D.O.F. 09.08.2004 D.O.O. 01.11.2010 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 1st day of November, 2010. C.C.No.178/2004 Paul Varghese, Pandali House, P.O. Iritty, Kannur District. : Complainant (Rep. by Adv. K. Gopakumar) The Branch Manager, New India Assurance Company, Aristo Complex, Mahe : Opposite party (Rep. by Adv. V.K. Rajeev) O R D E R Smt. K.P. Preethakumari, Member. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay Rs.19,000/- the cost incurred for repairing the insured vehicle with 18% interest from 09.08.2002 and Rs.25,000/- as compensation with cost. The complainant’s case is that his motor bike bearing No.KL-13E 6719 was insured with opposite party as per the valid insurance policy bearing No. 760803/31/01/71699. The complainant had given his vehicle to his close friend Mr. Sunny Joseph and on 09.08.2002 the vehicle was met with an accident at Moovattupuzha and caused substantial damages to the vehicle and was repaired from C.J. Motors, Moovattupuzha and an amount more than Rs.19,000/- was spent by the complainant for repair. The complainant submitted claim form through his friend Sunny Joseph. But the opposite party has not sanctioned the amount and hence the complainant had issued lawyer notice demanding the claim amount, but the opposite party issued a reply stating false contentions. The complainant is the R.C. owner of the vehicle during the relevant period and had insurable interest at the time of accident and hence he is entitled to reimbursement of the amount which he had spent for repairing the vehicle. The complainant had sold the vehicle to a 3rd person after the accident and this itself shows that the alleged Sunny Joseph had no ownership over the vehicle. The act of opposite party is deficiency of service and the complainant is entitled to receive the repaired amount since the vehicle is insured with opposite party. Hence this complaint. Upon receiving the notice from the Forum the opposite party appeared and filed his version denying the liability to pay the insured amount. The opposite party contented that the complainant has no insurable interest over the property insured at the time of accident, because he had sold and delivered the possession of the vehicle to one Sunny Joseph, S/o. Joseph, Thayyil (H), prior to the occurrence of the accident to the vehicle. But the sale was not intimated to the insurer and the registered certificate was not transferred in the name of above said Sunny Joseph and the statement given by Sunny Joseph in Crime No.454/02 of Moovattupuzha Police Station will clearly shown that the Sunny Joseph was the owner at the time of accident. According to opposite party, the complainant had spent only Rs.10,000/- for repair, as per the survey report submitted by one Haesan V.N., the authorized Surveyor and loss assessor. The complainant has filed with fraudulent intention of appropriating insurance amount over the property which was already sold and delivered possession and hence the claim if found to be fraudulent one, the insurer is not bound to pay any amount as compensation as per the policy condition. The opposite party is also not bound to pay compensation, since the insured had committed breach of policy condition by not intimating the transfer of the vehicle and hence the complainant is liable to be dismissed. Upon the above contentions the following issues have been raised for consideration. 1. Whether there is any deficiency of service on the part of opposite party? 2. Whether the complainant is entitled to any relief? 3. Relief and cost. The evidence in the above case consists of the oral testimony of PW1, DW1, DW2 and Ext..A1 to A4 and B1 to B7 and X1(a) and X1(b). Issues 1 to 3 : The complainant’s case is that he is the R.C. owner of KL-13 E 6719 bike having valid insurance and the same was met with an accident on 09.08.2002 at Moovattupuzha. At the time of accident the vehicle was driven by his friend Sunny Joseph, since the vehicle was given by the complainant who had been working in gulf to him out of his friendship. The vehicle sustained injuries and about Rs.19,000/- was spent for repair and applied for the claim before opposite party. But the opposite party rejected the claim by saying that the complainant has no insurable interest over the property. In order to prove the case, the complainant’s Power of Attorney was examined as PW1 and produced documents such as copy of lawyer notice, acknowledgment, reply notice and Power of Attorney. However to prove their contentions opposite party also examined DW1 and DW2 and produced documents such as insurance policy, statement before the moovattupuzha Police Station, claim intimation, claim form, 3 bills, Survey report, bill issued by the repaired workshop, statement given by Sunny Joseph before Moovattupuzha Police and photocopy of driving license with badge. The opposite party had repudiated the claim on the ground that the complainant has no insurable interest over the bike having No. KL 13 E-6719 at the time of accident of the vehicle 0n 09.08.2002, since the vehicle was at that time owned and possessed by one Sunny Joseph, S/o. Joseph, Thayyil(H), Edoor P.O., Payam who had driven the vehicle at the time of accident. In order to prove this contention opposite party has produced Ext.X1(a) document through cause production from Moovattupuzha Police Station within its jurisdiction the accident was taken place. This X1(a) document is a 161 statement of one witness by name Sunny Joseph who as alleged by the opposite party as the owner at the time of accident. The opposite party has not taken any steps to prove that he is the owner of the vehicle either by examining him as witness or by producing documents. Since the vehicle is a movable property and the sale of movable properties are governed by sale of goods Act the vehicle can be sold only through an agreement. If the vehicle is sold by the complainant, there is an agreement to that effect. But opposite party had miserably failed to produce the agreement. Moreover the complainant in his complaint itself stated that he had given his vehicle to the above said Sunny Joseph purely out of friendship in order to avoid the vehicle keeping in idle. Above all the opposite party has produced a Cacheet as part of Ext.X1(a) through which the vehicle was released from Moovattupuzha Police Station in crime No.454/02. In this document it is seen that it was signed by Paul Varghese, the complainant. But according to opposite party at that time the complainant is in gulf and hence that cachet is forged one. But there is no document before us to show that it is a forged one. Moreover even if it is a forged one, according to us, it will not effect the insurable interest of the complainant. It is only a matter to be decided by the Police and the Criminal Court. Moreover the fact that a legal right to use of goods, and the benefit of which would be lost by its damage or destruction might be sufficient to constitute an insurable interest. In national insurance Company Ltd. Vs. Lalitha Prabhakar, 1998 ACJ 1124 (HP-DB) it was held that, the contention that the owner had sold and transferred the motor cycle prior to the accident but the insurance policy was not transferred in favour of the transferer, the insurance came to an end and insurance Company could not be fastened with liability, will not hold good unless the Insurance Company has cancelled its liability under the law. In this case the Insurance Company has no case that they had cancelled its liability under law. So from the above discussion it is revealed that the opposite party had failed to prove that the vehicle is sold to the above said Sunny Joseph. Moreover the R.C. owner is the complainant as per the photocopy of R.C. So we hold the view that the complainant’s insurable interest exist at the time of accident. Yet another point put forwarded by the opposite party is that the claim form was submitted by the above said Sunny Joseph by forging the signature of the complainant and according to opposite party the complainant had not produced the relevant page of the passport and this was done purposefully to escape from the eye of law. But the opposite party has produced Ext.B3 claim intimation and Ext.B4 claim form. The claim intimation was on 13.08.2002 and the claim form is dated 20.08.2002. Admittedly the date of accident was on 09.08.2002. So it is seen that the claim intimation is after 4 days and claim application is after seven days from the date of claim intimation. We know that we have very much advanced technologies and hence “7 days are enough and more to issue the claim form to the complainant for signature and get it signed, eventhough he is in gulf. Moreover the opposite party has not taken any steps to prove that the signature in the claim form is a forged one. So the opposite party failed to prove that the signature in the claim form is a forged one. Moreover the opposite party had put forwarded the above contention only at the time of evidence and hence the above contentions are not supported by pleadings. Ext.B1 is the certificate of insurance valid from 14.03.2002 to 13.03.2003. The opposite party had miserably failed to prove that the complainant had sold the vehicle and hence he has no insurable interest upon the vehicle. So we are of the opinion that the complainant is the R.C. owner at the time of accident and the vehicle is not sold and hence he had insurable interest and we inferred that the complainant had signed the claim form in the absence of solid evidence. So we are of the opinion that there is deficiency of service on the part of opposite party for which he is liable to compensate the complainant. Regarding the amount, the Surveyor had filed his report and was examined as DW2. Surveyor’s report is marked as B6 and he had produced Ext.B7 bills issued from CeeJay Motors from where the vehicle was repaired. According to Ext.B6 report he had assessed the cost of parts after depreciation and salvage value as Rs.9,100/- and Rs.900/- as labour charge. So the opposite party is liable to pay this amount i.e. Rs.10,000/- as repair charge along with a compensation of Rs.2000/- with Rs.100/- as cost of this proceedings and the complainant is entitled to receive the same and hence order passed accordingly. In the result, the complainant is allowed directing the opposite party to pay Rs.10,000/- (Rupees Ten thousand only) as repair charge along with Rs.2,000/- (Rupees Two thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order, otherwise the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Copy of the Lawyer Notice. A2. Acknowledgement A3. Reply Notice. A4. Power of Attorney. Exhibits for the opposite party B1. Insurance Policy and its conditions. B2. Statement given by the complainant before the Moovattupuzha Police in Cr. No. 454/02 B3. Claim intimation given by the complainant to the opposite party. B4. Claim form issued by the complaint. B5. Bills B6. Survey report issued by Hassan V.N. (D.A.E). B7. Work report of Hero Honda. Witness examined for the complainant PW1. T.M. Poulose Witness examined for opposite party DW1. R. Suresh Babu. DW2. V.N. Hassan /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
