JUSTICE SRI. K.R. UDAYABHANU : PRESIDENT
Appellant is the 1st opposite party/Insurance Co. in CC.118/09 in the file of CDRF, Kasargod. The appellants are under orders to pay a sum of Rs.3,00,000/- with interest at 9% from the date of complaint and cost of Rs.3000/-.
2. It is the case of the complainant who is RC owner of 2008 (sic 2007) model Hyundai Santro Car that he entrusted the vehicle to the 2nd opposite party on 10.6.08 as he represented that he wanted the car to attend the marriage of his relative. According to him the car was not returned. It was found that the 2nd opposite party has absconded and the residence is seen closed. He filed a complaint before the JFCM, Kasargode. The Kasargode police have registered the case under section 406 IPC vide crime No.526/08. It is stated that he informed the Insurance Co. about the incident in time and the opposite parties advised him to wait till the police complete the investigation and that the claim will be considered only after 6 months from the date of loss of the vehicle. Hence the complainant approached the opposite party after 6 months. Thereafter he issued a lawyer notice on 3.4.09 to which they have replied raising untenable contentions. A written application was given on 3.3.09 for claim form. The opposite parties have not issued the claim form. He has sought for the value of the vehicle ie, Rs.3,41,233/- which is declared value of the vehicle and also for compensation of Rs.25000/-.
3. In the version filed the 1st opposite party Insurer has denied the allegation of the complainant that the entire incident was intimated in time and that they advised to wait till completion of the police investigation. It is also denied that they refused to provide the claim form. The claim form was given to him on 2.3.09. The claim was repudiated on the ground that the Company shall not be liable in respect of claim arising out of any contractual liability under general exception No.2 of the policy. It is pointed out that the terms and conditions as per which the vehicle was entrusted to the 2nd opposite party is known only to the complainant. It is evident from the complaint filed before the Magistrate that the 2nd opposite party took the car for a pleasure trip for 2 weeks and did not return the same to the complainant. The offence alleged is only breach of trust. Insurance Co. is not liable in respect of any claim arising out of any contractual liability.
4. The evidence adduced consisted of proof affidavits filed by respective sides; Exts.A1 to A9 and B1 to B3.
5. The Forum has allowed the complaint on the ground that as per the policy the insurer is liable to indemnify the insured against loss or damage of the vehicle by burglary, house breaking or theft, by accidental external means and by malicious acts etc. The action of 2nd opposite party in the instant case is nothing but a malicious act and hence it was held that the opposite parties are liable to indemnify the complainant.
6. The counsel for the appellants has stressed the point that as per the clause No.1 of the conditions of policy the complainant was bound to intimate the opposite party immediately. The decision of the National commission in first Appeal 321/05 dated 9.12.09 in New India Assurance Co.Ltd. Vs. Trilochan Jane was relied on by the counsel for the appellant. Therein the National Commission has held that the insurance company is not liable although therein the delay to intimate was only 9 days. It was the case of theft of the vehicle. The National Commission has held that the word âimmediatelyâ meant prompt, and without any delay and with all convenient speed after examining the meaning and connotation of the term in various legal and other dictionaries. The National Commission therein has also relied on the judgment of the Supreme Court in United India Insurance Co. Vs. M/s Harchand Rai Chandan Lal, JT 2004(8) SC 8 that terms of the policy have to be construed as it is and nothing can be added or subtracted from the same. The National Commission in the above case has held that in the context of the theft of the car the word âimmediatelyâ is to be construed strictly to make the insurance company liable to pay compensation. National Commission absolved the Insurance Company from paying compensation in the above case. In the instant case we find that in Ext.A6 repudiation letter the only ground mentioned is that the Company is not liable as the claim arose out of contractual liability and hence not liable under general exception No.2 of the policy. We find that the case of delay in intimating insurer was also not raised in the version filed although there is a delay of about 6 months in intimating. The opposite party is not entitled to raise a contention that has not been mentioned in the representation letter.
7. The contention that claims has also out of contractual liability between the complainant and another and that the same is excluded as per clause 2 of general exceptions was not considered by the Forum. The case of the complainant is only that the 2nd opposite party who was his close friend requested for his vehicle to attend the marriage of his relative at Bangalore and thereafter he did not return the vehicle. In Ext.A2 complaint filed before the JFCM it is mentioned that he asked for the vehicle after 2 weeks and thereafter the 2nd opposite party absconded along with the vehicle. We find that there is no scope for treating the above transaction as a contract as there is no consideration and hence the contention that on claim arose out of contractual liability cannot be sustained.
8. As per Ext.B3 policy the company has undertaken to indemnify the insurer against loss or damage of the vehicle by burglary, house breaking or theft etc. and by malicious act vide section 1(vii) of policy. Evidently the act that involved comes within the amplitude of âmalicious actâ. Hence the above contention of the appellant is liable to be rejected . It is seen from Ext.A9 RC book that vehicle is 2007 model. The date of purchase is 17.1.2008. The alleged incident is dated 10.6.08. Criminal case was filed on 19.7.08 as can be seen from Ext.A3 FIR. The matter was intimated to the Insurance company apparently just before 3..4..09.. Being a 2007 model vehicle we find that the depreciation of Rs.40000/- is inadequate. We find that it would be appropriate and reasonable to treat the resale value of the vehicle as 2.5lakh.
9. In the result the order of the Forum is modified as follows. The first opposite party Insurer will pay Rs.2,50,000/- towards the assured sum. The direction to pay interest at 9% from the date of complaint is modified to pay the interest at 7% from the date of complaint. The direction to pay cost of Rs.3000/- is sustained.
10. In the result the appeal is allowed in part as above.
Office will forward the LCR along with the copy of this order to the Forum.