Haryana

Karnal

CC/178/2019

Smt. Harvinder Kaur - Complainant(s)

Versus

Mahindra & Mahindra Financial Service Limited - Opp.Party(s)

Jasbir Singh

14 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 178 of 2019

                                                          Date of instt.28.03.2019

                                                          Date of Decision 14.02.2020

 

Smt. Harvinder Karu, aged 49 years, wife of Shri Manjeet Singh, resident of House no.288/2, Arjun Nagar, Karnal (Adhar no.551045199385)

 

                                                 …….Complainant.

                                              Versus

 

1. Mahindra & Mahindra Financial Services Ltd.  (Mahindra Finance) SCO 87-88, 2^nd floor, Mahila Ashram Complex, Karnal through its Branch Manager.

2.  M/s Karan Automotives, 101, Mile Stone, G.T. Road, Kohand, District Karnal through its Authorized Person.

3. The New India Assurance Company Limited through its Divisional Manager, G.T. Road, opp. Bus Stand, Karnal.

 

                                                                        …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Jasbir Singh Advocate for complainant.

                   Shri Dheeraj Sachdeva Advocate for OP no.1.

                   Shri B.K. Jindal Advocate for OP no.2.

                   Shri Narinder Chaudhary Advocate for OP no.3.

                                              

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainant had purchased a truck bearing R.C. no.PB-11-CP-1489 from OP no.2. The complainant obtained a loan of Rs.27,90,000/- on the said truck vide agreement dated 31.07.2018 and the premium of the said truck was fixed as Rs.64,630/- as EMI for a period of 60 months. At the time of raising the loan the official of the OP no.1 got signatures of the complainant on several blank papers, Pronote, blank cheques, Printed Blank Papers, stamp papers etc. as well as signed blank cheques from the saving ban account of the complainant, which were unfilled and undated. The complainant was paying the installment of the said loan amount to OP no.1 regularly. On 13.12.2018 the said truck met with an accident within the area of P.S. Sahapura (Rajasthan) and in this regard a DDR no.063 dated 14.12.2018 was registered in this regard. The complainant intimated the OP no.3 and OP no.3 appointed the surveyor Shri Sandeep Khanna, who conducted the survey of the damaged vehicle there and he charged Rs.3200/- from the complainant. After the accident the truck was brought to Panipat through crane for its repair and the complainant paid Rs.21,000/- as crane charges to the Balnath Crane Services, Kotputli (Rajsthan) on 15.12.2018.The truck brought into the workshop of OP no.2 for repair. The truck was got repaired there and the truck was remained there for about 3 months in the workshop of OP no.2. The complainant alongwith her husband visited the workshop of OP no.2 so many times for taking back the said truck but the officials of the OP no.2 told that the truck is not completely repaired and postponed the matter on one pretext or the other. On 18.03.2019 the OP no.2 handed over the possession of the said repaired truck to the complainant. OP no.2 has charged Rs.15,000/-from the complainant and also demanded Rs.10,000/- more from the complainant. In lieu of that amount the OP no.2 did not give the stepnie to the complainant. It is the liability of OP no.3 i.e. insurer of the truck to pay Rs.25,000/-. Without stepnie the truck is not running on the road. Due to this reason the aforesaid truck is lying stationed at the house of the complainant. Due to this reason complainant failed to deposit the installment of truck to the OP no.1 as the truck was not got repaired within time and the truck was not in road worthy condition. Now the official of the OP no.1 threatened the complainant either to deposit the four installments of the truck in one time, otherwise they will snatch the truck in question from the complainant and will alienate the same to any other person. If they succeed in doing so then the complainant would suffer an irreparable loss and injury. The truck is being plied for earning her livelihood. The complainant and her husband has no other source of income except the aforesaid truck. The OP no.2 also threatened the complainant that they will misuse the blank cheques which are in their possession by filing the amount as per their desires. Due to this act and conduct of the OP no.2, the complainant has suffered huge loss as four months installment from December, 2018 to March, 2019 i.e. Rs.2,58,520/- (64,630x4), Driver salary Rs.1,20,000/- (30,000x4), loss of vehicle deficiency (age of vehicle Rs.1100x120 days =Rs.1,32,000/-, loss of permit Rs.20,000/- and loss of income Rs.1,00,000/- total amount of Rs.6,30,520/- . In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability and pecuniary jurisdiction. On merits, it is pleaded that complainant got finance one commercial vehicle and an amount of Rs.27,90,000/- was financed and disbursed on 31.07.2018 and tenure was for 59 months and monthly installment was Rs.64,630/- and agreement value is Rs.38,13,170/- from Mahindra and Mahindra Financial services and using the same for commercial purposes not for his own use. It is also submitted that as per the statement of accounts prepared by the company in the ordinary course of its business and amount of Rs.3,22,950/- is pending towards the arrears of installment pending and Rs.45517/- additional financial charges i.e. are the penalty of delay payment of Rs.3,22,950/- @ 3% per month and future Balance outstanding Rs.31,02,240/- is pending as per the statement of account of present status dated 23th July, 2019. So this Forum has no pecuniary jurisdiction to entertain the present complaint. It is further pleaded that in the present complaint the amount disbursed to the complainant was Rs.27,90,000/- and as per section 11 of the C.P. Act this Forum has no pecuniary jurisdiction to entertain the present complaint. It is further pleaded that the complainant purchased and got financed the truck in question and using the same for commercial purpose, so complainant has not come under the definition of consumer.  There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 filed its separate written version raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is admitted fact that OP no.2 sold the vehicle to the complainant. OP no.2 received an accident vehicle no.PB-11CP-1489 on 19.12.2018. After receiving the accident vehicle, the OP no.2 immediately Shri Anil Kumar Bhola, Surveyor of the Insurance company through email. The detail of the vehicle was also given to the insurance company. On 20.12.2018, at about 7.23 p.m. the OP no.2 received a mail from the insurance company regarding appointment of the surveyor who mentioned the facts in the said mail regarding estimated loss of Rs.12,39,007/-. On 27.12.2018, the officials of the insurance company given a writing that “kindly hold the repair just until production of GR/road challans and estimate of claim.” The said letter was signed by Shri Aditya. After that OP no.2 sent a mail to the official of the insurance company on 08.01.2019 with the subject “Please find attachment of estimate of PB-11-CP-1489 load body and cabin repair and please give me approval vehicle dismantle.” Meaning, thereby, till 08.01.2019, the OP no.2 did not receive any final approval regarding the repair of the vehicle in question. OP no.2 again sent a mail on 02.08.2019 at about 2.35 p.m. to Shri Dinesh Gopal regarding Re-inspection of the vehicle. The official of insurance company came on 09.03.2019 and the final bill was submitted by the OP no.2 on 10.03.2019 to the company and vehicle was delivered to the complainant. It is further pleaded that the actual bill raised by the OP no.2 to the tune of Rs.8,76,934/- on account of the repair of the vehicle. Out of the same, the insurance company accepted to pay a sum of Rs.7,89,439/-. The remaining amount of Rs.62,495/- which was payable by the complainant but against that, the complainant paid only Rs.25,000/-. OP no.2 waived off the remaining amount out of Rs.62495/-. It is further pleaded that there is no delay on the part of the OP no.2 regarding the repair of the vehicle in question. There is no deficiency in service on the part of the OP no.2. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 in his reply stated that the complainant has not come before this Forum with clean hands and concealed the true and material facts. It is stated that nothing is due against the OP no.3 and only OPs no.1 and 2 are responsible to make payment of compensation to if any, the complainant is entitled. It is further stated that the name of the OP no.3 has unnecessary been impleaded as such the name of OP no.3 is to be deleted from the array of the OPs. There is no deficiency in service on the part of the OP no.3. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Complainant tendered into evidence her affidavit Ex.CW1/A and documents Ex.c1 to Ex.C12 and closed the evidence on 18.12.2019.

6.             On the other hand, OP no.1 tendered into evidence affidavit of Anurag Sharma Ex.OP1/A  and documents Ex.OP1 and Ex.OP2 and closed the evidence on 23.01.2020.

7.             OP no.2 tendered into evidence affidavit of Karan Ex.RWx/A and documents Ex.RWx/B to Ex.RWx/G and closed the evidence on 23.01.2020.

8.             OP no.3 tendered into evidence copy of insurance policy Ex.OP1 and closed the evidence on 23.01.2020.

9.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.            The case of the complainant in nutshell is that she is owner of truck bearing registration no.PB-11-CP-1489 and same was met with an accident on 13.12.2018. In this regard, a DDR no.063 dated 14.12.2018 was got registered. Truck in question was brought in the workshop of OP no.2 through crane for its repair. Intimation was also given to OP no.3 and a surveyor was appointed. OP no.2 assured the complainant that truck will be repaired within 15 days but the same was kept by the OP no.2 with its possession at about 3 months. Due to that, the complainant did not pay the EMI of loan amount to OP no.1 and also suffered loss of income etc.

11.            The case of the OP no.1, in brief, is that OP no.1 is financer and no relief has been claimed by the complainant from OP no.1.

12.            The case of the OP no.2, in brief, is that admittedly the truck in question was brought with OP no.2 for repairing and there is no delay in repairing the truck on the part of the OP no.2. The OP no.2 received a truck for repairing on 19.12.2018. Intimation was given to OP no.3. The OP no.2 received noting Ex.RWx/D on 27.12.2018 from the OP no.3 with the remarks that “kindly hold the repair just until production of GR/road challans and estimate of claim.”  Thus, the OP no.2 has stopped the repair work of the truck in question on the instruction of the OP no.3 i.e. insurer of the truck in question.

13.            The OP no.3 has evasively denied the facts of the complaint and prayed for dismissal of the complaint. It has also submitted that any fault, if any, is on the part of the OPs no.1 and 2.

14.            Admittedly, the truck in question met with an accident during the subsistence of the insurance policy. It is also admitted that the truck in question was remained in the workshop of OP no.2 for its repairing at about 3 months. The accidental claim has already been paid by OP no.3 to the complainant. Only dispute is with regard to installments of four months, driver’s salary, loss of vehicle deficiency, loss of permit and loss of income, total amounting to Rs.6,30,520/-.

15.            It is not disputed that truck in question was lying with OP no.2 at about 3 months. The repair work was to be done within 15 days as per the assurance of OP no.2 but OP no.2 did not do so as it has received noting Ex.RWx/D written by Aditya ISLA of OP no.3 with regard to holding of repair work of the truck in question. This fact was not denied by the OP no.3. The truck in question was lying parked with the workshop of OP no.2 for about 3 months and complainant suffered loss of income and did not pay the monthly installments of the truck to the financer of truck in question. He also suffered loss of salary of the driver. Thus, we are of the considered view that since the repairing work of the truck in question was stopped on the instruction of OP no.3 without any cogent reason, therefore, OP no.3 is liable for compensating the complainant.

16.            The complainant claimed Rs.6,30,520/- which is on the higher side. In our opinion, it would be justified if the complainant is to be compensated of amounting to Rs.1,00,000/- as compensation for financial loss incurred due to wrong act committed by OP no.3.

17.            Thus, as a sequel to abovesaid discussion, we partly allow the present complaint and direct the OP no.3 to pay Rs.1,00,000/- to the complainant for harassment, loss suffered by the complainant  including litigation expenses. This order shall be complied with within 30 days from the receipt of copy of this order. However, OP no.3 at liberty to recover the said amount from the erring officer who has given the noting to stop the repair work of the truck in question without any reason. It is made clear if the abovesaid amount is not paid within stipulated period then this amount will carry interest @ 9% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 14.02.2020                                                                      

                                                                      President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

 

         (Vineet Kaushik)         (Dr. Rekha Chaudhary)

            Member                         Member