. KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS:75/09 & 108/09 JUDGMENT DATED:17..04..2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU : PRESIDENT APPEAL NO:75/2009 The Branch Manager, New India Assurance Company, East Cost Chambers, 1st floor, : APPELLANT 92-G.N. Chetty Road, T.Nagar, Chennai. (By Adv:Sri.Rajan P. Kalliyath) Vs. 1.Kamaruddeen T.M, S/o Mohammed Kunhi, Thayal House, Balakad, Nellikunnu, Kasaragod District. 2.The Manager, Ashok Leyland Finance Ltd., : RESPONDENTS Zonal Office, No:25, 3rd floor, Mangalam Chambers, K.H.Road, Bangalore 560 027. 3.The Manager, Branch Office, Ashok Leyland Finance Ltd., 2rd floor, Rambhavan Complex, Kodaialbail, Mangalore. (By Adv: Sri.R.Balakrishnan Nair) APPEAL NO:108/2009 1.The Manager, Ashok Leyland Finance Ltd., Zonal Office, No:25, 3rd floor, Mangalam Chambers, K.H.Road, Bangalore 560 027. 2.The Manager, Branch Office, Ashok Leyland Finance Ltd., : APPELLANTS 2rd floor, Rambhavan Complex, Kodaialbail, Mangalore. (By Adv: Sri.R.Balakrishnan Nair) 1.Kamaruddeen T.M, S/o Mohammed Kunhi, Thayal House, Balakad, Nellikunnu, Kasaragod District. 2.The Branch Manager, New India Assurance Company, East Cost Chambers, 1st floor, : RESPONDENTS 92-G.N. Chetty Road, T.Nagar, Chennai. (By Adv:Sri.Rajan P. Kalliyath) COMMON JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU: PRESIDENT The appellant in appeal:75/09is the 1st opposite party/New India Assurance Company Ltd. and the appellants in A:108/09 are the 2nd and 3rd opposite parties/Financiers in CC:129/05 in the file of CDRF, Kasaragod. The 1st opposite party/appellant in A:75/09 is under orders to pay a sum of Rs.75,000/- with interest at 9% from the date of complaint and opposite parties 2 and 3/financiers/appellants in A:108/09 are under orders to pay Rs.25,000/- to the complainant. 2. The case of the complainant is that his Maruthi car covered by the policy of the 1st opposite party was stolen on 12/8/2002. The vehicle has hypothecated with opposite parties 2and 3. According to him he intimated the matter to the insurer and the financier immediately. The financier recovered the amounts advanced. The insurer repudiated the claim on the ground of delay in submitting the claim. According to the complainant the delay if any was on the part of the financier as the money was advanced under the hire purchase scheme and the 3rd opposite party was the owner and only after remittal of the dues the required discharge certificate of ownership was given. 3. The insurer has repudiated the claim on the ground that the theft was intimated only after 2 years vide letter dated 15/09/2004 sent by the financier enclosing the claim papers and they received it only on 24/09/2004. It is also contended that the chargesheet is for the offences under Secs.406 and 420 read with Sec.34 of IPC and hence it is not a case of theft. 4. The financier filed version denying any information about the alleged theft. They have issued no objection certificate so as to make the complainant the absolute owner after the amounts were repaid. They have denied any liability. 5. The evidence adduced consisted of the testimony of PW1 and Exts.A1 to A6 and B1 to B8. 6. The Forum has held that the claim is liable to be settled on non standard basis and directed the insurer to pay 75% of the ID value of Rs.1,00,000/- with interest at 9% from the date of complaint. 7. According to PW1 he had intimated both the company as well as the financier and it was the financier who delayed in forwarding the claim to the insurer. It is seen from the evidence adduced that the incident took place on 12/08/2002 and the FIR has been lodged on 14/08/2002. The final report is dated:2/3/2004. The accused are one Ail Vahid and his wife Sheeja. As per the final report both the accused are absconding and the vehicle was not recovered. Both the offences in the charge sheet is not for the offence of theft as such and the offences for which the accused have been charged are sections 406 and 420 IPC. As per the conditions of policy “malicious act” is also covered apart from theft. Hence the contention of the insurer that the policy would not cover the particular incident and consequent loss cannot be countenanced. 8. Of course there is a delay of 2 years in intimating the matter to the insurance company. The complainant could not produce any documentary evidence to prove that he has intimated the matter to the insurer in time. As per the policy the complainant was liable to intimate the fact of theft immediately. It is the financier who has forwarded the claim with the relevant papers. Hence the finding of the Forum that the default was on the part of the financier. The counsel for the insurance company has cited the decision in Devendra Singh Vs. New India Assurance Company Ltd. and Others, III 2003 CPJ 77 (NC) wherein the National Commission upheld the orders of the Forum and the State Commission in dismissing the claim which was submitted after one month of the incident. We find that the decision is not exactly on the point as the National Commission has noted that the complainant has been permitted by the State Commission to resort to Civil Court and ordered exclusion of time under section 14 of the Limitation act. We find that the loss sustained as evident from the final report and the testimony of PW1 has not been disproved. It is taking into consideration the fact of delay that 75% of the amount has been ordered to be paid allowing the claim on non standard basis. Of course we see that the delay is rather inordinate. In the circumstances the order of the Forum to pay interest at 9% from the date of complaint is liable to be deleted. Hence the appellant in A:75/09 the insurer is directed to pay to the complainant Rs.75,000/- within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% per annum from the date of this order. 9. The appellants in A:108/09/financiers have been ordered to pay Rs.25,000/- as compensation as they have not forwarded the claim to the complainant in time and waited till the recovery of the entire hire purchase amounts from the complainant. Opposite parties 2 and 3 have not adduced any direct evidence to controvert the case set up by the complainant. In the circumstances, we find that no interference in the order of the Forum with respect to the appellants in A:108/09 is called for. In the result A:75/09 is allowed in part and A:108/09 is dismissed. Office will forward the LCR to the Forum along with the copy of this order urgently. JUSTICE K.R.UDAYABHANU: PRESIDENT VL. | 
