SRI BIJAY KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of illegal repossession of the complainant’s vehicle and reduced payment of insurance claim of the vehicle are the allegations arrayed against the Opp.parties.
2. The allegations in the complaint are in twofold in nature. One is against OP no.1,Manager,Mahindra & Mahindra Finance Ltd. For illegal repossession of the vehicle and another against Royal Sundram Alliance Insurance Co.Ltd.(OP No.2) for payment of reduced claim amount of the damaged vehicle.
Complaint, in a nutshell reveals that complainant being a lady and BPL card holder and a Member of the self-help group purchased a passenger transportation vehicle(Bolero) bearing Regd.No.OD-05-E-1298 which was financed by OP No.1. OP No.1, the financer Company on dt.16.08.2013 financed Rs.5,60,000/-. On the same date complainant paid Rs.14,300/- as repayment of first instalment. It was agreed between the parties that in 55 nos. of monthly instalments @ Rs.14,300/- the dues will be cleared within 5 years starting from November,2013. Accordingly, the complainant-loanee has paid 4 instalments. After purchase of the said vehicle. The complainant made it roadworthy by complying the official formalities and insured her vehicle with OP no.2-Insurance Company. On dt.17.12.13 the said vehicle faced an accident at N.H.5(A) and the vehicle was repaired through the authorized dealer on the instruction of OP No.2. complaint also reveals that on dt.09.05.14 at about 8.30 AM while her vehicle was carrying a patient from Mangarajpur to Bhubaneswar for medical treatment, the people of OP No.1 stopped vehicle ignoring the request of the driver repossessed the vehicle for which the complainant suffers a lot. It is further stated that as the accident faced vehicle remained with the authorized dealer for repairing from dt.19.12.13 to dt.31.03.14, she could not pay the instalments as the vehicle did not run and lost the business. Hence, the repossession of the vehicle by OP No.1 is illegal and deficiency in service.
The second allegation as against OP No.2 Insurance Company. It is stated that complainant insured her vehicle with OP no.2 bearing Policy No.VC00113360000100 and the risk period was covered upto dt.15.08.14. On dt.17.12.13 while the vehicle was coming from Bijayanagar to Puri at N.H.5-A. formalities were maintained as the vehicle was damaged seriously the cost of repair was estimated upto Rs.1,81,000/- as per the report of the Surveyor deputed by OP No.2 and surveyor issued a letter to complainant to pay Rs.61,393/- which was objected by the complainant on dt.19.03.14. Being dissatisfied on the settlement of insurance claim of the damaged vehicle. Complainant was forced to receive the repaired vehicle. In the circumstances, complainant prays that Opp.Parties be directed to exchange a new vehicle replacing the damaged vehicle alongwith Rs.1 lakh with 6 per cent interest per annum from dt.17.02.13 to till realization of the amount as the Ops are jointly and severally liable for deficiency in service.
3. Being noticed OP no.1 finance company appeared through their Ld. Counsel and filed written version into the dispute alongwith Annexures. In the written version OP No.1 raised the question of maintainability of the complaint on different grounds by citing decisions of the Hon’ble Apex Court of the country. Written version reveals that on her own admission complainant states that the vehicle was used for ‘commerccial purpose’ by engaging a driver. So, complainant can not be treated as a ‘consumer’ and the present dispute is beyond the purview of the Consumer Forum. It is raised that as per the terms and conditions of the agreement in Clause No.26. The disputes between the parties relates to Arbitration and Conciliation Act,1996.It is further raised that as there is no branch office of OP No.1 within the territorial jurisdiction of the Forum, hence no cause of action arises within the local limits of the Forum by citing one decision of the Hon’ble Apex Court in Civil Appeal No. 1560 of 2004 reported in 2010(1) CPC 379 in case of Sonic Surgical-Vrs-National Insurance Co.Ltd.. it is further revealed from the written version that as per the loan agreement executed between the parties on dt.26.08.13 complainant is ‘Borrower’ and the OP no.1 is ‘lender’ and OP No.1 citing different terms and conditions of the agreement states and OP no.1 has every right to repossess the vehicle in case of default in repayments. In the parawise reply it states that the total agreement value of Rs.7,26,800/- is payable in 55 monthly instalments starting from dt.26.08.13 to dt.15.02.18 @ Rs.14,300/- per month except the first instalment which is Rs.14,600/-. But complainant being default in repayments and Rs.28,200/- is pending towards instalments and Rs.10,485/- towards delayed payment charges and Rs.6,29,200/- towards future instalments. It is also stated that as per the loan agreement lender is no way concerned with the merits of any claim lodged by the borrower with the insurance company. The allegation of the complainant regarding forcibility taking away of Rs.7,000/- from the driver of the vehicle during time of repossession is false and baseless. As the complainant is a loanee she has to pay her EMIs regularly and the OP No.1 has nothing to do with her personal problems. In the aforesaid facts and circumstances, the complaint is liable to be dismissed against OP No.1.
OP No.2,Divisional Manager,Royal Sundram Alliance Insurance Co.Ltd. appeared into the dispute through Ld. Counsel filed replies alongwith documents by raising the maintainability of the complaint by citing decision of the Hon’ble National commission. On the grounds of maintainability it is submitted that complainant herself speaks that the vehicle in dispute was used for commercial purpose. Further the grievance related to disputed claim amount of Rs.61,393/- of the damaged vehicle can not be adjudicated before this Forum. As per Clause13 of Policy terms any dispute relates to quantum of claim resolved through the Arbitrator as per Arbitration and Conciliation Act,1996. OP No.2 further submits that as the dispute involves complicated question of facts regarding assessment and quantification of loss which requires voluminous evidence through examination of witnesses, on the otherhand C.P.Act provides disputes to be resolved in summary procedure in Foras, hence complaint before Civil Courts are the proper platform to adjudicate the dispute. It is also stated that the complainant insured her vehicle bearing No.OD-05-E-1298 and a policy bearing No. VC00113360000100 was issued to the complainant and the risk period was cover from dt.16.08.13 to dt.15.08.14. The policy certificate alongwith its terms is marked as Exhibit No.1. After receiving the information of accident OP No.2 appointed a Surveyor namely Er. Bibhudatta Ray to assess the loss as per the claim. The claim form is marked asExt.2. Basing on the loss assessment report of the Surveyor OP No.2 paid Rs.1,19,900/- to M/s. Utkal Automobiles Pvt. Ltd. The Survey report is marked as Ext.3. The replies of OP No.2 further reveals that the difference amount of Rs.61,393/- as claimed and paid by the complainant was deducted from the estimate on account of depreciation, Salvage, and other terms and conditions of the policy and complainant has received the vehicle with satisfaction by furnishing a receipt which is marked as Ext.4. OP No.2 further describes the detail assessment of loss as per the policy conditions. It is further submitted that the report of the Surveyor is an important piece of document which can not be ignored if it is otherwise proved. OP No.2 cites a number of decision of the Hon’ble National commission and the Hon’ble Apex Court in this regard. As the amount has been paid to the repairer as basis of the loss assessment made by the independent Surveyor, hence the claim made by the complainant is untenable. OP No.2 further replied that as per the policy condition the OP no.2-Insurance Company is not liable for any ‘consequential loss’ citing the decision of the Hon’ble National Commission in First Appeal No.789 of 2006 between M/s. New Indian Assurance Co.ltd.-Vrs- Sanjiv Basal, wherein his Lordship has held that insurance company has no liability for consequential losses. In the facts and position of law narrated above, OP No.2 prays and seeks dismissal of the complaint.
4. Heard the disputes on merit as the case was posted for hearing as special chance. Ld. Counsel Mr. P.K.Roy for OP No.1 filed hazira, Ld.Counsel for complainant filed time petition,OP No.2 does not take any step today. Parties were absent despite calls. It is an admitted fact that complainant purchased one Passenger Transportation vehicle (Bolero) bearing Regd. No.OD-05-E-1298 being financed by OP No.1 finance company. It is also admitted that the said vehicle was insured with OP No.2-Insurance Company and the vehicle faced an accident on dt.17.12.13 at N.H.5.A. At the time of accident the insurance policy in respect of the vehicle was in force. It is further admitted that a Surveyor was appointed by OP no.2 to assess the loss. The insurance claim amount settled in favour of the complainant’s damaged vehicle is disputed. It is also admitted that the complainant’s vehicle was repossessed by the OP no.1 finance company for non-payment of dues.
Now, it is to be decided here that whether Opp.Parties have committed any deficiency in service as alleged by the complainant. Both the OPP.Parties raised the question of maintainability of the complaint on the grounds that as per her own version the complainant was plying her vehicle for commercial purpose by engaging a ‘driver’ which is excluded from the purview of the consumer Forum. Further the Opp.Parties replies reveals that as per the agreement and insurance policy condition there is express provision that if any dispute arises between the parties same will be resolved through a sole Arbitrator.
In this contentions and on perusal of para 11 & 13 of the complaint petition where complainant admits that she was running the vehicle for ‘commercial’ purpose by engaging a driver. In this regard C.P.Act,1986 is very clear, when a person runs a business for commercial purpose otherthan for maintaining his livelihood he/she can not be treated as a’consumer’U/S-2(d)(ii) of the Act. That apart the complaint is hit by clause of ‘Arbitration’ both on the agreement executed between the complainant and OP No.1 and as per the policy conditions of the OP no.2-Insurance Company. On factual aspect of the case, the vehicle has been repossessed by OP no.1 for non-payment of dues. Para-14 of the complaint petition reveals that as the vehicle remained idle from dt.19.12.13 to dt.31.03.14 on the workshop for its repair after accident, she could not pay the dues as the vehicle was not running and in loss of business. Hence, it is quite clear that complainant was defaulter in respect of her repayment, and the OP no.1 has repossessed the vehicle as per the agreement inspite of the difficulties faced by the complainant. Thus, OP no.1 has not committed any deficiency in service by repossessing the vehicle.
So far the settlement of insurance claim of the damaged vehicle is concerned OP No.2 has followed the procedure by appointing an independent Surveyor and basing on the loss assessment report of the Surveyor, OP No.2 has awarded the claim amount ofRs.1,19,900/- to M/s.Utkal Automobiles for repair expenditure of the vehicle. Further the complainant has received the vehicle with satisfaction. The objection to the settlement of insurance claim is not properly presented before this Forum. In this regard, we are of the opinion that the OP no.2 has acted fairly as per the terms and conditions of the policy, we freed OP no.2 for any such liability of deficiency in service.
O R D ER
Having observations reflected above, the complaint is dismissed on merit on the point of maintainability and on factual aspect.
No order as to cost.
Pronounced in the open Court, this the 20th day of April,2015.
