IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of October, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 42/2012 (Filed on 01.03.2012)
Between:
Shibi,
Shibi Bhavan,
Pallickal P.O., Adoor,
Pin – 691 523. … Complainant.
(By Adv. Blesson Sam)
And:
1. Divisional Manager,
M/s. National Insurance Co. Ltd.,
Divisional Office, Nelson Complex,
Puthiyidom,
Kayamkulam – 690 502.
(By Adv. P.D. Varghese)
2. Thomas Jose,
Vallattoor Puthen Veedu,
Perumpulickal Muri,
Pandalam Thekkekara Village,
Adoor Taluk.
3. Manager,
Mahindra & Mahindra Finance
Service Ltd., Kunnathu-
Building, St. Peter’s Junction,
Pathanamthitta. … Opposite parties.
(By Adv. Hari. V.R.)
ORDER
Sri. N. Premkumar (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant is the registered owner and possessor of Maruti Alto Lxi car with registration No. KL-03M-1361. He has been working abroad and come to his native place once in 2 years only. The vehicle has got hypothecation with the third opposite party as he availed loan facility from them. The first opposite party is the insurer of the vehicle. On 26.06.2008 the second opposite party who is a friend of his brother-in-law came to his house and asked the car to go for a marriage and believing him his mother has given the key of the car. Complainant has not presented at home at that time. The car was kept in the courtyard of the house and second opposite party has taken the car and driven it and went away with the car.
3. When the complainant reached the house, his mother told him at second opposite party has taken the car. Complainant felt doubt about the acts of the second opposite party. Complainant on 27.06.2008 going to the second opposite party’s residence and came to know that the second opposite party or the vehicle is not there in the residence. On a detailed enquiry, complainant and his brother-in-law came to know that the second opposite party used to commit theft of the vehicle and has sold the same at Chavakkad near Thrissur. Complainant has filed a complaint before the Adoor Police against the second opposite party. After that, complainant on 18.12.2010 lodged a complaint before the Judicial First Class Magistrate Court, Adoor and thereby Adoor Police registered a case against the second opposite party as Crime No. 13/2011. Complainant asked the first opposite party many times to pay the insured amount, but they have not paid any amount till date. Hence this complaint for getting the insured amount with cost.
4. Opposite parties 1 and 3 entered appearance and filed separate versions. Second opposite party has not yet appeared. Hence they were declared as exparte.
5. According to them the first opposite party, complaint is not maintainable either in law or on facts. Complainant was not reported the alleged theft to the concerned Police Station promptly. Though a case was registered on filing a private complaint before the Judicial First Class Magistrate Court, Adoor, the outcome of the case is not known. The police is investigating the case and it is every chances of the recovery of the stolen vehicle. Until the police filed a report stating that the vehicle is not traceable, the complainant has no cause of action against the first opposite party. Complainant can lodge a claim with them only after filing of the final report by the police. In this case, complainant neither has applied for a proper claim nor repudiated the same. Therefore, there is no cause of action to file this complaint. Hence it is premature.
6. According to the insured is to inform the insurer regarding the theft if any of the vehicle without delay. In this case no such information is given to them. The complainant has approached this Forum before approaching them. On this ground also the complaint is not maintainable. The case of the complainant is that the vehicle was handed over to 2nd opposite party, a friend of his brother-in-law and subsequently the vehicle was not returned. So the complainant ought to have taken action against 2nd opposite party for the recovery of the vehicle or in the alternative its value. Without adopting this legal steps the complainant directly approached this Forum for getting the value of the vehicle. Even if the complainant has any cause of action that is only against 2nd opposite party. Moreover this complaint is barred by limitation. The alleged incident occurred on 26.06.2009, whereas this complaint is filed in the month of February 2012, which is clearly beyond the period of limitation prescribed in the Consumer Protection Act. Highlighting the above said reasons 1st opposite party canvassed for the dismissal of the complaint.
7. 3rd opposite party filed version stating that they working as a public limited company having its registered office and the company is registered under Indian Companies Act, 1956. The registered office is at Mumbai and carrying on business at Pathanamthitta through its Pathanamthitta Branch. This opposite party is the branch of the Mahindra & Mahindra Financial Services Ltd., Appollo Bunder, Worli, Mumbai and the complainant has entered into the contract with the Mahindra & Mahindra. Hence the head office is a necessary party to this complaint. Hence this complaint is bad in non-joinder of necessary parties.
8. Complainant has failed to mention that what kind of deficiency in service is committed by this opposite party. The complainant is a defaulter in repaying the monthly instalments and he is liable to compensate this opposite party for the losses happened to the hypothecation agreement entered between the complainant and this opposite party. The allegations of theft made in the complaint are not known to this opposite party. This opposite party has given loan to the complainant for purchasing the vehicle. The complainant is purposefully evading from repayment of loan amount and unnecessary instituted this false complaint. Hence they canvassed for the dismissal of the complaint with their cost.
9. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the
Forum?
(2) Whether the reliefs sought for in the complaint are
allowable?
(3) Reliefs & Costs?
10. Evidence of the complaint consists of the oral deposition of PW1, the proof affidavit of opposite parties 1 and 3 and marked Exts.A1 to A4, B1 and B2. After the closure of evidence, both parties were heard.
11. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant’s power of attorney holder filed proof affidavit along with certain documents. She was examined as PW1 and the documents produced were marked as Ext.A1 to A4. Ext.A1 is the power of attorney filed by the complainant. Ext.A2 is the original R.C. Book of the complainant’s vehicle. Ext.A3 is the insurance policy certificate. Ext.A4 is the records in Crime No.13/11 of Adoor Police Station.
12. In order to prove the opposite parties 1 and 3’s contention authorized representatives filed proof affidavit along with certain documents. Documents produced were marked as Ext.B1 and B2. Ext.B1 is the power of attorney by the representative of 3rd opposite party. Ext.B2 is the true copy of the policy with conditions.
13. 1st opposite party’s contention is that complainant neither reported the incident of theft to police promptly nor lodged claim with them. Since claim has not submitted the question of repudiation not arises and complaint itself is premature. According to 3rd opposite party, they financed the complainant for purchasing the vehicle by hypothecation agreement. Complainant purposefully evading from repayment of loan and unnecessarily instituted this complaint.
14. It is seen that there is no dispute regarding the validity of policy. The dispute is that complainant has not filed any claim and this complaint is not based on repudiation. Ext.A4 reveals that a crime has registered and investigation had conducted by the Adoor Police and U.N. Report also filed to the concerned authority.
15. From the overall facts and circumstances and the available evidence on record, it is learned that complainant has failed to produce any repudiation letter to prove the denial of claim. Therefore, 1st opposite party’s contention regarding the non-compliance of filing claim form presumed to be true. Hence we cannot find any deficiency of service against opposite parties and this complaint is found premature and not allowable.
16. However, the complaint is at liberty to file claim form before the 1st opposite party within 15 days from the date of receipt of this order and also the 1st opposite party is directed to accept the same without considering the delay and dispose of it as per rule at the earliest if the complainant establishes a genuine claim as per the terms and conditions of the policy in question.
17. In the result, complaint is disposed accordingly. No cost.
Declared in the Open Forum on this the 29th day of October, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Shiji. S
Exhibits marked on the side of the complainant:
A1 : Power of attorney executed by the complainant in favour of
Smt. Shiji dated 27.08.2012.
A2 : Original R.C. Book of the complainant’s vehicle.
A3 : Insurance policy certificate.
A4 : Records in Crime No.13/11 of Adoor Police Station.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties:
B1 : Photocopy of power of attorney by the representative of 3rd
opposite party.
B2 : True copy of the policy with conditions.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Shibi, Shibi Bhavan, Pallickal P.O., Adoor,
Pin – 691 523.
(2) Divisional Manager, M/s. National Insurance Co. Ltd.,
Divisional Office, Nelson Complex, Puthiyidom,
Kayamkulam – 690 502.
(3) Thomas Jose, Vallattoor Puthen Veedu,
Perumpulickal Muri, Pandalam Thekkekara Village,
Adoor Taluk.
(4) Manager, Mahindra & Mahindra Finance
Service Ltd., Kunnathu Building, St. Peter’s Junction,
Pathanamthitta.
(5) The Stock File.
Henc
