Investigation report of “Crime Cure”, dated 17.04.2008.

B10. Copy of the Registered repudiation letter dated 19.05.2008.

Witness examined for the complainant

PW1.  Nil

Witness examined for opposite party

DW1.  T.A. Sankarankutty

DW2.  N.A. Saseedaran

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT