KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 545/2009
JUDGMENT DATED: 06-04-2011
PRESENT:
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
United India Insurance Company Ltd.,
Kozhikkode Divn-II, R/by
Dr.Mohan Shankar, : APPELLANT
Sr. Divisional Manager,
United India Insurance Company Ltd.,
Dvsl. Office – 1, LMS Compound, TVPM.
(By Adv.Sri.R.Jagadishkumar)
Vs.
C.M.Ibrahim Kutty,
Othayoth House, : RESPONDENT
Velam Peruvayal.P.O,
Kuttyadi, Kozhikode.
(By Adv.Sri.Shyam Padman & Sri.S.Reghukumar)
JUDGMENT
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
This appeal is preferred by the opposite party, the insurance company against the directions contained in the order dated:30/6/2009 of CDRF, Kozhikkode in CC.8/07. By the impugned order they are under directions to pay to the complainant a sum of Rs.2,25,000/- with compensation of Rs.5000/- within 30 days from the date of receipt of a copy of the order.
2. The complainant has approached the Forum stating that he is the owner of the vehicle bearing registration No.KL-11-N-424 and that on 16/12/2004 the vehicle was found missing and an FIR was lodged with the police u/s 379 of the IPC and on 8/12/2005, the police filed a final report stating that the vehicle was undetected. The complainant’s case is that though the vehicle was insured with the opposite parties for a sum of Rs.2,25,000/-, the opposite party repudiated the claim. Alleging deficiency of service, the complaint was filed praying for directions to pay the insured amount with 18% interest and costs.
3. Resisting the complaint the opposite party filed version and contended that on receipt of information regarding the missing of the vehicle an investigator was deputed and the investigation report revealed that the complainant has sold the vehicle to one Mr.Moideen and thereafter he entrusted the vehicle to Mr.Abdul Azeez and that the said Abdul Azeez was the owner of the vehicle which was used for transporting laterate stone. It is also contended that the complainant was no longer the owner of the vehicle and hence the claim was repudiated.
4. The evidence consisted of the oral testimony of the complainant as PW1 and Exts.A1 to A6 on his side. A witness was examined as PW2 on the side of the complainant. The investigator was examined as RW1 and the report was marked as Ext.B1. A report of the station house officer Kondotty was marked as Ext.B2. It is based on the said evidence that the Forum below passed the impugned order.
5. Heard both sides.
6. It is the case of the learned counsel for the appellant that the order of the Forum below is per-se illegal and unsustainable on the ground that the FIR and FIS relating to the case was given by one Abdul Azeez and it has been stated that he was the owner of the stolen vehicle. The learned counsel inviting out attention to the final report, has argued for the position that in the final report also the owner of the vehicle was shown as Abdul Azeez. Hence it is his very case that the complainant had no insurable interest and thus the repudiation of the claim by the opposite party was only just legal and sustainable.
7. On the other hand, the learned counsel for the respondent submitted that the RC book of the vehicle and the other records would show that the complainant is the registered owner of the vehicle. It is also argued by him that the FIS was given by one Abdul Azeez and it was not conclusive proof that the vehicle belonged to the said Abdul Azeez. He has only stated that the vehicle was missing and he might have stated that the vehicle belonged to him and such a statement cannot be considered as the conclusive proof for the ownership of the vehicle. He has argued that the opposite party being the insurer is liable to indemnify the complainant for the loss of the vehicle.
8. On hearing the learned counsel for the appellant, respondent also on perusing the records, we find that the vehicle is registered in the name of the complainant and the insurance is given in the name of the complainant himself. There is no contra evidence to show that the vehicle was belonging to Mr.Abdul Azeez. Mr.Abdul Azeez has also given evidence as PW2 to the effect that he had only given information and the vehicle actually belonged to the complainant. The opposite party has not elucidated anything to contradict the statements made by PW1 and PW2. On a perusal of the records also we find that the vehicle is registered in the name of the complainant and the insurance is also in the name of the complainant. In view of the above said facts, we find that the case of the appellant/opposite party that the complainant/respondent has no insurable interest cannot be upheld. It is also to be noted that the mere fact that a FIS is lodged by another person stating that the vehicle belong to him will not entitle the insurer to repudiate the claim when the RC book and Insurance are in the name of the insured/complainant. The Forum below has ordered the full insured amount which is not proper. The vehicle is of the year 2001 and it is seen that the vehicle is stolen or missing from 16/12/2004 and the police has filed a final report stating that the vehicle could not be traced out. In the said circumstances we find that there will be some depreciation for the vehicle. But neither side has adduced any evidence to show that the vehicle is worth a particular amount. The opposite party ought to have assessed the market value of the vehicle at the time of missing. We feel that a sum of Rs.1,50,000/- will be just and proper to be paid by the opposite party to the complainant with the compensation ordered by the Forum below.
In the result the appeal is allowed in part with the modification indicated above. Thereby the appellant/opposite party is directed to pay to the complainant a sum of Rs.1,50,000/- with compensation of Rs.5000/- within one month from the date of receipt of a copy of this order failing which the amount shall carry interest at 9% per annum from the date of default till date of payment.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL.
