KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL No. 324/2008 JUDGMENT DATED: 19.02.2010 PRESENT: SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER SHRI. S. CHANDRA MOHAN NAIR : MEMBER A.Abdul Rahiman, S/o.Mohammed, K.M.Manzil, P.O.Mylatty, Bara Village, Hosdurg.Tq. Through his power of Attorney Holder : APPELLANT Sri.B.M.Mohammed Shafi, S/o.M.Moosa, R/at New Quadiriya Anzil, Mangad, P.O. Bara, Hosdurg Tq.671319. (Rep. by Adv. Sri.Narayan.R) Vs The Manager, Oriental Insurance Co.Ltd, : RESPONDENT Press Club Junction, M.G.Road, Kasargod. (Rep. by Adv. Sri.R.S.Kalkura) JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated:14/12/2004 of the CDRF, Kasaragodu in OP:177/2004. The appellant was the complainant and the respondent was the opposite party in the said OP:177/04 which was filed alleging deficiency of service on the part of the opposite party in not honoring the insurance claim with respect to the insured vehicle bearing registration No:KL-13 B-5243. The opposite party entered appearance and filed written version contending that the complainant/insured was not having the insurable interest over the vehicle at the time of theft of the vehicle on 20/1/2001. Thus, the opposite party justified their action in repudiating the insurance claim put forward by the complainant. 2. Before the Forum below the power of attorney holder of the complainant was examined as PW1. Exts.A1 to A5 documents were also marked on the side of the complainant. No oral evidence was adduced from the side of the opposite party. Exts.B1 to B10 documents were marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dismissing the complaint in OP:177/04. Hence the present appeal. 3. We heard both sides. The learned counsel for the appellant/complainant argued for the position that the vehicle was insured by the appellant/complainant and he was the registered owner of the vehicle. He has also relied on the testimony of PW1 and submitted that there was nothing on record to support the case of the opposite party/Oriental Insurance Company Ltd that the complainant/insured was not having interest over the insured vehicle. He also relied on the certificate of registration with respect to the vehicle KL-13 B/5243 and argued for the position that the said vehicle was having hire purchase endorsement and the complainant was not in a position to transfer the vehicle. Thus, the appellant/complainant prayed for setting side the impugned order passed by the Forum below and to allow the complaint in OP:177/04. On the other hand, the learned counsel for the respondent/opposite party supported the impugned order passed by the Forum below. He much relied on B1, B5 and B10 documents and argued for the position that the appellant/complainant had no insurable interest over the insured vehicle on 20/1/2001, the date of theft of the insured vehicle. Thus, the respondent requested for dismissal of the present appeal. 4. The points that arise for consideration are:- 1. Whether there was any deficiency of service on the part of the respondent/opposite party/ insurance company in repudiating the insurance claim put forward by the appellant/complainant with respect to the insured vehicle No:KL-13 B-5243? 2. Whether the respondent/opposite party can be justified in repudiating the insurance claim on the ground that the appellant/complainant had no insurable interest over the insured vehicle on 20/1/2001? 3. Is there any sustainable ground to interfere with the impugned order dated:14/12/2004 passed by CDRF, Kasaragodu in OP:177/04? 5. Point Nos:1 to 3:- There is no dispute that the appellant/complainant was the registered owner of the vehicle bearing registration No:KL-13B-5243. Admittedly the said vehicle was insured with the opposite party/Oriental Insurance Company Ltd. It is also an admitted fact that on 20/1/2001 the insured vehicle was stolen while the same was kept in the premises of one Muhammed Shafi. Thus, on the date of the peril ie on 20/1/2001 the appellant/complainant was the registered owner of the insured vehicle and that the said vehicle was having a valid and effective insurance policy issued by the opposite party/Oriental Insurance Company Ltd. Admittedly on 25/1/2001 the appellant/complainant submitted B2 claim intimation to the opposite party/Oriental Insurance Company Ltd, with respect to the theft of the vehicle on 20/1/2001. On getting B2 claim intimation, the opposite party/insurance company issued B3 claim form and the same was submitted by the appellant/complainant on 21/10/2002. But the opposite party did not settle the insurance claim based on B2 and B3 documents. Ext.B4 charge sheet would also make it clear that a crime was registered by Bekal Police as crime NO:29/2001. B4 is the final report submitted by the police in the aforesaid crime No:29/01. B4 charge sheet was filed on 22/12/2002. But even after getting B4 final report, the opposite party/insurance company was not prepared to settle the insurance claim preferred by the insured, the appellant/complainant. 6. The respondent/opposite party/insurance company deputed an approved surveyor in the matter and the surveyor submitted B6 survey report dated:21/7/2003. The surveyor assessed the market value of the insured vehicle at Rs.1,75,000/-. The Surveyor has also reported that the vehicle was stolen and at the time of theft the vehicle was worth Rs.1,75,000/-. Admittedly the appellant/ complainant was the insured of the vehicle KL-13-B-5243 which stood in the name of the appellant/complainant. But even after getting B6 survey report, the respondent/opposite party/insurance company was not prepared to settled the claim. It is to be noted that the respondent/opposite party had issued a letter dated:6/3/2002 to the insured for production of documents. It is also to be noted that the respondent/opposite party/insurance company has no case that the appellant/complainant/insured failed to submit the relevant documents called for. But the respondent/opposite party/insurance company issued another letter dated:20/1/2004 to the power of attorney holder Mr.B.M.Mohammed Shafi. The aforesaid letter has been marked as B8 in OP:177/04. It is there after in the year 2004 the respondent/opposite party/ insurance company repudiated the insurance claim vide A2 letter dated:14/5/2004. It can be seen that the respondent/opposite party had taken much time to repudiate the insurance claim put forward by the appellant/complainant/insured. The aforesaid delay on the part of the respondent/opposite party/insurance company would amount to deficiency of service. 7. The respondent/opposite party/insurance company repudiated the insurance claim on the ground that the appellant/complainant had no insurable interest over the vehicle at the time of theft of the vehicle on 20/1/2001. It is the case of the respondent/opposite party/insurance company that the appellant/complainant had sold the vehicle to his power of attorney holder Mr.B.M.Mohammed Shafi. But there is no acceptable evidence on record to show that the appellant/complainant being the insured had sold the vehicle to Mr.B.M.Mohammed Shafi. The respondent/opposite party/insurance company much relied on B1 letter dated27/2/2004 said to have been issued by B.M.Mohammed Shafi to the Branch Manager of the Oriental Insurance Company Ltd., Kasaragodu and B10 letter dated:25/2/2004 said to have been issued by the appellant/ complainant/insured to the Manager of Oriental Insurance Company Ltd. The respondent/insurance company has also relied on B5 copy of the lawyer notice dated:14/7/2003 issued at the instance of B.M.Abdul Khader and the appellant/complainant A.Adul Rahiman. It is to be noted that B1, B10 and B5 are the certified copies of the documents. But issuance of B1 document has been denied by B.M.Mohammed Shafi who has been examined before the Forum below as PW1. It is to be noted that PW1 is the power of attorney holder of the appellant/complainant. Ext.A3 is the power of attorney executed by the appellant/complainant infavour of Mr.B.M.Mohammed Shafi. It was executed for the purpose of prosecuting the complaint in OP:177/04. With respect to the insurance claim for the vehicle KL-13 B-5243 which was stolen on 20/1/2001. PW1 categorically denied issuance of B1 letter dated:27/2/2004. According to PW1 he approached the opposite party/insurance company to get the insurance claim on behalf of the insured Mr.Abdul Rahiman and at that time the opposite party had taken his signatures in blank papers and one of the said signed blank paper has been misused for concocting B1 document. It is true that in B1 document it is stated by the power of attorney holder B.M.Mohammed Shafi that the vehicle is sold by the registered owner Abdul Rahiman to him and that the registration has not been transferred. In B1 it is specifically stated that Abdul Rahiman is the RC owner of the vehicle. It is further stated that Abdul Rahiman has no objection in releasing the insurance amount to B.M.Mohammed Shafi. But, the particulars of the sale of the vehicle have not been disclosed in B1. It is not stated as to when the vehicle was sold to B.M.Mohammed Shafi. It is also not stated about the passing of consideration. So, B1 letter cannot be taken as a valid document evidencing sale of the vehicle or transfer of the vehicle. More over, PW1, the author of B1 letter has disowned the same. It is true that PW1 has admitted his signature in B1 document; but he categorically disputed the contents of B1 document. PW1 has also stated about the circumstance under which he put his signature in blank papers. There is no ground to disbelieve the said version of PW1. There is no contra evidence forthcoming from the side of the opposite party/the Branch Manager of Oriental Insurance Company Ltd. In the absence of any contra evidence, the evidence tendered by PW1 has to be accepted. The Forum below cannot be justified in relying on B1 document to come to the conclusion that the registered owner Mr.Abdul Rahiman had lost his right and ownership over the vehicle. 8. B10 is a letter said to have been issued by the insured A.Abdul Rahiman to the Manager, Oriental Insurance Company Ltd. PW1, the power of attorney holder of the appellant/ complainant/insured has stated that he does not know about issuance of B10 letter by Mr.A.Abdul Rahiman. No evidence is forthcoming from the side of the opposite party the Manager, Oriental Insurance Company Ltd to prove the contents of B10 letter. The opposite party has not adduced any oral evidence stating that he received B10 letter dated:25/2/2004. On the other hand, the appellant/complainant categorically pleaded that he continued to be the registered owner and insured of the vehicle and he was having absolute right and title to the insured vehicle. Respondent/opposite party/insurance company has not proved issuance of B10 letter by the insured A.Abdul Rahiman. So, the Forum below cannot be justified in holding that by virtue of B10 letter the appellant/complainant, the insured admitted transfer of the vehicle to B.M.Mohammed Shafi. More over, there is nothing on record to show that infact the appellant/complainant being the insured of the vehicle transferred his entire right and ownership over the vehicle to Mr.B.M.Mohammed Shafi referred to in B10 letter. The acceptance of B10 letter has not been proved by the opposite party/insurance company. The signature of the insured has also not been proved by the opposite party/insurance company. So, it was not just or fair on the part of the Forum below in relying on B10 letter. 9. B5 is copy of lawyer notice dated:14/7/2003 issued at the instance of the registered owner and insured of the vehicle namely A.Abdul Rahiman and one B.M.Abdul Khader, S/o B.M.Mohammed Shafi. The issuance of B5 lawyer notice is admitted by PW1. But in B5 lawyer notice it is stated that B.M.Abdul Khader got the ownership over the insured vehicle. The aforesaid statement in B5 lawyer notice is against the contents of B1 and B10 letters. It can very safely be concluded that contents of B5 is inconsistent with the contents of B1 and B10 letters. As per B1 and B10 letters the ownership of the complainant/insured over the vehicle was transferred to B.M.Mohammed Shafi. But as per B5 lawyer notice the ownership was transferred to B.M. Abdul Khader, S/o B.M.Mohammed Shafi. This inconsistency would strengthen the case of PW1 that B1 letter was concocted for the purpose of denying the insurance claim put forward by the complainant/insured. Moreover, in B5 lawyer notice it is stated that B.M.Abdul Khader got the vehicle transferred as per an agreement dated:23/12/1997 executed between B.M.Abdul Khader and the registered owner A.Abdul Rahiman. But no such agreement is forthcoming evidencing transfer of the vehicle. More over, in B5 lawyer notice it is stated that there was only an agreement for transfer of the vehicle and in the light of that agreement for sale, possession of the vehicle was given to B.M.Abdul Khader. The mere fact that an agreement for sale was executed and possession of the vehicle was given cannot be taken as a ground to hold that the registered owner lost his right and title to the vehicle. So, the recitals in B5 lawyer notice are not sufficient to take away the right, title to and ownership of the appellant/complainant/insured over the insured vehicle No:KL-13 B-5243. Thus, the Forum below has gone wrong in relying on B1, B5 and B10 documents in coming to the conclusion that the appellant/complainant/insured lost his right and title to the vehicle. 10. The facts, circumstances and the documentary evidence available on record would make it abundantly clear that the appellant/complainant was the insured of the vehicle and that he was the registered owner of the vehicle. Copy of the registration certificate with respect to the insured vehicle would show that on the date of the peril ie on 20/1/2001 the insured vehicle was having an existing hypothecation endorsement in favour of PCN investments, Chennai. It is settled position that during the pendency of the hypothecation endorsement, the vehicle could not be transferred. Thus, in the eye of law, the registered owner of the vehicle Mr.Abdul Rahiman was having the title to and ownership over the insured vehicle. The aforesaid hypothecation endorsement was cancelled only on 15/4/2001. So, this circumstance would also show that the appellant/complainant being the insured was the registered owner of the vehicle and he was having absolute right and title to the insured vehicle KL-13-B-5243 on 20/1/2001, the date on which the vehicle was stolen. So, the appellant/complainant is entitled to get the insurance claim with respect to the insured vehicle. The issuance of A2 repudiation letter by the opposite party/insurance company repudiating the insurance claim put forward by the complainant/ insured would amount to deficiency of service. This Commission has no hesitation to hold that there was deficiency of service on the part of the respondent/opposite party/insurance company in repudiating the insurance claim with respect to the insured vehicle KL-13-B-5243. The impugned order passed by the Forum below dismissing the complaint in OP:177/04 is liable to be set aside. Hence we do so. 11. The appellant/complainant being the insured claimed a sum of Rs.3,00,000/- by issuing B5 lawyer notice. As per A1 policy of insurance, the aforesaid vehicle was insured for Rs.2,85,000/-. Admittedly the insured vehicle was of the year 1995. The complainant has not adduced any evidence to establish the market value of the insured vehicle on the date of the peril. PW1, the power of attorney holder of the complainant/insured has not spoken to about the market value of the insured vehicle. It is the settled position that the insured vehicle would fetch only the market value of the vehicle on the date of the peril. B6 survey report would show that the insured vehicle would fetch market value of Rs.1,75,000/- at the time of theft of the vehicle. So, the market value of the vehicle can be fixed at Rs.1,75,000/-. The respondent/opposite party/insurance company being the insurer of the vehicle is liable to pay a sum of Rs.1,75,000/- to the appellant/complainant being the insured of the vehicle. Hence these points are answered accordingly. In the result the appeal is allowed. The impugned order dated:14/12/2004 passed by the CDRF, Kasaragodu in OP:177/04 is set aside. The respondent/opposite party/insurance company is directed to pay a sum of Rs.1,75,000/- to the appellant/ complainant/insured by way of the insurance claim with respect to the insured vehicle, KL-13 B-5243 which was stolen on 20/1/2001. The aforesaid insurance amount of Rs.1,75,000/- would carry interest at the rate of 9% per annum from the date of the complaint in OP:177/04 till the date of payment/realization. Considering the facts and circumstances of the case the parties are directed to suffer their respective costs throughout. M.V. VISWANATHAN : JUDICIAL MEMBER VL. S. CHANDRA MOHAN NAIR : MEMBER | 
