O R D E R

C.K. Lekhamma, Member.

1. The brief facts of complainant's case is as follows:-
The complainant is the R.C. holder of the vehicle No. KL7 AH 6448 Wagon-R car. For transferring the insurance policy of the said vehicle in his name, he has filed an application before the opposite party company on 28-03-07. On 12-04-07, the said vehicle met with an accident. The surveyor of the opposite party company assessed the damage of the vehicle. The complainant submitted claim for Rs. 30,000/- before the opposite party. But the opposite party company did not issue any document to show either the rejection or acceptance of his claim. Hence he filed present complaint.


2. The version of the opposite party is as follows:-
One of the contentions is that the complaint itself is not maintainable under Section 2 C (iii) of the Consumer Protection Act. The vehicle in question was transferred to the complainant on 06-03-07 by the prior owner Abdul Salam. However, the complainant did not opt to transfer the insurance policy in his name within the statutory period of 14 days and the same was changed in his name only on 21-04-07. So at the fateful day, when the vehicle met with the accident, the complainant had no insurable interest over the subject matter and also there was no contract of insurance between the complainant and the opposite party on the above said date. Though the loss quantified by the surveyor was to the tune of Rs. 21,646.21, the opposite party found that the complainant was not entitled to get any claim and accordingly it was repudiated. This was intimated to the complainant by letter dated 14-06-07. Thereafter, in reply to another representation made by the complainant, the opposite party issued another letter dated 04-07-07 and it was received by the complainant on 13-07-07. Hence there is no deficiency in service on the part of the opposite party.


3. The complainant personally appeared before the Forum and the opposite party appeared through the counsel. The complainant was examined as PW1. Exts. A1 to A5 were marked from his side and then evidence closed. No oral evidence advanced from the side of the opposite party. The documentary evidence Exts. B1 to B7 were marked from the opposite party's side. Then evidence was closed and both parties were heard.


4. Points for our consideration are :-
i) Whether the complaint is maintainable?
ii) Whether the complainant is entitled to realize
any amount from the opposite party?
iii) Compensation and costs, if any?


5. Point No. i) :- The opposite party prayed for hearing this point as a preliminary issue. To substantiate that point, the learned counsel for the opposite party submitted that on the date of accident i.e. On 12-04-07, the complainant had no policy coverage. There is no privity of contract between the complainant and the opposite party as the complainant had failed to get its policy in fact transferred in his name within the statutory period as contemplated under Section 157 of Motor Vehicles Act. The policy was transferred in the complainant's name only on 21-04-07 ie. after 44 days of transfer of the ownership of the car and 9 days after the accident. To establish that fact, the learned counsel relied on Exts. B1,B3 and B7 documents. Ext. B1 is the certificate of insurance issued in favour of the prior owner Abdul Salam. Ext. B3 is the certificate of insurance of the complainant. Ext. B7 is the letter issued by the complainant on 21-05-07. As per Ext. B7, the complainant had requested the opposite party to correct the registration number of the vehicle that was mistakenly noted in Ext. A1 document. According to the learned counsel for the opposite party, Ext. B7 itself is sufficient to cut at the very root of the complaint. In the first paragraph of the said document it is mentioned that, in the month of April 2007 the complainant had filed an application through one Mr. Eldhose of Kotak Mahindra to get the insurance policy changed in his name, so, according to the opposite party company, there is ample evidence to show that the averments in the complaint are utterly false.

6. But the complainant opposed the argument by relying on Ext. A1, the certificate of insurance issued in his favour. According to him, in Ext. A1 the registration number of the vehicle was mistakenly noted and hence he filed Ext. B7 letter for correcting the same. And Ext. A1 was issued by the opposite party on the application made by the complainant. Further, he contended that Ext. B1 and B3 cannot be considered since those are concocted documents. Exts. A1 and A4 are having serial number and seal of the office of the opposite party, but in Exts. B1 and B3 do not have such seal and serial number. If these documents are the true copies of Exts. A1 and A5, those will certainly have serial number and seal.


7. Exts. B1 and B3 are produced as the true copies of Exts. A1 and A5 respectively. Exts. B1 and B3 have no serial number and seal as seen in Ext. A1 and A5 documents. Whereas, in Ext. A1 certificate of insurance, the date shown against the column, “Effective time and date of commencement” is 06-10-2006, the corresponding date noted in Ext. B3 document is 21-04-2007. So genuineness of Exts. B1 and B3 documents is doubtful. Hence, we have no hesitation to rely on Ext. A1 as a genuine document which was issued by the opposite party. And hence we cannot place much reliance on Ext. B3 document. The opposite party is the custodian of the relevant documents and has the bounden duty to produce the same to substantiate their contention. If the opposite party's version were correct, the opposite party should have very well produced the documents showing the receipt of application filed by the complainant for transferring the policy. They are the custodians of the register showing the exact date as also in whose name certificate of insurance (Form 51 application) having serial numbers 4510 (Ext. A5) and 0014526 (Ext. A1) were issued, but did not produce the said document for the effective adjudication of the case. Hence adverse inference can be drawn against the opposite party. Even if for the sake of argument, one admits that at the time of accident, there was no coverage. Then the question of why the opposite party company had deputed their surveyor for assessing the damages sustained to the vehicle still remains open.

8. The statutory period mentioned in Section 157 of the Motor Vehicles Act is 14 days in the instant case within that period no accident occurred. It appears that the accident had been occurred within the currency of Ext. A1 certificate of insurance. In the above circumstances, we are not relying on the decision complete Insulations (P) Ltd. Vs. New India Assurance Co. Ltd. (1996 (1) SC 221) submitted by the learned counsel for the opposite party. Moreover, the finding of the Hon'ble Kerala State Commission in K.J. Johny Vs. M/S. United India Insurance Company Ltd., Appeal No. 386/07 dated 03-05-2008 in a similar situation very much support the contentions of the complainant.

1. 9. Point No. ii) :- It is not in dispute that the surveyor has assessed the damages of the vehicle to the tune of Rs. 21,646/- as per Ext. B4 document. The case of the complainant is that since he had incurred Rs. 30,000/- hence the opposite party is liable to indemnify the above amount. The opposite party maintains that if at all any liability is fixed the quantum of the same shall not exceed Rs. 21,646/- vide Ext. B4 survey report.

10. Moreover, the complainant has not produced any evidence to prove that he had incurred Rs. 30,000/-. There is no contrary evidence to disprove the veracity of Ext. B4 survey report. Hence the complainant is entitled for compensation from the opposite party as per Ext. B4 survey report only.


11. Point No. iii) :- In the facts and circumstances of the case, we are not ordering compensation, but the complainant is entitled to get costs of the proceedings from the opposite party.

1. 12. To sum up, the complaint is allowed and it is directed that,

i) the opposite party shall pay an amount of Rs. 21,646/- by way of insurance claim together with interest at the rate of 6% p.a. for the said amount from the date of complaint till realization.
ii) the opposite party shall pay Rs. 1,000/- as litigation costs to the complainant.
The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 16th day of March 2009.

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A.RAJESH

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C.K.LEKHAMMA

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PROF:PAUL GOMEZ