By Smt. C. S. Sulekha Beevi, President,

1. Complainant is the registered owner of Mahindra Scropio vehicle KL-7AK/6169 which was insured with opposite party. On 24-10-2006 complainant entrusted the vehicle for a few days to his close friend Sainudeen, S/o Veeramunni. While the vehicle was used by Sainudeen, on 28-10-2006 the vehicle was parked in the car shed of the residence of Ummer who is the brother of Sainudeen. In the morning of 29-10-2006 the vehicle was found to be stolen. Complainant along with Sainudeen lodged a complaint before the Melattur Police Station and a crime vide No.243/2006 was registered under Sec. 379 IPC. After investigation the case was referred by police as undetectable and a notice was issued for the same to the complainant. Complainant submitted a claim form to opposite party along with necessary documents. Opposite party repudiated the claim without valid grounds. Hence this complaint alleging deficiency in service.

2. Opposite party filed a detailed version in which the issuance of comprehensive insurance policy for the vehicle during the period 10-8-2006 to 09-8-2007 is admitted. Denying the liability to indemnify the loss of vehicle, it is submitted by opposite party that the policy was obtained by misrepresentation and suppression of material facts. It is stated that by letter dated, 31-10-2006, one Yousuf Haji, S/o Veeramunni informed the branch office at Perintalmanna that the Scorpio vehicle KL7/AK/6169 used by his brother Ummer was parked at his residence on 28-10-2006 and was stolen. A claim form was issued. On receiving the claim form signed by the insured, the company arranged for an investigation into the alleged theft. Sri. Haridasan Nair, Retired Deputy Superintendent of Police was deputed as investigator. The investigator recorded statements of 1. Complainant, 2) Smt.P.T.Shabina, W/o A.K.Sainudeen 3) Sri.A.K. Hameed, S/o Hamza 4) Sri.Anwarsadat and collected evidence. That it is reported by investigator that complainant on his own admission had sold the vehicle to Sri. Sainudeen, S/o Veeramunni as per agreement dated, 14-4-2005. That the agreement was produced by complainant before the investigator and that the investigator obtained a copy of the same. According to investigator Sri. Sainudeen who purchased the vehicle from complainant was employed in gulf and the vehicle was used by his father’s brother Sri. A.K. Hameed. That complainant had availed loan for purchase of the vehicle and this transaction was pending. That though the vehicle was sold, the R.C. and I.C remained in the name of complainant. That on 14-4-2005 itself complainant had transferred ownership of vehicle to Sainudeen and handed over custody and possession of the vehicle. Thus on 10-8-2006 the date on which the current policy was obtained by complainant, he was not the owner of the vehicle. That on that date the complainant had no insurable interest on the vehicle. That complainant had falsely held himself out as the owner of the vehicle while obtaining the policy. Opposite party denies the averments in the complaint that the vehicle was entrusted to Sainudeen for his use for a few days on cordial and friendly terms. Opposite party had informed the complainant the grounds for repudiation. The claim of Rs.5,00,000/- is without basis. The IDV of the vehicle is Rs.3,50,000/-. That complainant is not entitled to any claim.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A6 marked for him. Opposite party filed counter affidavit and Exts.B1 to B9 marked for him. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

The undisputed facts of the case are (i) the vehcile KL7 AK/6169 had a comprehensive insurance coverage vide policy issued by opposite party for the period 10-8-2006 to 09-8-2007. (ii) the vehicle was lost by theft during the currency of the policy. (iii) On the relevant date the RC & IC of the vehicle stood in the name of complainant.

6. The claim of the complainant has been dishonoured by opposite party raising the contention, that though the registration certificate and insurance certificate stands in the name of complainant, he had sold the vehicle to one Sainudeen on 14-4-2005 itself. Opposite party placed reliance on Ext.B3 which is the report of investigator. In this report the finding of the investigator is that the claim of the complainant is not maintainable as he has sold the vehicle to Sainudeen and has received consideration without informing the company. Ext.B3(g) is a photo copy of an agreement between complainant and Sainudeen dated, 14-4-2005. In this agreement it is seen stated that the vehicle KL7/AK 6169 is transferred to Sainudeen for a total consideration of Rs.4,95,000/-. Towards this amount Rs.1,73,800/- is seen stated to be paid on the date of agreement by cash to the complainant and towards the balance of Rs.3,21,200/- a condition is stipulated that Sainudeen shall repay the hire purchase instalments without default. Opposite party has stated that at the time of theft the hire purchase transaction was pending. Even if we consider the agreement to be true there is no evidence to establish whether the conditions stipulated in the agreement have been fulfilled. The title in the goods will pass only when these conditions have been fulfilled. This apart opposite party has not examined the investigator nor his affidavit filed though it is stated that the copy of agreement was obtained by investigator. Ext.B3(b) to Ext.B3(f) are purported to be statements recorded by the investigator. The signature of the persons whose statements are recorded are seen obtained by the investigator in each page. It amazes us how an investigator who is not appointed under any provisions of law, but merely by an insurance company can obtain signature of persons after recording their statements. Even in the Criminal Procedure Code the police officer recording the statement of a witness as part of investigation should not obtain the signature of the person whose statement is recorded. This is intended to safeguard the interest of a person who becomes a witness in the course of investigation. The investigator is not appointed by the Company under any provisions of the Insurance Act. Hence his report cannot be accepted without being proved and supported by reliable evidence. Opposite party has not examined the witnesses to the agreement or any of the persons whose statements were recorded by the investigator. For these reasons the report of the investigator along with the statements recorded by him and the photo copy of the agreement collected by the investigator and produced by opposite party is unacceptable to us.

7. Admittedly the registration of the vehicle and the insurance policy stands in the name of complainant. It has been consistently pleaded and affirmed by the complainant that the vehicle happened to be in the possession of another person only because he had entrusted the vehicle to Sainudeen temporarily for his use. Further, as per the contention of opposite party the vehicle was sold long back on 14-4-2005. But opposite party has issued Ext.B9 policy on 10-8-2006. While issuing the policy opposite party has the bounden duty to check the vehicle as well as vehicle documents. Hence opposite party is estopped from raising the contention that the vehicle was already sold prior to the issuance of Ext.B9 policy. We are able to conclude that opposite party was not justified in repudiating the claim. The denial of claim without cogent evidence amounts to deficiency in service. We find opposite party deficient in service. Point found in favour of complainant.

8. Point (ii):-

Complainant claims for Rs.5,00,000/- towards value of vehicle along with interest @ 12% per annum, along with compensation of Rs.50,000/- and cost of Rs.7,500/-. In Ext.B9 the IDV of the vehicle is Rs.3,50,000/-. In our opinion complainant is entitled to this amount. He has to be compensated for the deficiency. The award of interest @ 6% per annum upon the above amount from the date of complaint till realisation together with costs of Rs.1,000/- would meet the ends of justice.

9. In the result we allow the complaint and order opposite party to pay to the complainant Rs.3,50,000/-(Rupees Three Lakh fifty thousand only) along with interest @ 6% per annum from date of complaint till payment together with costs of Rs.1,000/-(Rupees one thousand only) within one month from the date of receipt of copy of this order.

Dated this 30th day of December, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Photo copy of the registration certificate in respect of vehicle No.KL-07/AK 6169.

Ext.A2 : Insurance Certificate given by opposite party to complainant.

Ext.A3 : Photo copy of the First Information Report dated, 30-10-2006 prepared

by M. Gopalakrishnan, ASI of Police, Melattur.

Ext.A4 : Duplicate copy of Notice to Informant from Circle Inspector of Police, Pandikkad.

Ext.A5 : Photo copy of the letter dated, 16-9-2008 by complainant to opposite party.

Ext.A6 : Photo copy of the repudiation letter dated, 19-12-2008 from opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B9

Ext.B1 : Request dated, 31-10-2006 from Yousuf Haji.A. to opposite party.

Ext.B2 : Motor Claim Form submitted by complainant to opposite party.

Ext.B3(a to g) : Report dated, 16-01-2007 by Haridasan Nair, Former Deputy Superintendent of Police, CBI., Investigator together with signed statements (3 Nos.), Copy of FIR in CR 243/2006 of Melattur Police Station, copy of Agreement executed between the complainant and Sri.Sainudeen dated, 14-4-2005.

Ext.B4 : Letter dated, 15-02-2007 from opposite party to complainant.

Ext.B5 : Letter dated, 25-02-2008 from opposite party to complainant.

Ext.B6 : Claim Note recommending repudiation dated, 24-11-2008 from opposite party.

Ext.B7 : Letter dated, 17-12-2008 from United India Insurance Company Ltd.,

Regional Office, Kochi to opposite party.

Ext.B8 : Photo copy of the repudiation letter dated, 19-12-2008 from opposite party to complainant.

Ext.B9 : Photo copy of the Insurance Certificate given by opposite party to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER