UNITED INDIA INSURANCE CO LTD vs Senthilkumar

THE opposite parties in C. O. P. No. 268/2001 on the file of the District Consumer Disputes Redressal Forum, Tirunelveli, are the appellants herein. The case of the complainant was as follows: (a) He purchased a Mahindra van under loan from Indian Overseas Bank, Tenkasi at 16% interest on 7. 9. 2000. It was insured with the opposite parties during the period 11. 9. 2000 to 10. 9. 2001. On 7/8. 3. 2001 the vehicle was stolen. This was reported to Tenkasi Police Station. FIR was lodged and it was registered as Crime No. 130/2001. The police informed the complainant that the vehicle had been trace and asked the complainant to get it from the Magistrate''s Court. The complainant made an application to the Magistrate for custody of the vehicle. The Court dismissed the petition stating that the registration number, the colour of the vehicle, the engine number and chassis number produced in Court differed from the complainant''s vehicle alleged to have been stolen. There was a separate engine inside the van which tallied with the engine number of the stolen vehicle. The Magistrate having come to the conclusion that the stolen vehicle and the vehicle recovered were not one and the same dismissed the petition. The complainant was pressing the opposite parties to pay the insurance amount with interest. There was no tangible reply received. A notice was issued. Opposite party No. 1 sent a reply demanding production of non-traceable certificate from the police and the Criminal Court''s records for the finalisation of the case. There was no condition in the policy about the non-traceable certificate. The order of the Judicial Magistrate, Tenkasi, was also clear. The non-settlement of the claim was deficiency in service.

OPPOSITE party No. 2 filed a version which was adopted by the other opposite parties. The complainant submitted the claim form except the non-traceable certificate from the police and from the Court. It was one of the essential and important documents. In para 9 of the judgment, the criminal Court has held that since he final disposal was not made in the case and that only after elaborate inquiry it could be decided if the said vehicle could be returned to the complainant. The matter was sub judice. The complainant had given a letter dated 30. 5. 2001 to the opposite parties admitting that te point had traced his stolen vehicle that instead of the new engine, an old engine was fixed and that the new engine was also brought in the van. He had stated that some of the parts had been changed. The Magistrate himself had come to the conclusion that the stolen vehicle and the recovered vehicle were not one and the same. It was not correct. To the lawyer''s notice a suitable reply was sent. There was no deficiency in service. Before the District Forum on the side of the complainant Exs. A1 to A5 were marked while on the side of the opposite parties Ex. B1 was marked.

The District Forum held that the vehicle stolen was not the vehicle recovered. It also relied on Ex. B1 letter given by the complainant stating that the material items were changed/replaced in the alleged vehicle recovered and hence it did not correspond with the vehicle stolen which was a brand new one and stolen within 6 months of its purchase. So holding, by order dated 13. 12. 2002 the District Forum directed the opposite parties to pay a sum of Rs. 3,75,000 with interest @ 12% p. a. from the date of claim till payment and a cost of Rs. 1,000. It is as against that the present appeal has been filed.

MR. P. V. Raghavan, learned Counsel for the appellants/opposite parties made the following submissions : The District Forum had failed to note that the complainant had himself admitted in his letter dated 30. 5. 2001 that the vehicle recovered by the police was seen by him that the new engine of his vehicle had been removed and kept in the rear of the van and an old engine had been fitted to the vehicle; also many new parts had been removed as per list provided by him. In Ex. B1 he had requested the insurer to replace the parts that had been removed. This letter would show that the traced vehicle belonged to him and identified by him. Again what had been decided by the Judicial Magistrate was only an interim order. The matter was sub judice before the criminal Court and at a later stage if the vehicle traced was held to be the stolen vehicle, only a claim for stolen parts would arise for consideration of settlement. While in his letter Ex. B1 dated 30. 5. 2001 the complainant had asked for replacement of various parts removed from his vehicle, he had filed the complaint for payment of the total value of the vehicle. This was clearly erroneous. Per contra, Mr. T. S. R. Venkataramana, learned Counsel appearing for the respondent/complainant submitted that the police who have recovered a part of the stolen van, wanted to close the case as if the recovered van was the stolen van. The Insurance Company wanted to wash of their hands saying that the vehicle recovered was the vehicle stolen. That was factually incorrect. The Insurance Company should have cooperated with the police and ensured that the majority of the items was recovered and mitigated the loss, but they did not do so. The accused finally escaped without punishment. The property was not recovered and the only sufferer was the self-employed driver. The Judicial Magistrate also confiscated the partly recovered van to the Government by order dated 23. 12. 2004. The District Forum had rightly directed the opposite parties to pay the value of the van and no exception could be taken to the same.

BEFORE us, the final order in the calendar case was produced. It was decided that the police had not established the crime by the accused and the accused was acquitted. The Judicial Magistrate also directed the vehicle produced to be confiscated to the Government. It is seen from Ex. B1 produced on the side of the opposite parties that the complainant had on 30. 5. 2001 addressed a letter to the Manager of the opposite parties and it is to the effect that on instruction by the Tenkasi Police that the vehicle had been recovered he went and inspected the vehicle that in the vehicle instead of the new engine an old engine had been fixed that the new engine was also kept inside the vehicle that several important parts had been removed and replaced with old parts that except for the removed engine and the body of the vehicle, the rest of the items did not belong to him that it would be difficult to satisfy the bank loan by using the vehicle that the opposite parties should inspect the vehicle and they should replace the old ones with new parts and give their vehicle to him. Thus, the complainant had conceded that what was produced was his vehicel though several parts had been emoved and replaced with old parts except for the body and the engine which was kept inside and not in its place, the rest of the items did not belong to him. But the Magistrate found that the vehicle produced was not the one stolen. We do not know as to what has happned to the case, whether any appeal was filed by the police against the acquittal. So far as the vehicle was concerned, the Magistrate had held that since it was not the stolen vehicle, it should be confiscated to the Government. No doubt, Mr. Venkataramana, relied on the Magistrate''s order and also the other contents of Ex. B1 to the effect that it was practically a situation when a brand new vehicle had been stolen and in the process, his client had been put to inconvenience and he had practically lost the vehicle. It is also to be noted that he had purchased it on loan from the bank and it was his only means of livelihood. In such circumstances, in our view, it would serve the ends of justice, if the complainant is directed to produce a non-traceable certificate from the police and on production of such a certificate, the opposite parties shall pay the complainant Rs. 3,75,000 with interest @ 12% as directed by the District Forum. It should also be noticed that the police is bound by the finding of the Magistrate that the vehicle produced before him was not the one stolen from the complainant and it should not have any second thoughts in issuing a non-traceable certificate to the complainant. Mr. Venkataramana, made a point that the rate of interest charged by the bank was 16% p. a. while the District Forum had granted only 12% p. a. as interest. There is substance in what the learned Counsel submits. It would be just, fair and reasonable that in the event of the complainant producing the non-traceable certificate and making the claim before the opposite parties, the opposite parties shall pay Rs. 3,75,000 with interest @ 16% p. a. as charged by the bank.

THE appeal is disposed of accordingly. There will be no order as to costs. Appeal disposed of.