By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:-
1. The first and second complainants are the father and mother of the deceased Fasalul Abid and complainants third and fourth are the wife and minor daughter of the deceased Fasalul Abid. The deceased Mr. Fasalul Abid had purchased a new Maruthi Swift ZDI BSIB, hatch back car, in the year 2016 which was numbered as KL 10AB 9209. The vehicle was insured with the first opposite party as per policy No.98000031170305508646 dated 29/06/2017 for the period 03/07/2017 to 02/07/2018 for a sum of Rs.6,13,796/- paying a premium of Rs.16,690/-. The said vehicle was hypothecated with the second opposite party. Mr. Fasalul Abid, the registered owner of the vehicle met with road accident on 15/11/2017 while he was riding a motor cycle at Edavannapara, and he succumbed to injuries on 31/12/2017. The complainants are the sole legal heirs of Mr. Fasalul Abid. During the life time of Mr. Fasalul Abid he had borrowed as sum of Rs.1,80,000/- from his relative Mr. Muhammedali S/o Alavi who was residing at Ottapalam and as a security he handed over the possession of the vehicle to above Muhammedali along with vehicle documents. It was mutely agreed that the amount will be repaid within 10 months and vehicle will be returned back to Mr. Muhammedali. While so on 08/01/2018 the said Muhammedali informed the complainant that the vehicle parked at the residence of Mr. Muhammedali was seen missing in the night and he made a complaint before the Ottapalam police with respect to the loss of vehicle. The police directed Mr. Muhammedali to prefer the complaint through the legal heirs of the deceased Fasalul Abid. Accordingly, the complainants preferred a complaint before the Ottapalam police for the theft of the vehicle and the police without looking in to the facts of the case failed to lodge FIR. Thereafter the complainants submitted a complaint before Superintendent of police Palakkad and as per his instruction the Ottapalm police registered a crime No. 340/2018. The police after investigation closed the file with an endorsement “undetected “. The fact of missing the vehicle also informed to the RTO, Malappuram through a registered letter dated 13/03/2018. Since the complainants lost the vehicle, they preferred a claim petition before the first opposite party in the prescribed form with copies of the documents. Though the opposite party received the claim form, failed to act upon the terms of the policy. The opposite party failed to pay the assured sum as agreed in the policy. Thereafter complainants personally contacted the office of the first opposite party on several times and the opposite party assured that sum will be paid by the company. Later the complainants caused to issue a notice through his lawyer on 18/10/2019. Even after receipt of the notice the opposite party neither replied nor paid the assured sum. Hence the complainant alleges the act of the opposite party amounts clear case of violation of the terms and conditions of the insurance policy and there is deficiency in service on the part of the opposite party. The complainant submit that opposite party is liable to pay the assured sum of Rs.6,13,796/- along with 9% interest from the date of claim of the petition till the payment. The complainant submit that they are also entitled Rs.50, 000/- as compensation on account of mental agony and inconveniences caused due to the deficiency in service from the part of opposite party. Complainant pray for Rs.10, 000/- as cost also.
2. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party filed detailed version denying the entire averments and allegations in the complaint.
3. The opposite party denied the allegation that on 08/01/2018 the complainant was informed that the vehicle No. KL 10AV 9209 was found missing from the residence during night, the said Muhammedali made a complaint before Ottapalam police in respect of the loss of the vehicle, the police directed Muhammedali to prefer a complaint through the legal heirs of Fasalul Abid, the legal heirs preferred complaint before Ottaplam police, the Ottapalam police without looking in to the fact failed to lodge FIR etc. The opposite party also denied that even after getting the claim form with prescribed document copies failed to act upon the terms of the policy, the complainant personally contacted the office of the opposite party several times, the act of opposite party is a clear violation of the terms of the conditions of the policy, there is deficiency in service on the part of the opposite party, since the opposite party has received premium , the opposite party is liable to pay the assured sum of Rs.6,13,796/- along with 9% interest from the date of claim, the complainant is eligible to get 50,000/- rupees towards mental agony, Rs.10,000/- towards the cost. The opposite party admitted that they had issued a private car enhancement policy No.98000031170305508646. It is submitted that the policy was issued with strict conditions and had hypothecated with Magma Fin Corp. Limited, 1st Floor, Jain Tower, Opposite KSEB Office Power Tower, Junction Vytila Cochin. The opposite party submitted that as per the policy condition the vehicle should have properly looked after and reasonable care has to be taken for the safety and security of the vehicle by the registered owner. The opposite party submitted that the registered owner has violated that policy condition through pledging the vehicle to a third party named Muhammedali without informing the opposite party and the financier. The submission of the opposite party is that since the registered owner give the possession and right over the property to a third party namely Muhammedali at Ottapalam and thereafter the said Muhammedali gave the possession of the vehicle to one Thahir at Kothakkurissi. Hence the submission of the opposite party is that they do not have obligation to indemnify the registered owner for the loss happened from the possession of the third party. It is further submitted that the transfer of the vehicle in the matter is an illegal act as per Motor vehicles Act. It is also submitted the claimants did not produce documents to show the settlement of liability with financier. Hence the submission of the opposite party is that the registered owner violated policy condition and so the opposite party have no obligation to pay sum of Rs.6, 13,796 towards the IDV of the vehicle with 9% interest per annum from 01/06/2018, sum of Rs.50, 000/- towards the mental agony and inconveniences, and sum of Rs.10, 000/- towards the cost of the petition. The opposite party submitted that insurance policy is a contract which is regulated by terms stipulated there in, and the respective parties have their obligation if there, and specific clauses enlisted that regard. The investigation conducted by the opposite party revealed that the RC owner gave the possession of the vehicle to Muhammedali and obtained a consideration of Rs.1, 80,000/- towards the value of the vehicle. It is also submitted that the loss of the vehicle was not informed the first opposite party soon after the loss of the vehicle. Hence the submission of the opposite party is that there is no unfair trade practice or deficiency of service on the part of the first opposite party and so the complaint is liable to be dismissed with cost of the opposite party.
4. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext.A1 to A12. Documents on the side of opposite party marked as Ext. B1 and B2. Ext. A1 is copy of R.C of vehicle no. KL10 AV 9209. Ext. A2 is copy of registration particulars of vehicle No .KL 10AV 9209 dated 22/05/2019. Ext. A3 is copy of information given as per the request under RTI Act 2005. Ext. A4 is copy of death certificate dated 23/01/2018 related to Fasalul Abid. Ext. A5 is reply from Ottapalam police station under RTI Act issued on 23/04/2018 including FIR 340/2018 of Ottapalam police station. Ext. A6 is certified copy of final report in crime No.340/18 of Ottapalam Police station. Ext. A7 is copy of application submitted before the RTO, Malappuram by the second complainant dated 13/03/2018. Ext. A8 is copy of motor accident claim intimation. Ext. A9 is copy of lawyer notice issued to the opposite party by Adv. P.Devidas dated 18/10/2019. Ext. A10 is true copy of legal heir ship certificate dated 14/03/2019. Ext. A11 is No Objection Certificate issued by Magma Fincorp Limited dated 01/11/2018 (5 pages). Ext. A12 is copy of letter issued by District Police Chief Palakkad, dated 07/04/2018 along with FIR 340/2018 u/s 379 IPC. Ext. B1 is copy of policy schedule cum certificate of insurance issued in favor of Fasalul Abid in respect of vehicle No. KL10 AV 9209 policy No.98000031173305508646. Ext. B2 is copy of investigation report dated 01/02/2021.
5. Heard both sides, perused affidavit and documents. Both side filed brief notes of argument also.
The following points arise for consideration-
1) Whether there is deficiency in service on the part of opposite party
2) Relief and cost
Points No.1 & 2
6. The petitioners herein are the legal heirs of Mr. Fasalul Abid who was the registered owner cum policy holder of the vehicle No.KL 10 AV 9209 car. Mr. Fasalul Abid died in a motor accident and while he was alive he had borrowed a sum of rupees 1, 80,000/- from his relative Mr.Muhammedali and he had entrusted the vehicles to Mr. Muhammedali as security of the advanced amount. While so on 07/01/2018 the vehicle was found missing by midnight from the residence of Mr. Muhammedali and the same was reported before the Ottapalam Police station on 08/01/2018. But the police officials directed him to prefer the complaint by the legal heirs of the deceased Fasalul Abid. But the Ottapalam police failed to lodge FIR and so the second complainant filed a complaint before the District Chief of the police, Palakkkad and as per his direction Otttpalam police registered a crime as number 340/2018. Though the police department made enquiry of the crime but failed to trace the stolen vehicle. Hence the police closed the investigation file with an endorsement “undetected”. The complainants herein submitted claim form before the opposite party as the legal heirs of the policy holder. But the opposite party denied the insurance claim contending violation of insurance policy conditions by the policy holder. As per the contention of the opposite party the policy holder should have properly looked after the vehicle and there should be reasonable care on the side of the policy holder for the safety and security of the vehicle. The allegation of the opposite party is that the RC owner has violated the policy condition by pledging the vehicle to a third party named Muhammed Ali without informing the opposite party and the financier. The opposite party contended as per the investigation done by them the investigator reported that the RC owner had given the possession of the vehicle to a third party namely Muhammed Ali at Ottapalam and later Mr. Muhammed Ali had given the possession of the vehicle to one Thahir at Kothakurussy. In Addition to that the complainant has not produced settlement of liability with financier by producing document to show the termination of hire purchase agreement for complying the legal formalities in the Regional Transport Office as per Motor Vehicles Act.
7. But in this complaint, except the admission of complainants the opposite party has not produced any document to establish allegation of violation of the policy conditions for repudiating the insurance claim of the vehicle. The opposite party admitted that they had issued insurance policy as contended by the complainants. The complainants has produced copy of registration certificate to establish that deceased Mr. Fasalul Abid was the registered owner of the vehicle involved in the complaint. Ext.A10 established that the complainants are the legal heirs of the deceased Mr. Fasalul Abid, the registered owner of the vehicle. The complainant also produced Ext. A11, No objection certificate to establish that the financial terms as per hire purchase agreement has been settled. It is also noted that as per Ext. A6 the police has closed crime No.340/18 as undetected one. So considering the averments in the affidavits and documents it can be seen that the complainants are the legal hires of the registered owner cum insurer of vehicle KL 10 AV9209 which has been stolen from the possession of one Mr. Muhammedali with whom the deceased Mr. Fasalul Abid entrusted the vehicle . The complainants are being the legal hires duly approached the opposite party for the insurance claim which repudiated by the opposite party. The opposite party failed to establish the contention raised for repudiating the claim of the complainants. Entrusting the vehicle with relative cannot be treated as absence of care of RC owner. Hence, we do not find any merit in the contention of the opposite party and the complainants are entitled the insured IDV value of the vehicle as claimed in the complaint. The complainants also entitled for a reasonable amount as compensation on account of deficiency in service and thereby caused inconvenience and hardships. The claim of the complainants as compensation of Rs.50000/- is reasonable amount and we allow the same. We allow Rs.5000/- as cost of the proceedings. Hence, we allow this complaint as follows:-
- The opposite party is directed pay Rs. 6,13,796/- as IDV value of the vehicle to the complainant.
- The opposite party is directed to pay Rs.50,000/- as compensation on account of mental agony and in convenience caused to the complainants.
- The opposite party is directed to pay Rs.5,000/- as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the entire above amount will carry interest at the rate of 9% per annum from the date of filing this complaint to till realization.
Dated this 15th day of September, 2022.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A12
Ext.A1: Copy of R.C of vehicle No. KL10 AV 9209.
Ext.A2: Copy of registration particulars of vehicle No KL10AV 9209 dated
22/05/2019.
Ext A3: Copy of information given as per the request under RTI Act 2005.
Ext A4: Copy of death certificate dated 23/01/2018 related to Fasalul Abid.
Ext A5: Reply from Ottapalam police station under RTI Act issued on 23/04/2018
Including FIR 340/2018 Ottapalam police station.
Ext.A6: Certified copy of final report in crime No.340/18 of Ottapalam Police station.
Ext.A7: Copy of application submitted before the RTO, Malappuram by the second
Complainant dated 13/03/2018.
Ext A8: Copy of motor accident claim intimation.
Ext A9: Copy of lawyer notice issued to the opposite party by Adv. P.Devidas dated
18/10/2019.
Ext A10: True copy of legal heirship certificate dated 14/03/2019.
Ext.A11: No Objection Certificate issued by Magma Fincorp Limited dated
01/11/2018 (5 pages).
Ext.A12: Copy of letter issued by District Police Chief Palakkad, dated 07/04/2018
Along with FIR 340/2018 u/s 379 IPC.
Witness examined on the side of the opposite party:
Documents marked on the side of the opposite party: Ext. B1 and B2
Ext.B1: Copy of policy schedule cum certificate of insurance issued in favor of
Fasalul Abid in respect of vehicle No.KL10 AV9209 policy
No.98000031173305508646.
Ext.B2: Copy of investigation report dated 01/02/2021.
Mohandasan K., President
PreethiSivaraman C., Member
Mohamed Ismayil C.V., Member
