DOF.24.10.2008 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 6th day of April 2010 CC.178/2008 Dr.Roy Pulickan, Vellad Amsom, Karuvanchal (Through Power of Attorney Complainant Rajesh Pulickan, Vellad Amsom, P.O.Vellad. (Rep. by Adv.M.J.Sebastian) M/s. National Insurance Company Ltd., Kannur Division, P.B.No.40 Opposite party Bank Road, Kannur. (Rep. by Adv.V.R.Rajeev) OR D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.1, 85,000/- with interest and cost. The facts of the case in brief are as follows. The complainant is the registered owner of Maruthi 800 car. Complainant availed loan from Sundaram Finance Ltd. for purchase of the vehicle. The vehicle was insured with opposite party. The complainant paid a total premium of Rs.5085/- and period of insurance is from 4.3.05 to3.3.06. The declared value of the vehicle e is Rs.1, 75,000/-. On 5.1.06 evening the vehicle was parked in the car porch. On 6.1.06morning it was noticed that the car was stolen. Complaint lodged before Kannur Town police Station and a crime was registered as crime No.11/06 under section 379 of IPC. Opposite party was informed by the letter dt.7.1.06. But vehicle could not be trace and thereby police closed the investigation and refer report filed before Judicial First class Magistrate, Kannur on20.8.06 as undetected. The original RC book and Insurance policy were also kept in the vehicle and thereby that also stolen together with the vehicle. Opposite party did not settle the claim. Complainant discharged entire liability of Sudarsan Finance Ltd. The Sundram Finance Ltd. had informed the opposite party that the vehicle is no longer under higher purchase agreement with them. Lawyer notice also sent. Copy of the referee report also sent along with FIR, certificate from RTO and certificate from Sundaram Finance Ltd. But opposite party did not settle the claim. On 20.3.07 the opposite party requested the complainant to produce duplicate RC and original Insurance policy. Complainant obtained a letter from RTO dt.8.12.06 to show that he is the registered owner of the vehicle. Since the vehicle is stolen a duplicate of the RC cannot be obtained. All relevant documents were made available but opposite party did not settle the claim and hence this complaint. Pursuant to the notice opposite party entered appearance and filed version. The opposite party contended that the vehicle was insured with opposite party at the time of the alleged theft. The registered owner has to surrender the original or duplicate of the registration certificate of the vehicle and they have not give a subrogation letter to the insurer so as to en able them to possess the vehicle if the vehicle is recovered in future. The insured is also liable to deliver to the insurer the Form 29, 30 and 35 in order to enable them to transfer the ownership in the event of recovering the vehicle. Even after several written communication the registration certificate of the vehicle was not delivered. Therefore opposite party could not settle the claim for want of registration certificate. There is no deficiency on the part of opposite party. Opposite party is even now ready to pay the sum of Rs.1, 75,000/- to the complainant if the complainant surrenders the registration certificate. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled to get the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of Exts.A1 to A11 and proof affidavit on the side of complainant and Exts.B1 to B7 on the side of opposite party. Issue Nos. 1 to 3 Admittedly complainant insured his car with opposite party paying a total sum of Rs.5085/- as premium and opposite party issued the policy for the period from 4.3.05 to 3.3.06 for an amount of Rs.1, 75,000/-. It was also admitted that the vehicle was stolen and could not be detected. The case was finally referred. But opposite party did not settle the claim since complainant could not produce the registration certificate. The central point, perhaps the only point, to be considered in the complaint in hand is only with respect to the availability of registration certificate of the vehicle. Opposite party has made it clear that they are ready and willing to settle the claims if the registration is surrendered before the Insurance company. The case of the opposite party is that without registration certificate the Insurance Company will not be able to repossess the vehicle in the event of recovering the vehicle in future. The case of the complainant on the other hand is that the original RC book and Insurance policy were kept in the vehicle and thereby these documents were also lost with the car stolen. It is pertinent to note that, since the vehicle is stolen a duplicate of the RC cannot be obtained. So that the complainant obtained a letter from the Joint RTO, Taliparamba to show that complainant is the owner of the vehicle. That is produced and marked as Ext.A6. This is a case in which complainant is insisted to produce a certificate which is practically impossible for the complainant. Opposite party has no case that anything has been suppressed by the complainant. Opposite party has no case that it is possible to obtain a duplicate copy of the RC in the case of stolen vehicle. It is true that every policy is contract and complainant is obliged to comply with the terms and conditions of the contract. But we cannot ignore the fact that a legal fiction is always consistent with equity. The maximum “Factum non dicitur quod none perseverate” which means that is not called a “deed” which does not continue operative – is aptly applicable in this case. What is practically not possible to perform will not be a condition legally enforceable. A contract is an agreement enforceable by law. Thus an agreement unenforceable cannot be a contract. “Impossibilium nulla obligation est”. there is no obligation to do impossible things. No doubt doors are open and where there is a will there is a way. We have to find a way out. Execution is the end and the fruit of the law. Law is the safest helmet; under the shield of the law no one is deceived. Hence complainant is entitled for the available remedy in the interest of the justice. The opposite party is even now agreeable to pay the sum of Rs.1, 75,000/- to complainant if the complainant surrenders the registration certificate of the vehicle to the insurance company. It also means the complainant deserves for the insurance amount if the technical hurdle is removed. Opposite party has made it clear that the real problem before them is the question of repossession of the vehicle in the event of recovery. The contention of opposite party is justifiable to the extent that opposite party should have the right over the property if the same is recovered. But opposite party could have been done this on conditional payment. At least offer could have been made for payment upon bond or security or any sort of such undertaking on the part of complainant. The no payment of the sum insured in anyway, is a deficiency in service on the part of opposite party. In the light of the above discussion we hold that the opposite party is liable to pay the amount Rs.1, 75,000/- to the complainant. The complainant on the other hand obliged to give an undertaking not to claim any right over the vehicle in case the vehicle is recovered. Complainant is also obliged to execute such sort of agreement or documentation on requirement for the fulfillment of that purpose if requested by opposite party on their expense and initiative. The complainant is also entitled for a sum of Rs.1000/- as cost of these proceedings. If the order is not complied within the time the complainant will be entitled for interest @ of 12% from the date of referring of the police case as ‘undetected’. Thus issues 1 to 3 found infavour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite party to pay a sum of Rs.1, 75,000/-(Rupees One lakh and seventy five thousand only) together with Rs.1000/-(Rupees One thousand only) as cost of these proceedings. The complainant per contra obliged not to claim any right over the vehicle in the event of recovery and also obliged to execute such sort of agreement or undertakings including documentation on requirement for the fulfillment of ensuring the ownership of recovered vehicle to opposite party if requested, upon their expense and initiative. Opposite party is further directed to make payment within one month of the receipt of this order, failing which complainant shall be entitled to get interest @12% for the amount of Rs.1, 75,000/- from 20.8.06 till the date of payment. Complainant is at liberty to execute the order after the expiry of 30days as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Copy of the FIR A2.Certified copy of the refer report submitted by CI of police, Kannur A3.Copy of the letter dt.7.1.06sent to OP A4.Reply notice sent by OP dt.8.10.07 A5.Leter dt.23.1.07 issued by Sundaram Finance to Registering authority, Taliapramba A6.Tax remittance certificate issued from Joint RTO,Taliparamab A7.Copy of the lawyer notice sent to OP A8.Reply notice dt.4.10.07 A9.Copy of the reply notice dt.20.5.08 A10.Copy of the policy issued by OP A11.Power of Attorney Exhibits for the opposite party B1to B3.Copies of the letter dt.7.7.06, 7.11.06 and20.3.07 sent to complainant B4 to B6.Copies of the letter dt.30.5.07, 20.8.07 and18.9.07 sent to complainant B7.Copy of the reply notice sent to complainant’s Advocate Witness examined for either side: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
