D.O.F. 28.01.2010

                                        D.O.O.12.12.2011

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 12^th day of  December    2011.

C.C.No.38/2010

P.P.Muneer,

Padinharepurayil, Kavvayil,

Payyannur 670 339                                        Complainant

(Rep. by  Adv.K. Raghunathan)    

1. National Insurnace Company ,

Perumal Building, Perumba,

Payyannur.

         (Rep.by Adv.V.K.Rajeev)                         Opposite party

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of `65,000 with interest for the loss sustained by the complainant and also to pay `25,000 as compensation for the mental agony.

          The case of the complainant in brief is as follows: Complainant’s vehicle two wheeler KL.59/1034 was insured with the opposite party. The renewed policy bearing No.571103/31/08/6200007007 covers the period from 14.10.08 to 13.10.09. Complainant is working in Gulf. So the motor bike was maintained by his friend Mr.Abdul Shukkoor, to whom with it was entrusted. On 12.12.08 when the Motor Bike was parked at the premises of Mr.Abdul Shukoor, some anti social elements put it to flame and the same was destroyed totally. A complaint was lodged before Payannur police and thereby a case was registered as crime No.411/08. Insurance amount was claimed by submitting all the papers before opposite party; But the claim was repudiated. Hence this claim.

          Pursuant to the notice opposite party made appearance and filed version. The contentions of opposite party in brief are as follows: The declared value of the insured vehicle was `36,400. The liability of the opposite party in case of total loss on salvage basis would only be up to the limit of `36,400 less the salvage value and the policy excess if any. The opposite party denies liability since the complainant had no insurable interest over the vehicle at the time of causing damage to the vehicle. The said vehicle was sold by the complainant to one Abdul Shukoor by an agreement dated 27.8.08. The vehicle was in the ownership and possession of Abdul Shukoor at the time of causing damage. As per the investigation by the police it is seen stated by the mother of Abdulshukoor that Abdul Shukoor is the owner of the motorcycle opposite party in order to ascertain whether the claim is genuine, deputed Sri.M.Chandu, investigator to conduct an investigation. From his report it is seen the motorcycle KL.59.1034 was purchased by E.M. P Abdul Shukoor from Muneer P.P on 27.8.08.The statement given by Abdul Shukoor to the investigator will show that he was the owner in possession of the vehicle from 27.8.08. The claim is made in the name of complainant by Abdul Shukoor forgoing the signature of the complainant in various documents, like claim form, consent letter. Hence the claim is bared on fraud. Since repudiation of the claim is made on valid grounds there is no deficiency in service. 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 for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, DW1 to DW3, Exts.A1 to A4 and B1 to B10.

Issue Nos.1 to 3

          Admittedly the vehicle Motor cycle KL.59/1034 insured with the opposite party for the period from 14.10.08 to 13.10.09. The case of the complainant  is that he has entrusted the vehicle to this neighbour Mr.Abdul Shukoor and he maintained the same since the complainant was in Gulf. On 12.12.08, the Bike which was parked  at the premises of Mr.Abdul Shukoor was set on fire and thereby it was completely and totally destroyed. Payyannur police registered crime No.411/08 to the effect. Subsequently complainant submitted claim form before the opposite party but it was illegally repudiated, which is deficiency in service.

          The opposite party on the other hand contended that there is no deficiency in service repudiating claim since the complainant has no insurable interest because complainant/ insured sold the vehicle to Abdul Shukkoor as per an agreement dated 27.8.08. The ownership and possession of the vehicle was with Abdul Shukoor at the time of the incident.

          Complainant adduced evidence by means of chief affidavit in tune with the pleadings. He has stated in affidavit evidence that he has entrusted his bike to his friend Abdul Shukkor. He has also stated the incident of setting fire of the vehicle registering of police case, submitting of claim and repudiation etc.. In cross examination he has deposed that, the complaint to police was given by the mother of shukoor and also answered that his father and brother were there. He has also deposed that the signature in the claim form is that of his own. He has further deposed that “ police At\-z-j-WT \S-¯n-b-Xnsâ  final report I­n-cp-¶p. \m-«nÂh-¶-Xn-\p-ti-jT jp¡qÀ F\n¡v ImWn-¨p-X-¶-XmWv. B report  I­-Xn-\p-tiT Xncp-¯mt\m, Rm\mWv hml-\-¯nsâ DS-a-س F¶p ImWn-¡m³ sXfn-hp-I-sfm-¶p-T -sIm-Sp-¯n-«nÔ. He has continued to depose that hml-\-¯nsâ RC Fsâ ssIbn-ep-­v. tImS-Xn-bn lmP-cm-¡p-¶-Xn\p XS-Ê-anÔ. Ext.A2 dated 22.10.2009 is the repudiation  letter. Ext.A2 specifically stated opposite party is not liable to pay damages since the vehicle is sold out.Ext.A3 is the certificate of Registration, which shows the chassis number ME4KC092G68050272 and Engine number KC09E9050306 with registratinNo.KL.59/1034. Ext.A4 is the attested Xerox copy of passport. Ext.B9 confidential survey report confirms all the above mentioned numbers. As per Ext.B9 the surveyor had verified the RC and found  tallying the vehicle. DW1 admittedin cross examination that “Ext.A3bn RC owner ap\oÀ BWv.. DW1 also answered to the question whether there is any document to show that the vehicle was sold,  is thus: ‘FIR epT final report epT h­n hnä-Xmbn ImWp-¶p­v.”. That means he has not seen any such document. FIR is not proved. On the basis of FIR it is not possible to say that the vehicle was sold. That fact in the FIR has to be proved. Mere information cannot be considered as proved fact. The question is where is the evidence to show that the vehicle is sold? Whether opposite party has proved this fact beyond doubt? The evidence adduced by DW1 would not show that the vehicle was sold to anybody. In the cross examination DW1 deposed that the vehicle is hypothecated to Indus Bank Ernakulam. He is not sure whether the vehicle could be sold legally. If there is hypothecation it is not possible to sell the vehicle without the consent of Indus Bank.

          DW2/Insurance surveyor Mr.Manoj Kumar , the most important witness of opposite party deposed in cross examination that “ claim form signature forge sNbvX-Xm-sW-¦n loss assessor s\ depute sN¿mdnÃ. If-hm-sW¶v tXm¶n-bm I¼-\n-bpsS \S-]-Sn-{I-aT F\n-¡-dn-bn-Ã. Cu tIkn AtX-am-Xncn Imc-y-§Ä Fsâ {i²-bn s]«n-«n-Ã.. The evidence of the surveyor makes it clear that the contention of opposite party that the signature in the claim form was forged etc. has no substances. Ext.B9 reveals that he had verified the policy copy, RC and  DL and found tallying with the vehicle.

          DW3/ASI Taliparmaba specifically stated in cross examination that “ hml-\-¯nsâ DS-a-Øm-h-Im-iT tcJt¸Sp-¯nb tcJ Rm³ I-­n-«n-Ã. RC owner Bcm-sW¶p F\n¡p ]d-bm³ Ign-bn-Ô. It shows evidence from police side is not capable of proving the ownership of the vehicle involved in the incident.DW4/Invesgiator Mr.M.Chandu prepared the investigation report. He has categorically stated in his chief examination that “Fsâ At\-z-j-W-¯n h­n-bpsS bYmÀ° DSa þ insured and RC owner ap\o-dm-sW-¶p-a-\-Ên-em¡n kT-`-h-k-a-b¯vv 12-.12-.08 \p h­n¡v live policy D­v F¶p a\Ên-em-¡n. AtXm-sSm-¸T B Znh-kT RC owner hntZ-i-¯m-tWm-sb¶p hy-à-am-bn -A-dn-bn-Ã. AbmÄ Øe-¯nÃm F¶p a\-Ê-n-em-bn-cp-¶p. Shukoor and Muneer kvt\ln-X-·m-cm-Wv”. This evidence of DW4 makes it absolutely clear that Mr.Muneer, the insured is the RC owner and there is valid insurance policy to this vehicle on 12.12.08.

          DW4 has also deposed that “   :km-[m-cW {][m-\-s¸« tcJ-IÄ seize  sN¿m-dp-WSv. Cu tIkn seize sNbvXn-Ã. It is an admission that the most relevant document capable of determining the entire case at  a stretch, left unseized without any convincing explanation. What is explained is that “ Agreeentsâ copy t\cn-«v lmP-cm-¡m-sa¶p ]d-ª-Xp-sIm­mWv  collect sN¿m-Xn-cp-¶-Xp”. Hence the contention raised by opposite party with respect to the ownership of the vehicle could not be substantiated by opposite party. There is absolutely no reason to say that the vehicle was sold by the insured whereas, on production of RC book complainant could succeeded in proving that he is the RC owner of the vehicle. Hence we have no hesitation to say the repudiation of claim on the ground that the vehicle was sold by the insured, is absolutely unjustifiable, which is other wise, can be considered as deficiency in service on the side of opposite party. Repudiation of claim in this case is a clear deficiency in service for which opposite party has to meet the liability.

          Opposite party has taken the contention that the insured declared value of the vehicle was `36400 and the total liability in the event of the total loss of the vehicle on the salvage loss basis would only be up to the limit of `36,400 less the salvage value and the policy excess if any. Ext.B9 is the final survey reports as per the report salvage loss basis are most common with minimum liability to the insurer and he has recommended settling the claim on salvage loss basis. The surveyor reported that the insured had agreed to settle the claim on salvage loss basis for an amount of `32,000. Complainant adduced evidence by affidavit evidence that the contention of the opposite party that Declared value is `36,400 is false. The plea of opposite party is that declare value is `36,400. Complainant also denied that he has given consent letter.

          The evidence of DW2 shows that the date of registration of motor bike was 26.8.06. Ext.A3 proves that certificate is valid from 26.8.06. The incident took place on 12.12.08. He has also deposed that the vehicle was 2006 model. The estimate given by the authorized dealer in this case is `56594. He has deposed that as per the rules of IRDA the depreciation is 40% and up to 3 years it is 15% of the total value. It can be seen that as far as this vehicle is concerned the incident of total loss taken place before 3 years. The report of the surveyor Ext.B9 made assessment both on salvage loss basis and on repair basis.

          The summary of the repair basis assessment is as follows:

          Net assessed amount: `40007

Table of spare parts consisted of Accepted price, percentage of depreciation and Net admissible amount has given in detail separately. Total net admissible price deducting the percentage of depreciation on spare parts shown is    `39933.62

          As per the ‘Total Loss” Basis the assessment is as follows:

IDV of the vehicle:                   `36,400

Less Police excess                            `50

Insurer’s liability on Total loss basis       `36350

The surveyor also assessed the liability on ‘Salvage Loss Basis as follows’

   Insurer’s net liability to the insured on

    ‘Total loss basis’                                       ` 36350

    Less Salvage (wreck) value                           `4350

    Insurer’s net liability on salvage loss basis  `32000

          Surveyor in his note suggested and recommended to settle the claim on salvage loss basis. It is also noted that the insured had agreed to settle the claim on salvage loss basis for an amount of `32,000. The consent letter given by the insurer/complainant produced and marked as Ext.B4. The complainant denied the signature in the consent letter. During cross examination of surveyor/DW2 this aspect was not challenged. No question was put to surveyor during cross examination with respect to Ext.B4 and the signature. In ordinary course, since it was not challenged during cross examination there is no need to disbelieve the surveyor.

Having regard to the facts and circumstances of the case we hold that a sum of `32,000 on the basis of recommendation of the surveyor on salvage loss basis would be a fair and adequate amount to settle the claim. Of course we do consider the vehement argument lodged by the counsel for the complainant placing the latest decision of the Hon’ble Supreme court in Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. for grant of interest. Taking into account the very spirit of the decision we deem fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till the payment. Hence issue Nos. 1 to 3 is found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing the opposite party to pay a sum of  `32,000 (Rupees Thirty Two thousand only)   as claim amount with 9% interest from the date of filing of complaint till realization to  the complainant,  within  30 days from the date of receipt of this order. It is also directed to pay an amount of `1000 (Rupees One thousand only) as cost of this litigation. The complainant is at liberty to execute the order after the expiry of 30 days as per the provisions of consumer protection Act.

                           Sd/-                   Sd/-                   Sd/-    

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.Copy of the claim form submitted by complaiannt

 A2.  Copy of the letter dt.22.10.09 issued by OP.

A3.Certificate of registration of vehicle

A4. Copy of the passport.

Exhibits for the opposite parties:

B1.Copy of insurance policy with its schedule

B2.Motor claim intimation form

B3.Motor claim form submitted by complainant

B4.Consent letter

B5.Copy of the letter dt.16.11.09 sent by complainant

B6.Copy of the FIR

B7.News Paper report

B8. Refer report of Payyannur police.

B9. Motor final survey report dt.26.2.09

B10.Copy of the letter issued by M.Chandu Investigator to OP

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.T.A.Sankrankutty

DW2.Manoj Kumar

DW3.Satheeshkumar T.P

                                                 / forwarded by order/

                                                                                                                                           Senior Superintendent