BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 251 of 2019
Date of Institution : 13.05.2019.
Date of Decision : 27.07.2023.
Hari Kishan aged about 46 years son of Shri Ram Swarup, resident of village Khai Shergarh, District Sirsa, Mobile No. 94160-56243.
……Complainant.
Versus.
1. HDFC Ergo General Insurance Company Limited (through its Branch Manager/ authorized officer) S.C.O. 237 IInd Floor Sector 12, Near Nirmal Kutia, Karnal (Mobile No. 8053668900).
2. Shri Amit Saini, authorized agent of HDFC Ergo General insurance Company Limited, Sangwan Chowk, Sirsa Mobile No. 93541-10308.
3. HDFC Bank Sangwan Chowk, Sirsa Branch through its Branch Manager.
4. Raja Motors, authorized dealer of Hyundai Car Dabwali Road, Sirsa- 125055 through its Proprietor Mobile No. 9996027375.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. PADAM SINGH THAKUR …………PRESIDENT
MRS.SUKHDEEP KAUR………………MEMBER.
Present: Smt. Pushpa Mehta, Advocate for complainant.
Sh. R.K. Mehta, Advocate for opposite party no.1.
Opposite party no.2 given up.
Sh. S.L. Sachdeva, Advocate for opposite party no.3.
Sh. JBL Garg, Advocate for opposite party no.4.
ORDER
The present complaint has been filed by complainant under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of the complainant is that on 20.06.2018 complainant purchased a Car make Hyundai Creta 1.6 CRDI SX for his own use from op no.4 against delivery challan no. 6898 and op no.4 had told the price of the vehicle to be Rs.15,15,000/- in total including the expenses of registration charges and insurance etc. The vehicle was being purchased by complainant through loan facility from op no.3 after paying down payment. The complainant had made down payment from his account maintained with Axis Bank Limited branch Rania to the sum of Rs.2,25,000/-, Rs.1,09,500/-, Rs.2500/- and Rs.22,000/- and thereafter vehicle was got registered vide registration No. HR24Z-6109 and insurance cover note was also issued by op no.1 through op no.2. It is further averred that on 17.08.2018 said vehicle met with an accident at Badli Jhajjar Highway at about 10.30 P.M. on account of sudden appearance of a car ahead of the car of the complainant and to avoid the serious mishap the complainant who was driving the vehicle took a turn and due to this the vehicle turned turtle after striking the road divider. The vehicle was damaged badly in the accident and complainant sustained fracture and other occupants also received minor injuries. The complainant had given telephonic information to op no.2 agent of op no.1 who advised the complainant to bring his vehicle to the showroom of op no.4 and assured that company shall replace the same with a new car. The complainant brought the vehicle at Sirsa by paying charges of Rs.10,000/- and took treatment in Paras Hospital, Sirsa and spent approximately amount of Rs.50,000/-. That Surveyor of op no.1 namely Shri Vipin Kumar Grover inspected the vehicle and prepared inspection report and found claim of complainant genuine and subsequently an another Surveyor namely Shri Pankaj Kumar called the complainant at office of op no.1 where he recorded statement of complainant and he also demarcated the place of accident and Surveyor also got signed many papers from complainant in the name of reimbursement formalities. The complainant also signed a consent letter on 27.09.2018 under coercion and duress to get settled the claim at the earliest.
3. It is further averred that on 15.01.2019 the insurance company sold the damaged vehicle through online to one Vijay Singh son of Shri Narjeet Singh, resident of Rohtak against a sum of Rs.6,95,000/- out of which Rs.6,45,000/- were paid to complainant with the promise to pay remaining Rs.50,000/- on submission of documents i.e. No Dues etc. by the complainant. Besides this, an amount of Rs.87,000/- was refunded by the company to the complainant and a cheque No. 019526 dated 01.02.2019 of Rs.4,80,000/- in the name of HDFC Bank was also issued by op no.1 but officials of the bank refused to accept the said cheque. That complainant has become a victim of deceptive trade practice of the ops and has been harassed by them as all the ops in connivance with each other and consent letter was got signed from him claiming the damaged vehicle to be a salvage and it was never apprised to him that the vehicle is in a condition to be made road worthy and that a security cheque amounting to Rs.11,26,000/- (equal to loan amount) was received by op no.4 which was returned to complainant after hypothecation of the vehicle with the bank but actually loan amount was sanctioned to the tune of Rs.12,05,642/- which complainant came to know only during the fatigue exercise of settlement. It is further averred that op no.4 had received insurance premium amount to the tune of Rs.57,722/- but actually premium paid was Rs.49,381/- and amount received in the name of registration charges was Rs.1,15,268/- but actually fee of the amount of Rs.1,09,140/- was paid and personal accident cover for owner/ driver was included in the policy but the claim of complainant qua his injuries has been flatly refused. The complainant has to still pay the EMI of Rs.25,180/- as the sword of interest is hanging on his head and that sanctioned loan amount of Rs.12,05,642/- adding the amount received from complainant in total comes to be Rs.15,64,642/- whereas the invoice shows the total price as Rs.15,38,596/-. Hence, this complaint against the opposite parties seeking direction for them to replace the vehicle in question with a new one with all documents i.e. RC, insurance etc. and to pay claim to the tune of Rs. One lac on account of body injuries, treatment, pain and sufferings and to pay compensation to the tune of Rs. three lacs to the complainant on account of harassment and unfair trade practice.
4. Notice of the complaint was issued to the ops. Initially op no.1 did not appear despite notice and was proceeded against exparte. However, during the pendency of present complaint, op no.1 moved an application seeking permission to join the proceeding by setting aside exparte order which was allowed and accordingly op no.1 was allowed to join the proceeding. The op no.1 thereafter filed written version raising certain preliminary objections that complainant is not maintainable in the present form and complainant is not entitled to any relief since has not approached this Commission with clean hands and that there is no deficiency of service on the part of op no.1. On merits, it is submitted that complainant purchased a private car comprehensive policy no. 2311 2022 7817 0100 000 for his above said Car for the period 20.06.2018 to 19.06.2019 with the total IDV as Rs.12,64,762/- with compulsory deductible under IMT-22 of Rs.2000/- and as such the payable IDV was Rs.12,62,762/- On 21.08.2021 claim of complainant was registered vide claim No. C230018163466 for the alleged damage due to external means of the insured vehicle on 17.08.2021. The op no.1 after due verification has treated the insured vehicle as total loss and the total payable IDV after deduction of compulsory deductible under IMT-22 of Rs.2000/- was Rs.12,62,762/-, however, complainant had agreed to take Rs.12,62,700/- as total against the insurance policy amount and further consent of the complainant was taken for sale of the salvage of the insured vehicle. The complainant through his consent requested the op to facilitate him to obtain best salvage value for the insured vehicle and agreed to hand over the salvage to the buyer. The op has been requesting the complainant to give the consent in a Notarized Affidavit however the complainant was delaying the submission of the consent for the reason best known to him. It is further submitted that in view of the complainant’s request for facilitating him for Salvage Buyer, the salvage was sold to Vijay Singh and complainant had agreed to handover the Salvage to Sh. Vijay Singh for a total consideration of Rs.6,95,000/- out of which complainant had admitted to have received Rs.6,45,000/- from Sh. Vijay Singh and Rs.50,000/- was agreed to be paid by Sh. Vijay Singh after handing over of No Due Certificate from the bank alongwith other documents by the complainant so that Sh. Vijay Singh can get the salvage of the insured vehicle transferred in his name and complainant has also given his notarized affidavit statement to Vijay Singh on 15.01.2019 at the time of handing over of salvage to him. That as op no.1 company was continually following with the complainant to hand over his written consent for sale of salvage and complainant finally handed over his Notarized affidavit dated 22.01.2019. It is further submitted that in view of the above, out of the total IDV payable amount of Rs.12,62,762/-, Rs.6,95,000/- was to be paid by Sh. Vijay Singh purchaser of salvage and rest of the amount i.e. Rs.5,67,762/- was to be paid by op no.1 company. The complainant in his Notarized affidavit statement dated 15.01.2019 as given to Sh. Vijay Singh has stated that he would provide the NOC from Bank alongwith other documents to Sh.Vijay Singh after receipt of the balance amount from insurance company i.e. op no.1. It is further submitted that complainant has further admitted in his complaint that he has received Rs.87,000/- (though it is actually Rs.87,760/-) from the op no.1 and has further admitted to have received a cheque No. 019526 dated 01.02.2019 amounting to Rs.4,80,000/- in the name of HDFC Bank as vehicle was hypothecated with HDFC Bank i.e. op no.3 and complainant agreed to have received Rs.5,67,000/- from op no.1. Thus, op no.1 has duly paid Rs.5,67,000/- (actually Rs.5,67,760/-) to the complainant and has duly discharged its liability towards the insurance policy. The op no.1 company has actually given a cheque no. 019525 dated 01.02.2019 amounting to Rs.87,760/- in the name of complainant which was duly encahsed by complainant into his account and op no.1 has also given a cheque no. 019526 dated 01.02.2019 amounting to Rs.4,80,000/- in the name of HDFC Bank as vehicle was hypothecated with op no.3 and thus complainant has received total amount of Rs.12,12,000/- combined from Sh. Vijay Singh and op no.1 and now complainant has to clear his car loan of op no.3 bank and to provide NOC and Form No.35 to Vijay Singh after obtaining the same from bank so that Vijay Singh can pay the balance amount of Rs.50,000/- but complainant is not providing the NOC and Form No.35 and in this regard said Vijay Singh has also filed a consumer complaint before the District Consumer Commission Rohtak against the complainant. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.2 was given up by learned counsel for complainant.
6. Op no.3 filed written version and has taken certain preliminary objections qua cause of action, maintainability and complainant has not come with clean hands. It is submitted that total amount financed was Rs.12,05,642/- and out of this an amount of Rs.11,26,566/- was disbursed after deducting the amount on account of processing fee, insurance amount etc for which the complainant/ borrower himself authorized the bank to charge the same from the financed amount. At present there is a default in the loan account and the overdue amount of installment accrued as on 16.09.2019 is Rs.1,06,085.40 which includes the amount of pending monthly installments, installment bouncing charges, penal interest etc. and in addition to this he is also under legal obligation to pay the amount of the future installment in time. Other preliminary objections that intricate question of law and fact is involved and complainant is not a consumer and this Commission has no territorial jurisdiction and that complainant has no cause of action and that there is no privity of contract between op no.3 and op no.1 have also been taken. On merits, it is submitted that complainant is under legal obligation to clear his loan liability as per the terms and conditions of the loan agreement which were explained to him. It is submitted that as the vehicle is hypothecated with answering op the complainant was not a absolute owner of the same and answering op being the financer has a preferential right to get the amount of compensation if any in case of total loss of the vehicle so that the amount so received can be adjusted towards the loan liability of the borrower/ complainant. It is further submitted that unless and until the loan account is cleared no NOC can be issued to the complainant. In the absence of the NOC neither the complainant/ borrower nor the insurance company has any right to sell the vehicle in question. It is denied that a cheque bearing No. 019526 dated 1.2.2019 of Rs.4,80,000/- was also issued by op no.1 to the complainant in the name of HDFC Bank. It is also denied that officials of the bank had refused to accept the said cheque. It is further submitted that as per the foreclosure statement of the loan account, the complainant is under legal obligation to pay an amount of Rs.11,38,944.80 as on 16.09.2019 to clear his loan liability and answering op never refused to clear the loan account and complainant has made up a false story in the present complaint. The answering op is ready to receive the amount in lieu of the total outstanding liability of the complainant and to close his loan account as per the terms and conditions of the loan agreement. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
7. Op no.4 also filed separate written statement raising certain preliminary objections. It is submitted that complainant of his own accord had demanded the specific brand and specific model car from answering op and at his own had got insured his car from op no.1 through op no.2 because the complainant had raised loan for purchase of car from HDFC Bank Ltd. and op no.1 is the subsidiary of op no.1. The price of the vehicle was quoted to the complainant as Rs.13,31,328/- being Ex. Show room price, Rs.7000/- of accessories, Rs.13,300/- of Income tax (refundable), Rs.3,000/- as logistic charges and Rs.3641/- was of discount and net price of the car was Rs.13,50,987/-. The said price of the car was without insurance and without RC. A sum of Rs.2,25,000/- was paid by complainant through a cheque and amount of Rs.1,09,840/- through cheque was given by complainant towards the road tax and endorsement of hypothecation on the registration certificate. Besides, Rs.2,25,000/- through cheque a sum of Rs.11,26,566/- was raised as loan by complainant. In this manner, a sum of Rs.13,51,566/- was received by complainant. The complainant got affixed the extra accessories worth Rs. 566/- plus Rs.2500/- from answering op. The complainant has concealed and suppressed the above true and material facts from this Commission. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
8. The parties then led their respective evidence.
9. The complainant in evidence has tendered his affidavit Ex. CW1/A and copies of documents Ex.C1 to Ex.C22.
10. Op no.4 has tendered affidavit of Sh. Deepak Bhardwaj, Accountant as Ex. RW1/A and copies of documents Ex.R1 and Ex.R2. OP no.3 has tendered affidavit of Sh. Mohinder Sharma, Senior Manager Legal as Ex.R3 and copies of documents Ex.R4 to Ex.R7. OP no.1 has tendered affidavit of Sh. Vivek Yadav, Senior Manager as Ex.R8 and copies of documents Ex.R9 to Ex.R15.
11. We have heard learned counsel for the parties and have perused the case file.
12. It is an admitted case of the complainant as well as opposite parties that on 20.06.2018 complainant had purchased the Car in question from op no.4 which was got registered vide registration No.HR24Z-6109 and said car was financed by op no.3. In this regard complainant himself has admitted that he made down payment of Rs.2,25,000/- and also paid another amounts of Rs.1,09,500/-, Rs.2500/- and Rs.22,000/- and remaining amount was financed by op no.3. The complainant has leveled allegations against op no.4 dealer of the car that against the insurance premium amount of Rs. 49,381/-, op no.4 charged amount of Rs.57,722/- from him and against registration charges of Rs.1,09,140/- op no.4 charged amount of Rs.1,15,268/- from him. It is further alleged by complainant that in total op no.4 charged amount of Rs.15,64,642/- from him as well as through loan amount whereas the invoice Ex.C6 shows the total amount of Rs.15,38,596/-. It has come on record that though an amount of Rs.12,05,642/- as loan amount was sanctioned by the op no.3 bank, but however, an amount of Rs.11,26,565/- as loan was disbursed directly to op no.4 dealer of the car. From the statement of account placed on file by complainant Ex.C1, it is evident that on 20.06.2018 complainant paid amount of Rs.2,25,000/- to op no.4 through NEFT and as such total amount paid to the op no.4 by complainant himself and through loan amount of Rs.11,26,565/- comes to Rs.13,51,565/-. So, the assertion of op no.4 made in its written statement is found to be true and correct that op no.4 received an amount of Rs.13,51,566/- from the complainant and complainant got affixed the extra accessories worth Rs. 566/- plus Rs.2500/- from op no.4. The delivery challan Ex.R1 produced by op no.4 also shows that against the amount of Rs.13,51,000/- the op no.4 received amount of Rs.13,51,566/- from the complainant on account of accessories of Rs.566/- and complainant was provided free accessories of Rs.2500/- by op no.4. So, it is proved on record that op no.4 has not charged any extra amount from the complainant. The payment of amounts of Rs.2755/- and Rs.22005.90 by complainant was on account of file charges for availing loan and it is not proved on record by complainant that said amounts were paid to op no.4. It has also come on record that op no.4 has not charged any extra amount in lieu of registration charges or insurance charges because complainant paid amount of Rs.1,09,857.70 as per statement of account Ex.C1 in lieu of registration charges as per receipt placed on file and he also paid an amount of Rs.49381/- on account of insurance charges. The document proforma invoice of op no.4 relied upon by complainant as Ex.C6 is of dated 09.03.2019 whereas complainant purchased the vehicle in question from op no.4 on 20.06.2018 and even it is not proved on record by complainant through cogent and convincing evidence that op no.4 charged amount of Rs. 15,38,596/- as per invoice dated 09.03.2019 whereas from the record it is proved that op no.4 has not charged any extra amount from the complainant and only charged amount of Rs.13,51,566/- as per delivery challan dated 20.06.2018 Ex.R1 and same has been justified by op no.4 on record.
13. Now coming to the accident of the vehicle in question of complainant on 17.08.2018, the op no.1 insurance company has also admitted that vehicle of the complainant met with an accident and claim was lodged and claim was settled with the complainant as per insured declared value of the vehicle in question as per insurance policy. As per certificate of insurance cum policy schedule, the insured declared value of the vehicle was assessed as Rs.12,64,762/- at the time of insurance i.e. on 20.06.2018 against the total payment of Rs.13,51,000/- towards purchase of vehicle (excluding insurance charges and RC charges) which was paid by complainant himself and through his loan amount. The insurance company no.4 has also admitted that after the accident as the vehicle was totally damaged, therefore, at the request of complainant they had facilitated him to obtain best salvage value for the insured vehicle and as per his affidavit complainant himself entered into an agreement with one Vijay Singh to sell his vehicle to said Vijay Singh and as per averments made by insurance company total salvage value was fixed as Rs.6,95,000/- out of which Vijay Singh paid an amount of Rs.6,45,000/- to the complainant through cheque and remaining amount of Rs.50,000/- was withheld by Vijay Singh purchaser which was to be paid to the complainant by him at the time of submission of documents i.e. No Dues from the bank and all other documents for transfer of the salvage in his name. It is also proved on record that after deducting amount of Rs.6,95,000/- out of the insured declared value of Rs.12,64,742/- the insurance company has paid amount of Rs.87,000/- to the complainant through cheque dated 01.02.2019 and op no.1 insurance company had issued cheque of the amount of Rs.4,80,000/- in favour of op no.3 bank and amount of Rs.2000/- was compulsory deducted under IMT-22. So, the insurance company no.1 has asserted in its written version that they have discharged their liability with payment of insured declared value to the sum of Rs.12,62,700/- as complainant had also agreed to take the said amount of Rs.12,62,700/- from op no.1. The complainant averred in his complaint that bank officials had returned cheque to the tune of Rs.4,80,000/- issued by insurance company on 01.02.2019 which was presented to the bank through form dated 18.02.2019 (Ex.C7) whereas op no.3 bank has asserted in its written version that cheque was never returned by the bank. It is proved on record that complainant himself entered into a contract with Vijay Singh through his affidavit (Ex.R7 and Ex.R15) to sell his vehicle to said Vijay Singh but he has never bothered to deposit amount of Rs.6,45,000/- received from Vijay Singh in his loan account. The complainant has also received amount of Rs.87,000/- from insurance company through cheque but he has also not bothered to deposit this amount with the bank in his loan account to discharge his liability. The cheque in question of the amount of Rs.4,80,000/- was issued by the insurance company in favour of op no.3 HDFC Bank though it is written on the back side of the cheque that “account invalid” meaning thereby that this endorsement was made by the bank despite the fact that loan account number was same as mentioned in the cheque as well as loan documents. It appears that op no.3 bank only returned the said cheque on account of partial payment when the complainant went to op no.3 for deposit of said amount as bank had demanded full and final payment of loan amount from the complainant. Therefore, op no.3 bank is deficient in service in this regard as bank should have accepted the said amount and should have adjusted the amount of Rs.4,80,000/- in the loan account of complainant by accepting the said cheque of Rs.4,80,000/- issued by insurance company. Therefore, op no.3 bank is not entitled to charge interest over the amount of Rs.4,80,000/- from the complainant from the date 18.02.2019 when the cheque was presented by him to op no.3 till onwards. Since the amount of Rs.4,80,000/- has not been debited from the account of insurance company op no.1 and insurance company has also not bothered to credit this amount through any other means i.e. RTGS or NEFT, therefore, insurance company op no.1 is also liable to pay the said amount of Rs.4,80,000/- alongwith interest from above said date i.e. 18.02.2019 till date and said amount of Rs.4,80,000/- alongwith interest will be paid by op no.1 to op no.3 bank in the loan account of complainant. The op no.1 insurance company is also liable to reimburse the medical expenses of Rs.26,190/- to the complainant which has been borne by complainant on account of fracture received by him in the above said accident as per bills/ receipts placed on file as op no.1 insurance company also received premium amount of Rs.100/- for covering owner driver.
14. In view of our above discussion, we allow the present complaint against the opposite party no.1 insurance company and against op no.3 bank. We direct the op no.1 insurance company to pay the amount of Rs.4,80,000/- alongwith interest at the rate of @9.26% per annum as per loan document Ex.C17 from 18.02.2019 till actual payment either to the op no.3 bank in the loan account of complainant or to the complainant with the consent of op no.3 bank. We also direct the op no.1 insurance company to pay above said amount of Rs.26,190/- to the complainant (on account of medical expenses incurred by complainant) alongwith interest @7% per annum from the date of filing of present complaint i.e. 13.05.2019 till actual realization. We also direct the op no.3 bank not to charge interest on the amount of Rs.4,80,000/- from complainant from the period 18.02.2019 onwards. We also direct the op no.3 bank to receive loan amount after deduction of the amount of Rs.4,80,000/- alongwith interest from the amount of amount of Rs.11,26,565/- (actually disbursed to op no.4 dealer) from the complainant and op no.3 will also deduct the interest amount of Rs.4,80,000/- for the above said period (from 18.02.2019 till date which will be paid by op no.1 insurance company to the op no.3 bank) and op no.3 will be at liberty to receive remaining loan amount after deducting amount of Rs.4,80,000/- plus its interest from the amount of Rs.11,26,565/- and op no.3 bank will be at liberty to charge interest on that remaining amount as per loan agreement. We further direct the ops no.1 and 3 to pay amounts of Rs.10,000/- each to the complainant as composite compensation for harassment and litigation expenses. The grievance of complainant against Vijay Singh regarding remaining amount, if any and that of Vijay Singh against the complainant cannot be looked into by this Commission as none of them claiming any relief against each other and moreover Vijay Singh is not a party to the present complaint and their grievances, if any can be redressed by appropriate court of law only as per law. The complaint against ops no.2 and 4 is dismissed as no liability of ops no.2 and 4 of any kind is made out towards the complainant. The ops no.1 and 3 are liable to comply with this order within a period of 45 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member President,
Dated:27.07.2023. District Consumer Disputes
Redressal Commission, Sirsa.
