By Sri. MOHANDASAN.K, PRESIDENT

The complaint filed under section 12 of the Consumer Protection Act 1986

1.         Complaint in short is as follows:

The complainant is the registered owner of KL 65E 4493 Eicher Tipper vehicle of 2014 model. The vehicle was plying for his lively hood. The complainant purchased vehicle by paying Rs.2,50,000/- after availing financial support to the tune of Rs.7,00,000/- from the second opposite party and he had arranged insurance coverage from the first opposite party for an amount of Rs.10,00,000/- by paying insurance premium Rs.26,487/-. The period of insurance coverage was from 6/11/2015 to 05/11/2016.  The second opposite party had issued a chart directing the complainant to pay monthly installment and the same is pending. While so the complainant forced to go abroad and that time the vehicle was given to the custody and possession to 3^rd and 4^th opposite parties with the knowledge of first and second opposite parties and also on a condition to pay the remaining finance amount due to the second opposite party. On 15/06/2016 the vehicle was kept under lock near the service station at Eniyadi of Karvedakam gramam, Kasargod. On 16/06/2016 the vehicle was not seen at there and on enquiry it is understood that the vehicle was stolen.  The third opposite party preferred a complaint before the Bedakam police on the same day at 5.30 pm and a crime was registered by the Bedakam police as crime No. 286/2016 and the police filed report stating the vehicle as un detected.

2.         The complainant submitted insurance claim to the tune of Rs.10,00,000/- before the first opposite party with whom the vehicle was insured.  The first opposite party refused the claim stating that the complainant has no insurable interest.  The second opposite party is not entitled to demand the dues from the complainant, since the second opposite party advised the complainant to insure with first opposite party.  The allegation of the complainant is that the act of the opposite parties’ amount to deficiency in service and the complainant suffered mental agony and monitory loss due to the deficiency in service committed by the first and second opposite parties. So, the complainant approached this Commission seeking direction to the first opposite party to allow the insurance amount of Rs.10,00,000/- with 18% interest from the date of incident i.e. 16/06/2016 in respect of the vehicle KL 65E 4493 Eicher Tipper lorry.   The complainant also prays for compensation of 1,00,000/- along with cost of Rs.25,000/-.

3.         On admission of the complaint notice was issued to the opposite parties   and the first opposite party entered appearance and filed detailed version. Other opposite parties though notice received did not file version. The contention of the first opposite party is that they are admitting the complainant is the registered owner of KL 65E 4493 Eicher tipper lorry and the opposite party had issued package policy number 442200/31/2016/11082. As per the policy the IDV of the vehicle was Rs.10,00,000/-. The contention of the first opposite party is that the complainant purchased vehicle directly availing loan facility from the second opposite party and the complainant took insurance policy directly from the first opposite party.  The opposite party stated that they are not aware of the dealings between the complainant and the second opposite party. The opposite party denied the contention of the complainant that he was forced to go abroad and he has given custody and possession of the vehicle to the third and fourth opposite parties with the knowledge of the first and second opposite parties with the condition to pay remaining fiancé amount due to the second opposite party.   Opposite party also contended that the complainant was not plying the vehicle for his lively hood since he has gone abroad entrusting the vehicle to third and fourth opposite parties and so complainant is not a consumer.

4.         The opposite party submitted that he conducted an investigation and which revealed that the complainant had sold the vehicle No. KL 65E 4493 to Chemban shareef on 02/04/2016 by executing a sale agreement. Chemban shareef is the third opposite party in this complaint.  The consideration fixed was Rs.10,50,000/-, The due loan amount as on the date of agreement was Rs.5,50,000/- and third opposite party under took to pay the arrears of loan towards second opposite party and paid balance amount of Rs.5,00,000/- on the date of agreement and took possession of the vehicle. The original vehicle documents were handed over to the Chemban Shareef and subsequently Mr. Chemban Shareef sold the vehicle to the fourth opposite party by executing an agreement dated 09/05/2016. As per that agreement the consideration was fixed Rs.10,85,000/- and the fourth opposite party under took to pay loan arrears of Rs.4,50,000/- towards the second opposite party. The balance consideration of Rs.6,35,000/- the fourth opposite party paid Rs.2,00,000/- to the third opposite party on the date of agreement and under took to pay the balance amount of Rs. 4,35,000/- on or before 20/05/2016. The vehicle was given possession to forth opposite party by the third opposite party. While the vehicle was in possession and ownership of the forth opposite party on 16/06/2016 the vehicle was missing and the fourth opposite party preferred a complaint before Bedakam Police station and police registered complaint as FIR 286/2016. The 4^th opposite party has given the FIS before the police. As per the statement he has admitted the owner ship of the vehicle by virtue of an agreement.  The police after detailed investigation filed final report before JFCM 1 Kasargod stating that they could not trace out the vehicle and so they are stopping the investigation for the time being.   The FIR is dated 16/06/2018 and final report filed on 08/12/2016. During the time of investigation police did not find out who was the real owner of the vehicle.  The opposite party denied the contention that the third opposite party prepared complaint before Bedakam polices station regarding the theft of the vehicle. All the stages of the investigation fourth opposite party maintained the stand that he is the owner of the vehicle by virtue of an agreement.

5.         The first opposite party repudiated the claim preferred by the complainant for the reason that at the time of the theft the vehicle was under the owner ship and possession of the 4^th opposite party by sale agreement dated 09/05/2016 and so the complainant has lost owner ship of the vehicle and has no insurable interest on the vehicle. The contention of the insurance company is that without insurable interest the contract of insurance will be void.  The first opposite party also contended that the complainant has violated the policy condition No.5 and that the insured shall take all reasonable steps to safe guard the vehicle insured from loss or damages and to maintain in an efficient condition. So, the contention of the insurance company is that the vehicle has passed through various hands and the complainant failed to meet the policy requirement and that was also ground to repudiate the claim. The opposite party has not done deficiency in service and the contention that the complainant suffered mental agony and monitory loss due to the deficiency in service on the part of first and second opposite parties are baseless and so denied. The prayers in the complaint are not maintainable and no cause of action arise and the claim is without any basis and also exorbitant and so liable to be dismissed with cost to the opposite party.

6.         The complainant and first opposite party filed affidavit and documents.   Documents on the side of complainant marked as Ext. A1 to A9. Ext. A1 is copy of RC in respect of vehicle No.KL 65E 4493 Eicher Tipper lorry. Ext. A2 is copy of FIR 281/2016 of Bedakam police station. Ext. A3 is letter of the first opposite party dated 08/03/2018 repudiating the claim. Ext. A4 is copy of the policy number 42200/31/2016/11082 issued by oriental insurance company.  Ext. A5 is copy of registration particulars of vehicle No.KL 65E 4493 dated 28/12/2017. Ext. A6 is copy of goods carriage permit issued by RTO Tirurangadi dated 27/11/2014. Ext. A7 is Invoice issued by 5^th opposite party for the tax paid from 01/01/2016 to 31/12/2016 in respect of vehicle No. KL 65E 4493. Ext. A8 is loan account statement issued by second opposite party to the complainant. Ext. A9 is summons issued by the Patiala House Courts New Delhi to complainant dated 08/02/2017.The document marked on the side of first opposite party marked as Ext. B1to B7. Ext. B1 is copy of repudiation letter issued by the first opposite party in favor of the complainant dated 08/03/2018.  Ext. B2 is copy of FIR in crime No. 288/2016 of Bedakam Police station Kasargode dated 16/06/2016.  Ext. B3 is copy of final report of the police in crime 288/2016 Bedakam Police Station Kasargode dated 08/12/2017.  Ext. A4 is copy of notice to informant under section 157(2) and 173(1) (b) of CRPC of Bedakam police station, Kasargode in favor of the 4^th opposite party.  Ext. B5 is copy of sale agreement dated 02/04/2016 entered between complainant and 3^rd opposite party regarding sale of lorry bearing registration NO. KL 65 E4493. Ext. B6 is copy of sale agreement dated 09/05/2016 entered in to between third opposite party and Vinod Mathew regarding sale of lorry bearing registration No. KL 65 E4493. Ext. B7 is copy of policy No.442200/31/2016/11082 in respect of vehicle No. KL65E 4493 valid from 06/11/2015 to 05/11/2016.   

7.         Heard complainant and first opposite party and perused affidavit and documents.  The following points arise for consideration: -

1. Whether the repudiation of claim by the first opposite party is deficiency in service?
2. Relief and cost?

8.         Point No.1

The case of the complainant is that he is the registered owner of 2014 model Eicher Tipper vehicle bearing register No. KL 65E 4493 and he is plying the vehicle for his lively hood.  The vehicle stands insured with first opposite party for an amount of Rs.10,00,000/- and the period of insurance is 06-11-2015 to 05-11-2016.  On 15-06-2016 the said vehicle was kept under lock near the service station at Eniyadi of Karvedakam gramam, Kasargod and on 16-06-2016 vehicle was not seen. The Bedakam police registered a crime as crime No. 286/2016 for theft of vehicle.   The police after investigation filed a report before the concerned court the case as un detectable. The complainant approached the first opposite party with a claim application to the tune of Rs.10,00,000/-.  The opposite party repudiated the claim contending the complainant has no insurable interest and also violation of policy condition No.5 of the policy.

9.         Now the question is whether the complainant has got insurable interest and whether he violated the condition No.5 of the policy.  According to the opposite party as per policy condition No.5 the inured shall take all reasonable steps to safe guard the vehicle insured from loss or damages and to maintain it in efficient condition. But in this complaint, there is no evidence to show the violation of policy condition no.5 as stated by opposite party.  The complainant has stated the vehicle was kept under lock near the service station at Eniyadi of Karvedakam gramam, Kasargod. Except mere contention there is no substantial material in support of the contention of the opposite party.  The contention of opposite party that the complainant has no insurable interest is on the basis of transfer of the vehicle to third parties. But it can be seen that at the time of filing clam application before the first opposite party the vehicle was registered in the name of complainant. The first opposite party issued the policy in favor of the complainant. If there was no insurable interest for the complainant how the first opposite party can issue a policy in favor of the complainant is to be considered.   So, the perusal of the document it can be seen that the complainant was the registered owner of the vehicle and he has got insurable interest also. The first opposite party issued policy in favor of the complainant after due receipt of premium amount. So, the insurance company is barred from contending that the policy holder has no insurable interest after issuance of insurance policy in favor of registered owner of vehicle. The opposite parties produced B5 and B6 documents and they are photo copies of two agreements. Except one Vinod Mathew, all others in B5 and B6 documents are parties in this complaint. Opposite parties 3 and 4 are parties to the documents B5 and B6. They are not turned up to the proceedings. Hence, we do not find evidentiary value as claimed by the first opposite party for B5 and B6 documents. The complainant has got a contention that he was out of station for certain period and so he entrusted the vehicle with third parties for a short period and that cannot be treated as ground to disentitle the claim of the complainant. There is no doubt that the vehicle was insured with opposite party by the complainant and no other person is before the opposite party claiming the insurance coverage. Hence, Commission finds that the complainant has got insurable interest and repudiation of claim by opposite party amounts deficiency in service. 

10.       Point No.2

            The complainant availed financial assistance to purchase the vehicle. Certainly, the loss of the vehicle might have resulted in a financial crisis to the complainant.  The complainant is not exempted from the payment of finance amount due to theft of vehicle. The complainant approached the opposite party with all relevant documents, but the insurance company repudiated the claim without sufficient reason. So, the complainant approached this Commission to redress his grievance. In the light of above facts and circumstances treating the total loss of the vehicle the first opposite party is directed to allow insured sum to the complainant. It is also proper to allow compensation for the mental agony and inconvenience cost to the complainant on account of deficiency in service on the part of first opposite party. It can be seen that the vehicle is financed with the second opposite party and lability also is pending according to the contention of complainant. But the second opposite party has not turned to the proceedings to establish the extent of liability from the complainant. The complainant is liable to settle the liability with second opposite party.

11.       In the circumstances we allow this complaint as follows: -

1. The first opposite party is directed to pay an amount of Rs.10,00,000/- (Ten lakh rupees only) to the complainant as the insured sum of the vehicle KL 65E 4493.
2. The first opposite party is also directed to pay Rs.1,00,000/- (One lakh rupees only) as compensation to the complainant on account of deficiency in service and thereby caused inconvenience and hardships to the complainant.
3. The first opposite party is directed to pay Rs.10,000/- (Ten thousand rupees only) as cost of the proceedings to the complainant.

The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled 12% interest on entire above said amount from the date of this order till realization.

Dated this 17^th day of February, 2022.

MOHANDASAN.K, PRESIDENT

PREETHI SIVARAMAN.C, MEMBER

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1to A9

Ext.A1: Copy of RC in respect of vehicle No.KL 65E 4493 Eicher Tipper.

Ext.A2: Copy of FIR 281/2016 of Bedakam police station.

Ext A3: Letter of the first opposite party dated 08/03/2018 repudiating the claim.

Ext A4: Copy of the policy number 42200/31/2016/11082issued by oriental insurance

company

Ext A5: Copy of registration particulars of vehicle No.KL 65E 4493 dated 28/12/2017

Ext.A6: Copy of goods carriage permit issued by RTO Tirurangadi dated 27/11/2014. E

Ext.A7: Invoice issued by 5^th opposite party for the tax paid from 01/01/2016 to

31/12/2016 in respect of vehicle No. KL 65E 4493.

Ext A8: Loan account statement issued by second opposite party to the complainant

Ext A9: Summons issued by the Patiala House Courts New Delhi to complainant dated

08/02/2017.

Witness examined on the side of the opposite party:  Nil

Documents marked on the side of the opposite party: Ext. B1 to B7

Ext.B1: Copy of repudiation letter issued by the first opposite party infavour of the

complainant dated 08/03/2018.

Ext.B2: Copy of FIR in crime No. 288/2016 of Bedakam Police station Kasargode

16/06/2016.

Ext.B3: Final report of the police in crime 288/2016 Bedakam Police Station Kasargode

dated 08/12/2017.

Ext.B4: Notice to informant under section 157(2) and 173(1) (b) of CRPC of Bedakam

police station, Kasargode infavour of the 4^th opposite party.

Ext.B5: Copy of sale agreement dated 02/04/2016 entered between complainant and 3^rd  

opposite party regarding sale of lorry bearing registration No..KL 65 E4493.

Ext.B6: is copy of sale agreement dated 09/05/2016 entered in to between third opposite  

party and Vinod Mathew regarding sale of lorry bearing registration No. KL 65  E4493.

Ext.B7: Copy of policy No.442200/31/2016/11082 in respect of vehicle No. KL65E4493

valid from 06/11/2015 to 05/11/2016.   

MOHANDASAN.K, PRESIDENT

                                                                                                  PREETHI SIVARAMAN.C, MEMBER