ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not paying the insured amount due to the theft of vehicle by repudiating the insurance claim and for payment of the insured amount of Rs.6,00,000/- in respect of the stolen vehicle KA 43-0350 and for Rs.2,00,000/- as damages for causing mental agony, harassment and cost and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant obtained insurance to his motor vehicle(Tata lorry) bearing No.KA 43-0350 at Nanjangud Branch office of OP.  The period of insurance was from 26.10.2013 to 25.10.2014. The lorry was purchased under hire purchase agreement with one M/s SLV Investments and executed a hire purchase agreement on 24.10.2013.  The said vehicle was stolen on 25.03.2014 and immediately the jurisdictional police was reported.  Due to the Loksabha Election during that time, the police officers were involved in the election duty requested him to come after 10 to 15 days and then only they will receive the complaint to take necessary action.  The same was orally informed.  Complainant also took measures to search out the vehicle but could not trace the same. On 19.04.2014 he lodged a complaint with Mico layout police station regarding the theft of the vehicle and the police registered a criminal case in crime No.263/2014. He also informed the OP the insurance company regarding the insurance and theft of the vehicle by writing a letter on 05.05.2014 along with copy of the FIR.  

3.      He also gave a representation on 16.05.2014 to the RTO at electronic city Bangalore, intimating that M/s SLV investments have no objection to issue surrender letter.  Another letter was also given on 28.04.2015 that he has no objection to transfer the said vehicle to the name of the insurance company.  On 30.05.2018, OP informed that they are not in a position to allow the claim of the complainant in respect of theft of the vehicle and repudiated his claim on the ground that there was a delay of 1½ month in informing the theft of the vehicle, which is in violation of the terms and conditions of the insurance policy.  The act of repudiation by OP is illegal, unacceptable and unsustainable in the eye of law.  The complainant had executed a GPA on 24.10.2013 in favour of M/s SLV investments in respect of the said vehicle and hence the GPA holder of the complainant has filed this complaint for deficiency in service against OPs.

4.      OP took 3½ years to repudiate the claim and to intimate him regarding the repudiation.  He immediately acted as a prudent man in informing the police regarding the theft of the vehicle whereas the police did not receive the complaint due to the oncoming elections.  Not honoring the claim of insurance, has caused him mental agony, financial loss which amounts to deficiency in service and hence prayed the commission to allow the complaint and order OP to pay Rs.6,00,000/- towards the insurance of the vehicle, Rs.1,00,000/- as compensation towards mental agony, Rs.1,00,000/- towards deficiency in service and also for the cost of the litigation.

5.      Upon the service of notice, OP appeared before the Commission and filed the version contending that the complaint is not maintainable either in law or on facts and also denied the fact that the complainant approached the police immediately after the theft of the vehicle and they informed him to come after 10 to 15 days.  It is contended that the fact of filing the complaint to the police and the police registering the FIR had to be proved by the complainant. It has also denied the contention that the complainant has surrendered the RC to the RTO in favour of the OP.  OP has denied all the allegations made against it in each and every para of the complaint besides contending that the GPA executed by the complainant in favour of SLV Investments is false and do not have any force in law.  

6.      It is further contended by OP that the complainant has filed this complaint with a fraudulent intention and has made the complaint much belated after the alleged incidence of theft.  He has not mentioned as to what efforts he has made to trace the vehicle.  The price of the vehicle was only Rs. 3,00,000/- as mentioned in the complaint, whereas he is claiming Rs.6,00,000/- from them, making cock and bull story and wanted to get the compensation by hook or crook.  It has also denied that the complainant informed them regarding the theft of the vehicle.  The complainant has not made the claim with OP within the reasonable time and no intimation was given to it immediately after the theft of the vehicle. Hence prayed the commission to dismiss the complaint.

7.      It has also filed additional version contending that the hire purchase agreement is of commercial nature and as such the complainant or the GPA holder cannot be a consumer under the C.P. act and the said power of attorney do not empower the complainant to file the complaint.  The said vehicle was also financed by Meghalaya Rural Bank, Bangalore branch at the time of obtaining the policy from OP and further the registration certificate discloses that the same was hypothecated to M/s Sriram Transport Finance Company limited, Rajath Complex, B.M. Road, Hassan. Hence these persons are necessary parties to the proceedings and since they are not made as parties, the complainant suffers for non joinder of necessary parties and hence prayed the commission to dismiss the complaint.

8.      In order to prove the case, both parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant i.e., Balakrishna is the owner of vehicle No.KA 43-0350. He has also produced his driving licence as Ex.P4.  Ex.P1 and P17 are the power of attorney issued by complainant in favour of M/s SLV Investments Pvt. Ltd., Wilson Garden Bangalore.

        11.   The contention of counsel for OP is that this is not a proper power of attorney to the power of attorney holder to file the complaint. On perusing the same at condition No.7, it is mentioned that 7, and generally to do perform execute all acts deeds, matters and things relating to or concerning or touching these presents as fully and effectively as if I/we were personally and had been done performed, executed the same myself/ourself and we agree to ratify and confirm all and whatsoever the owner/board shall do or caused to be done in or above the premises by virtue of presents”.

        12.   Further, OP cannot question the power of attorney or the holder of power of attorney in filing the complaint as, as per the provisions of Consumer Protection Act, even an authorization letter to file the complaint on behalf of the complainant would be sufficient as held by the Hon’ble Supreme Court of India in Civil Appeal No.1868/1968 Timblo Irmaos Ltd., Margo –vs- Jorge Anibal Matos Sequeira and another.

        13.   Further, an authorization letter has also been issued by SLV investments authorizing one S.N.Venkatesh Babu, to proceed with the complaint in respect of the theft of the vehicle KA 43 0350 and to claim the insurance and also authorized to appear before the Consumer Commission, Bangalore, in the complaint and to appoint the advocates.

        14.   When such being the case, the contention of OP that the GPA holder i.e., SLV investments and further its authorized person has no authority to file this complaint cannot be accepted. The Hypothecation Agreement is also produced which is marked Ex.P3.  Ex.P5 is the insurance document, wherein vehicle bearing No.KA 43-0350 has been insured in the name of complainant and the insured value of the vehicle is Rs. 6,00,000/-.  Ex.P6 is the copy of the complaint given to the MICO police station who registered the FIR as per Ex.P7, wherein it is mentioned that he had parked the vehicle in front of Srinivasa Choultry at Bilekahalli, Bangalore at about 12.30 am., on 25.03.2014 and had been to take dinner and when he returned, the lorry was not found and hence as there was hypothecation of the said vehicle, there was some delay in obtaining letter from them. It is mentioned therein that the model of the vehicle is 2005 and the amount is about Rs.3, lakhs.  After filing of the FIR, the police have filed a charge sheet, C report, wherein it is mentioned that the vehicle as well as the accused not traceable and the same was accepted by the VI ACMM, Bangalore.  Upon the claim made by the complainant regarding theft of the vehicle and also intimating the OP and the police, OP has sought some documents to be produced.  From this, it becomes clear that the vehicle was registered with the RTO and insured with OP and the same was stolen by some unknown persons and upon the complaint made the police could not trace the vehicle as well as the person who stole the vehicle.  Ex.P16 is the vehicle particulars i.e., B register extract. P17 is the power of attorney executed by the complainant in favour of the partners of SLV investments. 

15.   The only contention of the OP in repudiating the claim is that there is delay in reporting the matter to the police as well as to the OP which is in violation of condition 1 of the insurance policy, except the same there is no other defence taken by the OP in the version.  The counsel for the complainant has relied on the following decisions.

1. Con Décor Rep. by its Manager –vs- Smt.Smritikana Ghose & another (2002 SCC Online NCDRC 20)
2. Dr.Varinder Pal Singh –vs- Gurudev Singh (Rev. Petition No.60/2020, State Consumer Disputes Redressal Commission, Punjab)
3. Darshan Singh Gill –vs- Manohar Infrastructure (Consumer Complaint No.76/2018, State Consumer Disputes Redressal Commissio, Chandigarh)

16.   On perusing the same, the same is applicable to the facts and circumstances of the present case. Repudiation solely on the ground of delay in intimating the theft of the vehicle to the police and to the insurance company cannot be a sole ground when the claim of the complainant is genuine.  

17.   In this case also, OP has failed to prove the in genuinity of the claim of the complainant regarding theft of the vehicle.  Further it is to be noted here that even though the complainant made the claim in the year 2014 itself, OP took sweet 3½ years time to reject the claim of the complainant, which shows the efficiency and commitment to the cause.  Hence we are of the opinion that rejection /repudiation of the claim by the complainant amounts to unfair trade practice and also deficiency in service and hence answer point No.1 in the affirmative.

18.   POINT NO.2:

19.   Further as pointed out above, in the insurance document the said vehicle was insured for Rs. 6,00,000/-.  When such being the case, when the said vehicle is stolen and the same could not be traced as per the C final report filed by the concerned police to the magistrate, who has accepted the same, it is the bounden duty of the OP to indemnify the loss to the complainant by paying the said amount of Rs. 6,00,000/- along with interest at 12% p.a., on the said amount from the date of intimation of the fact of theft of the vehicle to the OP i.e., 05.05.2014. Act of OP made the complainant to approach this Commission by appointing an advocate to proceed with the case, for which he has paid his professional fee and also incurred incidental expenses, which we quantify it at Rs.10,000/- which is to be paid as litigation expenses by the OP to the complainant.  Further the act of OPPOSITE PARTY in not taking decision for 3½ years from the date of claim/intimation put the complainant into mental harassment and agony and financial hardship for which we direct OP to pay a sum of Rs.50,000/- as compensation and answer point NO.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay Rs. 6,00,000/- along with interest at 12% p.a., on the said amount from the date of intimation of the fact of theft of the vehicle to the OP i.e., 05.05.2014.
3. OPPOSITE PARTY is further directed to pay a sum of Rs.10,000/- towards litigation expenses and Rs.50,000/- towards compensation to the complainant.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 12^TH DAY OF MAY 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Original power of attorney executed by the complainant Balakrishna in favour of SLV Investments, whom I am representing

Ex P2: Authorisation letter given by the SLV investements

Ex. P3: Hire purchase agreement executed between the complainant and the SLV investments

Ex P4: Extract of the Driving License issued by the Transport Department in favour of Balakrishna

Ex P5: Copy of the insurance company

Es P6: Copy of the complaint

Ex P7: FIR

Ex P8: Charge sheet

Ex P9: Order sheet

Ex P10: Letter seeking no-objection  written by the complainant to the RTO

Ex P11: claim application by the complainant to the insurance company (2 in Nos.)

Ex P12: Documents given by the RTO on the application filed under Right to Information Act

Ex P13: Letter seeking no-objection to issue surrender letter written by SLV investments

Ex P14: Repudiation letter issued by the insurance company

Ex P15: The endorsement issued by RTO Hassan

Ex P16: B Register extract

Ex P17: GPA issued by Sri.B.A.Balakrishna

Ex P18: Letter issued by RTO

Ex P19: Certificate of Registration

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: SMT.UMA S.,

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the insurance policy along with standard form for commercial vehicles package policy with terms and conditions.

MEMBER                 MEMBER                       PRESIDENT

HAV*