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

Facts:-

1. The complaint is filed by the power of attorney holder of the complainant who is the owner of Honda City Car with Reg.No.PY-01-Q 9990. The vehicle was covered under a comprehensive insurance policy issued by opposite party. The vehicle met with an accident by hitting on a divider at Ernakulam on 29-01-2006 and this caused extensive damage to the vehicle. The accident was intimated to opposite party who appointed a surveyor to assess the damages. The surveyor inspected the vehicle on 01-02-2006. The vehicle was repaired at a workshop at Cochin. The complainant preferred a claim before opposite party. A re-inspection of the vehicle was conducted by another surveyor Sri. Vinod. Complainant also submitted the necessary documents before opposite party. But opposite party later repudiated the claim raising untenable contentions. That opposite party had settled earlier two small claims made by the complainant for vehicle. Complainant had spend Rs.15,500/- towards labour charges, Rs.1,69,126/- towards cost of spare parts and Rs.1,500/- towards towing charges in connection with repair of vehicle. Complainant alleges that the dishonour of the claim on the part of opposite party is deficiency in service. Hence this complaint.

2. Opposite party filed version admitting that the vehicle Honda City Car bearing Reg.No. PY-01-Q 9990 was insured with opposite party under private car package B policy for the period 08-11-2005 to 07-11-2006. Opposite party has admitted the damage caused to the vehicle by accident and also the intimation of the same to opposite party by one Mr. U.A. Latheef on behalf of the insured. It is stated that opposite party had immediately issued a claim form and directed to produce necessary documents along with the duly filled claim form. On 31-01-2006 the claim form was submitted by the insured through another person. So opposite party made an investigation and understood that the person who signed the claim form/insured has no insurable interest upon the vehicle because he has sold the vehicle as early in the year 2002 to one P.D. Jose and that this P.D. Jose is using the vehicle without effecting change in the Registration Certificate or Insurance certificate of the vehicle. So opposite party send a registered letter repudiating the claim stating the reasons for repudiation. The power of attorney holder in the complaint is a stranger to opposite party and that this power of attorney has not approached opposite party. Moreover, the power of attorney produced along with the complaint is seen prepared long after the accident. The complainant has no insurable interest as he has sold the vehicle and so he has no right to give such power of attorney. Without prejudice to these contentions it is submitted that the claim put forward in the complaint is false and baseless. Opposite party had deputed a surveyor and the net liability assessed is Rs.82,193/- only. The claim was repudiated for valid grounds. That there is no deficiency in service.

3. Evidence consists of the proof affidavit filed by the power of attorney holder of the complainant and Exts.A1 to Ext.A7 marked for complainant. Opposite party filed counter affidavit. No documents marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party has committed deficiency in service.

(ii) If so, reliefs and costs.

5. Point (i):-

Complainant is aggrieved that opposite party failed to indemnify the loss sustained due to damage to the vehicle in accident. Ext.A2 and Ext.A4 are the photocopies of Insurance Certificate and Registration Certificate. Both these documents stand in the name of complainant. Ext.A2 policy is issued for the period from 08-11-2005 till 07-11-2006. The accident occurred on 29-01-2006 which is during the currency of the policy. The complaint is refuted raising the contention that the complainant has sold the vehicle to one P.D. Jose and that P.D. Jose has been using the vehicle without transferring the registration certificate and insurance of the vehicle. As per Ext.A1 power of attorney it is seen that P.D. Jose is the power of attorney holder of the complainant. Opposite party does not state on which date the vehicle was sold. On perusal of entire records we do not see any evidence placed by opposite party to establish that the owner has sold the vehicle to P.D. Jose apart from the affirmation in the affidavit. Even though opposite party contends that the fact of sale was brought out in the investigation conducted by the investigator who was appointed by the Insurance company, opposite party has neither examined this investigator nor his affidavit filed. Such investigation report is also not placed before us. We therefore have to reach the inevitable conclusion that complainant is the owner as well as insured of the vehicle on the relevant time of accident.

6. It was submitted by opposite parties that the evidence adduced on the side of complainant would show that the complainant has not followed the relevant provisions of Sec.47, 49, 50 of Motor vehicle Act which states that when a vehicle is kept in another State for more than 12 months, the owner shall apply for the assignment of new registration mark. It is true that it is seen stated in Ext.A1 that the power of attorney holder was using the car in Kerala from 26-9-2002 to 24-4-2004, even though the vehicle is registered in Pondicherry. The complainant has also sworn that the vehicle was used by his friend in Kerala and so the vehicle happened to be insured with opposite party which is a branch office situated within the jurisdiction of this Forum. It is also sworn that opposite party branch had issued policy for the same vehicle in the previous years of Ext.A2 policy period. Opposite party had accepted the premium and insured the vehicle during the previous years knowing fully well that the use of the vehicle in this State without assignment of new registration mark is violation of the provisions of Motor Vehicle Act. Therefore, opposite party is estopped from raising the contention that the owner has violated the above provisions of the statute. It was further submitted on behalf of the complainant that the previous two claims made upon the same vehicle were honoured and settled by opposite party. Ext.A7 which is the copy of claim disbursement register maintained by opposite party for the period 01-6-2005 to 30-6-2005 was relied by the complainant to support his contention. It is submitted by the complainant that opposite party had disbursed the claim upon this vehicle as voucher Nos.760204/84/05 which is Ext.A7(a) and as voucher No.760204/84/03 which is Ext.A7(b). This is not controverted by opposite party. On such score the denial of claim by opposite party is not justified. It is established that opposite party has denied the claim upon unjustifiable and flimsy grounds, which amounts to deficiency in service. We find opposite party deficient in service.

7. Point (ii):-

Complainant claims for Rs.15,500/- towards labour charges, Rs.1,500/- as towing expenses, Rs.1,69,126/- as price of spare parts and Rs.20,000/- as conveyance charges. Ext.A3 series are the photocopies of bills produced by the complainant. These have not been proved by examining the persons who issued it and hence are unreliable. Ext.A6 is the survey report. In Ext.A6 the loss assessed for spares is Rs.98,924/- (Rs.95,769/- + Rs.3,155/-). The labour charges assessed is Rs.12,750/- and towing charges Rs,.750/-. The surveyor has recommended that an amount of Rs.5,000/- is to be deducted as value of salvage and Rs.500/- is to be deducted as policy excess. Thus the total liability as per Ext.A6 is Rs.1,06,924/- (Rs.1,12,424-Rs.5,500/-). In our view the complainant is entitled to this amount. He is also entitled to interest @ 6% per annum from date of complaint till payment, which would meet the ends of justice.

8. In the result, the complaint is allowed and opposite party is ordered to pay to the complainant a sum of Rs.1,06,924/- (Rupees One lakh, Six thousand, Nine hundred and twenty four only) along with interest @ 6% 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 18th day of January, 2010.

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 A7

Ext.A1 : Power of Attorney given by complainant.

Ext.A2 : Photo copy of the Certificate Insurance.

Ext.A3(series) : Photo copy of Cash Bills(3 Nos.).

Ext.A4 : Photo copy of the Registration Certificate of Vehicle No.PY.01.Q 9990

Ext.A5 : Computerised Pollution Under Control Certificate of vehicle No.PY.01.Q 9990

Ext.A6 : Motor Survey Report with photos dated, 03-3-2006

Ext.A7 : Computer print of Claim Disbursement Registers.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER