Date of filing : 12-08-2005 Date of order : 21-08-2008 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.129/05 Dated this, the 21st day of August 2008. PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER Kamaruddeen.T.M, S/o.Mohammed Kunhi, Thayal House, Balakad, Nellikunnu, } Complainant Kasaragod.Dt. 1. The Branch Manager, New India Assurance Co.Ltd, East Coast Chambers, Ist Floor-92, } Opposite parties G.N.Chetty Road, T.Nagar, Chennai. 2. The Manager, Ashok Leyland Finance Ltd, Zonal office, No.25, 3rd Floor, Mangalam Chambers, K.H.Road, Bangalore 560027. 3. The Manager, Branch Office, Ashok Leyland Finance Ltd, Iind Floor, Rambhavan Complex, Kodialbail, Mangalore. O R D E R SRI.K.T.SIDHIQ, PRESIDENT In short the case of Kamarudheen is that his Maruti Car KA 19/M 6834 duly insured with New India Assurance Co.Ltd was stolen on 12-08-02 which was under hypothecation with Ashok Leyland Finance Company Ltd, Mangalore. Kamarudheen alleges that even after the immediate information to insurer and financier, the financier recovered the amounts and he paid the amount under fear of criminal prosecution against the cheques he deposited by way of security. Later the insurer has repudiated the claim on the ground of delay in forwarding the claim. 2. New India Assurance Co. Ltd filed their version admitting the insurance coverage but they disputes the theft as alleged on 12-08-02. They denies the immediate information regarding the theft of the vehicle. According to them as per the FIR lodged by Kasaragod Police with respect to the offence of theft and as per final report, the police charge sheeted the case U/s 406 & 420 IPC, r/w 34 IPC and hence it is not a theft. Even though the vehicle is lost on 12-08-02 the claim form and allied documents reached them only after 2 years. The Ashok Leyland Finance Co.Ltd has intimated about the alleged theft of the vehicle as per a letter dtd.15-09-04 to them enclosing the claim papers and they received it on 24-09-2004 requesting them to sanction the claim. Hence they lost the opportunity to appoint an independent investigator. The explanation for the delay was sought from Kamarudheen and the explanation was false. Hence the claim is repudiated on 15-06-05 on the ground of delay since insurer has lost opportunity to make a proper and satisfactory verification of all circumstances under which the policy was taken and claim preferred. Hence there is no deficiency in their service. 3. Ashok Leyland Finance Co.Ltd, Bangalore and Mangalore filed their version jointly denying the averments of Kamarudheen. According to them they are not aware about the alleged offence. They are only know about the hypothecation of the Maruti Car of Kamarudeen and according to them, after the payment of hire purchase amount they issued No objection certificate to Kamarudheen so as to make Kamarudheen the absolute owner. They are unnecessary parties to the proceedings and there is no deficiency in service on their part. 4. Kamarudheen filed affidavit in support of his claim reiterating what is stated in his complaint. Exts A1 to A6 marked on his side. The New India Assurance Co.Ltd submitted Exts B1 to B7 documents Ashok Leyland Finance Co.Ltd. Ext.B8 marked. Arguments of both sides were heard in detail and the documents perused carefully. 5. According to Kamarudheen as PW1, the vehicle was handed over by him to his friend Anil Wahid to take his child to Mangalore Hospital on 12-08-02 and as he not returned, he lodged a complaint before Kasaragod police on 14-08-02 against Anil Wahid for cheating. Police charge sheeted the case U/s 420 IPC. He has informed New India Assurance Company over phone within 10 days of the loss of vehicle . He also testified that he has not submitted claim form before insurer directly. He further deposed that an investigator from the insurer approached him and made the investigators during 2004. Even though Kamarudheen was cross-examined on his affidavit at length by counsel of opposite parties nothing material is brought out to discard his case. But in re-examination and cross-examination he asserted that the claim papers were submitted to insurer through Ashok Leyland Finance Co. Ltd. 6. The insurer defends his claim mainly on two grounds. Firstly according to counsel for insurer there is no theft of vehicle since the vehicle was handed over by Kamarudheen to Anil Wahid who subsequently fled away with the vehicle and the police charge sheeted the case U/s 406,420 r/w 34 IPC. Since there is no theft of vehicle insurer is not liable as per the policy conditions. This contention has no force, in view of the decision of the Hon’ble National Consumer Disputes Redressal Commission in the case of United India Insure Co.Ltd. v. Ravi Kant Gopika reported in IV (2007) CPJ 32 (NC). In that case the vehicle was taken away by driver for servicing not returned. The Hon’ble NCDRC has held that exclusion clause not provides that offence U/s 406 excluded and loss of vehicle covered by general category of malicious acts and held the insurance company is liable. 7. According to counsel for New India Assurance Company the vehicle was lost in August 2002 where as they received the claim form and related documents from Ashok Leyland Finance Ltd, Mangalore by way of post only on 24-09-2004 as per a covering letter Ext.B1. dtd.15-02-2004 . So according to insurer there is a delay of 2 years. The counsel for Ashok Leyland Finance Ltd objected the marking of Ext.B1 and Ext.A6, the Photostat copy of Ext.B1 on the ground that the postal cover of the said letter is not produced. But the said objection has no much weight since it is purely technical and we do not think a public sector undertaking like the New India Assurance Co. Ltd will produce such a concocted document . Ext.B1 is a letter issued from the office of 2nd Opposite party Ashok Leyland Finance, Bangalore to one Youvaraj, the concerned officer of the claim section of the New India Assurance Co. Ltd. In the said letter it is stated that all the documents and claim form is enclosed in the said envelop. It further states that the theft has been informed from their office by their executives. The letter is seen sent after closing the account with them. So the delay if any occurred due to the negligent attitude of Ashok Leyland Finance Ltd and not that of Kamarudheen. Definitely Ashok Leyland Finance Co. Ltd is committed deficiency in their service rendered to Kamarudheen. They not only collected the entire hire monies even after the loss of vehicle but delayed the legitimate claim of Kamarudheen. So the contention of delay in submitting claim form if any caused is due to the act of Ashok Leyland Finance who acted as an agent in submitting the claim form of Kamarudheen to New India Assurance Co. Ltd. But the said delay is not willful as far as the insured is concerned. Therefore the New India Assurance Co.Ltd could not evade the liability of honouring the claim of Kamarudheen. 8. The certificate of Insurance produced shows that the Insured declared value (I.D.V) of the vehicle is Rs.1,00,000/- only. The vehicle was lost within 10 days from the date of commencement of policy. Hence no deduction can be made by way of depreciation. 9. But considering the delay in submitting the claim to which the insured has no contribution, we think this is a fit case which can be settled by the New India Assurance Company Ltd on non –standard basis. Relief & Costs : Therefore the New India Assurance Company is directed to settle the claim of Kamarudheen on non-standard basis and therefore directed to settle the claim by paying the 75% of the insured ‘s declared value(I.D.V) of vehicle is Rs.1,00,000/-. i.e. to pay Rs.75,000/- to Kamarudheen with interest @ 9% from the date of complaint. Ashok Leyland Finance Ltd, Mangalore and Ashok Leyland Finance Ltd, Bangalore jointly and severally directed to pay Rs.25,000/- as compensation to Kamarudheen for the loss hardships and mental agony suffered by him on account of non-settlement of his claim. However, there is no order as to costs. Time for compliance of this order is 30 days from the date of receipt of copy of the order. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts A1. Photocopy of FIR. Crime No.742/02 A2. A2. photocopy of Final Report Crime No.742/02 A3. 13-09-04 certificate issued by S.I. of Police, Kasaragod. A4. 15-06-05 Registered letter. A5. Certificate of Insurance issued by OP No.1. A6. 15-09-06 letter sent by Ashok Leyland Finance Ltd to Youvaraj. B1. 15-09-04 letter sent by Ashok Leyland Finance Ltd to Youvaraj. B2. 5-11-04 letter sent by Divisional Manager, New India Assurance Co.ltd to Complainant. B3. 30-03-05 Registered letter. B4. 29-04-05 copy of letter sent by complainant to OP No.1. B5. 28-05-05 letter sent by complainant to OP No.1. B6. 15-06-05 registered letter. B7. copy of policy. B8. Statement of Account relating to complainant. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
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