KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL NO. 436/02 JUDGMENT DATED: 19/7/08 PRESENT:- SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRA MOHAN NAIR : MEMBER 1. The Oriental Insurance Co. Ltd., (Subsidiary of General Insurance Corporation of India ) Reg.Office: Oriental House, P.B.No.7037, A-25/27 Asef Ali Road, New Delhi 110 002. 2. The Oriental Insurance Co. Ltd., : APPELLANTS Mattathara Buildings, 3rd floor, Kottayam Baker Junction 3. The Oriental Insurance Co.Ltd., Thiruvalla, Pathanamthitta. Appellants 1 to 3 are represented by the Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Trivandrum (By Adv.S.S.Kalkura) Vs Roshan, Arapurackal House, Muthoor P.O., : RESPONDENT Thiruvalla, Pathanamthitta (By Adv.N.Padmini) JUDGMENT SRI.S.CHANDRA MOHAN NAIR : MEMBER This appeal is preferred by the opposite parties in OP No.22/01 of CDFR, Pathanamthitta who are under orders to pay a sum of Rs. 3,70,000/ with 9% interest from the date of petition till the date of realization to the complainant. 2. The grievances of the complainant voiced in the petition are that the complainant had insured his vehicle worth Rs. 4,92,938/-. With the opposite parties and while the policy was inforce, the vehicle was stolen on 24/7/99. It is his case that though the case was registered with police and the police had failed in detecting the vehicle and though the claim was lodged before the opposite parties, the opposite parties committed deficiency of service and unfair trade practice by disallowing the claim of the complainant. Alleging deficiency of service and unfair trade practice, the complaint was filed for directions to the opposite parties to provide a new Tata Sumo deluxe vehicle and to pay Rs.20,000/- as compensation and Rs.10,000/- as cost. 3. Resisting the complaint, the opposite parties filed version contending that the case of the complainant cannot be believed as the complainant himself had produced a Pollution under Control Certificate issued on 7/12/99 which was 5 months after the alleged theft. The investigator of the opposite parties after due investigation had also confirmed that the vehicle was produced by the complainant before the pollution testing authority for testing the vehicle. It was submitted by the opposite parties that the complainant was not able to furnish satisfactory explanation for the production of the Pollution under Control Certificate and in such a situation the repudiation was perfectly legal and there was no deficiency of service and unfair trade practice. Raising the above contentions the opposite parties prayed for the dismissal of the complaint with cost. 4. The evidence consisted of the oral testimony of PW1 and 2, Exts.P1 to P8, DW1 and 2 and Exts.R1 to R4. 5. We heard the learned counsel for the appellants and respondent. 6. The learned counsel for the appellants submitted his arguments based on the contentions taken in the version as well as the grounds urged in the memorandum of the present appeal. It is his very case that the action of the opposite parties in repudiating the claim was on the basis of the Pollution Control Certificate which was seen to be issued nearly 5 months after the alleged theft. He vehemently argued before us that the certificate was produced by the complainant himself along with the claim papers and DW2 who was the proprietor of the testing unit and who had issued the certificate had also vouchsafed the fact that the certificate was issued from his Pollution Testing Unit. It is his further case that if at all the Forum was inclined to allow the claim it should have been only Rs.3,25,000/- which was the market rate of the vehicle on the date of theft. He has further contended that the order of the Forum to give compensation deducting 25% of the insured value was arbitrary and without any evidence and hence the same is unsustainable and he prayed for the dismissal of the complaint with cost. 7. On the other hand, the learned counsel for the respondent supported the findings and conclusions of the Forum. He has submitted before us that the Forum ought to have allowed the insured amount itself as the opposite parties had collected premium for the insured amount of Rs.4,92,938/-. He also disputed the case of the appellants regarding the Pollution Control Certificate. It is his very case that even DW2 has not testified before the Forum regarding the correctness of the certificate. The learned counsel invited our attention to the deposition of DW2 wherein he has stated that he was not the person who conducted the testing and that he could not produce the basic documents for the issue of the certificate. The learned counsel submitted that an appeal against the order was not filed by him due to the financial constraints of the complainant/respondent and he pleaded before us that the appeal is to be dismissed upholding the order of the Forum below. 8. On hearing the learned counsel for both the parties and also on going to the documents submitted by the parties, we find that it is the admitted case of both the parties that the vehicle was having valid insurance policy at the time of the alleged theft. The appellants/opposite parties also have no case that the vehicle was found out any time later and their only contention seems to be regarding the issue of a Pollution under Control Certificate said to have been produced by the complainant/respondent along with the claim. However the respondent/complainant has strongly denied the production of such a certificate and we also find that DW2 who has been examined before the Forum has failed in establishing the issue of the said certificate (R1) based on any records. He has also deposed that he was not the person who had tested of the vehicle. He has further stated that there are no basic records regarding the issue of Ext.R1 and in such a circumstance the reliance placed on by the appellants in repudiating the claim cannot be supported. Moreover the Hon’ble Supreme Court in National Insurance Co.Ltd. Vs Nitin Khandelwal (2008 CTJ 680) has held that in the case of theft of a vehicle, it is unjust and unfair on the part of the insurer to raise wild allegations for repudiating the claim and it is only proper that the insurance company indemnifies the insured. 9. The Forum has directed the opposite parties to pay Rs.3,70,000/- with 9% interest from the date of petition. It is seen that the Forum has directed the payment of 75% of the total value of the vehicle. But it is seen that the Assistant Manager of the opposite parties who was examined as DW1 has stated that the market value of the vehicle would be Rs.3,25,000/- only on the date of theft of the vehicle. It is should be noted that the vehicle was purchased on 25/5/98 for a sum of Rs.4,92,938 and the vehicle was stolen on 24/7/99 which is after the period of one year. The statement of the Assistant Manager (DW1) that the vehicle’s market value is only Rs3,25,000/ has not been neither cross examined nor disputed by the complainant. Hence we are of the opinion that the opposite parties are liable to pay only the market value which is of Rs.3,25,000/- and in the aforesaid circumstance the complainant is eligible to get Rs.3,25,000 with 9% interest from the date of complaint. In the result the appeal is allowed in part and the order is modified as indicated above thereby directing the appellants/opposite parties to pay Rs.3,25,000 with 9% interest from the date of complaint till the date of the payment. In the nature and circumstance of the case the parties shall suffer their respective costs. S.CHANDRA MOHAN NAIR : MEMBER M.V.VISWANATHAN : JUDICIAL MEMBER PK.
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.S.CHANDRAMOHAN NAIR | | 
