Orissa

Cuttak

CC/41/2021

Rajib Kumar Rout - Complainant(s)

Versus

Branch Manager,Chola Mandalam MS General Insurance Company Ltd - Opp.Party(s)

S K Nayak & associates

27 Mar 2023

ORDER

            IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.41/2021

 

          Rajib Kumar Rout,

          S/O:Pranakrushna Rout,

          Resident of Bidyadharpur,P.O:Godisahi,

           Dist:Cuttack.                                                                       ... Complainant.

 

          Vrs.

 

1.       The Branch Manager,

Chola Mandalam MS General Insurance Company Ltd.,

Bhubaneswar Branch,

                 Dist:Khurda

 

2.      The Branch Manager,

Hinduja Leyland Finance Co. Ltd.,

Bhubaneswar Branch,Dist:Khurda.                                     ...Opp. Parties.

 

 

Present:            Sri Debasish Nayak,President.

                             Sri Sibananda Mohanty,Member.

 

Date of filing:    01.03.2021

Date of Order:  27.03.2023

 

For the complainant:            Mr. S.K.Nayak,Adv. & Associates.

For the O.P No.1       :            Mr. G.P.Dutta,Adv. & Associates.

For the O.P no.2        :            Mr. A.K.Samal,Advocate.              

 

Sri Debasish Nayak,President.

Case of the complainant as made out from the complaint petition in short is that he had purchased one HYVA Tipper after incurring loan from O.P no.2 which was registered vide Regd. No.OD-05-AF-0555.  The said vehicle was also insured with O.P no.1 having policy No.3379/01969978/000/1 which was valid upto 29.2.2020.  Within the valid period of the insurance, the vehicle met with an accident and was damaged.  FIR to that effect was given at the local police station but the claim of the complainant was not entertained by the insurer/O.P no.1 who refused to release the insured money on 13.12.2020.  The complainant thus by filing this case has claimed a sum of Rs.10,00,000/ from the O.Ps with interest therein together with  another sum of Rs.20,000/- towards his mental agony, another sum of Rs.20,000/- towards dislocation of his work, further a sum of Rs.10,000/- towards his persuasion with the O.Ps and also further a sum of Rs.5000/- towards his litigation expenses.

Together with his complaint petition he has filed copies of several documents in order to prove his case.

2.       Both the O.Ps have contested this case but have filed their respective written versions separately.  According to the written version of O.P no.1, the case of the complainant is not maintainable, the complainant had already sold the vehicle to one Jagdish Mallick as per agreement to sell on 19.10.2018.  The said Jagdish Mallick had paid to the financier a sum of Rs.4,50,000/- and had also agreed to pay further a sum of Rs.3,00,000/- to the complainant of this case.  The said Jagdish Mallick would also pay a sum of Rs.1,50,000/- to the complainant within one month of execution of the agreement i.e., from 19.10.18.  As per clause-12 of the agreement to sell executed in between the complainant of this case and the said Jagdish Mallick dt.19.10.18, it is Jagdish Mallick who is liable towards the repair or damage of the vehicle from the date of agreement and would also pay the taxes, permit charges and insurance cost.  The complainant of this case has suppressed all these material facts.  The policy was obtained from O.P no.1 in the name of the complainant effective from 1.3.2019 to 29.3.2020.  So according to O.P no.1, the policy is void on the ground of non-disclosure of material facts and by the facts provided which are false.  Thus, according to O.P no.1, when the vehicle had met with an accident, the complainant had no insurable interest with O.P no.1 and his complaint as such is liable to be dismissed.  O.P no.1 has further urged through his written version that when the said vehicle bearing no.OD-05-AF-0555 was sold to Jagdish Mallick on 19.10.18 and the said intimation was not given to O.P no.1, according to Sec-157 of M.V. Act, O.P no.1 is not liable to pay any amount as claimed by the complainant.  O.P no.1 through his written version has also stated that during investigation it was noticed that there were three persons boarded on the said vehicle namely Tarun Nayak,Driver, Ajit Badika,Helper and one Pramod Khara which was beyond the capacity of the said vehicle which had also contributed to the accident and as such the complainant  is not liable to get any amount from O.P no.1.  Thus, his complaint petition is to be rejected.

          Together with his written version the O.P no.1 has filed copy of the agreement to sell in between the complainant Rajib Kumar Rout and Jagadish Mallick regarding the alleged vehicle.

          From the written version of O.P no.2 it is noticed that he has also stated that the complaint petition being not maintainable is liable to be dismissed.  According to O.P no.2, he had financed the complainant for purchasing the Ashok Leyland AL 2518 Tipper whose cost was Rs.29,70,000/- and the finance obtained by the complainant was to the tune of Rs.26,65,000/-.  The loan was to be repaid by the complainant in 47 number of E.M.Is out of which 11 number of E.M.Is were to be of Rs.74,824/- and the next 22 number of E.M.Is were to be of Rs.74,772/-, the next 16 number of E.M.Is to be of Rs.69,772/- and the last E.M.I as to be of Rs.69,774/- which was to be repaid within 15.4.2018 to 15.2.2022.  Due to the pandemic situation, the loan was rescheduled by six months moratorium period and the E.M.Is were 53 in number of instead of 47 number of E.M.Is.  Thus, according to O.P no.2, the complainant has no allegation against him and the case against O.P no.2 requires to be dismissed.

          O.P no.2 has also filed several copies of documents alongwith his written version to prove his stand.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written versions of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps  ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.iI.

Out of the three issues, issue no.ii  being the pertinent issue for this case is taken up  first for consideration here.

After going through the complaint petition, the written versions of the O.Ps and also the available copies of documents in this case, it is noticed that admittedly the complainant had purchased one Ashok Leyland Tipper which he had insured duly and during the validity of the insurance, the said Tipper had met with an accident.  The insurance claim when made by the complainant was turned down by O.P.no.1 on the plea that since because the complainant had made an agreement to sell with one Jagdish Mallick regarding the said vehicle in question wherein that agreement to sell it is mentioned that the said Jagdish Mallick would repair the vehicle in question in case of exigencies and also to pay the insurance of the said vehicle.  The plea of the O.P no.1 that there were three persons boarded the said vehicle during the alleged accident which they knew during investigation and thereby they had deprived the complainant in getting the insurance claim; is not at all substantiated here in this case by the O.P.  It is because no evidence to that effect is led by the O.P nor any document has been filed to prove the said plea which O.P has taken through his written version.  Moreso, in an agreement to sell the title of the initial owner do not flow or pass on to the subsequent oner until the consideration amount is paid fully and the ownership is transferred duly before the appropriate authorities.  Thus, by simply executing an agreement to sell with one Jagdish Mallick do not curtail the entitlement of the present complainant of this case when his vehicle had met with an accident and he is undoubtedly the true owner of the said vehicle on the date of the said accident.  That apart, if at all the ownership could have flown to the said Jagdish Mallick regarding the alleged vehicle, then also automatically as per the provisions of Sec-157 of M.V Act the title would have flown alongwith the insurance policies to him.  Thus, in no way O.P no.1 is found to be burden free here in this case and rather by not settling the claim regarding the alleged vehicle whose insurance was valid on the date of accident, the O.P no.1 is found to be deficient in his service towards the complainant who is the bonafide owner of the alleged vehicle in question which had met with an accident.  Accordingly, this issue goes in favour of the complainant.

Issues no.i & iii.

          From the discussions as made above, when the complainant being a bonafide oner and when his vehicle met with an accident and also when there as valid insurance, he had put forth his claim before the insurer, O.P no.1; by not settling the claim of the complainant had to file this case, it is definitely maintainable and the complainant is entitled to a reasonable extent of relief as sought for by him.  Hence it is so ordered;

                                              ORDER

          The case is decreed on contest against the O.P no.1.  The O.P no.1 is therefore directed to settle the insurance claim as made by the complainant here  in this case and to pay the claim amount of Rs.10,00,000/- to the complainant from 26.8.2022 till the total amount is quantified.  O.P no.1 is further directed to pay a sum of Rs.20,000/- towards mental agony of the complainant, another sum of Rs.20,000/- towards dislocation of his work and a sum of Rs.5000/- towards cost of his litigation within a period of 30 days from the date of receipt of copy of this order.

Order pronounced in the open court on the 27^th day of March,2023 under the seal and signature of this Commission.          

                                                                                                                  Sri Debasish Nayak

                                                                                                                     President

 

         

                                                                                                  Sri Sibananda Mohanty

                                                                                                                    Member