Thana, Kannur.

(Rep. by Adv. K. Reghunathan)

O R D E R

Sr. K. Gopalan,  President.

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite party to pay an amount of  `6,25,000 as an insurance claim of the vehicle and sum of ` 1,00,000 as compensation for mental agony.  

          The gist of the case of the complainant is as follows:  Complainant insured his heavy goods vehicle with oriental insurance company/ opposite party.  The vehicle was subjected to theft with all the documents from Kozhikode on 18.03.2007.  The matter was reported to town police and crime was registered under section 379 IPC.  F.I.R. was lodged on 19.03.2007 with crime No.64/07. The total estimated value of the vehicle is ` 7,00,000. The opposite party sent a letter dated 14.09.07 requesting to produce some documents of the vehicle and the same was returned with remarks “Not known” and the letter was handed over to complainant.  On 03.10.2007 when he approached the opposite party for knowing about the details of the claim.  All the documents referred in the letter dated 14.09.2007 were not produced to opposite party till 26.02.2009 because the Kozhikode Town Police filed the final report only on 12.11.2008 and it took lot of time for getting the copy of the same.  The delay caused due to the above said reason.  On 12.08.08 opposite party sent a letter to produce documents referred in earlier letter of 14.09.07 within 15 days, failing which it was warned that it would be presumed that the complainant is not interested and would close the file as “No claim”.   Complainant informed opposite party the present situation and promised to submit all the relevant documents after getting the fnal report of the police.  Then he produced all the available documents with final report with a covering letter dated 26.02.09 before opposite party.  Later he also produced the letter from R.T.O. dated 08.04.09 and refer notice from JFCM, Kozhikode along with a covering letter dated 17.04.09.  On 28.04.09 complainant received a letter from the opposite party to submit the duplicate key of the vehicle and present status of outstanding loan from the bank, present status of stolen vehicle from the police authority and other documents pertaining to the stolen vehicle available with the complainant for setting the claim. Statement of ICICI Bank and certificate issued by the C1 were produced.  Complainant also stated the reason for the non-production of the duplicate key.  But no action has been taken by opposite party and complainant could not settle the loan amount with the financier since the insurance amount is not sanctioned.  The lawyer notice of complainant replied stating lame excuses for delaying and denying the right of the complainant to get the insurance claim.   Complainant repeatedly approached the opposite party to settled the claim but opposite party repudiated the claim by letter dated 02.02.2010 and 11.02.10.  Hence this complaint.

          Opposite party filed version in the form of Counter Statement denying the main allegations of complainant. The brief facts of the case of the opposite party are as follows :  Complainant had submitted claim with respect to insured vehicle but the same was repudiated.   Repudiation is justifiable since the complainant violated the condition No.5 of the policy. Parking a vehicle at a conspicus place unattended shows lack of reasonable care, which an insured has to take.  The driver of the vehicle also supported for the theft by way of keeping both ignition keys as well as original vehicular documents in the vehicle and left the vehicle unattended in the odd time.  Therefore the repudiation is justifiable.  The relief sought is exhorbitant and non realistic.  The maximum liability is insured declared value less policy excess ie `5,40,000 – `1,500 = `5,38,500 or the market value of the vehicle, whichever is less.  There is no deficiency in service on the part of opposite party.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.           Whether there is any deficiency in service on the part of opposite party?

2.           Whether the complainant is entitled for the relief as prayed?

3.           Relief and cost?

The evidence consists of oral testimony of PW1 and Ext.A1 to A.36 on the side of complainant and oral testimony of DW1 and B1 to B9 on the side of opposite party.

Issues No.1 to 3:

          Admittedly complainant’s vehicle was insured with opposite party/Oriental Insurance Company.  The vehicle was subjected to theft with documents from Kozhikode on 18.03.2007.  Police registered the crime No.64/07 and FIR was lodged on 19.03.07.  After getting final report of the police complainant produced available documents with covering letter dated 26.02.2009.  Later on he had also produced the letter dated 08.04.2009 of R.T.O., Kannur and the refer notice of JFCM, Kozhikode with request to settled the matter.  As per the letter of opposite party dated 28.04.09 to submit the duplicate key and present status of the vehicle complainant produced the statement of account and certificate issued by C.I. of police regarding status of vehicle.  But the claim was rejected.  These are all admitted facts but opposite party contended that complainant had violated condition No.5 of the policy hence the repudiation is justifiable. It is contended that complainant did not take all precaution for the protection of vehicle.  Absence of reasonable care caused the theft of vehicle.  Opposite party also contended that the driver of the vehicle supported for the theft by way of keeping both ignition keys and as well as original vehicular documents in the vehicle and left the vehicle unattended in the odd time.

          Complainant adduced evidence by way of chief affidavit in tune with the pleadings and produced Ext.A1 to A.36 documents to prove his case.  Ext.A10 the final report in crime No.64/07 of S.H.O. Kozhikode proves that enquiries were being made for a period of two years but the vehicle could not be traced. It has also proved that the respective case with regard to the subject matter was treated as undetected on 12.11.2008 and the report submitted before the court.  Ext.A.23 notice issued by JFCM make it ascertain that the case of the complainant crime No.64/07 charged under section 379 IPC has been referred by the police as undetected.  Complainant was elaborately cross examined.  In cross examination complainant deposed that the vehicle was subjected to theft when it was parked before Soa Queen’s Hotel. He has further deposed original and duplicate key and RC book also were in the vehicle when it was stolen.  The complainants case was that the vehicle was parked before the Soa Queen’s Hotel, along with some other lorries and the driver was in the vehicle at about 12 hours in the night and he went to take tea in the nearest hotel.  When he returned to vehicle the vehicle was found missed.  The case of the opposite party is that complainant violated condition No.5 and driver of the vehicle supported for the theft by way of keeping both ignition keys and vehicular documents in the vehicle.  Going for a tea under such circumstances cannot be considerd as an unusual thing in ordinary cause.  Non-taking of key and documents with them also cannot be treated as a sufficient reason to assume that the driver was intended to support for a theft.  Even if it was not left there one cannot say that he would have been free from incident of theft.  However, it is a proved fact that the insured vehicle subjected to theft.  Merely because the vehicle was stolen when the driver was gone for a tea, it is not justifiable to say that the complainant is not entitled for theft.  But the things would have been entirely different if the keys were left there intentionally.  So it is essential to evaluate the evidence to that affect so as to ascertain whether there was any sort of such intention.

          The chief affidavit filed by opposite party does not give any evidence to show that there was intention on the part of the driver to leave the key in the vehicle itself.   Opposite party contended that the complainant has no case that condition No.5 is not applicable to him.  Since the keys were left in the vehicle with the documents and if not deputing any one with the vehicle when he went for taking tea, opposite party assumes that the driver also had supported for the theft.  But he has not adduced any evidence which indicates that the driver had any such involvement in the incident of theft.  As far as complainant is concerned he lost his vehicle by way of theft. There is no basis in concluding that complainant has violated conditions and therefore not entitled for the insurance benefit.

          Opposite party also contended that complainant has not produced the necessary documents asked to produce. It can be seen that opposite party by their letter dated 28^th April, 2009 which is marked as Ext.A14 asked complainant to produce certain documents.  Complainant produced Ext.A.15 copy of statement of bank account and Ext.A.16 certificate issued by C.I. of Police regarding status of vehicle.  Subsequently he has also produced the letter dated 08.04.09 of R.T.O./ Ext.A12 and Ext.A23 refer notice of JFCM, Kozhikode.  The letter Ext.A.17 stated the reason why he has not produced duplicate key.  The explanation of complainant that the previous owner did not deliver him the duplicate key cannot be said to be unreasonable.  The rejection of claim of the complainant is not because of any dispute with respect to the certainty of theft but only on the technical ground.  Theft of complainant vehicle being an admitted fact there is no justification for denial of the claim.  Hence we are of opinion that complainant is entitled for insurance claim, and denial amounts to deficiency in service on the part of opposite party.

          The complainant’s claim is for an amount of ` 6,25,000 as insurance amount and amount of ` 1,00,000 as compensation for mental agony.  The opposite party contended that the maximum liability of opposite party would come only ` 5,38,500.  Opposite party explained that the declared value is ` 5,40,000 and policy excess is ` 1,500.  So insured declared value less policy excess is ` 5,38,500.  Complainant is entitled at the maximum an amount of ` 5,38,500.  Complainant has produced thirty six documents.  None of the documents challenged the contention of opposite party that opposite party is not liable to pay more than `5,38,500.  Complainant has not produced any convincing evidence otherwise to make a different opinion.  Ext.B1 makes it clear that insured declared value is ` 5,40,000.  The original policy when proved the declared value is ` 5,40,000 the maximum liability that can be expected is only ` 5,40,000.  Since policy excess is ` 1,500 Complainant is entitled for an amount of ` 5,40,000 less policy excess ie ` 5,38,500.

          In the light of the available evidence we find that the denial of Insurance amount to complainant is a deficiency in service on the part of opposite party and the complainant is entitled for an amount of `5,38,500 as insurance amount.  Complainant is also entitled for a sum of ` 1000 as cost of this proceedings.   Thus the issues No.1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing the opposite party to pay an amount of ` 5,38,500 (Rupees Five lakh thirty eight thousand and five hundred only) as insurance claim to complainant together with `1000 (Rupees One thousand only) as cost of this litigation within one month from the date of receipt of this order failing which opposite party is liable to pay interest at the rate of 10% from the date of filing of the case till realization of amount.  The complainant is entitled to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.

                     Sd/-                    Sd/-            Sd/-

President              Member      Member

APPENDIX

Exhibits for the Complainant

A1.   Receipt issued by OP dated 12.07.2006.

A2.   Copy of FIR dated 19.03.07.

A3.   Letter issued by the OP to the complainant.

A4.   Letter issued by ICICI bank to the complainant.

A5.   Letter sent by the complainant.

A6.   Lawyer notice issued by the bank.

A7.   Reply notice sent by the complainant.

A8.   Bill issued by the ICICI bank.

A9.   Letter sent by OP to complainant dated 12.08.08.

A10. Final report in Crime 63/07 of S.H.O. Kozhikode.

A11. Copy of letter sent by complainant to OP.

A12. Copy of letter issued by RTO to the complainant.

A13. Copy of the letter sent by complainant to OP.

A14. Letter sent by OP to complainant.

A15. Copy of statement of accounts issued by ICICI.

A16. Copy of certificate issued by Circle Inspector of Police.

A17. Copy of the letter sent by complainant to OP.

A18. Copy of the Registration particulars.

A19. Postal receipts dated 25.09.09.

A20. Acknowledgment cards.

A21. Copy of lawyer notice sent by complainant.

A22. Reply notice dated 29.09.09.

A23. Copy of the notice issued JFCM 1^st Kozhikode to the complainant.

A24. Acknowledgment card.

A25. Acknowledgment card dated 04.11.09.

A26. Lawyer notice sent on behalf of ICICI Bank dated 14.11.09.

A27. Reply notice sent by complainant to ICICI Bank.

A28. Acknowledgment card.

A29. Letter sent by the complainant to OP.

A30. Acknowledgment card.

A31. Lawyer notice sent on behalf of ICICI to complainant.

A32. Letter sent by complainant to OP dated 04.01.2010.

A33. Reply letter sent by OP to the complainant.

A34. Acknowledgment card.

A35. Repudiation letter sent by OP to the complainant.

A36. Repudiation letter dated 11.02.2010.

Exhibits for the opposite party

B1.  Policy

B2.  Letter dated 24.01.10.

B3.  Letter dated 12.08.08.

B4.  Letter dated 28.05.09.

B5.  Letter dated 24.12.09.

B6.  Letter dated 16.12.10.

B7.  Letter dated 06.02.10.

B8.  Authorisation letter.

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

DW1.  K. Sreedharan

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT