Date of filing : 11-05-2009 Date of order : 12-08-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD C.C. 118/2009 Dated this, the 12th day of August 2010 PRESENT SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SHYMALADEVI : MEMBER B.A. Abdulla Kunhi, S/o. Abdul Rahiman, A.P.House, Berka, Chengala Village, } Complainant Kasaragod Taluk & District. (Adv. Subhash Bozz.V.M. Kasaragod) 1.The Manager, National Insurance Company Limited, } Opposite parties 2nd Floor High land Plaza, M.G.Road, Kasaragod. (Adv. U.S. Balan, Kasaragod) 2. Haris, S/o. Hassainar Haji, Muttathody House, Muttathody Village, Kasaragod Taluk & District. (Exparte) O R D E R SRI.K.T.SIDHIQ, PRESIDENT The case of the complainant in brief is as follows. Complainant is the RC owner of 2008 Model Hyundai Santro Car bearing Reg.No.KL 14-G8016. On 10-06-08 complainant entrusted his vehicle with opposite party No.2 to attend the marriage of his relative. But opposite party No.2 did not return the car as promised. Thereafter on enquiry it is seen that opposite party No.2 absconded and his residence is seen closed. Therefore complainant filed a private complaint before Criminal Court. As per the direction of the Magistrate, Kasaragod Police charge sheeted a crime against opposite party No.2 U/s 406 IPC. Complainant then approached opposite parties. But opposite party refused to entertain his claim. Hence the complaint. 2. According to opposite parties the claim form was issued to complainant on 2-3-2009 and on 7-4-2009 the claim is repudiated on the ground that as per general exception No.2 of the policy the company is not liable in respect of claim arising out of any contractual liability and the claim of the complainant is arising out of such a violation of the understanding between the complainant and heirs. Since opposite party No.2 has not returned the car as per the understanding between complainant and opposite party No.2. This case can be maximum a case of breach of trust between insured and Mr. Haris, thus there is no violation of the contractual liability between the complainant and the first opposite party. The loss of vehicle during the transaction between the complainant and second opposite party can be termed as ‘consequential loss’ and as per the policy condition the company shall not be liable to make any payment in respect of loss suffered due to consequential loss. Hence here is no deficiency in service on their part and the complaint is liable to be dismissed. 3. Complainant filed proof affidavit in support of his claim. Exts A1 to A 9 marked. On the side of opposite parties Sri.Damodaran.E. Senior Branch Manager has filed affidavit. Exts B1 to B3 marked. Both sides heard and the documents perused. 4. Whether the claim of the complainant comes under the purview of the general exceptions contained in the policy is the issue to be settled in this case. 5. The facts of the case are not in dispute except the contention of opposite party No.1 that what is transpired between complainant and opposite party No.2 is not known to them. Learned counsel for opposite party No.1 U.S. Balan is heard at length. He tried to maintain that the present claim is arising out of the entrustment of the car by complainant with opposite party No.2 and it is therefore arising out of a contractual liability. He cited the following decisions in support of his claim. 1. Ram Associates Ltd. V. Oriental Insurance Co.Ltd 2010 NCJ 146 (NC) 2. United India Insurance Co. V. M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd reported in 2003 NCJ 233 (NC). 3. M/s Rana Apparels V. Export Credit Guarantee Corporation reported in 2004 NCJ 436 (NC) 4. Chandrakanth V. United India Insurance Co. Ltd reported in 2009 NCJ 16(NC). 5. Surgichem Products(India) Pvt Ltd & Anr V. Export Credit Guarantee Corporation of India Ltd.(ECFC)& Anr reported in 2009 NCJ 62 (NC). 6. Joginder Singh V. Oriental Insurance Co. Ltd & Ors reported in 2009 NCJ31(NC). 7. National Insurance Co.Ltd V. Ravi Traders reported in 2010 NCJ 262 (NC) By relying on the above judgments the learned counsel for opposite party No.1 Sri.U.S. Balan vehemently tried to highlight that insurance claim can only be permitted in furtherance of the terms of policy. He further argued that the delay in intimating the insurer about the alleged missing of vehicle was fatal to the claim of the complainant. He also tried to maintain that the complainant could not be expected to be given the benefit of his own wrong and therefore opposite party No.1 is not liable to compensate the complainant. 6. But we are unable to accept his contention. The policy issued to the complainant (Copy of Ext.B3) is a package policy. As per the policy wherein it is stated that the opposite party will indemnify the insured against the loss or damage to the vehicle and for its accessories whilst there on a interalia by burglary house breaking or theft, by accidental external means and by malicious acts etc. It is the case of the complainant that the vehicle was taken away by opposite party No.2 who was temporarily allowed to use the vehicle for a few days in connection with the marriage of his relative. But he did not bring back the vehicle. Hence the complainant filed a private complaint before the Magistrate Court and on endorsement of the court the police has registered a crime U/s 406 IPC against opposite party No.2. It is a fact that neither the vehicle nor opposite party No.2 is traceable. However the police registered the case U/s.406 IPC. 7. The act of opposite party No.2 by committing breach of trust and taking away the vehicle is nothing but a malicious act which squarely comes within the purview of the policy. 8. Therefore opposite party No.1 is liable to indemnify the complainant for the loss sustained to him. 9. Relief & Costs At the time of theft the declared value of the vehicle was ` 3,41,233/-. The policy period was 16-01-2008 to 15-01-2009. The vehicle was disappeared within 5 months from the date of commencement of policy. Therefore a sum of `40,000/- can de deducted towards the depreciation in market value of the vehicle. Therefore opposite party No.1 is liable to pay `3,01,233/- (`3,00,000/- Rounded figure) to the complainant. In the result complaint is allowed and opposite party No.1 is directed to pay `3,00,000/- to the complainant together with a cost of ` 3,000/-. Time for compliance is one month from the date of receipt of copy of the order. Failing which opposite party No.1 shall be liable to pay interest @ 9% to `3,00,000/- from the date of complaint till payment. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Exts. A1.Photo copy of policy certificate. A2.Photo copy of complaint filed before the Judicial First Class Magistrate, Kasaragod. A3.19-07-2008 Photocopy of FIR A4.2-4-09 Photocopy of lawyer notice. A5. Postal acknowledgement card. A6. 7-4-09 Letter issued by OP No.1 to complainant. A7.6-4-09 Letter issued by OP No.1 to complainants counsel A8. Photocopy of Motor claim form theft. A9.Photocopy of RC. B1.2-3-09. Motor Claim Intimation Form. B2.28-02-09 Motor Claim Intimation Form. B3. Private Car Package Policy. Sd/- Sd/- Sd/- MEMBER MEMBER PRESIDENT Pj/ Forwarded by Order SENIOR SUPERINTENDENT
| | HONORABLE P.P.Shymaladevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | HONORABLE P.Ramadevi, Member | | 
