PER:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that the complainant Resham Singh is owner of Hero Splendor Plus Motorcycle bearing its Registration No. PB-46-X-9201, colour black, Chassis No. is MBLHA10BWGHK55747, Engine No.HA10EWGHK88998 and model is year 2017. The above said motorcycle has purchased from Harike agency through finance of Indusind Bank Ltd Branch Patti i.e. opposite party No.3 and the complainant has insured the above said motorcycle from opposite parties No. 1 and 2 vide Insurance Policy No.3005/35032871/40351/000 of Rs.1,710/-, which was valid from 4.1.2017 to midnight 3.1.2018 and opposite parties No.1 to 2 have also issued insurance cover note to the complainant. On 23.9.2017 at about 6.00 PM, complainant came back his own house from daily work and he has parked the above said motorcycle outside of his house and he entered inside of his house and later one he came outside of the house, then he saw that his motorcycle was not existed there and complainant searched the above said motorcycle, but he did not find. Thereafter, complainant informed to the concerned police regarding the above said motorcycle and on the statement of complainant one FIR No.155 dated 24.09.2017 U/s 379 of IPC, Police Station Sadar Patti is got registered against the unknown persons. After that complainant approached to the opposite party No.1 and 2 office for getting the claim of the above said motorcycle and complainant submitted his documents regarding insurance policy claim in the office opposite parties but opposite party Nos.1 and 2 have not issued the claim to complainant and linger the matter under one pretext or another. After that the complainant visited the branch office of the opposite parties many times, but they put off the matter on one pretext or the other. Thereafter, the complainant also served a legal notice dated 28.02.2019 through counsel Sachin Kumar Ratti Advocate Patti, duly dispatched through speed post/ registered post on 28.02.2019 for calling the opposite parties to make claim amount within 15 days from the receipt of legal notice but the opposite parties No. 1 and 2 failed to comply with the same and did not make claim payment to the complainant. The complainant has prayed that the opposite parties may be directed to pay the insured claim amount of Rs. 1,00,000/- alongwith up to date interest and incentives etc. on the basis of policy in question to the complainant and prayed Rs. 2,00,000/- as compensation and damages. Alongwith the complaint, the complainant has placed on record insurance cover note Ex. C-1, FIR copy Ex. C-2, Legal notice and postal receipt Ex. C-3 and C-4 and affidavit Ex. C-5.
2 Notice of this complaint was sent to the opposite parties and opposite parties No. 1 and 2 appeared through counsel and filed written version by interalia pleadings that the present complaint is not legally maintainable as the same is an abuse of process of law. The complainant has not come to this commission with clean hands and had suppressed the true and material facts from the notice of this commission. The complainant has concealed and has suppressed the material and relevant fact of the case. The complaint has been filed with malafide and dishonest intention and has not only concealed the material facts from this commission, but has also twisted and distorted the same to the suit there own convenience and to mislead this commission. The contract of insurance between the opposite party and complainant is governed by its policy terms and conditions. Thus the words in an insurance contract must be given paramount importance and interpreted as express without any addition, deletion or substitute". The complainant has violated the terms and conditions of the policy as such the complaint is liable to be dismissed. The complainant has made up a false and concocted story and is trying to mislead this Commission, therefore, the complainant is not entitled to any relief from this commission. The present complaint is premature. The claim of the complainant was never been lodged with the opposite party. Even the said fact can further be revealed from the file as neither any claim form, nor any repudiation letter has been placed on record by the opposite party. The policy issued to the complainant was subject to certain terms and conditions. The complainant is not entitled to receive any claim amount as per the terms and conditions of the policy. The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the same.
3 The opposite party No. 3 appeared through counsel and filed written version by interalia pleadings that the present reply is being filed by the opposite party no.3 1.e. Indusind Bank Ltd. through its special power of Attorney Holder cum Astt. Manager- Legal Rishab Malhotra who is authorized to pursue the legal proceeding for and on behalf of the Indusind Bank Ltd. The Indusind Bank Ltd. has financed a two wheeler make Hero Splendor Plus Motorcycle to the complainant bearing loan agreement no. PJD06738H dated 08.02.2017 bearing its Registration No.PB-46-x-9201, Chassis No.MBLHA10BWGHK55747, Engine No. HA10EWGHK88998 and model is year 2017. An amount of Rs.56295 was to be paid in 27 equated monthly installments of Rs 2,085 regularly. However the complainant has not repaid the above said loan amount to the answering opposite party which is not at all maintainable against the answering opposite party, for in terms of the loan agreement dated 08.02.2017 entered into between the lender-answering opposite party and the borrower-complainant, there is an arbitration clause, the said clause reproduced as under:
(A) All disputes, differences and/ or claim arising out of or touching upon this agreement whether during its subsistence or thereafter shall be settled by an arbitrator in accordance with the provisions of the arbitration and conciliation act, 1996, or any statutory amendments thereof and shall be referred to the sole arbitrator nominated by the lender. The award given by such an arbitrator shall be final and binding on the borrower and co- borrower to this agreement.
(B) * * * *
(C) The venue of the arbitration proceeding shall be at Chennai.
The answering opposite party in terms of the loan agreement has started the arbitration proceeding and an award has been passed by the arbitrator. Therefore the complainant has no right to file and maintain the present complainant against the answering opposite party and the same is liable to be dismissed against the answering opposite party. It is not disputed, hence admitted that the vehicle of the complainant was insured with opposite party no.1& 2under a valid insurance policy. As the vehicle in question stands hypothecated in favour of Indusind bank Ltd. and the answering opposite party no. 3 has the first charge upon the financed vehicle thus the bank has first right over the insurance claim qua the above stated financed vehicle claim. The clause 3.01 and clause 13.04 of loan agreement containing the terms of first charged upon the financed vehicle and the first claim on insurance proceed shall be of Lender. Though the complainant is registered owner of the financed vehicle but the first charge upon the vehicle is of answering opposite party's bank. Thus he is not absolute owner of the vehicle till the charge upon the vehicle is cleared by the bank. As the above stated complainant has made default in repayment of loan installments and as on date an amount is outstanding as current SOH of Rs.53184/- is outstanding. As the borrower has made default in repayment of EMIS which attracts an additional interest charge @3 % per amount on outstanding amount till clearance of outstanding which is subject to increase. Thus as on date an amount of Rs.80500/- is total settlement amount including Additional interest charges which is subject to increase in future due to nonpayment. The complainant cannot stop making repayment of loan amount on the ground that the vehicle has been stolen, thus the bank reserve its right to pursue other legal proceeding for recovery of the amount as well as criminal proceeding is available under law. No document of registration certificate was ever supplied by the complainant, in fact the complainant did not turn out to be good borrower and made repeated default and was avoiding making of monthly installments. The answering opposite party has granted a loan for purchase of vehicle, which was to be returned regularly without any default. The complainant cannot choose to stop making payment on excuse of theft of the vehicle. The opposite party No. 3 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 3 has placed on record affidavit of legal manager Sh. Rishab Malhotra Ex, OP3/A, Power of attorney of legal manager Ex. OP3/1, Photostat copy of loan agreement Ex. OP3/2, Photo copy of statement of account Ex. OP3/3, Photostat copy of settlement amount of the loan Ex. OP3/4.
4 We have heard the Ld. counsel for the complainant and opposite parties and have carefully gone through the record placed on the file.
5 In the present case it is not disputed that the complainant is owner of motorcycle in question. It is also not disputed that the complainant has insured his vehicle from the opposite parties No. 1 and 2.
6 The case of the complainant is that his motorcycle was insured with the opposite parties No. 1 and 2 and the motorcycle of the complainant was stolen and the opposite party has not released the insurance claim to the complainant regarding the same. On the other hands, the case of the opposite parties No. 1 and 2 is that the present complaint is premature. The claim of the complainant was never been lodged with the opposite party. Even the said fact can further be revealed from the file as neither any claim form, nor any repudiation letter has been placed on record by the opposite party. The policy issued to the complainant was subject to certain terms and conditions. The complainant is not entitled to receive any claim amount as per the terms and conditions of the policy. The case of the opposite party No. 3 is that the vehicle in question was financed with the opposite party No. 3 and now a sum of Rs. 80,500/- alongwith interest etc. is due towards the towards the complainant in the above said loan and the opposite party No. 3 has first right over the insurance claim qua the above stated financed vehicle claim.
7 From the perusal of the file, neither the complainant nor the opposite parties have placed on record any document i.e. repudiation letter which reveals that the claim of the complainant has been decided. Infact the claim has not been decided so far and the same is still pending. Moreover, the opposite party Nos. 1 and 2 have taken specific objection in Para No. 6 of Preliminary objection that
The present complaint is premature. The claim of the complainant was never been lodged with the opposite party. Even the said fact can further be revealed from the file as neither any claim form, nor any repudiation letter has been placed on record by the opposite party.
In case Balu Waman Kadam vs. ICICI Lombard General Insurance Co. IV (2013) CPJ 16A (CN) (Mah.), the matter was similar, wherein the Insurance Company was asking the complainant to submit the documents again and again and the complainant was alleging that he had already submitted the requisite documents to the Insurance Company. In such circumstances, the Hon’ble State Consumer Disputes Redressal Commission Maharashtra disposed of the matter, by directing the Insurance Company to reconsider the claim of the complainant within one month on receipt of the required documents from the complainant.
8 While relying upon the above said authority, the Hon’ble State Commission, Punjab, Chandigarh passed the similar orders in case M/s Trends, through its Proprietor vs The Oriental Insurance Company Limited & Anr. Consumer Complaint No.245 of 2015 decided on 04.08.2017; and M/s Gurbir Rice Mills v. United India Insurance Company Ltd. & Ors. Consumer Complaint No.404 of 2016, decided on 09.10.2017, directing the Insurance Company to reconsider the claim of the complainant after submission of requisite documents by the complainant to it.
9 In view of our above discussion as well as keeping in view the ratio of above said judgments, we are of the opinion that the ends of justice would be met, if the Insurance Company be directed to decide the claim of the complainant, after the complainant submit all the requisite documents.
10 In view of the above discussion, the present complaint is disposed of with the direction to the complainant to submit the claim to the opposite parties-Insurance Company for deciding the claim within a period of 15 days from the date of receipt of copy of order and on approaching the complaint for supplying the requisite documents, the opposite parties No. 1 and 2 will issue proper receipt acknowledging the same. The opposite parties No. 1, 2 shall decide the claim of the complainant within a further period of two months therefrom and in case of failure on the part of the opposite parties No. 1, 2 the claim case of the complainant deemed to have been accepted. However, the opposite party No. 3 can recover the loan amount from the complainant as per law in the competent court of law. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this commission and due to COVID -19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
28.03.2023
