MR RAMSANKAR NAYAK, MEMBER …         The factual matrix of the case is that, the complainant had procured a Chevrolet Tavera for his livelihood bearing its Regd.No. OD 24-A-7515, Engine/Chassis No. 3DQ193083 and MA6ABCD5FFH003891, availing finance by the OP.1 & 2. The total cost of vehicle was Rs.8,47,226/- for which down payment was made by the complainant Rs.2,97,226/- and the rest Rs.5,55,532/- was financed by the OP.1 & 2 on dt.20.05.2015 with a hypothecation agreement and the complainant agreed to repay the borrowing amount in 40 EMIs. In addition to that, the OP.1 & 3 advised the complainant to deposit Rs.30,345/- as insurance premium to his new vehicle which he paid so and obtained cover note to that effect on dt.02.05.2015 vide cover note No.CN16400002/4101/129798. Again a sum of Rs.41,773/- was paid by the complainant towards online registration of the vehicle with OP.4 and the alleged vehicle got registered on dt.28.05.2016 with the RTO, Nabarangpur. That on dt.28.11.2015 the vehicle unfortunately met with an accident at village Sagarmunda near Village Tentulikhunti, dist of Nabarangpur at about 1.30 P.M. and the vehicle got severely damaged. At the time of accident a driver was riding the vehicle and he was valid driving license at that time. On the same day the complainant approached the OP.3 at Jeypore, who assured quick settlement of the claim, but waiting of 3-4 days the complainant found that the OP.3 did not take any initiations for his claim. Hence finding no other way the complainant shifted the vehicle through touch on to Jagannath Motor, at Semiliguda, dist of Koraput by expending Rs.6000/- for repair. The authority of concerned motor assessing the damaged vehicle made an estimate of Rs.1,73,469/-. The complainant further approached the OP.3 who again assured him to settle the claim within a short period. But watching lip service the complainant being aggrieved again approached the OP.3 on dt.04.01.2016 and demanded the relevant insurance papers of the alleged vehicle for which they supplied a copy of insurance policy paper and finally they said that "the complainant is not entitle for any claim on the ground that the engine no and chassis no are different in R.C. book and in the policy". The complainant stated that the OP.no.3 who insured his vehicle by taking Rs.30345/- as premium has wrongly mentioned any other Chevrolet vehicle engine no and chassis number vide 3DQ193034 & Chassis no. MA6ABCD5FFH003992 with the name and address of present complainant. He contends that his vehicle engine No & chassis No is 3DQ193083 and MA6ABCD5FFH003891 and the financer OP.1 & 2 has financed for this engine no & chassis number but not for any other number and the OP.no.3 has taken the premium money for engine No & chassis No. 3DQ193083 and MA6ABCD5FFH003891. He further contends that, the complainant has paid Rs.30,345/- as premium to one Mr Abhinash" who was an employee under OP.no.3 and he is the person who issued cover note bearing no.111130158010123 to the complainant. The OP.s repudiate his claim by taking false pleas that the engine no and chassis no 3DQ193083 and MA6ABCD5FFH003891 is not insured with the present complainant and is not belonging to Ajay Kumar Gupta. The complainant herein stated that the Ld arbitrator of OP in arbitration case no.194904 the OP.2 prayer to allow an award of Rs.607694 from the complainant who is the owner of Chevrolet vehicle bearing engine no and chassis number  3DQ193034 & Chassis no. MA6ABCD5FFH003992, and again on dt.05.01.2017 the ld arbitrator passed order that "due to some technical errors the vehicle in possession of the complainant has been wrongly mentioned in the books of OP.s and the OP.s in that case has prayed for extension of time and also prayed for cooperation of the complainant to get the same corrected".

2.         The complainant contends that, he procured the so called vehicle for his livelihood and alleged vehicle is only source of him as he was earning Rs.15,000/- p.m from the vehicle. He further stated that, he was regular depositor of EMIs and he was never default of his EMIs before capsized the vehicle. Hence due to issuance of wrongful cover note by receiving a huge amount of premium he is not at all responsible for the wrong of OP. He further claimed that, there is deficiency in service on the part of OP.s and after repudiation of his claim he neither could repaired the vehicle nor able to continue to deposit EMIs before the OP.1 & 2 and the vehicle is still in the possession of Jagannath Motor, Semiliguda since 18 months and the complainant assumes that the Jagannath motor will charge more then the estimate cost plus parking charges of the vehicle from the complainant. So the complainant stated that due to the illegal action, arbitrariness, unfair trade practice of OP.s, the complainant inflicted mental agony, financial losses.  Further the counsel for complainant has filed his written argument wherein he specified following prayers, that he is entitled for a total sum of Rs.5,76,000/- i.e. 1) Rs.2,70,000/- as his monthly income @ Rs.15000/-p.m. from dt.28.11.2015 to till date, 2) Rs.2,50,000/- towards repair cost of the vehicle, 3) Rs.6000/- as vehicle shifting charges to Jagannath motors, Semiliguda & a sum of Rs.50,000/- towards compensation for mental agony including cost of litigation along with @ 12% interest be imposed on the above amounts in the interest of justice.

3.         The counsel for OP.1 & 2 has entered his appearance and filed counter wherein he contends that, at the time accident, the alleged vehicle was drive by a driver, hence the complainant cannot be treated as consumer. The present case is not coming under the jurisdiction of the present forum. In spite of this he stated that, as per contract vide No.PG/0158/C/14/000009 dt.01.05.2015, the cost of vehicle is Rs.8,47,226/- out of which Rs.5,55,532/- was financed by this OP.s to the complainant. The complainant was agreed to pay Rs.1,64,468/- as finance charges, hence the complainant is liable to pay total sum of Rs.7,20,000/- as contract value. Besides the OP.1 & 2 relied several decisions of higher courts as detailed specified in the counter and contends that this OP is not entitled for any compensation and prayed to dismiss the case against them.

4.         The counsel for OP.3 has entered his appearance and contends that, on the basis of sale certificate, the OP.1 issued the cover note bearing no.CN16400002/4101/129798 dt.02.05.15 and on the basis of said cover note, the OP.3 had issued insurance policy vide policy no.P0016400002/4101/101362 dt.02.05.2015 valid upto 01.05.2016 against Engine No.3DQ193034 & Chassis no. MA6ABCD5FFH003992. As the complainant has not claimed before this OP, the question of deficiency in service does not arise and the entire claim of compensation etc does not arise. He further contends that, the forum has no jurisdiction to try the case as the case is hit by sec.11 of C.P.Act 1986. Hence he prayed to dismiss the case. In spite of the above contents the OP.3 specified nothing except evasive denials in his counter.

5.         The OP.4 neither appeared nor filed his counter in the case, hence he set exparte and the forum proceeded its adjudication with the evidences available in record. 

6.         The counsel for complainant has filed copy of annexure as per his list of document along with affidavit of complainant. The counsel for OP.1,2 & 3 has filed their counter with some copy of documents but failed to file any affidavit in support of their claims. However evidences considered. Heard the parties minutely and perused the record.

7.         Pursuing complaint, counter and evidences, the forum before delving into detailed adjudication, sorted out the following issues for consideration:-

A.        Is the complainant a consumer against the OP.s ?

B.        Is this forum ousted of the jurisdiction as envisaged by Sec.11.(2) of the C.P.Act.

C.        Is there any deficiency in service on the part of the OP.s in regard to the present             transaction?

D.        Is there any remedy available to the parties in the lis ?

            It is uncontroverted fact that, the complainant being the registered owner of the alleged vehicle under dispute and has been plying it for his self employment, and is a complainant as per the C.P.Act 1986.

8.         Primarily, the agreement executed between parties to the lis is in nature of loan agreement, with hypothecation of vehicle in question. The complainant submits that, he being unemployed for his self employment and to earn livelihood, he had bought the vehicle to lend on rent. The marketing personals of OP.1 & 3 had approached the complainant at his residence at Nabarangpur, who working throughout the local limits of Nabaangpur district and being convinced on their sales approach the complainant procured the so called vehicle.

9.         Sec.2 (O) of the act defines ‘service’ means service of any description which is made available to potential uses and includes, but not limited to the provisions of facilities in connection with banking, financing, insurance, transport, procuring……

10.       Hence, the OPs are NBFC Company availing of financing services to their customers and the present complainant availing that service for a valuable consideration i.e. interest, hence the Complainant is a consumer under the C.P.Act.

11.       The complainant further submits that, the OP is an NBFC company which sells loans to its perspective customers. It has, apart from opening the branches as opened in various parts of Odisha, especially one at Jeypore, it has employed local talents to have knowledge of customer profile, approach the prospective ones to sell loans through these local agents. The marketing personals get the agreements & papers all blank sign at the door step of complainant including some extra blank papers, disburse loan amount, collects the installment, but with the intensions of malice.

12.       Pursuing all the  evidences produced by the OP.s and Complainant, along with their submissions, this forum is brushed off of any doubts to opine that the cause of action, arose at Nabarangpur, and there is no ambiguity as to the question that the OP.s carries on their business through their agent, in Nabarangpur, the hypothecated vehicle also registered with the R.T.A. Nabarangpur, hence all the facts consolidated throws the burden of jurisdiction under this forum to adjudicate the Complaint of its merit, and this forum feels to repudiate from the burden would inflict a great injustice unto the Complainant.

13.       It reveals from the record that, the present complainant has procured the vehicle Chevrolet Tavera bearing its Regd.No. OD 24-A-7515 from the OP.4. It is admitted by parties that the complainant had purchased the said vehicle borrowing huge loan from OP.1 & 2. The record says, the complainant has paid premium of Rs.30,345/- for insurance of the said vehicle through the employee of OP.3 namely Mr Avinash, who issued the insurance cover note on basis of sale certificate of OP.no.4. Wherein the OP.no.1 issued a cover note vide no.111130158010123 on dt.30.4.15 on basis of sale certificate of OP.4 but it is seen from the cover note that, wherein except the name and address, there is no engine no or chassis number mentioned on the face of that. Thereafter the OP.3 also issued a cover note on basis of sale certificate of OP.4 vide policy no. CN16400002/4101/129798 dt.02.05.15 for Engine no. 3DQ193034 & Chassis no. MA6ABCD5FFH003992 in the name of Ajaya Kumar Gupta, Nabaragnpur. In view of loan agreement/hypothecation papers of OP.1 & 2, there is mentioned the Engine no. 3DQ193034 & Chassis no. MA6ABCD5FFH003992 in the name of Ajaya Kumar Gupta.

14.       It also pertinent to mention here that the OP.1 & 2 deliberately knowing all the facts about technical error on the face of insurance cover note did not step up for rectify the same, rather they have drag the complainant to their arbitration and under huge mental and financial crunches the complainant under compulsion being law abiding person faced the adjudication of concerned arbitrator. No doubt the complainant is a defaulter of EMIs of onward period of accident but before the accident period he had regularly deposited his agreed EMIs before the OP.1 & 2.

15.       It is seen from the record that the officials of OP.1 & 2 have approached the complainant to purchase the alleged vehicle and also assured to avail loan from OP.no.2 at his level and all the transactions like hypothecation agreement, taking premium of insurance & charges of online registration are being taken at the house of complainant. It is also found that, the complainant is an illiterate one who put his signs all in Hindi languages and lack of education the complainant could not found errors in agreement and other papers. The complainant could know the fact of error on demand of cover note from the OP.no.3. On perusal of record of R.C.Book and related papers of RTO, Nabarangpur of the concerned vehicle Regd No.OD-24-A-7515 stands recorded in the name of present complainant along with same care/of & address with Engine No. 3DQ193083 and Chassis No. MA6ABCD5FFH003891.

16.       The counsel for complainant has filed his written argument wherein he specified and averred that, from the arbitrator order that, 'on behalf of the claimant it is submitted before the Tribunal that due to some technical errors the vehicle in possession of the respondent has been wrongly recorded in the books of the claimant company which was duly been be pointed out in the reply filed by the respondent dt.26.11.2016. The claimant is hereby prayed for extension of time and also prayed for cooperation of the respondent to get the same corrected." Further the counsel for complainant vehemently urged upon that, the OP.1-3 has not filed any document such as R.C. book & other documents of concerned vehicle bearing Engine no. 3DQ193034 & Chassis no. MA6ABCD5FFH003992 only because of suppressing the material facts before the forum. It is seen that the office personal of OP.s after receipt of premium Rs.30,345/- have issued insurance cove note No.111130158010123 on dt.30.4.15 of the so called vehicle dt.30.04.2015 to the complainant which was handover at his house. But after accident and at the time of insurance claim and on demand of insurance cover note, the OP.s first of all convinced the complainant in dilly dallying assurances and finally issued a cover note dt.02.05.2015 bearing cover note No. CN16400002/4101/129798 dt.02.05.15 for Engine no. 3DQ193034 & Chassis no. MA6ABCD5FFH003992 in the name of Ajaya Kumar Gupta, Nabaragnpur. The counsel for complainant also contends in his written argument that at the time of insurance claim, the quantum of compensation was as per the then price and situation of every losses but after a lapse of above two years the quantum of compensation in every corner shall be enhance as per present price and losses.  

17.       The counsel for OP 1-3 though filed their counter but failed to file any supportive evidence and affidavits. No doubt the OP.s are dealing with public money under the guidelines of Insurance Regulatory Development Authority of India but here in the instant case they have not followed the procedure of the IRDA and issued cover note without physical verification of the vehicle and kept the complainant in dark at the time of claim. So we found deficiency in service on the part of OP.1,2 & 3 for whose negligence the complainant inflicted huge financial losses and time, hence he craves the leave of the present forum due to arbitrary actions of OP.s. The vehicle in question is still lying with the possession of Jagannath Motor, Semiliguda, Dist of Koraput, since above 18 months, hence the complainant not able to pay his EMIs before the OP.1 & 2 rather he losses him monthly income at least 15,000/- per month, so the complainant is entitled to get compensation for the unfair transaction and negligence action of OP.s.

            As thus we allowed the complaint against OP.no.1, 2 & 3 with cost.

                                                                        ORDER

i.          The OP.no.1, 2 & 3 are hereby directed to pay a total sum of Rs.5,76,000/- (Rupees Five Lakh Seventy Six Thousands) as claimed towards losses, inter alia to pay a sum of Rs.20,000/- (Twenty thousand) as compensation & Rs.2,000/- (Two thousand) for the cost of litigation to the complainant.

ii.         All the above directions shall be complied with in 30 days of receipt of this order, failing which, the total sum will bear 12% interest per annum till its realization. Pronounced on this the 10th day of May' 2017.

               Sd/-                                                                     Sd/-

         MEMBER                                                   MEMBER, DCDRF,

                                                                                NABARANGPUR.