KERALA   STATE   CONSUMER   DISPUTES   REDRESSAL

COMMISSION   VAZHUTHACAUD,   THIRUVANANTHAPURAM.

  APPEAL  NO. 277/2010

                   JUDGMENT DATED:30-11-2010

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU                            :PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                                  : MEMBER

The Oriental Insurance Co. Ltd.,

R/by its Divisional Manager,                                            : APPELLANT

Trivandrum.

(By Adv. Sri.V.Manikantan Nair & Smt.Ranjana)

            Vs.

Sudheer Babu, S/o Chellappan,

Sudheer Bhavan, Panangad.P.O,                                  : RESPONDENT

Ernakulam District.

(By Adv.Sri.V.Viswanatha Iyer)

                                            JUDGMENT

JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT

Appellants are the opposite parties/Insurance Company in CC.400/08 in the file of CDRF, Ernakulam.  The appellants are under orders to pay a sum of Rs.6,75,000/- to the complainant with interest at 6% from the date of complaint.

2. The case of the complainant is that the Scorpio car owned by him and having finance from M/s Mahindra & Mahindra Finance Company was lost on account of the malicious and dishonest act of one Xavier @ Baiju to whom the vehicle was entrusted on 18/7/2007 for monthly rent.  As the agreed amount was not paid.  On 15/09/2007, he made enquiries and found that the above said Xavier was in police custody.  After release, Xavier informed him that he had handed over the car to one Vichu Raju and the above person did not return the car to him.  Hence the complainant had filed a complaint before the Hill Palace Police Station and crime was registered against Xavier.  The claim submitted to the opposite party was repudiated vide letter dated:4/6/2008 stating that the incident does not fall within the purview of the policy.  He has sought for the cost of the car ie Rs.7,50,000/- and compensation of Rs.25,000/-.

3. The opposite parties have filed version contending that the petition is bad for non joinder of necessary parties that is the financiers.  It is contended that the actions of Xavier amounted to breach of trust and the same is not a risk covered by the policy.

4. The evidence adduced consisted of Exts.A1 to A5 and B1 and B2.

5. The Forum has held that the action of Xavier who allegedly entrusted the vehicle to one Vichu Raju as stated by him without the consent of the complainant and consequent loss of the car would attract Sec.1 (VII) of Ext.A1 policy, which includes the loss consequent on the malicious act.  The Forum has deducted depreciation of 10% from the original price of the vehicle ie Rs.7,50,000/-.

6. We find that the opposite parties have not disputed in the version filed  the case set up by the complainant that the vehicle was entrusted to Xavier and the Xavier did not return the vehicle and that the act of Xavier in allegedly entrusted the vehicle to Vichu Raju without the consent of the complainant and consequent loss stands not disputed in the version filed.  The only contention is that the crime is registered under Sec.403 and 406 of IPC ie dishonest misappropriation of property and criminal breach of trust; and hence the above would not attract the relevant clauses of the policy ie loss due to theft, malicious act etc.  The Forum has relied on the decision of the Supreme Court in Muralidhar Sarangi Vs. New India Assurance Company Ltd.  (2000) 3 SCC 466 wherein the malicious act is mentioned as a wrongful act intentionally done without legal justification or excuse.  The respondent/complainant has also relied on the decisions in the Oriental Insurance Company Ltd. Vs.Rohit Kumar Gupta 1 (1994) CPJ 196 NC, Oriental Insurance Company Ltd. Vs. Mubeen  & Another (2003) (1) CPR 622  wherein it has been held that illustration (d) to Sec.378, with respect to theft is attracted to a case where the person entrusted with an article dishonestly runs away.  Somewhat similar is the situation herein also.  Even without resorting to the above illustration we find that the particular clause in the policy covers loss of the vehicle by malicious act.

7. There is no case for the appellant as already noted above that the allegation of the complainant as to the loss of the vehicle is false.  In the circumstances we find that the finding of the Forum that the opposite parties/appellants are liable for the insurance claim is only to be upheld.

8. It was pointed out by the counsel for the appellant that the depreciation of 10% allowed is incorrect as Ext.A1 policy would show that 10% is the depreciation with respect to the parts of the vehicle.  With respect to the depreciation for fixing the IDV of the vehicle is 20%.  We find that Ext.A1 specifically provides that with respect to the total loss the depreciation age-vise is 20% for the period exceeding one year but not exceeding 2 years.  Hence the appellant is entitled to deduct 20% of the cost of the vehicle of Rs.7,50,000/- which would work out to Rs.6,00,000/- after depreciation.  The complainant is entitled for the above amount.  The order of the Forum in this regard is modified accordingly.

In the result the appeal is allowed in part.  The appellant is directed to pay a sum of Rs.6,00,000/- to the complainant with interest as ordered by the Forum and on condition that the opposite party before reimbursement of the amount, issue notice to the financier.  The complainant will also be entitled for the cost of Rs.2000/-.

The opposite parties/appellants are directed to pay the amounts within 3 months from the date of receipt of this order, failing which the complainant will be entitled for interest at 12% per annum from 30/11/2010, the date of this order.

The office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:PRESIDENT

S. CHANDRAMOHAN NAIR: MEMBER

VL.