DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 62 of 2018

 

1. Sri Dulal Karmakar,

S/O. Lt. Prafulla Chandra Karmakar,

Resident of Kamar Pukur Par, Dhaleswar, 

P.S. East Agartala,

Dist.-West Tripura.....................…....................Complainant.

 

-VERSUS-

 

1. Branch Manager,

Shriram General Insurance Company Ltd.

Bardowali, Near T.G.B,

P.S. A.D. Nagar, 

P.O.-A.D. Nagar, Pin-799003,

Dist.-West Tripura,

 

2. Branch Manager, 

Shriram Transport Finance Company Ltd.

MBB College Road, upper floor of HDFC,

P.S.East Agartala, 

Dist. West Tripura........................................... Opposite parties.

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

SMT. DR B. PAL,

 MEMBER, 

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

 

C O U N S E L

 

For the Complainant : Sri Bhaskar Debbarma,

  Sri Debasish Rakshit,

  Advocates.  

For the O.P. No.1 : Sri Utpal Das,

  Advocate.

For the O.P. No.2 : Sri Swarup Pandit,  

                                                               Advocate.

 

JUDGMENT  DELIVERED  ON: 02/12/2019

J U D G M E N T

The complainant Sri Dulal Karmakar, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service committed by the  O.Ps.. 

Complainants' case in brief is that the Complainant purchased one second  hand Truck bearing registration No.TR-01-A-1628 from one Sri Sukumar Saha on consideration money of Rs.3,50,000/-. For purchasing the said vehicle the complainant took loan for an amount of Rs.1,50,000/- from the O.P. No.2 on 26/12/2014. He had to enter into an agreement with the said O.P. at time of taking the loan amount. The loan amount carried interest @32.0422% P.A. As per the agreement, loan amount was required to be paid by the Complainant in 42 monthly installments commencing from 05/02/2015 and the last installment would be paid on 05/06/2018. It was also agreed that if any default occurs in repayment of the loan, the rate of interest would be 36% instead of @32.0422%. The complainant has stated in his complaint that at time of agreement the O.P. No.2 put a condition before him that their sister concern i.e. the O.P. No.1, the Shriram General Insurance Company Ltd. would operate the Insurance Policy of the Truck and that the 42 installments against the loan amount have been fixed after adding the 4 years Insurance Premium of the Truck. The Complainant, accordingly has been paying the loan amount by installments as per the agreement and the O.P. No.1 also issued Insurance Policies of his Truck for the period from 24/12/2014 to 23/12/2015 for the 1st policy, for the 2nd policy which commence from 24/12/2015 to 23/12/2016 and the 3rd policy commencing from 24/12/2016 to 23/12/2017. Due to financial constraint the Complainant could not repay further installment after depositing 25th installment. The Complainant has alleged in his complaint that from 23/12/2017 the O.P. No.1 did not issue 4th Insurance Policy commencing from 23/12/2017. When the matter was taken up by the Complainant with the O.P. No.1 he was told by the O.P. No.1 that he would get the policy from the O.P. No.2. The complainant accordingly enquired the matter with the O.P. No.2  and the O.P. No.2 told him that he will get the insurance policy from the O.P. No.1. A number of times the Complainant visited the Offices of the O.P. Nos.1&2 for getting the insurance policy of his vehicle for the period from 24/12/2017 to 23/12/2018 but he failed to get the Insurance Policy. As per advise of the O.P. No.2 the Complainant has however deposited installment amount of Rs.9,100/- on 25/01/2018. Even after paying the said amount neither the O.P. No.1 nor the O.P. No.2 issued insurance policy for the period from 24/12/2017 to 23/12/2018. 

The Complainant further stated in his complaint that on 03/03/2018 at about 11 P.M. some miscreants set his truck on fire when the truck was parked infront of his house. The complainant informed the incident immediately to the Fire Service and Fire Service personnel rushed to his house and extinguished the Fire on the truck. The Truck was however badly damaged. The Complainant immediately lodged an FIR with the policy about the incident.  The Fire Service Department assessed the damage of his truck at Rs.1,50,000/-. The Complainant thereafter raised insurance claim against his damaged truck with the O.P. No.1. Though the O.P. No.1 had assured him that the claim would be settled by him soon but the O.P. No.1 did not settle the claim. The O.P. No.2 on the other hand on 25/06/2018 issued notice to the Complainant calling upon him to deposit outstanding loan amount within 10 days from receipt of the notice.  

The complainant has asserted in his complaint that he is solely dependent upon the income being derived from his vehicle and that he has been facing financial crisis for not being able to use the truck.   

Being aggrieved and dissatisfied with the conduct of the O.Ps. the Complainant has filed the present consumer complaint against the O.Ps. claiming Rs.3,00,000/- as compensation. 

Hence this case. 

 Based on the complaint notices were duly sent to the O.Ps. from the Forum. The O.P. Nos. 1&2 appeared and engaged their lawyers to defend the case on their behalf. Both of them have filed W.Os separately.  

      The O.P. No.1 in his W.O. has denied any sort of deficiency of service on their part towards the Complainant regarding issuance of Insurance Policy in respect of the vehicle of the Complainant. The said O.P. has denied existence of any clause in the Insurance Policy wherein the Complainant will get Insurance benefit of his vehicle without the premium of the policy having been paid in advance by the Complainant. The O.P. No.1 has asserted that when the vehicle of the Complainant caught Fire at that time the said vehicle was not insured with the O.P. No.1 which has also been admitted by the Complainant in his complaint at Para Nos.14 & 15. According to the O.P. as the Complainant has not renewed the Insurance Policy of his vehicle, he is not entitled to get any amount for the damage caused to his vehicle due to the alleged fire accident. The O.P. No.1 has thus prayed for dismissal of the complaint against him.         

         The O.P. No.2 by filling W.O. has also denied the contentions raised by the Complainant in his complaint. The O.P. No.2 however has admitted about existence of Hypothecation cum Loan Agreement having been executed between him and the Complainant. The O.P. has denied and disputed about the averments made by the Complainant in Para Nos.7, 11, 12, 13 & 15 of the complaint. The O.P. has asserted that the complainant has failed to pay monthly installments of the loan amount as per the agreement and due to this the complainant became defaulter. 

           Denying any deficiency of service on his part towards the Complainant, the O.P. No.2 has prayed for rejecting the complaint. 

3. EVIDENCE ADDUCE BY THE PARTIES:-

  The Complainant and his two witness have been examined as Pws.-I,2 &3 in support of the complaint. The Complainant has produced  05 documents comprising 09 sheets.  The documents on identification by the complainant were marked as Exhibit-I series. 

  The O.P. No.1 did not adduce either oral or documentary evidence. The O.P. No.2 on the other hand has adduced evidence of one witness namely Sri Animesh Kar, Branch Manager under the O.P.  The said witness has produced 04 documents comprising 19 sheets. The documents on identification by the said witness were marked as Exhibit-A series.

4. POINTS TO BE DETERMINED:- 

(i) Whether there is deficiency of service on the part of the O.Ps. towards the Complainant?

(ii) Whether the O.Ps. are guilty of committing unfair trade practice with the Complainant?

(iii) Whether the complainant is entitled to get compensation/ relief as prayed for?

5. DECISION AND REASONS FOR DECISIONS:- 

The complainant has submitted written arguments. 

We have heard arguments advanced by Learned Advocates for the complainant and the O.P. Nos.1 & 2.

  We have also gone through the pleadings of both sides, the evidence adduced by the Complainant, his witnesses, the documentary evidence produced by the Complainant. We have also perused the evidence adduced by the O.P. No.2 and documentary evidence produced by him.  

            It is evident from the pleadings as well as evidence adduced by the Complainant that the Complainant obtained loan of Rs.1,50,000/- from the O.P. No.2 for purchasing a second hand Truck pursuant to a Loan – cum- Hypothecation Agreement entered into between him and the O.P. No.2. After obtaining the loan amount and with his own cash amount of Rs.2 lac, the Complainant bought the truck on payment of Rs.3,50,000/-. As per the agreement the Complainant had to repay the loan amount by 42 installments. The complainant however has regularly paid 25 installments and that due to financial crisis he could not pay the rest amount regularly as per the payment schedule under the Loan – Cum – Hypothecation Agreement. The complainant in his complaint as well as in his evidence-in-Chief has asserted that at the time of agreement the O.P. No.2 placed a condition to him that O.P. No.2's sister concern i.e. the O.P. No.1 Shriram General Insurance Company Ltd. would operate insurance policy of the truck and that the 42 installments was fixed after adding the 4 years insurance premium of the truck. The complainant has asserted that the O.P. No.1 accordingly issued insurance policy three times against his truck from the period 24/12/2014 to 23/12/2015 for the 1st policy, for 2nd policy commencing from 24/12/2015 to 23/12/2016 and for 3rd policy commencing from 24/12/2016 to 23/12/2017. It is also the case of the Complainant that O.P. Nos.1&2 without any rhymes and reasons did not issue the 4th Policy commencing from 24/12/2017 to 23/12/2018 though he himself and his two witnesses had visited a number of times to the Offices of the O.P. Nos.1&2 for getting the insurance policy. For the purpose of getting the policy the Complainant even deposited Rs.9,100/- on 25/01/2018 with the O.P. No.2 as per advice of the O.P. No.2 but he was not favoured with the insurance policy. The assertion of the Complainant in this respect has been corroborated by the evidence of PWs-2&3. On 3rd March, 2018 at 11 P.M. the Complainant's  truck was set on fire by some miscreants when the truck was parked infront of his house. The incident of fire was immediately informed to the Fire-brigade and also to the Police. Fire-brigade personnel rushed to the spot and  extinguished the fire. The Divisional Fire Officer, West Tripura, Agartala assessed the damage of the truck at Rs.1,50,000/-. The Complainant has proved the assessment report of the Divisional Fire Officer as Exhibit-I series. He has also proved the copies of the FIR and the written complaint lodged to the Police about the incident of fire as Exhibit-I series. The Complainant has asserted that though he raised insurance claim with the O.Ps. for the damage caused to his truck  but his claim was not entertained by the O.Ps. According to the Complainant his sole source of income was from the truck and that due to the damage caused to his truck he is not in a position to earn his livelihood and thus facing great difficulties to run his family. The O.P. No.1 on the other hand contended that the Complainant did not renew 4th insurance policy of his vehicle for the period from 24/12/2017 to 23/12/2018 and that the incident of fire of his vehicle had occurred during that period . Hence, the O.P. No.1 can not be held liable to reimburse the insurance claim raised by the Complainant. It is also contended by the said O.P. that there is no nexus between insurance premium and the loan installments concerning the subject truck.   

We do not find any merit on the claim of the O.P. No.1 that there was no nexus between insurance premium and the loan installments concerning the subject truck. We have carefully perused the copy of the summary of loans for the subject vehicle which has been filed by the Complainant under Firisti dated 13/09/2018. It reveals from the summery of loans concerning the subject vehicle(Statement on Account) that the O.P. No.2, the Financer had received loan installments amount along with the premium concerning the subject truck and accordingly 3 insurance policy against the subject truck were issued concerning the period 24/12/2014 to 23/12/2015 for the 1st policy, for 2nd policy commencing from 24/12/2015 to 23/12/2016 and for 3rd policy commencing from 24/12/2016 to 23/12/2017. 

We find that neither the O.P. No.1 nor the O.P. No.2 produced any document showing that against receipt of amount as premium for the aforesaid policies of the subject truck separate premium receipts had been issued to the Complainant. Hence, we are satisfied that the O.P. No.2 being the Financer had collected loan repayment installments which also includes insurance premium of the subject vehicle.  

We are also satisfied that as per request of the O.P. No.2 the Complainant paid Rs.9,100/- on 25/01/2018 for getting 4th Insurance Policy of his truck. But the complainant has not been favoured with the Insurance Policy by the O.Ps. Admittedly, the subject truck set on fire by miscreants on 3rd March, 2018 at 11 P.M. which is post payment of the said amount of Rs.9,100/-.The Complainant immediately lodged police case. He also got the truck assessed by the Divisional Fire Officer. The Fire Officer assessed the damage of the truck at Rs.1,50,000/-. The O.Ps. according to us without any justification have arbitrarily deprived the Complainant of getting Insurance benefit by withholding the 4th Insurance Policy concerning the subject vehicle. The O.Ps. aught to have issued the 4th Policy in like manner they had issued previous 3 policies concerning the subject truck for the period 24/12/2014 to 23/12/2015 for the 1st policy, for 2nd policy commencing from 24/12/2015 to 23/12/2016 and for 3rd policy commencing from 24/12/2016 to 23/12/2017.

          The plea of the O.Ps. that the Complainant had used his truck for commercial purpose and thus the Complainant can not come under the purview of the Consumer Protection Act, 1986 as a Consumer does not appear to us acceptable.  We find that the Complainant in his complaint as well as in his Statement on Affidavit has emphatically stated that he was /is solely dependent  upon the income from his truck. The O.Ps. have failed to adduce  evidence controverting such assertion of the complaint. 

It is true that the Complainant became defaulter for not being able to pay the loan installment amount regularly of the subject truck. But such a default committed on the part of the Complainant can not debar him from getting the Insurance Policy from the O.Ps. The O.P. No.2 being the Financer could have seized the subject vehicle by virtue of Loan -cum- Hypothecation Agreement upon which loan was sanctioned and disbursed the amount to the Complainant for purchasing the truck. But the O.P. No.2 did not take such step reasons best known to him. 

It reveals from the Statement on Accounts(summary of loans for the vehicle of the Complainant) that the Complainant has already deposited Rs.2,08,866/- inclusive of insurance premium till 25/01/2018 against the loan amount of Rs.1,50,000/- which he had obtained from the O.P. No.2. 

The O.Ps. according to us aught to have issued 4th Insurance Policy to the Complainant and arrange for reimbursing the claim amount raised by the Complainant for the damaged caused to his Truck for no fault of his own. As such the O.Ps. according to us are guilty of committing unfair trade practice and also deficiency of service towards the Complainant. 

6.  We accordingly find and hold that the complainant has succeeded in establishing his case  U/S 12 of the Consumer Protection Act 1986 against the O.P. Nos. 1 & 2. The Complainant according to us has suffered harassment, mental agony and Financial loss due to the unfair trade practice and deficiency of service committed by the O.P. Nos.1 & 2. The Complainant as such is entitled to get compensation.

The issues which were framed in this case are answered accordingly. 

  In the result, it is hereby directed that the O.P. Nos.1 & 2  shall pay Rs.1,50,000/- being the damage caused to the Truck of the Complainant, Rs.1,00,000/- for financial loss suffered by the Complainant for not been able to use his truck & Rs.5,000/- as cost of litigation. The O.P. Nos.1 & 2 shall pay the aforesaid amount of Rs.2,55,000/-/-(Rs.1,50,000/- + Rs.1,00,000/- + Rs.5,000/-) in total to the Complainant within a period of 2 months from the date of judgment failing which the amount of shall carry interest @ 9% P.A. till the payment is made in full. 

 

 

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 

SRI U. DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.

 

 

SMT. DR  B. PAL,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA