By. Smt. Saji Mathew, Member :

Complaint filed u/s 12 of Consumer Protection Act.

Brief of the complaint.

The complainant had purchased a Hero Honda splender Motor cycle bearing No. KL-12B-3559. The Motor Cycle was insured with the opposite party on 17.07.2006. One of the business friend of the complainant Mr.Shihab had taken the Motor Cycle with the permission of the complainant and was kept in the house of Mr. Shihab. But on the night of 17.07.2006 the Motor cycle was stolen by somebody. On 18.7.2006 morning the vehicle was seen missing from the porch of the house of Mr.Shihab. Mr.Shihab informed the matter to the complainant. The complainant immediately went to the Vythiri Police Station and submitted a written complaint. Police recorded his oral statement and registered a case in Cr.No. 117/06 U/S 379 IPC of Vythiri Police Station. The police made all efforts to trace out the Motor Cycle, but no result hence the police treated the case as Undetected.

2. The complainant had submitted a claim form before the opposite party claiming the insured amount of the Motor Cycle. The Opposite party repudiated the claim vide letter No.101601/C1/124/ 07. The complainant is entitled to get compensation from the opposite party. The reason stated for the repudiation is that the complainant sold the vehicle to Mr. Shihab. That averment is not correct. That act is the deficiency of service on the part of opposite party. Hence it is prayed, to pass an order in favour of the complainant and directing opposite party to pay a sum of Rs.27,000/- to the complainant as insured amount of Motor Cycle No. KL-12B-3559, to pay Rs. 25,000/- as compensation, to pay cost of the complainant.

3. The opposite party appeared and filed version. In the version Opposite party admitted the insurance of the Vehicle. But the complainant had sold the Motor Cycle to Shihab. K.K for Rs.35,000/-. Since there was hypothecation from South Malabar Gramin Bank, Pozhuthana the R.C was not transferred in the name of Mr.Shihab. So there was no insurable interest upon the Motor Cycle No. KL -12B-3559 as on the date of theft. Hence the Opposite party closed the claim file treating as no claim. There is no deficiency of service on the part of Opposite party. The other allegations in the complainant is denied by the Opposite party. Hence the complainant is not entitled to get Rs. 27,000/- towards the value of the Motor Cycle. Without prejudice to the above contention this Opposite party submitted that the value of the vehicle will be assessed based on the year of manufacture and after deducting the depreciation. The complainant is not entitled to get a sum of Rs. 25,000/-

as compensation and cost. Hence dismiss the complaint with compensatory cost.

4. The points in consideration are

(1). Whether there is any deficiency of service on the part of the Opposite party?

(2). Compensation and cost.

5. Point No.1:- To prove the complainant's case the complainant has filed chief affidavit . He also produced a documents which are marked as Ext.A1 to A9. Mr. Shihab K.K. is examined as PW2. In the chief affidavit he stated as stated in the complaint. Ext.A1 is the copy of complaint filed before S.I of Police Vythiri police station by the complainant. Ext.A2 is the copy of FIR in Crime No. 117/06 of Vythiri police station. Ext.A3 is the copy of R.C notice served on the complainant by Vythiri Police. Ext.A4 is the Final report submitted by S.I of Police Vythiri in Cr.No. 117/06 of Vythiri police station before the Chief Judicial Magistrate Court , Kalpetta. Ext.A5 is the repudiation letter sent by Opposite party to the complainant. Ext. A6 is the copy of complaint submitted by complainant before Opposite party on 30.11.07 after getting Ext.A5 letter. Ext.A7 is the copy of Insurance policy of Motor cycle KL-12B-3559. Ext. A8 is the copy of R.C of Motor Cycle. Ext.A9 is the copy of tax paid coupon of the Motor Cycle.

6. To prove Opposite party's case Opposite party is filed Chief affidavit and examined as OPW1 . On the side of Opposite party one witness is examined as OPW2. In the Chief affidavit Opposite party stated as stated in the version. Opposite party has filed two documents which are marked asExt.B1 and B2. Ext.B1 is the copy of claim form submitted by the complainant to Opposite party on 20.07.2006. Ext.B2 is the copy of investigation report filed by the investigator before the Opposite party regarding theft of the Motor Cycle KL-12B-3559. In this case opposite party issued Ext.A5 stating that on our investigation it reveals that the vehicle has been sold to Mr. Shihab as such you have no insurable interest in the subject matter of insurance on Motor Cycle. Hence we are treating your claim as no claim and the file is closed. But on perusing Ext.A8 the RC of the vehicle and oral testimony of PW1 and PW2 it is clear that the owner of the vehicle is the complainant. There is no document before us to believe that the complainant was sold the Motor Cycle to Mr. Shihab. Ext.A1 and A2 shows that immediately after the theft the complainant has filed a complaint before Vythiri police and police registered a crime and investigated. Ext.A3 and A4 shows that after investigation the police treated the case as Undetected on 28.10.2006. During investigation police has no case that the complainant sold the Motor cycle to Mr. Shihab. Moreover in Ext.B2 the investigator's finding is that the claim of the insured related to the theft of his Hero Honda splender KL-12B-3559 on 17.07.2006 night was found to be genuine. Hence issuing Ext.A5 repudiating the claim is not justifiable. So there is deficiency of service on the part of Opposite party. Point No.1 is decided accordingly.

7. Point No.2:- The complainant is entitled to get the insurable value of the Motor Cycle after deducting the depreciation as per the terms of the policy. He is also entitled to get Rs.1,000/- as cost. Point No.2 is decided accordingly.

8. In the result the complaint is partly allowed and the Opposite party is directed to pay the insurable value of the Motor Cycle after deducting the depreciation as per the terms of

the policy.      Opposite party is also directed to pay Rs.1,000/-as cost of this litigation.

9. Opposite party is directed to pay the above said amount within one month of the receipt of this order failing which the complainant is entitled to get 9% interest from the date of filing of this complaint till the payment is made.

Pronounced in Open Forum on this the 28^th day of February 2009.

PRESIDENT : Sd/-

MEMBER I : Sd/-

MEMBER II : Sd/-

A P P E N D I X

Witnesses for the Complainant :

PW1. Vasudevan Complainant

PW2. Shihab Contract Work.

Witnesses for the Opposite Party :

OPW1. Pradeep Kumar Manager, United India Insurance Company.

OPW2. Haridasan Nair Investigator

Exhibits for the Complainant :

A1. Copy of Complaint dt. 18.07.2006

A2. Copy of FIR dt. 18.07.2006

A3. Copy of RC Notice

A4 Copy of Final Report

A5. Repudiation Letter dt. 9.10.07

A6. Copy of Complaint dt. 30.11.07

A7. Copy Insurance policy of Motor Cycle

A8. Copy of RC of Motor Cycle

A9. Copy of tax paid coupon of Motor Cycle.

Exhibits for the Opposite Party :

B1. Copy of claim Forum dt. 20.07.2006

B2. Copy of Investigation Report