BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complt. Case No : 1236 of  2009

Date of Institution:    01.09.2009

Date of Decision  :    10.11.2010

Raj Kumar s/o Sh. Anand Kumar, r/o H.No. 348/7, Ghatiwala, Bitna, Pinjore, Tehsil Kalka, District Panchkula.

……Complainant

V E R S U S

[1]        Kotak Mahindra Bank Ltd., through one of its Director, Regd. Office: 36-38A, Nariman Bhawan, 227, Nariman Point, Mumbai- 400021.

[2]        Kotak Mahindra Bank Ltd., through its Manager, Saral Auto Loans, 6^th Floor, SCO No. 120, Feroze Gandhi Market, Ferozepur Road, Ludhiana – 141002.

[3]        Kotak Mahindra Bank Ltd., through its Manager, SCO No. 153-154, Sector 9, Madhya Marg, Chandigarh.

[4]    New India Insurance Company, Branch Office: 351401, Bhagra Niwas, The Mall Shimla – 71001 (H.P.).

[5]    M/s Shubhyam Motors Pvt. Ltd., through one of its Director, Authorized Commercial Vehicle Dealer (Tata Motors), Plot No.E-4, MIDC Nagar – Manmad Road, Ahmednagar, District Ahmednagar, Maharashtra. 

.…..Opposite Parties

CORAM:        SH.LAKSHMAN SHARMA                     PRESIDENT

                SH.ASHOK RAJ BHANDARI          MEMBER

                MRS.MADHU MUTNEJA                    MEMBER

PRESENT:    Sh.Puneet Bhatia, Adv. for  the Complainant.

Sh.Suneet Sharma, Adv. for OPs 1 to 3.

Sh.Sukam Gupta, Adv. for OP No.4.

Sh.Devinder Kumar, Adv. for Sh.P.K. Kukreja, Adv. for OP No.5.

PER MADHU MUTNEJA, MEMBER

                The instant complaint have been filed by Mr. Raj Kumar s/o Sh. Anand Kumar alleging deficiency in service by Kotak Mahindra Bank Limited & Ors., under Section 12 of the Consumer Protection Act, 1986.  The Complainant has requested this Forum to issue the following directions against the OPs:-

i)                    To refund the value of the Tata 2515 CEX Model 2004 bearing Regn. No. HR-37-A-7753 i.e. Rs.8,00,000/- along with interest @ 18% p.a. from the date of its possession till the date of its actual realization.

ii)                   To pay Rs.2,00,000/- as compensation for mental agony, torture, humiliation and harassment suffered by the Complainant due to forcible possession of the vehicle by the OP-Bank and also for depreciation of the vehicle in question.

iii)                 To pay a sum of Rs.1000/- per day for the loss of income of the Complainant from the date the possession of the vehicle in question was taken into possession by the OP No.1 to 3 from the OP No.5.

iv)                To pay a sum of Rs.3,00,000/- as damages.

v)                  To pay a sum of Rs.11,000/- as cost of litigation.

1]             The facts of the case are as under:-

                The Complainant had purchased a second hand truck make Tata 2515 CEX Model 2004, bearing Registration No. HR-37-A-7753. The OP No. 1 & 2 had sanctioned a loan of Rs.6,53,981/- in favour of the Complainant for purchase of this truck, vide letter dated 14.2.2007. Rs.1,96,619/- was paid by the Complainant from his own pocket for the said truck. The loan was repayable in 47 equated monthly installments of Rs.20,000/- each.  The 1^st installment commenced on 1.3.2007.

                Thereafter, the truck was transferred in the name of the Complainant by RTA, Panchkula. The R.C. was hypothecated in favour of Kotak Mahindra Bank Ltd.  The Complainant also got the truck insured with OP No.4 vide Insurance Policy dated 2.2.2007 for a sum of Rs.7,50,000/-, against which he paid a premium of Rs.25,000/-.

                The Complainant was making regular payments of Rs.20,000/- to Kotak Mahindra Bank Ltd. (OP No.3) and had already paid 11 installments, when on 4.1.2008, there was an accident. The truck was being driven in Tamilnadu and was going to Trinaveli, when the steering wheel of the truck suddenly got jammed, as a result of which the truck fell into the canal in village Miraj Garon, near Ahmed Nagar (Maharashtra).

                The Complainant reported the matter to the police officials of Ahmed Nagar, and an FIR No.1, dated 4.1.2008 was registered with the Police Station. 

                The Complainant also reported the matter to the Insurance Company, who directed the Complainant to take the vehicle to M/s Shubhyam Motors Pvt. Ltd., Ahmed Nagar (OP No.5), who were authorized dealers of Tata Motors.

                The OPs prepared an estimate of loss/ damage suffered by the truck to the tune of Rs.7,67,532/-. Meanwhile, OPs No. 1 & 2 also sent notices to the Complainant for repayment of installments, along with other charges. The Complainant met the officials of OPs No. 1 & 2 at the office of OP No. 3 and apprised them of the entire facts of the accident, but OPs No. 1 & 2 did not adhere to his genuine request and he was told that if he did not make payment of installment within 15 days, the OPs would forcibly take possession of the vehicle.

                The Complainant has alleged that he came to know from OP No. 5 that the vehicle had been taken by the officials of OPs No. 1 2 & 3 and the Complainant could contact them for re-possession of the vehicle.

                The Complainant has further alleged that OPs No. 1, 2, 3 & 5 are in connivance with each other and have forcibly taken the vehicle. The illegal repossession of the vehicle has acted against the Complainant like a double edged weapon. The OP are pressing for the total amount of loan along with interest when the vehicle is in their possession. In fact, they should compensate the Complainant for the daily loss being suffered by him. The Complainant has alleged that he was a victim of the circumstances, which were beyond his control, as OP No. 4 did not make payment of compensation when the vehicle had met with an accident.

                Otherwise also, the Complainant has submitted that he was unable to pay the remaining installments due to unavoidable circumstances and would not be in a position to pay the future amounts too. The vehicle is illegally in the possession of OPs No.1, 2 & 3 with the help of OP No.5 and the Complainant is being asked to make payment of the outstanding amount, without enjoying usage of the vehicle, for which the amount was spent. Further with the passage of time, the value of the vehicle has also depreciated. The Complainant has not been able to make use of it. Thus, the OPs are accountable and responsible for the loss in the value of the vehicle also. This conduct of the OPs, according to the Complainant constitutes deficiency in service and unfair trade practice. He has suffered harassment and mental agony due to wrongful possession of the vehicle by the OPs, and has alleged that he is still suffering huge losses on a daily basis.  He has, thus filed the present complaint, praying for compensation, as mentioned above.  

2]             After admission of the complaint, notice was sent to all the OPs. 

3]             OP Nos. 1, 2 and 3 in their joint reply have taken the preliminary objection that there is no deficiency in service by them. In fact, the Complainant is himself a defaulter in making payment of EMIs. Also he has surrendered the vehicle of his own, due to non-payment of installments. The vehicle was sold on 8.8.2008. They have submitted that when the Complainant became a defaulter, the OP could pursue the case as per the terms and conditions of the hire purchase agreement and repossess the vehicle.

                On merits, the OPs have admitted the hire purchase loan agreement and advancement of loan to the Complainant. Further, the Complainant has only paid 11 installments and is now a defaulter for the rest.

                The OPs have submitted that when the Complainant surrendered the vehicle to them, after following the required procedure, the vehicle was sold to a third party. The re-possession of the vehicle was with the consent of the Complainant and not with any criminal conspiracy or force, as has been alleged by the Complainant in his complaint. Once the vehicle has been sold to a third party, the Complainant has obviously, been unable to ply the same.  Denying all other allegations, they have prayed for the dismissal of the complaint.

4]             OP No.4, in its reply has taken preliminary objection of territorial jurisdiction. According to them, the Complainant is a resident of Panchkula and the policy of insurance was obtained from Shimla; the claim was lodged and also repudiated in Shimla itself. 

                Further, they have said that there is no defect, delay, negligence or deficiency on their part in rendering any service to the Complainant. As soon as they were informed about the accident, they took immediate action and appointed a Surveyor. During the survey, the driving licence of the Complainant was taken for verification to the Licensing Authority, Patiala.

                As per the investigation report dated 16.4.2008 of Mr. Rajiv Bhatia, the driving license of the Complainant was found to be fake. A copy of the verification report has been placed at Exhibit R-4/3 of the reply.

                Further as per the report of the surveyor, the vehicle was being plied in Maharashtra, while the authorization was only for the States of Punjab, Bihar, West Bengal and Assam. The OPs have, thus, contended that as per the terms and conditions of the Policy, they are not liable for payment of the claim where the driver does not hold a valid and genuine driving license.  The report of District Transport Officer placed on record shows that DL No.66112 was issued by DTO, Patiala in the name of one Rajesh Kumar son of Rameshwar and not in the name of Raj Kumar son of Anand Kumar. As per office records, no DL No. 66112(PB)/2003 was never renewed in the name of any Raj Kumar.   This report obviously shows that the license of Sh. Raj Kumar was a fake driving license. Also, the vehicle has been handed over by the Complainant to OPs No. 1, 2 & 3, who have sold the vehicle to a third party. The insurance company cannot be made liable to pay for a vehicle, which has not been handed over to them (in whatever condition) and also where the driving license of the driver also turns out to be fake. This clause is clearly mentioned in the Policy Exhibit R-4/1, which reads as under:-

                        “Persons or class of persons entitled to drive:

Any person including insured provided that a person driving holds an effective driving license at the time of the accident and is not disqualified from holding or obtaining such a license. Provided also that the persons holding an effective Learner’s licence may also drive the vehicle and such a person satisfies the requirements of Rule 3 of Central Motor Vehicle Rules, 1989.”

                On merits, they have denied all other allegations made against them and have prayed for the dismissal of the complaint.

5]             OP No. 5, in their reply have denied all allegations made by the Complainant and have submitted that they are not responsible to pay any compensation.

                In fact, they had received the vehicle from the Complainant himself for repair after which he submitted a consent letter by way of affidavit to give possession of the truck to Kotak Mahindra Bank Ltd. This affidavit dated 8^th July, 2008 has been placed on record. After receiving the said document, the OP handed over the vehicle to the Bank in the presence of the Complainant. Hence, the allegations of the Complainant against them are without any reasoning. OP No. 5 has, therefore, prayed for dismissal of the complaint against them. 

6]             We have heard the ld.Counsel for the parties and have also perused the evidence & documents led by the parties in support of their contentions.

7]             As regards the point of jurisdiction raised by OP No.4, it has been seen from the perusal of records that payments have been made by the Complainant to OPs No. 1, 2 & 3 at Chandigarh. Hence, the objection of jurisdiction is not sustainable.

8]             The Complainant has suffered a major loss as his truck fell into the canal. Even though the truck was retrieved, the OPs took possession and sold the truck and are now demanding that the Complainant should pay installments of the loan due from him.  The OP No. 4 who are insurers of the vehicle have also rejected his claim on the ground that the driving licence of the Complainant was false.  The Complainant has, thus, filed the complaint seeking relief from these acts of the OPs.

9]             A perusal of the joint reply of OPs No. 1, 2, 3 & also reply of OP No. 5 shows that the Complainant’s vehicle fell into the canal and was handed over by the Complainant himself to OP No.5. Thereafter, the Complainant by way of affidavit dated 8^th July, 2008 himself handed over the possession of the vehicle to OPs No. 1, 2 and 3 in the presence of OP No.5. OPs No. 1 2 & 3, who had financed the vehicle, sold the vehicle to a third party. The amount received on the sale of the vehicle has not been mentioned by any of the parties.

10]            OP No.4 in their reply have submitted that as per their commitment they had appointed a Surveyor to assess the loss suffered by the Complainant due to the accident. However, it was unfortunate that on a perusal of the records, it was found that the Complainant was in possession of a fake driving license.

11]            A complete look at the facts clearly shows that OP No.4 are not liable to give anything further to the Complainant since the licence of the driver was fake.   

                In case Oriental Insurance Co. Ltd. Versus Prithvi Raj, reported as I (2008) CPJ 33 (SC),  the Hon’ble Supreme Court of India has held as under:

“Motor Accident Claim – Driving licence – Not valid – Claim repudiated by insurer – Complainant’s contention that driver holding valid and legal licence, rejected by State Commission – Hence appeal – National Commission held, in view of renewal of licence, claim could not have been refused by insurer – civil appeal filed – No licence issued by Licensing authority proved by evidence produced on record – Company not liable to pay any amount……….”

                Again, OP No.5, is only a dealer, who has made an estimate of the accidented truck and kept it till possession was handed over to OPs No. 1, 2 & 3 by the Complainant. 

                The matter is now between the Complainant and OPs No. 1, 2 & 3. The Complainant has taken a loan of Rs.6,53,981/- from them, against which he has paid Rs.2,20,000/-.

12]            The OPs have sold the vehicle for a certain amount, which has not been mentioned either by the Complainant or by the OPs. Hence, they have been remunerated to the extent of the proceeds of sale against the loan. They can not now proceed against the Complainant for the whole amount of loan.

13]            The Complainant has prayed that the OPs be directed to refund the purchase value of the vehicle along with compensation. This is too far fetched and also not possible.  The OPs, in their reply, have stated that:-

“Para 27 which is prayer clause is wrong and denied. The Complainant is not entitled to any relief as stated in sub-para (i) to (vi)”.

                However, OP No.1 to 3 have not mentioned anywhere in the reply or at the time of argument that any amount is outstanding as payable to them by the Complainant. It seems that they have been adequately compensated against the loan by the sale proceeds of the damaged truck. Otherwise, they would have made a specific mention in the reply about the amount outstanding against the loan. Even the other OPs have not made any reference to the proceeds towards the sale of the vehicle.

14]            In view of the above findings, we deem it appropriate to allow the complaint to the extent that the OPs No. 1, 2 & 3 will not claim any further amount from the Complainant against the loan advanced to him. However, the Complainant would also not be entitled to any compensation, as claimed by him.  The complaint is allowed accordingly.

15]            Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced                                                                   

10^th Nov., 2010                                                 

Sd/-

LAKSHMAN SHARMA)

PRESIDENT

                                                                   Sd/-

                                       (ASHOK RAJ BHANDARI)

MEMBER

                                                                                                Sd/-

                                                    (MADHU MUTNEJA)

MEMBER

‘Dutt’