Complainant Vipan Kumar through the present complaint filed U/s 12 of the Consumer Protection Act 1986 (hereinafter, called the Act) has prayed for issuance of necessary directions to the titled opposite parties to pay Rs.4,00,000/-  the IDV (Insured Declared value) of the vehicle alongwith compensation @ 18% per year from the date of incident. Opposite parties be further directed to pay Rs.1,00,000/- as punitive damages for mental pain and suffering and also to pay Rs.1,00,000/- for cost of litigation or such amount as may be quantified by this Hon’ble Forum at the conclusion of this case.

2.       The case of the complainant in brief is that he had approached the financial institution under the name and style of “MAHINDRA & MAHINDRA FINANCIAL SERVICES LTD”., having its registered office at Gate way Building Apollo Bunder, Mumbai-400001 and Branch office at Kangra, Himachal Pradesh for availing loan facility. However, the Mahindra &Mahindra Financial Services had extended this loan facility to him after executing Loan-cum-Hypothecation agreement dated 03.02.2017,in which total agreement value was Rs.2,64,060/- including financed amount Rs.1,95,000/- and Financial charges Rs.69,060/-. He after availed the loan facility had purchased used Asset/Vehicle TATA INDIGO MANZA bearing No.HP01D-3411 with Chassis No.417917 & Engine No.168222. The loan amount was to be repayable in 36 equal monthly installments of Rs.7335/-. He had taken an insurance policy No.69585333 in respect of abovesaid vehicle, duly insured’s by the opposite party no.1, with IDV of Rs.4,00,000/- only covering time period from 30.01.2017 to 18.10.2017. He has further pleaded that the aforesaid vehicle met with an accident on 30.3.2017 at around 10.30 PM from the backside of Mamoon Tax Barrier, when the aforesaid vehicle was coming from Himachal Pradesh to Pathankot. A DDR No.20 dated 31.03.2017 regarding this accident was registered at Police Station Mamoon Cantt, Distt. Pathankot. The opposite party appointed the surveyor, who surveyed the said vehicle involved in accident and prepared the report and submitted it to the concerned insurance company i.e. IFFCO-TOKIO GENERAL INSURANCE CO.LTD and vehicle has huge damages involved in accident as per police report. The aforesaid vehicle involved in accident has suffered huge loss. A legal notice dated 10.8.2017 was being served upon opposite party no.2 through registered post and the opposite party no.2 had not paid any heed to his genuine requests for claiming the loss of the said vehicle in accident. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.          Opposite parties appeared through their counsel and filed their written reply taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant has no locus standi to file the present complaint; the complaint of the complainant is not maintainable against the opposite parties and it is the complainant who is at fault and as such there is no negligence on the part of opposite parties. On merits, it was submitted that the vehicle was previously owned by Aman Aggarwal who was insured and afterwards the vehicle was purchased by the complainant and the said policy transferred to Mr.Vipan. The complainant may put strict proof regarding the alleged accident. It was further submitted that the claim has been filed afterwards the investigation has been duly conducted. The claim has been filed by complainant and after going through the documents and information available. The company has decided to consider the claim for settlement in accordance with the option available to the company under condition no.3 of the insurance policy vide replacing the damaged vehicle with another vehicle of same make and model and substantially in the same condition, in which the insured vehicle was prior to date of occurrence. The letter has been duly sent. So, there is no deficiency in services on the part of the opposite parties. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.       Ld. Counsel for the complainant tendered into evidence affidavit of complainant Ex.CW-1 alongwith copies of documents Ex.C1 to Ex.C3, Ex.C-3/A, Ex.C-4-A to Ex.C-4D, Ex.C-5 to Ex.C-7 and closed the evidence.

5.       Counsel for the opposite parties tendered into evidence affidavit of Sh.Rajiv Ranjan, Authorized Signatory Ex.OP-1,2/1 alongwith other documents Ex.OP1,2/2 to Ex.OP1,2/10 and closed the evidence.

6.      Precisely the case set up by complainant is that he entered into a loan-cum-Hypothecation Agreement with Mahindra & Mahindra Financial Services on 3.2.2017 with total agreement value Rs.2640/- including financial amount Rs.1,95,000/- and after that purchased a used asset/vehicle TATA INDIGO MANZA bearing No.HP01D-3411 with Chasis No.417917 and Engine No.168222 and monthly installments of Rs.7335/- was fixed for that. The complainant took an insurance policy No69585333 from OP  No.1 with IDV Rs.4,00,000/-. The same was valid from 30.1.2017 to 18.10.2017. Unfortunately on 30.3.2017 the said vehicle met with an accident at about 10.30 P.M. and a DDR No.20 dated 31.3.2017 was reported. OP appointed surveyor who after the survey submitted its report to the OP insurance company but till today Op has not settled its insurance claim even after service of legal notice dated 10.8.2017 which is a deficiency in service by Ops and complainant is entitled for the claimed relief.

7.     The Ops in order to rebut the allegations made by complainant took the preliminary objection that the complainant has no cause of action to file the present complaint; the complainant has no locus standi to file the present complaint; the complaint of the complainant is not maintainable against the opposite parties and it is the complainant who is at fault and as such there is no negligence on the part of Ops. Annexures A, B and C are placed on the file to prove this fact and all other allegations were denied by Ops.

8.        The counsel for complainant also submitted written arguments alongwith oral. He emphasized on the point that the letter produced by Ops as annexure “A” is an afterthought as the complainant has never received that undated letter and OP has not brought on the file any proof as to how this letter was served to complainant. No documentary proof like Postal receipt or courier receipt etc. is proved on the file. The complainant promptly informed about the accident to the Police and Insurance Company but the Ops are lingering the matter without any reason and as per their written version, if they want to settle the claim as per condition No.3 then the complainant be allowed to collect the EMI of the last 17 months as well as the vehicle could not be plied on the road and complainant had to suffer loss in monetary terms. So the same should be compensated.

9.      After considering all the facts and documents as put forth before us we are of the considered opinion that complainant was vigilant enough to inform the Insurance Company about the accident and completed other formalities also. But if the OPs wanted to settle the claim, they should have informed the complainant well within time so that he would not had to approach the Forum for the settlement of his claim.

10.        Now when the complainant has filed this complaint then the Ops are claiming that they are ready to settle the claim as per condition No.3 of the terms and conditions of the policy. The complainant has not stated anywhere that he was not aware about the terms and conditions of the policy. In this way, he has impliedly admitted the terms of the policy.

11.       On the other hand Ops have also failed to produce any document to prove the service of letter “Annexure A” on the file and otherwise also they have made an offer to settle this claim as per terms and conditions of the policy.

12.      From above all discussion we hold that Ops are deficient in providing service of settling the claim in time. And the complainant is entitled for compensation for mental as well as physical harassment at the hands of Ops.

13.  As an upshot of above discussion the Ops are directed to settle the claim of vehicle as per terms of policy i.e. to arrange a vehicle of same condition to complainant within 30 days from the receipt of copy of order. Complainant is also entitled for Rs.40,000/-as compensation for delay in settling the claim and Rs.5,000/- for litigation expenses.

13.        Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. The complaint could not be decided within prescribed time due to rush of work.

ANNOUNCED:                    (Shri Raj Singh)                        (Rajita Sareen)

 November 05, 2019.                         Member                         Presiding Member

 MK