PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
Mr. Ashraf Shaikh has filed this complaint as a Power of Attorney Holder of Mr. Patel Inayatulla Kadar contending that by Power of Attorney dtd.19/12/06, he has duly authorized to file his complaint.
2) It is submitted that Mr. Patel Inayatulla Kadar is the owner of vehicle (Jeep- Bolero XI) bearing registration No.MH-12-D-8922. Mr. Patel Inayatulla Kadar had obtained comprehensive insurance policy for the said vehicle from the Opposite Party bearing Policy No.3001/50011993/02/200 which was for the period form 10/06/06 to 09/06/07. Total sum assured under the said policy is Rs.4,76,302/-.
3) It is submitted that on 17/07/06, while aforesaid Bolero Jeep was proceeding from Panvel Express Highway going towards Pune. At about 3.30 p.m. one motor lorry came from back side and over took the jeep. However, said lorry all of sudden stopped in front of jeep and thereby Bolero Jeep dashed on the back side of lorry. Due to dash jeep was damaged.
4) It is submitted that for the repair of the said jeep an amount of Rs.1,08,776/- was spent. The complainant has produced bills/invoices of the amount spent for repairs of said Jeep. After the incident the claim was lodged to the Opposite Party for compensation. However, Opposite Party refused to pay compensation on false ground. Refusal of claim on false grounds amounts to deficiency in service on the part of Opposite Parties. Therefore, present complaint is filed. The Complainant has requested to direct Opposite Parties to pay Rs.1,08,776/- as a compensation alongwith interest to the Complainant. The Complainant has claimed Rs.50,000/- as compensation for mental agony and cost of this proceeding. In support of the complaint, Mr. Ashraf Ismail Shaikh has filed his affidavit and produced copies of documents as per the list of document.
5) Opposite Party No.1 & 2 have filed their common written statement and thereby resisted Complainant’s claim contending that complaint is false, frivolous and vexatious and deserves to be dismissed with cost. According to the Opposite Parties, Mr. Patel Inayatulla Kadar had obtained insurance policy for the said vehicle as a ‘Private Vehicle’. However, he was regularly using the said vehicle for “hire and reward” i.e. as a ‘commercial vehicle’ and thereby the owner of the vehicle committed breach of the terms and conditions of the policy and therefore, claim for compensation was rejected.
6) It is further submitted by the Opposite Parties that signature appearing on the Power of Attorney document is different from the signature appearing on the other document like Claim Form’ and the ‘admission’ given by said Mr. Patel Inayatulla Kadar and therefore claim has been vitiated by ‘Fraud’. The Opposite Party vide their letter dtd.20/01/07 addressed to Mr. Patel Inayatulla Kadar called upon to explain the said discrepancy in his signature. However, present Complainant Mr. Shaikh vide is letter dtd.19/01/2007 informed that Mr. Inayatulla Kadar Patel was out of India at the time of accident and therefore, he could not come to India for lodging the present claim. It is alleged that the Complainant willfully suppressed the material facts as to stay of Mr. Inayatulla Kadar Patel in India and/or abroad with malafide intention. According to the Opposite Parties, after receipt of claim form M/s. Charter House were appointed as Investigators to find out the facts, who submitted their report dtd.03/08/06. Copy of which is produced alongwith written statement at Exh.IV It is submitted that during the course of investigation it is revealed that Mr. Inayatulla Kadar Patel has 2.5 Acres of farm-land and is earning salary of Rs.3,400/- p.m. as a post man. He had purchased said vehicle for commercial as well as for personal use by obtaining loan from Mahindra & Mahindra. Mr. Inayatulla Kadar Patel admitted in writing that he has purchased the said vehicle for “tourist business as well as for personal use”. The Complainant has suppressed material facts from this Forum and on this ground alone the complaint is liable to be dismissed. The Opposite Parties have denied each and every allegation made against them and also denied liability to pay compensation and cost of the proceeding claimed by the Complainant. According to the Opposite Party, complaint deserves to be dismissed with cost. Alongwith written statement Opposite Parties have produced copies of the documents at Exh. I -VI. Opposite Parties have filed affidavit of evidence. The Complainant has also filed affidavit of evidence. On 06/06/2012, the Complainant has produced document as per list of document. The Complainant has filed written argument. Opposite Parties has also filed written argument.
7) We heard oral submissions of Ld.Advocate Mr.Atmaram Dawane for the Complainant and Ld.Advocate Mr. Alok Bhatt for Opposite Party. It is submitted on behalf of Opposite Party that Mr. Inayatulla Kadar Patel had obtained insurance policy for his Jeep from the Opposite Party so Mr. Inayatulla Kadar Patel is the ‘Consumer’ of the Opposite Party. However, present complaint is filed by Mr. Ashraf Ismail Shaikh, on the basis of so call Power of Attorney dtd.19/12/06, which is a forged document. Complaint is not singed by the Consumer Mr. Inayatulla Kadar Patel and therefore, present complaint is not maintainable under the Consumer Protection Act, 1986.
8) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether present complaint is maintainable under the Consumer Protection Act, 1986 ?
Findings : No
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted fact that Mr. Patel Inayatulla Kadar is a owner of Bolero Jeep, bearing No. MH-12-d-8922 and for the said Jeep he had obtained comprehensive insurance policy form the Opposite Party which was valid for the period from 10/06/06 till 09/06/07. It appears that during the period of aforesaid insurance policy on 17/06/06 on Panvel Express Highway in an accident the said Jeep was damaged. According to the Complainant, an amount of Rs.1,18,776/- was spent for repairs and subsequently claim for the said amount was submitted to the Opposite Party but Opposite Party repudiated the said claim. Present complaint is not filed by Mr. Inayatulla Kadar Patel who had obtained insurance policy for his Jeep from the Opposite Party. The complaint is filed by Mr. Ashraf Ismail Shaikh as a Power of Attorney Holder of Mr. Inayatull Kadar Patel. The complaint is signed by Mr. Ashraf Ismail Shaikh and not by Mr. Inayatulla Kadar Patel, who is consumer of the Opposite Party.
In Sec.2(1)(b) of the Consumer Protection Act, 1986, definition of “Complainant’s is given as under –
“(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law
for the time being in force; or
(iii) the Central Government or any State Government;
[(iv) one or more consumers, where there are numerous consumers having the same interest;]
(v) in case of death of a consumer, his legal heir or representative,] who or which makes a complaint;
In the definition of Complainant Power of Attorney is not included. In Punjab National Bank V/s. Ramakant Yadava (I) 1997, CPJ 44 at 46: it is held that “a person holding power of attorney has not been included in this definition of Complainant under the Act. Hence, present Complainant is not entitled to file this case as a Complainant under the Act.” In the instant case, present complaint is not signed by consumer Mr. Inayatulla Kadar Patel but this complaint is filed by Ashraf Ismail Shaikh on the basis of Power of Attorney dtd.19/12/06. As mentioned above Opposite Parties have submitted that signature appearing on the Power of Attorney is not of Mr. Inayatulla Kadar Patel and Power of Attorney is a forged document. In view of definition of Complainant given in Sec.2(1)(b), Power of Attorney cannot file complaint under the provisions of the Consumer Protection Act. Therefore, present complaint is not maintainable. Hence, we answer point no.1 in the negative.
Point No.2 : Present complaint is not maintainable under the provision of the Consumer Protection Act, therefore, Complainant is not entitled for any reliefs as claimed for. Hence, we answer point no.2 in the negative and pass following order -
O R D E R
i.Complaint No.120/2008 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
