BEFORE THE DISTRICT CONSUMER REDRESSAL COMMISSION

UNOKUTI DISTRICT : KAILASHAHAR

 

 

Shri Paritosh Ghosh

S/o- Late Pramesh Ghosh

Of Vill.- West Mashauli, P.O.- Mashauli,

P.S. & Sub-Div.- Kumarghat,

Dist.- Unakoti, Tripura.

 

                                 …......COMPLAINANT.  

 

V E R S U S 

 

Chola Mandalam MS General 

Insurance Company Limited 

“Dare House”, No. -2, NSC Bose Road,

Chennai-600001, Tamilnadu.

 

Chola Mandalam MS General 

Insurance Company Limited 

Agartala Branch Office, R.M.S. Chowmuhani,

Akhaura Road, Agartala – 799001,

West Tripura

 

M/S. Ramkrishna Engineering Works,

Chittaranjan Road, Agartala – 799001,

West Tripura

 

Mahindra & Mahindra Financial Service Limited

Dharmanagar Branch, North Tripura.

 

………. OPPOSITE PARTIES

                                                            

               P R E S E N T

 

             SHRI P. KUMAR

             PRESIDENT

                   DISTRICT CONSUMER REDRESSAL COMMISSION

                            UNAKOTI DISTRICT:: KAILASHAHAR

                                                                                                              A N D

                                                                                             SHRI P. SINHA, MEMBER

                                                                                           SMT. M. DATTA, MEMBER

 

                                                                                                     C O U N S E L

 

                                                                           For the Complainant: - Mr. A. Bhattacharjee, Advocate

 

                                                                             For the OP Nos. 1, 2 and 4:- Mr. S. Deb, Advocate

 

                                                                                      For the OP No. 3:- Mr. N. Das, Advocate

 

 

                     ORIGINAL DATE OF INSTITUTION :24-01-2019

          ARGUMENT HEARD ON: 03-02-2022

                           JUDGMENT DELIVERED ON :24-02-2022

 

 

 

 

 

                        J U D G M E N T

 

This is a complaint preferred by the complainant Shri Paritosh Ghosh under section 12 of the C.P. Act against the opposite parties praying for passing necessary direction against the opposite party Nos. 1, 2 & 3 for repairing of his vehicle, payment of installment money to the OP No. 4, payment of Rs. 1,00,000/- for harassment and mental agony and compensation of Rs. 3,000/- alongwith interest.   

 

2. The facts leading to the filing of the instant complaint petition is that the opposite party No. 4, approached the complainant for purchasing a Bolero Max vehicle and also assured that in order to purchase the vehicle their company would be the financer and they will provide all the facilities i.e. registration of vehicle, insurance and dealer of vehicle who would provide all the maintenance on free of cost and in case of any damage occurred to the vehicle all the damaged cost would be provided by their selected allied partner i.e. OP Nos. 1 & 2 (insurance company). Thereafter, on 16-05-2017 as per assurance of the OP No. 4, complainant was taken to the dealer i.e. OP No. 3 and made spot part payment of Rs. 1,04,075/- for Bolero Max vehicle and then on 22-05-2017 complainant also paid Rs. 16,874/- and Rs. 2,129/-. The said vehicle was registered in DTO, Unakoti District, Kailashahar vide registration bearing No. TR-02-H-1704. The total value of the vehicle was Rs. 5,21,948/- and the vehicle was delivered to the complainant on 22-05-2017 and on the same day a temporary registration No. TR-01-AF(Tem)-6486 was provided by the OP No. 3 and the OP No. 3 and 4 also arranged the insurance of the vehicle by the OP No. 1 & 2 and the same was issued as vide policy bearing No. 3379/01726007/1000100 for the period from 22-05-2017 to 21-05-2018 in favour of the complainant.  Thereafter, on 09-02-2018, after necessary servicing from the show room of OP No. 3 situated at Agartala the said vehicle was returning towards the residence of complainant and at about 9.35 pm the vehicle met with an accident in between Manu Parking and Masli bazar on Assam–Agartala road and the vehicle sustained severe damage. Thereafter, the matter of accident was informed to Manu PS by the driver of the vehicle and Manu PS registered a GD entry on the matter of accident vide GDE No. 24 and subsequently, the complainant informed about the accident to the dealer, M/S Ramkrishna Engineering Works i.e., OP No. 3 over phone and as per instruction of the dealer, on completion of necessary MVI examination, the damaged vehicle was taken to Agartala at its workshop and since then the vehicle is under the custody of OP. No. 3 for repairing. Thereafter, the complainant with the help of the dealer i.e OP No. 3, filed the insurance claim petition before the concerned authority at Agartala and one copy of the claim form is retained with the complainant. Thereafter, the authorized signatory of the authority on 19-03-2018 sought for documents, viz police report, canceled cheque, xerox copy of bank pass book, etc. but on 16-04-2018 the claim was cancelled for which the complainant became astonished. Ultimately for redress the complainant approached this Commission for getting reliefs, as aforesaid. 

 

3.  On receipt of the notice opposite parties No. 1, 2 and 4 have appeared and contested the claim by submitting the written statement.

 

4. Learned counsel on behalf of OP Nos. 1 & 2 stated that the statements and allegations of the instant claim petition are all baseless, false and made for wrongful gain and the OP insurance company strongly denies all such allegations raised by the complainant against them. It is further stated that  the alleged accident took place on 09-02-2018 and the said matter of accident was intimated to the insurance company on 13-03-2018 and accordingly claim No. 3379232259 was generated and as there was delay of 32 days in intimating the claim  the insurance company in violation of condition Nos. 1 & 9 of the insurance policy without any clarification for undue delay claim of the complainant was repudiated by the insurance company by their repudiation letter dated 16-04-2018. 

 

5. On receipt of the notice OP No. 3 did not turn up to contest the case and as such as per order dated 30.07.2019 the case had been proceeding ex-parte against the OP No. 3. Thereafter, on the prayer of the OP No. 3 as per order dated 09.02.2020, ex-parte order passed against the OP No. 3 was vacated and accordingly, WS submitted by OP No. 3 has been accepted. OP No. 3 has stated in the written statement that the petition filed by the complainant is not maintainable in its present form and nature and as such it is liable to be dismissed and that the complainant did not come before the Forum in clean hand and the OP No. 3 did not admit any assertion made in the claim petition except their admission. OP No. 3 admitted that he is a dealer of OP No. 4. He has no responsibility for repairing any sorts of damage until and unless proper approval is received from the appropriate authority. The OP No. 3 repeatedly requested the complainants over telephone to arrange for repairing of his vehicle, but he did not pay any heed. As a dealer he sold the vehicle in good condition to the complainant and so he has no responsibility to repair the vehicle without the proper approval or order from the competent person/body if the vehicle damaged due to road accident. The OP No. 3 has no negligence; rather the vehicle of complainant occupied the space of his workshop. On 03.04.2018 the OP No. 3 wrote a letter to the complainant to take back his damaged Maxi Truck bearing No. TR 02 H 1704 as till date the OP No. 3 received no order from the complainant for starting repairing or approval for repairing the vehicle, but the complainant did not give any reply. Due to negligence on the part of  the complainant the OP No. 3 was not able to provide proper service to other vehicles and as such their liability in the case may be absolved.   

 

6. OP No. 4, in its written statement stated that the complainant has no cause of action, it is barred under the principle of estoppel, waivers and acquiescence. It is further stated by the OP No. 4 that the complainant has violated the law and has not come to the court in clean hand. The complainant is guilty of suppression of facts and malicious misrepresentation and he has approached this court with a non-sustainable prayer basing on non-existent claim. In case of hypothecated vehicle the ownership lies with the financer till the last EMI is paid. The absolute ownership of the vehicle does not pass to him until the condition in an agreement is fulfilled or its opts to purchase the vehicle. It would be the financer who would be entitled to possession of the vehicle when the same is subject of loan-cum-hypothecation agreement. Therefore, the OP has the right to reposes the vehicle and sale it to secure its outstanding loan against the borrower. In fact, the complainant intended to purchase a Mahindra Bolero Maxi Truck plus BS4 for commercial purpose and approached the OP No. 4 and based on credentials the loan was sanctioned. The complainant purchased the vehicle from the dealer at his own choice and later got his vehicle insured at his own choice and wish and thus the OP No. 4 had no role in choosing of either the vehicle or the dealer or the insurance. It is further stated that after being satisfied with the financial credibility of the complainant, the OP No. 4 sanctioned and disbursed the loan amount to the complainant vide loan agreement No. 4791930 dated 24.05.2017. The complainant took loan on the same date for purchasing the vehicle and he was supposed to pay the loan in 46 installments with an EMI of Rs. 12,350/-, but he only paid 7 EMIs till 11.01.2018 and he willfully defaulted the repayment for the loan and thereby the outstanding loan amount is still standing at Rs. 197600/- and Rs. 47,730/- as interest and thus the OP No. 4 is entitled to get an amount of Rs. 2,45,330/-. It is further contended that the complainant purchased the vehicle for commercial purpose and not for earning his livelihood and as such, he is not a consumer and as such, he is not entitled to any relief as claimed by him from the OP No. 4 and the case is liable to be dismissed with cost. 

 

7. The complainant has adduced evidence of two witnesses by way of examination-in-chief on affidavit as PW-1 and PW2 recapitulating the facts as have been stated by the complainant in the complaint petition and as such, for the sake of brevity the evidence is not repeated. However, during re-examination, the complainant (PW-1) has exhibited the following documents:-

 

Original Sanction letter of Mahindra Finance Company limited, in one sheet, marked Ext. 1

Money receipt dated 22-05-2017, in three sheets, marked Ext. 2/1 to 2/3. 

Certificate of fitness in original, in one sheet, marked Ext.3

Computerized generated Insurance policy, in one sheet, marked Ext.4

Sanction letter dated 22-05-2017, in one sheet, marked Ext.5

Temporary license dated 22-05-2017, in two sheets, marked Ext. 6/1 to 6/2

Letter address to Ramkrishna Engineering, in two sheets- Ext. 7/1 to 7/2

Letter showing appointment of Surveyor, in one sheet- Ext. 8

Postal receipts, in 4 sheets- Ext. 9/1 to 9/4

Demand notice addressed to MS Cholamandalam Insurance Co. Ltd., in two sheets- Ext. 10/1 to 10/2

Postal receipts, in 2 sheets- Ext. 11/1 to 11/2

Reply to advocate notice dated 26-06-2018, in two sheets-Ext. 12/1 to 12/2

Reply to advocate notice dated 07-06-2018, in two sheets-Ext. 13/1 to 13/2

Advocate notice dated 07-06-2018, in 1 sheet- Ext. 14

Tax invoice issued by Ramkrishna Engineering, in 1 sheet- Ext. 15

MVI report dated 13-02-2018, in 1 sheet- Ext. 16

Accident information report by ASI dated 19-02-2018, in 1 sheet- Ext. 17

RG issued to MVI by O/C PS, in 1 sheet- Ext. 18

 

8. In cross PW 1(complainant) denied suggestions as raised by learned defence counsel that he did not inform the OP Nos. 1, 2 & 4 after the accident but admitted the fact that he did not repair the vehicle from his own and did not pay any installment after the accident occurred on 09-02-2018. PW1 also denied that he intentionally kept the vehicle in the garage of the OP No. 3 just to escape from payment of the loan installment and also did not take any step to repair the vehicle. It is also denied by the PW 1 that all the OPs are not interlinked with each other and that out of negligence of the OPs he could not pay the premium installment and the OPs press him to buy the car all along and that OP No. 4 did not tell him to provide insurance, registration, fitness free of cost to him and that Mahindra Finance is not an allied partner and that damage of the vehicle is false and that for want of order OP No. 3 could not process the claim and that OP No. 1 and 2 were not bound to repair the vehicle and that he was not harassed by the OPs. He also denied that description of damage of the vehicle has neither been mentioned in his plaint nor has it been mentioned in his examination in chief.  

 

9. PW-2, Sri Krishna Dey, driver of vehicle bearing No. TR-02-H-1704 also denied suggestions put forward by the OP that on 09-02-2018 the accident did not occur and the vehicle was not damaged and that he did not inform the accident at Manu PS and thereby GD entry was made and that the owner of the vehicle did not inform the Insurance Company and the Finance Company.

 

10. From the side of the OP Nos. 1, 2 and 3 evidence of two witnesses by way of examination-in-chief on affidavit were adduced as DW-1 and DW-2 and both the witnesses in their evidence recapitulated the facts as have been stated by the OP Nos. 1, 2 and 3 in their written statement and as such discussion of their evidence is dispensed with. Since the witnesses of the OPs failed to appear before this Commission on repeated occasions this Commission vide order dated 09.11.2021 closed the evidence of the OP in obedience to the ratio laid down by the Hon’ble NCDRC in revision petition No. 518 of 2002.

 

11. Heard argument from the side of the complainant and also from the side of the OP Nos. 1 ,2, 3 and 4 at length. 

 

12. Following points are taken up for determining the fate of the case:-

 

Whether the complainant is a consumer?

Whether the OP No. 3 is obliged to repair the vehicle of the complainant?

Whether OP No. 2 is liable to pay the cost of the repairing of the vehicle of the complainant?

 

           DECISION AND REASONS FOR DECISION

 

For convenience, all the issues are taken up together for discussion and decision.

 

13. The vehicle of the complainant was insured by the OP No. 2 and it was sold by the OP No.3 in the capacity of a dealer and OP No. 4 is the financer in respect of the vehicle of the complainant. As such, the complainant is a consumer of the OP No. 2 being the owner of the insured vehicle, he is a consumer of the OP No. 3 being a purchaser of the vehicle and a consumer of the OP No. 4 being a borrower of the loan. So, there is no hesitation to hold that the complainant is a consumer of all the opposite parties. 

 

Exbt.2/3, money receipt, issued by M/S Sri Ramkrishna Engineering Works, Agartala, authorized dealer of Mahindra and Mahindra Ltd., it is found that the complainant made part down payment for Bolero Max Truck amounting to Rs. 1,04,075/- on 16.05.2017. From Exbt. 2/1, money receipt, issued by M/S Sri Ramkrishna Engineering Works, Agartala, authorized dealer of Mahindra and Mahindra Ltd.  it is found that the complainant made advanced part down payment for Bolero Max Truck amounting to Rs. 16,874/- on 22-05-2017 and Exbt. 2/2, issued by M/S Sri Ramkrishna Engineering Works, Agartala, authorized dealer of Mahindra and Mahindra Ltd.  it is found that the complainant made transportation charge for Bolero Maxi Truck amounting to Rs. 2,129/- on 22-05-2017. These three documents suggest that the complainant purchased Bolero Maxi Truck of Mahindra and Mahindra company by making part down payment and advance part payment and also by making transportation charge of the vehicle. Sri Ramkrishna 

Engineering Works, OP No. 3 is the authorized dealer of the Mahindra and Mahindra Ltd. From Exbt. 1, issued by Mahindra Finance, it is found that the complainant took finance from Mahindra and Mahindra Financial Service ltd., Dharmanagar Branch office for an amount of Rs. 4,38,000/- against the cost of the vehicle of Rs. 5,15,948/-. The period of installment was four years and number of installments was 46. The complainant paid the first installment of Rs. 11,898/- on that day and another 45 installments were due to be paid by the complainant @ Rs. 12,350/-. From Exbt. 3, certificate of fitness, it is found that the vehicle of the complainant was registered in the office of the DTO, Unakoti and registration No. TR 02 H 1704 was given against the said vehicle. The certificate was issued on 15.06.2017 and the validity of the fitness was up to 14.06.2019. From Exbt. 4, Motor policy schedule-cum-certificate of insurance, issued by Chola MS General Insurance it is found that the vehicle of the complainant was insured with the said company for the period from 22.05.2017 to 21.05.2018. From Exbt. 6/2 issued by the OP No. 3 it is found that the said company delivered Mahindra Bolero Maxi Truck plus MDI 2 WD BS IV to the complainant on 22.05.2017 and temporary registration No. TR 01 AF (Tem)-6486 was also provided at the time of delivery. From Exbt. 17, inquiry report submitted by Narayan Ch. Deb, ASI of police, Manu PS dated 07.03.2018 it transpires that the said ASI submitted inquiry report to the Branch Manager, Cholamandalam MS General Insurance Co. Ltd., Agartala Branch through MS Sri Ramkrishna Engineering works stating that on 09.02.2018 evening while he along with staffs were performing vehicular mobile duty on AA road at about 2135 hours they received one telephonic information from the duty officer of Manu PS that an RTA took place in between Manu Parking and Masli Bazar on AA road and the duty officer requested them to verify the matter locally. Accordingly, the said ASI with staff visited the PO and found that one Bolero Maxi truck vehicle bearing registration No. TR 02 H 1704, which was being driven by one Sri Krishna Das, while proceeding towards Masli from Manu side and reached in between parking and Masli Bazar one drunk person suddenly came in front of the said running vehicle, in consequence of which the driver of the said vehicle pressed brake and as a result, the vehicle went outside the road and dashed with tilla near the road. Because of the said accident, front and right side of the vehicle sustained severe damage though no person including the driver received any injury. In the report it is specifically stated by the said ASI that the accident took place just to save the said drunk person. Thereafter, the said ASI arranged mechanical examination of the vehicle and the MVI in his report opined that the alleged accident occurred not for any mechanical disorder. Therefore, purchase of the vehicle from the OP No. 3, registration and insurance of the vehicle and accident of the vehicle are all proved by the aforesaid exhibited documents submitted for and on behalf of the complainant. From Exbt. 16, mechanical inspection report submitted by Inspector of Motor Vehicles, office of the DTO, Dhalai Disrict, Ambassa, it is found that the vehicle bearing No. TR 02 H 1740(Bolero Maxi Truck) was inspected by the said MVI and on inspection he detected damages of the following parts of the vehicles: -

 

Front bumper

RHC head light 4 indicators

Bonet

Front legs spring

Front RHS type

WS glass

Wiper

Steering assembly and

Driver box.

 

However, it was opined by the said MVI that the accident occurred not for any mechanical disorder. From Exbt. 17, inquiry report submitted by the ASI, it is clearly transpired that the accident occurred when the driver pressed the brake to save a drunk person and so it is obvious that the accident occurred not for any mechanical disorder. It is the obligation of the insurance company to make payment of the repair of any insured vehicle if it is damaged by any kind of accident. From Exbt. 7/2, letter dated 03.04.2018 issued by one Bikram Das for and on behalf of MS Sri Ramkrishna Engineering works, OP No. 3, it is found that the vehicle of the complainant was brought to their workshop for repairing purpose after the accident and as they did not receive any order from the complainant to start the repairing, they did not repair the vehicle of the complainant and by the said letter OP No. 3 requested the complainant to take back his vehicle if he was not interested to repair the vehicle at the earliest or else provide prior approval for repairing of the vehicle which is still lying at their workshop. From the WS which is supported by the argument of learned counsel of the OP Nos. 1 & 2 it is found that the alleged accident took place on 09.02.2018 and the matter of accident was intimated to the OP No. 2 on 13.03.2018 and as there was delay of 32 days in intimating the claim to the insurance company without proper clarification, the claim for damage cost was repudiated vide companie’s letter dated 16.04.2018. From Exbt. 8, it is found that the OP No. 3 got the intimation of the accident on 13.03.2018. There is no scrap of paper in the record submitted on behalf of the complainant that the complainant informed the OP Nos. 2 and OP No. 3 about the accident just after the accident though in the claim petition the complainant stated that just after the accident the matter of accident was informed to the OP No. 3 by the driver of the vehicle of the complainant on the day of accident itself. It is obvious that the driver will verbally inform, not in writing and as such, there may not be any documentary evidence regaridng the information of accident. In view of existence of Exbt. 17 and 16, inquiry report of the police and the mechanical inspection report by the MVI respectively, neither OP No. 1 nor OP No. 3 can have any scope to deny the accident of the vehicle of the complainant on 09.02.2018. It is fact that there is no document to show that the complainant informed the accident to the OP Nos.1 and 3 and there is delay of 32 days in paper about lodging of information, but this delay of 32 days should not be treated as very cogent to repudiate any claim. Everything should not go in straightjacket formula and there may be difference in case to case. By sticking to the conditions harshly that the information was not lodged within 15 days of the occurrence it would be quite unjustified to repudiate any claim which is backed by insurance, what the OP No. 2 did in the case at hand. During argument learned counsel Mr. S. Deb stated that on the basis of the complaint of the complainant the OP No. 1 appointed surveyor and surveyor also assessed the damage cost of the vehicle to be Rs. 1,56,874/-. If there was good intention from the side of the OP No. 1, they could repudiate the claim just after lodging the complaint, they would not have appointed the surveyor. Appointment of surveyor itself proves that the insurance company did not repudiate the claim at the first instance, rather proceeded with the formalities and also received surveyor’s assessment, but after that why the claim was repudiated without making payment to the complainant is really an astonishing aspect. Now, it is the considered view of this commission that the complainant is entitled to repairing cost of damaged vehicle from the OP No. 1. 

 

14. OP No. 3 also being the dealer of the Mahindra and Mahindra company is under obligation to get the vehicle of the complainant repaired as per the damages mentioned by the MVI in Mechanical Inspection Report or as per the report of the surveyor appointed for and on behalf of the OP No. 1 and the cost of the repairing to be undertaken by the OP No. 3 is to be paid to the complainant by the OP No.2. The damage cost of the vehicle should not be below Rs. 1, 56,864/- as submitted by the surveyor and admitted by the OP No. 1.

 

15. It is apparent from the face of the record that for about two years the vehicle of the complainant is under the custody of the OP No. 3, as admitted by the OP No.3 and for repairing of the vehicle and to get proper redress from the OP Nos. 1 & 3 the complainant had to run from pillar to post and thus underwent much pain and sufferings and as such, the complainant is entitled to compensation of Rs. 20,000/- for pain and sufferings and this amount is to be added while making payment to the complainant by the OP No. 2 after repairing of the vehicle.  

At the same time this commission also passes a directed to the complainant that he should start repayment of the EMI to the OP No. 4 after repairment of the vehicle and the OP No. 4 is also directed not to charge any interest during the period from February, 2018 till payment of the repairing cost of the vehicle and compensation to the complainant by the OP No. 2. The whole exercise is to be completed within a period of 2(two) months. 

All the issues are decided accordingly in favour of the complainant. 

 

O R D E R 

                         

16. In the result, the complaint filed by the complainant succeeds. The OP No. 2 shall make payment of the repairing cost of the vehicle of the complainant after getting the vehicle repaired by the OP No.3 and the damage cost should not be less than Rs. 1, 56,864/-(rupees one lac fifty six thousand eight hundred and sixty four) as assessed by the surveyor or cost of the repair as detected by the MVI. OP No. 2 shall also pay an amount of Rs. 20,000/-(rupees twenty thousand) to the complainant being compensation for pain and sufferings. These two amounts are to be paid by the OP No.2 together within a period of two months. Considering the peculiar facts and circumstances, no interest is levied upon the OP No.2, but if the amounts are not paid within the stipulated period of two months, in that event the OP No.2 shall have to pay penal interest @ 9% on the amount of Rs.1,76,864/-( rupees one lac seventy six thousand eight hundred and sixty four) from the date of filing of the case, i.e., on and from 24-01-2019. 

 

  17. Furnish copy of this judgment to the complainant and O.P free of cost through their respective learned counsels.

 

18. Make necessary entry in the TR. 

 

                          ANNOUNCED

                                                                                     (P. Kumar)

                                                                                    PRESIDENT

         (P. SINHA)             (M. DATTA) 

         MEMBER                 MEMBER