The fact of case as revealed from the petition of complaint as well as from the evidence is that the complainant Sri Shankar Mandal of Village Chama gram under the Police Station Baishnab Nagar District Malda filed a petition under section 12 of  the Consumer Protection Act 1986 and this said petition was registered  before this forum  as complaint Case No.08/2016.   

 The fact of the case  as revealed from the petition of complaint as well as from the evidence is that the complaint Sankar Mandal purchase a vehicle after taking loan from Indusind bank and the said vehicle was ensure with CholaMandalam M/s General Insurance Company Limited. The said vehicle was a track bearing registration no. WB39 9485 with Chassis No. 426033723113 and the policy of Insurance was for valid for 1 year. The Bank Manager kept of the original document and Insurance paper to his custody the Bank Manager handed over the   xerox copy of the Insurance paper. After the lapse of time again and again the complaint requested the Bank Manager to hand over the original Insurance paper to him as the complainant was finding difficulty in plying vehicle on road without the original Insurance paper. Bank officials remained silentinspite of several requests made by the complainant to the Bank Manager for hand over Insurance paper to the complainant. Finding no other alternative the complainant came to Bank Manager, Malda on 15-10-2015 even after receiving the said complaint from the complainant the Branch Manager did not take any action.  There was deficiency of service on the part of O.P. for which the complainant has file the petition to redressal his claim.

The petition has been contested by the O.P. office that is Indusind Bank Limited dentinal the material allegation as leveled against O.P. office contending inter alia that the instant case is not maintainable in its present form. The complainant has not come to the Forum in a clean hand and suppressed the vital material fact before this Forum. The definite case is that the complainant is not a ‘Consumer’ as per definition of section 2 (1)(D) of the  Consumer Protection Act, 1986 and the said truck  was purchase for commercial purpose after getting loan from the present O.P.. The complainant is difaulter in payment of dues and the company will get Rs.97496 + 30% additional fine charges. The complainant paid Rs.60000 on 26/3/2015. The O.P. approached the complainant several times to clear the due amount but the complainant did not pay any heed to the request of the O.P.. The further defense case is that if the complainant paid the enter dues then the company will issue Form 35 for deleting the name from the deed of Hypothecation endorsement. Considering such fact and circumstances the instant case is liable to be dismissed  with cost.

In order to prove the case the complainant himself was examined as PW1 and cross examined in the form of questionnaires filed by the  O.P.  At the time of filing the case the complainant filed the documents.

On the other hand the OP has examined one Krishna Kumar Tewari as OPW1. and he was cross examined. No other witness was examined on behalf of the other side.

Now the point for determination:- Whether the complainant is entitled to get any relief as prayed for?

::DECISION WITH REASONS::

At the time of the argument the Ld. Lawyer of the complainant submitted that the O.P. did not hand over the original insurance policy. For this reason the complainant failed to drive the vehicle in question for which he has suffered mental pain and agony. For this reason the O.P. is liable to pay the compensation. On the other hand the Ld.Lawyer of the O.P. argued that the complainant took loan from the Indusind Bank. But the complainant did not clear up the duce. This is why the company did not issue Form No. 35 in the name of the complainant for deleting the name of the complainant from the deed of hypothecation of endorsement.

The Ld.Lawyer of the O.P. further argued that heavy amount near about 1,00,000/-( Rupees One Lakh Only) was remained unpaid. Unless and until the amount is paid it is not possible on the part of the bank or company to issue From No. 35. On the other hand the Ld.Lawyer of the complainant argue that the complainant paid the amount in this regard he has filed the receipts showing the payments. But on perusal of the document as well as bank statement of accounts it is found as yet loan amount is due. But the complainant in his Examination-in-Chief has stated that he has cleared the dues. No amount is due. But on perusal of statement of account it is found that loan amount is due. So the complainant has not come to this Forum with a clean hand and he has suppressed the real fact. The Ld.Lawyer of the O.P. further argued that the vehicle in question was purchased for the commercial purpose. It appears from the document of registration of vehicle as the vehicle was registered as heavy vehicle.

According to the statement as advanced by the Ld.Lawyer of the O.P. is that the vehicle was purchase for commercial purpose. So definitely the complainant is not a ‘Consumer’ under the definition of Consumer Protection Act,1986.

It is a fact that the complainant did not specifically mentioned weather the vehicle is used for maintaining his livelihood by plying the vehicle. The O.P. did not produce any document to show that the complainant has any other business. So in such circumstances the benefit will go in favour of the complainant that the complainant maintains his livelihood by plying the vehicle. Though the complainant should have stated such fact in the petition of complaint but mere non stating such fact it will not defeat the merit of the case as because the O.P. did not file any cogent evidence or document to show that the complainant had any other business.

On perusal of the Xerox Copy of the insurance policy it is found that the vehicle in question was insured from the period 20/02/2012 to 19/02/2013. But the instance case was filed in the year 2016. So this insurance policy has no relevancy for filling the case. in the year 2016.

So on considering the facts and circumstances of the case the instant case is liable to be dismissed as the complainant did not pay the dues and did not come to this Forum with a clean hand.

C.F. paid is correct.

Hence, ordered that

the case be and the same is dismissed on contest without any cost.

Let a copy of this judgment be given to the Complainant/O.P. free of cost on proper application.