BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of January, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.228/2008

Between

Complainant : Babu.P.Kuriakose,

Pallathukudy House,

Adimali P.O, Pin 685 561,

Idukki District.

(By Adv: K.M.Sanu)

And

Opposite Parties : 1. The Manager,

Tata Finance,

Pulimoottil Buildings,

M.G Road,

Ernakulam.

(By Adv: Jose Thomas)

2. The Manager,

Tata Motor Finance,

Housing Board Complex,

Kattappana P.O.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant is the owner of a Tata lorry bearing Reg.No.KL-7M-4273. It was having vehicle loan from the opposite party and created a hypothecation agreement with the Ist opposite party. The original records and insurance policy of the vehicle were kept in the custody of the opposite party. On 13.05.2003 the insurance policy of the vehicle was expired. So the complainant deposited Rs.7,000/- in his bank account for the payment of the insurance premium and it was withdrawn on 7.05.2003 by the opposite party. On 22.05.2003 the vehicle met with an accident at Kallarkutty. A crime was registered by the Adimali Police as Crime No.141/03 and the vehicle was in the custody of Adimali Police. So the complainant requested the opposite party on 27.05.2003 for getting a copy of the original insurance policy for releasing the vehicle from the police station. But the opposite party supplied a copy of the insurance certificate commencing from the date 27.05.2003. So the complainant revealed that the opposite party deliberately delayed in renewing the policy after receiving the amount from the complainant and that was agreed by the opposite party also. The injured persons filed a case before the MACT, Thodupuzha for getting the claim amount and this matter was informed to the opposite party also. The opposite party assured the complainant that the award amount will be given to the complainant by the opposite party. But the opposite party never intended to deposit the amount and so the complainant filed a petition before the Hon'ble High Court of Kerala. Now it is pending there. So the petition is filed for getting the award amount by the MACT against the complainant and also for compensation.

2. As per the written version, the opposite parties admitted that the complainant received a loan of Rs.1,25,000/- from the opposite party by a hypothecation agreement bearing No.328739. As per the agreement the complainant was bound to get the vehicle insured with an immediate effect

(cont...2)

- 2 -

and the complainant was liable to renew the insurance of the vehicle in time. It is denied that there has been any withdrawal of Rs.7,000/- from the complainant's bank account on 7.05.2003 as alleged. The complainant has never engaged the opposite party company for getting the insurance of the vehicle or its renewal. The delay in renewal of the insurance policy of the vehicle was not on account of any mistake on the part of the opposite party. The complainant never informed the opposite party company about any case filed and the opposite party never assured the complainant to pay any amount as may be awarded. The complainant himself is the registered owner of the vehicle in question. So the responsibility of the complainant, being the registered owner himself, to get the vehicle insured. So the petition may be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P6 marked on the side of the complainant. 2^nd opposite party was absent and was called exparte. No oral evidence adduced by the Ist opposite party.

5. The POINT :- The complaint is filed for getting compensation for the loss caused to the complainant because of the lack of the insurance policy. The complainant was examined as PW1. The complainant was regularly paying the monthly instalments of the loan availed from the opposite party, which is Rs.7,600/- per month. The original passbook of the complainant is marked as Ext.P6, in which the complainant was depositing the instalments in his bank account and the opposite party was withdrawing the monthly instalments through cheque leaves. On 27.05.2003, PW1 sent a letter to the opposite party stating that the vehicle met with an accident on 22.05.2003 at Kallarkutty and the Adimali Police has registered a crime as Crime No.141/03. Hence the insurance certificate is required for releasing the vehicle from the police station. So a letter was given to the opposite party by the complainant for the same, copy of the same with postal receipt is marked as Ext.P2. Ext.P3 is the letter issued by the complainant to the opposite party stating that the policy issued by the complainant was with effect from 27.05.2003 and the opposite party negligently failed to renew the policy from 13.05.2003. It is also stated that the opposite party will be liable to compensate the injured, in case the injured files any claim for compensation. Ext.P5 is the order from the Hon'ble High Court of Kerala dated 4th August, 2008 in the appeal filed by the complainant against the award of the MACT, Thodupuzha. The Hon'ble High Court of Kerala awarded a compensation of Rs.73,580/- with 6% interest from the date of petition till realisation. So the complainant and one another person, he may be driver of the vehicle were responsible for the accident and compensation was awarded against them. As per the cross examination of the learned counsel for the opposite parties, the complainant never informed the opposite party about the case in the MACT against the complainant. The complainant is liable to pay the insurance amount as per the loan hypothecation agreement. As per PW1 he has paid Rs.1,25,000/- as per the order of the Hon'ble High Court of Kerala. As per Ext.P6 pass book, the loan instalment is Rs.7,600/- and it was paying by the complainant properly before the 5th of every month and there is no dues in the instalments as per Ext.P6. The opposite party contended that Rs.7,000/- received by the opposite party is the loan instalment and not the insurance policy amount. But we think that there is no dues in the instalments of loan received by the complainant. He was paying Rs.7,600/- per month as monthly instalment within 5th of every month. On 7.05.2003 Rs.7,000/- was withdrawn by the opposite party by a cheque No.538 and demanded that it was the dues of an instalment of the loan. The opposite party had withdrawn Rs.7,600/- from the complainant's bank account on 5.05.2003 as loan instalment and there is no reason to disbelieve the version of PW1. If a vehicle is subject to hire purchase agreement, the owner of the vehicle will be considered as the finance company or the bank and not the registered owner. So the hire purchaser has the liability to pay the insurance premium promptly. Ext.P2 notice was sent on 27.05.2003 and the insurance premium is paid on 27.05.2003. The opposite party never challenged the Ext.P6 pass book produced by the complainant. So there is gross deficiency in service on the part of the opposite party in paying the insurance premium of the complainant's vehicle and the opposite party is liable to compensate for the same. As per the order of the Hon'ble High Court of Kerala, the complainant and one another person is liable to compensate for the injuries sustained in the accident of the vehicle as per Ext.P4 judgement. So we think that the opposite party must pay the half of the amount paid by them as compensation for the award of MACT, which is paid by the complainant. The complainant has stated that he paid Rs.1,25,000/- as per the order of Hon'ble High Court of Kerala which is also not challenged by the opposite party.

Hence the petition allowed. The opposite parties are directed to pay half of the amount paid by the complainant as compensation for the award of MACT to the complainant and Rs.3,000/- as cost of this petition within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30th day of January, 2010

sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

sd/-

I agree SMT.SHEELA JACOB(MEMBER)

I agree SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Babu Kuriakose

On the side of Opposite Parties :

Nil

Exhibits:

On the side of Complainant:

Ext.P1 - Photocopy of Pass Book of Complainant

Ext.P2 - Carbon copy of complainant's letter dated 27.05.2003 addressed

to the Ist opposite party with postal receipt

Ext.P3 - Carbon copy of complainant's letter dated 29.05.2003 addressed

to the Ist opposite party

Ext.P4 - Photocopy of Order in I.A No.2114/06 in M.A.C.A No.1910/06

(OP(MV) No.764/03 of MACT, Thodupuzha)dated 6.11.2006

before the Hon'ble High Court of Kerala, Ernakulam

Ext.P5 - Photocopy of Order in OPMV.764/2003 dated 4.08.2008 before

the Hon'ble High court of Kerala, Ernakulam

Ext.P6 - Original Pass Book of complainant

On the side of Opposite Parties :

Nil