ABDUL AZEEZ RASHEED vs DIRECTOR OF INSURANCE

THE complainant purchased a LMV Goods Carriage KL-01 /4122 which is under hypothecation to Kerala Financial Corporation, the second respondent herein. THE vehicle was covered with a valid insurance policy for the period from 17.7.1990 to 15.7.1991. Exbt. R-1 is the certificate of insurance. Exbt. R-1 shows the vehicle insured was the one with registration No. KL-01 /4122. Address of the insured is shown as A. Rasheed, Thushara Manzil, Elavattom P.O., Palode. THE vehicle was stolen between 10.1.1991 10.30 p.m. and 11.1.1991 7 a.m. THE complainant lodged a complaint before the Nedumangad Police Station and a Crime was registered by that Police Station as Crime No. 9/91 for an offence of theft. Exbt.P-1 is the First Information Report. It appears that Ned umangad Police filed a report before the Judicial IInd Class Magistrate Court, Nedumangad stating that inspite of best efforts they could not detect the accused. Exbt. P-2 is the said report.

THE complainant made a claim before the first respondent supported by copies of documents filed before the Court and documents of vehicle. THE grievance of the complainant is that the first respondent sent a letter dated, 22.8.1991 refusing to honour the claim. It is in those circumstances, this complaint is filed. The first opposite party, namely the Director of Insurance, filed a version in which it is contended that the complaint is not maintainable. The allegation that the vehicle was lost by way of theft was disputed. It is further stated that the Forest Range Officer, Palode by his letter dated 27.4.1992 intimated the opposite party that the vehicle bearing Registration No. KL-01/4122 owned by Rasheed was used for illicit transport of timber from the Forest area within the jurisdiction of Palode Range, that therefore the vehicle was liable to be confiscated under Section 61-A of the Kerala Forest Act and that in the circumstances, the amount claimed towards insurance policy may not be released to the owner of the vehicle. They also stated that the allegation of the complainant that the vehicle was stolen is false and untrue. According to the first opposite party they could not honour the Insurance claim by reason of the above facts.

The second opposite party also filed a version though no relief was claimed against the second opposite party. It has been specifically mentioned therein that the complainant had filed application for loan for a sum of Rs. 1,88,000/- and the second opposite party had sanctioned the loan to the complainant. It is also alleged that the complainant is not a Consumer of the second opposite party.

IN order to substantiate the case of the complainant they have examined the complainant and also P.W-2, the INvestigating Officer in trial No. 9/91. The complainant also produced and marked Exbts. P-1 to P-9. On behalf of the first opposite party, R.W.-1, the Assistant Director of INsurance was examined and Exbts. R-1 to R-3 were marked. The points that arise for consideration are:- (i) Whether there is deficiency in service on the part of the first opposite party in not honouring the Insurance claim ? (ii) What are the reliefs to which the complainant is entitled ? (iii) What is the order to be passed as to cost?

THE complainant has given evidence as P.W-1 and he has spoken in terms of the allegations contained in the complaint. He deposed that he is the owner of KL-01/4122 and the vehicle has been hypothecated to the second opposite party. He also stated that the first opposite party has issued a policy in respect of the vehicle covering the period from 17.7.1990 to 15.7.1991 and the vehicle was stolen on 10.1/91. He lodged a complaint before the Police. However the vehicle could not be detected. He also proved the First Information Report Exbt. P-1 and also the report made by the Police stating that they could not detect the accused. Exbt. P-2 is the said report. Exbt. P-3 is the photocopy of the registration certificate and Exbt. P-4 is the photocopy of the goods carriage permit. He stated that Exbt. P-5 claim was made before the first opposite party. He also produced a copy of a letter Exbt. P-7 addressed to the Forest Range Officer, Palode, which is marked to the complainant for information. What is stated there is that the Insurance claim for the vehicle will not be released, to the owner of the vehicle as re-quired as per the letter of the Forest Range Officer dated, 27.7.1991. Demand notice issued by the second opposite party in regard to the instalments due from the complainant is also produced. He also stated that inspite of the repeated request made by the complainant his claim was not settled by the first opposite party. There is no cross-examination of the witness on the point that the vehicle was subject matter of theft and there was a crime registered before the Nedumangad Police Station and that report was made by the Police Station that the crime was undetected. P.W-2 is now the Circle Inspector of Police, Air Port, Trivandrum. He has stated that in January/91 he was Circle Inspector of Nedumangad Police Station and a Crime No. 9/ 91 was registered and investigated by him and Exbt. P-1 is the FIR. He stated that the first information was given by the complainant and the allegation in the complaint was that KL-01/ 4122 was stolen. Though investigation was conducted, the vehicle could not be traced. He further stated that the Police was satisfied that the allegations in the complaint before police are true. As against this, there is only evidence of R.W-1. He proved Exbt. R-1 and R-3 which are the communications sent by the Forest Range Officer, Palode stating that the vehicle bearing Registration No. KL-01 /4122 was used for illicit transport of timber by Mr. Rasheed, the owner cum driver of the lorry and he has recommended for confiscation of the lorry under Section 61-A of the Kerala Forest Act and therefore the claim of the complainant may not be settled. He also indicated the reason for not honouring the claim was the request contained Exbts. R-1 and R-3. In the cross examination he stated that the first opposite party has not called for any report from the Police Officers. He also admitted that according to the records the vehicle of Rasheed was stolen. He also stated but for the letters Exbts. R-1 and R-3, the claim would have been honoured. Exbt. P-9 was put to him which is a copy of the notice issued to the complainant. He stated that document related to lorry bearing Registration No. KL-01/4122. He stated in answer to question whether the proceedings initiated by the Forest Department are against a different vehicle he stated he cannot say without looking into the records. It can be seen from the above the only defence taken by the first opposite party for not honouring the claim is the request contained in letters sent by the Forest Range Officers. The evidence of P. W-2 and the documents produced would show that the vehicle KL-01/4122 was stolen and inspite of the efforts of the Police they could not trace out the vehicle. It is also clear from the evidence of PW-2 that the Investigating Officer was satisfied that the allegations contained in the complaint that the vehicle was stolen is true. Learned Counsel for the complainant pointed out that pursuant to Exbt. P-9 notice issued, the complainant appeared before the D.F.O., and explained that he was the owner of the KL-01 / 4122 and the vehicle involved in the Forest Offence was different vehicle and that thereafter no proceedings have been taken to the knowledge of the complaint against the complainant. No vehicle was seized in connection with Forest Offence. In this connection it is pertinent to notice that it is only D.F.O., who is competent to initiate proceedings under Section 61A of the Kerala Forest Act. The D.F.O., has not addressed the first opposite party requesting not to release the amount of Insurance claim of the complainant. In these circumstances we are unable to find any valid justification for the first opposite party not to release the insurance claim of the complainant. It has been brought out that the vehicle was purchased by the complainant by raising loan from the Kerala Financial Corporation. The second apposite party has initiated proceedings for recovery of the amounts due to them. Any delay on the part of the first opposite party to release the claim would stand in the way of the complainant discharging the liability in as-much as the lorry was lost and it would be difficult for the complainant to meet the demand in the absence of income by hiring the vehicle. In the circumstances we are of the view that the first opposite party has no valid repudiate the claim merely on the ground that he received Exbts. R-1 to R-3. It is admitted that the first opposite party did not make any enquiry from the Police as to the fact of loss of vehicle though in the version, the first opposite party stated that the allegations that the vehicle was stolen is false. As a matter of fact, the evidence of P.W-1 and P.W-2 clearly proved that the vehicle was stolen and allegation contained in the complaint is true. For the above reasons we hold that there is deficiency in service on the part of the first opposite party in not releasing insurance claim of the complaint. Point No. 1 is found in favour of the complainant.

THE next question to be considered is what is the relief to which the complainant is entitled. THE complainant is entitled to the insurance claim covered by the policy. Though when the complaint was filed it may not be possible to grant the above relief and we could have only awarded compensation, under the Act as amended by Consumer Protection Amendment Ordinance, 1993, this, Commission has jurisdiction to direct the removal of the deficiency. We, therefore, direct the first opposite party to release the insurance claim of the complainant within a period of one month from today. THE complainant is not entitled to get any relief against 2nd opposite party. In the circumstances we direct the parties to bear their own respective costs. Complaint allowed.