Per Mr.B.S.Wasekar, Hon’ble President

1)                The present complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986. According to the complainant, her husband owned Truck bearing No.MH-12-DT-9486.  The same was stolen on 5^th August, 2010 therefore F.I.R. was lodged.  Her husband died on 7^th September, 2011. She is a legal heir.  Insurance claim was submitted but the same was not satisfied therefore she has filed this complaint for recovery of insurance claim of Rs.8,51,561/- with interest.  She has also claimed compensation of Rs.50,000/- for mental agony and cost of litigation of Rs.50,000/-.

2)                The opponent appeared but failed to file written statement therefore the matter was proceeded without the written statement of the opponent. Revision was preferred against the no written statement order.  The Hon’ble State Commission directed the opponent to pay cost of Rs.25,000/- and file written statement on or before 9^th April, 2014.  The opponent failed to file written statement before the 9^th April, 2014 therefore the matter was proceeded without the written statement of the opponent. 

3)                The complainant filed her affidavit of evidence and produced the copies of documents.  There is no dispute that the vehicle was insured and the policy was in force on the day of theft.  As per the F.I.R., the vehicle was stolen and police submitted ‘A’ summary. Original vehicle owner is no more.  The complainant is the wife of original vehicle owner.  She is the legal heir therefore she is entitled to file this complaint. As the insurance policy was in force, the opponent is liable to compensate the complainant. As per policy, IDV of the vehicle is Rs.8,51,561/-.  The opponent is liable to satisfy the claim upto the IDV.  The learned advocate for the opponent has pointed out that the vehicle was hypothecated to Magma Fincorp Limited. The finance company is entitled to recover the claim therefore the complainant can not claim the entire amount.  The learned advocate for the opponent has placed reliance on the judgment of Hon’ble Supreme Court in the Case of M/s.Krishna Foods & Baking Industry Private Limited –Versus- M/s.New India Assurance Company Limited reported in The Punjab Law Reporter Vol.CLIII-(2009-1) Page No.538.  In para 29 of the judgment, the Hon’ble Supreme Court has held as under :

It was, however, submitted that indisputably substantial advance was made to the complainants by the Bank and it was having charge over the property of the Company and of the Mill. It had also a right of lien.  It was, therefore incumbent on the National Commission to uphold the claim of the Bank by directing the Insurance Company to pay the amount to the Bank directly and not to the complainants.  The counsel submitted that the provisions of Section 38 of the Insurance Act and Sections 130 and 135 of the Transfer of Property Act are clear on the point.  The point is also covered by a decision of this Court. The National Commission was, therefore, wrong in rejecting the prayer of the Bank and both the appeals of the Bank should be allowed. 

In the instant complaint before us also the complainant has not disputed that the vehicle was hypothecated to Magma Fincorp Limited.  In view of the above law laid down by the Hon’ble Supreme Court, Finance Company is entitled for the claim.  After satisfaction of the claim of the Finance Company, the complainant is entitled for the balance amount.  Finance Company is not before this Forum.  However, the complainant may request the Finance Company to submit its claim to the opponent.  After satisfaction of the claim of the Finance Company the opponent shall pay the balance amount to the complainant. The complainant has also claimed compensation of Rs.50,000/- for mental agony. The opponent failed to pay the claim inspite of demand thereby the complainant suffered from mental agony.  We think compensation of Rs.10,000/- is reasonable. Besides this, the complainant is entitled for cost of this proceeding Rs.5,000/-.  Hence, we proceed to pass following order.

ORDER

1. Complaint is allowed.

2. The opponent is directed to pay Rs.8,51,561/-(Rs.Eight Lakhs Fifty One Thousand Five Hundred and Sixty One Only)to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint i.e. 26^th September, 2012 till realization.

3. The opponent shall satisfy the claim of the Finance Company first and pay the balance to the complainant if any.

4. The opponent is also directed to pay Rs.10,000/- (Rs.Ten Thousand Only)to the complainant as compensation towards mental agony.

5. The opponent is further directed to pay Rs.5,000/- (Rs.Five Thousand Only) to the complainant as cost of this proceeding.

6. The above order shall be complied with within a period of one month from today.

7. Copies of this order be sent to parties free of cost.

   Pronounced

   Dated 8^th July, 2014