Kerala

StateCommission

A/13/439

ORIENTAL INSURANCE COMPANY - Complainant(s)

Versus

KOROTHON NANU - Opp.Party(s)

G.S.KALKURA

31 Mar 2015

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

APPEAL NO.439/2013

JUDGMENT DATED : 31.03.2015

 

(Appeal filed against the order in CC.No.223/2001 on the file of CDRF, Kannur order dated : 06.02.2013)

PRESENT

SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER

SMT.A.RADHA :MEMBER

SMT.SANTHAMMA THOMAS :MEMBER

APPELLANT

The Divisional Manager,

Oriental Insurance Company,

City Branch Office,

Raz Building, 1^{st Floor,}

^{South Bazar, Kannur – 2}

^{(By Adv.Sri.G.S.Kalkura)}

^VS

^RESPONDENTS

^{1.Korothon Nanu (Late)}

^{Banana Merchent, Iritty,}

^{Kannur District}

^2.Devaki.V.K

^W/o.K.Nanu,

^{Banana Merchent, Iritty,}

^{Kannur District}

^{3.Jayarajan.K.}

^S/o.Nanu,

^{Banana Merchent, Iritty,}

^{Kannur District}

^4.Sobha.K,

^D/o.K.Nanu,

^{Banana Merchent, Iritty,}

^{Kannur District}

^{5.Prasanth.K.}

^S/o.K.Nanu,

^{Banana Merchent, Iritty,}

^{Kannur District}

^{6.Praseetha.K}

^D/o.K.Nanu,

^{Korothu House,}

^{N.P.Road, Iritty.}

^{(R2,R3, R4 & R6 by Adv.Sri.Sunil.V.Mohammed)}

^JUDGMENT

^{SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER}

^{Appellant was the opposite party in CC.No.223/2001in the CDRF, Kannur. The complainant who died during the pendency of the proceedings alleged that he was the owner of the lorry bearing Reg.No.KL 13-C 1591. The said vehicle was hired by two unknown persons on 21.09.2000 for transporting oranges from Madikeri to Iritti. The vehicle was stolen from the driver by administering some tranquilizing substance to the driver. When the driver regained consciousness, he approached the Madikeri Town Police station and lodged complaint. Accordingly Crime No.27/2000 was registered. The lorry had valid insurance with the opposite party. The complainant lodged claim before the opposite party on 30.10.2000. The District Police Officer Madikeri has given permission to file " C" Report which was produced before the opposite party for further action. The police filed final report in the crime before the Trial Magistrate on 08.11.2000. There after also claim was lodged before the opposite party. Though the complainant contacted the opposite party several times, they deliberately evaded to honour the claim and constantly directed the complainant to contact the police to see whether recovery of the vehicle was effected or not. While so during February 2001 the police informed the complainant that they had recovered a vehicle supposed to be stolen from the complainant. In fact, the said vehicle was neither the vehicle of the complainant nor a genuine one. The opposite party repudiated the claim of the complainant without further investigation stating that his vehicle is already detected. Though the complainant issued notice through its lawyer on 26.02.2001, there was no response. As a result of the inaction of the opposite party the complainant suffered much mental pain. The action of the opposite party amounts to unfair trade practice as well as deficiency in service.}

 

^{2. Before the consumer forum the opposite party admitted that the lorry was insured with them. They contended that it is their duty to indemnify the complainant in case the vehicle is lost or is undetectable. They kept payment of the insurance claim in abeyance even after the final report before the Judicial First Class Magistrate Court only due to the information from the investigating team that there was a possibility of recovering the stolen vehicle. The vehicle in question is actually recovered by the police subsequently. The investigator engaged by the opposite party has also reported that the vehicle recovered is exactly the one stolen from the complainant. Hence the opposite party is not legally liable to pay the insurance claim. Since the opposite party got letter from the investigating team that there was every possibility of recovering the stolen vehicle, opposite party requested the complainant to wait for payment for some more time. There was no malafide intention on their part. The recovered vehicle is kept in the premises of the District Crime Investigation Bureau, Kodagu, Karnataka. It was then the opposite party engaged investigator to verify whether the vehicle recovered was the stolen one or not. The investigator reported that the recovered vehicle was same as the stolen one. The complainant himself inspected the vehicle and initially told that it was his own stolen vehicle. Only for getting money from the opposite party the complainant is saying that the recovered vehicle does not belong to him. The allegation that engine number and chassis number are tampered is a false story. The report shows that the vehicle is in a good running condition. The complainant ought to have got the vehicle released and made request for compensation for the damage caused to the vehicle. That was not done. The opposite party negotiated with the complainant in that regard but he rushed to the District Forum without even considering the reply notice issued by the opposite party. There was no deficiency in service or unfair trade practice on the part of the opposite party.}

^{3. The District Forum once disposed of the complaint. There was appeal before this commission and after remand. PWs 2 & 3 were recalled and examined. Two more documents were marked on the side of the complainant. The opposite party adduced no further evidence. The District Forum considered the oral evidence of PWs 1 to 3 and DWs 1 & 2 and EXts.A1 to A21 , B1 to B10 and C1 & C2 and held that repudiation of the claim could not be justified taking into consideration the facts and circumstances of the case . Accordingly the district forum directed the opposite party to settle the claim for a sum of Rs.3,54,500/- with interest at the rate of 4% per annum from the date of complainant and pay cost of Rs.2500/-.Aggrieved by the said order the opposite party has preferred the appeal. After the evidence was closed, the complainant was reported dead and the legal heirs were impleaded as additional complainants at the District Forum itself. The question that arises for consideration is whether the District Forum was justified in passing in the impugned order.}

^{4. Admittedly, the vehicle bearing Reg.No.KL 13-C 1599 was insured with the appellant at the time when the vehicle went missing. The case of the complainant is that the vehicle was hired by two unknown persons for transporting oranges from Madikeri to Iritti on 29.02.2000. On the way some tranquilizing substance was given to the driver of the vehicle and they took away the vehicle. The Madikeri town police registered crime no.27/2000 in relation to the incident. It was during February 2001 that the police informed the complainant that they had seized a vehicle which according to the police was the vehicle stolen from the complainant. The claim of the complainant was repudiated by the appellant on the ground that the vehicle of the complainant was detected during investigation. The complaint is filed on the allegation that the vehicle subsequently recovered is not the one belonging to the complainant. The said claim of the complainant is upheld by the District Consumer Forum.}

^{5. No doubt the obligation of the appellant to indemnify the insured complainant arises only if the vehicle is lost or is undetectable and the final authority to say that the vehicle is lost or is undetectable is the police and the magistrate court. In other words, it is the police and the magistrate court concerned which is the final authority to say whether the vehicle detected was the one in the name of the complainant. The appellant insurer is bound to act simply in accordance with the decision of the police and the magistrate court. The role of a consumer forum is limited to see whether there is deficiency in service or not. When an insurance company acts in tune with the opinion of the investigating officer and the magistrate court no deficiency in service can be attributed on their part. The consumer forum is also not expected to collect its own evidence and say that the vehicle detected is not that of the complainant. Yet, the District Consumer Forum exactly did that. In Ext.A9 RC book of the vehicle of the complainant the chassis number and engine number are given. Ext.B10 pencil print of the chassis number of the detected vehicle tallies with the chassis number in the RC book. It is true that there is attempt to tamper with the number. The insurance surveyor has filed Ext.B8 report and he has verified the engine number and chassis number of the vehicle and found it to tally with the engine number and chassis number in the RC book . Further he found that the vehicle was in a running condition.}

^{6. The English translation of the seizure mahazar prepared at the time of seizure of the vehicle dated 22.02.2001 is also produced. It gives the engine number and the chassis number of the seized vehicle and it tallies with the chassis number and engine number given in the RC book. The model is also same. According to the police who detected and seized the vehicle a loss of Rs.50,000/- seemed to have been caused to the vehicle. In the final report also it is reported by the police that the vehicle was in a running condition. In the light of this evidence it can not at all be said that the repudiation of the claim by the insurance company was not justified. A consumer forum is not entitled to sit in appeal in such matters and take a view different from that of the insurance company merely because it thought it to be expedient to do so. Nor it can be said that there is deficiency in service in such situations. The contention of the appellant that there is sufficient evidence to show that the detected vehicle was the vehicle that went missing from the custody of the complainant can not be brushed aside as untrue. So there is force in the contention of the insurance company that the complainant ought to have accepted the vehicle and claimed compensation for the damages caused to the vehicle while it was missing. In short, the District Consumer Forum erred in allowing the complaint. There fore the appeal is liable to be allowed}

^{In the result, the appeal is allowed. The order of the Consumer Forum, Kannur in CC.No.223/2001 dated 06.02.2013 is set aside. The complaint is dismissed. The parties are directed to bear their costs in this appeal.}

^{K.CHANDRADAS NADAR : JUDICIAL MEMBER}

 



^{A.RADHA : MEMBER}

 



^{SANTHAMMA THOMAS : MEMBER}

 



^Be/

 











^{KERALA STATE}

^{CONSUMER DISPUTES}

^{REDRESSAL COMMISSION}

^{SISUVIHARLANE}

^VAZHUTHACADU

^{THIRUVANANTHAPURAM}

 

^{APPEAL NO.439/2013}

^JUDGMENT

^{DATED : 31.03.2015}

 

^Be/