REVISION PETITION NO. 2721 OF 2007

(From the order dated 10.4.07 in Appeal No.52/07 of the State Commission, Gujarat)

Consumer Education & Research Society & Anr. … Petitioners

Versus

New India Assurance Co. Ltd. & Ors. … Respondents

BEFORE :

HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT

MR. S.K. NAIK, MEMBER

HON’BLE MR. JUSTICE R.C. JAIN, MEMBER

For the Petitioners : Mr.Vikram Mehta, Advocate

For the Respondents : Mr.Salil Paul, Advocate with

Ms.Madhulika, Advocate

13.12.2007

O R D E R

M.B. SHAH, J., PRESIDENT:

Unfortunately, in the present case, an over-technical view has been taken by the State Commission and the District Forum in dismissing the complaint by holding that father/mother of an aggrieved person or his Power of Attorney is not entitled to file complaint under the Consumer Protection Act, 1986 (hereinafter referred to as the Act).

This is erroneous. It is to be reiterated that under the Act, technicalities are not to be encouraged because the only procedure, which is prescribed under the Act is to follow the principles of natural justice and to decide the matter after hearing both the parties.

Repeatedly it has been observed that complaint alleging defects in goods or deficiency in service can be entertained on receipt of a letter stating sufficient facts and the cause of action. If required, it can be entertained after recording statement of the Complainant and if grounds are made out, notice is required to be issued to Opposite Party.

This is forgotten and we still erroneously try to adhere to the procedure prescribed under the C.P.C. or elsewhere.

In the present case, complaint was filed by the Consumer Education and Research Society, Ahmedabad as well as by the mother and father of the complainant alleging that their Sony TV suddenly became non-functional and, hence, the insurance company was bound to reimburse on the basis of the Household Policy taken by the complainant. A claim was submitted on 30.7.2002 for Rs.30,000/- with the insurance company because the TV was completely damaged.

As the amount was not paid, Complaint No.483/2004 was filed before the District Forum, Ahmedabad Rural, which, by its order dated 22.11.2006, dismissed the same by holding that the complaint was filed by the Power of Attorney Holder and not by the complainant.

That order of the District Forum was confirmed by the State Commission by its order dated 10.4.2007 in Appeal No.52/2007. The State Commission noted that it was not disputed that the complaint was signed and presented by the Power of Attorney Holders, who happen to be the mother and father of the consumer. Yet, the same was dismissed erroneously by relying upon the principles of subrogation or assignment. It is hoped that before passing such an order, the State Commission would be careful. Assignment/subrogation is altogether a different concept from that of a power of attorney, that too, power given to the father or mother and not to a stranger or to a consumer organization, which is entitled to file a complaint under the Consumer Protection Act.

In this view of the matter, impugned orders passed by the State Commission and the District Forum are required to be set aside.

However, to avoid further delay and proceedings before the District Forum or the State Commission, we have asked the insurance company to reimburse the loss suffered by the complainant. Learned counsel appearing on behalf of the insurance company, after verification of the record, submitted that the insurance company, by its letter dated 24.6.2004, had offered to pay a sum of Rs.10,000/- to the complainant. The relevant part of the said letter is as under :

“1. The claim is not paid for the reasons that damage was due to wear and tear, which is not covered under the scope of policy.

2. Please refer to our letter dated 9^th October 2002 the insured i.e. Ms.Durga Dalal has acknowledged the receipt of letter vide her letter 19^th November 2002 and represented her case.

3. In response to her letter we had once again informed to the insured vide our letter dated 1^st December 2003 that the claim is not payable for the reasons as stated in our earlier letter dated 9^th October 2002.

4. The loss has been surveyed and assessed by “Mr.Rajesh Hathi, surveyor on 1^st September 2002 and it was observed by him that the damage to the TV had taken place two to three years back. Further, it is a very old model and market value arrived is Rs.8500/- to Rs.9500/- approximately.

5. The damage to TV is about 2 and 2½ years old and intimation has not been given within 15 days and hence as per policy condition claim is not payable.”

Considering the aforesaid letter, in our opinion, it would be just and reasonable to direct the Insurance Company to reimburse the Complainant a sum of Rs.10,000/-.

In the result, the Revision Petition is allowed. Impugned orders passed by the State Commission and the District Forum are set aside. The insurance company is directed to pay to the complainant, within a period of 6 weeks from today, a sum of Rs.10,000/- with interest at the rate of 10% per annum from 1.1.2003 till its payment.

The Revision Petition stands disposed of accordingly. There shall be no order as to costs.

Sd/-

……………………………………….J.

( M.B. SHAH)

PRESIDENT

Sd/-

…………………………………………

(S.K. NAIK)

MEMBER

Sd/-

……………………………………….J.

(R.C. JAIN)

MEMBER

/sra/ 22 / Court-1