PRESENT:-

JUSTICE SHRI.K.R.UDAYABHANU          :    PRESIDENT

SRI. S. CHANDRAMOHAN NAIR               :     MEMBER

APPELLANT

United India Insurance Co. Ltd.,

Branch Office,

U.P. Hill,

Malappuram,

(Rep. by its Deputy Manager,

   Regional Office, Ernakkulm)

                 (Rep. by Adv.  Sri.N.S. Mohamed Usman)

                                                Vs

RESPONDENT

1.     K. Usman Haji,

S/o Alavi,

Kodali House, Ozhakkur,

Morayur(Via),

Malappuram District.

                      (Rep. by Adv. Sri. N. Manoj Kumar & M. Rishikesh    

                                                                               Shenoi)

2.     M/s. Dugar Finance & Investment Ltd.,

Dugar Towers,

123 Marshalls Road,

Egmore, Chennai.

           (Rep. by Adv. Sri.K. R. Sunil)

JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU          :  PRESIDENT

Appellants are the first opposite party Insurance Company in O.P. 101/2001 in the file of CDRF, Malappuram.  The appellants are under orders to pay a sum of Rs, 2,95,000/- with interest  at 12% from 15.03.2001 and cost of Rs. 5,000/-

          The case of the complainant is that he had purchased a Jeep with the financial assistance of the second opposite party and that the same was insured with the first opposite party/appellant. The vehicle was purchased on 20.11.1997 for a sum of Rs. 3,56,250/-  The vehicle was stolen on 16.12.1997.  It is the contention of the complainant that the insurer settled the matter with the second opposite party Financier without the consent of the complainant.  Hence he has sought for a sum of Rs. 3,50,000/- with interest at 18% and compensation of Rs. 75,000/-.

          The first opposite party/appellant has admitted the insurance coverage.  It is the contention that the matter was settled as agreed to by the complainant. The Jeep was purchased under Hire Purchase Agreement and as per the terms of the Hire Purchase Agreement the financier is to be treated as the owner. Hence the claim was settled with the financier,   fixing the price of the vehicle as 2,85,000/-It is the amount assessed by the surveyor as the market value of the vehicle at the time of theft.  75% of the above amount was paid as the investigation was not over.  That is contented that the complainant is not entitled for any amount.

          The second opposite party/financier remained absent.

          The evidence consisted of Exts. R1 to R18 documents filed by the first opposite party/ appellant.

          The Forum has held that the appellant has no authority to settle the matter without the consent of the complainant as the complainant is the owner of the vehicle.  The Forum has also held that market value of the vehicle should have been taken as Rs. 2,95,000/-  and directed the appellant to pay the above amount. 

          We find that the case of the complainant that the claim was settled by the appellant without the consent of the complainant appears not correct.  Ext. R18 is the letter sent by the appellant to the complainant  mentioning that as requested by the complainant  the cheque for Rs. 2,13,750/- has been paid to the financier.  In Ext. R18 , it is also mentioned that the final report from the Police  is to be submitted by the complainant for enabling the full and final settlement. 

          We find that the case of the complainant that the vehicle was purchased for Rs. 3,56,250/- stands  not disputed. It is also seen that he received refund of Rs. 33,384/- towards Excise duty refund.  The vehicle has been insured for Rs. 3,50,000/-  Hence the value of the vehicle  less the amount received as excise duty refund work out to Rs. 3,16,616/- The vehicle was stolen within one month to purchase.  As per the policy of the copy produced as Ext. R1,  we find that there is no depreciation if the loss was occasioned within 6 months.  Hence we find that the complainant is entitled to have the value of the vehicle at the time of theft as Rs. 3,16,616/-. Hence the  difference in valuation works out to Rs. 31,616/-. The appellant only paid 75% of Rs. 2,85,000/- towards the loss vide the payment to the financier  The balance 25% would workout to Rs. 71,250/- Hence the complainant is entitled to have the balance amount of Rs. 71,250/- as well the difference in valuation that is Rs. 31,616/-.  All together the complainant is entitled for a sum of Rs. 1,02,866/- the appellant/first opposite party would be liable to pay the above amount to the complainant with interest at 8% per annum from 15.3.2001 till realization and cost of Rs. 5,000/-the amounts are to be paid within 3 months from the date of receipt of this order, failing which the complainant would be entitled for interest at 12% from to day the date of order of this commission.

          In the result the appeal is allowed in part as above.

          The office will forward the LCR along with the copy of this order to the Forum.

                JUSTICE. K.R. UDAYABHANU          :  PRESIDENT

                          M.K. ABDULLA SONA                       :  MEMBER