By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Facts in brief:-<br /> This complaint is preferred by power of attorney holder of complainant. It is the say of complainant that he is the registered owner of Toyota Qualis vehicle No.Kl-13/G 3041. The said vehicle is insured with opposite party. During the currency of the policy on 30-8-2003 between 11.30 P.M. and 6.30 A.M. of 31-8-2003 the above vehicle was stolen. Manjeri police registered a crime No.573/03 under section 379 I.P.C. Police has submitted final report and the case was taken on the file of Judicial First Class Magistrate, Manjeri as C.C.406/2004 under sections 379 r/w 411 I.P.C. The theft was inform to opposite party and a claim was also preferred. That opposite party repudiated the claim after almost two years stating that complainant has violated condition No.4 of the policy. That complainant has taken reasonable care of the vehicle that is expected of an owner/insured and has not violated any conditions. That the repudiation is on unsustainable grounds and amounts to deficiency in service. Hence this complaint.<br /> <br /> 2. Opposite party has filed version admitting the issuance of policy. It is averred that at the time of incident, ie., on 30-8-03 complainant was not the owner of the vehicle. That the investigation conducted by Company revealed that the R.C. owner had left for America entrusting the vehicle to his son Denny. That Denny had sold the vehicle on 18-8-2003 by agreement to one Sabu Thomas who in turn had sold the vehicle on 25-8-2003 by agreement to one Mohammed Ashraf. That on the date of incident the vehicle was in the exclusive possession and control of Mohammed Ashraf and that the First Information Report also reveals that Ashraf had purchased the vehicle from Sabu Thomas. The explanation offered by Ashraf for non production of R.C. Book before the police was that it was given to Regional Transport Officer Taliparamba for cancelling of hire purchase endorsement. Thereby complainant has violated the 4th condition in the policy which states that the insured shall take all reasonable steps to safeguard the vehicle from loss or damage. The claim was denied on this ground and there is no deficiency in service. That complainant had preferred a claim before Insurance Ombudsman which was dismissed. This complaint is filed thereafter only on experimental basis and is only to be dismissed.<br /> <br /> 3. Evidence consists of affidavit filed by Power of Attorney holder of complainant and Exts.A1 to A12 marked on his behalf. Counter affidavit filed by opposite party and Exts.B1 to B6 marked on the side of opposite party. Either side has not adduced any oral evidence.<br /> 4. Points for consideration:-<br /> (i) Whether opposite party is deficient in service.<br /> (ii) If so, reliefs and costs.<br /> <br /> 5. Point (i):-<br /> The claim was repudiated by opposite party on the ground that complainant violated condition No.4 in the policy. Therefore the vital issue before us is whether there has been violation of condition No.4 and whether opposite party was justified in repudiating the claim. Condition No.4 in Ext.B1 policy is reproduced as under:-<br /> “The insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk.”<br /> <br /> 6. It is the case of opposite party that complainant was not the owner of the vehicle on the date of the incident of theft. Opposite party contends that the vehicle was transferred to Sabu Thomas and thereafter transferred to P.K. Mohammed Ashraf. The documents relied by opposite party are Ext.B2, B3 and B4. Ext.B2 is the photo copy of an agreement dated, 05-8-2003 between Denny K.A. and Sabu Thomas regarding transfer of vehicle No.Kl-13/G 3041. The consideration shown in Ext.B2 is Rs.3,59,000/-. As per the conditions stated in Ext.B2 only Rs.20,000/- is seen paid to the seller on the date of agreement. The balance consideration is to be paid in different instalments and the final payment falls due on 15-9-2003. Ext.B3 is the photo copy of an agreement dated, 18-8-2003 between Sabu Thomas and P.K. Mohammed Ashraf for sale of the said vehicle. The consideration shown in Ext.B3 is Rs.3,58,000/-. In Ext.B3 also there are stipulations as to making part payments and the last date before which entire consideration is to be paid is 12-9-2003. It was argued on behalf of opposite party that these agreements together with Ext.B4 which is the First Information Report in Manjeri Station Crime No.573/03 would prove that complainant has sold the vehicle to P.K. Mohammed Ashraf and has thus violated condition No.4 in the policy. Counsel for opposite party brought to our attention that in Ext.B4 the first informant is none other than P.K. Mohammed Ashraf. In his statement recorded by police Ashraf has stated that the vehicle was purchased by him on 18-8-2003 and that he is the agreement owner. That the vehicle was later stolen from his house on 30-8-2003.<br /> <br /> 7. Against this complainant contends and affirms that he was the owner of the vehicle at the time of theft. Complainant denies Ext.B2 and B3 agreements and affirms at the end of para 7 of his affidavit that the vehicle was not sold to anybody at the relevant time. The reliability of Ext.B2 and B3 have to be appreciated in this backdrop of contentions raised by complainant. Ext.B2 and B3 are only photocopies. The endorsements upon these documents show that they were collected for Excel Private Detective Agency. Admittedly complainant is not a party to these documents. When complainant has denied these documents the burden rests upon opposite party to prove these documents. The parties to these documents, or for that matter, even the witnesses to these documents have not been examined by opposite party. The Detective Agency who has endorsed that they have collected these documents has not filed any affidavit or tendered any evidence. For these reasons we are of the view that Ext.B2 and B3 which are only photocopies are unreliable in evidence.<br /> <br /> 8. This leaves before us Ext.B4 which is the First Information Report registered by Police in Manjeri Station Crime No.573/03 in connection with theft of the said vehicle. The statement given in Ext.B4 by P.K. Mohammed Ashraf who is the first informant is to the effect that the registration of the vehicle stands in the name of Sri.K.A. Alexander (complainant herein) and that he purchased the vehicle from Sabu Thomas on 18-8-2003 and is presently the agreement owner. It has to be stated that all through the complaint as well as in the affidavit complainant is silent as to how the vehicle came into the hands of Ashraf at the relevant time. It was submitted by counsel on behalf of complainant that at the relevant time the vehicle was kept in the custody of P.K. Mohammed Ashraf. Ext.A4 is the claim form which is seen submitted by complainant on 03-9-03. The name of owner and insured shown in Ext.A4 is that of complainant itself. Here again, in column No.5(j) against the query regarding the name of witnesses who know about the theft or parking of the vehicle, the name of P.K. Mohammed Ashraf is entered.<br /> <br /> 9. On careful perusal of the materials before us and submissions made by either sides what we are able to infer is that some transaction with intention to sell the vehicle had transpired. But there is absolutely no evidence to prove that complainant has sold the vehicle to anybody. The evidence if at all will only help to assume that the son of the complainant had entered into agreement to sell the vehicle whereby possession was handed over temporarily. Even by Ext.B2 and B3 the date for fulfillment and final payment of full consideration is 15-9-2003 and 12-9-2003 respectively. An agreement to sell becomes sale when the time fixed elapses or the conditions subject to which property in the goods is to be transferred are fulfilled. Meanwhile the vehicle in the present case was stolen on 30-8-2003. Even the statement of P.K. Mohammed Ashraf is to the effect that he is only the agreement owner and complainant is the registered owner. An agreement to sell, which is also called an executory contract is a contract pure and simple, the property in the goods which form the subject matter of the contract remains in the seller. They may even be taken in execution of his debts. If they are destroyed the loss, in the absence of express agreement, has to be borne by the seller. A breach by either party of the agreement will normally only give the other party a right to sue for damages. By an agreement to sell a jus in personam is created; but in sale a jus in rem also is transferred. In the present case even if we accept Ext.B2 and B3 to be true it would only show that there was an agreement to sell the vehicle. Such an agreement would give rise to rights and liabilities between parties to the agreement only. In case of frustration of contract the parties can even opt to repudiate the contract or consider the contract as discharged. As per Section 8 of Sale of Goods Act, 1930 when the goods perish or become so damaged before the risk passes to the buyer the agreement is avoided. In the instant case, there is nothing before us to show that the agreement to sell has finalised into a sale. On such score, in our opinion complainant is definitely the dejure and defacto owner of the vehicle.<br /> <br /> 10. In the version the contention put forward by opposite party is that complainant has violated condition No.4 of the policy. Ext.A10(a) and Ext.A10(b) are the two letters of repudiation send by opposite party to complainant. The relevant portion of Ext.A10(a) dated, 21-6-2005 reads as under:-<br /> “On perusal of the documents submitted by you, we note that the vehicle had passed on many hands, with the intention of sale of the vehicle. As per condition No.4 of the Policy, the insured shall take all reasonable steps to safeguard the vehicle from the loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured.”............ “We are closing the file as 'No Claim'.”<br /> The relevant portion of ext.A10(b) dated, 25-10-2005 is as follows:-<br /> “ It is an undisputable fact that the subject matter Veh.No.KL/13/G/3041 Toyota Qualis vehicle covered by our policy and involved in the theft was sold and was in the possession of another person at the time of loss. Having sold the vehicle you have ceased to have any insurable interest on the vehicle. In view of this fact we are not in a position to reconsider your claim.”<br /> 11. It is pertinent to note that while opposite party has denied liability in Ext.A10(a) by alleging that the vehicle had passed on many hands with the intention of sale and thereby complainant had violated condition No.4 of the policy the stand taken by opposite party in Ext.A10(b) is that the claim is repudiated because complainant has already sold the vehicle and has ceased to have insurable interest upon the vehicle.<br /> 12. As regards the contention raised by opposite party in Ext.A10(a) it is necessary to examine Ext.A12 which is the copy of the Final report in the Crime registered for theft of the vehicle. It is seen in Ext.A12 that the first and second accused have been arrested by police and remanded to judicial custody. It is also stated in Ext.A12 that the third accused who purchased the vehicle from second accused knowing that it is stolen property had resold the vehicle to another. That police could neither arrest the 3rd accused nor recover the vehicle. It is crystal clear that the vehicle was stolen and is irrecoverably lost. These documents also make it candid enough that complainant or P.K. Mohammed Ashraf had nothing to do with loss of the vehicle. In condition No.4 it is stated that the owner/insured shall take all reasonable steps to safeguard the vehicle from loss or damages. P.K. Mohammed Ashraf who had custody of the vehicle at the relevant time had parked the vehicle in the night at his house. Ext.A11 is the scene mahazar prepared by police in Crime no.573/03. It is stated in Ext.A11 that the house in the premises of which the vehicle was parked had a gate and compound walls on all four sides. It was only unfortunate that the vehicle was stolen. Undisputedly P.K. Mohammed Ashraf had custody of the vehicle at the relevant time. From the totality of facts and circumstances of this case it can be reasonably inferred that such custody might have been given as part of intention to sell the vehicle. The right to transfer property is the right contained in the right of ownership. Transfer of possession prior to transfer of ownership is also recognized by law. Opposite party does not have a case that the vehicle changed hands with any other intention. There is no iota of evidence to show that complainant failed to take reasonable care of the vehicle that is expected of the owner of the vehicle. Opposite party has failed to establish and prove that complainant has violated condition No.4 of the policy. The ground raised by opposite party in Ext.A10(b) is totally inconsistent with their contention in the version and is also unsupported by evidence. In our view opposite party has repudiated the claim on unsustainable grounds.<br /> 13. Strong reliance was placed by opposite party on Ext.B6 which is the order passed on 16-5-2006 in proceedings before the Insurance Ombudsman, Kochi. As per Ext.B6 the complaint was dismissed. We do not think that it is necessary to delve into the details of this order. It is held in 2005 CTJ 747 (CP) NCDRC Kamaleshwari Prasad Singh Vs. National Insurance Co. Ltd. R.P.No.7/2003 decided on 14-10-2004 that “the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Consumer Forum. The purpose of appointing Ombudsman is to see that disputes are settled quickly. In doing so, the Ombudsman is not discharging judicial or quasi judicial functions”.<br /> 14. From the above discussions we are able to conclude that complainant is the owner as well as insured of the vehicle at the relevant time of theft. The repudiation of the claim is on unsustainable and hyper technical grounds which is unjustifiable. We therefore find opposite party deficient in service.<br /> 15. Point (ii):-<br /> We have now come to the question of quantification of compensation. In case of total loss complainant is definitely entitled to the Insured Declared Value of the vehicle. As per Ext.A1 Policy Certificate, the Insured Declared Value is Rs.4,00,000/-. The Apex Court has held in 2008 CTJ 917 (SC)(CP) Dharmendra Goel Vs. Oriental Insurance SLP No.14054/06 decided on 30-7-2008 that in cases of total loss basis the Insured Declared Value has to be taken into consideration. Complainant is definitely entitled to the payment of Rs.4,00,000/-. Complainant is to be compensated for the deficiency also. Usually Insurance Company should settle a claim within three months. In the present case, the claim was submitted on 03-9-2003 and the first letter informing repudiation was sent on 21-6-05. This means opposite party has lagged settlement or taking it's decision upon the claim for a long period of two years. It was submitted by complainant that he was made to run from pillar to post all these two years and at last after every effort on his part company repudiated the claim. In our opinion interest @ 12% per annum upon the above amount from the date of complaint would be sufficient compensation to the complainant for the deficiency, inconveniences and hardships.<br /> <br /> 16. In the result, we allow this complaint and order that opposite party shall pay a sum of Rs.4,00,000/- (Rupees Four Lakh only) to the complainant along with interest @ 12% from the date of complaint till payment together with costs of Rs.2,000/- (Rupees Two thousand only) within one month from the date of receipt of copy of this order.<br /> <br /> Dated this 16th day of September, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A12<br /> Ext.A1 : Photo copy of the Insurance Policy No.761003/31/03/00015 <br /> of the vehicle No.KL 13/G 3041.<br /> Ext.A2 : Photo copy of the Certificate of Registration in respect of<br /> vehicle No.KL 13/G 3041.<br /> Ext.A3 : Photo copy of the Power of Attorney executed by Alexander K.A.<br /> Ext.A4 : Claim form dated, 03-9-03 submitted by complainant to opposite party.<br /> Ext.A5 : Photo copy of the FIR.No.573/03 dated, 01-9-03 prepared by P. Appu,<br /> A.S.I. of Police, Manjeri.<br /> Ext.A6 : Photo copy of the letter No.ERO/GC/JP/2005/2005/60 dated, <br /> 05-8-2005 by Deputy Manager, Regional office, Ernakulam<br /> Grievance Cell to complainant.<br /> Ext.A7 : Photo copy of the letter No.ERO.GC.JP.2005 dated, 18-8-2005<br /> by opposite party to complainant.<br /> Ext.A8 : Photo copy of the letter dated, 13-9-2006 by complainant to<br /> opposite party.<br /> Ext.A9 : Photo copy of the letter dated, 20-7-2005 by complainant to<br /> opposite party.<br /> Ext.A10(series): Photo copy of the repudiation letters by opposite party to complainant.<br /> Ext.A11 : Scene Mahazar dated, 01-9-03 prepared by C.P. Velayudhan, <br /> Circle Inspector of Police, Manjeri.<br /> Ext.A12 : Copy of the Final report in the Crime registered for theft of the vehicle.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B6<br /> Ext.B1 : Private Car Package Policy Clause.<br /> Ext.B2 : Photo copy of an agreement dated, 05-8-2003 between Denny K.A.<br /> and Sabu Thomas regarding transfer of vehicle No.Kl-13/G 3041 .<br /> Ext.B3 : Photo copy of an agreement dated, 18-8-2003 between Sabu Thomas <br /> and P.K. Mohammed Ashraf . <br /> Ext.B4 : Photo copy of the FIR.No.573/03 dated, 01-9-03 prepared by P. Appu,<br /> A.S.I. of Police, Manjeri.<br /> Ext.B5 : Photo copy of the Motor Claim Form submitted by complainant<br /> to opposite party. <br /> Ext.B6 : Photo copy of the proceedings of the Insurance Ombudsman, Kochi<br /> dated, 16-5-2006.<br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER