D.o.F:20/10/09 D.o.O:4/2/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM KASARAGOD C.C.No.111/09 Dated this, the 4th day of February 2010 PRESENT: SRI.K.T.SIDHIQ :PRESIDENTSMT.P.RAMADEVI :MEMBER SMT.P.P.SHYMAKLADEVI :MEMBER Choori Usman, S/o late Abdulla Haji, R/at Mariyam Villa,Santhosh Nagar, : Complainant Chengala,Kasaragod. Rep. by his P.A.holder Akbar Nivas .U.C S/o Usman.C.,A R/at Mariyam Villa, Santhosh Nagar, Chengala,Kasaragod (Adv.A.N.Ashok Kumar,Kasaragod) United India Insurance Co.Ltd, : Opposite party M.G.Road,Kasaragod. (Adv.C.Damodaran,Kasaragod) ORDER SRI.K.T.SIDHIQ : PRESIDENT Case of the complainant ; Complainant is the registered owner of Maruthi Alto car bearing Reg.No. KL-14/E 1409 that was insured with opposite poarty . The insured value of the car was Rs.257450/-. On 13/12/2004 at about 4.a.m one Sasidharan Pillai and another unlawfully trespassed into the premises of the complainant’s residence due to some enemity and forcibly took away his by using criminal force without his consent. Immediately complainant approached the opposite party, then they advised to file a complaint against the miscreants and try to trace out the stolen car with the help of police. Accordingly the complainant filed criminal complaint against the culprits and also filed search petition U/S 94 of Cr.PC. as petition No.CMP 3391/05 and his complaint was taken on file as CC 1856/05 U/S 202(1) of Cr.P.C and it is still pending for disposal. In pursuant to the search warrant issued by the Hon’ble Chief Judicial Magistrate Kasaragod, the Kollam Police reported before the Court that the car is undetectable. The complainant after getting copies of reports again approached the opposite party to get the claim form but they refused it.. Hence the complainant filed CC 50/06 before this Forum and as per the order of the Forum, opposite party issued a claim form to the complainant. The opposite party after processing his claim as per the direction of the Forum declined to entertain the claim. Hence the complaint alleging deficiency in service on the part of opposite party. 2. Version of opposite party: The insurance of the car during the relevant period is admitted. But the complainant took nearly one year to intimate about the theft of his car to the opposite party. The theft alleged in this case is a theft with a difference. The complainant and the accused were parties is near relation having financial dealings. The transaction between the parties was evident from the CMP petition filed before the Magistrate court and the petition filed by the complainant and his wife before Superintendent of Police Kasaragod. In CMP 823/05 the complainant alleges extortion by a group of 9 persons including S.I of police Kasaragod and Punalur and C.I of Police Punalur (Accused Nos.3,4,5 in CC 1856/2005 and CMP 823/05). According to opposite party no prudent person can believe that Sub Inspector and Circle Inspector of police would commit theft. The said transaction doesnot come within the definition of theft. For nearly 6 months complainant has not filed any petition for search warrant inspite of the fact that the complainant was aware about the person and place. Since serious criminal offence is alleged against the accused person in CMP 823/05 the out come of the case is necessary to appreciate the facts and circumstances of the case. Only loss has to be compensated. In case the criminal court provides adequate compensation for the loss, payment of claim will be a profit for the insured for which he is not entitled. The complainant on 14/6/2005 filed a petition for search warrant U/s 94 of Cr.PC against one Sasidharan Pillai and Chandan of Kollam stating that car is under their custody in Hotel Kailas where underground facilities are available. According to opposite party this would goes to show that till 14/6/05 and after intimation to the opposite party complainant and accused were in near relation and knowing the whereabout of each other. It is the duty of the insured to assist the insurer to furnish all necessary information so as to repossess the vehicle. The complainant has suppressed the fact of transaction and the dealings between the accused persons in criminal case and the location of the car in Punalur which are material facts in this case. Complainant after sending a lawyer notice dtd.1/12/2005 has kept quite for long time and resorted to file CC.50/06 before the Forum suppressing all material facts which are against the spirit of contract of insurance. The complainant in CC1856/05 filed before the CJM Kasaragod has alleged that the accused therein has heavily bribed the SI & CI of Punalur police station. Accused is having business in Punalur and Nepal and very influential and moneyed is a clear indicationof the fact that the intention of the accused was not to steal the car but only to make good the heavy loss caused to the accused Sasidharan Pillai in connection with an offer to secure medical seat by the complainant for the son of the accused by receiving huge amount and the whole transaction(the alleged theft) was for the purpose of giving a set off and recover the portion of the amount paid by the accused to the complainant. For that insurance company cannot be held liable since insurance company is not a surety for the amount received by the complainant. In CMP 823 /05 filed before the CJM Kasaragod the complainant has no allegation of theft (Sec.379 IPC) against the accused. The fact of criminal cases and the transaction between the parties are revealed through investigation conducted by the opposite party and not from the complainant. In case any claim and supporting documents are received the opposite party either would have allowed or repudiated the claim of the complainant. There is no deficiency in service on the part of the opposite party. The financier and Sasidharan Pilla are necessary parties to the proceedings. 3.Evidence of Parties: Complainant filed affidavit in lieu of oral evidence and Exts.A1 to A12 marked. He was cross examined by the counsel for opposite party. On behalf of opposite party Sri.N.Sudhakaran, Deputy Manager United India Insurance Co.Ltd Kannur filed affidavit. He faced cross examination by the counsel for complainant. Exts.B1 to B6 marked. Both sides heard and documents perused. 4. The only point to be decided in this case is whether there is any deficiency in service on the part of opposite party in repudiating the claim of the complainant or not. 5. PW1, the complainant Sri.Choori Usman in cross examination has stated that Punalur and Kasaragod police persons came to his house and took him and his car and he has filed a criminal case against them. 6 The case of opposite party is that the vehicle of the complainant was not a subject matter of any theft which warranting any payment of compensation as per the policy conditions but it was taken away by one Sasidharan Pillai ,in connection with certain financial dealings with the complainant and Sasidharan pillai a hotelier of Punalur. In the notes of argument filed by learned counsel for opposite party Sri.C.Damodaran reiterated that the complainant has not alleged any charge of theft in the petition filed for taking cognizance of the crime before the CJM Kasaragod against the person who carried away his vehicle. It is also stated that the complainant committed inordinate delay in intimating the insurer about the loss of vehicle. That apart it is also stated that it is the loss that has to be indemnified as per the contract of insurance. The car is taken away by a person in consideration of a set off for the huge amount due to him from the complainant. Further the complainant has not observed the principles of good faith which is the basis of the contract of insurance. 7. From the evidence tendered by the parties and also from the documents produced it can be seen that the vehicle of the complainant was not subjected to any theft but it was taken away by some person with whom the complainant had transaction. It was towards the set off of that amount the vehicle was taken away. So it cannot be treated as a theft which warrants the indemnification of the loss sustained to the complainant by the opposite party. As rightly stated by the counsel for the opposite party contract of insurance is a contract Uberrimae fidei and hence both parties are bound to disclose all the facts that is material to the contract. In this case, it is evident that the complainant has suppressed many vital facts that is important to process the claim of the complainant. In the circumstances mentioned above, we do not find any deficiency in service on the part of opposite party and the complaint accordingly fails and hence dismissed. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts: A1-21/4/08- Copy of forum order in CC.50/06 A2-2/1/09-letter issued by opposite party to PW1 A3-11/2/09-reply of Ext.A2 A4-copy of registration particulars A5-20/3/09-letter issued by opposite party to PW1 A6&A7-Copy of complaint filed in the court of CJM,Kasaragod A8-policy receipt A9-copy of RC A10-16/2/05-copy of intimation issued by PW1 to Ashok layland finance,Kanhangad A11-1/12/05-copy of letter to OP A12-25/10/05 –Copy of order issued by court of CJM,Kasaragod. B1-Investigation report B2-15/12/04-statement B3-19/12/04- do- B4- statement given by PW1 & others B5 series-news paper s B6- copy of policy PW1- choori Usman-complainant Dw1-N.Sudhakaran-Deputy Manager of OP Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT eva /Forwarded by Order/ SENIOR SUPERINTENDENT
......................K.T.Sidhiq
......................P.P.Shymaladevi
......................P.Ramadevi | | 
