PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of September 2011
Filed on : 31/12/2010
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.688/2010
Between
Jamal Muhammed Shamim : Complainant
S/o. Dr. T. Jamal Mohammed, (By Adv. Jimmy John. P.,
‘Charitham’, Pangappara village, Nirmal Associates, Saniya
Srikaryam, Trivandrum-695 581 Plaza building, Near KSRTC
now residing at Firdous, Ernakulam)
Meenchira road, Ponekkara P.O.,
Ernakulam.
And
1. National Insurance Co. Ltd. : Opposite parties
Mythili Mandiram, (By Adv. Sreejith S. Nair,
Janatha Junction, Mulloth buildings, M.G. Road,
Kochi-25 rep. by its Ravipuaram, Ernakulam)
Branch Manager.
2. National Insurance Co. Ltd.,
Regional Office, Omana Building,
Jews Street, Ernakulam, Kochi-35,
rep. by its Regional Manager.
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant’s vehicle was insured with the opposite party for the period from 09/05/2007 to 08/05/2008. The vehicle met with an accident on 30-12-2007 at Edapady in Pala-Bharanamganam road. The accident was intimated to the opposite parties and a claim was lodged . The opposite party engaged their surveyor. The said surveyor assessed the loss on salvage loss basis. The opposite parties intimated the complainant that they will indemnify the complainant to a sum of Rs. 2,10,000/- and asked the complainant to give a consent letter to that effect. The complainant had given a consent letter. But on 29-10-2008 the opposite party had sent a letter to the complainant stating that they are not in a position to consider the claim since as on the date of accident the complainant is not having any insurable interest on the insured vehicle. The reason for repudiation was that the insured vehicle was sold to Mr. Sanjo Varghese on 14-12-2007. On receiving the said letter the complainant made a request before the 1st opposite party and head office of the National insurance Company to reconsider his claim. Since the sale of the insured vehicle was not effected, the denial of the legitimate claim by the Insurance Company amounts do deficiency in service on their part and the action of the opposite parties had caused much hardship and mental agony to the complainant. Hence the complainant seeking following direction against the opposite parties
i. to direct the opposite parties to pay a sum of Rs. 2,10,000/- as assessed by the surveyor with interest.
ii. to direct the opposite parties to pay sum of Rs. 5,000/- towards compensation and costs of the proceedings.
2. Version of the opposite parties
It is admitted that the vehicle was insured with the opposite party. The accident was also intimated by the complainant to the opposite parties. The vehicle is now being used by 3rd persons and no steps were taken to transfer the ownership of the vehicle. The said vehicle was transferred to one Mr. Sanjo Varghese, S/o Fr. Varhese residing at Maikulangara, Elavinadu kara, Kothamangalam vide delivery receipt dated 04-12-2007. When the vehicle met with accident and since the ownership was not transferred, the complainant in collusion with the buyer of the vehicle had given a power of attorney to the father of buyer, Mr. Sanjo Varghese to deal with the opposite party with respect to the claim. The claim of the complainant is not a legitimate claim and the same is not liable to be entertained. The complainant along with the subsequent purchaser of the vehicle is trying to extract money from the opposite party by concealing the real fact of transfer. Therefore the opposite party is fully justified in repudiating the claim of the complainant. There is no deficiency of service on the part of the opposite parties and the claim was dismissed for valid reasons. The complainant is not entitled to the claim as stated in the complaint.
3. The complainant and the opposite parties represented through counsel. The complainant adduced only documentary evidence. Ext. A1 to A6 were marked. Neither documentary nor oral evidence was adduced by the opposite parties. We have heard the respective counsel.
4. The points for determinations are as follows:
i. Whether the complainant is entitled to get the insurance claim pertaining to his vehicle as assessed by the surveyor?
ii. compensation and costs if any?
5. Points Nos. i&ii. No dispute with regard to the issuance of the policy. The reason for repudiation is that the complainant has not insurable interest on the vehicle concerned. The opposite party contented that vehicle is being used by one Mr. Sanjo Varghese but the ownership of the same is still with complainant.
Ext. A1 copy of the tax license for the period of 09/05/2007 to 31/03/2022. Ext. A2 the copy of the certificate of registration for the period of 09/05/2007 to 31/03/2022. Ext. A3 is the repudiation letter. Ext. A4 is the copy of letter issued by the complainant to the 1st opposite party. In Ext. A4 it is stated that he has not sold his vehicle to anybody and requested to disburse his claim amount. Ext. A6 is the registration details dated 31-08-2011 of the complainant’s vehicle, which shows that the complainant is the registered owner of the vehicle concerned. There is no contra evidence to show that the possession of the vehicle has been transferred to Mr. Sanjo Varghese. The counsel for the complainant submitted the decision of the Hon’ble Apex court to substantiate the case of the complainant in United India India Insurance Company Ltd. Vs. C.M. Ibrahim Kutty. II (2011) CPJ 450. It is held that “ on perusing the record the vehicle is registered in the name of the complainant and the insurance is given in the name of the complainant himself. There is no contra evidence to show that the vhicle was belonging to another person. FIS lodged by another person stating vehicle belongs to him will not entitle insurer to repudiate claim”.
In view of that we have no hesitation to hold that the complainant is entitled for the claim in accordance of the surveyor’s report. Though there is a contention taken by the complainant that the surveyor was deputed in this case and assessed the damages at Rs. 2,10,000/-. The opposite parties did not refute said contention. Hence in the absence contrary evidence we can safely come to the conclusion that there is a report. In the facts and circumstances of the case we are not ordering any compensation and costs of the proceedings.
6. Accordingly, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay the insurance claim of the complainants vehicle as assessed by the surveyor to the complainant together with interest @ 9% p.a. from the date of
complaint till realization to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 30th day of September 2011
Sd/- C.K. Lekhamma, Member.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Tax Licence
A2 : Copy of certificate of registration
A3 : Copy of letter dt. 29/10/2008
A4 : Copy of registered letter
A5 : Copy of letter dt. 06/08/2009
A6 : Copy of registration details
