BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/ 885 of 11.10.2010 

                                                Decided on:          26.9.2011

Dalbir Singh son of Kirpal Singh resident of village Paharpur, P.S.Samana, District Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 M/s Chola Mandlam, DBS Finance Limited(Formerly Chola Mandlam Investment Finance Co. Ltd.) through its Manager, having registered Office “Dare House”, No.2, N.S.C. Bose Rod, Parrys,Chennai.

2.                 M/s Chola Mandlam, DBS Finance Limited (Formerly Chola Mandlam Investment Finance Co.Ltd.), through its Branch Manager, Leela Bhawan Market, Patiala.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Sh.Amarjit Singh Dhindsa, Member

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sumesh Jain, Advocate

For opposite parties:     Sh.Vikas Mittal, Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

          The complainant entered into an agreement with the ops for the purchase of vehicle make Mahindra Bolero SLX and it was provided that ops will get the vehicle insured from the insurance company every time till the loan amount stands un paid.

2.       After availing of the loan facility the complainant had been depositing the monthly installment of Rs.12263/- w.e.f.23.2.2008 to 1.3.2009.

3.       The said vehicle bearing   registration No.PB 11AK 1112 was stolen on 1.3.2009 at Bhiwani (Haryana) and the complainant had lodged the report vide FIR No.64 dated 2.3.2009 under Section 379 IPC with P.S.Civil Lines Bhiwani. The complainant immediately informed regarding the theft of the vehicle to the ops.

4.       It was provided under the agreement that the ops will get the vehicle insured and therefore, the complainant had to do nothing in that regard. It was also made clear that the cover note of the insurance will be handed over to the complainant at the relevant time. However, the ops failed to get the aforesaid vehicle insured. Therefore, the complainant could not get the benefit regarding the loss of the vehicle and thus the complainant has suffered a loss at the hands of the ops.

5.       Thus, describing the act of the ops in not having got the vehicle insured as a deficiency of service, the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) for a direction to the ops to compensate the complainant with a sum of Rs.one lac on account of the harassment and the mental agony suffered by him at the hands of the ops and further to award him the compensation of Rs.3lacs in respect of the loss of the vehicle.

6.       On notice, the ops appeared and filed the written statement. It is admitted by the ops that the complainant had availed of the finance facility for the purchase of the vehicle make Mahindra Bolero SLX from the ops, in respect of which an agreement was arrived at between the complainant and the ops. It is however, denied if it was agreed that the ops had to get the vehicle insured every time till the period the loan amount was not paid. No such condition was arrived at in the agreement between the parties. It is denied if the ops failed to get the vehicle insured and therefore, the complainant could not get the benefit regarding the loss of the vehicle on account of the theft of the same.

7.       It is further averred that as a matter of fact the complainant is a defaulter as he has not been paying the installments and as on 30.11.2010, he was due to pay an amount of Rs.3,63,782/- outstanding in his account. After denouncing the other averments of the complaint, going against the ops, it was prayed to dismiss the complaint.

8.       The parties have led the evidence. We have heard the learned counsel for the parties and gone through the evidence on record.

9.       Ex.R2 is the copy of the agreement dated 23.2.2008 arrived at between the complainant Dalbir Singh and op no.1 regarding the purchase of the vehicle make Mahindra Bolero SLX under a hire purchase agreement made with the ops.

10.     The relevant part of the agreement is found contained under article 9 pertaining to the insurance and maintenance. Clause 9.1 of article  provides, “ Immediately upon execution of this agreement and until release of the Asset from hypothecation, the borrower shall keep the Asset fully and properly insured at his costs against risks of fire, riots, civil commotions, floods and all such risks to which the asset is normally exposed through necessary comprehensive or other policies of insurance, besides against unlimited third party liability risks”.

Clause 9.3 of article 9 further provides, “ The borrower shall promptly pay all premia and other sums required for keeping the said insurance effective and produce and deliver the certified true copies of the insurance policy and the subsequent renewal certificates there of to the company. The borrower shall assign.endorse to the company every such policy. Each insurance policy shall be in the name of the borrower with the requisite endorsement in favour of the company as “Loss Payee” and additional endorsement in favour of the Company’s Banker, if so required by the company”.

Clause 9.5 of  article 9 further provides, “The company may at its sole discretion get the insurance done on behalf of the Borrower, by being a facilitator and the Borrower shall reimburse the cost of such insurance with interest thereon at 3.5% per month compounded monthly .Nothing herein contained shall be construed as a commitment by the company to keep the asset insured, which shall be the duty of the borrower and no claim shall be made against the company for any loss or damage to the Asset by reason of it remaining uninsured”.

11.     Thus, from the terms and conditions concerning insurance and maintenance contained under article 9  it is made out very clearly that it was the liability of the borrower to keep the asset fully  and properly insured at his costs against risks of fire, riots, civil commotions, floods . Again it shall be the liability of the borrower to pay promptly all premia and other sums required for keeping the said insurance effective and to produce and deliver the certified true copies of the insurance policies and the subsequent renewal certificate there of to the company. Similarly it is made out very clearly that the   company may at its sole discretion get the insurance done on behalf of the Borrower, by being a facilitator and the Borrower shall reimburse the cost of such insurance with interest thereon at 3.5% per month compounded monthly . It is categorically provided under Clause 9.5 that nothing contained shall be construed as a commitment by the company to keep the asset insured, which shall be the duty of the borrower and no claim shall be made against the company for any loss or damage to the Asset by reason of it remaining uninsured.

12.     Therefore, we fail to understand as to how the complainant made an averment in the complaint that the ops had to get the vehicle insured and it is on account of their lapse in getting the vehicle insured that he suffered the loss of the vehicle. Apparently the complaint is based on the averments made by the complainant falsely contrary to the terms and conditions of the agreement,Ex.R2 and therefore, we find no hesitation in dismissing the complaint with costs assessed at Rs.5000/-.

Pronounced.

Dated:26.9.2011

                             Neelam Gupta      Amarjit Singh Dhindsa    D.R.Arora

                             Member                Member                            President