By Smt. C.S. Sulekha Beevi, President,

facts:-

1. Complainant is the registered owner of the autorickshaw KL10/K-1047. On 21-10-2005 the vehicle was entrusted to Saidalavi, S/o Mohammed, Poozhikuth house, Melakkam, Karuvambram (PO), Manjeri as the driver of the autorickshaw to drive it for hire and reward. On the same night, when the vehicle was parked in front of the Juma Masjid, the vehicle was stolen. Manjeri Police registered Crime No.782/05 under section 379 IPC. The Police could not trace the vehicle and final report was submitted that the vehicle is undetectable. A claim was preferred before opposite party for the value of the vehicle by virtue of the policy which was valid from 25-5-2005 to 25-5-2006. It is alleged that opposite party repudiated the claim on unsustainable grounds and hence this complaint alleging deficiency in service.

2. Opposite party has filed version admitting the issuance of insurance policy. It is the case of opposite party that on the relevant date the owner of the vehicle was Saidalavi and that theft occurred while the vehicle was in his possession. That complainant had sold the vehicle to Shihab and then to one Jabbar. That complainant had violated policy conditions and that therefore opposite party is not liable to indemnify the complainant.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A6 marked for him. Opposite party has filed counter affidavit and Exts.B1 and B2 marked for opposite party. Either side has not adduced any oral evidence.

4. The grievance of the complainant is that opposite party failed to indemnify the loss due to theft of vehicle which happened during currency of the policy.

5. The claim is repudiated by opposite party on the contention that vehicle was sold by complainant to Shihab and then to Jabbar and that at the time when the vehicle was stolen the vehicle was in the ownership of Sri.Saidalavi. That though complainant is the R.C. Owner and policy holder he has violated the policy conditions.

6. Opposite party has not specifically stated which is the policy condition that complainant has violated. In cases of policy violation it is definitely the burden on the side of insurance company to prove the same with cogent evidence. The pleadings and affidavit does not specify exactly on what ground the compensation was denied. Ext.A1 which is the Registration Certificate proves that complainant is the registered owner of the vehicle. Ext.A2 policy also stands in the name of the complainant. Ext.A4 is the final report in Crime 782/05 which proves that the vehicle was stolen. The submissions made on behalf of opposite party was that the complaint of theft was lodged before the policy by one Saidalavi and that this person stated before the police that the vehicle was in his ownership on the relevant date ie., on 21-10-2005. Ext.B2 is the photo copy of First Information Report in which Saidalavi is the first informant. Opposite party also relied on Ext.B1 which is the report of investigation conducted by the insurance Company. The investigator in this case is none other than a practicing lawyer Sri.K.A. Gopal who usually appears in cases even before this Forum. We do not know on what basis he was appointed as investigator. In Ext.B1 the investigator has concluded that the contention of theft is genuine. It is also found by him that the claim form is submitted by the original Registration Certificate owner/insured. According to his investigation though in the First Information Report Saidalavi has stated that the vehicle was owned by him in the F.I.S. The very same Saidalavi has stated that the vehicle was only kept in his possession.

7. The consistent case of complainant is that he is the R.C. Owner of the vehicle and that the vehicle was entrusted to Saidalavi as driver. Though opposite party vehemently contends that the vehicle was sold there is no scintilla of evidence to support this contention. On perusal of the evidence and materials placed before us we are able to reach the inescapable conclusion that the vehicle was in the ownership of complainant on the relevant date of theft. The repudiation of policy by opposite party is on flimsy unsustainable grounds and hence unjustifiable. We therefore find opposite party deficient in service.

8. Complainant is definitely entitled to be indemnified as per the policy. The IDV in Ext.A2 is Rs.35,000/-. Complainant is entitled to this amount from opposite party. He has to be compensated for the deficiency meted by him. The denial of legitimate amount is unreasonable. Further in this case the repudiation was on utterly flimsy grounds which are not supported by any evidence at all. We therefore hold that complainant is entitled to interest @ 12% per annum upon the above amount from the date of complaint till payment which we consider to be adequate compensation to him.

9. In the result, we allow this complaint and order opposite party to pay Rs.35,000/- (Rupees Thirty five thousand only) to the complainant along with interest @ 12% per annum from date of complaint till payment together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

Dated this 12th day of June, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Registration Certificate of vehicle No.KL10/K 1047

Ext.A2 : Certificate of Insurance of Passengers Carrying Commercial Vehicle

from opposite party to complainant.

Ext.A3series : Receipts (5 Nos.) from opposite party to complainant.

Ext.A4 : Photo copy of the final report in Crime 782/05 from Police Station, Manjeri.

Ext.A5 : Letter dated, 08-01-2004 from Secretary, RTA., Malappuram.

Ext.A6 : Lawyer notice dated, 23-3-2007 issued by complainant's counsel to

to opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 and B2

Ext.B1 : The report of investigation conducted by the Insurance Company.

Ext.B2 : Photo copy of the First Information Report dated, 22-10-2005 prepared

by Sri. T. Krishnan, H.C., Police Station, Manjeri.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER