By Smt. C.S. Sulekha Beevi, President,<br /> 1. Facts in brief:-<br /> Complainant is the owner of the vehicle KL10-H/4660 TATA 709. The vehicle is insured with opposite party under comprehensive policy. The vehicle met with an accident on 08-01-03 at about 2.30 am and sustained damages. The accident was reported to the police station as well as to opposite party. The accident happened in the early hours of the day and there was nobody at the spot to help the driver. The vehicle was taken to the workshop for repair by the driver since it was not safe to keep the vehicle idle at the spot. So the complainant was unable to arrange for spot survey. At the relevant time of accident complainant was the owner and insured of the vehicle. Though a claim was preferred opposite party repudiated the claim without valid reasons. Complainant has spend Rs.83,250/- towards repair of the vehicle. The denial of claim by opposite party amounts to deficiency in service and hence this complaint. <br /> <br /> 2. Opposite party has filed version admitting the issuance of comprehensive insurance policy for the vehicle in the name of Mr.M. Ali, S/o Moideen for the period 31-3-2002 to 30-3-2003. As per Registration Certificate of the vehicle complainant acquired ownership of the vehicle on 28-8-2002. That opposite party was not informed about transfer of vehicle and complainant did not apply for transfer of policy within the prescribed time. That with transfer of vehicle the insured lost his insurable interest in the vehicle and due to absence of novation, complainant did not acquire insurable interest in relation to own damage cover. That complainant applied for transfer of policy into his name only on 07-01-2003. On the next day complainant reported that the vehicle met with an accident on 08-01-2003 at 2.10 am. First Information Report was not registered and the accident was not even reported to the concerned police station. Moreover, the vehicle was removed from the scene without even arranging for spot survey or photographs of the accident. On receipt of claim company deputed a Surveyor to assess the loss. An investigation into the accident was also arranged to ascertain the truth and veracity of the incident. According to investigation report, the accident did not occur as reported by complainant. It is contended that accident happened on or before 07-01-2003 from elsewhere. The case of complainant that accident happened after transfer of policy into his name is concocted and falsely fabricated. Claim was repudiated on these grounds. Complainant thereafter issued lawyer notice demanding settlement of the claim. Along with this notice an affidavit by the mechanic Suresh Babu was also filed who has stated that the vehicle was brought to his workshop in the early hours of 08-01-2003. But this deponent has stated to the investigator that the vehicle was brought to the workshop on 07-01-2003 at 5 am. A certificate issued by Sub Inspector of Police, Melattur was also enclosed. On a scrutiny it was found that the affidavit and certificate was unreliable and unacceptable. The claim was repudiated for valid reasons and there is no deficiency n service. The loss assessed by the Surveyor is Rs.20,686/-. The claim itself being inadmissible complainant is not entitled to any reliefs.<br /> <br /> 3. Evidence consists of affidavit filed by complainant and the oral evidence of PW1 Sri. Suresh Babu, witness examined on the side of complainant. Exts.A1 to A12 marked on the side of complainant. Counter affidavit filed by opposite party and Exts.B1 to B9 marked on behalf of opposite party. No oral evidence adduced on the side of opposite party.<br /> 4. Points for consideration:-<br /> (i) Whether opposite party is deficient in service.<br /> (ii) If so, reliefs and costs.<br /> 5. Point (i):-<br /> According to complainant the accident occurred on 08-01-2003 at about 2.30 am. The claim is resisted by opposite party mainly on the ground that the accident did not happen on 08-01-2003 but occurred on or before 07-01-2003. Thus the dispute revolves around the issue whether the accident occurred on 08-01-2003 and whether opposite party is liable to indemnify as per the policy.<br /> 6. Admittedly First Information Report was not registered. Complainant contends that since the incident happened in the odd hours of morning there was no one at the spot to help the driver. Since it was unsafe to leave the vehicle at the spot driver took the vehicle for repair to the workshop. It is submitted that on the same day the intimation of accident was given to opposite party and a claim was also preferred.<br /> 7. On behalf of opposite party it was vehemently argued that the accident did not occur on 08-01-2003. Opposite party suspects the genuineness of the date of incident mainly because complainant made the claim the next day of effecting transfer of policy into his name. Ext.B1(a) is the policy certificate issued in the name of previous owner Sri.M. Ali, S/o Moideen for the period 31-3-2002 to 30-3-2003. As per Ext.B4 the ownership of the vehicle was transferred to the name of complainant on 28-8-2002. Ext.B1(b) is the endorsement schedule of the policy by which it is evident that the policy was transferred to the name of complainant only on 07-01-2003. The next day ie., on 08-01-2003 complainant has made this claim. Naturally suspecting the genuineness opposite party has arranged for an investigation. Ext.B6 is the report of the investigator. As part of investigation, the investigator who is a Former Deputy Superintendent of Police has recorded statements of complainant, driver of the vehicle and a mechanic Suresh Babu of the workshop. The statements of complainant and the driver is congrous to the case put forward by the complainant. As per report of the investigator it is stated that the mechanic Sri.Suresh Babu stated that the vehicle was brought to the workshop on 07-01-2003 at about 5 am for repair, and that it was moved to another workshop for doing the patch works. It is sufficiently clear from Ext.B6 report that the investigator has reached the conclusion that the accident happened on or before 07-01-2003 mainly basing upon this statement of the mechanic Suresh Babu. Thus the Company repudiated the claim by the letter dated, Ext.B7.<br /> 8. On receiving Ext.B7 complainant issued a notice to opposite party through his lawyer. Along with this notice which is Ext.A1 complainant enclosed an affidavit of the mechanic Suresh Babu and also a certificate issued by Sub Inspector of Police, Melattur. In this affidavit which is Ext.A11 the mechanic has affirmed that the vehicle was brought to the workshop on 8-1-2003 and not on 07-01-2003. He has also stated that he had signed some papers before the investigator without knowing the contents and not knowing that he was an investigator. The other document enclosed with the notice is the certificate issued by Sub Inspector of Police, Melattur. This is marked as Ext.A12. In this document the Sub Inspector has certified that on receiving information that the vehicle KL10-H/4660 TATA 709 Mini lorry was involved in an accident on 08-01-2003 at 2.30 am at Melattur enquiries were made and the same was reported to be true. Even after receiving Ext.A11 and A12 documents opposite party failed to settle the claim rejecting the above documents as unacceptable and unreliable. It is at this stage complainant has approached this Forum.<br /> 9. Main thrust was laid by opposite party on Ext.B6 the investigation report and contended that the accident happened on or before 07-01-2003 and not on 08-01-2003. One thing is definitely clear. The accident did not happen prior to 07-01-2003. This is because complainant has applied for transfer of endorsement of policy on 07-01-2003. While considering such transfer opposite party has an implied duty to inspect the vehicle and also the relevant documents. The transfer can be effected only on satisfaction of the genuineness and correctness of the application for endorsement of transfer. Especially in this case when the request for transfer of policy was made several months after the transfer of ownership opposite party ought to have inspected the vehicle. Admittedly transfer was effected on 07-01-2003. Therefore it has to be assumed that the vehicle was in proper condition until the transfer was effected. Then the only chance left is whether accident occurred on 07-01-2003 after effecting transfer of policy or on 08-01-2003 as contended by complainant.<br /> 10. It can be inferred that the statement given by the mechanic Suresh Babu before the investigator that the vehicle was brought to the workshop on 07-01-2003 at 5 A.M can only be a bonafide mistake. Later he has affirmed in Ext.A11 that the vehicle was brought to workshop in the early morning of 08-01-2003. Complainant has stepped forward by examining him as PW1. Although PW1 seemed a little confused in the cross examination as to which of the affidavit the counsel for opposite party was referring to; on appreciation of his evidence as a whole he has categorically stated that the vehicle was brought to the workshop on 08-01-2003 early morning. He has also stated that the investigator had obtained his signatures on blank papers. The statement alleged to be given to the investigator by PW1 was brought on record as Ext.B9 through this witness. On perusal of Ext.B9 it is seen that investigator has obtained the signature of the witness after recording the statement. For that matter investigator has obtained signatures of all witnesses in the statements recorded by the investigator. We raised doubts whether the investigator has any authority to obtain signatures of witnesses after recording their statements. Even under Sec. 162 Criminal Procedure Code the statements made to police, in course of investigation is not to be signed by the person making the statement. This provision intends to protect and safeguard the interests of the person becoming a witness in the course of investigation. This being the law of land, in our opinion a private investigator cannot roam about and collect signatures of persons in papers, without any authority under law. Further it is also stated by PW1 that he mistook the investigator to be an officer from the concerned police station and therefore obliged to the request to sign the paper. Ext.B9 therefore cannot be relied or accepted in evidence. There is nothing to disbelieve the testimony of PW1. From the above discussions we are able to reach the inescapable conclusion that the accident occurred on 08-01-2003 as contended by the complainant. Therefore opposite party is definitely liable to indemnify the complainant.<br /> 11. Before parting with the discussion of this point we have to state that opposite party cannot deny liability even if we assume that the accident occurred on 07-01-2003. The comprehensive policy is valid for the period 31-3-2002 to 30-3-2003. The only reason why opposite party clinches to the date of accident is because the policy was transferred to the name of complainant only on 07-01-2003. Though the registration certificate was transferred on 28-8-2002. This position is already settled by Apex Commission in R.P.No.556/2002 Shri Narayan Singh Vs. New India Assurance Company decided on 22-5-07.<br /> 12. From the above discussions we hold that opposite party has repudiated the policy without cogent evidence to substantiate their decision. We find opposite party deficient in service.<br /> <br /> <br /> 13. Point (ii):-<br /> Complainant claims Rs.83,250/- as the amount spend by him for repairing the vehicle. Ext.B5 is the survey report. The loss assessed by the Surveyor is Rs.20,686/-. There is nothing before us to disregard Ext.B5. In our view complainant is definitely entitled to the amount assessed by the surveyor. He has to be compensated for the deficiency and hardships. For such illegal retention of legitimate amount opposite party is liable to pay interest. Considering the facts and circumstances of this case we consider that interest @ 6% per annum upon the above amount would meet the ends of justice.<br /> 14. In the result, we allow this complaint and order opposite party to pay Rs.20,686/- (Rupees twenty thousand six hundred and eighty six only) to the complainant along with interest @ 6% per annum from the date of complaint till payment together with costs of Rs.1,500/- (Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order.<br /> <br /> Dated this 23rd day of September, 2008.<br /> Sd/- <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/- <br /> E. AYISHAKUTTY, MEMBER<br /> <br /> APPENDIX<br /> <br /> Witness examined on the side of the complainant : PW1<br /> PW1 : Suresh Babu<br /> Documents marked on the side of the complainant : Ext.A1 to A12<br /> Ext.A1 : Photo copy of the registered lawyer notice dated, 10-4-2003 <br /> by complainant's counsel to opposite party.<br /> Ext.A2 : Postal acknowledgement card from opposite party to complainant.<br /> Ext.A3 : Registered reply notice dated, 07-5-2003 by opposite party's counsel to complainant's counsel. <br /> Ext.A4 : Cash bill dated, 8-01-2003 received from Kurikkal Body Builders<br /> Manjeri to complainant.<br /> Ext.A5 : Photo copy of the receipt dated, 07-2-2003 from Kurikkal Body <br /> Builders to complainant.<br /> Ext.A6 : Photo copy of the Cash bill dated, 31-01-2003 for Rs.3625/-<br /> from Keraliea Radiators, Manjeri in respect of vehicle No.KL10-H/4660.<br /> Ext.A7 : Photo copy of the Cash bill dated, 31-01-2003 for Rs.3931.20/-<br /> from Manjeri Automobiles, Manjeri in respect of vehicle No.KL10-H/4660.<br /> Ext.A8 : Photo copy of the Cash bill dated, 30-01-2003 for Rs.4444/-<br /> from Apsara Traders, Manjeri in respect of vehicle No.KL10-H/4660.<br /> Ext.A9 : Photo copy of the Cash bill dated, 25-01-2003 for Rs.7300/-<br /> from M/s T.K. Automobiles, Manjeri in respect of vehicle No.KL10-H/4660. <br /> Ext.A10 : Photo copy of the request for claim by complainant to opposite party.<br /> Ext.A11 : Photo copy of the affidavit dated, dated, 21-3-2003 by Suresh Babu<br /> S/o Narayanan to opposite party.<br /> Ext.A1 2 : Photo copy of the Certificate dated, 04-3-03 issued by Sub Inspector<br /> Police, Melattur to the complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B9<br /> Ext.B1 (a to c) : Copy of Policy No.570305/2001/6313594 in respect of vehicle<br /> No.KL10-H 4660 by opposite party to Mr.M.Ali, S/o Moideen<br /> together with endorsement of transfer in favour of complainant <br /> and voucher for payment of transfer fee. <br /> Ext.B2 : Request for claim dated, 08-01-03 by complainant to opposite party.<br /> Ext.B3 : Motor Claim Form submitted by complainant to opposite party.<br /> Ext.B4 : Photo copy of the certificate of registration in respect of vehicle<br /> No.KL10/H-4660 by R.T.O., Malappuram.<br /> Ext.B5 : Photo copy of the Survey Report dated, 07-2-03 given by Suresh Babu a<br /> Insurance Surveyor to opposite party. <br /> Ext.B6 : Invesigation report dated, 10-2-2003 given by Deputy Superintendent of<br /> Police to opposite party.<br /> Ext.B7 : Repudiation dated, dated, 17-2-2003 from opposite party to complainant. <br /> Ext.B8 : Additional Investigation report dated, 26-5-2003 given by Deputy<br /> Superintendent of Police to opposite party.<br /> Ext.B9 : Deposition from Suresh Babu, S/o Narayanan, made by Haridasan Nair, <br /> Investigator. <br /> <br /> Sd/- <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/- <br /> E. AYISHAKUTTY, MEMBER<br />