IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 21st day of May, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 170/2010 (Filed on 08.12.2010)
Between:
Biju. K. Babu,
Kozhikunnathu House,
Malayalapuzha Thazham.P.O.,
Kozhencherry Taluk,
Pathanamthitta.
(By Adv. Jaison Mathews) ….. Complainant
And:
1. Bajaj Allianz General Insuance Co. Ltd.,
Rep. by the Divisional Manager,
Anugraha, T.C.28/2222, 2nd Floor,
M.G. Road, Pazhavangadi,
Thiruvananthapuram – 695 023.
2. The Branch Head,
Baja Allianz General Insurance Co. Ltd.,
Pathanamthitta Branch,
Pathanamthitta.
(By Adv. Sam Koshy for opp. parties 1 & 2)
3. Grand Motors Sales & Services Pvt. Ltd.,
Rep. by its Managing Director,
Industrial Development Area,
Opp. Kozhuveli Railway Station,
Veli, Thiruvananthapuram.
4. The Branch Head,
Grand Motors Sales & Services Pvt. Ltd.,
Chathiparambil Building,
Thukalassery, Thiruvalla,
Pathanamthitta.
(By Adv. R. Gopikrishnan & R. Jagadhishkumar
for opp. parties 3 & 4) ….. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Facts of the case in brief is as follows: Complainant is the registered owner of 2004 Model Eicher G.V LMV Goods Carriage (Tempo Truck) vehicle, bearing Reg.No.KL.3L-5328. The opposite parties are carrying on their business at Pathanamthitta. The 1st and 2nd opposite parties are insurance company, Divisional office and branch office respectively. The 3rd and 4th opposite parties are the authorized workshops. Complainant had taken a comprehensive insurance policy for his vehicle from opposite parties 1 and 2.
3. The complainant’s vehicle met with an accident on 22.11.2008 at Churulikode in Pathanamthitta District and took the vehicle to 4th opposite party’s workshop for repairing. Complainant had given information to the opposite parties 1 and 2 and submitted the claim form with documents. According to 3rd and 4th opposite parties the maintenance and repair works of the said vehicle is required Rs.1,50,000. A criminal case was also registered by the police officials of Pathanamthitta police station as Crime No.954/08. Even though complainant filed claim application with requisite documents to the opposite parties 1 and 2 till this date not given any reply.
4. According to the complainant, his vehicle is still stationed at the workshop of the 4th opposite party. The acts and omission of the 1st and 2nd opposite party caused severe mental agony to the complainant. For the last two years, he is unable to earn a single penny by plying the above said vehicle If the claim was upheld by the 1st and 2nd opposite parties, the 3rd and 4th opposite parties can undertake the repair work within a span of 3 months. It was not done because of the claim was not upheld by the 1st and 2nd opposite party. This is a situation created by the inept attitude and deficiency of service and unfair trade practice of 1st and 2nd opposite party. This caused mental agony and distress to complainant. Hence this complaint for getting Rs.1,50,000 as claim amount with a compensation of Rs.50,000.
5. Opposite parties entered appearance and filed version. Opposite parties 1 and 2 filed version jointly stating that complaint is not maintainable either in law or on facts. They admitted the policy and accident. On receipt of the claim they deputed a surveyor approved by IRDA to assess the loss. The surveyor filed report on 22.01.2009 assessing the net loss as Rs.60,053.58.
6. According to them as per the policy the vehicle of the complainant was subject to a hypothecation and the same was entered in the R.C. Book and the policy. As per the hire purchase laws, the financier stand in the footing of the owner of the vehicle and the status of the R.C owner is only a hirer. In that case, the financier is having the 1st charge over the insurance amount. It is revealed from complainant and the financier that the account of the former with the latter fell in arrears. The complainant has made a consent in writing stating that the payment is to be made to the financier named Shri Ram Transport Finance Co. Ltd. Accordingly the opposite parties 1 and 3 has made the payment of Rs.60,053 to the said financier and obtained receipt also. It is also understood from the financier that the said amount was directly credited to the account of the complainant on 29.01.2009 and after that his arrear became clear. Finally he settled his account on 10.05.2009. Complainant approached this Forum concealing the above said facts.
7. The vehicle is subject to hypothecation agreement with Shri Ram Transport Finance Co. and to secure financial interest of said financier endorsement IMT-7 is being made in the policy. Since financial interest of financier being involved, it is proper and necessary party to the proceeding and complaint is had in law for non-joinder of necessary parties.
8. As STFC is the financier and vehicle has been hypothecated hence payment have already been done to financier with the consent of insured, there is no deficiency of service. Therefore opposite parties 1 and 2 canvassed for the dismissal of the3 complaint with their cost.
9. 3rd and 4th opposite parties also entered appearance and filed version stating that complaint is not maintainable either in law or on facts. 3rd opposite party admit that 4th opposite party is their branch and the damaged vehicle was repaired at the instance of the complainant to the tune of Rs.60,000. The vehicle requires further repairs and the complainant was not able to meet the repair charges and directed the opposite parties to stop further repairs on the vehicle. The complainant has informed them that he would get consent from 1stand 2nd opposite party and then the repairs can be re-started.
10. The present day position is that the complainant has parked the damaged vehicle in the premises of this opposite parties made them spent much amount on the repairs and the vehicle is parked unauthorisedly. These opposite parties are entitled to Rs.60,000 spent on the repairs of damaged vehicle and also Rs.50,000 for unauthorisedly parking the vehicle in their premises. The opposite parties are entitled to demurrage for the unauthorized parking of the vehicle and so also the amount spent on repairs of the vehicle partially done. The 3rd and 4th opposite party canvassed for the dismissal of the complaint with their costs.
11. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
12. Evidence of the complainant consists of the oral deposition of PW1, DW1, DW2 and marked Exts.A1 to A3 and B1 to B3. After closure of the evidence, opposite parties 1 and 2 filed argument notes and both parties were heard.
13. Point Nos.1 to 3:-In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Ext.A1 to A3. Ext.A1 is the copy of FIR and F.I Statement in Crime No.954/08 of Pathanamthitta Police Station. Ext.A2 is the copy of R.C. Book of the vehicle. Ext.A3 is the letter dated 18.07.2009 issued by 4th opposite party to complainant demanding the charges of repairing the vehicle.
14. In order to prove the opposite parties contention, 1st and 2nd opposite parties surveyor was examined as DW1 and marked Exts.B1 to B3. Ext.B1 is the final survey report of the vehicle. Ext.B2 is the claim form. Ext.B3 is the statement of account regarding the loan transactions of complainant’s vehicle.
15. On the basis of the contention and argument of the parties, we have perused the entire material on record. Complainant’s case is that his insured vehicle met with an accident and taken to 4th opposite party’s workshop for repairing. Though the complainant filed claim, they had not intimated either to allow or not. Since the claim was not upheld by opposite parties 1 and 2 the 3rd and 4th opposite parties cannot undertake the repairing work. This created mental agony and hardship to complainant.
16. 1st and 2nd opposite party’s contention is that complainant’s vehicle has a hire purchase agreement with Shriram Tansport Finance Co. Ltd. and the hypothecation was entered in the R.C Book and the policy. As per hire purchase agreement, the said company is having the 1st charge over the insurance amount. Since the complainant has some arrears, they made the payment of Rs.60,053 to the said company and the same was credited to the account of the complainant and cleared the arrears. Therefore there is no laches or deficiency on their part. According to 3rd and 4th opposite parties, the damaged vehicle was repaired by them up to the tune of Rs.60,000. But they will not get any amount and therefore stop the work. According to them, the vehicle parked in their premises and they entitled to get Rs.60,000 as repairing charges and Rs.50,000 as demurrage of the vehicle.
17. It is seen that there is no dispute regarding the accident of the vehicle and the validity of the policy. On a perusal of Ext.B1, it is revealed that the surveyor assessed the loss as Rs.60,053.58. Ext.B2 shows that complainant filed the claim before the 1st and 2nd opposite party. Ext.A3 shows that the vehicle lying in the workshop in an unfinished condition. Ext.B3 is the statement of account, the complainant’s loan account with Shriram Transport Finance Co. Ltd.
18.1st and 2nd opposite parties specific contention is that complainant hypothecated his vehicle with Shriram Transport Finance Co. Ltd. It is evident that the said hypothecation is recorded in Ext.A2. According to them as per hire purchase agreement, the 1st charge goes to the hirer. According to them, complainant has arrears with the said company and the claim amount was credited to the said arrear. The contention of arrears has been admitted by complainant. It is evidence in PW1’s deposition which is as follows:- “C.C CS-]m-Sp-IÄ CXp-hsc XoÀ¯n-«n-Ã. hml\w A]-I-S-¯nÂs¸-«-Xn-\p-tijw 2 C.C instalments AS-¨n-«pv”.
19. It is also pertinent to note that in Ext.B3 on 29.01.2009 1st and 2nd opposite party credited Rs.60,053 to the loan account. Moreover, complainant has not challenged Ext.b3 so far. In the circumstances, it is crystal clear that complainant’s claim amount of Rs.60,053 is credited in his loan account.
20. From the overall facts and circumstances and the available evidence on record, we are of the view that opposite parties 1 and 2 had credited the claim amount to complainant’s loan account. Since the claim amount is paid, there is no laches or deficiency on their part. Therefore, complaint is not allowable and liable to be dismissed.
21. In the result, complaint is dismissed. No cost.
Declared in the Open Forum on this the 21st day of May, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Biju. K. Babu
Exhibits marked on the side of the complainant:
A1 : Copy of FIR and F.I Statement in Crime No.954/08 of Pathanamthitta Police Station.
A2 : Photocopy of R.C. Book of the vehicle.
A3 : letter dated 18.07.2009 issued by 4th opposite party to
complainant.
Witness examined on the side of the opposite parties:
DW1 : G. Sasidharan Nair
DW2 : Shilu. J
Exhibits marked on the side of the opposite parties:
B1 : Survey report of the vehicle.
B2 : Claim form.
B3 : Statement of account.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Biju. K. Babu, Kozhikunnathu House,
Malayalapuzha Thazham.P.O., Kozhencherry Taluk,
Pathanamthitta.
(2) Divisiopnal Manager, Bajaj Allianz General Insuance
Co. Ltd., Anugraha, T.C.28/2222, 2nd Floor,
M.G. Road, Pazhavangadi, Thiruvananthapuram
Pin – 695 023.
(3)The Branch Head, Bajaj Allianz General Insurance
Co. Ltd., Pathanamthitta Branch, Pathanamthitta.
(4)Managing Director, Industrial Development Area,
Opp. Kozhuveli Railway Station, Veli,
Thiruvananthapuram.
(5)The Branch Head, Grand Motors Sales & Services
Pvt. Ltd., Chathiparambil Building,
Thukalassery, Thiruvalla, Pathanamthitta.
(6) The Stock File.
