Complainant by filing this complaint has submitted that complainant is a handicapped person for which he failed to get an employment and decided to carry on business for maintaining livelihood for himself and for his family and for which complainant approached the bank/op for granting loan to purchase car who in turn, assured sanction of loan for purchase of two TATA Magic OMNI Bus (7+1) capacities so that more number of passengers can be accommodated and referred the complainant to the dealer/op no.3.  The Manager of the said bank explained that loan would be granted as total package towards cost of two vehicles, registration fee for Public Vehicles Department and license fee for Regional Transport Office, Govt. of West Bengal, insurance charges from Bank’s recommended Insurance Company and complainant had accepted the said offer of the bank.

          As per offer of the bank, complainant met with op no.3 who issued proforma invoice being No.BAL/SD/P-INV dated 16.12.2010 for cost of one TATA diesel chassis, Model TATA MAGIC BS-IV of Rs.3,61,057/- on road price, which includes show room price Rs.3,36,442/- and Registration Rs. 18,000/- and insurance Rs.6,615/- and said bank, as per condition precedent, got opened Account No.SB-PUB No. 031901000014290 on 24.01.2011 in Chowringhee Branch in the name of the complainant, through which all transactions related to the vehicles, would be made and according to the terms and conditions of the bank, the complainant deposited Rs.1,46,000/- only towards security deposit to the bank.

          Thereafter the bank granted term loan for vehicle under SME in favour of the complainant but paid to the dealer, i.e. op no.3 by demand draft no.535691 for Rs.7,16,536/- towards cost of two new vehicles TATA MAGIC including charges for registration of those two vehicles in Motor Vehicles Department and sent it to the said dealer vide bank’s letter being Memo dated 31.01.2011 and after payment of two vehicles being no. 1) WB-20-Z-2941 & 2) WB-20-Z-2942 were purchased.

          Fact remains the bank arranged insurance for those two vehicles by their nominated Universal Sompo General Insurance Co. Ltd. and for the purpose of registration of those two vehicles as commercial vehicle in the office of Public Vehicles Department, the bank at their instance got signed by the complainant in original forms and necessary documents and handed over to their nominated Dealer, M/s Bhandari Automobiles Pvt. Ltd., op no.3.

          Those two vehicles were insured on 02.02.2011 by Universal Sompo General Insurance Co. Ltd. as commercial vehicles and two certificates cum policy No.1)2314/51197573/00/000 and 2) certificate cum policy no. 2314/51197574/00/000 issued in favour of the Intermediary, Indian Overseas Bank and the bank paid the charges to the Insurance Co., already collected from the complainant.

          Accordingly as per the advice of the op/bank, insurance policies were issued as commercial vehicles but the license was registered on 04.02.2011 as private and two vehicles were delivered to the complainant and for such negligent act of the bank as well as the dealer, the complainant is prejudiced and suffering as the complainant is unable to carry on business for his livelihood.  The primary objective to earn money for his livelihood is being jeopardized for the negligent act on the part of the ops.  Complainant further submitted that on 18.05.2011-2942 met an accident and the police seized the said vehicle with all documents, it was found that insurance for those two vehicles done as commercial but the registration done as private.  The complainant lodged insurance claim, but the insurance company denied the claim on the ground that there is defective registration of those two vehicles as private and the insurance is commercial.

          Complainant further submitted that due to the accident, KLC P.S. lodged KLC P.S. Case No.01/2011 dated 20.05.2011 and complainant unnecessarily suffered and harassed as the papers are incorrect.  Complainant further submitted that several representations made to the bank of the Manager, who in turn sent the complainant to Bhandari Automobiles, op no.3 and requested the bank as well the said dealer to rectify the defect in the licence as to keep up the promise given at the time of purchasing of those two vehicles, otherwise the complainant is unable to use those two vehicles for his livelihood and lying idle at garage, thereby he had been suffering huge financial loss, mental agony and complainant also reminded that the negligent act and conduct and in-action of the ops to rectify the license as commercial vehicles is breach of trust.

          Complainant further submitted that through his Ld. Advocate he issued legal notices on 07.06.2012 & 22.06.2012 by registered post with A/D, calling upon the ops to take back those two vehicles and refund the entire loan amount together with compensation, garage rent and penalty to the complainant otherwise the complainant will move an application before the Ld. Consumer Forum.  But the Chief Manager of the bank as well as the dealer submitted that the bank financed two number of TATA Magic vehicles under CGTMSE scheme and sent the cover note that those two vehicles would be registered and insurance under commercial category.  The bank had sent the insurance cover note on the same day to op no.3 for registration of the vehicles and the cover note was prepared for passenger vehicle.  But they were surprised to find that the vehicles were registered as private.

          Fact remains that the second vehicle bearing no.WB-20-Z-2942 met with a road accident and on contact with the insurance company refused to settle the claim as the registration is done to the contrary of the insurance policy.  The vehicle is now lying at garage for want of insurance settlement which is not going to be materialized and in such circumstances, the borrower had stopped paying the installment and the account had become irregular.

          For a misdeed on the part of the op, both the borrower as well as banker is sufferer.  So, complainant requested the op to compensate the matter and ought to change the registration etc.  Subsequently op/bank wrote a letter on 07.09.2011 to the General Manager of the op no.3 and remarked that the said dealer is avoiding their responsibility.  The bank has categorically stated that how can a vehicle financed under SME scheme can be a private car?  Further the cover note of the insurance sent was for passenger carrier.  How a passenger carrier can be a private car?  The bank again requested the op no.3 to look into the matter.

          Complainant further stated that the bank has issued a memo no.159/1 dated 15.11.2011 to the complainant and requested the complainant to solve the matter on urgent basis and regularize the loan account by paying the overdue amount just to avoid the responsibility.  But the said letter is arbitrary and deliberate attempt to dislodge the claim of the complainant which is illegal.

Fact remains that complainant further stated that the bank has again and again issued a memo no.174/11 dated 30.12.2011 to the complainant and advised to meet the General Manager of the op no.3 with respective documents as the bank had already mentioned to the dealer about the matter, thereby the bank attempted to shoulder the entire responsibility of rectifying the discrepancies upon the complainant.  The complainant met with op no.3 on several times and also too the bank, but they are sitting tight over the matter and reluctant to rectify the defects caused for negligent act of the op’s.

Complainant further stated that due to accident he had purchased several parts on 09.06.2011 for repairing the damaged vehicle no.WB-20-Z-2942, which costs Rs.59,935/- borne by the complainant from his own pocket and complainant further stated that due to accident an amount of Rs.1,33,000/- was spent by the complainant on various account.  Further complainant paid upto July-2012 of Rs.93,600/- to the owner of the garage and receipts were enclosed and lastly complainant submitted that for negligent and deficient manner of service on the part of the op’s , complainant suffered for which complainant has prayed for several damages amounting to Rs.15,29,115/-.

On the other hand M/s Universal Sompo General Insurance Co. Ltd. op no.4 by filing written version submitted the instant case against this op on the ground answering op issued two Commercial Package Policies in respect of vehicle Nos. WB-20/Z-2941 and WB-20/Z-2942 at the behest of the op no.1 upon getting remittance from op no.1 for premium chargeable under the respective policies as per procedure and further submitted that op no.1 in connection or irresponsible act, op no.4 cannot be responsible and the claim of the complainant in respect of damaged vehicle was lawfully repudiated in view of the fact that the said vehicle was registered as private car and practically complainant has failed to prove any negligence or deficiency on the part of the op for which the present complaint should be dismissed against op (Insurance Company).

On the other hand op no.3 Indian Overseas Bank has submitted that op no.3 issued proforma invoice dated 16.12.2010 as per discussion, advise and choice of the complainant and in this regard the Regional Transport Authority, Alipore, South 24-Parganas is one of the necessary party in this case and complainant has no cause of action to file this complaint against this op because op no.3 has not committed any deficiency in service or negligence as alleged.  So, the petition of complainant is misconceived and same should be dismissed.

Fact remains that notices were duly served by Registered Post with A/D and as per postal-internet result the said notices were duly served upon the op nos. 1 & 2 the Indian Overseas Bank at Kolkata and The Chief Manager, The Indian Overseas Bank situated at Chowringhee Branch, 9,Chittaranjan Avenue, P.S.-Hare Street, Kolkata – 700072.  But they did not turn up to contest this case and ultimately against him the case is heard exparte but against other the case is heard contested.

                                           Decision with reasons

After careful study of the complaint and the written version of op no.3 M/s Bhandari Automobiles Pvt. Ltd. and op no.4 the Insurance Company, it is clear that in respect of the vehicle what the complainant purchased through bank loan under two Commercial Package Policy was issued by the op no.4 as per at the behest of the op no.1 Indian Overseas Bank authority upon getting remittance from the op no.1 Indian Overseas Bank for premium chargeable under the respective policies as per procedure and the said vehicles were insured on 02.02.2011 vide Policy No.2314/51197573/00/000 and second policy No.2314/51197574/00/000 and that was issued in favour of the Intermediary, Indian Overseas Bank and bank paid the charges to the Insurance Company, already collected from the complainant by the bank.

Admitted fact is that the vehicle No. WB-20-Z-2942 met an accident on 18.05.2011 and the police seized the said vehicle with all documents, and K.L.C. Police Station lodged K.L.C. P.S. Case No.01/11 dated 20.05.2011.  But complainant’s allegation is that when police seized the documents of the vehicle when it was found that Insurance Policy were covered as Commercial vehicles but registration certificate was found as private for which no doubt the claim of the complainant was repudiated by the Insurance Company.  From the letter of Indian Overseas Bank dated 31.01.2011 it is found that for purchasing the said vehicle there was a contract in between the Bhandari Automobiles and Indian Overseas Bank because IOB sent letter to Bhandari Automobiles informing that they are sending demand draft No.535691 for Rs.7,16,536/- being payment of new vehicle “TATA MAGIC” two vehicles being supplied to Mr. Subir Kanti Bala and bank requested the Bhandari Automobiles to submit the R.C. Book which must be endorsed as hypothecation to Indian Overseas Bank, Chowringhee Branch and the comprehensive insurance policy has to be taken in the name of Indian Overseas Bank and the party.  From the letter dated 24.01.2011 issued by IOB to Bhandari Automobiles, it is found that IOB reported to Bhandari Automobiles that they financed two nos. of TATA MAGIC vehicles to the caption to the complainant on 02.02.2011under CGTMSE scheme for commercial operation and bank authority already reported that they has no insurance cover not on the same date to the op no.3 for registration of the vehicle covered note was prepared for passenger vehicle.  But bank was surprised to find that the vehicles were registered as private and the registration no. of vehicles is WB-20Z-2941 and WB-20Z-2942 respectively.

The second vehicle bearing No.WB 20Z 2942 met with a road accident, but the insurance company refused to settle the claim as registration is done to the contrary of the Insurance Policy and bank also reported that the vehicle is now lying at garage for want of insurance settlement which is not going to be materialized and bank has also reported to the Bhandari Automobiles for a small mistake on the part of the Bhandari Automobiles, both the borrower as well as banker are suffer.  So, Bhandari Automobiles was asked to look into the matter and compensate the borrower and change the type of registration at the earliest.

Further on 07.09.2011 IOB reported to the Bhandari Automobiles that Bhandari Automobiles is avoiding their responsibility for mistake but bank authority specifically informed that vide their letter dated 31.01.2011they clearly mentioned that vehicles were financed under M/s Universal Sompo General Insurance Co. Ltd., then the bank categorically stated that how can a vehicle financed under SME scheme, can be a private car?  Further the cover note of the insurance sent was for passenger carrier. How can a passenger carrier can be required as private car?  So, Bank Authority reported Bhandari Automobiles to look into the matter and for correction.

Thereafter on 15.11.2011 bank authority reported to SBK the present complainant stating that they are not the competent authority to issue letter to run a vehicle commercially which is registered as private carrier and as per bank’s discussion they are not involving by any means for registering of the vehicle to change the vehicle from commercial by consulting with the dealer and the registering authority and complainant was requested to solve the matter on urgent basis and regularize loan account by paying the overdue amount just to avoid the responsibility.  Another letter dated 30.12.2011bank authority reported to the complainant to meet the General Manager of the dealer with respective documents as the bank has already directed the Bhandari Automobiles to do needful.  From the evidence of the op no.3 Bhandari Automobiles filed on 17.02.2014 it is clear that after accident op np.3 cooperated with the complainant which is submitted before R.T.O. for conversion as public carrier vehicle.  But complainant failed to provide route permit of the vehicles.

It is further submitted by the op no.3 that complainant agreed and placed the vehicle for private registration by IOB.  So there is no scope or direction regarding registration written by the bank.  so, considering the above fact, it is clear that op no.3 Bhandari Automobiles did not act as per direction of the bank authority.  Though fact remains that the bank authority sent letter along with insurance coverage of commercial vehicles for registration of the two vehicles as public carrier not private carrier.  Then truth is that op no.3 did not comply when the loan was sanctioned as per scheme granted by the bank authority and bank authority took all initiative for registration and insurance of the said vehicles, bank authority reported to the op no.3 for registration of the vehicles as per commercial Insurance Policy, but op did not do that.  Then it is no doubt an over act on the part of the op no.3 for registering the same in private category.

It is proved from the evidence of the op no.3 that they did not act as per advise letter of the op no.1& 2 though fact remains cheque was issued by the op no.1 bank in favour of the op no.3 in respect of price of the said vehicles, even op no.3 was bound to comply the order and protection of the Bank authority.  Another factor is that it is undisputed fact that the said vehicles were purchased and the said loan was sanctioned in respect of vehicle under commercial of the vehicle under CGTMSE scheme for commercial operation that matter was informed by the bank authority to op no.3.  But op no.3 violated it and registered it as private. Then there is no other alternative but to hold that entire registration matter was done by the op no.3 admittedly as per direction and letter of the banks.  But he actually violated the same even if Insurance Policy copy was sent to the op no.3 by the bank op no.1 wherefrom it is found that it was commercial then there was no alternative on the part of the op no.3 to register the same as commercial.  But he did not do it invariably for the purpose of squeezing money because cost of commercial registration is higher than the private registration and in this regard practically complainant has not able because he was under the policy conditions of the loan and fact remains everything was done as per conditions for giving loan under head CGTMSE scheme as commercial and admitted position is that the vehicle was passenger vehicle.

Anyhow op no.3 in the written version or in the evidence have not denied the very purpose of registration of the vehicle and requirement of the registration as commercial as per letter of the bank authority.  But anyhow in the instance case op no.3 has tried to say that it was done at the behest of the complainant.  But anyhow op no.3 had no valid reason to oblige the owner of the vehicle because everything was processed from the bank and bank authority made all initiative for granting loan for purchasing the vehicle for registration of the same and for insurance of the said vehicle and admitted position is that the insurance company or in respect of the vehicle completely the commercial package.  Then op has no claim to register the said vehicle but it had been done by op no.3.  Then it is invariably unfair trade practice on the part of the op no.3 who manipulated everything and did not register it as commercial but converted it as private car and that is against the direction of the bank who issued the draft in respect of price of the two vehicles.  Then no doubt op no.3 is solely responsible for all the faults and complainant has failed to get insurance benefit for the fault of op no.3 and most interesting factor is that op no.3 is trying to prove that complainant has failed to produce route permit but that is separate thing.  If actually at the time of registration of the said vehicle initially after purchase as per bank advice op no.3 would face any complication for that case it was op no.3 to report to the bank and for that bank shall ought to have faced it but under any circumstances, complainant cannot be made accused at this stage.

On after proper evaluation of the material on record we are confirmed that the entire fault is on the part of the op no.3 and he did not follow the instruction and advice of the bank authority.  Knowing fully well nothing is followed when there is insurance coverage of the commercial vehicle then op no.3 had no other alternative but to register it as commercial.  But he did not do it only for the purpose of squeezing money from the registration cost because it is known to all that registration cost for commercial vehicle is higher than registration cost for private vehicles and for that purpose only to squeeze money and to cause damage to the complainant and also to bank, op no.3 purposefully registered the same as private vehicle which was no doubt unfair trade practice on the part of the op no.3 and for which op no.3 is responsible for and to compensate for such loss which has been faced by the complainant and also the bank.

No doubt in view of the above circumstances insurance company cannot be liable for any sort of loss which has been faced by the complainant or the bank.  Fact remains complainant has faced much trouble and financial loss as he is stopped to get any insurance coverage for the laches of the op no.3 who intentionally and for purpose keeping all the matter in darkness keeping the bank in darkness register the vehicles as private vehicle and complainant has failed to understand that what would be the fate but anyhow after accident the entire matter has been focused and when it is proved that a dishonest business man, unmerchantable Bhandari Automobiles committed such misdeed and for their misdeed complainant faced much trouble and he is losing income from the said vehicle day to day for which the responsibility can be fixed upon the op no.3 who adopted unfair trade practice, who violated the direction and instruction of the bank from the very beginning even after taking the insurance policy which is commercial coverage from the bank in respect of vehicle what prompted as unfair trade practice of the op no.3 for which the complainant and the bank authority have been deprived by the op no.3 because op no.3 to squeeze money from the registration head and knowing fully well registered it as private in place of commercial category and such sort of vehicle under section CGTMSE public carrier cannot be registered as private.  Then it is proved that Motor Vehicle Authority is also in the pocket of the op no.3 and most interesting factor is that PVD authority had no fault in this regard and there is/was only fault of op no.3. 

In the above circumstances it is the sole liability of the op no.3 Bhandari Automobiles to compensate the complainant in all respect and of all such step took to register it at their own cost.  If any right term is required that shall be processed by the op no.3 at his own cost.  No payment shall be made by the complainant when malpractice have practiced and at the same time unfair trade practice has been practiced by the op no.3 which is proved from their own conduct and also from the several letters of the bank authority as already mentioned in the body of the judgement.

In the result we conclude that liability can be fixed upon the bank and op no.3 because bank was also connected with it as they received the registration copy which was hypothecated by bank and bank did not go through that at their initial stage.  Everything was followed after accident that cannot be believed and so apparently bank authority was at fault and bank authority was irresponsible in their part because they received the original registration certificate for hypothecation and it was in the custody of the op no.1 bank, but they were silent.  They are not aware of the fact what is proved.  So, equally op no.1 & 3 are responsible and for their irresponsible act complainant has suffered and for which we are convinced to hold that op no.1& 3 are solely responsible for such loss as faced by the complainant and for registration of vehicle as provided in view of the commercial the loan was sanctioned for commercial purpose against CGTMSE scheme and it was passenger vehicle.

In the light of the above observation we find that complainant has been able to prove the allegation against op nos. 1 & 3 beyond any manner of doubt but against op no.4, it is not allowed because only they are insure the same.  So, there is no liability on their part and regarding repudiation we are convinced that repudiation was right because insurance coverage was for commercial vehicle whereas it was registered for private.  So case against the op no.4 must fail.

Hence, it is

                                                 ORDERED

That the complaint be and the same is allowed on contest with cost of Rs.10,000/- each against op nos. 1 to 3 but same is dismissed against op no.4 without any cost.

Op no.3 is hereby directed to take all such step at their own cost to register those vehicles immediately as commercial vehicle and without any fail.  If for that reason any registration fees are required that shall also be borne by the op no.3 without the help of complainant at the cost of op no.3.

Op nos. 1 to 3 are further directed to compensate the complainant by paying the sum of Rs.5,00,000/- because complainant has suffered much pain, suffered financial loss only for adopting unfair trade practice by the op no.3, op nos. 1 to 3 are also directed to take all such steps in this regard by taking step along with op no.3 for registering the vehicles as commercial because all loss was sustained by the complainant for the laches of the op nos. 1 & 2 also.

For adopting unfair trade practice by the op no.3, op no.3 is hereby directed to pay punitive damages @ Rs.3,00,000/- within one month from the date of this order to the complainant.

Ops are directed to comply the order within one month from the date of this order failing which for each day’s delay each op separately shall have to pay penal interest @ Ra.1,000/- per day and if it is collected same shall be deposited to this Forum.

If it is proved that op nos. 1 & 3 are reluctant to comply the order in that case penal procedure shall be started and even further penalty shall be imposed for which they shall be responsible.