By Smt. C.S. Sulekha Beevi, President,

1. Complainant is the registered owner of Jeep No.KL10/K 6273 and is represented by his power of attorney. The above jeep was stolen on 27-4-2005 at 10.00 PM from Aravankara, when it was parked by the side of the road in front of the house of Illikkal Moosa Haji. Upon the incident a crime was registered for the offence under Sec.379 IPC by Manjeri Police Station as crime No.287/2005. After investigation police filed final report before the Judicial First Class Magistrate, Manjeri stating the vehicle and case is undetectable. Complainant intimated the theft of vehicle to opposite party and also preferred a claim with all relevant records and details. Opposite party repudiated the claim alleging that complainant has sold the vehicle to another and therefore does not hold title over the vehicle. That the registration Certificate as well as insurance policy stands in the name of complainant. That opposite party has repudiated the claim on unsustainable grounds. That opposite party has committed deficiency in service and hence this complaint claiming Rs.2,00,000/- under the policy with interest @ 12% from 27-4-2005 and compensation of Rs.50,000/- for mental agony and hardships.

2. In the version filed opposite party has not specifically denied the issuance of comprehensive insurance policy in favour of complainant for the vehicle KL10/K 6273. It is submitted that during the relevant time of theft complainant/insurance was not the owner of the vehicle. It is stated that complainant had sold the vehicle to one Hamza who in turn had sold the vehicle to one Illikkal Mohammed. That this Illikkal Mohammed is the first informant in the crime registered for theft of vehicle and he has stated to the police that the vehicle belongs to him. That the sale of vehicle is complete as per Sale of Goods Act and that complainant has not made any application for making necessary changes in the insurance Certificate regarding transfer of vehicle. That transferee of the vehicle who is a third party to the contract is not entitled for benefits unless the policy is transferred to his name. That complainant/insured having violated policy conditions and provisions of Insurance Act is not entitled for any reliefs.

3. Evidence consists of the affidavit filed by power of attorney holder of complainant on behalf of complainant. No documents marked for complainant. Opposite party has filed counter affidavit and Exts.B1 to B4 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

Before entering into the main dispute of repudiation of policy we think that it is necessary to settle the point raised by counsel for opposite party regarding the admissibility of the evidence tendered by power of attorney of the complainant. Counsel for opposite party placed reliance on the dictum laid in Janki Vashdev Vs. IndusInd Bank 2005 (2) KLT page 265 (SC) and contended that the power of attorney cannot depose on behalf of principal in regard to matter on which principal alone can have personal knowledge. It was also submitted that complainant herein who is the R.C. Owner is represented by power of attorney and that the R.C. Owner had sold the vehicle prior to theft of the vehicle and so the power of attorney is incompetent to depose upon these aspects. We are unable to agree with this contention. An authroised agent can conduct a case on behalf of the principal before the Consumer Forum. An agent is defined under Rule 2(b) of Kerala Consumer Protection Rules, 1998 (as amended in 2005) as under:

“'agent' means a person duly authorised by a party to appear and to institute or file any complaint, appeal or revision or other petition or reply and to conduct the same on his behalf before the District Forum or State commission”.

IN VOICE Vs. Tamil Nadu SCDRC 2003 CTJ 682 (CP) NCDRC it was held that there is no prescribed form for authorising an agent. Such authorisation can be in the form of a power of attorney or in a plain paper duly attested. Needless to say this is because Consumer Protection Act intends to protect the poor and helpless consumers by an alternative system of consumer justice by speedy, inexpensive and summary adjudication. It is for the Consumer Forum to decide whether at all cross examination is required or whether the matter can be disposed off on the basis of evidence through affidavit. Thus the procedure to be adopted is more of inquisitorial type and not of the adversary nature adopted in Civil Courts. It was held by Apex Commission in Consumer Education & Research Society Vs. New India Assurance Co. Ltd., decided on 13-12-2007 R.P.No.2721/2007 that technicalities in procedure are not to be encouraged because the only procedure which is prescribed under the Act is to follow the principles of natural justice. The decision relied by counsel for opposite party is rendered with regard to the meaning of the word 'acts' in order III R.1 & 2 of Civil Procedure Code. In our view this decision is applicable to Civil courts where the adjudication is of adversary nature, and we hold that the principle laid there in is not applicable to the inquisitorial procedure before a Consumer Forum. For these reasons we hold that the evidence tendered by the power of attorney of complainant on behalf of complaint by means of affidavit is admissible.

6. The main ground raised by opposite party for repudiation of policy is that complainant/insured has sold the vehicle to one Hamza who in turn has sold it to one Illikkal Mohammed, and that therefore complainant has violated the policy conditions and provisions of Insurance Act. Opposite party placed reliance upon Ext.B1 and B2 documents. Ext.B1 is the First Information Report registered by Manjeri police in crime No.287/2005 regarding theft of the said vehicle. It was submitted by counsel for opposite party that the first informant in Ext.B1 is Illikkal Mohammed from whose custody the vehicle was stolen and that he has stated before the police that he purchased the jeep from Ummer for a consideration of Rs.1,90,000/-. Ext.B2 is the copy of agreement dated, 07-4-2005 between one Hmaza Haji and Illikkal Mohammed. In Ext.B2 it is stated that it is agreed by Hamza Haji to sell the vehicle to Illikkal Mohammed for a total consideration of Rs.1,90,000/- and out of this amount Rs.10,000/- is paid on the date of agreement whereby custody of the vehicle is given to Illikkal Mohammed. It is also stated that the balance consideration of Rs.1,80,000/- is to be paid within 45 days from the date of agreement. It was argued by counsel for opposite party that these documents would show that complainant has sold the vehicle to Hamza Haji who in turn has sold it to Illikkal Mohammed.

7. As against this it was argued by counsel for complainant that the vehicle was not sold and that it belongs to the complainant himself. Admittedly the registration certificate of the vehicle as well as insurance Certificate stands in the name of complainant. Counsel for opposite party relied upon the decisions rendered in 1998 (1) ILR 476 Mathew Thankachan vs. V.G. Manoharan and 1996 (2) KLT page 1018 Sumathy Vs. Raghavan and contended that sale of a motor vehicle is governed by the Sale of Goods Act and the sale is complete when the consideration is paid and the vehicle is delivered irrespective of the fact that the sale has been registered with the Registering Authority or not and that the registration of the vehicle in the name of the transferee is not essential to complete the transfer. While fully agreeing with the position submitted before us the crucial question is whether complainant has sold the vehicle and has received the consideration for sale. Ext.B1 and B2 would not show that complainant has entered into any agreement to sell the vehicle. Even by Ext.B2 the party has not received full consideration. There is no iota of evidence to show that complainant who is the insured cum registered owner of vehicle has received any consideration. We therefore hold that the above decisions are not applicable to the facts and circumstances of this case.

8. When insurance company puts forward a ground of violation of policy condition, it is the burden of the company to prove it. Opposite party has not even specifically stated which is the policy condition or provisions of law violated by the complainant. In the absence of reliable evidence to prove and substantiate that complainant has transferred the ownership of the vehicle and received full consideration we are unable to accept the contention of opposite party that complainant has sold the vehicle and has ceased to be it's owner.

9. This position is settled by Apex Commission in National Insurance Co. Ltd. Vs. Shrawan Bhatti II (2208) CPJ 364 NC where it was held that when no evidence is produced to prove that amount has been exchanged, the insurable interest still lies with complainant, who is the legal owner of the vehicle. The observations of Apex Commission in the above case is reproduced as under:

“Petitioner's stand not to pay the respondent the real registered owner who is the “only insured” and also their stand not to pay Mr. Rajendra Gupta holding that although money has been given to the respondent, insurance policy and vehicle registration have not been done, is nothing but negative approach. One could appreciate if they took the stand to pay one of them. Denying indemnification on mere assumption and presumption cannot be sustained in law. Petitioner litigating endlessly for wrong reasons and causing delays is nothing but apathy and clearly deficiency in service”.

The ratio of the above decision is squarely applicable to this case. For the foregoing reasons we are able to hold that opposite party has repudiated the policy on unsustainable grounds on the basis of assumptions and presumptions, and therefore amounts to deficiency in service. We find opposite party deficient in service.

10. Point (ii):-

Complainant prays for Rs.2,00,000/- as per the policy for total loss with 12 % interest and for compensation of Rs.50,000/-. The Apex Court in Dharmendra Goel Vs. Oriental Insurance Co. 2008 CTJ 917 (SC) (CP) has held that in cases of total loss the IDV has to be taken into consideration. As per Ext.B3 the IDV of the vehicle during the currency of the policy is Rs.2,00,000/-. Therefore complainant is definitely entitled to Rs.2,00,000/- as per the policy. He has to be compensated for the deficiency also. Claim was preferred by complainant on 28-4-2005. The Company has to take a decision upon a claim within a period of three months. In the instant case, the decision of repudiation was informed to complainant on 16-8-2006. We are of the view that interest @ 12% upon the above amount from 16-8-2006 would be sufficient compensation to the complainant for the illegal retention of legitimate amount.

11. In the result, we allow the complaint and order opposite party to pay to the complainant Rs.2,00,000/- (Rupees Two lakh only) together with interest @ 12% per annum from 16-8-2006 till payment along with costs of Rs.1,500/- (Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order.

Dated this 4th day of December, 2008.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Nil

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B4

Ext.B1 : Photo copy of the First Information Report dated, 28-4-2005 prepared

by Sri.P.Raveendranathan, ASI., Manjeri Police Station.

Ext.B2 : Photo copy of the agreement dated 07-4-2005 between Hamza Haji

and Illikkal Muhammed.

Ext.B3 : Certificate cum Policy schedule in the name of complainant with effect

from 01-10-2004 to 30-9-2005.

Ext.B4 : True photostat copy of letter dated, 16-8-2006 by opposite party

to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER