By SRI.K. VIJAYAKUMARAN, PRESIDENT<br /> <br /> This is a complaint filed by the complainant seeking to realize the cost of Autoriksha stolen, compensation and cost.<br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the Mother of 2 children Her husband is a Autoriksha driver. For earning a livelihood, the complainant purchased an Aturoksha from Surendra Finance Corporation,. Chennai for Rs.40,000/- and balance amount was paid by availing a loan amount of Rs.54,250/- to be repaid at the rate of Rs.1,750/- per month. The chasis No. of the Autoriksha is 24FBBO3922 and Engine No. AEMBEB-101221. The Autoriksha was registered at the RT Office, Kollam with registration No.KL-2 H/2073. The Autoriksha was insured with a comprehensive policy for the period from 15.5.99 toi 14.5.2000. The policy was renewed during the year 2001/2002. During the above period no claim was preferred by the complainant in respect of the Autoriksha. The policy was to expire on 14.5.2002. On 2.11.2002 at around 2 a.m. the Autoriksha was stolen away which came to the notice of the complainant on 3.11.2001 morning. The incident was reported to the Kundara Police Station who registered Crime 674/01 under section 379 IPC . So far the Autoriksha could not be traced. The complainant approached the opp.party insurer to pay the insurance amount. But the opp.party did not take any action. They demanded to produce the UN report which the complainant produced before the opp.party. Even after that they did not pay the compensation etc. Hence the complaint.<br /> The opp.party filed a version contending, interalia, that the complaint is not maintainable either in law or on facts. There is no deficiency in service on the part of the opp.party. The complainant was asked to file relevant documents pertaining to the vehicle and records from the police. But the complainant did not produce the same which resulted in the delay in the settling the claim. The opp.party is liable to pay only compensation for the actual loss. The claim of the complainant is designed to make unjust enrichment. The theft of the Autoriksha alleged to have taken place is surrended by suspicious circumstances. The opp.party after a detailed evaluation of the market value of the vehicle was agreeable to pay Rs.33,000/- on production of records and documents for a settlement of the insurance claim. The Autoriksha was purchased by the complainant during early 1999. But the complainant is claiming a higher amounts for the same. The amounts claimed under various heads have no legal existence for which the opp.party is not liable. The market value of the Autoriksha was assed by the competent surveyor who has fixed the market value at Rs.33,000/- . The complainant can collect this amount after furnishing and executing necessary documents for which communication were already addressed by the opp.party to the complainant. Hence the opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> <br /> <br /> 1.Whether there is any deficiency in service on the part of the opp.parties<br /> 2. Reliefs and costs.<br /> <br /> <br /> <br /> For the complainant PW.1 and 2 are examined. Ext. P1 to P19 are marked<br /> <br /> For the opp.party DW.1 is examined. Ext. D1 is marked.<br /> <br /> <br /> Points:<br /> <br /> Admittedly the Autoriksha of the complainant was stolen away and the same has not so far been traced out. The complainant is claiming Rs.1,04,250/- the value of the Autoriksha or a new Autoriksha of the same company. Admittedly the Autoriksha at the time of theft was insured with the opp.party for Rs.50,000/-<br /> <br /> The learned counsel for the opp.party argued that in the case of theft of the vehicle the complainant is entitled to get only the actual loss whatever may be her estimate of loss. According to him the amount shown in Ext.P5 policy is the insured’s estimated value of the vehicle at the time of proposal which is not the actual value. So according to him the complainant is not entitled to get the insurance value of Rs.50,000/- He would argue that the State Commission in the remand order itself has stated that the complainant could not recover more than what is established to be the actual loss. In fact in para 5 of the judgement the State Commission has held that the insured cannot recover more than what he establishes to be his actual loss and this Forum is bound by that decision.<br /> <br /> Now the question is what is the actual loss sustained by the complainant. The complainant examined PW.2 to prove the actual loss/market value on the date of theft . PW.2 is an Autoriksha driver who claims to have intended to purchase the complainants Autoriksha. According to PW.2 in the year 2001 he offered Rs. 55,000/- to this Autoriksha but the complainant demanded Rs.60,000/- for which he was not amenable and so the sale did not take place. In cross examination PW.2 said that though he had sufficient funds he did not buy an Autoriksha till now. PW.2 has stated in the chief affidavit that this Autoriksha was as good as a new one. If that be so there is no reason for not buying the same when a new Autoriksha costs more than one lakh rupees . A person having sufficient funds normally would not work as a paid driver in somebody else’s Autoriksha rather than buying one. On a perusal of the evidence of PW.2 even a layman can say that he is hired by PW.1. There is no material to show that he is infact an Autoriksha driver. His version that he did not buy an Autoriksha till now though had sufficient funds also cannot be swallowed without a pinch of salt. PW.1 has not produced any other material to establish the actual loss. In our view the evidence of PW.2 in the absence of other corroborative materials, cannot be relied on to assess the actual loss due to theft of the Autoriksha.<br /> <br /> The opp.party examined DW.1 and proved Ext.D1 the survey report prepared by DW.1 In Ext. D1 DW.1 has assessed the market value of the stolen Autoriksha at Rs.33,000/-. It is true that DW.1 had no occasion to see or inspect the Autoriksha. DW.1 submitted that he had made enquiry with vehicle broken and Autoriksha dealers to assess the value of the Autoriksha. In the case of a stolen vehicle that alone can be done. The learned counsel for the complainant would argue that the broker or the dealer with whom DW.1 made enquires were not examined. No purpose would be served by such examination as they also had no occasion to see the vehicle. DW.1 has stated that Rs.33,000/- is the maximum market value which a 2001 model Autoriksha would fetch. From the evidence adduced by both sides we are of the view that Ext. D1 can be safely relied on to determine the actual loss. Moreover nothing has been bought out in the cross examination of DW.1 to discard Ext. D1. In these circumstances in the absence of other cogent materials we feel that we shall not be justified in granting any account in excess of what is shown in Ext.D1. Accordingly we fix the value of the complainant’s Autoriksha at Rs.33,000/- . <br /> <br /> The case of the opp.party is that the delay in settling the claim was due to the non production of the records of the Autoriksha. Ext.P19 shows that even on the date of that letter the documents requested by the opp.party were not produced before the opp.party. Therefore there is force in the contention that the delay in settling the claim is due to non production of the records of the Autoriksha by the complainant. So it cannot be said that there is any deficiency in service on the part of the opp.party<br /> <br /> In the result the complaint is allowed directing the opp.party to pay the complainant a sum of Rs.33,000/- as value of the Autoriksha and Rs.3000/- towards costs. We are not awarding any interest as it is submitted that the opp.party has already deposited Rs.33,000/- immediately after disposal of this complaint on 19.3.2004. The order is to be complied with within one month from the date of this order.<br /> <br /> Dated this the 31st day of October, 2008 <br /> <br /> <br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1 - Sobha<br /> PW.2. – Ajayakumar<br /> <br /> List of documents for the complainant<br /> P1. - Registration book<br /> P2. – Permit<br /> P3. – Pollution control certificate valid UP TO 14.11.2001<br /> P4. – Tax receipt<br /> P5. – Policy original<br /> P6. – letter issued by opp.party dated 12.6.2002<br /> P7. – Letter sent by the complainant to the opp.party<br /> P8. – Copy of the FIR<br /> P9. – Mahazar<br /> P10. – U.N. report<br /> P11. – Registration slip<br /> P12. – Letter issued by opp.party<br /> P13. Cover<br /> P14. – Letter of identity<br /> P15. – Letter dated 24.3.2003<br /> P16. – Performa of the letter of identity<br /> P17. –Cover<br /> P18. – Receipt<br /> P19. – Letter sent by the complainant to the opp.party with registration slip<br /> <br /> List of witnesses for the opp.party<br /> DW.1.- Baiju.S<br /> <br /> List of documents for the opp.party<br /> D1. – Valuation report<br /> <br />