BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 426/2004 Filed on 17.11.2004

Dated : 17.08.2009

Complainant:

M. Nazeer, S/o Meera Sahib, Koodathittayil Veedu, Vazhakkadu, Vembayam, Nedumangad Taluk, Thiruvananthapuram District.

Opposite party:

M/s National Insurance Company Ltd., represented by the Senior Branch Manager, Soundarya Buildings, II Floor, M.G. Road, Thiruvananthapuram-1.

(By adv. S. Rajeev)

This O.P having been heard on 22.06.2009, the Forum on 17.08.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: Complainant is the owner of an Omni Van of Maruti make bearing Reg. No. KL-01S 7338 and it was having a valid comprehensive insurance policy during the period from 04.10.2003 to 03.10.2004 with the opposite party vide policy No. 570201/31/03/6109446. The opposite party had issued the policy after verifying all the required details regarding the ownership and possession of the vehicle. While so, on 08.10.2003 the vehicle was stolen from the house of Sri. Abdul Salam, a relative of the complainant, where the vehicle was kept for safe custody, as the complainant had believed that the vehicle would be more safer in the house of Sri. Abdul Salam as attempts for theft of vehicles were very frequent in the complainant's area. As soon as it was known that the vehicle was stolen, the fact was reported to the Vattappara Police Station by Sri. Abdul Salam himself as this complainant was out of station on that day and a crime was registered as Crime No. 224/2003 under Sec. 379 of the I.P.C and the police had made all efforts to find out the vehicle. Unfortunately, all the attempts of the police proved to be futile and finally the police had filed a U.N report to the Judicial First Class Magistrate's Court I of Nedumangad that the vehicle could not be found out and till date neither the vehicle is found out nor any information is received regarding the vehicle. As the theft is covered by the policy, the complainant had submitted a claim petition before the opposite party for payment of the insurance amount of Rs. 1,38,000/- though the vehicle was purchased for a higher amount. There were no impediments for the payment of the insurance amount as there was a valid insurance policy and the vehicle was in the name and possession of the complainant himself though on the date of theft the vehicle was kept in the house of Mr. Abdul Salam. But to the total dismay and disappointment of the complainant, the opposite party had repudiated the claim vide letter dated 12.10.2004 stating that they are unable to entertain the claim on the ground that at the material time of theft the vehicle was in another person's custody and that the ownership had been transferred and further that conditions 4 and 8 of the policy had been violated as the vehicle had been stolen from a third person's house. Complainant also submitted that the ownership of the vehicle had never been transferred to anybody including Mr. Abdul Salam and the complainant is the owner of the vehicle though a fake agreement was entered into by the complainant and the said Abdul Salam for the strength of repayment of a debt by the complainant. It is further submitted that the said fake agreement was made on 22.03.2003 and the policy was taken on 04.10.2003 by the complainant himself. The opposite party was satisfied of the ownership and possession of the vehicle at the time of issuing the policy and it is against the principles of law and natural justice that they turn down the claim raising untenable contentions. Hence this complaint.

In this case the opposite party National Insurance Company Ltd. filed their version denying the claim of the complainant. They stated that the complainant is not entitled for any relief as prayed for in the complaint since he sold out the vehicle KL-01S 7338 to one Ibrahim Kunju, Pothencode and a sale agreement dated 22.03.2003 was executed between the complainant and the purchaser of the vehicle in respect of the sale. Since the vehicle was sold out the complainant ceased to be the owner of the vehicle. The alleged theft was committed when the vehicle was under the ownership and possession of the purchaser of the vehicle. The theft occurred at the premise of the purchaser at Pothencode. In the motor claim form submitted by the complainant before the opposite party, it is stated that the vehicle was stolen from the car shed of his own residence, wherein it is also stated that at the time of theft the vehicle was in charge of one Ibrahim. But in the complaint, it is stated that the vehicle was stolen from the house of Abdul Salam. But did not disclose his place of residence. The police was informed by the owner of the vehicle Ibrahim Kunju from whose residence the vehicle was stolen. Based on the statement given by Ibrahim Kunju, the Vattappara Police registered the Crime No. 224/2003 under Sec. 379 of the IPC. In the F.I Statement given by the owner of the vehicle Ibrahim Kunju, it is stated that he purchased the vehicle for his own personal use and since there was hypothecation agreement with a finance company, the ownership of the vehicle could not be transferred to his name. The complainant never intimated the transfer of vehicle to the opposite party. The complainant violated policy conditions thereby disentitled for any claim under the policy. The opposite party is admitted that the vehicle was covered under policy No. 570201/31/03/6109446 valid from 04.10.2003 to 03.10.2004. But the complainant sold the vehicle to Ibrahim Kunju. The vehicle was stolen from his possession at his premises. The transfer of the vehicle has not been intimated to the company till date. The opposite party stated that the repudiation of the claim is perfectly justifiable. The reason for repudiation are clearly explained in the letter. The complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred. The vehicle was stolen from a third person's house. Thus the complainant violated conditions 1, 4 & 8 of the policy. Condition No. 4 of the policy provided for the safeguarding of the vehicle. This condition is also violated by the complainant, since the vehicle was parked at some other's compound having not even a gate at the time of theft. The opposite party further stated that condition No. 8 of the policy states that all statements given by the insured must be true. The complainant stated in the claim form that the vehicle was stolen away from his car shed at Vembayam. But the actual theft occurred at Pothencode. Thus the complainant deliberately hidden true material facts. Hence they prayed for the dismissal of the complaint.

In this case the complainant and opposite party had filed affidavits in lieu of chief examination. In this case from the side of complainant, complainant was examined as PW1 and Ibrahim Kunju was examined as PW2. 3 documents were marked on his behalf. Opposite party filed 7 documents which were marked as Exts. D1 to D7. The opposite party was examined as DW1 and A.S.I of Police, Vattappara was examined as DW2.

Points that would arise for consideration are:-

1. Whether there is deficiency in service from the side of opposite party?

2. Whether the claim repudiated by the opposite party is justifiable?

3. Whether the complainant is entitled to get the reliefs sought for?

4. Costs.

Points (i) to (iv):- In this case the complainant argued that at the time when the vehicle was stolen from the house of Abdul Salam the father of Ibrahim Kunju, where the vehicle was kept for safe custody, the vehicle was having valid comprehensive insurance policy. To prove his contention he has produced policy copy. As per Ext. P1 policy copy the name of insured is seen as Nazeer. M, the complainant having the period of insurance from 04.10.2003 to 03.10.2004 and the insured amount is Rs. 1,38,000/-. But the opposite party argued that at the time of theft, the vehicle was in another man's custody and that the complainant had no insurable interest as the ownership had been transferred. To prove that contention, the opposite party produced Ext. D2 document, the copy of sale agreement between the complainant and Ibrahim Kunju. As per this document the complainant had sold the vehicle to Ibrahim Kunju for Rs. 1,55,000/-. As per this document the vehicle and its documents were handed over to Ibrahim Kunju on that day itself i.e, on 22.03.2003. The complainant states that there was some financial transaction between the complainant and the above said Ibrahim Kunju and his father Abdul Salam. For that purpose they have executed that sale agreement and the vehicle was kept at the house of Ibrahim Kunju for safe custody. But the opposite party argued that the complainant had handed over the vehicle to him and at that time the vehicle was in possession of Ibrahim Kunju. For strengthening their contentions the opposite party has produced Ext. D4 document. Ext. D4 is the statement written by Ibrahim Kunju to the investigator of opposite party. In that document Ibrahim Kunju admitted that he had purchased the vehicle from the complainant on 22.03.2003. Thereafter he has been using the vehicle for his own purposes and usually keeping the vehicle at his own premises and stated that there is compound wall in his property, but no gate. He stated that on 08.10.2003 morning when he understood that the vehicle has been stolen from his premises, he immediately informed the matter to Vattappara Police Station and the police authorities visited the spot and prepared the mahazar and he stated the R.C Book and key of the vehicle are in his custody and he informed the matter of theft to newspapers and R.T Office. The mahazar is marked as Ext. D3, F.I.R and statement of Ibrahim Kunju, the petitioner in Crime No. 224/2003 in connection with the theft of the vehicle No. KL-01 S 7338 Maruti Van is marked as Exts. D1 and D1(a). In these documents Ibrahim Kunju stated that he had purchased the vehicle from the complainant for Rs. 1,55,000/- for his own use on 22.03.2003 and thereafter he was using the vehicle and keeping the vehicle at his own premises. And he also admitted that R.C Book was in his possession and since there was hypothecation agreement with a company the ownership of the vehicle could not be transferred to his name. The main contention of the opposite party is that the complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred. In this case the opposite party admitted that the vehicle was covered under policy No. 570201/31/03/6109446 valid from 04.10.2003 to 03.10.2004. But the complainant is not entitled for any amount since the vehicle was already sold to Ibrahim Kunju. The transfer of vehicle has not been intimated to the opposite party. The complainant violated policy conditions, thereby disentitled for any claim under the policy. The opposite party argued that the repudiation of the claim by the opposite party is perfectly justifiable. The repudiation letter is marked as Ext. P2. The reasons for repudiation are that the complainant has no insurable interest in the vehicle as the ownership of the vehicle is transferred and that the vehicle was stolen from a third person's house and thus the complainant violated conditions 1, 4 and 8 of the policy. The opposite party produced the policy conditions before this Forum and marked as Ext. D6. As per Ext. D6 policy conditions No. 1:- “In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender.” The complainant in this case has not filed any complaint before the police till date regarding the theft of his vehicle. It is Ibrahim Kunju who had filed the complaint before police authorities and the police authorities registered the crime as N. 224/03. In that crime Ibrahim Kunju stated that his vehicle was stolen. Nowhere in the police record it is seen that vehicle was complainant's vehicle. There is no case regarding the theft of his vehicle. Condition No. 4 of the policy provides for the safeguarding of the vehicle. This condition is also violated by the complainant as the vehicle was stolen from the premises of Ibrahim Kunju, having no gate at the time of theft. The complainant stated that the vehicle was kept at Ibrahim Kunju's house for safe custody. That contention of the complainant proved as false. As per condition No. 8, “ The due observance and fulfilment of terms, conditions and endorsements of policy in so far as they relate to any thing to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be conditions precedent to any liability of the company to make any payment under this policy.” The claim form submitted by the complainant is marked as Ext. D7. In this case the complainant stated in the claim form that the vehicle was stolen away from his car shed at Vembayam. But the actual theft occurred at Pothencode, the house of Ibrahim Kunju. Thus the complainant deliberately hid the true material facts. In this case the complainant was examined as PW1 and in his deposition he stated that “ഈ വാഹനം മോഷണം പോയത് എന്‍റെ ബന്ധുവായ ഇബ്രാഹിം കുഞ്ഞിന്‍റെ വീട്ടില്‍ വെച്ചാണ്. ഞാന്‍ താമസിക്കുന്നത് നന്നാട്ടുകാവിലാണ്. ഇബ്രാഹിം കുഞ്ഞിന്‍റെ വീട് 2 KM മാറിയാണ്. ഞാനും ഇബ്രാഹിം കുഞ്ഞുമായി പൈസ ഇടപാട് ഉണ്ടായിരുന്നു. പൈസ കൊടുക്കാന്‍ ഇല്ലാത്തത് കൊണ്ട് Sale Agreement ഉണ്ടാക്കി എങ്കിലും വണ്ടി എന്‍റെ കൈവശം ഉണ്ടായിരുന്നു.” In his deposition he admitted that the vehicle has been stolen from the house of Ibrahim Kunju. From this deposition we have concluded that the possession of the vehicle was also with Ibrahim Kunju. It is not believable to keep the vehicle 2 kms far away from the house of complainant and also the complainant has no evidence to show that there is financial transaction between Ibrahim Kunju and the complainant. We are of the opinion that the complainant had sold the vehicle to Ibrahim Kunju as per Ext. D2 agreement. In his deposition as PW2 Ibrahim Kunju stated that “Insurance company യുടെ investigator-ടെ report-ല്‍ ഞാന്‍ ഒപ്പിട്ട് കൊടുത്തിട്ടുണ്ട്. അതില്‍ പറയുന്നത് ശരിയും സത്യവുമാണ് ”. In that report (marked as Ext. D4) Ibrahim Kunju stated that he had purchased the vehicle bearing No. KL-01 S 7338 from the complainant on 22.03.2003 and thereafter the vehicle has been in his custody and he has been using the vehicle for his own purposes. He could not transfer the name in the R.C book in his name because there was financial hypothecation with Kotak Mahindra etc. The other depositions of Ibrahim Kunju is contradictory to that statement in the D4 document. In this case from the side of opposite party the A.S.I of Police, Vattappara who prepared the mahazar and taken the statement of Ibrahim Kunju was examined as DW2. Through his deposition opposite party proved Exts. D1 and D1(a) documents. In this case the opposite party has proved their contention as to the repudiation of claim of the complainant is legal and valid by evidences and documents. Opposite party has produced sufficient records to prove their contentions beyond doubt. In this case from the records and evidence we have concluded that the complainant had sold the vehicle to Ibrahim Kunju and handed over the vehicle and documents to him on 22.03.2003. The vehicle was stolen from the house of Ibrahim Kunju while the vehicle was in his possession. But the name of the complainant in the R.C Book and insurance was not transferred to the name of Ibrahim Kunju as per law. But they claimed the insurance benefit on the ground that the R.C book is in the name of complainant and in his favour the insurance policy was renewed. But actually the vehicle had been sold in favour of Ibrahim Kunju. It is the duty of Ibrahim Kunju to change all the relevant papers in accordance with law in his favour. He has failed to do so. At this juncture the complainant has no right to claim insurance benefit after he sold the vehicle. At the time of theft the complainant had no insurable interest that the ownership had been transferred in fact. And moreover the complainant has violated the policy conditions as per conditions No.1, 4 and 8 .

The counsels for the complainant and opposite party contested the case very vehemently. The learned counsel for the complainant produced two decisions of appellate courts.

1. Khem Chand Sapra Vs. Oriental Insurance Co. Ltd. [III (2002) CPJ 126 (NC)]

2. Sukhpal Singh Vs. United India Insurance Co. Ltd. [III (2005) CPJ 61].

In this case Hon'ble National Commission held that in a case of theft the owner is to be indemnified by the insurance company and the other irrelevant conditions of the opposite party cannot be accepted. The complainant in this case was not the owner of the vehicle and the vehicle was not in his custody and he has no police case regarding the theft of his vehicle. The facts and circumstances of the above referred case is entirely different from this case. In that case there was dispute regarding the word 'theft' and the driver of the vehicle was one of the accused in the crime of theft. The Hon'ble Uttar Pradesh State Commission in Sukhpal Singh Vs. United India Insurance Co. Ltd had held that mere possession of vehicle with someone else will not take away right of owner so long as legal documents of transfer of ownership brought on record. In this case the ownership and possession of the vehicle was transferred to another man's name. But there was hypothecation agreement with a finance company, the ownership of the vehicle in R.C Book could not be transferred to that person's name. At the time of theft the vehicle was in his possession. As per Exts. D1 to D4 documents the ownership and possession of the vehicle was in the name of Ibrahim Kunju. From the above it is clear that the person who had purchased the vehicle has not taken timely action for transferring the names in the R.C Book and insurance policy within the statutory period. The opposite party has produced 2 decisions.

1. Oriental Insurance Co. Ltd Vs. Munimahesh Patel [ IV (2006) CPJ 1 (SC)]

2. New India Assurance Co. Ltd. Vs. Dharam Singh & another [III (2006) CPJ 240 (NC)] wherein it has been held by the

Hon'ble National Commission that in theft of insured vehicle delay in lodging FIR and sending claim to insurer is clear violation of policy conditions and the Hon'ble National Commission finds that the claim is rightly repudiated and there is no deficiency in service. In the present case the complainant had not filed any complaint before police and not produced FIR before the opposite party regarding the theft of his vehicle till date. Hence the complainant violated the policy condition No. 1. Hence from the above discussions we are of the opinion that the claim repudiated by the opposite party is in accordance with policy conditions and therefore valid and maintainable and we find no deficiency in service on the part of the opposite party. Hence the complaint is dismissed. No cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 17^th day of August 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

O.P. No. 426/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Nazeer

PW2 - Ibrahim Kunju

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of policy issued by opposite party to complainant.

P2 - Photocopy of letter No. 57021/Mot/02 dated 12.10.2004 of

the opposite party.

P3 - Photocopies of pages 1 to 12 of R.C Book for the vehicle

No. KL-01-S-7338.

III OPPOSITE PARTY'S WITNESS :

DW1 - S. Dinesh Kumar

DW2 - Madhavan Chettiyar

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of FIR (Form No. I) dated 08.10.2003 issued by Asst. Police Sub Inspector, Vattappara Police Station.

D1(a) - Copy of FIR dated 08.10.2003(17.00 hrs) issued by Asst. Police Sub Inspector, Vattappara Police Station.

D2 - Copy of agreement deed dated 22.03.2003.

D3 - Copy of Mahazar dated 09.10.2003 prepared by Police Circle Inspector, Venjaramoodu Police Station.

D4 - Written statement by Ibrahim Kunju.

D5 - Certificate of Insurance of private car of Policy No. 570201/31/03/6109446.

D6 - Policy conditions of the private car package policy.

D7 - Original Motor Claim Form-Theft of policy No. 570201/31/03/6109446.

PRESIDENT