cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 13th day of February 2013
Filed on : 17/10/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 567/2011
Between
Abubacker P.P., : Complainant
Puthiyedath house, (By Adv. Tom Joseph, Court
Mudavoor P.O., Muvattupuza. Road, Muvattupuzha)
And
M/s. Future General India : Opposite party
Insurance Company Ltd., (By Adv. Saji Isaac K.J,
4th Floor, Malabar Cochin Arcade, 311, H.B. Flats, Panampilly
M.G. Road, Ernakulam-682 019. Nagar, Kochi-682 016)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is the registered owner/insured of the Swaraj Mazda Tipper Lorry bearing Reg. No. KL-17G-1362. Due to his personal inconvenience, the complainant entrusted the vehicle with Mr. Ullas, S/o. Ravindran, Muttathu house, Kalayapuram P.O., to look after the vehicle. Mr. Ullas had agreed to purchase the vehicle after clearing the vehicle loan. The vehicle was insured with the opposite party. While so, the vehicle met with an accident on 26-09-2010 and was damaged extensively. The vehicle was entrusted with M/s. Eric Motor Pvt. Ltd. Kottayam for repairing. Subsequently a claim was lodged with the opposite party. But the claim was repudiated by the opposite party by their letter dated 15-06-2011. The reason given for the repudiation is that the vehicle owner on the date of accident is Mr. Ullas and not the complainant. It is also stated that the complainant does not have any insurable interest. The reason given for the repudiation of the claim is false and unsustainable. The complainant is the registered owner and the insured of the vehicle at the time of the accident. The vehicle was not transferred to Mr. Ullas as alleged by the opposite party. So the repudiation of the insurance claim amounts to deficiency in service. The complainant spent Rs. 1,04,176/- towards repairing charges. He is entitled to get Rs. 1,04,176/- from the opposite party along with interest at the rate of 15% p.a. from the date of claim till realization together with costs of the proceedings. This complaint hence.
2. The version of the opposite party is as follows:
The complainant does not have any insurable interest in the vehicle since the vehicle was sold by the complainant to one Mr. Ullas. The complainant is not the owner of the vehicle. The vehicle was insured by the complainant with the opposite party without any insurable interest. Since the complainant does not have any insurable interest in the vehicle the ;opposite party is not liable to pay insurance amount to the compliant. There is no deficiency in service on the part of the opposite party. The complaint is liable to be dismissed.
3. No oral evidence was adduced by the parties. Exts. A1 to A4 and B1 to B7 were marked on the side of the complainant and the opposite party respectively. Heard the counsel for the parties.
4. The points that emanated for consideration are as follows:
i. Whether the complainant is entitled to get insurance claim
from the opposite party?
ii. Whether the opposite party is liable to pay costs of the
proceedings to the complainant?
5. Point No. i. Admittedly the complainant is the registered owner of the tipper lorry bearing Reg. No. KL-17G 1362 evidenced by Ext. A1 copy of registration certificate. It is not in dispute that the complainant insured the vehicle with the opposite party evident from Ext. A2 insurance cover note. It is also not in dispute that the vehicle met with an accident on 26-09-2010 . The opposite party repudiated the insurance claim of the complainant by Ext. A4 letter dated 15-06-2011 which reads as follows:
“This refers to the aforesaid claim which was reported to us on 07-10-2010. We had appointed M/s. Thrikka Solutions to Investigate this case and submit us a Report on this incident.
As per their report the aforesaid vehicle was sold by you to Mr. Ullas on 11/07/2010 and a Sale Deed for effecting this transaction has been made available to us. You have also clearly in your letter dated 10th March 2011 addressed to us stated that you have sold the vehicle to Mr. Ullas. The bail bond of the Police Authorities also states that the vehicle has been sold to Mr. Ullas.
Based on the aforesaid points it is clear that the vehicle owner on the date of accident is Mr. Ullas and not you. One of the foremost principles governing the Insurance Contract is Insurable Interest. As you do not have any insurable interest in the vehicle bearing No. KL-17/G-1362 on the date of loss i.e. 26/09/2010, we are constrained to state that we would not be in a position to consider your claim favorably.”
6. According to the complainant the complainant entrusted the vehicle with Mr. Ullas, S/o. Ravindran to look after the same since he agreed to purchase the vehicle on completion of payment of the loan amount. The complainant maintains that the rejection of insurance claim is unsustainable in view of the decision of the Hon’ble Supre Court in Pushpa @ Leela & Ors. Vs. Shakuntala & Ors 2011 SAR (Civil) 149. The opposite party vehemently contented that the vehicle was insured with the opposite party without any insurable interest and so the opposite party is not liable to pay any amount to the complainant. The opposite party relied on the decision of the Hon’ble High Court of Kerala in Swaminathan Vs. Jayalakshmi Amma 1987 (2) KLT 292.
7. Ext. B6 letter dated 10-03-2011 issued by the complainant to the opposite party goes to show that the complainant had sold the vehicle to Mr. Ullas and also stated that the complainant has no objection in disbursing the insurance amount to Mr. Ullas. Exts. B1 to B3 and B5 would show that Mr. Ullas was in ownership and possession of the vehicle on the date of accident. It is evident from Ext.B4 that the complainant had taken possession of the vehicle from Kottarakara Police Station in furtherence of the accident involved in the case. So as on the date of accident the complainant was neither in possession nor in ownership of the vehicle. The contention of the complainant that he was the owner of the vehicle on the date of accident is not sustainable since Mr. Ullas had purchased the vehicle as per Ext. B5 agreement entered into between the complainant and Mr. Ullas.
8. In the above circumstances we have no hesitation to hold that the complainant have no insurable interest as on the date of accident over the vehicle and so he is not entitled to get insurance claim from the opposite party Our decision is based on the pronouncement of the Hon’ble National Consumer Disputes Redressal Commission in Dharambir Vs. New India Assurance Co. Ltd. IV (2012) CPJ 639 (NC). The decision rendered by the Hon’ble Supreme Court and relied on by the complainant is not in tune with the facts and circumstances of the case and since the same has been rendered in a different footing, we are not to place any reliance on it.
9. In the result, we are only to reject the contentions of the complainant. Held so.
Pronounced in the open Forum on this the 13th day of February 2013
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of certificate of registration
A2 : Copy of cover note
A3 : Copy of tax invoice
A4 : Copy of letter dt. 15-06-2011
Opposite party’s Exhibits : :
Ext. B1 : Copy of charge sheet
B2 : Copy of notice
B3 : Copy of reply notice
B4 : Copy of report
A5 : copy of mahasar
dt. 01-09-2010
B6 : Copy of letter dt. 10-03-2011
B7 : Copy of private and
confidential motor (final)
survey report
