Orissa

Kendujhar

03/2004

Sri Umakanta Kabi - Complainant(s)

Versus

1. The Branch Manager, M/s. SREI International Finance Ltd. - Opp.Party(s)

Sri M. Parida & S. Das

04 Feb 2005

ORDER

IN THE COURT OF THE PRESIDENT: DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KENDUJHAR

C.D. CASE No.3/2004

Sri Umakanta Kabi, aged about 28 years,

S/o: Sri Nirmal Chandra Kabi,

At/P.O: Naranpur, P.S: Town,

Dist: Keonjhar                                                                      .   .   .   Complainant

                                      Versus

1. The Branch Manager,

M/s. SREI International Finance Ltd.

Barbil Branch, Near Orissa Petrol Pump,

At: Joda-Barbil Road, P.O/P.S: Barbil,

Dist: Keonjhar

2. The General Manager,

Bajaj Allianz General Insurance Co. Ltd.

G.E. Plaza-Airport Road,

Yerwada, Pune-411006                                                    .   .   .   Opp. Parties

For the Complainant: Sri M. Parida & S. Das (Advocates)

For the OP No.1: Sri D.R. Swain, M.M. Swain, S. Kar, & P. Nath (Advs.)

For the OP No.2: Sri A.K. Pattnaik, R.R. Rana, S. Mishra, T.K. Samanta, P.R Acharya & D.K. Sahu (Advs.)

 

Present: Sri B. Mishra, President

                 Miss. P. Singh, Member

                                And

                 Sri G.N. Jena, Member

_________________________________________________________________________

DATE OF HEARING: 19.1.2005                                                            DATE OF ORDER: 4.2.2005

Sri Bhabani Prasad Mishra, President: The brief facts of the case are that the complainant is the owner of a Truck bearing Regd. No. OR-09B-9457 purchased from the finance given by the OP No.1 on dated 5.10.2001 on receipt of a down payment of Rs.1,50,000/- from the complainant which includes the insurance amount of the vehicle on execution of H.D.A lease agreement. OP No.2 is the Insurance Company under which the said truck was insured through OP No.1 for the period dated 29.9.2001 to 28.9.2002. The said truck met with an accident on 28.11.2001 near Marshaghai while on its way with load to Paradeep port. This was intimated to the Ops by the complainant over phone and surveyor of the Insurance Company of OP No.1 inspected the damaged vehicle and on his instruction the said vehicle was shifted by crane to Keonjhar for repair. The expenses of Rs.1,03975/- made by the complainant for the repair of the damaged vehicle. It was known to the complainant during discussion with the surveyor that the Insurance Company bear the damage costs of the chassis, as only the chassis was insured. Apprehending foul play by the OPs, the complainant claimed the entire repair costs and compensation to the Opp. Parties. Even after several correspondences the OPs did not respond. The negligent inaction of the Opp. Parties nothing but deficiency in service and by that the complainant put no mental agony and financial loss of Rs.2,30,000/-. Hence the complainant for a direction to the OPs for payment to the complainant of repairing costs of the damaged truck of Rs.1,03,975/-, Rs.70,000/- towards the loss due to idle of the truck from 29.9.2002 to 30.10.2001 with interest, Rs.30,000/- for harassment, physical injury and mental agony, costs of the proceeding and other reliefs. In support filed Xerox copies of Cover note bearing No.5439 dt.29.9.2001 of Bajaj Allianz General Insurance Co. ltd (Annexure-1), Certificate-cum-Policy No.OG-08-2401-1803-00000005 valid up to 29.10.2003 of Bajaj Allianz General Insurance Co. ltd in the name of the Umakanta Kabi (Annexure-2), Letter dtd.18.1.2002 from Umakanta Kabi addressed to SREI International Finance Ltd. (Annexure-3), Letter dtd.18.3.2002 from Umakanta Kabi addressed to Biva Agrawal, SREI International Finance Ltd. (Annexure-4), Letter dtd.21.10.2002 from Umakanta Kabi addressed to Officer In charge, Bajaj Allianz General Insurance Co. Ltd. (Annexure-5), Letter dtd.5.11.2002 from Umakanta Kabi addressed to SREI International Finance Co. Ltd. BBSR (Annexure-6), Letter dtd.18.1.2002 from Umakanta Kabi addressed to Sri P.K. Panda SREI International Finance Ltd. Bhubaneswar (Annexure-7), Bill No.697 dt.16.1.2002 of Sahoo general order supplier (Annexure-8), Bill No.84 dt.28.12.2001 of Jay Ambay Breakdown Service (Annexure-9), Bill No. Nil dt.15.1.2002 of Biswakarma Body Builder Works Keonjhar (Annexure-10), Bill No.670 dt.13.1.2002 of National Electrical Repairs Keonjhar (Annexure-11), Money receipt for towing charges from Marshaghai to Keonjhar (Annexure-12), Policy of United India Insurance Co. Ltd. valid up to 11.10.2003 (Annexure-13), Money receipt No.7940 dt.18.9.2000 of Rs.1,50,000/- of SREI International Finance Ltd. (Annexure-14), Demand Draft dt.13.9.2001 bearing No.525102, 725103, 725104, & 725105 in favour of SREI International Finance Ltd. Bhubaneswar drawn at Bank of India Keonjhar (Annexure-15 to Annexure-18) and Statement of Accounts (Annexure-19) respectively.

    After service of notice written version filed on behalf of both the OPs separately. In version, OP No.1 official of and representing the Finance Company admitted that the Truck was taken being financed under H.P. lease agreement and the accident of the Truck at Marshaghai on dt.28.11.2001 which going from Barbil to Paradeep carrying goods. But denied the ownership of the complainant, complainant was a regular defaulter. And the complainant appeared in January before the sale arbitrator but did not raise all these questions rather agreed to comply all the terms and conditions and as the jurisdiction of the forum is bared to adjudicate the petition is non-maintainable and further stated that the insurance amount taken from the complainant was paid to the Insurance Company. The complainant took the truck for construction of the body on his own costs. This OP No.1 had only financed for the Chassis and the complainant did not submit any documents regarding the completion and the costs of the body to this OP and also denied the foul play.

     The OP No.2 official of and representing the Insurance Company in version, denied all the allegations made against and stated that the dispute is between the complainant and the OP No.1 and this OP has no role to play. The Chassis of the vehicle was only insured and the claim if any to be paid only to the financer only up to the insured amount but not to the complainant.

     The OP No.1 & OP No.2 are the officials of the related Finance & Insurance Companies respectively and represented these Companies.

     It is not in dispute that the complainant is the owner of the truck bearing registration No.OR-9B-9457 purchased being financed by the Company of OP No.1 under Hire-Purchase lease agreement on down payment of 1,50,000/- by the complainant and out of finance the vehicle was insured through OP No.1  with OP No.2 for the period from 29.9.2001 to 28.9.2002 and the vehicle met with an accident on 28.11.2001 at Marshaghai while on its way with load to Paradeep Port and sustained damages and surveyor of the Insurance Company inspected the vehicle and thereafter the vehicle was brought to and repaired at Keonjhar. The repair costs of the vehicle as calculated of Rs.1,03,975/- by the complainant has also not disputed.

      It is alleged by the complainant that in spite of repeated reminders the Opp. Parties have not paid the claim amount of Rs.1,03,975/- the repair costs of the vehicle to the complainant though insurance premium for the vehicle including body paid to and taken by the O.Ps and the whole vehicle should have valid insurance during the time of accident and the complainant apprehends the O.Ps have conceived and played foul. On the other hand the O.P No.1 denied the allegations on the reasons that only premium for the insurance of the Chassis of vehicle taken from the complainant was paid to the Insurance Company (O.P.2) and only the Chassis was insured but not the body of the vehicle covered under insurance as the complainant did not intimate about the completion of the body. The O.P No.2 denied the claim of the complainant on the reasons that the dispute is between the Complainant and Finance Company (O.P. Party No.1) and this O.P has not role to play as the Chassis of the vehicle was insured through the financer company the claim amount, if any for the Chassis will be paid to Financer but not to the complainant. Both the OPs challenged the maintainability of the petition as the finance provided through Hire-Purchase Agreement and already decided by the sale arbitrator. So jurisdiction of this Forum is barred as per the terms and conditions of the agreement. 

      On this background heard the learned counsels for the respective parties.

      The learned counsel for the complainant submitted that it is settled law that Consumer Forum are to entertain and decide dispute of deficiency in service having clause of reference to the arbitrator under the terms and conditions of the Hire-Purchase Agreement & jurisdiction. But the jurisdiction of the Consumer Forum are not barred to adjudicate such matter and the complaint-petition is maintainable against the Opp. Parties and in support of the submission referred to the decisions reported in 1999(I) C.P.R.74(N.C). In this decision the Honorable Commission held that “Mere existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under the Consumer Protection Act, which is a special piece of legislation to protect interests of Consumers not withstanding other laws in force “and also in 1999(3) C.P.R.24(N.C). The Honorable Commission held that “Mere providing finance and unable to use the machinery in first instance and ultimately to purchase the machinery and the contract is nearly a contract of financial service which has been specially included with the definition of service Under Section 2(0) of the Consumer Protection Act, it is basically a Hire-Purchase Agreement”.                

      In respectful agreement with the views taken on these decisions, we are of the opinion that the complaint-petition is maintainable against the Opp. Parties.

      It is also submitted that the OP No.1 taken an amount of Rs.18,000/- on dtd.1.10.2001 towards the insurance premium for the relevant period from the complainant for the entire vehicle with the body and drawn our attention to Annexure-19 and further submitted that the completion body of the vehicle intimated to the OPs in time and the heavy amount of Rs.18,000/- paid for insurance premium covered the Chassis and the body of the vehicle.    

      The learned counsels for the OPs only reiterated the statements made in version and added nothing more.

      On perusal of the material available on records it is found that the insurance premium of Rs.18,000/- on dtd.1.10.2001 was taken from the complainant’s account for the relevant period (Annexure-19) and this substantially high amount obviously for the whole vehicle including the Chassis and the body. The OP also failed to refute such a fact with credible evidence and so it is presumed that the insurance premium taken from the complainant for the insurance of the vehicle including the Chassis and the body for the relevant time.     

      The fact that the insurance was made with the Insurance Company through the Finance Company and the statement of the Insurance Company in the version that the settlement of the claim amount of the Chassis if any, to be paid to the financer not to the complainant, who is the beneficiary and using the vehicle might have made the complainant to apprehend that the OPs have connived with each other and playing foul not to pay the insurance claim amount to the complainant and we are of the view that the apprehension of the complainant is not unreasonable or unjustified.   

       On the above facts and circumstances we are of the opinion that as the Finance Company (OP1) taken the insurance amount for premium from the complainant and the insurance of the vehicle was made with the Insurance Company (OP No.2) through OP No.1 and the vehicle met with an accident and sustained damages, the complainant is entitled to get the repair costs of Rs.1,03,957/- of the damages vehicle from both the Opp. Parties and both the OPs are jointly and severally liable to pay the same to the complainant.

       The complainant has made substantially high claim for compensation towards mental agony and financial loss and also for the costs of the proceedings but failed to substantiate the same with any reliable evidence and there is no material available to make any assessment or to quantify the loss. However, it must have taken some time to bring the vehicle on road and from the date of the accident till making the vehicle operational the vehicle was not in running condition and the complainant must have suffered financial loss and also must have made some expenses in filing the complaint for redressal against the Opp. Parties. So feel a consolidated amount of Rs.30,000/- will be adequate and reasonable compensation on all these counts, beside the repair costs of Rs.1,03,957/- of the vehicle to be paid to the complainant by both the Opp. Parties also jointly and severally with interest @12% per annum of the total amount of Rs.1,33,957/- from the date of filing of this complaint-petition i.e. 8.1.2004 till final payment.   

       Hence it is ordered and the Opp. Parties are directed to pay jointly and severally an amount of Rs.1,33,957/- to the complainant with interest @12% p.a. from dt.8.1.2004 till final payment within 30 days of receipt of the order.

                                                                                                                                                                                                                                                                                                                                                                                                                                                      

       Orders pronounced in the open court today i.e. on 4^th day of February, 2005 under my hand and seal of this forum.

                           

           I agree                                                               I agree

      Sri G.N. Jena                                                    Miss P. Singh                                           Sri B. Mishra   

         Member                                                            Member                                                  President

 

                                                                                      Dictated and Corrected by me.

                                                                                                     Sri B. Mishra   

                                                                                                       President

 

 

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION ODISHA, CUTTACK

C.D. APPEAL NO.206/2005

(Appellate Jurisdiction Case)

In the matter of   :

                                     An appeal Under Section 15 of the

                                     Consumer Dispute Act 1986:

                                                    AND

In the matter of   :

                                    The General Manager,

                                    Bajaj Allianz General Insurance

                                    Company Limited.

                                    G.E. Plaza-Airport Road,

                                    Yerwada, Pune-411006             

                                    represented through the

                                    Divisional Manager,

                                    Bajaj Allianz Co. Limited,

                                    Ground Floor, Prasanti Tower-168-B,

                                    Bapuji Nagar, Janapath, Bhubaneswar,

                                    Dist: Khurda,

                                    (O.P. No.2 in the T.C.)            .     .     .    Appellant

                                                        VERSUS

                          1. Sri Umakanta Kabi, aged 29 years,

                                  S/o: Sri Nirmal Chandra Kabi,

                                  At/P.O: Naranpur, P.S: Keonjhar,

                                  Dist: Keonjhar

                                  (Complainant in the T.C.)               

 

                              2. The Branch Manager,

                                 M/s. SREI International Finance Ltd.

                                 Barbil Branch, Near Orissa Petrol Pump,

                                At: Joda-Barbil Road, P.O/P.S: Barbil,

                                Dist: Keonjhar

                                (Opp. Party. No.1 in the T.C.)   .     .     .   Respondents

Order No.12 Date of Order:-23.3.2015

None appears on behalf of appellant on call. Learned counsel for respondent no.1 is present. On the previous occasion also none appeared on behalf of appellant. This is an appeal of the year 2005.

      Under such circumstances, the appeal stands dismissed for non-prosecution.

                                                                                                                 Sd/-Justice Shri R.N. Biswal, President                                                                                                                                                                                                                                         

                                                                                                                 Sd/- Sri G.P. Sahoo, Member