Presented by Sri P.N.Dash, President .

The Complainant filed the case on Dt.30/05/2011 against the Opposite Parties where as Opposite Party No.1(one) is the Insurance Company and Opposite Party No.2(two) is the financer complaint of the damaged vehicle of the Complainant which met a dreaded accident on Dt.06/03/2010 within the jurisdictional territory of the Forum and within the time limit for lodging a case at this Forum being as the customer of the Opposite Party No.1(one) and Opposite Party No.2(two) hence the consumer under the Consumer Protection Act-1986 and entitled to lodge the case at this Forum. Being lodged a station Diary bearing Entry No.136/Dt.06/03/2010 about the accident at local Police Station at Bijepur and a Surveyor named H.N. Agrawal was deputed by the Opposite Party No.1(one) for a local inspection for loss assessment of the damaged vehicle on the same day i.e. on Dt.06/03/2010 the Opposite Party No.1(one) remained silent for to such an extension of period till to the date for his appearance in this case. So also Opposite Party No.2(two) appeared in the case yet denied all allegation against him. Hence the Complainant seek for damage compensation of the vehicle as to Rs.50,000/-(Rupees fifty thousand)only along with Rs.25,000/-(Rupees twenty five thousand)only for compensation for mental pain he suffered during the entire period along with equitable relief such as litigation cost as Rs.10,000/-(Rupees ten thousand)only. In support of his case the Complainant filed the xerox copies of all the genuine documents which are verified and found to be true.

The case of the Opposite Party No.1(one) is that, he has not committed any deficiency in his service. The Opposite Party No.1(one) admitted the case on the ground of accident on the particular day having station diary entry at local Police Station but denied about the appointment of loss-assessor by him as alleged by the Complainant. The Opposite Party No.1(one)'s main contention is that, the Complainant has not applied for “OD Claim” at the local branch of the company nor at the Head Office nor he applied for O.D. Claim verbally at those offices at all. The claim of Complainant about harassment by the Opposite Party No.1(one) is denied by him. According to the Opposite Party No.1(one) the Complainant has filed a vexatious case against him hence sufficient cost should be imposed on the Complainant. In his support Opposite Party No.1(one) has filed an attested copy of letter NO.150100/legal/MR/SC/2011 Dt.24/06/2011 issued by the Senior, Divisional Manager, National Insurance Co. Ltd., Sambalpur.

The case of the Opposite Party No.2(two) is that, he is the financer of the vehicle. He has no nexus concerned to this case, hence deficiency in his part can not arises. Opposite Party No.2(two) agitated the matter that the case is not maintainable as because the vehicle was not purchased/financed for livelihood of the Complainant. According to Opposite Party No.2(two), Opposite Party No.1(one) is liable for the damage compensation on the principle of “Principal to Principal basis”. In his support Opposite Party No.2(two) has not filed any document.

Heard the counsels, perused the record and the Forum comes to findings as such:-

1) The Complainant is the customer of Opposite Party No.1(one) and Opposite Party No.2(two), hence a consumer under the Consumer Protection Act-1986 U/S 2(1)(d), hence entitled to file the case.

2) The Complainant fulfilled the criterias of territorial jurisdiction of the Forum as well as the time limit to lodge the case. Hence the case is maintainable on those grounds.

3) The attested copy of the letter bearing No.150100/Legal/MR/SC/2011 Dt.24/06/2011 filed by the Opposite Party No.1(one) revealed that the local office (Sr. Dvn. Manager Office, Sambalpur) received the memo (Ref. 163400/L/MS/2011) of the Complainant yet proceeded in the case till to the end which revealed that Opposite Party No.1(one) has no compromise attitude or to settle the case or suit out the case.

4) Both Opposite Party No.1(one) and Opposite Party No.2(two) admitted the entire matter of accident and damages including receiving of the pleader notice sent by the Complainant, yet they contest the case till to the end. Law is well settled that “OD Claim” is not mandatory. One can, in case of ignorance can proceed to the Consumer Fora at first instance. In that case the Opposite Parties should solve the case by paying the O.D. Claim. But on this case no such happenings are noticed. Complainant in his argument stated that due to ignorance he may agited the matter of O.D. Claim at the local office of the Opposite Party No.1(one), but the letter of Sr. Dv. Manager, Sambalpur Dt.24/06/2011 reveals the truth that Opposite Party No.1(one) was well aware about the O.D. Claim of the Complainant yet failed to solve the problem. So latches lies on his part. No document regarding this matter, no clarification regarding this matter by orally submitted by the Opposite Party No.1(one) before the Forum. Onus shifted from the Complainant to the Opposite Party No.1(one) after receiving the memo Ref.163400/L/MS/2011 form the Complainant.

5) Opposite Party No.2(two)'s submission before the Forum regarding the principle of “Principal to Principal basis” is not applicable here. Complainant's prayer for liabilities lies on both the Opposite Parties. Both the Opposite Parties are liable jointly and severally for the damaged as because the letter of Sr. Dvn. Manager, Sambalpur Dt.24/06/2011 clearly revealed that he clearly admitted that after taking up the matter, with Magma Fincrop Ltd., (Opposite Party No.2(two) ' he will revert bank'. So Opposite Party No.2(two) is a necessary party in this case. His stand is more than a proper party in the case for an adjudication. Here the principle of “hire purchasing” is not applicable. Financier has no liability for any hire-purchasing or having no relationship of buyer and seller relationship does not sustainable here. So also decisions related to that matter also not applicable here, as because, here the Opposite Party No.1(one) (Insurance Company) throw his onus to the Opposite Party No.2(two) (Financier Company) and clubbed him to the case and to himself jointly and severally which is reflected in the aforesaid letter of the Opposite Party No.1(one) Dt.24/06/2011. A clarification to discharge his onus from Opposite Party No.2(two) was required by the Opposite Party No.1(one) for a fair adjudication and settlement of the claim amount as stated by the Opposite Party No.1(one) in his letter which the Opposite Party No.2(two) has not discharged dully. Hence, unless discharged his duties and responsibilities by the Opposite Party No.2(two) onus can't shifted to Opposite Party No.2(two), hence Opposite Party No.2(two) can not avail the benefit of the above principle.

6) The Complainant is not a consumer according to the provision of Sec 2(i)(d) of the Law of Consumer Protection Act-1986 as pleaded by the Opposite Party No.2(two) is not sustainable as because the Complainant is the customer of both the Parties, hence a consumer under this Act.

7) The plea of Opposite Party No.2(two) stated in his version at para 6(six) that the case is not maintainable in view of the fact of the Arbitration clause and jurisdiction clause of the Agreements is tenable in the eye of law, as because arbitration clause or jurisdictional clause is not binding to this Forum unless decided by the said Arbitrational Forum.

Finally, the Forum comes to a conclusion that both the Opposite Parties are jointly and severally liable for the deficiency perfuncted on their part by procrastinated for the damage claim seek by the Complainant inspite of receiving notices though advocate and the Forum.

Hence ordered that Opposite Parties have to pay Rs. 55,243/-(Rupees fifty five thousand two hundred forty three)only which included with furnished bills of (i) loss assessor's fee (ii)retail invoices of the seller of the vehicle (iii) Welder's bill for the damaged vehicle (iv) bills of auto electric works and auto syndicate (all for repairment of the vehicle for the damaged purposes) along with a compensation of Rs.5,000/-(Rupees five thousand)only for mental agony, the Complainant has suffered during the entire period from the date of accident on Dt.06/03/2010 to the date of order and with a litigation cost of Rs.1,000/-(Rupees one thousand)only to be awarded infavour of the Complainant, a total sum amount of Rs.61,243/-(Rupees sixty one thousand two hundred forty three)only within one month from the date of Order, failing which 18%(eighteen percent) interest per annum is imposed on the total amount from the date of order to till to its realization.

The case is disposed of accordingly.

Typed to my dictation

and corrected by me.

           I agree,                                                                            I agree,

(Sri Pramath Nath Dash)                                                   (Mrs Anjali Behera)

       P r e s i d e n t.                                                                    M e m b e r.