KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVANANTHAPURAM
Dated this the 30th December 2013
PRESENT:HON.JUSTICE.P.Q.BARKATHALI, PRESIDENT
APPEAL-284/2012
M/s Oriental Insurance Company Ltd,
Divisional Office II, Pramod Building,
Cherootty Road, Calicut,
R/by its Divisional Manager, - Appellant/Opp.Party
Divisional Office II, TVPM.
(By Adv: Sri.Varkala B. Revikumar)
Vs
M.S.Salim, S/o.M.S.Ibrahim, Thusharam,
Near Kalluthan Kadavu Bridge, - Respondent/Complainant
Puthiyara P.O, Calicut- 673 004
(By Adv: Sri. Shyam Padman)
ORDER
By HON.JUSTICE.P.Q.BARKATH ALI : PRESIDENT
This is an appeal filed by the opposite party in CC 29/2006 on the file of Consumer Disputes Redressal Forum, Kozhikode under section 15 of the Consumer Protection Act, 1986 challenging the order of the Forum dated Feb 04, 2012 directing the opposite party Insurance company to pay Rs.4,62,300/- being the price of the vehicle bearing No.KL 11-R-7220 which was found missing on Sep 11, 2004. The appellant was also directed to pay cost of Rs.5,000/-.
The case of the respondent/complainant as testified by him as PW1 and as detailed in the complaint before the Forum in brief is this:
Complainant is the registered owner of Toyota Qualis car bearing registration No. KL 11-R-7220. It was covered by a valid insurance policy for the period from 14/7/2004 to 13/7/2005 with the opposite party. On 11/9/2004 complainant entrusted the vehicle to Mr.Mohammed Ashraf, who is his relative and an old employee to go to Chikamangalore. His driver Najeeb also went along with. On 12/9/2004 the driver informed the complainant that on the night of 11/9/2004 the car along with 3 other persons were found missing from the premises of Hotel Pradesh, B.C.Road, Mangalore. Complainant was under the impression that Mr.Asharaf had committed cheating and misappropriation of the vehicle. Accordingly on 13/9/2004 he preferred a complaint before the Medical College Police, Kozhikkode who registered the case as Crime No.245/2004. Subsequently it is revealed that the car was actually stolen by somebody. Therefore the complainant went to Mangalore on 24/1/2005 and filed a complaint before Additional Civil Judge and Judicial Magistrate of First Class, Bantwal, Mangalore. On the basis of that complaint Bantwal police has registered the case as Crime No.76/05 under Section 379/IPC. They filed a final report stating that the theft of the car is true and that the car could not be traced. When the complainant filed the claim before the opposite party for Rs.4,62,300/- they repudiated the claim on the ground that it was not actually a case of theft and that there was long delay to reporting the matter to the Mangalore Police. Therefore complainant filed the complaint claiming the price of the car with compensation and cost.
The appellant/ opposite party is M/S Oriental Insurance Company Limited, Calicut represented by its Divisional Manager who in his version before the Forum contented thus:-
It is admitted that the car of the complainant was insured with the opposite party during the relevant period. Regarding the missing of the car complainant had filed a complaint before the Kozhikode Medical College Police Station and the crime was registered as Crime No.245/04 under section 409 IPC. That being so, it cannot be said to be a case of theft. Subsequently complainant filed another complaint before Additional Civil Judge and Judicial Magistrate of First Class, Bantwal, Mangalore. On the basis of that complaint, Bantwal police has registered the case as Crime No.76/05 under Section 379/IPC. In both these complaints the complainant had given a different version regarding the incident. There is also delay in reporting the matter to the police. Therefore opposite party is justified in repudiating the claim of the complainant.
Complainant was examined as PW1 and Ext.A1and A2 were marked on the side of the complainant. On the side of the opposite party Exts.B1 to B5 were marked before the Forum. On an appreciation of evidence the Forum found that opposite party is not justified in repudiating the claim to the complainant and directed the opposite party to pay to the complainant IDB value of the car Rs.4,62,300/- and a cost of Rs.5,000/- with interest. The opposite party has come up in appeal challenging the said order of the Forum.
Heard both the counsels.
The following points arise for consideration.
1. Whether the opposite party is in justified in repudiating the claim of the complainant?
2. Whether the impugned order of the Forum can be sustained?
It is not disputed that the Toyota Qualis car bearing registration No.KL/11/R-7220 belonging to the complainant was covered by a valid insurance policy for the period from 14/7/2004 to 13/7/2005 with the opposite party. Ext.A1 is the said policy. The opposite party has also produced copy of the policy Ext.B3. The case of the complainant as testified by him as PW1 before the Forum in brief is this:- He entrusted the vehicle on Sep 11, 2004 to his relative Mohammed Ashraf to go to Chikamangalore and the same was found missing from the premises Hotel Pradesh, BC Road, Mangalore where the said Ashraf stayed. Apprehending that Mr.Ashraf had committed the misappropriation of the vehicle, he filed a complaint on 13/9/2004 before the Kozhikode Medical College police, who registered the case as crime No.245/2004. Subsequently on coming to know that vehicle was actually stolen he filed a complaint before the Additional Civil Judge and Judicial Magistrate of First Class, Bantwal, on 24/1/2005 who registered the case as Crime No.76/05 under Section 379/IPC. The police filed final report stating the car could not be traced. The claim submitted by the opposite party was repudiated the opposite party.
The opposite party, Insurance company contented that the Kozhikode Medical College police registered case under section 409 IPC and that there was a delay of another 26 days in reporting the matter to the Bantwal police and that therefore it is not a case of theft and consequently the complainant is not entitled to the claim amount. For several reasons we find no substance in the above contention of the opposite party. On 13.09.2004 complainant complained before the Kozhikode Medical College police about the missing of the vehicle. At that time he was under the impression that the said Ashraf has taken away the vehicle. On knowing about the real facts he filed the complaint before the Additional Civil Judge and Judicial Magistrate of First Class, Bantwal, Mangalore. The police submitted final report stating that the car could not be traced. That being so, it cannot be said that there was any delay on the part of the complaint in reporting the matter to the police.
There is another aspect in this matter. It has been held by Supreme Court In National Insurance Company Vs Nithin Khandelwal (IV (2008) CPJ 1 (SC) that in the case of theft of a vehicle nature of use of vehicle cannot be looked into. For all these reasons we are of the view that the opposite party is not justified in repudiating the claim of the complainant. Therefore he is entitled to the IDB value of the vehicle of Rs.4,62,300/-. The finding of the Forum on this point is confirmed.
Forum has directed the opposite party to pay Rs.4,62,300/- and a cost of Rs.5000/- with interest @ 9% per annum on the date of the order. I find no reason to interfere with the said finding of the Forum.
In the result I find no merit in this appeal and the same is hereby dismissed with a cost of Rs.5,000/-.
JUSTICE.P.Q.BARKATHALI : PRESIDENT
VL.
