Orissa

Cuttak

CC/324/2013

Pravat Kumar Prusty - Complainant(s)

Versus

Branch Manager,MAGMA FINCORP LTD - Opp.Party(s)

A K Samal

25 Jul 2017

ORDER

 

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

                                                                C.C. No.324 of 2013

 Sri Pravbat Kumar Prusty,

Vill:Nilikana,PO:Baghilobabanpur,

Chandol,P.S/Dist:Kendrapara.                                                … Complainant.

 

                Vrs.

 

 RELIANCE GENERAL INSURANCE CO. LTD.,.

38-B, Himalaya House,

8^th Floor,Jawaharlal Nehru Road,

Kolkata-700071,

West Bengal.                                                                                    … Opp. Party.

 

 

Present: Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   31.12.2013

Date of Order: 25.07.2017

 

For the complainant:          Mr. A.K.Samal ,Adv. & Associates.

For Opp.Party.           :         Mr. P.C.Choudhury ,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

                The complainant having attributed deficiency in service and unfair trade practice to the O.P has filed this case against him seeking appropriate relief in terms of his prayer in the complaint petition.

1. The case of the complainant succinctly stated is that he was a poor and unemployed person and as such he availed himself of a loan from Mahindra Fin. Corp. Ltd. for purchasing a TATA Tipper vehicle to earn his livelihood.  The cost of the said vehicle was Rs.10,42,634/- and he made down payment of Rs.2,08,731/-.  The balance amount of Rs.8,33,903/- was financed by the said financer vide agreement No.PG/0108/E/05/000002.  The complainant had to clear the loan amount in 47 E.M.Is of Rs.24,761/- each commencing from 1.3.2007 to 01.01.2011.  Annexure-1 is the copy of the repayment schedule of the said loan account.  The said financier had also taken 5 nos. of post dated cheques bearing No.876452, 876453,876454 and 876455 of UCO Bank,Kendrapara from the complainant on 1.3.2007 with his signature on them towards security purpose.
2. After purchase of the vehicle, it was registered in the office of R.T.O,Rourkela vide Regd. No.OR-14P-2833 and the complainant plied the said vehicle to earn his livelihood.  Annedure-2 is the copy of the registration certificate of that vehicle.  The financier company had also got the said vehicle insured with the O.P vide Insurance Policy No.1506062329003660 since it has tie-up arrangement with the O.P Insurance Company.
3. The complainant went on making repayment of the E.M.Is regularly.  On 12.12.2007, it is alleged that the said vehicle while engaged in duty, was forcibly taken away by three unknown miscreants from N.H-42 in the Vill:Nuasahi near Khuntuni in the District of Cuttack.  It was about 10.30 P.M.  They also carried driver and helper of the said vehicle in the said Tipper but on the way they threw them on the road near Redhakhol forest and fled away with the vehicle.  On receipt of information about the incident from the driver of that vehicle on 13.12.2007, the complainant informed the mater to Gurudijhatia Police Station, Athagarh and accordingly P.S.Case No.160 of 2007 U/S-341/342/379/34 IPC was registered.  During investigation the police apprehended two culprits but failed to trace out the vehicle and ultimately the police submitted charge sheet in the court of S.D.J.M,Athagarh against the accused persons.
4. The financier company thereafter lodged an insurance claim on behalf of the complainant before the O.P at Calcutta and the officers of the Company assured the complainant that the O.P. will make full payment of the cost of the vehicle without any depreciation there to and on that basis his loan account would be closed.  At the instigation of the said financier company, the complainant also gave his consent for full and final settlement of his claim at Rs.7,43,876/- after deduction of 25% due to non-submission of one key as well as after deduction of Rs.1000/- towards excess clause.  It is specifically stated that though the complainant was entitled to get full claim amount of the cost of the vehicle without any deduction yet he agreed to settle the claim at a lesser amount relying upon the financier that his loan account would be fully closed. The written consent of the complainant was given in the month of February,2009.  The copy of the consent letter along with affidavit of the complainant have been filed and marked as Annexure-3 series.
5. In the mean time two years have already passed and the complainant believed in good faith that his loan account maintained with the financier might have been closed finally.  He thereafter approached the financier to return those 5 nos. of cheques given at the time of sanction of the loan but the said financier took time in one way or other to return those cheques.  It is learnt that the said financier in the mean time has misused one of the cheques bearing No.876452 and by putting the amount of Rs.4,50,000/- on it he presented the same in the United Bank of India,Park Street, Kolkata for encashment which was ultimately dishonoured and a separate criminal case was filed by the said financier against him for bouncing of cheques in the Court of Metropolitan Magisitrate,Calcutta vide complaint case no.4165/2010.  One Manoranjan Mishra, an Advocate on behalf of the said financier thereafter sent a legal notice dt.30.12.2011 to the complainant on 14.1.2012 directing the complainant to produce his vehicle before the said financier within 7 days, failing which legal action would be taken against him.  Annexure-4 is the copy of the said Legal notice.  When the complainant enquired into the matter in the office of the financier he came to know that the O.P,Insurance Company has paid only Rs.5,56,657/- on 1.4.2009 and Rs.44,404/- on 1.4.2010 to the financier instead of making full payment of Rs.7,43,876/-.  But this fact was not intimated to the complainant either by the financier or by the O.P.  As such it is stated that the financier is fully responsible for the same and he has kept him in dark about all the developments in the matter of monetary transaction.  Subsequently he came to know that because of his non-submission of the copy of charge sheet of the criminal case, full claim amount could not be disposed of by the O.P to his financier.  But subsequently he complied with the request of the financier by submitting the copies of charge sheet, translated copy of the F.I.R etc. to the Insurance Company through the financier on 29.2.2012.  The copy of the above document submitted by the complainant have been filed and marked as Annexure-5 series.  On subsequent occasion one Pramod Barik claiming himself to be  A.R.D of the said financier, requested the complainant and obtained the copies of letter of subrogation, Letter of Indemnity and letter of consent for full and final settlement of his claim along with the affidavit etc.  Annexure-6 is the copy of the acknowledgement of having received the above documents by the officer of the financier from the complainant.
6. Thereafter the complainant also got a notice from the Court of the District and Sessions Judge, Kendrapara in Execution Case No.23/2012 pending before him directing the complainant to appear before the said court and file show cause on 4.12.12.  He also came to know that the said execution case has been initiated from an arbitration award which has been passed behind his back directing him to pay Rs.13,64,817/- to the financier.  The copy of the said notice has been filed and marked as Annexure-7.  Because of a number of cases filed against him by the said financier  at different places he was put to undue harassment and mental agony.
7. It is specifically stated that his vehicle was stolen just after 8 months of his availing loan and the estimated insured value of the vehicle was Rs.9,90,000/-.  In spite of it he agreed to settle the loan amount at Rs.7,46,316/- with a view to closing his loan account once for all.  If the said amount would have been paid by the O.P at that time, his loan account might have been closed.  It is because of the deficiency in service of the O.P in making full payment of the assured value, that there was some amount  outstanding against him and interest accrued to it for which he was now in financial distress condition.  As such it is prayed that the financier as well as the O.P are equally responsible for rendering deficient service to and adopting unfair trade practice against him.
8. It is important to leave a mention here that during pendency of this case, the said financier i.e. Magma Fin. Corp. Ltd. and the complainant have reached an amicable settlement between them outside court and accordingly the complainant has paid Rs.50,000/- to the said financier  company towards full and final settlement of its claim.  Therefore the complainant is not interested to proceed against the said financier.  It is only the O.P who is the insurance company, is preceded against in this case.  It is therefore prayed that the O.P Insurance Company may be directed to pay balance amount of insurance claim of Rs.1,42,815/- to him together with interest @ 12% per annum from the date of theft of the vehicle i.e. 12.12.2007 till the date of its  realization.  It is also prayed that the O.P may also be directed to pay compensation of Rs.3.00 lakhs to him towards the harassment and mental agony he has undergone due to deficiency in service and unfair trade practice followed by the O.P.
9. The O.P entered appearance and filed his written version and contested the case.  It is specifically stated in the written version that the case of the complainant in the present form is not maintainable either in fact or in law.  The maintainability of the present case is seriously called in question on the point of jurisdiction and therefore it is stated that this Forum has no jurisdiction to try and dispose of this case since no cause of action has arisen within the local jurisdiction of this Forum.
10. It is interalia stated that the present O.P., the Insurance Company has paid the amount to the financier of the complainant vide cheque dt.30.03.2009 on the basis of the written consent of the complainant.  It was within the knowledge of the complainant and in spite of it he had set the law in motion by filing this frivolous case on 31.12.2013 against him.  As such the present case is barred by limitation in view of Section-24 A of the C.P.Act.
11. The vehicle of the complainant bearing Regd. No.OR-14P-2833 was said to have been stolen on 12.12.2007.  While processing the claim of the complainant, the present O.P had issued repeated letters to him for submission of the keys of the said vehicle as well as copies of the police papers and despite such reminders, the complainant failed to produce the required documents and keys before the O.P and for the said reason necessary deductions have been made from the claim of the complainant as per rule and balance amount has been paid to the financier on the basis of the written consent of the complainant.  As such there is no deficiency in service on the part of the O.P in any manner.  It is further stated that the complainant has never made any objection to the O.P with regard to quantum of payment made to his financier even after lapse of about 4 years.
12. It is also stated that the alleged amicable settlement between the complainant and his financier is false and fabricated and even if there is some amicable settlement between them it was made behind the back of the present O.P.  Accordingly any such settlement between the complainant and his financier is dened and financier being a necessary party in the present case has not been so arrayed.  It is further stated that the complainant has filed this false and fabricated case, being aggrieved by various litigations filed by his financier against him at different Forums and the present O.P has no role in it.  It is therefore prayed that the present case may be dismissed with cost in the interest of justice.
13. The complainant himself has filed his evidence in the form of affidavit in the present case reiterating the same facts as averred in his complaint.  We have heard the learned counsels for the complainant as well as for the O.P at length.
14. To begin with, it is the maintainability of the case which is seriously called in question by the O.P and accordingly it is argued that this Forum has no jurisdiction to try and dispose of the case on the point of jurisdiction.  The learned advocate for the O.P has fairly submitted that he has his office at Calcutta.  After purchase the vehicle was registered by the R.T.O,Rourkela which is not coming within the jurisdiction of this Forum,.  Accordingly it prayed that the present case is not maintainable before this Forum in the eye of law.  As against it learned counsel for the complainant has fairly submitted that the cause of action to file this case has partly arisen at Khuntuni in the District of Cuttack where from the vehicle was stolen by the miscreants in the night of 12.12.2007.  This fact is undisputed.  In that view of the matter it is prayed that this Forum has got jurisdiction to hear and to try and dispose of the case in view of Sec-11 of the C.P.Act.  The submission of the learned counsel for the complainant finds force in it.  Since the cause of action has partly arisen at Khuntuni on NH-42 in the district of Cuttack  as such the jurisdiction of this Forum to try and dispose of the present case is not ousted.
15. The learned counsel for the complainant has further advanced his argument that the present O.P. is found deficient in rendering service and adopting unfair trade practice by not giving intimation to the complainant before the insurance claim was disbursed to his financier in form of cheque.  In such a situation, the O.P Insurance Company is under absolute liability to indemnify the complainant.  He has relied upon a decision of the Hon’ble National C.D.R.Commission, New Delhi reported in 2002(2) CPR-46(NC) (M/s. New India Assurance Company Ltd. Vrs. Prahllad Singh Sekhawat).  It is fairly submitted that the Hon’ble National Commission in the above case has categorically held that payment of any amount under insurance policy by the Insurance Company to the financier of the vehicle which was damaged in an accident without the consent of the owner or notice to him, will not absolve insurance company to indemnify the owner.  The learned counsel for the O.P has taken serious exception to it and submitted that all payment due under insurance policy has been made by the O.P to the financier through a cheque bearing No.155476 dt.30.09.2009  after making necessary deductions of 25% of the claim towards violation of the condition no.1 of the policy for not keeping the vehicle in safe custody by keeping the key inside it at the time of alleged occurrence and further deducting 25% on the ground of non-submission of the final form and other relevant documents of the police papers in the relevant criminal case and also making further deduction of Rs.1500/- towards policy excess as per terms of the policy.  This payment has been made by this O.Ps with the written consent of the complainant together with the affidavit filed in support of it.  In that view of the matter it is stated that the O.P has fully discharged its liability to satisfy the claim under the policy of the complainant according to the terms and conditions of the said policy.  That apart since the said vehicle was purchased on hypothecation, the financier has lien over it and payment under the said policy made to the financier of the complainant with latter’s consent is not arbitrary and illegal.   The submission of the learned counsel for the O.P referred to above is neither objected to nor disputed in any manner by the learned counsel for the complainant-.  Rather it is an admitted fact that the complainant at the request of an officer of the financier has given his written consent together with affidavit to him for the purpose of full and final settlement of his insurance claim.
16. The learned advocate for the O.P has again brought to our notice the disclaimer clause contained in the said policy.  It is specifically stated that where the insurance company would disclaim its liability to the insured for any claim hereunder and such claim shall not within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law, then such claim shall for all purpose be deemed to have been abandoned and shall thereafter be not recoverable hereunder.  There is no counter submission made by the learned counsel for the complainant on this point and admittedly more than 12 calendar months have lapsed since the date of payment i.e. 3.4.2009 and no objection has been raised thereafter by the complainant except the present case which was filed on 31.12.2013.

In view of the discussions made above and for the reasons afore stated, we do not think that there was any deficiency in service or unfair trade practice made by the O.P.  Accordingly it is held that the case of the complainant is devoid of merit, hence ordered;

                                                                                ORDER

                The case be and the same is dismissed on contest against the O.P.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 25^th     day of July,2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                     President.

                                                             

 

                                                                                                 (Sri B.N.Tripathy )

                                                                                                                      Member.

 

                                                                                                        (Smt. Sarmistha Nath)

                Member(W)