West Bengal

Birbhum

CC/14/135

Sabita Ghosh - Complainant(s)

Versus

1) Indusind Bank Ltd, represented by Br. Manager, 2) Chola Mondalam, M.S. General Insurance Ltd. - Opp.Party(s)

Sanjit Kr Acharya

24 Aug 2017

ORDER

J U D G E M E N T

Shri Biswa Nath Konar  President.

            The case of the complainant Sabita Ghosh, in brief, is that she purchased a dumper being No. WB53A 1291 with the financial assistance of O.P No.1. That the vehicle was covered with insurance policy with the O.P No.2 being policy No 3379/00758417/000/000, sum assured of Rs. 12,60,000/-.

            It is the further case of the complainant that the vehicle in question was stolen away on 02.12.12 and the complainant lodged claim for insurance claim before the O.P No.2 Insurance Co. and the O.P No.2 settled the claim with Rs. 12,58,500/- and paid Rs. 9,45,000/- on 23.03.13 and Rs. 3,13,500/- on 30.10.2014 to the O.P No.1 by two installments and the complainant is entitled to get refund of the surplus amount after adjusting the loan. But the O.P No.1 did not refund the same even after due service of legal notice.

            Hence, this case for directing the O.P No.1 to pay Rs. 6,07,390/- with 12% interest per annum since 23.03.2013 and also directing the O.P No.1 to pay Rs. 50000/- as compensation for causing mental agony and harassment.

            The O.P No. 1 Indusind Bank Ltd. has contested the case by filing written version denying all material allegations of the complaint contending inter alia, the case is not maintainable and the complainant has no cause of action to bring this case.

            It is the specific case of the O.P No.1 that the complainant at the time of obtaining loan and hypothecating the vehicle with the O.Ps had entered into an loan-cum-hypothecation agreement which contains an arbitration clause whereby parties to the agreement mutual agreed to settle all the disputes by referring the same to the Arbitrator. The complainant cannot be allowed to discard the terms of the agreement of the said agreement and the said agreement also contains jurisdiction clause whereby only court at Chennai has jurisdiction to decide the case.

            It is the further case of the O.P No.1 that the Insurance claim arising out of the vehicle was adjusted with the loan amount of the complainant as per terms and conditions mentioned in the Clause 13.5 of the loan-cum-hypothecation agreement signed by the parties and ultimately the O.P No.1 prayed for dismissal of the case.

            O.P No.2 Chala Mandalam Gen. Insurance Co. has also contested the case by filing written version denying all material allegations of the complaint contending inter alia, the present case is not maintainable and the complainant has no locus standi to bring this case.

            It is the specific case of the O.P No.2 that they have paid a sum of Rs. 12,58,500/- to the insured by of two installments and discharged their duties as an insurer, while the facts remains insured had filed the present case making financial Indusind Bank Ltd as first party and the present O.P No.2 is second party.

            It is the further case of the O.P No.2 that in the complaint the insured has admitted that by two installments O.P No.2 Insurance Co. has made payment of Rs. 1258500/- to the O.P No.1. But the O.P No.1 claims that they are entitled for entire amount and it is the case of the complainant that O.P No.1 has to repay her the excess amount after adjusting due amount as she had already paid installment of Rs. 249740/- along with insurance deposit for three years of Rs. 96000/-, since the insured had not made any claim against the present O.P No.2 further this O.P No.2 has already paid the entire amount as per assessed claim, and it is clearly a dispute between financier and the complainant and they are not any way liable to pay anything to the complainant and the present case is liable to be dismissed against O.P No.2 with heavy cost.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

DECISION WITH REASONS

During the trial the complainant Sabita Ghosh has been examined as PW1 and she was cross examined by way of filing questionnaires. She also filed some documents.

O.P No.1 and 2 have not filed any oral evidence but filed some documents.

Heard arguments of both sides.

Point No.1: Evidently the complainant has obtained an insurance policy for the period 05.09.12 to 04.04.13 under O.P No.2 Insurance Co. for the sum assured of Rs. 1260000/-.

            So, the complainant is a consumer U/s 2(1)(d)(ii) of the C.P. Act.

 Point No.2: O.P No.1 has Branch Office within jurisdiction of this Forum.

The total valuation of the case is Rs. 6,67,390/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4: Both points are taken up together for convenience of discussion as they are related to each other.

            Admittedly, the complainant has purchased a dumper being No. WB53A 1291 with the financial assistance of O.P No.1. That the vehicle was covered with insurance policy with the O.P No.2 being policy No 3379/00758417/000/000, sum assured of Rs. 12,60,000/- and the vehicle in question was stolen away on 02.12.12 and the complainant lodged claim for insurance claim before the O.P No.2 Insurance Co. and the O.P No.2 settled the claim with Rs. 12,58,500/- and paid Rs. 9,45,000/- on 23.03.13 and Rs. 3,13,500/- on 30.10.2014 to the O.P No.1 by two installments.

            It is the further case of the complainant that she is entitled to get refund of the surplus amount after adjusting the loan. But the O.P No.1 did not refund the same.

            On the other hand it is the specific case of the O.P No.1 Indusind Bank that the Insurance claim arising out of the vehicle was adjusted with the loan amount of the complainant as per terms and conditions mentioned in the Clause 13.5 of the loan-cum-hypothecation agreement signed by the parties and the complainant is not entitled to get any amount and the case is liable to be dismissed.

            The complainant has submitted a calculation sheet in her evidence on affidavit as P.W.1.

            According to the complainant the O.P No.1 received Rs. 1258500/- from the O.P No.2 as insurance claim and settled amount.

            We find that O.P No.1 in their statement of account admitted such fact.

            According to the complainant the O.P No.1 also received Rs. 249790/- from the complainant as instalments and Rs. 96000/- as insurance premium for three years.

            We find that statement of account of the O.P No.1 says so.

            So, it is clear that O.P No.1 has received Rs. 1258500/- + Rs. 249790/- and + Rs. 96000/- = Rs. 1604290/- from the complainant.

            According to evidence of the complainant the O.P No.1 is entitled to get Rs. 980000/- as loan amount, Rs. 82900/- as interest and Rs. 32000/- as first year premium i.e. total Rs. 1094900/-.

            At the time of cross examination of PW1 Sabita Ghosh said calculation / statement of account has not been challenged by the O.P No.1. Rather we find in their written version they have given much reliance upon fulfilment of terms and conditions of the agreement of loan made between the parties.

            We further find that O.P No.1 has not filed any evidence challenging the statement/case made out by the complainant in her complaint and evidence.

            In a ruling reported in IV 2006 CPJ 213(NC) where in a complaint case the complainant filed affidavit by way of evidence but the O.Ps neither filed any evidence by way of affidavit nor cross examined the deponent. Hon’ble National Commission pleased to hold that the allegations of the complainant remained uncontroverted and in absence of the counter affidavit case of the complainants stands proved.

            We further find that however the O.P No.1 has filed a statement of account claiming that after adjustment of all amount received by them the complainant is entitled to refund back only Rs. 110462.62.

            WE further fund that though according to said statement O.P No.1 received Rs 945000/- on 23.03.13 and Rs. 313500/- on 30.10.14 totaling Rs. 1258000/- as settlement amount from the O.P No.2 Insuance Co. with other deposit which is much more than their due amount, but inspite of that installment No. 11 to 35 of Rs. 39260/- each have been shown as due from the complainant and by that a huge amount was claimed from the complainant inspite of receipt of all dues, which is nothing but illegal trade practice and deficiency in service.

            In view of the facts and circumstances stated above we are unable to give any trace upon such statement submitted by the O.P No.1 and we find no impediment to rely upon the calculation sheet submitted by the complainant that she is entitled to get Rs. 1604290/-(O.P No.1 received) – Rs. 1094900/- (O.P No.1 entitled to get) = Rs. 509390/- + interest @ 12% P.A on Rs. 509390/- - Rs. 313500/- = Rs. 185900/- since 23.03.13 to 29.10.14 and @ 12% on Rs. 509390/- since 29.10.14 till realization of the amount.

            However, we think that the complainant is not entitled to get interest of 12% P.A. but 8% P.A.

            Regarding O.P No.2 Insurance Co. we find that they have duly paid Rs. 1258500/- to the O.P No.1 as settled amount in due time and the complainant has no claim or relief against them.

            So, the case is liable to be dismissed against the O.P No.2.

Accordingly both the points are decided in favour of the complainant and against the O.P No.1.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 135/2014 be and the same is allowed on contest  against

O.P No.1 with a cost of Rs. 2000/- and dismissed on contest against the O.P No.2.

            The O.P No.1 Indusind Bank Ltd, Suri Branch is directed to pay Rs. 509390/- + interest @ 8% P.A on Rs. 509390/- - Rs. 313500/- = Rs. 185900/- since 23.03.13 to 29.10.14 and @ 8% on Rs. 509390/- since 29.10.14 till realization of the amount.

All such payment should be made by the O.Ps to the complainant within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and proceeding.

Copy of this order be supplied to the parties each free of cost.