BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint no.318/16.
Date of instt.: 18.10.2016.
Date of Decision: 03.07.2017.
Jaivir Singh S/o Deep Singh, R/o Village Rohera Majra, Tehsil Rajaund, Distt. Kaithal.
……….Complainant.
Versus
- Magma Finance Ltd., Dhand Road, Kaithal through its Branch Manager.
- The New India Assurance Ltd., Claim Hub Office, G.T. Road, Opp. Bus Stand Karnal through its Branch Manager.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Sh. Sumit Jaglan, Advocate for complainant.
Sh. Ranvir Prashar, Advocate for the Op No.1.
Sh. Nikhil Gupta, Adv. for Op No.2.
(Though exparte).
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a Figo car bearing registration No.HR-08S-8574 in the month of October, 2014 and got insured the same with the Op No.2 vide policy No.589790 dt. 20.10.2014. It is further alleged that on 10.06.2015, the above-said vehicle met with an accident near Nehru Kund Turn, Distt. Kulu and a complaint in this regard was lodged in P.S.Manali. It is further alleged that the complainant lodged the claim with the Op No.2, who has approved an amount of Rs.4,87,010/- on account of total loss, subject to the condition of cancellation of RC of vehicle. It is further alleged that on 26.10.2015, the complainant also gave his consent to Op No.2 to pay the claim amount directly to Op No.1 being financier of the above-said vehicle and on the same day, the Op No.2 issued a letter in this regard to Op No.1. It is further alleged that in reply of above-said letter, the Op No.1 issued no objection certificate on 22.01.2016 with the condition that the vehicle should be transferred in the name of Op No.2 but the Op No.2 did not accept the No Objection Certificate issued by the Op No.1 and did not release the claim amount to the complainant. It is further alleged that the complainant requested the Op No.1 to issue no objection certificate without any condition but the Op No.1 did not do so rather issued a notice dt. 11.08.2016 for appointment of Arbitrator for initiation of arbitration proceeding, which is totally wrong and illegal. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite party No.1 appeared before this forum, whereas Op No.2 did not appear and opted to proceed against exparte vide order dt. 01.12.2016. The Op No.2 moved an application on 12.01.2017 for joining the proceedings and the said application was allowed vide order dt. 12.01.2017 and Op No.2 was allowed to join the proceedings at the stage of filing reply. Ops No.1 & 2 filed their replies separately. Op No.1 filed reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that this Forum has got no jurisdiction to entertain and try the present complaint because the agreement in question was executed between the parties at Kolkata through its service branch located at Karnal; that the codes of the proposal number itself showing as “PG0033”, which is having code of service branch located at Karnal; that by a Hire Purchase Agreement dt. 05.11.2014 entered into between the parties and the total finance amount alongwith interest charges payable by the complainant to the answering Op in terms of the said agreement was Rs.7,68,000/- and the said sum was payable by way of 60 monthly instalments commencing from 20.10.2014 to 19.10.2019; that the answering Op on the basis of account of statement & foreclosure-sheet are entitled to recover a sum of Rs.5,34,210/- from the complainant upto 09.11.2016 which the complainant is liable to pay to the answering Op; that the complainant is bound by the terms and conditions of the Hire Purchase Agreement; that the complainant has suffered nothing on the part of answering Op as in support of the complainant, the answering Op had already been issued NOC on 22.01.2016 to the complainant for transfer of ownership of vehicle in question in the name of Op No.2 according to law; that the notice dt. 11.08.2016 has been rightly issued to the complainant as there is an Arbitrator Clause in the hypothecation agreement to the effect that in case of any dispute between the parties, the matter shall be referred to Arbitrator; that the complainant has not paid the financed amount and accordingly, the notice for appointment of Arbitrator has been issued to the complainant. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. Op No.2 filed the reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant has concealed the true and material facts from this Forum. The true facts are that after receiving information from the complainant, the Op deputed T.P.Singh & Co., Independent Surveyor and Loss-assessor and he submitted his report dt. 25.08.2015; that he found assessed loss on repair basis exceeds 75% of IDV, hence, it was fit case for CTL and upon that, the answering Op had settled the loss on “Net of salvage basis”, subject to cancellation of RC of car No.HR08S-8574 to the tune of Rs.4,87,100/- as per surveyor report; that the insured also gave his consent to answering Op to pay the insurance claim of Rs.4,87,100/- directly to Op No.1 as full and final settlement. So, the answering Op wrote letter to Op No.1 to issue “No objection certificate” for cancellation of RC to insured but till today, neither the complainant/insured nor Op No.1 has ever completed the said necessary formalities. There is no deficiency in service on the part of answering Op. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
4. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 & Ex.C2 and Mark-CA to Mark-CD and closed evidence on 27.02.2017. On the other hand, the Op No.1 tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 and Mark-R1 to Mark-R5 and closed evidence on 17.04.2017. The Op No.2 tendered in evidence affidavit, Ex.RW1/A and documents Annexure-RA to Annexure-RF and closed evidence on 27.04.2017.
5. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
6. Ld. Counsel for the complainant reiterated all the points mentioned in the complaint. He argued that the complainant got insured the vehicle in question with the Op No.2 vide policy No.589790 dt. 20.10.2014. He further argued that on 10.06.2015, the above-said vehicle met with an accident near Nehru Kund Turn, Distt. Kulu and a complaint in this regard was lodged in P.S.Manali. He further argued that the complainant lodged the claim with the Op No.2, who has approved an amount of Rs.4,87,010/- on account of total loss, subject to the condition of cancellation of RC of vehicle. He further argued that on 26.10.2015, the complainant also gave his consent to Op No.2 to pay the claim amount directly to Op No.1 being financier of the above-said vehicle and on the same day, the Op No.2 issued a letter, Mark-CA to Op No.1 with the request to give NOC for cancellation of the RC. He further argued that in reply of above-said letter, the Op No.1 issued no objection certificate on 22.01.2016 with the condition that the vehicle should be transferred in the name of Op No.2 but the Op No.2 did not accept the No Objection Certificate issued by the Op No.1 and did not release the claim amount to the complainant. He further argued that the complainant requested the Op No.1 to issue no objection certificate without any condition but the Op No.1 did not do so rather issued a notice dt. 11.08.2016 for appointment of Arbitrator for initiation of arbitration proceeding, which is totally wrong and illegal. He further argued that due to the fault on the part of Op No.1, the claim in question could not be released by the Op No.2. On the other hand, ld. Counsel for the Op No.1 argued that the Op No.1 had already been issued NOC on 22.01.2016 to the complainant for transfer of ownership of vehicle in question in the name of Op No.2 according to law. He further argued that the notice dt. 11.08.2016 has been rightly issued to the complainant as there is an Arbitrator Clause in the hypothecation agreement to the effect that in case of any dispute between the parties, the matter shall be referred to Arbitrator. He further argued that the complainant has not paid the financed amount and accordingly, the notice for appointment of Arbitrator has been issued to the complainant. Ld. Counsel for the Op No.2 argued that after receiving information from the complainant regarding accident, the Op No.2 deputed T.P.Singh & Co., Independent Surveyor and Loss-assessor and he submitted his report dt. 25.08.2015 and as he found assessed loss on repair basis exceeds 75% of IDV, hence, it was fit case for CTL. He further argued that as per surveyor report, the Op No.2 had settled the loss on “Net of salvage basis”, subject to cancellation of RC of car No.HR08S-8574 to the tune of Rs.4,87,100/-. He further argued that the insured also gave his consent to Op No.2 to pay the insurance claim of Rs.4,87,100/- directly to Op No.1 as full and final settlement. He further argued that the Op No.2 wrote letter to Op No.1 to issue “No objection certificate” for cancellation of RC to insured but till today, neither the complainant/insured nor Op No.1 has ever completed the said necessary formalities.
7. From the pleadings and evidence of the parties, it is clear that the car bearing registration No.HR-08S-8574 was financed with the Op No.1 and the said car was insured with the Op No.2 vide policy No.589790 dt. 20.10.2014. It is also clear that the said car met with an accident on 10.06.2015 and T.P.Singh & company was appointed as surveyor and loss assessor by the Op No.2. It is also clear that on the basis of the report of surveyor, the Op No.2 has settled the loss on “Net of salvage basis”, subject to cancellation of RC of car No.HR08S-8574 to the tune of Rs.4,87,100/-. It is also admitted case of the parties that the complainant-insured gave his consent to Op No.2 to pay the claim of Rs.4,87,100/- directly to Op No.1 as full and final settlement. It is also admitted case of the parties that on 26.10.2015 the Op No.2 wrote a letter to Op No.1, the copy of which is Mark-CA. According to this letter, Mark-CA, the Op No.2 informed the Op No.1 that the competent authority has approved the claim on total loss basis (Net of salvage), subject to cancellation of RC of the vehicle and the claimant-insured has given the authority to Op No.2 to pay the claim directly to you i.e. Op No.1 being financier of the said vehicle. The Op No.2 made request to Op No.1 in the said letter to give NOC for cancellation of RC and on submission of the same, the office of Op No.2 shall made the payment to Op No.1 with regard to the above claim i.e. Rs.4,87,100/-. In reply to letter, Mark-CA, the Op No.1 issued NOC on 22.01.2016 to the Registering Authority, Motor Vehicles Department vide letter dt. 20.01.2016, the copy of which is Mark-CB. It is clear from Mark-CB and also admitted by Op No.1 in their reply that the NOC was issued, subject to the condition that the vehicle should be transferred in the name of New India Assurance Co. Ltd. i.e. Op No.2. The letter Mark-CA clearly indicates that the NOC was requested to be issued for cancellation of the RC, whereas the Op No.1 has issued the same for transfer of the vehicle instead of cancellation of RC, as is clear from Mark-CB. Due to this reason, the RC of the vehicle in question could not be got cancelled by the complainant and Op No.2 has not released the claim. Therefore, the Op No.2 was right in not accepting the NOC issued by Op No.1. From the above facts and circumstances of the case, it is clearly established that the claim of the complainant could not be released by Op No.2 due to the fault of Op No.1. No doubt, according to the law, the complainant was duty bound to pay the balance financed amount to Op No.1 before the issuance of the NOC but as the complainant has given authority to Op No.2 for making the payment of the claim directly to Op No.1, as is clear from Mark-CA and Op No.1 has issued NOC vide Mark-CB which means that the Op No.1 has agreed with the said authority of the complainant. The Op No.1 has issued the NOC in question on 22.01.2016 but not in accordance with the request of the Op No.2. The Op No.1 either should have issued the NOC as per request of the Op No.2 or should have denied the same. But the Op No.1 has not done so. In these circumstances of the case, we are of the considered opinion that the Op No.1 has committed an act of unfair trade practice and thus, is deficient in providing services to the complainant. Further, as the NOC in question has been issued by the Op No.1 on 22.01.2016, therefore, in our view, the Op No.1 is not entitled for interest on the balance financed amount from 22.01.2016 till the date of decision of this case.
8. Thus, as a sequel of above discussion, we allow the complaint partly and direct the Op No.1 to issue a fresh NOC for the cancellation of RC of the vehicle in question on receipt of balance financed amount except the interest for the period w.e.f. 22.01.2016 till today i.e. 03.07.2017. No order as to costs. Let the order be complied with within 30 days after the payment of balance financed amount by the complainant. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.03.07.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
