KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.90/09 JUDGMENT DATED 28.8.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER M/s.Oriental Insurance Co.Ltd. Divisional Office-II. Kannur Reptd. by its Divisional Manager -- APPELLANTDivisional Office-1, Thiruvananthapuram. (By Adv.Varkala B.Ravikumar) Vs. 1. K.P.Vinayan, Kunhiparampathu House, Valiyannur P.O, Varail, Kannur. 2. Sub Inspector of Police, -- RESPONDENTS Kannur. 3. Regional Transport Officer, Kannur. (R1 by Adv.P.M.Pareeth) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred against the order dated 5th November 2008 passed by CDRF, Kannur in CC.No.8/06. The complaint therein was filed by the first respondent as complainant against the appellant as first opposite party and respondents 2 and 3 as opposite parties 2 and 3 respectively alleging deficiency in service on the part of the first opposite party in repudiating the insurance claim preferred by the complainant with respect to the insured vehicle bearing registration No.KL 13 J 1498. The first opposite party/Insurance Company entered appearance and filed written version denying the alleged deficiency in service. They contended that the complainant was not having any insurable interest in the vehicle on the date of the theft of the vehicle and so the complainant is not entitled to get the insurance claim. Thus, the first opposite party justified their action in repudiating the insurance claim. 2. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A11 documents on his side. A witness from the side of the opposite parties was examined as DW1 and Exts.B1 and B2 documents were also marked on the side of the first opposite party. Ext.X1 case diary of Kannur Town Police station was also marked. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 5.11.08 directing the first opposite party to pay Rs.2,30,000/- with interest at the rate of 8% per annum from 9.1.2006 till realization and a cost of Rs.1000/-. Aggrieved by the said order, the present appeal is preferred by the first opposite party therein. 3. We heard both sides. 4. The learned counsel for the appellant/first opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the first respondent/complainant was not having any right or insurable interest in the insured vehicle at the time of taking the policy and that the policy was taken by suppressing the material facts. It is further submitted that there occurred delay in preferring the insurance claim. He also relied on B1 FIR and B2 letter and argued for the position that the complainant was not in possession/ownership of the vehicle at the time of the theft of the vehicle. On the other hand, the learned counsel for the first respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal. 5. Admittedly, the first respondent/complainant is the registered owner of the insured vehicle bearing registration No. KL 13 J 1498 and that the said vehicle was insured with the appellant/first opposite party Oriental Insurance Company Ltd; for the period from 14.9.2004 till 13.9.05. There is no dispute that the insured vehicle was stolen on 6.2.05. Thus, on the date of theft of the vehicle there was a valid and effective policy of insurance issued by the appellant/first opposite party Oriental Insurance Company Ltd. The first respondent/ complainant being the registered owner and insured of the vehicle is entitled to get the insurance claim from the appellant/first opposite party Insurance Company. The appellant/first opposite party repudiated the insurance claim on the ground that the first respondent/complainant/insured had sold the vehicle on 13.7.04 to one Sunil Kumar. But, the appellant/first opposite party has not produced any document to show that such a sale or transfer of the vehicle had occurred. The appellant/opposite party much relied on B2 letter dated 18.10.05 said to have been issued by the complainant to the appellant/first opposite Insurance Company. But the first respondent/complainant totally denied issuance of B2 letter. The complainant as PW1 has categorically deposed that he never issued such a letter. Thus, issuance of B2 letter is denied by the complainant. There is no evidence on record to show that such a letter was issued by the complainant to the appellant/opposite party Insurance Company. DW1 has no case that he received B2 letter from the complainant. The person who accepted the so-called B2 letter has been examined in this case. It is further to be noted that the complainant submitted the claim form on 13.9.05 claiming the insurance amount. But, B2 letter is dated 18.10.05. This circumstance would give an indication that there was no situation or circumstance for issuing B2 letter subsequent to A5 claim form. Thus, the appellant/first opposite party Insurance Company has miserably failed in establishing their case. The available evidence would show that the complainant is continuing as the owner of the insured vehicle. B1 FIR would not support the case of the appellant/opposite party Insurance Company that the insured vehicle was sold by the registered owner namely, the complainant K.P.Vinayan. More over, the person who gave the first information statement has not been examined in this case. The person who recorded the FIR has also not been examined in this case. On the other hand, the evidence of PW1, the complainant would make it clear that he is the registered owner of the insured vehicle and that the agreement said to have been executed between the complainant and V.K.Sunilkumar was not supported by consideration. So, B1 FIR would not support the case of the appellant/first opposite party Insurance Company. 6. Another important aspect to be noted at this juncture is the renewal of the Insurance policy by the first opposite party on 14.9.04. The alleged agreement was executed prior to renewal of the policy. It is pertinent to note at this juncture that at the time of renewal of the policy, the complainant was the registered owner and that the appellant/first opposite party Insurance Company was fully satisfied to issue the policy in the name of the registered owner of the vehicle namely, K.P.Vinayan. There is no case for the appellant/Insurance Company that after the issuance of the policy on 14.9.04, the insured has parted with the ownership of the vehicle. So, as far as the insured vehicle is concerned, the first respondent/complainant is the registered owner and he is also the insured of the vehicle. The appellant/first opposite party Insurance Company entered into the contract of Insurance with the first respondent/complainant by treating him as the owner of the vehicle. So, on theft of the insured vehicle, the first opposite party Insurance Company was legally bound to indemnify the insured. Thus, the Forum below has rightly directed the first opposite party/Insurance Company to pay the insured amount of Rs.2,30,000/-. It is also to be noted that the first opposite party/Insurance Company has not disputed the market value of the vehicle at the time of the theft of the insured vehicle. So, the appellant/first opposite party Insurance Company is bound to pay the insured amount of Rs.2,30,000/-. The Forum below has only awarded reasonable interest at the rate of 8% per annum from the date of the complaint in CC.8/2006 and also to pay cost of Rs.1000/-. We do not find any reasonable ground to interfere with the impugned order passed by the Forum below. Thus, the present appeal deserves dismissal. Hence we do so. In the result, the appeal is dismissed. The impugned order dated 5.11.08 passed by CDRF, Kannur in CC.8/06 is confirmed. As far as the present appeal is concerned, there will be no order as to costs. M.V.VISWANATHAN -- JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER s/L |
