SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal saleing of the financed vehicle and settlement of Insurance claim to a lesser amount to the accident faced vehicle and are the allegations arrayed against respondents.
2. Complaint, in brief reveals that complainant’s son being unemployed youth availed a vehicle loan to the tune of Rs. 1,10,000/- purchased an auto rickshaw(Ape piagio) being financed by Indus Ind. Bank Ltd. (respondent-1). The vehicle was registered as OR-29-A 3936 and the said vehicle was insured with Cholamandalam General Insurance Company Ltd. (Respondent -3) vide Policy No. 3368/00521491/000/02. Complaint petition reveals that on dtd.7/9/2014, the said vehicle faced an accident at about 6 P.M. near Haladiagada and was completely damaged. The incident was reported to respondent -3 Insurance Company over telephone by the Complainant as the complainant’s son insured Amar pradhan died in the accident. On receiving the telephone message respondent-Insurance Company deputed the surveyor who surveyed the spot and Complainant sent a letter to respondent -3 dt. 24/10/2014 for settlement of claim. The Xerox copy of letter is filed into the case as Annexure-2. Thereafter, the Complainant lodged the claim along with relevant documents for settlement of the claim(Annexure-3&5). Complaint further reveals that the respondent - financing-Bank on dt. 28/10/2014 cunningly seized the accident faced vehicle and sold the vehicle without intimating the Complainant. The Xerox copy of the seizure of the vehicle is marked as Annexure-4. It is further revealed that on receipt of letter dt. 27/06/2015 and dt/ 3/7/2015 of complainant, the respondents intimated that claim has been settled by responded No.3 to the tune of Rs 80,000/- out of said amount Rs. 37,620/- has been adjusted in the loan account lying with responded No.1, without Notice to the Complainant and the rest amount has been kept by the respondent No.3 without paying the same to the Complainant as yet. The Xerox copy of the said statement of accounts as filed as Annexure-7 series. Complainant challenges the settlement amount of Rs. 80,000/- against the sum assured of Rs. 1,41,507/- as per the Policy. (Xerox copy of policy annexed as Annexure-8), It is disclosed from the statement of account furnished by respondent No-1 that the damaged vehicle was sold at Rs. 5,000/-. Accordingly, Complainant prays this Forum to direct the respondents to settle the Insurance claim of the vehicle as per the sum assured of Rs.1,41,507/- and Rs. 58,493/- as compensation for financial loss and mental agony.
Indus Ind. Bank (respondent No. 1&2) on receipt of the Notice appeared through their Ld. Counsel Mr. R.K.Sahoo, and filed written version challenging the maintainability of the Complaint by citing different decisions by way of preliminary objections and submitting the parawise reply which is recital of question the maintainability of the Complaint. It is averred that, if at all any further Insurance claim amount is being ordered to be released in favour of complainant same to be credited in favour of respondent-1 as the financer having first charge over such claim as the asset is fully damaged and after the closure of the loan account, if there is any surplus amount same be refunded to the Complainant. In the instant case complaint is to dismissed with cost U/S 26 of C.P.Act.
3. Being noticed respondent -3 &4 Cholamandalam General Insurance Company Ltd. on non-appearance were set-exparte on different datesby order of this Forum dt. 16/8/2016, and dt.19/9/2016 in the later stage on dt. 10/2/2017 respondent -3&4 appeared through their Ld. Counsel Mr. Pradeep Mishra on dt. 20/1/2017 and filed petition to set aside the ex-parte order and the said petition was rejected by this Forum. Hence the respondent -3&4 were set-exparte. It is also noticed from the case record that Ld. Counsel Mr. R.K.Sahoo appearing for respondent -1&2 files steps on behalf of respondent-3&4 without any authorization. In the date of hearing Mr. R.K.Sahoo also filed steps for respondent -3&4. So the steps filed for respondent -3&4 on different dates not taken into consideration.
4. Heard the Ld. Counsels for the Complainant and case of Indus Ind. Bank(respondent no.1&2) on merit as Ld. Counsel Mr. R.K.Sahoo remained absent at the time of hearing and ex-parte hearing against Cholamandalam General Insurance Ltd.( respondent no.3&4) examined the Annexures filed by the Complainant also gone through the written statement filed by Indus Ind. Bank(respondent no. 1&2).
Complainant alleging deficiency in service upon the respondents, filed the present Complainant stating that his son namely Amar Pradhan to maintain his livelihood availed a finance from to the tune of Rs.1,10,000/-from respondent -Bank purchased an Ape Piaggio auto rickshaw bearing Regd. No. OR-29-A-3936 in the year 2012 and the said vehicle faced an accident near Haladiagada, Kendrapara, where the complainant’s son died in the accident. As per the allegation, complainant informed the respondent -Insurance Company, who deputed a surveyor and accordingly claim was lodged with other relevant documents before the respondent-Insurance Company. It is also alleged that respondent -Bank on dt. 28/10/2014-seized the accident faced vehicle and sold at Rs. 5,000/- without intimating the Complainant. It is further alleged that Respondent No.3 Insurance Company without considering the loss/damage of the vehicle settled the claim amount after 10 months to the tune of Rs. 80,000/- against the sum assured of Rs. 1,41,507/- as per the Policy. Accordingly, Complainant prays this Forum to get the actual sum assure of Rs. 1,41,507/- along with compensation amount of Rs. 58,493/- as financed loss and mental agony into Rs. 2 lakhs.
Complainant to substantiate his case filed attested Xerox copies of documents i.e, Regd. certificate, Claim Application, Repossession/ inventory list, Policy cover note, statement of Account respondent-Bank Annexures as per the complaint petition. On the other hand Indus Ind. Bank (respondent no.1&2) the contesting respondent s in the dispute though filed written statement but did not disclose any factnor countered the allegations of the Complainant, except raising the question of maintainability of the dispute. As per the Complaint, allegations are two fold in nature. In the first point, it is alleged that respondent-Insurance Company settled the claim of damaged vehicle to a lesser amount of Rs. 80,000/- against the sum assured of Rs. 1,41,507/- and the second allegation is respondent-Bank repossessed the vehicle and sold the same without intimating the Complainant.
In the present dispute as respondent-Insurance Company was set-exparte, there was no evidence before the Forum to assess the loss in the absence of surveyors report, Estimate report etc. To ascertain the fact of the claim the only document is Annexure-7, statement of Account issued by respondent-Bank and on the available evidence before this Forum,where from it reveals that an amount of Rs. 80,000/- has been credited and adjusted to the loan Account of the Complainant’s son, which was received from the respondent-Insurance Company as claim amount of the damaged vehicle. Further the Insurance Policy certificate (Annexure-8) issued by respondent -Insurance Company against the Insurance of the vehicle reflects that the said vehicle bearing No. OR-29_A-3936 was insured with Op-Insurance Company bearing Regd. No.-OR-29A-3936, Period of Insurance was dt.13/7/2014 to midnight of dt. 12/7/2015, the year of manufacturing of the vehicle is 2012 and the Insured declared value (IDV) is for Rs. 1,41,507/-. On analyzing the aforesaid two(2) documents and Annexure-4, the inventory/ Repossession list , it is clear that the vehicle in question was 2 years old when it faced the accident(dt.7/9/2014). The cost of the disposed vehicle is for Rs. 5,000/- which clearly shows that, the vehicle was completely damaged after the accident and respondent - Insurance Company has deducted more than 45% of IDV and settled the claim. According to our opinion, in absence of Survey report, loss assessment perticulars, deduction of 45% , just 2 years of manufacturing of the vehicle by the Insurance Company is not Justified and the Insurance Company has not applied their technical mind before settling the claim amount, without considering the age of the accident faced vehicle.
In our Opinion, It will be justified if the respondent-Insurance Company while settling the claim on 20% deduction of the IDV as per the Policy, is reasonable and rational amount which is to be awarded against loss and damaged caused to the vehicle by the accident. Hence, when the IDV is for Rs. 1,41,507/- and after 20% deduction it comes to Rs. Approx. 28,300(Rs.1,41,507- Rs.28,300= Rs. 1,13,000) and Complainant deserves to get the said amount towards loss of his vehicle. As, we have discussed earlier, if an amount of Rs. 80,000/- is released towards Insurance claim of the vehicle, the balance amount as per our observation (Rs. 1,13,200 - Rs. 80,000 =Rs. 33,200) is to be paid to the Complainant towards loss and damage of the disputed vehicle, if not paid earlier.
That apart complainant challenge the delayed settlement of Insurance claim which took more than 10 months to settle the claim and compelled the Complainant to file the dispute, which aggravated the misery of the Complainant a lot, when he lost his son in the accident. It is a fact that disputed vehicle faced on dt. 7/9/2014 and claim application was lodged on dt. 24/10/2014, and the claim amount was credited to the loan Account of deceased Policy holder on dt. 30/5/2015, the respondent-Insurance Company took 7 months to settle the claim, according to our opinion though the respondent - Insurance Company has delayed in settling the claim, but the same is not an abnormal delay, by which this Forum will allow the compensation amount of Rs. 58,493/- as claimed by the Complainant for delayed settlements which is having no legal basis, if a simple rate of interest is awarded on revised settlement of the claim of Rs. 33,200/- as per our observation, we, think the same will be justified for the purpose.
Respondent-Bank in their written statement challenge the maintainability of the Complaint mainly on grounds that as per Sec.2(d) of C.P.Act, 1986 the Complainant can not be treated as a ‘consumer’, by citing decision of Honbl’e Apex Court in ‘ Laxmi Engeering works vs PSG Industries cited in 1995 AIR-SC-1428 andin next the present dispute between the parties relates to an accounts dispute which can’t be adjudicated before this Forum, by citing a decision of our own State Commission in C.D. Case No. 53of 2004, in case of Bhabani Sankar Acharya vs M/S Gold Mohur Foods and Feeds Ltd. reported in 2007 OLR(CSR) 38 and in another case C.C.43of 2010 in case of Sushanta Kumar Acharya vs M/S Magma Finance Crop. Ltd. decided on dt. 19/5/2010. These contentions of respondents are not applicable to the instant case as respondent- Bank has not proved by producing any evidence that Complainant’s deceased son loanee was used the vehicle for not earning his livelihood, rather by using the same for commercial purposes. Though in the Complaint, it is stated that Complainant’s son was availed the finance from respondent-Bank to earning his livelihood. The Onus lies with the respondent-Bank to prove that the vehicle was used for other purposes other than the purpose of earning livelihood. So far the point of accounts disputes is concerned, we are of the opinion that the complaint is filed before this Forum on allegation of delayed settlement and the release of lesser amount towards settlement of the Insurance claim. Respondent-Bank in their written statement averred that, if any further Insurance claim is awarded in favour of the Complainant, same need to be given in favour of the Respondent-1 being the financer having first over such claim as the asset is fully damaged and after closure of the loan Account surplus amount be refunded to the Complainant. In this regard we, are of the opinion that Respondent-Bank, though is the financer of vehicle but did not prefer file any statement of loan account reflecting the balance outstanding dues after adjustment of Rs. 5,000/- and Rs. 80,000/- towards saleing of the vehicle credited to the loan account of the loanee on dt. 30/4/2015 and dt. 30/5/2015 and further respondent-Bank made a mistake by not producing the agreement executed between the loanee and respondent-Bank, and what are the terms and conditions of the agreement to get the Insured amount in case of pending outstanding loan dues if any, further, on the allegation of non-intimating to the Complainant, prior to sale of the damaged vehicle is not any way countered by the respondent-Bank, Though it is the settle principle of law that where a vehicle is financed, the financer has every right to reposes/sale the vehicle, but prior to selling of the vehicle, it is mandatory on part of the financer to issue ‘Notice’ to the Borrower or Co-Borrower intimating the sale of the vehicle in event of default and it is equally the paramount duty of financer to inform the Borrower regarding the detail sale proceeds of the vehicle, but in the present case, respondent-Bank has failed miserably to comply the legal provisions in context of sailing of the vehicle in question. As the Complainant has not sought any relief against respondent-Bank, in this condition, we freed the contesting respondent-Bank. As we are not assured regarding the balance outstandings of the loan amount any direction in this order will be miscarriage of justice. Further, if respondent-Bank has any outstandings against financed vehicle, respondent-Bank has to adopt other legal options to realize the same.
Having observation reflected above it is directed that, respondent No. 3&4, Cholamandalam General Insurance Company Ltd. will pay an amount of Rs. 33, 200/-(Rs. Thirty Three Two hundred only) towards final settlement of the Insurance claim of the damaged vehicle to the complainant along with simple rate of interest calculating from dt. 24/10/2014 till its realization, in addition to cost of litigation Rs. 2,000/-. The order is to be carried out within one month of receipt of this order, failing which 9% interest will be charged for the delayed period.
Complainant is allowed in part with cost on merit against Respondent No. 1&2, and ex-parte against respondent No. 3&4.
Pronounced in the open Court, this 30th day of May,2017.
