BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 15/07/2009

Date of Order : 04/08/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 366/2009

Between

 

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant’s case are as follows :

The 1^st complainant is the owner of the car bearing Registration No. KL-41 A 348. The vehicle was insured with the opposite party for the period from 22-05-2007 to 21-05-2008. The facts being so on 21-04-2008, one Fathima Suhra requested the 2^nd complainant who was driving the vehicle to drop her at Aluva Bus stand. On the way to the bus stand, the 2^nd complainant visited the rented house in which his staffs were residing. The 2^nd complainant put his mobile phone, purse and key of the car in a table and entered the toilet. By the time, the said Fathima Suhra locked him in the bathroom and took the vehicle from there. At the instance of the 2^nd complainant, Aluva Police registered Crime No. 840/2008. The stolen car met with an accident at Chalakkudy. Later, the Judicial First Class Magistrate Court, Aluva released the car to the complainant. The insurance claim application of the complainant was repudiated by the opposite party. The complainants are entitled to get the amount fixed by the insurance surveyor, together with costs of the proceedings. Hence this complaint.

2. Version of the opposite party :

The opposite party admits the issuance of the policy. On investigation by the opposite party, it was revealed that on 21-04-2008 at about 5.35 p.m., the 2^nd complainant had forcibly taken one Fathima Suhra to his car from Aluva K.S.R.T.C. bus stand to his house for immoral activities. The 2^nd complainant forcibly took her to his house from the car. She managed to escape from his custody in the car. She drove the car to Chalakkudy and hit down a pedestrian. The 2^nd complainant lodged a false complaint before the police. The accident at chalakkudy was a concocted one. The 2^nd complainant has not taken any proper and reasonable steps to safeguard the insured vehicle. The illegal acts of the 2^nd complainant have compelled the said Fathima to drive the vehicle in a wreckless manner and she was not holding valid licence to drive the vehicle. Thus, the opposite party has repudiated the claim on 21-08-2008. The opposite party is not liable to pay any amount to the complainants. The opposite party requests to dismiss the complaint.

3. The 2^nd complainant was examined as PW1 and Exts. A1 and A2 were marked on the side of the complainants. No oral evidence was adduced by the opposite party. Exts. B1 to B8 were marked on the side of the opposite party. Argument notes were filed by the learned counsel for the parties and they were heard

4. The points that came up for consideration are :-

i) Whether the complainants are entitled to get insurance

claim from the opposite party?

ii) Costs of the proceedings?

5. Point No. i) :- The parties are not in dispute on the following issues :

1. The 1^st complainant is the registered owner of the car bearing Registration No. KL-41 A/348.

2. The vehicle was insured with the opposite party for the period from 22-05-2007 to 21-05-2008.

3. During the currency of the policy, the vehicle met with an accident on 21-04-2008.

4. The driver was not holding valid driving licence at the time of the accident.

5. The opposite party repudiated the insurance claim of the 1^st complainant on 3 reasons evident from Ext. A1

   1. Misrepresentation of material facts.

   2. Wreckless driving.

   3. Collusion between driver and owner’s husband.

6. According to the learned counsel for the complainant, the car was stolen by one Fathima Suhra who has no driving licence, the opposite party would not be absolved of its liability as there is no breach of conditions in the policy. It is stated that the opposite party did not adduce any evidence to substantiate the reasons for the repudiation of the claim. The counsel relied on the following decisions rendered by the higher authorities :

1. The Divisional Manager, United India Insurance Co. Ltd. Vs. Dinesh Kumar Agarwalla 2006 (I) CPR 28 Orissa SCDRC.

2. M/s. Sarvalakshmi Marines Vs. Oriental Insurance Co. Ltd. & Anr. (2007 (3) CPR 1 (NC).

7. The learned counsel for the opposite party contended that the complainants failed to disclose the actual facts in this Forum. It is stated that the insured has violated the following terms and conditions in Ext. B5 policy.

1. The driver was not holding valid driving licence at the time of the accident.

2. The liability of the opposite party is excluded under Sub-clause (a) and (b) of Clause No. 3.

3. The insured has not given any notice of the accident within one month, the insured has not taken any reasonable steps to safeguard the vehicle.

    

8. Ext. B3 is the First Information statement dated 21-04-2008 lodged by PW1 the 2^nd complainant before the S.I. of Police, Aluva. In which he stated that the vehicle was stolen by miscreants from Aluva. But in Ext. B2, the statement dated 04-07-2008 submitted to the opposite party and the complaint filed in this Forum he has got a different version regarding the incident. According to him, one lady by name Fathima some how managed to lock him up in the bathroom of his staff quarters and took to heels from the scene with the key of the car and stole it. Later the car met with an accident, while the said lady was driving the car even without a valid licence.

9. It is pertinent to note that the 1^st complainant who is the insured in this case has not mounted the box for reasons of her own. As per Ext. B1 claim application form dated 27-05-2008, she maintains that the vehicle had been stolen while it was parked near Taluk Head Quarters Hospital, Aluva.

10. The complainants have failed to prove that Fathima had stolen the vehicle from the possession of the 1^st complainant. The complainants do not have a case that they have entrusted the vehicle to her. No satisfactory explanation is forthcoming from the complainants as to the possession of the vehicle by the said Fathima at the time of accident. In the absence of such evidence, we are precluded from accepting the case of the complainants.

11. Section 3 (c) of the Motor Vehicles Act inter-alia stipulates that the person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle. The Hon’ble Apex Court underlines the above mandatory provision in New India Assurance Co. Ltd. Vs. Suresh Chandra Aggarwal (2009 CTJ 962). The facts of the cases cited by the counsel for the complainants are entirely different from the case at hand. So, we are not necessarily to place any reliance on that decisions.

12. In view of the above, the inevitable conclusion is only against the complainants and we have no hesitaiton to hold that the opposite party has rightly repudiated the claim on the basis of the terms and conditions in Ext. B5 policy and for reasons referred above. Accordingly, we dismiss the complaint.

Pronounced in open Forum on this the 4^th day of August 2011.