Order No.  33  dt.  23/10/2017

       The case of the complainant in brief is that the complainant is housewife and for the purpose of her livelihood she purchased one truck of Eicher made in the month of May, 2011 with the financial help of o.p.s 2 and 4. For the purpose of smooth running of the said vehicle the policy was obtained by the complainant from the o.p. 1 and the policy was valid from 18/05/2011 to 17/05/2012. During the subsistence of the said policy the vehicle met with an accident at Naopala, within Bagnan police station on 24/09/2011. An FIR was lodged subsequently an investigation was made by the police. The complainant informed the said fact to the o.p.s including the insurance company. A surveyor was appointed and he directed the complainant for repairing of the vehicle. The service centre estimated the cost of repairing to the tune of Rs. 2,64,604/- and it was reduced to Rs. 2,25,400/- after repairing. The complainant claimed the amount from the o.p. 1, insurance company. The o.p. 3 informed the complainant that the insurance company has repudiated the claim on the ground of fake driving license and further intimated that the service centre has already repaired the vehicle and balanced amount of Rs. 1,75,402/- is to be paid by the complainant. Because of such accident the complainant failed to pay the EMI. The complainant came to learn that the insurance company paid an ad hoc amount of Rs. 75,000/- which was adjusted by the bank with the loan account in a very illegal manner. The o.p. 3 committed negligence an unfair trade practice in the bank statement. The complainant thereafter sent a Lawyer’s notice and no fruitful step was taken by the bank for which the complainant filed this case praying for direction upon the insurance company for payment of the balance amount of Rs. 1,50,000/- and direction be given upon the o.p.s 2 to 4 to deposit the amount of Rs. 75,000/- in the account of service centre and to pay the compensation of Rs. 1,00,000/- as well as litigation cost of Rs. 50,000/-.

            During the pendency of the case the complainant amended the complaint stating inter alia that during the pendency of the case the o.p. 2 to 4 took possession of the vehicle without any intimation to the complainant. The o.p.s 2 to 4 illegally demanded an amount of Rs. 2,87,203/- and the o.p.s in collision with each other destroyed the evidence.

            The o.p. 1 contested the case by filing w/v and denied all the material allegations of the complaint. It was stated that the said vehicle of the complainant was insured with the o.p. 1. The said policy was subject to terms and conditions by virtue of which the said vehicle could be driven by a person who is having a valid and effective driving license. But the vehicle was not driven by a person with valid license. As such the complainant was not entitled to any claim as per terms and conditions of the policy. The insurance company denied that there was any appointment of a surveyor and he asked the complainant to send the vehicle at the service centre for repairing. In view of the said fact the o.p. 1 stated that there was no deficiency in service on their part and therefore prayed for dismissal of the case.  

            The o.p.s 2, 3 and 4 stated that filed w/v and denied all the material allegations of the complaint. It was stated that the complainant approached the o.p. 2 seeking financial assistance for the purpose of purchasing the said vehicle. The o.p. 2 agreed to disburse the loan amount to the complainant under an agreement for loan. Accordingly the complainant and the o.p. 2 entered into an agreement of loan cum hypothecation cum guarantee whereby the o.p. 2 agreed to provide the loan and it was decided that the complainant was required to pay the total loan amount in 47 EMIs of Rs. 25,120/-. The complainant was habitual defaulter as a result the outstanding remain due to the tune of Rs. 1,35,600/-. The complainant suppressed the said fact and there was no deficiency in service on the part of the o.p.s 2, 3 and 4 and as per the terms and conditions of the policy the vehicle was taken possession by the o.p.s. Accordingly there was no unfair trade practice on the part of the o.p.s 2, 3 and 4 and thereby the o.p.s 2, 3 and 4 prayed for dismissal of the case.

            On the basis of the pleadings of the respective parties following points are to be decided :-

1. Whether the complainant took loan from the o.p. 2 for purchasing the vehicle in question ?
2. Whether the vehicle met with an accident ?
3. Whether the policy was valid at the relevant point of time ?
4. Whether there was any deficiency in service on the part of the o.p.s ?
5. Whether the complainant is entitled to get the relief as prayed for ?

Decision with reasons :-

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Ld. Lawyer for the complainant argued that the complainant is housewife and for the purpose of her livelihood she purchased one truck of Eicher made in the month of May, 2011 with the financial help of o.p.s 2 and 4. For the purpose of smooth running of the said vehicle the policy was obtained by the complainant from the o.p. 1 and the policy was valid from 18/05/2011 to 17/05/2012. During the subsistence of the said policy the vehicle met with an accident at Naopala, within Bagnan police station on 24/09/2011. An FIR was lodged subsequently an investigation was made by the police. The complainant informed the said fact to the o.p.s including the insurance company. A surveyor was appointed and he directed the complainant for repairing of the vehicle. The service centre estimated the cost of repairing to the tune of Rs. 2,64,604/- and it was reduced to Rs. 2,25,400/- after repairing. The complainant claimed the amount from the o.p. 1, insurance company. The o.p. 3 informed the complainant that the insurance company has repudiated the claim on the ground of fake driving license and further intimated that the service centre has already repaired the vehicle and balanced amount of Rs. 1,75,402/- is to be paid by the complainant. Because of such accident the complainant failed to pay the EMI. The complainant came to learn that the insurance company paid an ad hoc amount of Rs. 75,000/- which was adjusted by the bank with the loan account in a very illegal manner. The o.p. 3 committed negligence an unfair trade practice in the bank statement. The complainant thereafter sent a Lawyer’s notice and no fruitful step was taken by the bank for which the complainant filed this case praying for direction upon the insurance company for payment of the balance amount of Rs. 1,50,000/- and direction be given upon the o.p.s 2 to 4 to deposit the amount of Rs. 75,000/- in the account of service centre and to pay the compensation of Rs. 1,00,000/- as well as litigation cost of Rs. 50,000/-.

            Ld. Lawyer for the complainant also emphasized that during the pendency of the case the complainant amended the complaint stating inter alia that during the pendency of the case the o.p. 2 to 4 took possession of the vehicle without any intimation to the complainant. The o.p.s 2 to 4 illegally demanded an amount of Rs. 2,87,203/- and the o.p.s in collision with each other destroyed the evidence.

            Ld. Lawyer for the o.p. 1 argued that the said vehicle of the complainant was insured with the o.p. 1. The said policy was subject to terms and conditions by virtue of which the said vehicle could be driven by a person who is having a valid and effective driving license. But the vehicle was not driven by a person with valid license. As such the complainant was not entitled to any claim as per terms and conditions of the policy. The insurance company denied that there was any appointment of a surveyor and he asked the complainant to send the vehicle at the service centre for repairing. In view of the said fact the o.p. 1 stated that there was no deficiency in service on their part and therefore prayed for dismissal of the case. 

            Ld. Lawyer for the o.p.s 2, 3 and 4 argued that the complainant approached the o.p. 2 seeking financial assistance for the purpose of purchasing the said vehicle. The o.p. 2 agreed to disburse the loan amount to the complainant under an agreement for loan. Accordingly the complainant and the o.p. 2 entered into an agreement of loan cum hypothecation cum guarantee whereby the o.p. 2 agreed to provide the loan and it was decided that the complainant was required to pay the total loan amount in 47 EMIs of Rs. 25,120/-. The complainant was habitual defaulter as a result the outstanding remain due to the tune of Rs. 1,35,600/-. The complainant suppressed the said fact and there was no deficiency in service on the part of the o.p.s 2, 3 and 4 and as per the terms and conditions of the policy the vehicle was taken possession by the o.p.s. Accordingly there was no unfair trade practice on the part of the o.p.s 2, 3 and 4 and thereby the o.p.s 2, 3 and 4 prayed for dismissal of the case.

            Considering the submissions of the respective parties it is an admitted fact that the complainant took loan from the o.p. 2. It is also an admitted fact that the vehicle in question was insured with the insurance company. The o.p. 1, insurance company claimed that at the time of the accident the driver had the license for driving motor cycle only and he had no valid driving license to drive the vehicle in question. In order to nullify the contention of the o.p. 1 the complainant failed to substantiate her claim that the driver at the time of accident had the valid license. In this respect we can rely on the decision as reported in 2016 (IV) CPJ 169 as well as the judgement pronounced by Hon’ble Supreme Court that in case the driver of the vehicle was not having valid driving license at the time of accident the insurance company is not liable to pay any claim and compensation in case of a claim arising out of damage to the vehicle. It is also found from the materials on record that the complainant failed to pay the regular EMIs to the bank and the bank took possession of the vehicle since the vehicle remained under hypothecation to the bank and as per the loan agreement the bank took possession of the vehicle. In this respect we can rely on the decision as reported in 2017 (2) CPR 636 NC wherein it was held that bank has every right to recover outstanding amount from complainant as per terms and conditions laid down in the loan agreement. In view of the materials on record we hold that the complainant did not come with clean hands and thereby she will not be entitled to get any relief as prayed for.

            Thus all the points are disposed of accordingly.

            Hence, it is ordered,

            that the case no. 114 of 2012 is dismissed on contest against the o.p.s without cost.           

            Supply certified copy of this order to the parties free of cost.