By Smt. C. S. Sulekha Beevi, President

1. The complaint is preferred by the power of attorney holder of the complainant. Complainant is the registered owner of Bajaj autorickshaw bearing Reg.No.KL-10 K/3521 which was insured with opposite party for the period 18-8-2006 to 17-8-2007. The power of attorney holder was employed as driver of the vehicle. While so, on 21-3-2007 the vehicle was stolen from the Kondotty airport road. On intimation to the Kondotty police, a crime vide No.315/07 was registered under sec. 379 IPC. After investigation the police referred the case as undetectable and the vehicle could not be recovered. A claim was preferred before opposite party through the power of attorney. Opposite party had obtained a letter of subrogation from the power of attorney. But even after submitting all necessary documents opposite party has not settled the claim till this date. Hence this complaint alleging deficiency in service and praying for indemnification for loss of vehicle.

2. Opposite party filed version admitting the comprehensive insurance coverage for the vehicle. It is submitted that the claim made by the complainant is not genuine. That the First Information Report in crime No.315/2007 in regard to Theft of autorickshaw was lodged by the power of attorney holder herein (Sri.Alavikutty) stating that he is the owner of the vehicle. But in the final report the same Alavikutty is said to be driver of the vehicle. As per the documents submitted by the defacto complainant it is not clear as to who is the real owner of the vehicle at the time of the alleged incident. Though Alavikutty lodged the F.I.R. Stating that he is the owner of the vehicle in the claim form Moozhikkal Mammadu (complainant) is shown as the owner of the vehicle. It is further stated that the power of attorney was executed only on 24-01-2008 ie., 10 months after the alleged incident of theft. That opposite party send a registered letter dated, 24-07-2008 to the R.C. Owner moozhikkal Mammadu seeking clarification regarding the ownership of the vehicle. But the letter was returned unclaimed with endorsement ’addressee left India’. Opposite party is put in utter confusion why the complaint is not lodged before the police by the R.C. Owner himself. The claim was closed as ’no claim’ because of the deliberate irresponsible attitude of owner of the vehicle. That there is no deficiency in service and that complainant is not entitled to any reliefs.

3. Evidence consists of the affidavit filed by the power of attorney holder of the complainant on behalf of the complainant and Exts.A1 to A8 marked for him. Opposite party filed counter affidavit and Ext.B1 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

Complainant is aggrieved that his claim to indemnify the loss of vehicle by theft was repudiated by opposite party without valid grounds.

6. Opposite party resists the complaint stating that the claim is not genuine and that there is a confusion as to who is the actual owner of the vehicle. The counsel for opposite party laid thrust on Ext.A1 which is the F.I.R. In crime No.315/2007 of Kondotty Police station. It is the case of opposite party that in the F.I.R., the power of attorney holder herein, Sri.Alavikutty is the first informant and he has stated before the police that he is the owner of the vehicle and that it was stolen on 21-3-2007 while he had parked it on the side of airport road. Counsel for opposite party drew our attention tot he inconsistency in this regard to the contention raised by the complainant. That in the complaint, the complainant states that he is the owner and that Alavikutty was the driver of the vehicle at the relevant time. It is further submitted that though the claim form is signed by the complainant, the deed of power of attorney which is Ext.A8 was executed 10 months after the incident. Opposite party also relied on Ext.A8 which is a letter issued by opposite party to the complainant and which was returned to opposite party as addressee left India. Counsel appearing on behalf of opposite party strongly argued that Ext.A1, A8 and B1 together would establish that complainant is not the actual owner of the vehicle.

7. We are unable to agree and accept this argument put forward by the learned counsel for opposite party. Admittedly the Registration Certificate (Ext.A5) and the Insurance Certificate (Ext.A4) stands in the name of complainant. Opposite party has no case that complainant has sold the vehicle to Alavikutty or anyone else. On perusal of A3 which is the final report submitted by police after investigation of the crime it is seen stated that the vehicle owned by complainant was stolen and that Alavikutty was the driver of the vehicle at the relevant time of incident. Thus Ext.A3 fully corroborates the case of complainant. Further the claim form undeniably is seen signed by the complainant. Ext.B1 letter issued to complainant might have been returned when complainant was outside India for a short while. This document would in no way establish that complainant is not the owner of the vehicle. The burden rests heavily upon opposite party to prove the grounds of repudiation with cogent and reliable evidence. It is crystal clear that opposite party has repudiated the claim on suspicions and surmises. The act of opposite party in dishonouring the claim without valid reasons amounts to deficiency in service. We find opposite party deficient in service. Point found in favour of complainant.

8. Point (ii):-

Complainant claims for Rs.35,000/- towards loss of vehicle and Rs.10,000/- as compensation. The IDV of the vehicle as on 10-8-2006 (date of effect of policy) is Rs.36,000/-. The accident took place on 21-3-2007. Taking into consideration the depreciation the claim of the complainant for Rs.35,000/- is reasonable. In our view interest @ 6% upon the said amount from the date of complaint till payment together with cost of Rs.1,000/- would meet the ends of justice.

9. In the result, we allow the complaint and order that opposite party shall pay to the complainant a sum of Rs.35,000/- (Rupees Thirty five thousand only) along with interest @ 6% per annum from the date of complaint till payment together with costs of Rs.1,000/- (Rupees One thousand only) within one month from the date of receipt of copy of this order.

Dated this 4th day of January, 2010.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A8

Ext.A1 : Photo copy of the First Information Report dated, 04-5-2007 prepared

by Sri. Muraleedharan, S.I. of Police, Kondotty.

Ext.A2 : Photo copy of the refer notice given by S.I. of Police, Kondotty to Informant.

Ext.A3 : Photo copy of the Final report dated, 31-7-2007 prepared

by Sri. V.P. Madhusoodhanan, Addl. S.I. of Police, Kondotty.

Ext.A4 : Photo copy of the Insurance Certificate given by opposite party to complainant.

Ext.A5 : Photo copy of the Registration Certificate

Ext.A6 : Photo copy of the letter of subrogation by complainant to opposite party.

Ext.A7 : Photo copy of the Motor Claim Form for Theft of Vehicles submitted by

complainant to opposite party.

Ext.A8 : Photo copy of the deed of special power of attorney.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Returned registered with A/D postal cover by complainant to opposite party.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER