Complaint taken on file: 13.01.2021

    Order delivered on: 13.03.2023

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ARIYALUR

PRESENT: Dr.V.Ramaraj M.L, Ph.D: President

Mr.N.Balu B.A, B.L: Member – I

Mrs.V.Lavanya B.A, B.L: Member – II

Consumer Complaint No. 2/2021

Monday, the thirteenth day of March, 2023

Arul, Son of Kathamuthu, 110-D, Colony street, Ilanthakuli Village, Alathur Taluk,

Perambalur District.                                                                                                                                                                                                                                …               Complainant

          -Vs-

1.    Regional Manager, Indus Ind Bank Ltd, G.N Chetty Road, T.Nagar, Chennai – 17

2.    Branch Manager, Indus Ind Bank, Ariyalur – 621 704.

3.    Branch Manager, TATA AIG Insurance, Raj Tower, No.6 & 7, Karur Bypass Road,

Trichy – 620 002.

4.    The Proprietor, Golden Harvest Auto Agency, 48-B, Perambalur Main Road,

Ariyalur – 621 704.

                                                        …          Opposite Parties

Counsel for the Complainant: M/s. S.K. Sankar

Counsel for the 1^st and 2^nd opposite Parties: M/s. J. Tamizh Murugan

Counsel for the 3^rd opposite party: M/s. S. Arunan

Counsel for the 4^th opposite party: T.A.P. Senthil Kumar

The complainant has filed this complaint against the opposite parties claiming a new Master edge cast wheel BSIV vehicle and Rs.1,00,000/- towards monetary loss, mental agony and physical hardship.

ORDER

Pronounced by Mr.N.Balu: Member-I

Adopted by Dr.V.Ramaraj: President

 Mrs.V.Lavanya: Member-II

 The facts of the complaint in brief:

1.           The complainant purchased a Hero Master edge cast wheel BSIV vehicle from the 4^th opposite party for a value of Rs.63,000/-. The complainant made a down payment of Rs.17,000/- and the balance amount was arranged by way of loan from the 2^nd opposite party which was to be repaid by the complainant by 20 equated monthly instalments of Rs.2,700/- each. The vehicle was registered as TN46-W-4394. The vehicle was insured with the 3^rd opposite party and the insurance period was from 26.04.2018 to 25.04.2019.

2.           The complainant paid 4 E.M.I’s to the 2^nd opposite party totalling to Rs.10,800/-. The vehicle had often fallen repair and was repaired by the complainant himself. On 09.09.2018, around 11.00 p.m., when the complainant was travelling in the above vehicle on Trichy Bypass Road near Thavuthaikulam in between Kaveri marriage hall and M.M.D weigh bridge, the vehicle caught fire which was informed to the complainant by persons travelling in other vehicles who saw it from behind.

3.           The complainant informed about this incident to the 4^th opposite party and upon their advice reported the incident to Ariyalur Police Station where the incident was registered in C.S.R.No.487/2018. Then the 4th opposite party inspected the vehicle and took it into their custody. The intimation was given to the 3^rd opposite party. The 2^nd opposite party assured that they would arrange to get the insurance amount from the 3^rd opposite party and also assured to give a new vehicle then. The 2^nd and 4^th opposite parties obtained the signature of the complainant stating that it was for the purpose of availing the new vehicle.

4.           The 2^nd and 3^rd opposite parties have received money from the complainant. The 3^rd opposite party, who is the insurer of the vehicle has not paid the insurance amount despite demands and requests by the complainant. The opposite parties 2 to 4 have not given the new vehicle. The complainant has been severely suffering for about 23 months as he was unable to do his business because of the loss of vehicle. The complainant and his family members are suffering severe mental agony because of these activities of the opposite parties.           The opposite parties 2 to 4 have received money from the complainant and confiscated complainant’s vehicle, therefore they have cheated the complainant.

5.           The 1^st opposite party is liable for the activities of the 2^nd opposite party. The activities of the opposite parties 1 to 4 are deficiency in their service. Therefore, the complainant sent a legal notice to the opposite parties on 07.01.2019. The opposite parties received the notice but did not send any reply. Anyway, the complainant again sent a legal notice to the opposite parties on 03.09.2020. The opposite parties received it but neither took any step to give the insurance amount nor a new vehicle to the complainant.

6.           As the opposite parties have failed to do their lawful duty, the complainant has been unable to get his lawful claim of either insurance money or a new vehicle. hence, the complainant is suffering severe mental agony. Therefore, all the opposite parties are jointly liable to compensate the mental agony and hardship caused to the complainant because of the fraudulent activities of the opposite parties 2 to 4. Left with no other option, the complainant is filing this complaint praying to direct the opposite parties to give a new Master edge cast wheel BSIV vehicle and a sum of Rs.1,00,000/- towards compensation for the mental agony caused to the complainant.

 The facts of Written version of the opposite parties in brief:

7.           The 2^nd, 3^rd and 4^th opposite parties have filed separate written versions. The 1^st opposite party has adopted the version of the 2^nd opposite party. The 1^st and 2^nd opposite parties have stated in their written version that the complaint is not maintainable because the complaint has been filed without proper cause of action but with the only motive of cheating the remaining E.M.I’s payable by the complainant to the 2^nd opposite party. The complainant as admitted by him in the complaint has paid only 4 dues out of 20 dues payable by him for the loan obtained by him for the purpose purchasing the vehicle mentioned in the complaint. The 1^st and 2^nd opposite parties never gave any consent to the 4^th opposite party to take the burnt vehicle as alleged by the complainant in the complaint. The 1^st and 2^nd opposite parties never obtained any signature from the complainant assuring that they would give him a new vehicle. In fact, the complainant has to pay the remaining 16 dues for the loan that he has obtained from the 1^st and 2^nd opposite parties. Hence, the 1^st and 2^nd opposite parties pray to dismiss the complaint.

8.           The 3^rd opposite party has admitted in their written version that the complainant had obtained loan from the 2^nd opposite party for the purchase of a vehicle and that the same vehicle was insured with them for the period from 26.04.2018 to 25.04.2019 and that the vehicle got damaged due to fire. However, the 3^rd opposite party has denied the allegations of the complainant that they obtained complainant’s signature with an assurance of providing him with a new vehicle and that they failed to settle the complainant’s claim as per policy condition. In fact, the 3^rd opposite party after receiving the claim of the complainant on 10.10.2018 under claim No.0821028598A, appointed duly licenced IRDA approved surveyor to assess the damages and loss. Based on Surveyor’s report, the claim was mutually agreed and finalised on Net of Salvage basis. The complainant agreed to the full and final settlement and submitted a discharge voucher and consent letter (Ex. B-3) agreeing for that settlement of Rs.34,302/- with the 3^rd opposite party on 27.11.2018.

9.           The claim amount was settled to the financier (2^nd opposite party) as the vehicle was under hypothecation. IMT-7 endorsement was applied on the policy wherein the money payable by the insurance company by way of claim shall be directly paid to the pledgee. Here, the 3^rd opposite party passed a claim of Rs.34,302/- and paid Rs.32,642/- to the 2^nd opposite party, the pledgee. The balance amount of Rs.1,660/- only if the complainant submits Form 35 and no objection certificate. As the complainant did not submit the required documents, the 3rd opposite party could not process to pay the pending amount ofRs.1,660/-. The 3^rd opposite party duly intimated this point to the complainant and mentioned the same in their reply notices (Ex. B-5 and B-6) sent on 30.01.2019 and on 13.03.2019 by way of reply to the notices sent by the complainant.  The complainant has suppressed all these material facts and has filed a baseless complaint with all fabricated allegations.

10.            The complainant has failed to produce the no objection certificate and Form 35 due to which the 3^rd opposite party could not process the pending claim amount of Rs.1,660/- payable to the complainant and otherwise the 3^rd opposite party has done everything as per the terms and conditions of the policy. The allegation that the 3^rd opposite party had promised to give a new motor cycle is false. The complainant has suppressed all the above material facts and has filed this complaint with a motive of extracting money from the opposite parties. As the complainant has not approached this commission with clean hands, the 3^rd opposite party prays to dismiss the complaint.

11.           The 4^th opposite party has stated in their written version that the complainant has suppressed many vital points and has filed the complaint with false allegations. In fact, the complainant approached the 4^th opposite party after the fire accident with a request to help him in getting the insurance amount and seeking an alternate vehicle. The 4^th opposite party who is doing business as an example of best customer care arranged a two-wheeler worth Rs.45,000/- as alternative vehicle which was handed over to the complainant immediately. The complainant is still using the same. The 4^th opposite party on humanitarian grounds followed the insurance company and eligible insurance amount was sanctioned. As the complainant was careless and lethargic, the remaining amount could not be processed by the 3^rd opposite party. The complainant has never cared to return the vehicle provided by the 4^th opposite party purely as a gesture but has filed this complaint with false allegations against the opposite parties. The complainant has mentioned in the complaint that the opposite parties did not reply to his notices. In fact, the 4^th opposite party sent reply notice to complainant’s notice to his counsel Pon Selvam on 03.10.2020 which was delivered on 05.10.2020. As the complainant has suppressed a lot of material facts and has filed this complaint with false allegations, the 4^th opposite party prays to dismiss the complaint with cost.
12.            The complainant has filed his proof affidavit and has marked Ex. A-1 to Ex. A-11. The 2^nd opposite party has examined Mr. Deepan Chakravarthy as their side witness and has not submitted any document. The 3^rd opposite party has examined Mr. Ravishankar as their side witness and has marked Ex. B-1 to B-7. The 4^th opposite party has examined Mr. Napoleon as their side witness and has not submitted any document.

            Points to be considered:

1. Whether the complaint is maintainable under law and on merits or has to be dismissed as claimed by the opposite parties?

2. Whether punitive cost should be awarded to the complainant as against the opposite parties?

Point No: 1

13.           Since the opposite parties have raised some serious issues with regard to the maintainability of the complaint, this commission decides to discuss and decide the issue of maintainability of the complaint first. The complainant has prayed to award a compensation of Rs.1,00,000/- (Rupees one lakh) in numbers and Rs.20,00,000/- (Rupees twenty lakh) the complaint. In proof affidavit, the complainant has not mentioned any amount but has prayed to award as prayed for in the complaint. Neither in the written arguments nor in the Legal notices sent by the complainant to the opposite parties dated 07.01.2019 (Ex. A-6) and dated 03.09.2020 (Ex. A-7), the complainant has not mentioned any specific amount as compensation. In the proof affidavit and written arguments, he has prayed to award as prayed for in the complaint.

14.           The complainant has filed 7 documents at the time of filing the complaint in 2020. He has filed 4 additional documents in the year 2022. Those additional documents are acknowledgement card for taking possession of complainant’s vehicle dated 10.09.2018 (Ex. A-8), intimation cum preliminary claim form dated 27.11.2018 (Ex. A-9), Reply notice sent by the 4^th opposite party on 03.10.2020 (Ex. A-10) and Arbitration award copy sent by the 1^st opposite party dated 10.10.2022 (Ex. A-11). The complainant filed these 4 documents after obtaining the permission of this commission. The complainant has mentioned in the permission petition that these documents were not available at the time of filing the complaint in 2020. But he has not stated in the complaint that these documents were not available with him at the time of filing the complaint.

15.            The complainant has stated in the complaint that the opposite parties never sent any reply to his legal notices. The complaint was first filed on 22.09.2020 and was numbered on 13.01.2021. The complainant has marked Ex. A-8, the acknowledgement card issued by the 4^th opposite party for his vehicle and Ex. A-10, the reply notice dated 03.10.2020 sent by the 4^th opposite party as additional documents in 2022. Ex. B-5 is the reply notice sent by the 3^rd opposite party to the complainant on 30.01.2019. This commission deems that in spite of receiving the above reply notices, the complainant has lied before this commission that the opposite parties did not send any reply to his notices. The 2^nd opposite party has stated in their proof affidavit that the complainant was supposed to repay his loan by 23 E.M.I’s of Rs.2,700/- each. Out of the 23 dues, the complainant has paid only 4 dues. In order to escape from the liability of paying the remaining dues, the complainant has filed this complaint.

16.            Ex. B-3, the consent letter signed by the complainant shows that the entire claim has been fully and finally settled between the parties. The complainant agreed to the full and final settlement and submitted the discharge voucher cum consent letter agreeing for a settlement of Rs.34,302/- with the 3^rd opposite party on 27.11.2018. The claim amount has been paid to the financier, the 2^nd opposite party as the vehicle was under hypothecation. IMT-7 endorsement has been applied on the policy wherein the money payable by the insurance company by way of claim has been directly paid to the pledgee. Here, the 3^rd opposite party passed a claim of Rs.34,302/- out of which Rs.32,642/- has been paid to the 2^nd opposite party, the pledgee. The balance amount of Rs.1,660/- was supposed to be disbursed to the complainant provided he submits Form 35 and “No objection certificate”. As the complainant did not submit the required documents till date, the 3rd opposite party has been unable process to pay the pending amount ofRs.1,660/- to the complainant. The 3^rd opposite party has duly intimated this point to the complainant through their reply notice and demand notice (Ex. B-5 and B-6) sent on 30.01.2019 and on 13.03.2019 to the complainant. This commission concludes that the complainant has suppressed all these material facts and has filed this baseless complaint with vague and baseless allegations against the opposite parties.

17.           The 4^th opposite party has stated in their written version and in their proof affidavit that they provided a standby vehicle worth Rs.45,000/- to the complainant on humanitarian grounds and on goodwill which the complainant has been using till date and that the complainant has suppressed this vital material fact in his complaint. But the 4^th opposite party has not submitted any proof in support of this claim and they have not mentioned this in their reply notice that they sent to the complainant on 03.10.2020 (Ex. A-10). Therefore, this commission concludes that their claim is unsustainable but still the 4^th opposite party, if their statement is true, they can legally proceed to recover the vehicle from the complainant under due process of law. In the prayer of the complaint, the complainant has asked a compensation for his mental agony Rs.1,00,000/- in numbers but in words, he has asked Rs.20,00,000/-. In his proof affidavit and written arguments, the complainant has not clarified this ambiguity. Therefore, this commission concludes that the complaint has been filed suppressing a lot of material facts, in a vague and lethargic manner and with ulterior motive of escaping from paying the future dues payable to the 2^nd opposite party. Hence, the 1^st point is answered as follows: The complaint is not maintainable and is liable to be dismissed.

Point No: 2

18.             No allegation has been proved by the complainant. In fact, the complaint is vague without any details about the accident and the incidents that followed. The complainant has suppressed a lot of material facts like reply notices from the 3^rd and 4^th opposite parties, the consent letter that he had signed regarding the full and final settlement of Rs.34,302/- with the 3^rd opposite party, the reminder letters sent by the 3^rd opposite party reminding him of the fact that he has not submitted Form 35 and N.OC before the 3^rd opposite party for the purpose of processing the pending claim amount of Rs.1,660/-. Ex. A-1 shows that it was not issued by the 4^th opposite party but by some other agency namely Shivakamam Motors, Perambalur. Ex. A-2 shows that the complainant has paid Rs.600/- to the 4^th opposite party on 28.04.2018 but the complainant has not explained the purpose of making this payment. Even though the opposite parties have not raised any objection in this regard, this commission feels that it is the duty of the complainant to clearly mention everything in the complaint in order to avoid any ambiguity or confusion.

19.            The complainant in his complaint has directly accused the opposite parties that they have unlawfully received money from him and have cheated him. In the complaint, the complainant has stated that because of the illegal and fraudulent activities of the opposite parties, he has suffered severe loss in his business but has not proved with necessary evidence that he sustained any such loss. He has not even mentioned as to what business he was doing. He has not proved that he and his family members suffered mental agony. He has further stated in his complaint and proof affidavit that the opposite parties gave him a false promise that they would provide him with a new vehicle and upon which they obtained his signature. He has not stated on which document they obtained his signature. This commission concludes that vague and vexatious allegations without any proof against the opposite parties will not stand against the opposite parties.

20.              The complainant has wasted the valuable time of this commission by filing this false and vexatious complaint. Therefore, this commission severely condemns the complainant for wasting the valuable time of this commission. The 1^st and 2^nd opposite parties are at liberty to proceed to recover the dues from the complainant as per the arbitration award (Ex. A-11). The 3^rd opposite party is at liberty to process to pay the remaining amount of Rs.1,660/- as per law and the 4^th opposite party if really had given any alternative vehicle to the complainant as stated in their written version and proof affidavit, they are at liberty to recover their vehicle from the complainant under due process of law. Regarding cost, each party shall bear their cost.

As a result, this commission passes the following ORDER:

(1). This complaint is dismissed as not proved.

(2).   The 1^st and 2^nd opposite parties are at liberty to proceed to recover the    dues from the complainant as per the arbitration award (Ex. A-11).

(3).  The 4^th opposite party if really had given any alternative vehicle to the complainant, they are at liberty to recover their vehicle from the complainant under due process of law.

            (4).   No cost.

  This Order was dictated by me to the steno, today the thirteenth day of March, 2023, was taken notes in short-hand and then typed in computer and corrected and was pronounced by us in the open commission today.

             Member -I                                      Member – II                                    President

Witnesses examined by the complainant: K. Arul (the complainant)

Witness examined by  2^nd opposite party: Deepan Chakkaravarthy

Witness examined by  3^rd opposite party: Ravishankar

Witness examined by  4^th opposite party: Napoleon

Documents marked by the Complainant:

Documents marked by the 3^rd Opposite party:

Member - I                                         Member – II                                             President