KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 43/2008
JUDGMENT DATED: 24.3.2011
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
Korothan Nanu, S/o Raman, : APPELLANT
Banana Merchant, Near Old Bus stand,
Iritty, Kannur District-670703.
(By Adv.Sunil V.Mohammed)
VS.
The Oriental Insurance Co.Ltd., : RESPONDENT
City Branch Office,
Raz Builidng,
1st Floor, South Bazar, Kannur-2.
(By Adv.G.S.Kalkura)
JUDGMENT
SRI.M.K.ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Kannur in OP.223/01 dated 21.3.2006. The appellant is the complainant and respondent is the opposite party respectively in the above OP. The appellant/complainant who prefers this order passed by the Forum below and that under the order of the Forum they dismiss the complaint without cost. The prayer in the appeal memorandum that too set aside the impugned order passed by the Forum below and to allow this complaint.
2. In short, the complainant’s case is that two unknown persons, who infact hired the appellant’s lorry bearing No.13/C-1591 for transporting Oranges from Madikeri to Iritty, on 29.01/2000, stolen his said vehicle by administered some kind of tranquilizer. The lorry was stolen at Madikeri, consequent to which a crime was already registered as 27/2000 of Madikeri Town Police Station. The lorry was insured with the opposite party/ Insurance Company. The appellant lodged a claim for insurance on 30.10.2000 and the District Police Officer, Madikeri has permission to file ‘C’ report which was produced before the respondent for further action. The police filed the final report in the crime before the Trial Court on 8.11.2000 and there after also the insurance claim. Eventhough the appellant had contacted that the respondent for the insurance on several occasions, the Company deliberately avoided further steps in the matter directing the appellant to constantly contacted the police inorder to find whether recovery of the lorry is effected or not. While so during February 01, the police informed the complainant that they have seized a vehicle supposed to be stolen from the appellant. Infact the said vehicle was neither the vehicle in question nor a genuine one. The appellant before the police, as also in the trial court reported this fact immediately; without even conducting any further inspection or verification as to identify the genuineness of the same in simple terms, refused the appellant’s claim for insurance stating that the vehicle is already detected. Eventhough the appellant caused to issue on the respondent a lawyer notice dated w6.2.2001, that remained fruitless. The appellant who is residing at Iritty which is 43 KMs away from Madikeri police station is compelled to go there repeatedly from March 2000 onwards as the respondent has assured at the time of preparation of the survey report that the amount will be released immediately on executing an indemnify bond after production of the final report. Unfortunately the respondent thereafter took a turn around in the matter keeping the payment in abeyance even after submission of final report by the police. Accordingly the aged appellant is suffered much due unfair trade practice and deficiency in service on the part of the respondent as claimed insurance amount of Rs.354500/- together with interest, compensation and cost by filing the above OP before the Forum below.
3. The opposite party appeared and contended that in the written version, that the lorry was insured by them they stated that it is the duty to indemnify in case the vehicle is loss or undetectable and further explanation that the payment was kept in abeyance even after the final report of the police filed before the JFCM court only due to the information from the investigation team that there is a possibility of recovering the stolen vehicle. The respondent is further relied on the contention of recovery of the alleged vehicle in question subsequently by the police and so called report of the investigator engaged by the company pointing out that the recovered vehicle is exactly the vehicle stolen from the appellant. It is contended by the respondent that the company is not legally liable to pay the insurance amount in the circumstances. They contended that the opposite party get a letter from the inspection team that there is every possibility of recovering the stolen vehicle and asking to keep the payment in abeyance So the opposite party requested the complainant to wait for the some more time. There was no malafide intention. Later on the vehicle was already recovered by the police and it is kept in the terms of the District Crime Investigation Bureau, Kedagu, Karnataka. Then the opposite party engaged in investigation to verify the vehicle to see whether the vehicle which is stolen vehicle or not. The report says that the seized vehicle was the same stolen vehicle. So the opposite party is not legally bound to pay the insurance amount. The complainant himself had inspected the vehicle to his own vehicle and initially it was informed that it is the stolen vehicle. So for getting money from the opposite party saying the vehicle does not belonging to him. The tampering of engine No. and chassis number of the vehicle is a false story. The report would show that the vehicle can be used in a good running condition. The complainant ought to have get the vehicle released and make a request for the compensation for the damages if any caused. It was not done. The opposite party had been negotiating with the complainant for doing the same. But the complainant rushed to the Forum with the case stating all these facts and without considering the reply notice issued by the opposite party The complainant is well aware of the fact that the vehicle has been recovered and the culprits had been apprehended. Hence the complaint is to be dismissed with costs.
4. The forum below raised two points 1) whether there are any deficiency in service? 2) Whether the complainant is entitled to get insurance amount and compensation? 3) If so the quantum?
5. The evidence consisted of the oral testimony of PWs 1 to 3, DW1 and DW2 and the documents Exts.A1 to A19, C1 and B1 to B10 were marked.
6. As per the evidence, the Forum below discussed all the points in detail. Forum below heard both sides and arrived in a conclusion that, suppose the vehicle was undetected, the complainant is entitled to get the full insurance amount. The opposite party has not given the insurance amount because the vehicle was seized subsequently. They have issued a letter to the complainant asking him to go to the police station and get it released. So it was the duty of the complainant to go to the police station and got release of the vehicle and to file a claim form for getting damages, if there is any damages to the vehicle for making it in a good running condition. It was not done. The case of the complainant is that he has taken loan from the bank and he is depend upon this is only for his livelihood from the profit deriving from the vehicle. At present he is not in a position to repay the loss. If suppose this is a situation definitely of the complainant have gone to the police station and get release from the vehicle and make arrangement for running it in good condition. And then appear for getting damages from the opposite party as for the policy. The opposite party deputed an insurance surveyor for ascertaining to damages. The surveyor inspected the vehicle on 28.6.01 and from the survey report Ext.B8 is damages of the vehicle is Rs.5987/-. The complainant has not claimed any amount on the basis of the damages, the complainant has not even getting release of the vehicle from the Madikeri police station. It is kept idle over to sun and rain. As he did not get release of the vehicle from the police station and not claimed for any damages from the opposite party. The opposite party has no responsibility to pay the same. Same liability also to the complainant. So on evaluating the evidence, the vehicle can not be stated that the opposite party is negligent and carelessness in given the policy amount to the complainant. The difficulty was caused the complainant himself. Thereafter the Forum below are enable to say that there is deficiency in service on the part of opposite party. The complainant already claimed for his insurance amount of Rs.3,54,500/- with 12% interest and compensation of Rs.25000/- with cost.
7. The complainant has not entitled to get insurance amount for the reason stated above that even now the vehicle is kept in the police station without taking back from the complainant so far. If at all, the complainant is entitled on getting any amount is only the value of damages of the vehicle. As the complainant has not claimed for the same and vehicle is also not in the possession. The opposite party is not given that amount to the complainant. All the reasons stated above; the complaint deserved no merit and is liable to tore dismissed but without cost. Without prejudice to the right of the complainant to get damages from the complainant after getting release of the vehicle from the Madikery police station and for reconsideration of the matter. Then the Forum below dismissed the complaint.
8. This order at present challenged by the appellant/complainant through this appeal. On this day this appeal came before this Commission for final hearing the Forum below; both counsels represented their own parties. The counsel for the appellant argued from the grounds of appeal memorandum that the order passed by the Forum below, without appreciating the evidence especially the evidence of PW2 and PW3 and Ext.C1 and C2 reports. The counsel for the respondent/Insurance company submitted that the vehicle was already detected. In this circumstance they are not liable to pay the compensation as per the condition of the policy. In the very same time, the counsel for the appellant argued that the appellants recovered the vehicle but chassis and engine number are not same, this fact was already proved and admitted. In this circumstance this vehicle is belonging to the appellant/complainant. They have no legal right to get back the vehicle through the court of law.
9. We heard both sides in detail and perused the entire evidence adduced by both sides before the Forum below. It is seeing that the vehicle was insured with the opposite parties and only later it was stolen. The FIR already registered and the investigation was going on by the police. At last they recovered a vehicle. The opposite party/insurance company admitted the policy and contended in their version that they are liable to pay the amount for the irrecoverable loss of the vehicle due to stolen of the vehicle by anybody. As per the policy conditions, the insured vehicle was detected by the police and this was admitted by the appellant/complainant also. In this circumstance they are not any way liable to pay this compensation as per the policy conditions. There is no hesitation to accept this argument. But the complainant’s case is that, the recovered vehicle is wilfully belonging to RC owner. The chassis number and engine number were tampered or substituted. In this circumstance, the complainant did not get this vehicle from police or from the court as per the provisions of the Motor Vehicle Act and Criminal Procedure Code and criminal procedure code. This is not a vehicle belonging to the complainant, So they entitled to get compensation from the opposite parties/insurance company. We are seeing that the vehicle was recovered by the police but there are two important portions of the vehicle which was tampered or duplicated. In the circumstance it is not the original vehicle belonging to the complainant. The complainant who sustained loss his valuable two parts of his vehicle. In a lorry the engine and chassis are the 90% of the important parts. A transport vehicle like lorry the remaining portion are the tyre, gear box, axle etc. It can be estimated only 10% of the total cost of the lorry, It shows that, technically and legally, the vehicle of the complainant is irrecoverable loss. Suppose he got release the vehicle from the police custody and shall produce before the Motor vehicle authorities. For permit fitness they will refuse to give permit as per the provisions of the Motor Vehicle Act. It shows that the recovery of the stolen vehicle of the complainant shall not beneficial to the complainant.
10. We seen that the order passed by the Forum below is without appreciating the fact and circumstance of this particular case. The Forum below did not appreciate the spirit of the socially benefited legislation, such as the Consumer Protection Act, and they need not go to the hyper technicalities just like a civil court. It is par from a Civil court. We are seeing apparent error in the order passed by the Forum below, it is not legally sustainable. In this circumstance we decide to set aside the impugned order passed by the Forum below. We allowed this appeal.
We think that it is a fit case to remand back to the Forum below for fresh disposal accordance with the above findings of this Commission. In the result this appeal is allowed and set aside the order passed by the Forum below. This case remand back to the Forum below for fresh trial after considering the case of the complainant. The Forum can given ample opportunities to both sides to adduce their own further evidence. The Forum below has also have the right to dispose the case as per the evidence and the spirit of the Consumer Protection Act.
11. This commission find that fresh question is necessary to be raised and answered by the Forum below such as whether the recovered vehicle is legally belonging to the complainant or not? And whether the recovered vehicle will be served any purpose to the insured R.C owner?
Both parties are directed to appear before the Forum below after getting notice from the Forum below. The points of the appeal considered one by one and answered accordingly. Both parties are directed to suffer their respective costs to this appeal.
M.K.ABDULLA SONA : MEMBER
VALSALA SARANGADHARAN : MEMBER
M.V.VISWANATHAN : JUDICIAL MEMBER
ps
