Haryana

Karnal

54/2011

Chander Bhan S/o Rati Ram - Complainant(s)

Versus

Kotak Mahindra Bank/Finance Company - Opp.Party(s)

Sachin Gupta

19 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                               Complaint No.54 of 2011

                                                               Date of instt.: 25.01.2011

                                                               Date of decision:19.05.2016

 

1. Rajbir 2. Smt. Nirmla Devi 3. Smt. Angrejo Devi 4. Sanjay Kumar 5. Ved Parkash, all are sons and married daughters of the deceased- Late Sh.Chander Bhan son of Sh. Rati Ram r/o V.P.O. Rasulpur, tehsil and District Karnal.

 

                                                                   ……..Complainants.

                                      Vs.

1. Kotak Mahindra Bank/Finance Co. through its Manager, S.C.O. Sector-12, Urban Estate, Karnal.

2. Kotak Mahindra Bank/Finance Co. through its Manager, Tractor and Farm Equipments Loans- Chandigarh, S.C.O.153-54-155 Sector 9-C, Chandigarh.

3. HDFC ERGO General Insurance Co. Ltd. through its Manager, S.C.O. no.27, Sector-12, Urban Estate, Karnal.

4. HDFC ERGO General Insurance Co. Ltd. 6^th Floor Leela Park, Andheri-Kurla Road (East) Mumbai-400031.

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before           Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-         Sh. J.P. SinghAdvocate for the complainants.

                    Sh.Vineet Rathore Advocate for the Opposite parties no.1 and 2.

                    Opposite party no.3 exparte.

                    Sh. Sanjaiv Vohra Advocate for opposite party no.4.

 

 ORDER:

 

                        This complaint was filed  by Chander Bhan (since deceased and now represented by the legal heirs) u/s 12 of the Consumer protection Act 1986, on the averments that he purchased one tractor Mahindra bearing registration no.HR-05-Y-0919 from Balaji Tractor Meerut Road, Karnal, by getting the same financed from opposite party no.1. The said tractor was got insured from opposite party no.3 on 27.11.2009 for a sum of Rs.3,50,000/- and the insurance policy was valid for the period of 27.11.2009 to 26.11.2010. Unfortunately, on 18.4.2010 the said tractor was stolen by some unknown person. Immediately, the matter was reported to the opposite parties no.1 to 4 as well as the police. However, the police did not take any action despite oral request as well as application. Lateron, First Information Report no.228 dated 03.09.2010 was registered in police station Taraori as per order passed by Learned Judicial Magistrate under section 156(3) of the Code of Criminal Procedure. He wrote applications and also got served legal notice upon the opposite parties to adjust the claim amount in the loan amount, but all in vain. The opposite parties initially postponed the matter on one pretext or the other and lastly refused to admit his claim on 10.1.2011, due to which he suffered mental pain and agony, apart from financial loss.

2.                Notice of the complaint was given to the Opposite Parties. Opposite Parties No.1 and 2 filed joint written statement.  Objections have been raised that the complaint against opposite parties is not maintainable; that the complainant has not approached this Forum with clean hands and that the complainant has got no locus standi and cause of action.

                   On merits, it has been submitted that the complainant had purchased the said tractor and got it financed from the opposite parties no.1 and 2 for a sum of Rs.2,54,737/-, but he had not paid the installments regularly. Opposite parties no. 1 and 2 had no role in passing or denying the claim of the complainant. However, if the opposite parties no.3 and 4 are directed to pay the claim, then the said amount be disbursed to the opposite parties no.1 and 2, so that amount outstanding towards the loan can be adjusted accordingly.

3.                Opposite party no.4 filed separate written statement controverting the claim of the complainants. Objections have been raised that the complaint is not maintainable; that the complainant has not approached to this Forum with clean hands and that the complaint is premature.

                   On merits, it has been submitted that the complainant had not given intimation to the police or the opposite party no.4 regarding the alleged theft of the tractor in question. Process of the claim is still pending and has neither been settled nor repudiated.

4.                None put into appearance on behalf of the opposite party no.3 despite service of notice, therefore, exparte proceeding were initiated against it, vide order dated 25.3.2011.

5.                In evidence of the complainant, affidavit of Rajbir Ex.C1, affidavit of Sanjay Ex.CW2 and documents Ex.C2 to C20 have been tendered.

6.                On the other hand, in evidence of the opposite parties, affidavit of Aman Kumar Assistant Manager Ex.OP1A, affidavit of Abhishek Chand Ex.OP4/A  and document Ex.OP1 have been tendered.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.                There is no dispute regarding the fact that the tractor was purchased by the complainant by getting financial assistance from opposite parties no.1 and 2 and the same was got insured from the opposite parties no.3 and 4. The said tractor was stolen on 18.4.2010 during the subsistence of the policy and first information report bearing no.228 dated 03.09.2010 was registered in police station Taraori regarding the said theft as per order of learned Judicial Magistrate passed under section 156(3) of the Code of Criminal Procedure. Opposite party no.4 has raised the specifically plea that the complaint is premature.  The complainant had given intimation to the opposite parties very late and process of the claim is still pending and has neither been settled nor repudiated.

9.                Affidavit of Abhishek Chand Ex.OP4/A is to the effect that no claim was lodged with the insurance company regarding the theft of the tractor. Neither any document was provided by the complainant nor any claim was lodged with the insurance company. No evidence worth the name has been produced on behalf of the complainant, which may show that claim regarding the theft of the tractor was ever lodged with the opposite parties no.3 and 4. Under such circumstances, it has to be held that in absence of lodging of any claim, no deficiency in service can be said to have taken place on the part of opposite parties no.3 and 4. Therefore, no cause of action accrued in favour of the complainant and thus the complaint is premature.

10.              Therefore, in view of the above discussion, we direct the legal heirs of the complainant to lodge the claim with the opposite parties no.3 and 4 within a period of 30 days and thereafter, opposite parties no.3 and 4 shall settle the claim of the complainant within 60 days. The present complaint is disposed off accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 19.05.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member