KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL NO.41/2013

JUDGMENT DATED 10/02/2014

 (Appeal filed against the order in CC No.72/2012 on the file of CDRF, Pathanamthitta dated, 29/10/2012)

PRESENT:

SMT. A. RADHA                            :         MEMBER

SMT. SANTHAMMA THOMAS    :        MEMBER

APPELLANTS:

1.     The Oriental Insurance Co. Ltd.,

Divisional Office, IV Plakkatt Buildings,

Market Jn., Thripunithura P.O.,

Ernakulam District-682 301.

2.     Regional Manager,

Oriental Insurance Co. Ltd.,

Regional Metro Palace,

North Railway Station Road,

Cochin-682 018.

3.     Branch Manager,

Oriental Insurance Co. Ltd.,

Branch Office II, Jewel Arcade Layam,

Kochi-682 001.

(By Adv:   V. Manikantan Nair)                   

                   Vs

RESPONDENT:

          Saji.P.T. Pannikuzhiyil House,

          Oonnukal P.O., Manjanikkara Church (Via),

          Kozhencherry Thaluk, Pathanamthitta-689 647.

          Rep: by Chacko Daniel   –do-

(By Advs:  V.K. Mohankumar & George Koshy)  

JUDGMENT

SMT. A. RADHA  :   MEMBER

          Opposite parties in CC.No.72/12 on the file of CDRF, Pathanamthitta are the appellants who preferred this appeal.  The Forum Below allowed the complaint in part.

          2.  It is the case of the complainant that he was the registered owner of Tata Sumo Victa LX vehicle having valid Insurance Policy with the opposite parties.  The vehicle was stolen and lost and a crime was registered on 30/05/2011 under section 406 of IPC.  Subsequently the penal Section was corrected and incorporated Section 379 and 381 of the IPC.  The vehicle was insured for Rs.5,10,000/-.  The vehicle was hypothecated with Tata Motors Finance Ltd and the complainant had to pay Rs.81,049/- due to the negligence of the opposite party and violation of policy condition.   The complainant defaulted the instalments only after the date of theft. The opposite parties evaded the payment of full insured amount causing financial loss to the complainant.  A demand notice issued to realize the damages caused by the opposite parties.  The complaint is filed claiming Rs.11,12,000/- with 24% interest from the opposite parties. 

3.  The opposite parties filed version contending that the statement of the complainant that the vehicle was stolen and lost on 30/05/2011 at 11.30 pm from his residence is denied.  The complainant was employed abroad and the vehicle was used as contract carriage which was entrusted with his father and the vehicle was driven by one Mr. Krishnalal who is employed as a driver the key of the vehicle was handed over voluntarily by the father of the complainant for taking his mother to hospital.  Hence the vehicle was taken away with the consent of the complainant’s father and the question of theft does not arise in this case.  The case was registered by the Police was not under theft.  Thereafter a personal complaint was filed with additional charges by the complainant’s father. The opposite parties admitted the comprehensive Insurance Policy of the vehicle.  It is also contended that for settling claim of theft the insured had to surrender the registration book and tax book duly transferred in the name of insurer.  The RTO is to be informed about theft of the vehicle.  The opposite parties are not liable for the claim made by the complainant as the procedures regarding theft case have not followed by the complainant.  The complaint is only to be dismissed.

          4.  The proof affidavit and documents were filed by both parties and documents were marked as Exbt.A1 to A14 and Exbt. B1.

          5.  The submission made by the Counsel for the Appellant is that no case of theft was registered by the Police as the entrustment of the vehicle does not constitute theft U/S 378 IPC.  The father of the complainant entrusted the vehicle to the driver of the vehicle and the Police registered the crime U/S 406.  Hence the repudiation of the claim of the complainant is in order.  The policy is admitted by the appellant.  However a private complaint was filed by the complainant before CJM, Pathanamthitta incorporating the relevant sections.  Exbt.B1 is the policy issued by the appellant and as per the policy the company will indemnify the insured against loss or damage to the vehicle insured while thereon by burglary, house breaking or theft.     It is an admitted fact that the vehicle is having valid policy during the period of loss of the vehicle.  For the loss of the complainant the appellants are not liable to compensate.  It is also argued that the appellants are not liable for the payment of hypothecation to the Finance Company.  No violation of policy condition caused by the appellants.  It is mandatory to settle the claim of theft case that the insured has to surrender the registration book and tax book duly transferred in the name of the insurer.  In the event of recovery of the vehicle the insurer will be in a position to take custody of the recovered vehicle legally.  The theft of the vehicle is to be informed to the RTO and the entry should be made in the tax book to avoid future taxes.  The respondent had not produced the UN report from the Police which is the pre-requisite in the case of theft of vehicle.  There is no deficiency in service on the part of appellant.  The District Forum allowed complaint in part on 29/10/2012.  The IDV of the vehicle is Rs.5,10,000/- and as the conditions in the theft case was not satisfied the appellant is not liable to entertain the claim.

          6.  The counsel for the respondent submitted that the vehicle was entrusted to the driver by the complainant’s father.  The driver was only acquainted with the complainant for two days.  As the vehicle was not returned, a case was registered u/s 406 and it is admitted that the 1^st case was registered and later it was corrected and incorporated U/S 379 of IPC.  The loss of the vehicle was timely reported to the Police as well as to the Insurance Company.  It is submitted by the counsel that the Crime No.389/11 registered by the complainant’s father was investigated by the Police and the UN report U/S 381 of IPC was filed by Pathanamthitta Police on 28/10/2012.  The certified copy of the UN report is filed before this Commission at the appellate stage.  As per the report the vehicle was stolen by the driver and could not trace out and filed the UN report.   Under these circumstances, the complainant’s claim in the Insurance amount under the policy is to be allowed in favour of the complainant.

          7.  We have heard both the counsels in detail.  The UN report submitted by the respondent at the appellate stage is to be taken into evidence in favour of the complainant.  The Order of the Forum Below is dated 29/10/2012 and the report is filed by the Police Authorities only on 28/10/12.  The respondent produced the certified copy only at the appellate stage.  We find that the report is to the taken into evidence.  In this context, we would like to point out that the UN report is a condition precedent to consider the claim in theft case.  The document produced in evidence at the belated stage is to be considered and it should be infavour of the complainant.

          In the result, appeal is dismissed and we uphold the order passed by the Forum Below.

The order is to comply within 30 days on receipt of the copy of the order.

The office is directed to send a copy of this order to the Forum below along with LCR.

A. RADHA           :        MEMBER

SANTHAMMA THOMAS     :        MEMBER

Sa.

KERALA STATE CONSUMER

                                                                  DISPUTES REDRESSAL

                                                           COMMISSION

THIRUVANANTHAPURAM

APPEAL NO.41/2013

JUDGMENT DATED 10/02/2014

Sa.