State Consumer Disputes Redressal Commission
M/S Royal Sundaram Alliance Insurance ... vs K Reshjma on 2 April, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION THIRUVANANTHAPURAM First Appeal No. A/16/693 ( Date of Filing : 27 Oct 2016 ) (Arisen out of Order Dated 30/08/2016 in Case No. CC/81/2015 of District Kasaragod) 1. M/S ROYAL SUNDARAM ALLIANCE INSURANCE CO LTD D1 2ND FLOOR AMRUTHA TOWER KPCC Jn.OPPO. MAHARAJA GROUNDM G ROAD COCHIN ...........Appellant(s) Versus 1. K RESHJMA LEELA NIVAS VADAKKUMBAD CHERUVATHUR PO KASARAGOD ...........Respondent(s) BEFORE: HON'BLE MR. SRI.T.S.P.MOOSATH PRESIDING MEMBER SRI.RANJIT.R MEMBER SMT.BEENAKUMARI.A MEMBER For the Appellant: For the Respondent: Dated : 02 Apr 2019 Final Order / Judgement KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL No. 693/2016 JUDGMENT DATED: 02.04.2019 (Against the Order in C.C. 81/2015 of CDRF, Kasaragod) PRESENT : SRI. T.S.P MOOSATH : JUDICIAL MEMBER SRI. RANJIT. R : MEMBER APPELLANT: M/s Royal Sundaram Alliance Insurance Co. Ltd., D1, 2nd Floor, Amrutha Tower, KPCC Junction, Opp: Maharaja Ground, M.G. Road, Cochin. (By Adv. V. Manikantan Nair) Vs. RESPONDENT: K. Reshma, Leela Nivas, Vadakkumbad, Cheruvathur P.O, Kasaragod District. (By Adv. Aniyoor T. Ajith Kumar) JUDGMENT
SRI. T.S.P MOOSATH: JUDICIAL MEMBER The opposite party in C.C. No. 81/2015 of the Consumer Disputes Redressal Forum, Kasaragod, in short the district forum, has filed this appeal against the Order passed by the Forum by which they were directed to pay Rs. 2,29,261/- being the IDV of the vehicle with interest @ 10% per annum from the date of complaint till realization and Rs. 3,000/- as cost to the complainant.
2. The averments contained in the complaint are, in brief, as follows: That the opposite party is the insurer of the Alto car bearing No. KL 60D-2687. The owner of the above vehicle was Santhosh Kumar, husband of the complainant and he died on 10.03.2012 and the complainant, his wife and two minor children are the heirs and legal representatives and after the death of Santhosh Kumar complainant became the owner of the above said vehicle. On 15.05.2013 the said vehicle was used by one of her relatives Mr. Vinod Kumar and after the use the same was parked in the porch of a quarters nearby the house of the complainant and on midnight the same was found missing and the complainant and her relatives, made all efforts to find the vehicle and subsequently the matter was informed to the Chandera Police Station and the police has registered a case as Crime No. 369/13 for the offence under Sec. 379 of IPC and the fact was informed to the opposite party without any delay. On 14.06.2013 the opposite party directed the complainant by a letter to furnish certain details and documents regarding the above vehicle and the complainant submitted the claim petition along with relevant documents. Subsequently one Mr. V.V. Chandrashekaran Pillai the insurance investigating officer of opposite party conducted enquiry and thereafter the opposite party has not considered the claim of complainant. Hence the complainant sent a lawyer notice and opposite party failed to comply with legitimate demands made in the notice. Hence this complaint alleging deficiency in service against opposite party.
3. Opposite party filed version raising the following contentions. Opposite party denied all the allegations made against them by the complainant and stated that the complaint is not maintainable before the forum since the complainant is not a consumer as per the Consumer Protection Act as the complainant is not the owner of the vehicle in question as the complainant had sold the vehicle to one Mr. Vinod Kumar for a valid consideration of Rs. 75,000/- and the complainant has no insurable interest over the vehicle. The opposite party admit that the policy is in force and stated further that the complainant informed the theft to opposite party in a highly belated stage, i.e; after a lapse of 29 days and the police after 5 days of incident and it is against the condition of policy and the theft must be informed to the insurance company immediately and also to the police and the complainant violated the policy conditions. The opposite party specifically stated the meaning of 'immediately' and also stated the judgments of Hon'ble Supreme Court in respect of the delay in intimating the theft. It is further stated in the version that since there is no deficiency in service on the side of opposite party the complaint is liable to be dismissed.
4. Complainant was examined as PW1 and Exts. A1 to A8 were marked on her side. DW1 was examined and Exts. B1 to B7 were marked on the side of the opposite party.
5. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite party has preferred the appeal.
6. Heard both sides. Perused the records.
7. The case of the complainant is that her deceased husband Santhosh Kumar was the owner of the vehicle having No. KL 60 D/2687 and after his death she became the owner of the vehicle as the legal heir of her husband. The vehicle has got valid insurance policy with the opposite party. Since she is not in a position to use the car, since she did not know driving and has no driving license, the vehicle was given to her cousin brother Vinod Kumar for using the same. The said vehicle was missing on 15.05.2013 and all the efforts made to find out the vehicle failed and the matter was informed to the police and the insurance company (opposite party) in time. Thereafter the complainant submitted a claim before the opposite party, but the opposite party did not consider/entertain the claim. Aggrieved by the act of the opposite party, the complainant has filed the complaint. The opposite party admitted that there was a valid insurance policy with respect to the vehicle in the name of Santhosh Kumar. The opposite party did not entertain the claim of the complainant on the ground of violation of policy condition that complainant failed to report the matter immediately to them as stated in the insurance policy. Another contention raised by the opposite party was that the complainant has no insurable interest in the vehicle. The district forum found that the act of the opposite party, not entertaining the claim of the complainant, is non-justifiable and there is deficiency in service on their part and the complainant is entitled to get the amount of Rs. 2,29,261/- being the IDV of the vehicle with interest. The appellant has filed the appeal challenging the said order of the district forum.
8. The opposite party did not entertain/consider the claim of the complainant on the ground that there was violation of policy condition. Condition No. (1) in Ext. B1 policy is that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. It is the case of the opposite party that there was delay on the part of the complainant in informing them about the theft of the vehicle and thereby the complainant has violated the policy condition. According to the opposite party the complainant has informed the matter to the police after 5 days of the incident and the opposite party after 29 days of the occurrence. In the version filed by the opposite party itself they have cited decisions of the Hon'ble Supreme Court and National Commission in support of their contention that the delay in reporting the matter about theft of the vehicle would be in violation of the condition of the policy. As found by the district forum the reason behind that condition in the policy that in case of theft the same has to be intimated to the insurance company as well as the police immediately is not to deprive the right of the insurance company to investigate theft and the facts of the cases mentioned in the Decisions stated by the opposite party in the version and the facts of the present case are different. In the present case the investigator of the insurance company investigated the case and filed his report and the right to investigate is not deprived to the opposite party. Opposite party has no specific case that their right to investigate the theft is deprived. Ext. A4 shows that Vinod Kumar, the relative of the complainant who was in possession of the vehicle at the concerned time, has reported the matter to the police on 20.05.2013 and police has registered a crime. In the F.I statement it is stated by Vinod Kumar that he had made search to find out the vehicle and he was under the bonafide belief that the vehicle could be traced out and so there occurred delay in informing the matter. So it can be seen that the intimation regarding theft was given to the police without delay and so the veracity of the incident cannot be questioned. In Ext. B4 report submitted by the investigator he has reported that the vehicle was dispossessed by some unidentified criminals from the residence of Vinod Kumar during 10.30 pm on 15.05.2013 and 3.30 am on 16.05.2013. The district forum analyzed the circumstance and found that the delay on the part of the complainant in intimating theft to the opposite party is not willful or deliberate and it is excusable. As found by the district forum the sudden death of her husband will be a shock to the complainant. Moreover she happened to be the owner of the vehicle only on the death of her husband and the policy was taken by her husband and she may not be aware of the policy conditions. Considering the mental condition of a widow with two minor children the delay in intimating the theft to the opposite party by the complainant is not willful or deliberate and it can be excusable. In United India Insurance Co. Ltd. & Anr. Vs. Rahul Kadian [2018(1) CPR 772 (NC)] it was held by the Hon'ble National Commission that genuine claims are not to be repudiated on the basis of delay in intimation to the insurance company. It is advised that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. It is also advised that the insurers must not repudiate such claims unless and until the reason of delay are specifically ascertained, recorded and the insurers should satisfy themselves that the delayed claims would have otherwise been rejected, even reported in time. So the rejection of the claim of the complainant on the ground that there was delay on her part in intimating the theft of the vehicle to the opposite party is not justifiable. We consider that there is nothing to interfere with the finding of the district forum regarding that aspect.
9. Another contention raised by the opposite party for not entertaining the claim of the complainant is that she has no insurable interest at the concerned time. According to the complainant her deceased husband Santhosh Kumar was the owner of the vehicle. Ext. A1 is the copy of the Registration particulars of the vehicle in the name of Santhosh Kumar. It is the case of the complainant after the death of her husband she became the owner of the vehicle as the legal heir of the deceased husband. Ext. A2 is the copy of the Legal Heirship Certificate in which it is stated that complainant and her two minor children are the legal heirs of the deceased Santhosh Kumar. It is stated by the complainant that she was not in a position to use the vehicle as she did not know driving and she has no license for driving the vehicle and so she had given the vehicle to her cousin brother Vinod Kumar and he was using the vehicle. The vehicle was stolen by somebody while it was kept in the porch of the house of the said Vinod Kumar. It is contended by the opposite party that at the concerned time the complainant was not the owner of the vehicle and she has sold the vehicle to Vinod Kumar for a consideration of Rs. 75,000/- plus undertaking of payment of balance amount to the bank. So the complainant has no insurable interest at the concerned time. Hence the complainant is not entitled to get any amount from the insurance company. The counsel for the appellant has cited the decisions reported in M/s Complete Insulations (P) Ltd. Vs. New India Assurance Company Ltd. [1996 (1) SCC 221] and G. Govindam Vs. New India Assurance Co. Ltd. [1999 (3) SCC 754] wherein it was held that the deemed transfer of the insurance policy in the case of transfer of vehicle provided under Sec. 157 of the Motor Vehicle Act is applicable to third party risks only and not to own damage cases. The counsel for the appellant has cited the decision in United India Insurance Company Vs. Bundela Singh Rajput and Others [2016 (1) CPR 377(NC)] wherein it was held that claim repudiated on the ground that on the date of theft respondent had no insurable interest in as much as insurance was not transferred in his name. The vehicle was transferred in the name of the respondent No. 1 but the insurance continued in the name of the respondent No. 3 at the time of theft of vehicle. Respondent No. 1 had no insurable interest in the vehicle on the date of theft. Petitioner insurance company was justified in repudiating the insurance claim. The facts of the case discussed in those decisions and the facts of the present case are different. The opposite party is relying on Ext. B6 statement alleged to have given by Vinod Kumar to the Investigator appointed by the opposite party that there was oral sale of the vehicle by complainant to him for a consideration of Rs. 75,000/- plus undertaking of payment of balance amount. Ext. B7 is the statement given by complainant to the Investigator of the opposite party wherein she stated that after the death of her husband she had given the vehicle to her cousin brother Vinod Kumar for his use since she did not know to drive the vehicle and she has no driving license. It is also stated by her that the registration of the vehicle was not transferred in her name since the loan transaction with the bank was not closed and she intend to change the registration of the vehicle to her name after the closing of the loan transaction. So in Ext. B7 complainant has no case that she has sold the vehicle to Vinod Kumar. Ext. A3 is the F.I statement given by Vinod Kumar to the police. In Ext. A3 statement Vinod Kumar stated that the registered owner of the vehicle is the husband of the complainant and after his death the complainant who is his relative had given the car for his use since the complainant did not know to drive the vehicle and she has no driving license to drive the vehicle. In Ext. A3 Vinod Kumar has no case that the vehicle was sold to him by the complainant. The complainant has not admitted the oral sale of the vehicle in the complaint or at the time of her examination. In cross examination PW1 specifically denied the allegation of the opposite party that she has sold the vehicle to Vinod Kumar. PW1 reiterated her statement in the complaint that after the death of her husband the vehicle was used by her relative Vinod Kumar since she did not know driving and since she has no driving license to drive the vehicle. Vinod Kumar who alleged to have given Ext. B6 statement to the Investigator was not examined. The Investigator of the opposite party was also not examined. Admittedly there is no document to show that the vehicle was sold by the complainant to Vinod Kumar. In these circumstances solely on the basis of Ext. B6 it cannot be found that the complainant has sold the vehicle to Vinod Kumar. After the death of her husband complainant might have entrusted the vehicle to her relative Vinod Kumar without any sale. There is no convincing evidence regarding the sale of the vehicle by the complainant to Vinod Kumar, as alleged by the opposite party. It can be seen that the facts of the case discussed in the decisions cited by the counsel for the appellant, mentioned above, and the facts of the present case are entirely different. In the cases discussed in those decisions the vehicle was transferred to one person but the policy was not transferred to his name and on those facts it was held that the transferee of the vehicle has no insurable interest in the vehicle since the insurance policy was not transferred to his name even though the vehicle was transferred to his name. In the present case there is no evidence to find that the complainant had sold the vehicle to Vinod Kumar as contended by the opposite party. Admittedly the vehicle is still in the name of the deceased husband of the complainant in the registration records and the policy of the vehicle is also in his name. As found by the district forum, the rejection of the claim of the complainant by the opposite party on the ground that she has no insurable interest in the vehicle, since she has sold the vehicle to Vinod Kumar is not justifiable.
10. Ext. A1 shows that the registered owner of the vehicle is Santhosh Kumar, husband of the complainant who is no more. Ext. A6 insurance policy is also in the name of the husband of the complainant. Complainant and her two children are the legal heirs of the deceased Santhosh Kumar. It is the case of the complainant that after the death of her husband she is the owner of the vehicle. According to the complainant since there was loan transaction with SBT regarding the vehicle she had not taken steps to change the ownership of the vehicle in her name and to take fresh insurance policy in her name. The counsel for the appellant submitted that even if it is considered that after the death of her husband the complainant became the owner of the vehicle she has to take steps to change the registration of the vehicle in her name and to take insurance policy in her name and for that she has to comply certain formalities. It is true that the insurance policy is not in the name of the complainant and it is in the name of her husband who is no more. It is admitted by the complainant that after the death of her husband she has not taken steps to change the ownership of the vehicle in her name and to take fresh insurance policy in her name. It is stated by the complainant that her intention was to take steps for effecting change of ownership of the vehicle into her name after the closing of financial liability in the bank. Considering all these facts we consider that the rejection of the whole claim of the complainant by the opposite party on the ground that the insurance policy is not in her name is not justifiable and there is deficiency in service on the side of opposite party. The opposite party would have settled the claim of the complainant on non-standard basis, by paying 75% of the IDV. Considering the facts and circumstances of the case we consider that the complainant is entitled to get 75% of the IDV of the vehicle. So the amount will be Rs. 1,71,945. 75. The direction given by the district forum to the opposite party to pay interest @ 10% per annum on the amount ordered from the date of complaint is to be set aside and it has to be modified. The amount of cost ordered by the district forum is just and reasonable. The order passed by the district forum is to be modified, as stated above.
In the result, the appeal is partly allowed. The order passed by the district forum is modified as follows. The opposite party/appellant is directed to pay Rs. 1,71,945.75 to the complainant/respondent with interest @ 10% per annum from 30.08.2016, the date of order passed by the district forum, till realization. Opposite party/appellant is directed to pay Rs. 3,000/- towards cost to the complainant/respondent.
Parties are directed to suffer their respective costs.
At the time of filing of the appeal the appellant has deposited Rs. 25,000/-. Complainant/respondent is permitted to obtain release of the said amount, on filing proper application, to be adjusted/credited towards the amount ordered, as above.
T.S.P MOOSATH : JUDICIAL MEMBER RANJIT. R : MEMBER jb [HON'BLE MR. SRI.T.S.P.MOOSATH] PRESIDING MEMBER [ SRI.RANJIT.R] MEMBER [ SMT.BEENAKUMARI.A] MEMBER