KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.726/04 JUDGMENT DATED 17.5.2010 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER Divisional Manager M/s National Insurance Co.Ltd. -- APPELLANT P.B.No.40, Bank Road, Kannur-1. (By Adv.Saji Isaac.K.J) Vs. 1. N.Riyas, S/0 Moosankutty, “Rahma” P.O.Chirakkal, Kannur-11 -- RESPONDENTS Rep. by his power of attorney holder P.P.Muhammed Faizal, S/0 V.P.Ahammad Kuhi, Akshana, Kakkad Housing Colony,P.O, Kakkad, Kannur. 2. Manager, LCDS Ltd, Kannur Branch P.B.No.411, 111/189, Lal’s Apartment South Bazar, Kannur. (By Adv.G.S.Kalkura) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellant is the first opposite party and the respondents 1 and 2 are the complainant and the second opposite party respectively in OP.No.239/2000 on the file of CDRF, Kannur. The complaint therein was filed by the first respondent as complainant alleging deficiency in service on the part of the appellant/first opposite party National Insurance Company Ltd; in repudiating the insurance claim put forward by the complainant with respect to the insured vehicle bearing registration No.KL.13/B-5522. The first opposite party (appellant) entered appearance before the forum below and filed written version denying the alleged deficiency in service. It was contended that the complainant lost his insurable interest over the insured vehicle on the date of the peril ie; on 28.5.98 the date on which the insured vehicle was stolen. Thus, the appellant/ first opposite party justified their action in repudiating the insurance claim. The second opposite party/second respondent, the financier of the insured vehicle supported the case of the complainant/insured. 2. Before the Forum below the complainant was examined as PW1 and Exts.A1 to A14 documents were marked on his side. From the side of first opposite party DWs 1 to 3 were examined and B1 to B17 documents were marked. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 22nd June 2004 directing the first opposite party/Insurance Company to pay the insurance amount of Rs.3,50,000/- with interest at the rate of 12% per annum and compensation of Rs.5000/- and cost of Rs.2000/-. 3. We heard the counsel for the appellant/first opposite party and the first respondent/complainant. There was no representation for the second respondent/second opposite party. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B4, B9 and B16 documents and argued for the position that the first respondent/complainant had no insurable interest in the insured vehicle and so the appellant/first opposite party Insurance Company is justified in repudiating the insurance claim. On the other hand, the learned counsel for the first respondent/complainant supported the impugned order passed by the forum below. 4. The points that arise for consideration are:- 1. Whether the appellant/first opposite party can be justified in repudiating the insurance claim preferred by the first respondent/complainant with respect to the insured vehicle bearing registration No.KL.13/B-5522? 2. Whether the appellant/first opposite party has succeeded in establishing his case that the first respondent/complainant had no insurable interest in the insured vehicle? 3. Whether the forum below can be justified in directing the appellant/first opposite party to pay a sum of Rs.3,50,000/- by way of insurance amount to the first respondent/complainant with a further direction to pay compensation of Rs.5000/-? 4. Is there any legally sustainable ground to interfere with the impugned order dated 22nd June 2004 passed by CDRF Kannur in OP.239/2000? 5. POINTS 1 TO 4:- There is no dispute that the first respondent/complainant was the registered owner of the vehicle bearing registration No.KL.13/B-5522 and that the said vehicle was insured with the appellant/first opposite party National Insurance Company Ltd. Admittedly, the said vehicle was having a valid insurance coverage for the period from 11.8.97 to 10.8.98 and that the insured vehicle was stolen on 28.5.98 at about 2 AM. It is also admitted that the insured vehicle could not be detected and the same was lost irrecoverably. 6. The first respondent/complainant preferred a claim before the appellant/first opposite party National Insurance Company Ltd, on account of the fact that the insured vehicle was stolen from Thalassery on 28.5.98. The aforesaid claim was repudiated by the appellant/first opposite party by the repudiation letter dated 31.3.2000. Hence, the complaint in OP.239/2000 by the insured of the said vehicle namely viz; the complainant. 7. The ground urged for repudiating the insurance claim is that the respondent/complainant had no insurable interest in the vehicle on the date of the theft. The appellant/first opposite party Insurance Company much relied on B4 copy of the agreement dated 9.11.96 said to have been executed between P.P.Muneer and M.P.Rasheed. But, the appellant/Insurance Company could not prove execution of B4 agreement. The Insurance Company has also failed in establishing their case that B4 agreement was acted upon by the parties to the said agreement. As per B4 agreement, it was executed between P.P.Muneer and M.P.Rasheed. The aforesaid M.P.Rasheed was examined as DW1. But he denied execution of such an agreement. The other executant of B4 agreement, P.P. Muneer has not been examined. There is nothing on record to show that B4 agreement dated 9.11.96 was in existence and the same was acted upon. Thus, the appellant/Insurance Company miserably failed in establishing their case that the first respondent/complainant lost his right over the vehicle as per B4 agreement dated 9.11.96. 8. It is also to be noted that the first respondent/complainant, the insured and registered owner of the vehicle was not a party to B4 agreement. As per B4 agreement two vehicles were transferred between P.P.Muneer and M.P.Rasheed. But, there is nothing on record to show that as to how the aforesaid P.P.Muneer or M.P.Rasheed got right over the insured vehicle bearing registration No.KL.13/B-5522. At the same time, the documentary evidence available on record would make it clear that the first respondent/complainant is the registered owner and insured of the said vehicle. 9. The forum below has rightly held that the insurance policy with respect to the vehicle bearing registration No.KL.13/B-5522 was issued by the appellant/first opposite party Insurance Company with effect from 11.8.97. The said vehicle was having an insurance coverage up to 10.8.98. Admittedly, the insured vehicle was stolen on 28.5.98. On the date of the peril the insured vehicle stood in the name of the first respondent/complaint. If the case of the appellant/ insurance company that the complainant parted with his right and possession over the vehicle as per B4 agreement dated 9.11.96 is accepted as true and correct, then how could the appellant/Insurance Company issue the Insurance policy with respect to the insured vehicle in the name of the complainant N.Riaz. Thus, it can be seen that on the date of the policy, the appellant Insurance Company was fully satisfied with the right, title to and ownership of the complainant over the insured vehicle bearing registration No.KL.13/B-5522. There is no case for the appellant/Insurance Company that after the issuance of the policy, the complainant/insured transferred his right over the insured vehicle. In such a situation, it can very safely be concluded that the complainant in OP.239/00 was having insurable interest in the vehicle on the date of issuance of the policy by the appellant/insurance Company and that the complainant/ insured continued his ownership over the vehicle till the date of the peril. It can very safely be concluded that the complainant was having insurable interest over the vehicle on 28.5.98, the date on which the insured vehicle was stolen. 10. The second respondent/second opposite party was the financier of the insured vehicle. The higher purchase agreement produced by the second opposite party (B2) would make it clear that the second opposite party financier was the owner of the insured vehicle and that the complainant was the hirer of the same. It is further to be noted that the higher purchase transaction was endorsed on the RC book of the insured vehicle. It was also endorsed in the policy issued by the appellant/Insurance Company with respect to the insured vehicle bearing registration No.KL.13/B-5522. It is come out in evidence that after the institution of the complaint in OP.239/2000 the complainant cleared the higher purchase amount due to the second opposite party financier and the letter releasing the higher purchase endorsement has been issued by the second opposite party. A6 document would also show the details regarding the payments effected by the complainant to the second opposite party financier. Thus, the documentary evidence available on record would make it clear that the complainant was the registered owner and he was having the insurable interest in the insured vehicle. 11. The complainant as PW1 has also deposed in support of his case. The oral testimony of PW1 with the documentary evidence available on record would show that the appellant/opposite party Insurance Company obtained some blank papers from the complainant and thereby those signed blank papers were utilized to creating some letters to support the case of the appellant/Insurance Company that the insured had no insurable interest in the insured vehicle. But, the other reliable evidence available on record would make it abundantly clear that the first respondent/complainant was having the insurable interest over the vehicle on the date of the peril. So, the forum below has rightly appreciated the evidence on record in its correct perspective and come to a just and proper conclusion that the complainant in OP.239/2000 was having the insurable interest in the insured vehicle and he being the registered owner of the vehicle is entitled to get the loss indemnified. 12. The certificate of registration of the insured vehicle was marked as Ext.A1. Ext.A1 document would show that the insured vehicle was manufactured in the year 1995. The said vehicle was stolen on 28.5.98. So, on the date of theft of the insured vehicle it was 3 year old vehicle. No doubt hat the vehicle was insured for an amount of Rs.3,50,000/-. It is a settled position that the insurer of the vehicle is only liable to indemnify the insured for the market value of the stolen vehicle. It is to be noted that the market value is to be assessed as on the date of lost or theft of the insured vehicle. But, in this case the market value of the vehicle on 28.5.98 was not assessed because of the fact that the appellant/Insurance Company repudiated the insurance claim. Anyhow, the forum below cannot be justified in directing the first opposite party/Insurance Company to pay the insured amount of Rs.3,50,000/- to the complainant. The complainant/insured is only entitled to get the market value of the insured vehicle on the date of the peril ie; on 28.5.98. So, the impugned order passed by the forum below directing payment of the insured amount is liable to be set aside. 13. The Forum below has also awarded compensation of Rs.5000/- over and above the interest at the rate of 12% per annum on the insurance amount. The compensation of Rs.5000/- ordered by the forum below can be treated as an unwarranted one. So, the direction to pay compensation of Rs.5000/- is set aside. But, at the same time, the cost of Rs.2000/- ordered by the forum below is upheld. 14. This Commission is pleased to remand the matter to the Forum below to get the market value of the insured vehicle assessed. The appellant/first opposite party Insurance Company is at liberty to depute an approved surveyor to get the market value of the insured vehicle assessed. The first respondent/complainant is also at liberty to adduce evidence to prove the market value of the insured vehicle as on 28.5.98. Based on the said evidence to be adduced by both parties, the forum below has to fix the market value of the insured vehicle and to pass an order on that point. For this limited purpose, the matter is remanded to the forum below. These points are answered accordingly. In the result, the appeal is allowed partly. The impugned order passed by the Forum below fixing the Insurance amount at Rs.3,50,000/- is set aside. The order to pay compensation of Rs.5000/- is also deleted. In all other respects, the impugned order is confirmed. The matter is remanded to the Forum below to assess the market value of the insured vehicle as on 28.5.98 and to pass an order accordingly. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. Parties are directed to appear before the Forum below on 21.6.2010. M.V.VISWANATHAN -- JUDICIAL MEMBER M.K.ABDULLA SONA -- MEMBER | 
