Orissa

Jajapur

CC/38/2015

Nrusingha Chandra Nayak - Complainant(s)

Versus

Branch In Charge,Sri Ram Transport Finance Co Ltd. Chandikhole Branch - Opp.Party(s)

Alok Kumar Pani

29 Jan 2018

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 29th day of January ,2018.

                                                 C.C.Case No.38 of 2015

Nrusingha ch.Nayak,  S/O Late Bandhu Nayak 

At./P.O. Aruha, , P.S.Dharmasala , Dist..Jajpur .  

                                                                                                                            …....Complainant .                                                                       .

                   (Versus)

1.Branch –in-charge,Sriram Transport,Finance Co.Ltd, Chandikhole

   Branch, At.Chandikhole, P.O.Sunguda,Dt.Jajpur

 

2. Sriram Transport,Finance Co.Ltd, At.Gitanjali Complex,2^nd floor,Luis Road

    Near Rajarani Petrol Pump,Bhubaneswar.

.

3.Sriram General Insurance Co.Ltd,E/8,EPIP,RIICD Industrial Area,

  Sitapura,Jaipur,Rajasthan.

 

                                                                                                                      ……………..Opp.Parties.

                

For the Complainant:                                      Sri A.K.Pani,Advocate.

For the Opp.Parties : No.1 and 2                   Sri P.K.Ray,Advocate .

For the Opp.parties: No.3                              Sri S.K.Mishra, Advocate.                                                                                   

                                                                                                Date of order:   29.01.2018.

MISS  SMITA  RAY, LADY MEMBER  .

            Deficiency in finance/insurance service is the grievance of the petitioner.

            The fact which has been stated by the petitioner in the complaint petition is that the petitioner  being an unemployed person for maintaining his lively hood  under self employment scheme  purchased a truck bearing  No.0R-09-F-9576  taking financial assistance from O.P.no.1 and 2 on the strength of an hypothecation agreement with the term and conditions to repay  the loan along with interest  in stipulated period .The vehicle is also insured by o.p.no.3 vide policy no.10003/31/12/114418 commencing from i.e mid-night  10.06.11  to  09. 06.12.

            During subsistence the above policy , the vehicle was stolen away by some unknown culprits on dt.06.6.12 night from Siba  Temple  , near the residence of the petitioner . On the next day morning the matter was  reported to I.I.C, Dharmsala P.S  vide P.S case no.186/12  U /S  379 I.P.C. The P.S case was treated as G.R  Case  No. 573/12 by the JMFC, Chandikhole .The matter of theft was also intimated to the insurer and financer  immediately  and as per the instruction of the insurer the petitioner executed  one  indemnity bond on 22.8.12 . After completion of investigation the I.I.C, Dharmasala P.S  submitted  FRT as no clue  U/S 379 I.P.C before J.M.F.C, Chandikhole  vide G.R case No. 573/12.  After a long  lapse of  time since  the insurer did not settled the claim  for which,  the petitioner suffered  mental and physical and financially loss .The O.p.no.1 and 2   also though  silent about the matter ,  on the other hand   told  to the petitioner verbally that they will charge D.P.C on the over dues amount at the rate of 36 %  per annum which is also illegal as per observation  of Hon’ble  Appex court as well as Hon’ble  High  Court of Odisha . Besides this the petitioner  sent a regd.  pleader notice to the  o.ps on  04.03.15 regarding his grievance but the O.Ps  after receipt of the notice  remained silent  .  Accordingly the petitioner filed the present dispute with the prayer to  direct the o.pno. 1 and 2 to waive out the interest form 06.06.12 and prioo to 06.06.12 to  calculate  the D.P.C  as per direction of the High court of Orissa.  and  also direct   the O.P.No.3 to settle the insurance claim  immediately and also allow  interest  @ 10% per annum  from 06.06.12 till its realization   along  with a compensation of Rs.20,000/-.

            The O.Ps   entered   appearance through their learned  advocate and subsequently field their  written version .The O.P.no.1 and 2  have stated in their written version  that the consumer complaint as laid is not maintainable  either in  law or in f acts .   It is further submitted  since the dispute pertains to non settlement of insurance claim by o.p.no. 3  accordingly the answering o.ps.no.1 and 2  have been unnecessarily  dragged into  the  dispute through  an ambiguous prayer .The reliefes sought  against the answering O.Ps  like o.p.no..1 and 2 to waive out the interest as per direction of Orissa High court is ambiguous unspecific and the same is also tantamount  to rewriting the agreement which is beyond the scope  and ambit of C.P..Act 1986 .  Besides this the  insurance claim amount is liable to be disbursed in favour of the financer  as the  financer is the owner of the vehicle as per  law and the name of the financer /O.P.no..2 is registered in the hypothecation column of  the registration  certificate. Therefore the relief sought for against the answering o.ps .no.1 and 2 is not tenable in the  eye of law.

            Further   in the instance case the complainant has become a chronic defaulter   as on dt. 13.03.2015 , he was liabel to pay of Rs13,14,352/  . Therefore  the claim of the complainant  against the insurance claim is not sustainable in the  eye of law  as per observation  of  Hon’ble  Appex chief Executive  officer & Vice chairman ,Gujarat Martime Board Vers. Haji Daud Haji Haryun Abu & Co reported  in (1996) -11- SCC-23 in civil appeal no. 7515 / 2001 with C.A No. 8495,8496 /2001 , 3393,4024,   8000 and 8002 of  2002 , M/S  Krishna Food  &  Banking  Industry Pvt.ltd vers. M/S  New India Assurance Co.Ltd & another  reported in 2009(1)CPC-1.

            In view of the above fact and circumstances  it is prayed that the consumer  complaint may kindly be dismissed against O.P.no.1 and 2 and the O.P.no.3 may  be directed to pay the insurance claim settlement amount directly in favour of O.P.no.1 company.

            Similarly the  O.P.no.3 stated in the  written version  that the above case filed under provision of C.P Act is not maintainable  in the eye of law and on  facts since the grounds  alleged by the petitioner  is completely baseless and do not attract any deficiency  of service at  the end of the O.P  which should be dismissed with exemplary  cost . That the  full and final  claim of the petitioner  in respect of theft  claim of his vehicle on 06.06.12 has been settled  with his knowledge to his financer since there was over due loan amount on the vehicle by the petitioner and the loan amount was also pending for long time on the petitioner prior to one year of alleged theft of his truck  and the total settled  amount of Rs. 5,39,000 /- has been paid to the financer i.e O.P.no.2 on 20. 03.15 and there  exists  absolutely no dispute  between the complainant and O.P.no..3 . Regarding  statement  made under  column -5 of the petitioner,  this  O.P receipt of claim intimation of the alleged vehicle on 25.6.12 and after investigation the matter through  National Crime  Record  Bureau  and theft agency of STFC and assessed  total loss to the extent of Rs. 5,39,000/- i.e (IDV value i.e 5,40,000/- -_ 1,000/- ) and paid the same to the financer on  20.3.15 and the petitioner was  well informed by the O.P.no.3   but knowing everything he has come to this  Forum only to kill much valuable time and to harass the O.P . As such  there is no deficiency of  service on the part of the O.P since the claim has been processed in due time in   consultation of the petitioner and he was in  close contact with the  O.P for settlement of his claim and the claim has been settled in full and final to his financer. In view of the above facts and circumstance in the present complaint petition deserves no merit and  it should be

dismissed  with exemplary  cost.

            On the date of hearing we heard the argument from the learned advocate  of both the sides. After perusal of the record  and documents in details we observed that:

1. It is undisputed  fact that the petitioner  purchased the above vehicle with the financial l assistance of O.p.no.1 and 2 on the strength of hypothecation agreement  and the said vehicle was insured by O.P.no.3 . In subsistence  of the insured period the said vehicle was stolen by unknowns culprits on dt.06.6..12                     

2. it is also undisputed fact that after theft  of the said vehicle  the matter was informed by both the insurer and financer to local police  and after investigation the matter  investigating   officer of Dharmasala PS submitted the FTR before the JMFC, Chandikhole stating that the case  is true  but no clue

3.it is a fact that the dispute is arises when the O.P.no..3 did not settled  the claim   after completion of near about 3 years  though  all due formalities were observed   .In this contest the petitioner served a pleader notice to all the o.ps but after receipt of pleader notice the O.Ps have  remained silent. This attitude of the o.ps may draw adverse inference as per observation  of Hon’ble National commission reported in    2013(1)-CPR-456-NC                             

It is our considered view that when the O.P.no.3 did not give any reply to the above pleader notice  the petitioner was constrained to file the present dispute . Thereafter we verified  the written version  filed by O.P.no.3 wherein O.P.no.3 stated that the total claim settlement amount of  Rs.5,39,000/- has  been paid  to the financer i.e O.P.no.2 on 20.3.15 with the knowledge of the petitioner .On the other hand the O.P.no.1 and 2 taken  the stand in the written version  dt.9.7.15  wherein it is stated that the O.P.no.3 may be directed to pay the insurance claim ( settlement amount )  directly in favour of O.P.no.1 and 2 company . In this peculiar circumstance  in case the Insurance claim has been paid to the financer under what circumstances again the O.P.no.1 and 2 have prayed to direct the O.p.no.3 to pay the Insurance claim directly to O.P.no.2 .  In addition to it the O.p.no.3 also has not filed any documentary evidence to prove that the O.p.no.3 has informed the petitioner regarding settlement of Insurance claim  . In the mean time during the pendency of hearing of present dispute the O.P.no.3 filed a statement  of loan account where  it is  reflected that the said settled insured amount Rs.5,39,000/ of the above alleged vehicle  has been  credited on 25.3.15 in  the loan account of the above vehicle .Hence it is our considered view the O.P.no.3 committed  gross negligence and patent deficiency of service   as well as unfair trade practice by settlement  of the above insurance claim of the above vehicle , for which it took time nearly  about three years for settlement of the above insured claim.

O R D E R

            1.The op.1 and 2 are directed  to recalculate  the DPC   at the rate of 9% per annum on the over dues amount of the above vehicle as per observation of Hon’ble High court of Orissa vide W.P. © No.17720/08 and 2001-AIR-3091-SC.

2.The O.P.no.3 is directed to pay 9%  interest  per annum on the settled amount Rs.5, 39,000/- of the insurance claim of the above vehicle  from the date of receipt i.e from 25.06.12  till its date of settlement i.e  20.03.15.  along with

the O.P.no.3 is also  to pay Rs. 5,000/- (Rupees five thousand) only as cost of litigation to the petitioner within one  months after receipt of this order.

                        This order is pronounced in the open Forum on this the 29th day of January,2018 under my hand and seal of the Forum.