Orissa

Jagatsinghapur

CC/123/2021

Subrata Kumar Ray - Complainant(s)

Versus

B.M, Cholomandal Investment & Finance co ltd. - Opp.Party(s)

Mr.A.K.Sahoo

23 Aug 2022

ORDER

                                                                                                JUDGMENT

 

            Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking the following reliefs:

            “Direct the opposite party No.3 & 4 to pay compensation of Rs.48 lakhs towards the harassment, mental agony, suffering the financial damage for their deficiency in service for their deliberate delay in giving approval for replacement of chassis and final settlement of the repair bills submitted by O.P. No.2 for release of his vehicle. O.P. No.3 & 4 to make payment of all the dues of O.P. No.1 towards the loan account of the complainant from the date of accident till date of release of the vehicle of the complainant from the workshop of O.P.No.2. O.P. No.3 & 4 to settle the final bill of O.P. No.2 as per law in favour of O.P. No.2 and O.P. No.2 may be directed to release the vehicle of the complainant once they receive their payment against the final bill from O.P. No.3 & 4 & O.P. No.3 & 4 direct to pay an amount of Rs.1 lakh towards the cost of litigation and Rs.20,000/- for litigation expenses”.

            The brief fact of the case is that, the complainant has taken insurance policy against his vehicle OD 09K 4450 from opposite party No.3 & 4 having policy No.3379/02427838/000/01 and such policy was valid from dtd.31.7.2022 till midnight of 30.7.2021. On dtd.25.3.2021 while the said vehicle was transporting iron ore from Joda to Gopalpur Port at about 3 AM the same met with an accident near Balugaon under N.H.-16 and the truck of the complainant was severely damaged and the complainant immediately informed regarding the accident of his truck in Balugaon police station and accordingly police investigated the matter and found the fact to be true and accordingly the Balugaon P.S. reflected the same in their station diary vide SD No.6 dtd.26.3.2021. The complainant immediately informed the matter regarding accident of his vehicle to O.P. No.1 as well as O.P. No.4 and thereafter shifted his vehicle from the accident site to the workshop of O.P. No.2. After receipt of complain regarding accident of vehicle of the complainant the O.P. No.4 registered claim No.3379332390.

            On dtd.29.3.2021 the surveyor of the O.P. No.4 inspected the accident vehicle in the workshop of O.P. No.2 and thereafter the O.P. No.2 on dtd.31.3.2021 submitted their estimate bill to the total amount of Rs.10,71,000/- and asked the complainant as well insurance company to pay 50% of the advance money to start the repair work. On dtd.03.4.2021 the first survey was done by the surveyor of O.P. No.4 and on 04.4.2021 being directed by the surveyor of the insurance company the O.P. No.2 has dismantled the vehicle and informed the O.P. No.4 to conduct a further survey on 11.4.2021 by the surveyor. But on 13.4.2021 the second survey was done by the surveyor of O.P. No.4. As the 50% of the estimated repair cost was not paid by the insurance company the complainant paid an amount of Rs.1,80,000/- to the company of the O.P. No.2 on 13.4.2021 and requested O.P. No.2 to go ahead with the repairing work of his vehicle. After receipt of payment from the complainant the O.P. No.2 started repairing work of the vehicle of the complainant. But as the approval for left chassis and right chassis was not received from the O.P. No.4 the repair work by O.P. No.2 was not proceeded in spite of the fact that the complainant himself repeatedly requested O.P. No.4 for such approval and payment of 50% advance to the O.P. No.2 so that repair work of his vehicle will be expedited. Only on dtd.25.6.2021 the O.P. No.4 had paid an amount of Rs.3,00,000/- as an advance to O.P. No.2 i.e. almost after 2 months 25 days for repair work of the vehicle of the complainant and further on 07.6.2021 O.P. No.4 gave approval for replacement of left and right chassis of the vehicle which was damaged and on 27.6.2021 the O.P. No.2 completed the repairing work of the vehicle. The O.P. No.2 on 28.6.2021 raised final proforma invoice copy to the surveyor of O.P. No.4 and requested him for final inspection of the vehicle and on 30.6.2021 the final survey was conducted by the surveyor of O.P. No.4 and accordingly the O.P. No.2 raised their final invoice towards the repairing job of the complainant’s vehicle against O.P. No.4 and finally on 01.7.2021 the final copy of the invoice was sent by O.P. No.2 to the surveyor of O.P. No.4 through email and they were waiting for the final settlement of their payment against their final invoice which was duly approved by the surveyor of O.P. No.4 so that they can release the vehicle in favour of the complainant. Since the complainant was regularly visiting the workshop of O.P. No.2 to monitor the repairing work of his vehicle he had having personal knowledge regarding all developments.

            The grievance of the complainant is that with regard to timely payment of insured amount as complainant is maintaining his livelyhood depending upon vehicle in question. The vehicle met with an accident on 25.3.2021. The surveyor has given the report amounting of Rs.6,63,056/-.

            This Commission vide order dt.06.8.2021 has pleased to pass following order “Heard the learned counsel for the complainant ex-parte. Submission appears to be just and reasonable supported with affidavit. Hence considering the circumstances, issue notice to the opposite parties to file objection if any but in the meantime the opposite party No.3 & 4 are directed to release the final bill of opposite party No.2 within 07 (seven) days from the date of communication of this order and opposite party No.2 is directed to release the vehicle bearing Regd. No.OD-09K-4450 in favour of the complainant and further directed to the opposite party No.1 shall not to take any coercive action against Truck bearing Regd. No.OD-09K-4450  on receiving of one installment from complainant for their default loan amount from dtd.25.3.2021 till date of release of the vehicle by opposite party No.2. Complainant shall pay current EMIs to opposite party No.1 after release of vehicle by opposite party No.2 till dt.03.9.2021.”

            It is alleged by the complainant that “in spite of the order of this Hon’ble Court, the present opposite party even if received the order being communicated by this Hon’ble Court has not yet settle the final bill of opposite party No.2 deliberately violated the order of this Hon’ble Court. The petitioner on dtd.27.8.2021 has received a mail from opposite party No.2 i.e. M/s Rashmi Motors in which they have forwarded a mail dated 24.8.2021 given to them by the opposite party No.4 i.e. opposite party in this case in which the opposite party has clearly mentioned that they have settled the final bill of opposite party No.2 at an amount of Rs.6,63,056/- and such amount they will releases only when the present petitioner will signed claim discharge voucher, satisfaction voucher, and an affidavit to withdraw the present case filed by him before this Hon’ble Court. Which clearly indicates that high handedness and arbitrariness of the present opposite party to put undue pressure on present petitioner to withdraw the present case and to accept whatever amount they have settle which is in violation of order dated 06.8.2021 passed by this Hon’ble Court in the above mentioned case.”

            The opposite party No.1 have filed written version stating that, at the outset it is submitted that the parties hereto are bounded by the terms and condition of the agreement executed between them. The complainant has availed the loan by executing a loan agreement and in clause 29 in the said agreement it is specifically agreed by both the parties that all disputes, differences and/or claims arising out of said agreement, whether during its subsistence or thereafter, shall settled by the arbitration in accordance with the provision of Arbitration and conciliation Act, 1996 etc. In the instant case the arbitration clause was invoked and the arbitration proceeding was set to motion by appointment of Arbitrator, M/s. Rajeni Ramadass, Advocate and the complainant has also appeared before the learned Arbitrator and filed his objection. Law in this regard is now well settled that consumer complaint is not sustainable in the eyes of law after initiation of arbitration proceeding in view of the judgments of Hon’ble National commission in the cases of Manas construction vrs. L & T Finance Ltd. and another decided on 10.10.2017 in F.A. No.1621 of 2016 and Ms. Magma Fincorp Ltd -vrs- Gulzar Ali, R.P. No.3835 of 2013 decided on 17.4.2015. The instant consumer complaint pertains to non settlement of insurance claim by the opposite parties No.3 & 4 and therefore the relives sought for should have been exclusively against the O.P. No.3 & 4 and the answering O.P. No.1 could have been impleaded as proforma O.P. as the O.P. No.1 is entitled for the insurance claim amount. But the complainant has sought for reliefs against the O.P. No.1 seeking for a direction not to take any coercive action against the vehicle for defaulting in payment of installment which is unsustainable in the eyes of law as the same are contrary to the terms and conditions of a lawful agreement. The opposite party No.1 has nothing to do with the non settlement of the claim by the opposite party No.3 & 4. The complainant approached the O.P. No.1 to finance him for a Ashok Leyland Truck, bearing Regd. No.OD-09K-4450 and after detailed deliberations a loan cum hypothecation agreement bearing No.DVFPBBL00003063927 dtd.30.6.2019 was executed between the complainant and the O.P. No.1 under which an amount of Rs.29,10,254/- was financed and disbursed on dt.30.6.2019 against the asset cost of Rs.30,11,810/-. The agreement value is payable in 60 EMIs stating from dt.28.7.2019 to 28.6.2024 @ Rs.66,200/- per month. The complainant has made certain payments in irregular manner. The statement of account of the complainant’s loan account reveals that as on dt.29.9.2021 the complainant is liable to pay Rs.4,45,526/-.

            The opposite parties No.3 & 4 filed their written version and stated that, most of the allegations made in the complaint petition are far from truth and the same have deliberately been made within an avowed and oblique motive of presiding this Hon’ble Forum before traversing the allegation made in different paragraph of the complaint petition. It is admitted that it has issued a motor policy bearing No.3379/02427838/000/01 in respect of Ashok Leyland Truck bearing No.OD-09-K-4450, covering the risk of the vehicle from 31.7.2020 to 30.7.2021, subject to certain terms and condition to be performed by the insured. During the subsistence of insurance policy the claim was intimated through the financier O.P. No.3 on the fact that the vehicle met with an accident and sustained damage on 25.3.2021 and the complainant shifted his vehicle to the workshop of O.P. No.2.  On receipt of the claim intimation from the financier the O.P. No.3 & 4 engaged IRDA Accredited Surveyor & loss assessor in compliance of 64 UM of the Insurance Act, who after preliminary examination of the vehicle, but the same was not carried for a long period in spite of repeated instruction by the surveyor as well as the insurance company. After prolonged gap a request was made from the side of the financier O.P. No.1 informing the O.P. No.3 & 4 that the complainant is not in a position to meet the repairing expenses and requested the O.P. No.3 & 4 to release some amount in advance to help the complainant to start repairing of his vehicle. The O.P. No.1 has to repair his vehicle. The duty of the O.P. No.3 & 4 insurance company is to release the amount which is the liability of the insurance company. Liability of the insurance company is based on the assessment made by the surveyor. The duty of the surveyor is to assess the damage, to see as to which part can be repair and which part is required to be replaced. Market price of the parts required to be replaced minus depreciation, parts which are not covered under contract of policy and many other factors in assessing the damage. This is to say that the liability of the insurance company is not confined to the repairer’s bill. The complainant has to bear the cost of repairing of the vehicle which is excluded by the surveyor in its report. The assessment of the surveyor is confined to the assessment of damages which are consistent to the nature of damage as claimed. The additional repair of the vehicle which are not consistent to the accident will not be considered by the surveyor, hence the parts which are not taken into consideration by the surveyor, but are repaired, has to be borne by the insured. The estimate given by the repairer is not the liability of the insurance company.

            No intimation of completion of repair work was communicated to the surveyor or the insurance company by the insured. The surveyor on its own made the final survey in presence of the insured as well as repairer of the vehicle and after careful examination of the repair work assessed the final liability of the insurance company as Rs.6,63,356/-. During the process of claim settlement the complainant made further delay in claim settlement process by approaching different forum, including this commission for which he himself to be blamed and the insurance company is no way responsible for the same. As such there are no latches or negligence, unfair trade practice or undue influence by the insurance company.

            We have heard the counsels of both the parties. The complainant has purchased the vehicle being finance by opposite party No.1 and insured by its sister concerned insurance company the policy bearing No.3379/02427838/000/01 against the vehicle valid from 31.7.2020 to 30.7.2021 midnight. On 25./26.3.2021 the vehicle made an accident near Balugaon NH-16. After the legal formalities vehicle was shifted to workshop of opposite party No.2 who is the authorized dealer of Ashok Leyland and he has been set ex-parte. The estimate for repairing was of Rs.10,71,000/- on 31.3.2021. The opposite party No.2 asked for 50% advance for opposite parties No.3 & 4 to start the repairing work. The first survey was done on 03.4.2021 and second survey was done on 13.4.2021. The opposite party No.2 informed the survey report of opposite party No.3 & 4 to give approval for replacement of left and right of chassis of vehicle who is damaged due to accident. On 07.6.2021 the approval given by opposite parties No.3 & 4. On 25.6.2021 the opposite parties No.3 & 4 paid an amount of Rs.3,00,000/- as 50% advance for repair the vehicle. The repair work of vehicle is completed on 27.6.2021 by opposite party No.2 who made a proforma invoice copy to the surveyor of opposite party No.4 and requested to final survey. On 01.7.2021 opposite party no.2 submitted the final bill to opposite party no.3 & 4, which was not settled for which complainant filed the present consumer complaint on 06.8.2021.

            Due to delay of settlement complainant approach the Consumer Counseling Center at Cuttack and the same was drop on 30.7.2021.

            After receipt of notice from this Commission O.P. No.3 & 4 sent an email to the O.P. No.2 which was forwarded to the present complainant by O.P. No.2 on dtd.30.8.2021 in which O.P. No.3 & 4 indicated that they have accepted a liability of Rs.6,53,356/- for accident of the vehicle and they insisted O.P. No.2 to ask for an affidavit from the complainant to accept the amount as full and final settlement and further complainant should withdraw the consumer complaint for release of his vehicle, which amounts to unfair trade practice on the part of O.P. No.3 & 4. On dtd.25/26.3.2021 the said vehicle met with an accident at about 3 AM near Balugaon on NH-16 and the same was severely damaged and the complainant informed about the accident to Balugaon police and Balugaon police made station diary entry on 26.3.2021. Immediately the complainant informed about the accident to O.P. No.1 as well as O.P. No.4 and accordingly O.P. No.4 registered the claim regarding the accident vide claim No.3379/33/23/90 and thereafter the accident vehicle was shifted to workshop of O.P. No.2 who is authorized dealer of Ashok Leyland.

            The opposite parties No.3 & 4 have filed their written note of argument objecting the prayer of applicant on following grounds:

            During the entire process the insured complainant was not directly communicating with the insurance company and have no correspondence with the insurance company. No intimation of completion of repair work was communicated to the surveyor or the insurance company by the insured. The surveyor on its own made the final survey in presence of the insured as well as repairer of the vehicle and after careful examination of the repair work assessed the final liability of the insurance company as Rs.6,63,356/-. During the process of claim settlement the complainant made further delay in claim settlement process by approaching different forum, including this Commission for which he himself to be blamed and the insurance company is no way responsible for the same. The insurance company cannot settle claim in absence of clean satisfaction and signed discharge voucher. Surveyor report has been filed in court within 45 days of receipt of notice and the complainant is aware of the same, till date assessment has not been challenged by way of expert evidence.

            The complainant is maintaining his livelihood from the vehicle and the same is lying idle since 26.3.2021 and the complainant is running here and there to get justice though the facts are not disputed and the amount in question sanctioned by the surveyor of Rs.6,63,356/- out of which Rs.3,00,000/- has already paid on 24.6.2021 and the rest amount is state pending and the opposite parties No.3 & 4 are insisting to withdraw the case after which the settlement to be made and as such the order of settlement of payment of insurance amount is hanging. The complainant has purchased the vehicle under higher purchase scheme from opposite party No.1 and each day of delay of paying the installment the dues of the financer is increasing. The opposite party No.1, 3 & 4 and sister concerned and the same organization i.e. Cholamandalam but not cooperating each other to settle the dispute. The complainant is running here and there for one year to settle the claim. Had it been settled without insisting to give the undertaking, signing the claimed discharge voucher, satisfaction voucher and an affidavit to withdraw the present case then the matter could have been settled. This attitude speaks the high handedness and arbitrary attitude of the opposite parties No.3 & 4 to put pressure on the complainant to withdraw the case and to accept and whatever amount they have settled.

            The opposite parties have caused delay and pressuring the complainant to withdraw the case which could have been settled by giving intimation that the amount paid is full and final settlement subject outcome of the consumer complaint pending before this Commission, but pressuring the complainant to withdraw the case and thereby causing delay amounts to deficiency of service and unfair trade practice.

            We therefore allow the consumer complaint directing the opposite party No.3 & 4 to pay the amount as per the report of surveyor with 18% interest per annum. We further direct to pay cost of Rs.30,000/- (Rupees thirty thousand only) to be paid by the opposite party No.3 & 4 for pressuring the complainant to withdraw the case, harassment, mental agony and cost of litigation.

            The opposite party No.1 who has financed the vehicle and sister concern of opposite party No.3 & 4 is directed not to charge any penal interest from 26.3.2021 to till vehicle is released from workshop of opposite party No.2. The opposite party No.3 & 4 shall bear the workshop charge for parking the vehicle from 26.3.2021 to till the vehicle is released. With the aforesaid observation and direction the consumer complaint is disposed of.   

            Pronounced in the open Commission on this 23^rd  August 2022.