D.o.F:23/11/2010
D.o.O:16/8/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO. 240/10
Dated this, the 16th day of August 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
Nazar, S/o Bava,
Puthiyapattillath, Kannamkulam, : Complainant
Cheruvathur,Kasaragod.
(Adv.Shukkur,Hosdurg)
1. Manager,United India Insurance Co.Ltd,
PB.No.29,Temple Road,Payyanur Po,
Kannur. : Opposite parties
(Adv.C.Damodaran,Kasaragod)
2. Manager, Manappuram General Finance &
Leasing Ltd, Zenabir Plaza, Ram Nagar Road,
Kottachery,Kanhangad.
(Adv.P.V.Jayarajan,Kasaragod)
ORDER
SMT.P.RAMADEVI : MEMBER
The complainant, Nazar is a driver by profession, availed a loan of ` 1,01,000/- from 2nd opposite party to purchase a Bajaj Mega Diessel autorikshaw bearing reg.No.KL 14F 3626 and entered into a hypothecation agreement with 2nd opposite party. As per the terms of the agreement the complainant has to remit monthly instalments of ` 4092/- for 24 months and ` 3967/- for 12 months including insurance premium. Due to financial stringency the complainant paid only 24 monthly installments. On 11/12/08 the vehicle was stolen. The same is intimated to the Chandera police and both the opposite parties. The Chandera police had registered the case and filed FIR and after investigation the police filed the final report before the court on 28/8/09 stating that the vehicle is undetected. Then the complainant had submitted all the documents relating to the vehicle as required by the Ist opposite party, the united India Insurance Co.Ltd. But the Ist opposite party is not ready to pay the insurance amount without submitting Form 35 signed by 2nd opposite party, the financier as per M.V.Rule 61(1). Even though the complainant approached the 2nd opposite party for obtaining Form35 but they refused to sign the Form 35 since the loan account is not settled by the complainant. According to the complainant ,the 2nd opposite party is asking exorbitant amount instead of `39670/- with interest and additional interest. Hence this complaint is filed for necessary reliefs.
2. Opposite parties filed their separate versions. According to Ist opposite party they have not repudiated or settled the claim for want of Form 35. But they admit that when the vehicle is subject matter of finance, insurance claim amount as per policy condition is payable to the financier only or else Form 35 should be submitted by the insured to get compensation and also said that the complaint is a premature one.
3. 2nd opposite party denied all the allegations made against them by the complainant. As stated, they entered in to a hypothecation agreement with the complainant and as per the terms of the agreement the complainant was irregular in repaying the loan amount . According to 2nd opposite party the complainant has failed to comply the terms and conditions of the loan agreement which is approved by the complainant. It is further submitted that as on 7/3/08 itself a sum of `13090/- was due from the complainant towards the monthly instalments. The amount claimed by the 2nd opposite party is arrived as per the terms and conditions of the loan agreement. It is further submitted that the complainant has not paid all the due amount and so the 2nd opposite party is not supposed to sign Form 35 as the first charge in respect of the insurance claim is with the financier. It is further submitted that in order to get the benefit from the insurance company ,the complainant has to clear the dues with this opposite party and then only the complainant can insist for clearance by way of Form 35.
4. Here the evidence consists of the evidence of PW1 , the complainant and Exts.A1 to A4 documents marked. The opposite parties have not adduced any oral evidence but Ext.B1 marked.
5. After considering the facts and circumstances of the case we are of the opinion that there is no deficiency in service on the part of opposite parties. Here the theft of the vehicle and claim of the complainant is admitted by both the opposite parties. On the other hand the complainant is also admitting the fact that that he is liable to pay the loan amount to the 2nd opposite party. He also admits that Form 35 is an essential document for getting the claim from Ist opposite party since the vehicle is hypothecated with the financier. Here what is remaining to be settled the rate of apportionment of claim amount to the complainant and to the 2nd opposite party by the 1st opposite party.
6. Here the claim amount is considered as the IDV of the vehicle as on the date of accident is ` 84000/- less depreciation of an amount of ` 5000/-. Hence the amount payable by the Ist opposite party, the United India Insurance Co. is `79,000/-. Then what is the amount which the 2nd opposite party entitled is as per Ext.A1 the complainant has paid 26 instalments. Then he has to pay the remaining 10 instalment of ` 3967/- each amounts to `39670/- and this amount includes interest also. But the 2nd opposite party is entitled to get interest from 7/1/09 the last date of due. The interest is fixed as 12% per annum and the 2nd opposite party is entitled to get 12% interest for the defaulted amount. The complainant is entitled to get the balance after deducting the amount due to 2nd opposite party.
Therefore the complaint is allowed and from ` 79,000/- the 1st opposite party , United India Insurance Co. is directed to pay `39670/- + interest @12% per annum from 7/1/2009 till the date of payment to the 2nd opposite party and the 1st opposite party is further directed to pay the balance amount after deducting the amount payable to the 2nd opposite party as per this order to the complainant. Time for compliance is 30 days from the date of receipt of copy of the order . There is no order as to cost.
Exts:
A1- copy of instalment distribution
A2- 13/11/10-letter from 2nd OP
A3-27/10/10- do-
A4-regd envelop
B1- copy of FIR
PW1- Nazar- complainant
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
Eva /Forwarded by Order/
SENIOR SUPERINTENDENT
