Order No. 31 Dated 27-04-2015.
The case of the complainant in short is that complainant purchased one Bolero from Mahindra and Mahindra Company through its authorized dealer M/s Surya Automobiles, Akauna Bazar, Nawada, Bihar by paying a sum of Rs.5,11,600/-. Complainant made a down payment of Rs.1,11,600/- and took a loan of Rs.4 lakhs from o.p. bank. O.p. opened an account being no.WC-000621H and issued a repayment scheduled to the complainant. as per repayment scheduled the 1st installment was payable on 7.1.06 for a sum of Rs.14,300/- and thereafter the EMI was fixed @ Rs.13,550/- which would be ended on 7.11.08. Accordingly, o.p. took all the post dated cheques in advance against the installment scheduled. On 5.5.06 the said vehicle was found lost under the jurisdiction of Katihar P.S. Bihar and complainant lodged a diary which was treated as FIR No.167/2006 dt.8.5.06. On 29.10.07 complainant informed the o.p. about the theft of the said vehicle and informed the New India Assurance Co. and demanded a claim against the policy no.510100/31/05/01/00008587. The New India Assurance Co. issued a claim form which was submitted by complainant. Since the original policy in respect of the said vehicle was lying with o.p. New India Assurance Co. did not settle the claim. O.p. encashed all the post dated cheques and realized total sum of Rs.3,80,000/- against the loan of Rs.4 lakhs but did not issue No Objection Certificate. Hence, the application praying for issuance of No Objection Certificate and for insured value of the vehicle i.e. Rs.5,11,600/- with interest along with compensation and cost.
Sole o.p. appeared before the Forum and filed w/v interalia stated that the purported loan had been taken in the name of M/s Janaki Enterprises which proves that Vivek Mishra did not purchase the said vehicle for personal use but the company purchased it for commercial use. So, the case is barred under the law since the complainant is not a consumer. O.p. also stated in their w/v that they have no knowledge whatsoever whether the complainant had approached the said insurance company to realize its insurance claim. O.p. had received an amount of Rs.3,84,114/- from the complainant towards repayment of the loan. An amount of Rs.4,01,360/- is still outstanding from the complainant as on 21.8.11. So, no question of issuance of NOC arises at all. O.p. sent the reminder on 2.6.09 to the complainant to clear the outstanding amount and informed that NOC would be provided only after the settlement of the outstanding amount. Hence, all the allegations are baseless, frivolous and misconceive. So, the instant case is liable to be dismissed with exemplary cost.
Decision with reasons.
We have gone through the pleadings of the parties, evidence and documents in particular. It is admitted fact that complainant took a loan from o.p. But as per allegation made in the complaint petition that New India Assurance Co. did not settle its claim after the theft of the vehicle in question does not stand as the complainant has not made New India Assurance Co. as a party. Therefore, the case suffers from non joinder of necessary party. As per para 2 of the complaint petition, complainant by occupation is a businessman. Nowhere complainant has substantiated that the complainant is doing the business for livelihood by means of self employment. As per para 14 of the complaint petition, the case is barred by limitation since complainant has admitted that the theft had occurred before five years from the date of filing of the case. No continuous correspondences have been made between the complainant and o.p. No document has been filed with the complaint petition to that effect. In para 15 of the complaint petition, complainant has admitted that o.p. had realized Rs.3,80,000/- against the loan of Rs.4 lakhs. Therefore, it is clear that complainant has not paid all the EMIs as per repayment scheduled. Ld. lawyer for the o.p. had filed the statement of account as on 26.1.15 fromwhere we have observed that the no. of cheques of the complainant had been dishonoured due to insufficient fund. Complainant did not controvert the statement of account dt.26.1.15 or about the outstanding amount as claimed by o.p. So, no question of issuance of NOC arises at all. So, we find no deficiency in service on the part of o.p. by not issuing the NOC.
Ld. lawyer for o.p. has cited a judgment passed by Hon’ble National Commission published in IV (2014) CPJ 525 (N.C). In this judgment Hon’ble National Commission has observed that if the car is not for livelihood of Director or personal use of Director the use of car is for commercial purpose and the complainant is not a consumer. In this connection we have also relied upon the judgment of Honble National Commission published in I (2015) CPJ 422 (N.C). In the instant case also we find that complainant is not a consumer.
O.p. has also cited the judgment of Hon’ble National Commission passed in I (2015) CPJ 105 (N.C). In the instant case complainant has not filed any condonation of delay petition.
In view of the above, the complainant is not a consumer and the complainant is not entitled to relief.
Hence, ordered,
That the case is dismissed on contest without cost against the o.p.
Supply certified copy of this order to the parties free of cost.
