Assam

Dibrugarh

CC/16/2013

SRI MANASH BORDOLOI - Complainant(s)

Versus

MAHINDRA AND MAHINDRA FINANCIAL SERVICE LTD,REP. BY IT'S MANAGING DIRECTOR - Opp.Party(s)

SRI VIJAY PANDEY

09 Oct 2024

ORDER

Date of Argument –08.01.2018(OP-2)

                                                                                            21.02.2018(OP-1)

                                                                                            30.03.2021(Complainant)

                                                                                            01.04.2022(OP-3)

                                                            Date of Judgment – 09.10.2024

            This CC case has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 on 25.06.2013 claiming to direct the Opp. Parties to deliver the possession of the vehicle bearing Regd. No.AS06AC/4066, to pay a sum of ₹10,00,000/- as compensation for causing harassment and mental anguishment, to direct the O.P. to return the insurance claim settlement amount and to pay a sum of ₹10,000/- as cost of the proceeding.

Judgement

            The case of the complainant is that the complainant is a permanent resident under the jurisdiction of this Commission. The complainant purchased a Bolero Camper SC XL Flat Bed S832WD on 2^nd September, 2011 and the vehicle was registered under Regd. No.AS-06-AC/4066 from the O.P. No.3 with the financial assistance of O.P.No.1. The vehicle was insured with O.P. No.2.

            The vehicle met with an accident on 11.11.2012 at Madhakoli within Khowang Police Station Eleka and a case in this regard had been registered vide Khowang P.S. case No.28/2013 u/s 279/304(A)/338/427 IPC. The vehicle was sent to the O.P. No.3 for necessary repairing. The complainant subsequently claimed insurance compensation from insurance company, i.e. O.P. No.2. The complainant alleges that O.P. No.2 after assessment of claim released the insurance claim money directly to O.P. No.1 without intimating the complainant regarding release of the claimed amount. When the complainant visited the office of the O.P. No.1 for his claim they flatly refused to discuss the matter with him and informed him that they are only answerable to the O.P. No.2 and the complainant is a stranger for them for which they had not released the claimed money in his favour. The complainant then immediately rushed to the office of O.P. No.1 in Dibrugarh and requested them to give the claimed amount, but surprisingly inspite of returning the insurance claim settlement amount they demanded a further sum of money of ₹90,000/- as dues and threatened him that in failure to do so they will take forceful possession of the vehicle illegally and forcefully. Having no alternative the complainant requested the O.P. No.1 to give the complainant the statement of settlement and to return the vehicle to him which is lying with O.P. No.3 but in a very deceitful manner they claimed a sum of ₹45,000/- as parking charge for keeping the vehicle for repairing therein and threatened him that they would not allow him to take the vehicle until this payment is made.

            On 20.06.2013 the O.P. No.1 and O.P. No.3 informed the complainant that they are going to sell the vehicle of the complainant to a third person and asked him to deposit the amount of ₹1,35,000/- with interest within 48 hours otherwise the complainant shall lose his vehicle. The complainant purchased the vehicle by paying down payment and never defaulted in paying any installment of EMI and he was illegally and wrongly deprived of insurance claim settlement amount by the Opp. Parties and they are demanding money illegally and wrongly with the dishonest intention of cheating.

            The complainant apprehended that the Opp. Parties may sell his vehicle to a third party or damage his vehicle for compelling the complainant to sell the vehicle to them in loss for covering their lacuna and illegal and wrongful acts. The acts and attitudes of the Opp. Parties had compelled the complainant to institute this case against the Opp. Parties. The complainant has claimed that the above being the position and on the basis of evidence available thereof, the complainant has believed that the same will be sufficient to hold the Opp. Parties liable for deficiency and negligence in service under the Consumer Protection Act. It was also alleged in his complaint petition by the complainant that the Opp. Parties had not come forward for any honourable and amicable settlement but in contrary has also refused to give the complainant a reasonable compensation for causing physical and mental harassment suffered by him.

            Filing this complaint the complainant has prayed before the Forum to award the following :

1. Direct the Opp. Parties to deliver the possession of his vehicle No.AS-06-AC/4066 to the complainant without any delay ;
2. Direct the Opp. Parties to pay a sum of ₹10,00,000/- only for causing physical harassment and mental anguishment to the complainant ;
3. Direct the O.P. No. 1 and O.P. No.2 to return the insurance claim settlement amount of the vehicle with interest till the date of realization ;
4. Direct the Opp. Parties to pay a sum of ₹10,000/- only being the cost of this proceeding and
5. Any other relief/reliefs which the Forum /Commission deems fit and proper under the law and equity.

After registering the case notices were issued to the opposite parties and the opposite parties contested the case by filing their W/S.

In their W/S O.P. No.1, Mahindra and Mahindra Financial Services Ltd. has submitted that this O.P. has not committed any deficiency in service or indulged in unfair trade practices. The complainant, as alleged by this O.P., the complainant being a chronic defaulter of loan EMI had violated the agreement by his own conduct for which the complainant did not deserve any equity in the eye of law for which the complaint petition deserves to be dismissed. The complaint of the complainant deserves to be dismissed on the principles of ‘Nullus commodum capere potest exsua injuria propria’ which means the complainant cannot derive an advantage from his own wrong. The complainant has suppressed material facts from the Commission and on that ground alone the present complaint is liable to be dismissed with cost and compensation u/s 26 of the Consumer Protection Act, 1986.

O.P. No.1 has claimed in their W/S that the complaint petition is not maintainable in the eye of law since the loan agreement between the complainant and the answering O.P. No.1 contains an arbitration clause for clause No.26 not as much as during the subsistence of loan agreement if there arose any dispute the same has to be referred to an arbitrator. As the said agreement contains specific clause with regard to resolving of dispute, the District Forum does not have the jurisdiction to entertain the disputed case and as such the complaint petition is liable to be dismissed.

O.P. No.1 has stated that upon the request of the complainant for availing financial assistance for the purchase of the vehicle O.P. No.1/finance company after being satisfied with the credential of the complainant had provided loan to the tune of ₹3,83,000/- to the complainant. Agreement value (including interest to be repaid by the complainant was ₹ 5,37,732/-) and accordingly the borrower had executed a loan agreement in acceptance to the terms and conditions of the loan transaction bearing No.1697021 on 2^nd September, 2011. The agreement value of ₹5,37,732/- was to be repaid by the complainant in 47 periodical installments starting from 02.09.2011 and ending on 02.07.2015. As the complainant had executed the loan agreement, the terms and conditions are binding upon him. As per clause No.4.1, 11(11,16) and 12(1) of the agreement, the borrower/complainant is supposed to make payment of the periodical installment in time and on failure of the borrower to do the same the lender (O.P.) shall be entitled to the remedies as available under that agreement.. O.P. No.1 has quoted clause 11, clause 12 of the agreement executed in between both the parties.

On 11^th  November, 2012, the vehicle of the complainant in question, met with an accident and the complainant intimated the same to this O.P. and the insurance company/O.P. No.2 and also filed his insurance claim before the insurance company. O.P. No.2, insurance company, after conducting survey by their surveyor considered to settle the claim as Net Loss Basis settlement for an amount of ₹3,27,660/-. O.P.’s annexure No.2 is the notesheet of the surveyor of National Insurance Company Ltd. After that as the vehicle was hypothecated to O.P. No.1 under the said loan agreement, the O.P. No.2 as per clause 4 of loan agreement paid ₹ 3,27,660/- to the O.P. No.1 vide cheque No.1697021, dtd. 29.03.2013 and O.P. No.1 accordingly intimated the same to the complainant and after the complainant had agreed the answering O.P. received ₹3,27,660/- from the insurance company by issuing receipt No.17988069.

The O.P. has submitted that by virtue of the said vehicle getting fully damaged, the essence of the loan agreement got diluted leading to an event of default and gave rise to termination of the loan agreement. As a consequence of the event of default, the answering O.P. as per the said loan agreement, declared all sums due and to become due, for the full term of the agreement as immediately due and payable including foreclosure charges. Moreover, the complainant was not willing to pay or create any new security. Accordingly the loan Account was pre-closed and the dues become payable immediately. Since there was an agreement, clause 4 of which empowers this O.P. to receive insurance claim as this O.P. is authorized as an agent to take the dues from insurance company, this O.P. received the amount of ₹3,27,660/- from the insurance company and after receiving that amount O.P. No.1 deposited the said amount towards complainant’s outstanding dues under the loan agreement and accordingly closed the complainant’s loan Account on 30.04.2013.

On 30^th April, 2013 i.e. the date on which the loan account No.1697021 was closed, the complainant was supposed to pay 20 installments, whereas, the complainant has paid only 15 installments, and was in default of ₹50,812/- and also late payment charges of ₹3919/- in addition to the future receivables(installments) of ₹2,65,370/- was due and payable by the complainant. The answering O.P. No.1 deducted the said outstanding amount of ₹3,16,180/- (i.e. ₹50,812/- + ₹2,65,370/-) from the claim settlement amount received i.e. ₹3,27,660/- and there was an excess amount of ₹11,478/- (i.e. ₹3,27,660/- -₹3,16,180/-) which was refunded to the complainant. The answering O.P. issued a refund cheque in favour of the complainant for the said excess amount of ₹11,478/- vide cheque No.202205 dated 30.04.2013 drawn on SBI, Ulubari Branch, and called upon the complainant to handover the refund cheque to him but the complainant denied to accept the cheque from the answering O.P. No.1 and the same is lying with the answering O.P.

The O.P. has submitted that exercise of rights under the loan cum hypothecation agreement cannot be construed as unfair trade practices or deficiency of service. Submitting para wise reply of the complaint petition this O.P. has claimed that the petition of the complainant should be dismissed in lemine with cost.

 In their W/S O.P. No.2, National Insurance Company Ltd. has submitted that the case is not maintainable in law, on facts and in its present form in as much as the claim of the complainant under the policy of insurance has been substantially settled without any delay. Challenging the jurisdiction of the Commission to entertain this complaint, this O.P. has submitted that this is purely a civil dispute and the case ought to have filed in the civil courts and the complainant himself is not a consumer as defined by the Consumer Protection Act. At the same time the case is bad for misjoinder of National Insurance Company Ltd. The case is also barred by the principles of waiver, estoppel and acquiescence. Without admitting any liability, it has been submitted by O.P. No.2 that the claimed amount under various heads are highly excessive, exaggerated, arbitrary, fanciful, without any basis and against the provisions of law and O.P. No.2 is not liable to pay any amount to the complainant.

In respect of insurance of the vehicle in question of this case it has been submitted by O.P. No.2 that Mahindra Bolero Pickup vehicle bearing Registration No.AS-06-AC/4066 was insured with this O.P. under policy No.200300/31/12/6300000607 for the period from 07.09.2012 to the midnight of 06.09.2013. The liability of this O.P. is always subject to the terms and conditions of the policy, the maximum liability undertaken by this O.P., valid driving license, IMT endorsement (Nos. 7, 21, 23, 39), provisions of IRDA, M.V. Act, 1988 and the rules framed there under. The complainant had withhold the loan agreement entered between the complainant and the O.P. No.1 for wrongful gain to himself which is very vital document for proper adjudication of the disputes and he cannot take advantage of his own wrongful acts. It has also been submitted by this O.P. that Khowang P.S. case No.98/2014 u/s 279/304(A)/338/427 was registered against the driver of Mahindra Bolero Pickup vehicle bearing Regd. No.AS-06-AC/4066.

In reply to para No.5 of the complaint petition to the effect that the insurance company after assessment of claim, released the insurance claim money directly to the O.P. No.1 is true and admitted by this O.P. and rest of the statements made in the complaint petition are false and denied. It is specifically denied that the amount was released without intimating the complainant as alleged. In reply the answering O.P. has submitted ;

1. That the insurance claim money at ₹3,27,660/- was paid by the answering O.P. as reimbursement for repair of the vehicle and not for the personal benefit of either the complainant or the O.P. No.1 and 3.

 

2. That the complainant/insured has not incurred a single penny towards the bills for repairs of the vehicle and there was no claim from him against the repairing cost of the vehicle.

 

3. That Mahindra Bolero Pickup vehicle bearing registration No.AS-06-AC-4066 was hypothecated/pledged with the O.P. No.1 viz. Mahindra & Mahindra Financial Services Ltd. and as per the provisions of Indian Motor Tariff (IMT) endorsement 7, the said pledgee is entitled to the money and their receipt shall be full and final discharge to the insurer in respect of such loss or damage.

 

4. As per the provisions of law including Insurance Laws, it is not the complainant but the said Mahindra & Mahindra Financial Services Ltd. which became the beneficiary of the policy. Until and unless the complainant makes the payment of the entire installment amount, it is the financer and not the borrower who is entitled to such amount.

 

5. That the complainant has to furnish No-Due certificate from the financer to the answering O.P. to get the insurance claim money.

 

6. That the answering O.P. released the insurance claim amount to the O.P. No.1 with full knowledge of the complainant and in due legal manner and as such the answering O.P. cannot be blamed for the same and is not liable at all.

 In replying para wise of the complaint petition O.P. No.2 has prayed to dismiss the case with cost and compensatory cost.

           In their W/S O.P. No.3, M/s R.D. Automobiles had stated that the fact that the vehicle No.AS06-AC/4066 was handed over to O.P. No.3 for necessary repair is true, but the fact that the complainant claimed insurance from the insurance company was not within the specific knowledge of this O.P.

           The complainant brought the aforesaid vehicle to O.P. No.3 on 30.11.2012 and the mechanic of O.P. No. found the body of the vehicle fully damaged. He prepared a manual repair order form and handed over the same to the complainant after inspecting the whole vehicle and gave an estimated cost of parts required in the said vehicle and mechanical charges vide receipt No.RDA/PROS/12-12/19 on 18-12-2012 to the complainant and requested the complainant either to deposit the cost of parts or to purchase and hand over the same to them for repairmen of the vehicle. The complainant duly received the cost estimate but did not provide the required parts and also not deposited any amount with O.P. No.3. Moreover, the complainant after handing over the said vehicle did not turn up for which O.P. No.3 became unable to repair the vehicle of the complainant. O.P.No.3 stated that   the vehicle of the complainant had occupied a considerable part of their service centre. O.P. No.3 not only kept the said vehicle safe from being stolen but also took care of it from being wasted and as such provided his service to the complainant for long months as a result of which O.P. No.3 has right to receive parking charges from the complainant for providing the aforesaid service. But  O.P. No.3 never claimed for the same from the complainant because the complainant never visited O.P. No.3 after handing over the vehicle to O.P. No.3.

              In their W/s O.P. No.3 had stated that there is no negligence and deficiency in service on the part of O.P. No.3 as the complainant himself did not provide the required parts to replace in place of damaged parts for which O.P. No.3 became unable to repair the vehicle. It was the duty and responsibility of the complainant to provide the new parts for repairing his own vehicle and it was not the duty of O.P. No.3 as the said vehicle met with an accident and damaged. This O.P. claimed that the complaint petition against this O.P. should be dismissed with cost.

The complainant in this case has submitted his evidence in affidavit as CW-1. In his evidence in affidavit the complainant has stated that the complainant is a permanent resident under the jurisdiction of this Commission. The complainant purchased a Bolero Camper SC XL Flat Bed S832WD on 2^nd September, 2011 and the vehicle was registered under Regd. No.AS-06-AC/4066 from the O.P. No.3 with the financial assistance of O.P.No.1. The vehicle was insured with O.P. No.2.

            Exhibit 1, 2, 3 are the copies of finance letter and Insurance policy and sale certificate.

            The vehicle met with an accident on 11.11.2012 at Madhakoli within Khowang Police Station Eleka and a case in this regard had been registered vide Khowang P.S. case No.28/2013 u/s 279/304(A)/338/427 IPC. Exhibit 4 is the copy of police report. The vehicle was sent to the O.P. No.3 for necessary repairing. The complainant subsequently claimed insurance compensation from insurance company, i.e. O.P. No.2. Exhibit 5 and 6 are the copies of description of the work of the accidental vehicle of the complainant and job card. The complainant alleges that O.P. No.2 after assessment of claim released the insurance claim money directly to O.P. No.1 without intimating the complainant regarding release of the claimed amount. When the complainant visited the office of the O.P. No.1 for his claim they flatly refused to discuss the matter with him and informed him that they are only answerable to the O.P. No.1 and the complainant is a stranger for them for which they had not released the claimed money in his favour. The complainant then immediately rushed to the office of O.P. No.1 in Dibrugarh and requested them to give the claimed amount, but surprisingly inspite of returning the insurance claim settlement amount they demanded a further sum of money of ₹90,000/- as dues and threatened him that in failure to do so they will take forceful possession of the vehicle illegally and forcefully. Having no alternative the complainant requested the O.P. No.1 to give the complainant the statement of settlement and to return the vehicle to him which is lying with O.P. No.3 but in a very deceitful manner they claimed a sum of ₹45,000/- as parking charge for keeping the vehicle for repairing therein and threatened him that they would not allow him to take the vehicle until this payment is made.

            On 20.06.2013 the O.P. No.1 and O.P. No.3 informed the complainant that they are going to sell the vehicle of the complainant to a third person and asked him to deposit the amount of ₹1,35,000/- with interest within 48 hours otherwise the complainant shall lose his vehicle. The complainant purchased the vehicle by paying down payment and never defaulted in paying any installment of EMI and he was illegally and wrongly deprived of insurance claim settlement amount by the Opp. Parties and they are demanding money illegally and wrongly with the dishonest intention of cheating.

            The complainant apprehended that the Opp. Parties may sell his vehicle to a third party or damage his vehicle for compelling the complainant to sell the vehicle to them in loss for covering their lacuna and illegal and wrongful acts. The acts and attitudes of the Opp. Parties had compelled the complainant to institute this case against the Opp. Parties. The complainant has claimed that the above being the position and on the basis of evidence available thereof, the complainant has believed that the same will be sufficient to hold the Opp. Parties liable for deficiency and negligency in service under the Consumer Protection Act. It was also alleged in his complaint petition by the complainant that the Opp. Parties had not come forward for any honourable and amicable settlement but in contrary has also refused to give the complainant a reasonable compensation for causing physical and mental harassment suffered by him.

            Filing this complaint the complainant has prayed before the Forum to award the following :

1. Direct the Opp. Parties to deliver the possession of his vehicle No.AS-06-AC/4066 to the complainant without any delay;
2. Direct the Opp. Parties to pay a sum of ₹10,00,000/- only for causing physical   harassment and mental anguishment to the complainant ;
3. Direct the O.P. No. 1 and O.P. No.2 to return the insurance claim settlement amount of the vehicle with interest till the date of realization ;
4. Direct the Opp. Parties to pay a sum of ₹10,000/- only being the cost of this proceeding and
5. Any other relief/reliefs which the Forum /Commission deems fit and proper under the law and equity.

               In this case O.P. No.1 had to submit his/their evidence in affidavit on 18.11.2016 but did not submit evidence in affidavit till 08.08.2017 and the then President of the Forum was pleased to close evidence of O.P. No.1.

            O.P. No.2 submitted evidence in affidavit on 04.03.2017. Witness No.1 of O.P. No.2 was one Shri Biswajit Chakravarty, Administrative Officer, National Insurance Co. Ltd., Dibrugarh (DW-1). In his evidence DW-1 has stated that the Mahindra Bolero Pickup vehicle bearing Regd. No.AS06-AC/4066 was insured with this O.P. under policy No.200300/31/12/6300000607 for the period from 07.09.2012 till midnight of 06.09.2013. The liability of this O.P. is always subject to the terms and conditions of the policy, maximum liability undertaken by this O.P. as per IMT endorsement (Nos. 7, 21, 23, 39), provisions of IRDA, M.V. Act, 1988 and the rules framed there under. It was submitted that the vehicle in question was hypothecated to Mahindra & Mahindra Financial Services Ltd and the insurance of the vehicle was done by its agent, viz. Mahindra Insurance Brokers Ltd. This O.P. has submitted that the complainant had withhold the loan agreement entered between the complainant and the O.P. No.1 for wrongful gain to himself which is very vital document for proper adjudication of the disputes and he cannot take advantage of his own wrongful acts.

This O.P. has made insurance policy as Exhibit-1 and the certified copy of relevant IMT endorsement No.7 as Exhibit-2, which are tagged with the evidence in affidavit. This O.P. has admitted that after assessment the insurance claimed money was directly transferred to O.P. No.1, viz. Mahindra & Mahindra Financial Services Ltd. This O.P. has further submitted that Khowang P.S. case No.98/2014 u/s 279/304(A)/338/427 was registered against the driver of the vehicle bearing Regd. No.AS-06-AC/4066.

This O.P., National Insurance Company Ltd. paid the settled insurance claim amount of ₹ 3,27,660/- for repairing of the vehicle and not for personal benefit of either the complainant or O.P. No.1 & 3. He has claimed that the complainant/insured had not incurred a single penny towards the bills for repairing the vehicle and there is no claim from him against repairing cost of the vehicle.

The vehicle of the complainant was hypothecated/pledged with O.P. No.1 and as per provisions of Indian Motor Tariff endorsement No.7, the said pledgee is entitled to the money and their receipt shall be full and final discharge to the insurer in respect of such losses or damages. AS per provisions of law including insurance laws, it is not the complainant but the said Mahindra & Mahindra Financial Services Ltd. became the beneficiary of the policy, until and unless the complainant makes a payment of the entire installments, it is the financer and not the borrower who is entitled to the said amount. The complainant had to furnish “No Due” certificate from the financer to National Insurance Co. Ltd. to get the insurance claim money and any busyness thereof, he is not entitled for the release of the amount in his favour.

Denying totally their liability this O.P. has submitted that they are not liable to pay a single penny to the complainant, rather the complainant is liable to pay the litigation cost and compensatory cost to National Insurance Co. Ltd. for pushing it to face the superfluous litigation.

In this case O.P. No.3 M/s R.D. Automobiles as submitted their evidence in affidavit through one Shri Partha Borgohain, The Chief Executive Officer and authorized signatory of O.P. No.3.

Denying their liability O.P. No.3 has deposed that in the instant case he has neither any liability to pay to the complainant nor any cause of action arise against them and the whole matter is in between the complainant and O.P. No.1 and 2 and the same is clear from the complaint petition filed by the complainant.

This witness has stated that vehicle No.AS-06-AC/4066 was brought to the service station of O.P. No.3 on 30.11.2012 and on receipt of the said vehicle the mechanic of O.P. No.3 found the body of the vehicle fully damaged and handed over a manual repair order form to the complainant and inspected the vehicle and gave an estimated cost of parts required in the said vehicle and mechanical charge vide estimate No.RDA/PROS/12-12/19 (6 sheets) on 18.12.2012 to the complainant and requested the complainant either to deposit the cost of parts or to purchase the same and hand over to the service station so that O.P. No.3 can repair the vehicle. It was also informed to the complainant that for non-supply of the parts O.P. No.3 could not repair the vehicle as the vehicle was fully damaged and no new parts were provided by the complainant. The complainant had duly received the estimate but not only failed to provide the parts given in the estimate form but also failed to deposit any amount so as to enable O.P. No.3 to purchase the required parts.

O.P. No.3 is a servicing center and only on getting the new parts or cost of the new parts from customer who came for repairment of vehicle, O.P. No.3 becomes liable to do the repairing job. In this case the complainant neither paid the cost of the parts nor handed over any new parts to O.P. No.3 to repair his vehicle and as such the fault was on the part of the complainant for non-supply of new parts and he cannot shift the burden to O.P. No.3. There is no any negligence and deficiency on the part of this O.P. O.P. No.3 duly received the vehicle, inspected it, prepared the cost estimate which was handed over to the complainant on 18.12.2012. This witness has claimed that he faced great business loss as the vehicle of the complainant occupied service place of his servicing centre. He deposed that he not only kept the said vehicle safe from theft but also took care of that from being wasted and hence provided a service to the complainant for long months for which O.P. No.3 has right to receive the parking charges from the complainant for providing this service, but O.P. No.3 could not claim the said charge from the complainant as the complainant after handing over the vehicle to O.P. No.3 neither turned up to repair the same nor take back the said vehicle.

Exhibit-1 is the manual repair order form.

Exhibit-2 is the estimated details (6 sheets).

This witness claimed that there is no negligence or deficiency in service on the part of O.P. No.3 and as such the claim of the complainant against O.P. No.3 should be dismissed with cost.

The complainant in this case submitted his written argument on 30.03.2021 at length. In his written argument the complainant has submitted that he purchased Bolero Camper bearing Regd No.AS-06-AC/4066 from O.P. No.1 and insured the vehicle with O.P. No.2. The vehicle met with an accident on 11.11.2012 and the vehicle was badly damaged. The complainant raised claim against accidental damage repairing from O.P. No.2. But surprisingly O.P. No.2 in connivance with O.P.No.1 and O.P. No.3 released an excess amount in favour of O.P.No.1 and the vehicle was retained in the workshop of O.P. No.3. He has claimed that all the Opp. Parties deceived him and the insurance claim amount was distributed amongst themselves without informing him. On contact with O.P. No.1, O.P. No.1 told him that he was a stranger for them and in turn demanded an amount of ₹ 90,000/- from the complainant. This O.P. had not delivered the statement of settlement to the complainant inspite of repeated requests. When he requested O.P. No.3 to return back his vehicle they claimed ₹ 45,000/- as parking charge. On 26.06.2013 the complainant came to learn that O.P. No.1 to O.P.3 in connivance with each other were going to sell his vehicle and when he contacted them demanded a sum of ₹ 1,35,000/- with interest within 48 hours. The complainant has claimed that he was never a defaulter of any EMI and the question of making payment of ₹ 1,35,000/- did not arise. The claim of the complainant, as argued by him was settled immediately in connivance with other O.Ps. and excess payment was received by O.P. No.1 and O.P. No.2 and as such the question of claiming parking and repairing costs etc. from the complainant never arise. The act of the O.Ps. is sufficient to hold that the O.Ps. are jointly liable for deficient and negligent services under Consumer Protection Act.

The complainant has argued that the claim of O.P. No.1 that the complainant was chronic defaulter of loan EMI is not true at all. He had regularly paid 15 instalments up to the relevant time. O.P. No.1 was paid ₹ 3,27,660/- by O.P. No.2 out of which only ₹ 11,478/- was offered to the complainant which he refused. He has claimed that the salvage value of the vehicle was also never returned to the complainant. The complainant has argued that O.P.No.3 claimed ₹ 1,35,000/- from him without any valid reason thereof. Inspite of receiving the entire settlement amount, O.P. No.1 and O.P. No.3 claimed ₹ 1,35,000/- from the complainant which he has described as a ‘blazing incident’ of deficiency and negligence of service towards the customer by the O.Ps.

In this case O.P. No.1 failed to submit their evidence in affidavit in due course of time for which their evidence was closed by the Commission on 08.08.2017, but this O.P. has submitted their written argument on 21.02.2018.

In their argument O.P. No.1 has argued that a mere perusal of the written statement of this O.P. will make it crystal clear that O.P. No.1 was never negligent towards its duty and always honest with its customers. The hands of O.P. No.1 were tied up and had to follows the usual course of business as per loan agreement bearing No.1697021 dated 02.09.2017 entered into between the complainant and the O.P. The agreement value was ₹ 5,37,732/- only and the agreement value was to be paid by the complainant in 47 periodical instalments starting from 02.09.2011 and ending on 02.07.2015. As the vehicle was hypothecated and as per loan agreement, the insurance company handed over a cheque bearing No.1697021 dated 29.03.2013 amounting to ₹3,27,660/- to this O.P.

After receiving the cheque O.P. No.1 paid the complainant his due legitimate amount after settling the loan account as follows :

1. The loan account was closed on 30.04.2013 and the complainant was supposed to pay 20 instalments whereas the complainant had paid only 15 instalments and was a defaulter of ₹50,812/- with late payment charge of ₹3,919/- in addition to future receivable of ₹2,65,370/- was due and payable by the complainant.
2. This O.P. added the outstanding defaulting instalments with fine with the future receivables which amounts to ₹3,16,180/- only and deducted this amount from the amount paid by the insurance company, i.e. ₹3,27,660/-.
3. The final remaining amount of ₹11,478/- was paid to the complainant vide cheque No.202205 dated 30.04.2013 drawn on SBI, Ulubari Branch but the complainant refused to accept the same.

The above calculation and procedure is adopted in case of total/net loss of vehicle or another similar case such as theft and in this case the vehicle was damaged beyond repair and so it was declared total/net loss by insurance company. That moreover in case of a hire purchase the purchaser remains merely a trustee/Bailee on behalf of the financer/financial institutions, i.e. the O.P. No.1 and ownership remains with the financer. This O.P. has cited the ruling of Hon’ble Supreme Court in SLP(Crl.) No.8907 of 2009 passed on 30.10.2012.

This O.P. has finally argued that they committed no wrong in releasing its due amount from the insurance claim amount paid by the insurance company and returning back the vehicle is out of equation as the vehicle is declared total/net loss by insurance company.

O.P. No.2 in this case has submitted their written argument on 08.01.2018. This O.P. has argued that the case is bad for miss-joinder of this O.P. and the case may be dismissed on this score alone.

The O.P. No.2 in written argument has argued that Mahindra Bolero Pick Up vehicle bearing Regd. No.AS-06-AC/4066 was insured with O.P. No.2 for the period from 07.09.2012 till midnight of 06.09.2013. The liability of this O.P. is always subject to the terms and conditions of the policy, the maximum liability undertaken by this O.P., valid driving licence, IMT endorsement (No.7,21,23,39), provisions of IRDA, MV Act, 1988 and the rules framed thereunder.

            Their exhibit No.1 is the certified copy of that insurance policy.

            The said vehicle was hypothecated to Mahindra & Mahindra Financial Services Ltd. And the insurance of the vehicle was done by the Financer’s Agent, viz. Mahindra Insurance Brokers Ltd.

            This O.P. submits that –

1. The vehicle was under hypothecation and not under hire purchase.
2. The insurance declared value of the vehicle was ₹4,08,168/-
3. The claim towards insured vehicle will be treated as constructive total loss (CTL) claim if the aggregate cost of retrieval and/or repair of the vehicle, subject to the terms of the conditions of the policy exceeds 75% of the insurance declared value of the vehicle.
4. The insurance claim money of ₹3,27,660/- is more than 75% IDV of ₹4,08,168/- and even the alleged total loss estimate as per complainant’s exhibit No. 5 & 6 is more than IDV of ₹4,08,168/-.
5. The insurer is bound by the provisions of insurance law to treat the insured at composite total loss and is liable to make payment to the financer only and not to the insurer/claimant.

The vehicle No.AS-06-AC/4066 was hypothecated/pledged with the O.P. No.1 and as per the provisions of Indian Motor Tariff endorsement No.7, the said pledgee is entitled to the money and their receipt shall be full and final discharge to the insurer in respect of such loss or damage. As per the provisions of law including insurance laws, it is not the complainant but the said Mahindra & Mahindra Financial Services Ltd., it becomes the beneficiary of the policy. Until and unless the complainant makes the payment of the entire instalment amount it is the financer and not the borrower who is entitled to such amount. It is also argued that the complainant is to furnish non-due certificate from the financer, National Insurance Co. Ltd. to get the insurance claim and any business thereof he is not entitled for the released amount in his favour.

The complainant/insured had not incurred a single penny towards the bill of repairing the vehicle and there was no claim from him against the repairing cost of the vehicle. This O.P. released the insurance claim amount to O.P. No.1 with full knowledge of the complainant and in due legal manner and as such this O.P. cannot be blamed for the same and is not liable at all.

The concerned vehicle, as argued by this O.P., was never in possession of this O.P. and it is not involved in the alleged dispute between the complainant and O.P. Nos. 1 & 3. The National Insurance Co. Ltd. has been unnecessarily dragged in the alleged dispute between the complainant and O.P. Nos. 1 & 3 and there is no deficiency or negligence in rendering service by this O.P. and as such the complaint of the complainant be dismissed with cost and compensatory cost.

The O.P. No.3 in this case submitted written argument on 01.04.2022. Narrating the case of the complainant in brief this O.P. has argued that this is not a case which falls under the consumer dispute, rather the case is of civil nature in between O.P. No.1, O.P. No.2 and the complainant which involves the question of law as well as facts and there is no any ingredient to file the case under Consumer Protection Act as the case is lack of ingredients which are required under Consumer Protection Act.

It is submitted that O.P. No.3 uses to sell and service the vehicles manufactured by M/s Mahindra & Mahindra and when the accidental vehicle came to its servicing centre. The engineer of O.P. No.3 promptly attended the complainant and after full examination of the accidental vehicle, estimated the cost of the parts along with labour charges and submitted to the complainant on 18.12.2012 and from document No.2 it is seen that the cost of the parts comes to the tune of ₹4,75,218/- and the cost of labour charge is ₹93,820/- in total ₹5,66,038/- only and this O.P. requested the complainant to deposit the amount as shown in the estimate so as to enable them to start repairing of the accidental vehicle or to purchase the said parts. The complainant has failed to deposit any amount as well as failed to buy the parts himself and left the vehicle in the servicing centre and did not turn up either to take the vehicle or to pay the cost of the parts. The O.P. No.3 is not under any obligation to provide free of cost service to any customer and also not liable if party fails to pay the cost of parts and labour charges as per estimate. This O.P. has claimed that the complainant has failed to prove his case of deficiency in service against O.P.No.3 as the complainant has failed to submit any document of payment to O.P. No.3. This O.P. has further argued that due to occupancy of space of service centre by the vehicle of the complainant this O.P. has suffered loss in its business and the O.P. is legally entitled for parking charges.

Reproducing the meaning of deficiency as provided by Consumer Protection Act, O.P. No.3 has claimed that this O.P. is not at all liable for any deficiency in service as the dispute in this case is mainly between the complainant and O.P. No.1 and O.P. No.2 and the complainant unnecessarily made O.P. No.3 as a party in this case.

Submitting written argument by this O.P., it is prayed to dismiss the case of the complainant against O.P. No.3 and direct the complainant to pay the necessary parking charges of the vehicle to the opposite party for keeping the vehicle safe from theft.

Points for decision

1. Whether the complainant is a consumer of the opposite parties under the Consumer Protection Act.
2. Whether this Commission has jurisdiction to try the case.
3. Whether the opposite parties are liable for deficient and negligent services towards the complainant.
4. Whether the complainant is entitled to get the reliefs claimed in his complaint petition.

Decisions and reasons thereof.

1. We have examined the averments of the complaint and the documents filed along with the complaint. After perusal of these we have come to a conclusion that undoubtedly the complainant is a consumer of the opposite parties under Consumer Protection Act.

 

2. The complainant is a resident of Moranhat under Dibrugarh District and O.P. No.2 is having its branch office at Dibrugarh town. The amounts claimed by the complainant is also within the pecuniary jurisdiction of this Commission. Hence, this Commission has proper territorial as well as pecuniary jurisdiction to try the instant case.

 

3. On careful perusal of the complaint, evidence in affidavit of the complainant and his written argument, we have found that the complainant purchased the Bolero Camper bearing Regd. No.AS06-AC-4066 from O.P.No.1 and insured the same with O.P. No.2. On 11.11.2012. The vehicle met with an accident and the vehicle was badly damaged. The complainant raised claim against the accidental damage repairing from O.P. No. 2. O.P. No.2 released the estimated cost amount in favour of O.P. No.1 and the vehicle was retained in the workshop of O.P. No.3. The complainant has claimed that all the opposite parties deceived him and the insurance claim amount was distributed among themselves without the knowledge of the complainant. On contact, O.P. No.1 told him that he was a stranger for them and in turn they demanded an amount of ₹ 90,000/- from the complainant. The complainant was not supplied with the statement of settlement inspite of repeated requests. On request to return the vehicle O.P. No.3 had claimed a sum of ₹ 45,000/- as parking charge. The complainant on 26.06.2013 came to know that all  the opposite parties in connivance with each other was trying to sell his vehicle and when the complainant contacted them they demanded a sum of ₹ 1,35,000/- with interest within 48 hours. As per the complainant he was never a defaulter of any EMI and the question of making payment of ₹ 1,35,000/- did not arise. The complainant as stated by him regularly paid 15 instalments up to the relevant time. O.P.No.2 paid ₹ 3,27,660/- to O.P. No.1 out of which only ₹ 11,474/- was offered to the complainant which he refused. The complainant has also claimed that the salvage value of the vehicle was also never returned to the complainant.

The complainant’s exhibit No. 1, 2 & 3 are the copies of finance  letter, insurance policy and sale certificate. Exhibit No.4 is the copy of police report.  Exhibit 5 & 6 are the copies of description of works of the accidental vehicle and job card.

      Contrary to the claim of the complainant, from perusal of the written statement and written arguments filed by O.P. No.1, we have seen that the complainant purchased his vehicle under finance from O.P. No.1. O.P. No.1 claims that the complainant was a chronic defaulter of loan EMI and he violated the agreement by his conduct for which the complainant deserves no equity in the eye of law. Upon request of the complainant for financial assistance O.P. No.1 had provided loan to the tune of ₹3,83,000/- to the complainant and the agreement value (including interests) to be paid by the complainant was ₹5,37,732/- only. The complainant executed a loan agreement accepting the terms and conditions vide agreement No.1697021 on 02.09.2011. The agreement value of ₹5,37,732/- was to be paid by the complainant in 47 periodical instalments starting from 02.09.2011. After the accident the complainant intimated the matter to O.P. No.1 and O.P. No.2 and after conducting survey, the claim of insurance was settled at Net Loss Basis settlement for an amount of ₹3,27,660/-. As the vehicle was hypothecated to O.P. No.1 under the loan agreement O.P. No.2, as per clause 4 of loan agreement paid ₹ 3,27,660/- to O.P. No.1 vide cheque No.1697021 dated 29.03.2013. O.P. No.1 accordingly intimated the same to the complainant and after the complainant had agreed, this O.P. received the amount of ₹ 3,27,660/- from the insurance company.

4. From perusal of complaint petition and evidence in affidavit of the complainant it is seen that the complainant has quoted Khowang P.S. Case No.28/2013 U/S 279/304(A)/338/427-IPC and he has exhibited the copy of police report as Exhibit-4. But in Exhibit-4 the case No. was quoted as Khowang P.S. Case No.98/2012 U/S 279/304(A)/338/427-IPC.

             It is also observed that O.P. No.2, National Insurance Company Ltd. claims that the insurance claim was paid to O.P. No.1 for repairing the vehicle and not for the personal benefit of either the complainant or the O.P. No.1 and O.P. No.3 {O.P. No.2’s evidence in affidavit, page-2, para-5(b)}.  But O.P. No.1 has utilised the amount in liquidating the loan instalments of the complainant and not in repairing the vehicle of the complainant. Seen that O.P. No.1 has committed wrong in utilising the amount paid by the Insurance Company in liquidating the loan of the complainant and as such they have committed deficiency in service towards the complainant. It was the duty of O.P. No.1 to utilise the amount released by the O.P. No.1 in repairing the vehicle and they could have adopted step to realise the pending or future EMI from the complainant after delivering the vehicle fully repaired. If the complainant has failed to repay the instalment alternative legal remedy for recovering the same was available to the O.P. But O.P. No.1 instead of doing so, utilised the whole amount paid by the Insurance Company in liquidating their loan amount only.

           At this point of time we want to make it clear that though the complainant exhibited the original documents No.1, 2 and 6 which were not signed by the then President and other exhibits No.3, 4 and 5 are Xerox copies only, we may treat these documents as Exhibits because no opposite parties has objected this in their evidence/written arguments.

            In view of the above discussions, we hereby allow the complaint of the complainant and we found O.P. No.1 and 3 are liable for their deficient and negligent services towards the complainant. We found that O.P. No.2 has committed no wrong in releasing the sanctioned insurance claim in favour of O.P. No.1. Hence O.P. No.2 is released from any or all liability in this case. We direct O.P. No.1 and O.P.No.3 to pay to the complainant :-

1. A sum of ₹6,00,000/- for causing physical harassment and mental agony and financial loss to the complainant.
2. A sum of sum of ₹20,000/- as cost of this proceeding.

                               The above amounts be deposited into the credit of this Commission jointly by both the Opposite Parties No.1 & No.3 in equal shares within 30 days from receipt of this judgement and order, failing which an interest @ 9% p.a. on the awarded sum will have to be borne by the opposite parties from the date of filing the case till payment of the awarded amount.

                        The instant C.C. No.16/2013 is accordingly disposed of on contest.

Send copy of this judgement and order to the Opposite Parties for  compliance. Complainant is to take steps within 7(seven) days from today.