IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 7th day of September, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 25/08 (Remanded)
Between:
1. Sindhu Shaji,
Shaji Bhavanam,
Mayiladumpara,
Panthaplavu.P.O.,
Pattazhi, Kollam Dist.
2. Shaji, -do. –do.
(By Adv. P. Appu) ..... Complainants
And:
1. National Insurance Co. Ltd.,
Rep. by its Divisional Manager,
Kayamkulam.
2. The Branch Manager,
National Insurance Co. Ltd.,
Nelson Complex,
Puthiyidam, P.B.No.60,
Kayamkulam.
(By Adv. Sam Koshy) ..... Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
The complainants have filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief is as follows:- The 1st complainant is the owner of Mitzubishi Mini Lorry bearing Reg.No.KL-02/T-8857 which was registered at RTA Office at Punalur. The 2nd complainant is the husband of 1st complainant who had driven the said vehicle at the time of theft occurred on 26.4.07 at 6 a.m. The allegation is that while the 2nd complainant was driving the vehicle through Kayamkulam-Punalur road as a daily trip for collecting sand and when the vehicle reached at the Puthuval Junction in Enadimangalam Village, Adoor Taluk, 3 persons forcibly stopped the vehicle by crossing an Ambassador Car; 2 among them come out from the car and forcibly thrown the 2nd complainant from the vehicle and ran away with the vehicle from the scene. 2nd complainant followed the vehicle in an autorikshaw, but could not trace the same. Adoor police registered Crime No.451/07. But they could not nab any culprits involved in the incident.
3. The 1st complainant’s vehicle was insured with the 2nd opposite party for Rs.7,50,000/- and the requisite premium of Rs.15,653/- also paid. The policy was in force from 20.1.2007 to 19.1.2008. Though the complainants approached the 2nd opposite party for the insurance amount, they did not disburse the insurance amount. The 1st complainant is entitled to get the insurance amount and the opposite parties are liable to pay the same. Non-payment of the insurance amount to complainants is a clear deficiency of service. Hence this complaint for getting the insurance amount with interest, compensation and cost.
4. Opposite parties entered appearance and filed version stating that complaint is not maintainable either in law or on fact. They admit the issuance of the insurance policy in the name of the 1st complainant.
5. The opposite parties have received a claim form from the complainant stating that the vehicle was forcibly took away by some unidentified persons on 26.4.2007 at 6 a.m. while the vehicle was plying along a public road. The intimation regarding the loss was intimated to opposite parties only on 1.1.2008 and claim form has been lodged only on 3.1.2008, i.e. after a period of 8 months which itself shows the falsity of the claim. Condition stipulates that notice shall be given in writing to the opposite parties immediately after the occurrence or loss. The condition also stipulates that in case of theft or criminal act which may be the subject of a claim under the policy, the insured should give immediate notice to the police.
6. Even though the theft and the consequent loss of vehicle was reported to be occurred on 26.4.2007, the FIR was seen registered only on 23.5.2007, i.e. one month after the loss. The alleged loss was not occurred when the vehicle was parked during night hours, but during daytime in the presence of the persons being carried in the vehicle in a busy public road after assaulting the 2nd complainant. No prudent owner would wait to alert the police regarding the loss of a vehicle after such inordinate delay. Had the claim of loss being genuine, the owner of the vehicle would have reported the matter to the police and insurance company immediately after theft or loss. On receipt of claim form on 3.1.2008, opposite parties arranged an investigation, which also fortified the observations made herein above. Opposite parties sent a registered letter to produce the documents relating to the vehicle. But the said letter returned by the endorsement “Addressee left, present address not known”. The said documents are the vital documents for processing the claim. Non-production of the same also cast aspersions on the genuineness of the claim.
7. Opposite parties had again sent letter dated 4.2.2008 seeking explanation as to the inordinate delay in reporting the claim. The said letter also not replied by the complainants. The said aspect also points to the falsity of the claim. For the above reasons the conduct of the complainants was so suspicions and they never co-operated with the opposite parties which itself shows that they are not with clean hands. Hence it is crystal clear that the claim is not allowable.
8. Moreover, opposite parties filed petition before the Home Minister of Kerala and Director General of Police to give necessary direction to reconsider the U.N. Report in Crime No.451/20 07 of Adoor Police Station and further investigate into the matter by meticulously looking into the genuineness of the complaint, which was lodged long after the occurrence. Therefore opposite parties canvassed for the dismissal of the complaint.
9. The evidence of this complaint consists of the oral testimony of PWs.1 and 2 and Exts. A1 to A4 and Exts. B1 to B4. After closure of evidence both sides were heard and on the basis of the available evidence, this complaint was dismissed.
10. Aggrieved by the order of this Forum, the complainant preferred an Appeal before the Hon’ble Consumer Disputes Redressal Commission as Appeal No. 531/2011 and the Hon’ble CDRC allowed the Appeal and set aside the order of this Forum and the case is remanded back with a direction to dispose the matter after affording opportunity to both sides to adduce further evidence. Such a direction was given on the basis of the following submissions of both parties before the Appellate Forum during the hearing. The submission of the complainants/appellants is that they are ready to produce the registration certificate of the vehicle and the submission of the opposite parties/respondents is that a reinvestigation in the criminal case is going on and the respondents had made an investigation regarding the incident and found that there is something suspicious about the incident.
11. Accordingly, as per the direction of the Hon’ble CDRC, both parties appeared before this Forum on 30.03.2012 and this Forum called for the parties for adducing their additional evidence as per the direction of the Hon’ble CDRC. On the basis of the above direction, the complainants filed an application as I.A. 60/2012 for producing the opposite parties investigation report. Though the opposite parties/respondents in the said I.A. prays for time for producing the document, they have not produced the said document in spite of the opportunities given to them for producing the said document. So this Forum closed the said I.A. observing that the opposite parties/respondents are not intending to produce the document called for. Thereafter, counsel for the complainant submitted that they have no further evidence. On the basis of the said submission, complainants’ evidence was closed and the opposite parties are directed to adduce their further evidence, if any. The counsel for the opposite parties also submits that they have no further evidence. Accordingly, opposite parties’ evidence was also closed. Thereafter both sides not turned up for hearing. So this Forum took the matter as heard.
12. In the aforesaid circumstances, the only question to be considered at this stage is whether there is any circumstances to reconsider our previous order of dismissal of this complaint in the absence of any additional evidence.
13. The Point:- In order to consider the said point, we are constrained to consider the evidence adduced by the parties before the remand and on the basis of the discussions of the Hon’ble State Commission in its judgment as both parties have not adduced any further evidence at this stage in spite of the direction of the Hon’ble State Commission and the opportunities given by this Forum.
14. On a perusal of the judgment of the Hon’ble State Commission, it is seen that the complainants expressed their willingness to produce the registration certificate before this Forum. It is also seen from that judgment, the importance and relevancy of the police reinvestigation and the details of the investigation report of the insurance company. On the basis of the said findings of the Hon’ble State Commission, we have given opportunities to both parties for adducing further evidence. But none of the parties produced any documents or adduced any further evidence in compliance of the direction of the Hon’ble CDRC and the opportunities given by this Forum.
15. The willful non-production of the investigation report by the opposite parties before this Forum at this stage in spite of the direction of the Hon’ble State Commission and this Forum may be a suppression of fact. What prevented the opposite parties from producing the said investigation report? The said conduct of the opposite parties shows serious doubts in their investigation report. So it is presumed that the details of the opposite parties’ investigation report may not support the opposite parties’ contention that there is no theft in this case. If that be so, the complainants’ case can be allowed as the complainants’ vehicle was stolen during the existence of a valid insurance policy of the opposite parties.
16. At the same time, the complainants also failed to produce the original R.C. book before this Forum in spite of the assurance given by them before the Hon’ble State Commission. This also cast serious doubts in the bonafides of the complainants. However, our doubts alone is not a ground for rejecting the complainants’ claim. If they are in possession of the R.C without any hire purchase liability the complainants are at liberty to produce the registration certificate before the opposite parties for getting the claim. In that event, opposite parties are liable to pay the complainants’ claim. Therefore, this complaint is allowed as follows:
17. In the result, this complaint is allowed, thereby the opposite parties are directed to pay the Insured’s Declared Value of ` 5,60,000 (Rupees Five lakhs sixty thousand only) as per Ext. A1 policy certificate to the complainants within 30 days from the date of receipt of the R.C, if the complainants produces the original R.C. book without having any hire purchase liability for the said vehicle within 10 days from the date of receipt of this order by the complainant, failing which the 1st complainant is entitled to realize the said amount with 9% interest per annum from today till the realization of the whole amount. In the nature and circumstances of this case, no orders for compensation and cost.
Declared in the Open Forum on this the 7th day of September, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant (Before Remand)
PW1 : Sindhu Shaji
PW2 : Habeeb Ahammed. P.J.
Exhibits marked on the side of the complainant (Before Remand)
A1 : Copy of the Insurance policy Certificate of the vehicle issued by the
opposite parties.
A2 : Copy of FIR in Crime No.451/07 of Adoor Police Station.
A3 : Photocopy of the complaint filed by the 2nd complainant before Judicial
First Class Magistrate Court, Adoor.
A4 : U.N. Report in Crime No.451/07 of Adoor Police Station.
Witness examined on the side of the opposite parties : Nil.
Exhibits marked on the side of the opposite parties (Before Remand)
B1 : Terms and conditions of commercial vehicles package policy.
B2 : Motor Claim Form.
B3 : Copy of petition dated 25.06.2008 submitted by the first opposite party
before the Director General of Police, Thiruvananthapuram.
B4 : Copy of petition dated 25.06.2008 submitted by the first opposite party
before the Home Minister of Kerala, Thiruvananthapuram.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Sindhu Shaji, Shaji Bhavanam, Mayiladumpara,
Panthaplavu.P.O., Pattazhi, Kollam Dist.
(2) Divisional Manager, National Insurance Co. Ltd.,
Kayamkulam.
(3) The Branch Manager, National Insurance Co. Ltd.,
Nelson Complex, Puthiyidam, P.B.No.60,
Kayamkulam.
(4) The Stock File.
