Orissa

Jajapur

CC/6/2016

Sri Rajkishore Nayak - Complainant(s)

Versus

Authorised Officer,MAGMA Finance Co Ltd. - Opp.Party(s)

P.K.Ray

15 May 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 15th day of May,2017.

                                                      C.C.Case No.06 of 2016

Sri Rajkishore Nayak  S/O Sri Sukadeb Nayak

Vill./P.O. Bangra ,Via. Singhpur

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1.Authorised Officer,Magma Finance Co.Ltd, Magma House,24 park street,

   Kolkata.

2.Branch Manager, Magma Finance Ltd, Jajpur Road Branch

  At/P.O/P.S. Jajpur Road , Dist. Jajpur .

                                                                                                                               ……………..Opp.Parties.                  

For the Complainant:                           Sri P.K.Ray, Sri M.G.Dhal, Advocates.

For the Opp.Parties :                            Sri A.Ku.Pahil, Advocate.

                                                                                                     Date of order:   15.05.2017.

SHRI  PITABAS  MOHANTY,   MEMBER .

                        This is a dispute which has been filed from the side of the petitioner alleging not only deficiency in service but also unfair trade practice on the part of the O.Ps.

                        The facts as stated by the petitioner in the complaint petition shortly are that  the petitioner  purchased a truck bearing Regd.No.oR-09-E-4977  by availing loan  of Rs.2,53,469 from the O.Ps to maintain his livelihood . As per agreement in between the petitioner and O.Ps, the O.Ps  shall pay the Insurance premium for the said vehicle. Accordingly the O.Ps have also collected the premium amount from the petitioner amounting to  Rs,22,596/- towards payment of 2^nd ad 3^rd year of the Insurance premium . The O.P  has deposited the 2nd  premium which has been expired on 07.10.15 that after expiry of 2nd premium the petitioner did not receive the policy cover note for the 3^{rd year}  starting  from 7.10.15 to 06.10.16.Thereafter the petitioner intimated the O.Ps but they slept over the matter ,for which the vehicle in question could not be able to  Ply  on the road from 07.10.15 . That due to want of  insurance coverage  the vehicle was kept in idle from 07.10.15  till yet ,for which the petitioner is unable  to pay  the installments towards the loan of  the vehicle which  was only the source of income of the petitioner .

                        Thereafter the petitioner requested  vide letter dt. 19.11.15 and 12.01.16 for early  renewal of 3^rd  year  policy by paying the  Insurance premium. Besides this the petitioner issued a legal notice to  the O.Ps requesting to supply  the insurance cover note by Regd. post but the O.Ps did not pay any heed to it. Accordingly finding no other way the petitioner has  knocked the door of this Fora with the prayer to direct the O.P not to take any coercive action against the vehicle as well as compensation of  Rs,95,000/- for  mental agony.

                        The O.Ps have appeared and filed their written version In support of their defence denying the allegation  of the complaint . As per written  version the O.P  have stated that the petitioner has purchased  the vehicle by  availing loan from the O.P on the strength of  loan agreement  in which it has been  clearly mentioned that  all disputes differences claims questions arises out of the said agreement shall be  referred to the Sole Arbitrator .

2.The petitioner does not come within the definition of consumer since  relationship  is that the borrower and lender and the petitioner can not be treated a  consumer as defined U/S 2(d) Sub-clause of-2 In view of the order of Hon’ble Supreme court in Laxmi Engineering Works V.P.S G Industrial Institute in 1995- AIR- SC- 1428. The financer has  absolute  right to repossess the vehicle in case of  default in payment of installment by the borrower . In this case admittedly there is default in payment of claim. It is the duty of the owner of the vehicle to pay the insurance premium but   the financer is not  entitled to pray the insurance premium .  It  is also  submitted that the financer is not proper authority to issue cover  note It is the duty of the Insurance  Company to supply the same.

                        As per the claim of the petitioner it is submitted that the petitioner has never suffered financial loss due to the O.ps.  If even any loss has been accrued only due to his own malicious deeds. and  mischievous attitude for which the O.Ps can  no way be  held responsible nor Committed any  deficiency  of service .Therefore there is no  reason  for the petitioner to  under go any  financial ,physical and mental agony attributed to these  O.Ps. extending financial help  to a person in need can not be construct as deficiency in service .  The petitioner  is not entitled to any relief as claimed by him and this case is liable to be dismissed   on merit.

                        After hearing we have perused the record along with documents filed from both the sides in details:

Admittedly the dispute has been  field  by the petitioner  against the O.P (financer) since the O.Ps have not insured the alleged  vehicle after taking money from the petitioner for the same .

2.The O.Ps took the main plea that the duty of the owner of the  vehicle is to pay the Insurance premium and collect  the  Insurance cover  note.  The financer is not entitled to pay the Insurance premium . Such stand from the side of the O.P  is not  sustainable in the eye of law since the O>ps has collected Insurance Premium for the 2^nd and 3^rd year vide page-9 (schedule-11) of the agreement. Accordingly in view of Hon’ble National Commission reported in 1999(1) CPJ-= 1999(1)-CPR-23=1999(1)CLT-306-N.C (United India Insurance Co.Vrs.Satrughan Sharma & Others) wherein it is held that :

“Hypothecation of vehicle with the Bank- complainant deposited necessary amount with the Bank for getting the same insured –Insurance not got done by Bank –loss to vehicle –Held-that the Insurance Company repudiated the claim for valid reason .The Bank is guilty of deficiency in service directed to make the entire payment of Rs.40,000/- of the claim the respondent No.1 with 12% interest from the date of preferring the claim till the date of payment.”

3.Similarly the plea taken by the O.Ps  in the written version  that owing to the Arbitration clause in the agreement this Fora gets no jurisdiction to entertain the dispute is also not sustainable as per observation of Hon’ble Suprem court reported in 2004()CTJ)-1-S.C (Secretary Thirumurugao Co_operative Agriculture society Vrs.M.Lalitha wherein it is held that:

“Arbitration clause is no bar for entertaining the dispute by the For a.As such this For a has power to decide the present dispute”.

4.As regards the stand  regarding  non payment of the EMI by the petitioner,  we are in the opinion that  though the O. Ps are  empowered  as per terms of the  agreement to seize and  sale the financed vehicle in case of default of monthly installment but such seizure and sale must be as per law as per observation of Honble S.C reported in 2007(36)-OCPSC -815(Manager ICICI Bank Vers Prakas  and Others) In this contest we make  it clear that no where the hypothecation agreement

of the alleged vehicle has  empowered the O.Ps to take such action violating the guide line of Supreme court and Honble National Commission and Ho’ble State Commision Delhi reported in

2012(2) –CLT-72-S.C, 2007(3)CPR-191,2005(CPJ)-522 respectively ( C.T Crps. Maruti Fiance Vrs S.Bijhay Laxmi) wherein it is held that:

                  ” Seizure of vehicle must be through court”.

                        Further the issue regarding Insurance after verification of the documents of both the sides, it is crystal clear that the O.Ps have received Rs. 22,536/- for 2nd and 3^rd year Insurance  premium  from the petitioner . In such situation taking the plea by the O.P in the written version that it is the duty of the petitioner  of the vehicle to pay the Insurance premium to the Insurance company and collect the Insurance  cover note is not maintainable . This is nothing but clear deficiency of service as well as unfair trade practice on the part of the O.Ps  as has been explained above .

Hence this Order

                        In the net result the dispute is allowed against the O.Ps. The O.Ps are  directed  to return 3^rd year premium amount with 9% interest from the date of receipt till its realization along with  pay Rs.10,000/ (ten thousand) as compensation to the petitioner within one month after receipt of this order, failing which the complainant  is at liberty to realize the same as per  law.                          

This order is pronounced in the open Forum on this the 15th day of May,2017. under my hand and seal of the Forum.