Complaint filed on: 09-08-2016                                                      Disposed on: 10-08-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.110/2016

DATED THIS THE 10^th DAY OF AUGUST 2017

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -           

Mohan Kumar

S/o. Gangadharaiah

Aged 45 years,

R/at D.Kalkere village,

Dandinashivara hobli,

Turuvekere taluk, Tumakuru district

(By Advocate Sri.T.P.Mahesh)

                                            V/s

Opposite parties:-    

1.M/s. National Insurance Co. Ltd

TATA Pcbu, Department of Motor

Tie-up business, Royal Insurance Building, 2^nd floor, 14, J.TATA Road, Churchgate, Mumbai,

Maharashtra-38

2.The Assistant Manager,

National Insurance Co. Ltd,

D-1, Mission road, Bengaluru

3.M/s. Prerana Motors,

Yashawanthapura, Bengaluru

4.M/s. Mahindra and Mahindra Financial Service Ltd. Sadhana house, Ground Floor 570, PB Marg, Worli, Mumbai-18

5.The Manager,

National Insurance Co. Ltd

Behind Krishna Theater, MG Road, Tumakuru

(OP No.1, 2 and 5- By advocate Smt.Indiramma.B.S)

(OP No.4 by Advocate Sri.C.Renukesha)

(OP No.3-Exparte)

                                                ORDER

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP Nos.1 to 5, Under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP No.1 to 5 to pay the amount of Rs.3,99,980=00 together with interest @ 18% p.a. to the complainant apart from Rs.2,00,000=00 towards general damage for mental shock and agony, in the interest of justice and equity.

2. The brief facts of the complaint is as under.

          The complainant is the owner of TATA INDICA V2 LSBSIII vehicle bearing No.KA-44-5980, Chassis No.MAT600185 ETC04603 and Engine No.4751D103CVYP14536. The said vehicle was insured with the OP Insurance Company under policy No.253331031140150028048 dated 26-8-2014 and the same was valid from 26-8-2014 to 25-8-2015.

          The complainant further submitted that, the said vehicle was parked by its driver on 4-11-2014 at 6^th cross, Srinagara, Kyathasandra, Tumakuru. The very next day morning, the driver of the vehicle has noticed that, the car was stolen by unknown persons. The driver of the vehicle and his relatives tried their best efforts to trace the vehicle, but it was not found anywhere. Thus on 5-11-2014, the driver of the vehicle was lodged the complaint before the Kyathasandra police station and registered the case in Cr.No.325/2014 under Section 379 of IPC.

          The complainant further submitted that, the complainant had intimated the incident to the OP Insurance Company situated at Subbaiah Road, Bengaluru and the 3^rd OP who is the agent of the OP Insurance Company. The OP Insurance company officers told to produce necessary documents for insurance claim. Then the complainant has submitted required documents to the Insurance Company and 3^rd OP. The OP Insurance Company has instructed to produce the copy of the final report of the concerned police station and the complainant has submitted the copy of the final report. Even after filing of the required documents and police final report, the insurance company has failed to settle the claim amount. .

          The complainant further submitted that, the complainant has taken the loan from the 4^th OP financiers on the said vehicle and also invested a money to get the car. Now the 4^th OP had issued notice to repay the loan amount with interest. Due to non-settlement of the claim by the OP No.1, 2 and 5 since 2014, the complainant had put to damages and loss of both mentally and financially. The act of the OP insurance company shows negligence and deficiency in service in not settling the insurance claim. Thus, the OPs are liable to pay the amount of Rs.3,99,980=00 with interest including general damages of Rs.2,00,000=00 towards mental agony. In this regard, the complainant got issued a legal notice to the OP no.1 and 2 calling upon them to settle the claim, but the OPs have not settled the above said claim. Hence the present complaint is filed.

3. In response to the forum notice, the 3^rd OP has not appeared before the forum and he was called out absent and he has been placed exparte. The OP No.1, 2, 4 and 5 have appeared through their counsel. The OP No.1, 2 and 5 have filed their common objection. The OP No.4 has filed separate objection.

4. The OP No.1, 2 and 5 have filed common objection contending interalia as under:

The complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine. The OPs have admitted the issuance of policy and the period of policy. But the liability and coverage of the risk is subject to the terms and conditions mentioned in the policy. The intimation not made by the complainant immediately to the insurance company office. Further, in the complaint date of intimation and has not produced any endorsement for received the intimation. This is a violation of condition No1. Hence, the question of repudiation of claim does not arise. The complainant nowhere in the complaint stated that, these OPs have repudiated the claim made by him. Hence, there is no cause of action to file the complaint.

The OP No.1, 2 and 5 further submitted that, the averment made in the para no.2 of the complaint is true and correct. Other averments made in the complaint are denied as false and also is not within the knowledge of these OPs.

Without prejudice, the OP No.1, 2 and 5 submitted that, the insured vehicle bearing Reg. No.KA-06-ET-1229 was stolen on 6-2-2016. The complainant lodged a complaint to the jurisdictional police station on 11-3-2016, there is a delay of 36 days in lodging a complaint.

Further, the complainant has not informed the theft of the vehicle to the OPs Company immediately. The complainant had intimated the after lapse of 34 days of the incident i.e. on 16-3-2016 orally. The officers of OPs Company instructed to submit the papers pertaining to the vehicle bearing Reg. No.KA-06-ET-1229. The OP No.1, 2 and 5 further submitted that, the complainant had not intimated the theft of the vehicle either by calling toll free number or by mail regarding loss of vehicle. The complainant has not provided an opportunity to the OPs Insurance Company about the genuine of the case for the investigation. As such, the question of deficiency of service and negligence in service does not arise. There is no cause of action to file the complaint and all other allegations made in the complaint are all denied as false. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity.     

5. In the version, the 4^th OP submitted that, the present complaint filed by the complainant is false, frivolous, misconceived and baseless. The complainant has not come before the forum with clean hands; he is trying to evade payment of monthly instalments of the loan that he has availed from the 4^th OP.  The complaint is not maintainable either in law or on facts and there is no allegations made by complainant against the 4^th OP nor have they sought any specific relief against the 4^th OP. The complainant has illegally tried to make the 4^th OP liable to the compensation sought by them in prayed and the 4^th OP is not liable to pay any compensation to the complainant as there is no deficiency of service provided by the 4^th OP nor is there any allegations to the this effect.

The 4^th OP further submitted that, the complaint is not maintainable against the 4^th OP and is liable to dismissed for mis-joinder of parties. The 4^th OP is a financial institution when had lent money to the complainant to purchase a TATA Indica V2 LS vehicle bearing Reg. No.KA-44-5989. As a lender, the 4^th OP is not responsible for the product or any manufacturing defect or any deficiency of service on the part of the dealer or the insurance company. Even the loan agreement between the complainant and the 4^th OP has laid emphasis on this aspect and the relevant clause is extracted is as follows: 3 (d) The borrower (s) agrees that his/their obligation to repay the loan will not be subject to any change on account of any product failure or its ultimate use. On perusal of the above clause, it is clear that, the 4^th OP is not responsible for the alleged deficiency of service of the OP No.1, 2 and 5. The 4^th OP is neither a proper party nor a necessary party in these proceedings. The complainant has undertaken not to withhold payment of the monthly instalments, but has since Oct.2014 not made any payment to the 4^th OP.

The 4^th OP further submitted that, the 4^th OP is one of India’s non-banking finance company. Through a vast network of branches, they provide personalized finance for the widest range of utility vehicles; they provide personalized finance for the widest range of utility vehicle, tractors and cars, focusing on the rural and semi-urban sector. The 4^th OP gives utmost importance to customer care and service.

The 4^th OP further submitted that, the complainant approached the 4^th OP to finance him in purchasing a TATA Indica V2 LS car (vehicle). After understanding the terms and conditions of the loan agreement, the complainant came forward and requested the 4^th OP to grant him a loan of Rs.3,30,000=00. The parties entered into a loan agreement dated 28-8-2014 bearing account no.3298867 to be repaid in 48 equal monthly instalments of Rs.95,000=00 commencing from 5-9-2014 and closing at 5-8-2018. The loan agreement is signed by the 4^th OP’s authorized signatory, the complainant as borrower along with a co-borrower cum guarantor. After making necessary deductions towards the first instalment a sum of Rs.3,30,000=00 had been disbursed to M/s. Prerana Motors Pvt. Ltd. and M/s. Prerana motors was directed to release the vehicle to the complainant.

The 4^th OP further submitted that, the complainant has made payment of his EMI regularly for the first two months thereafter the complainant has stopped making payments since Nov.2014. In this regard, the 4^th OP recalled the loan vide notice dated 3-12-2015 and invoked the arbitration clause in the said agreement and initiated arbitration proceedings.

The 4^th OP further submitted that, the 4^th OP is neither a proper party nor a necessary party in these proceedings. There is neither any allegation against the 4^th OP nor is any specific relief sought them and the one sought for is not maintainable. The 4^th OP is not performed any deficiency in service. Since the said vehicle is hypothecated to the 4^th OP, any payments made by the OP Nos.1, 2 and 5 shall be made to the 4^th OP. As on the date, the complainant is liable to pay the 4^th OP a sum of Rs.5,55,715=00. The insurance money paid by the OP No.1, 2 and 5 is less than the sum to be paid by the complainant to the 4^th OP will initiate appropriate action against the complainant to recover the balance due. However, there is no deficiency in service provided by the 4^th OP and all monies to be paid in connection with the theft shall be directly paid to the 4^th OP as the said vehicle is hypothecated to the 4^th OP. The complainant is liable to the 4^th OP, all balance if any over and above the claim amount to be received from the OP No.1, 2 and 5. Other averment made in the complaint is not within the knowledge of the 4^th OP. Hence it is prayed to dismiss the complaint with exemplary cost.

6. In the course of enquiry in to the complaint, the complainant and the OP No.1, 2 4 and 5 have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents which were marked as Ex-P1 to C18.  The OP No.1 2 and 5 have produced documents which were marked as Ex-R4 and Ex-R5. The 4^th OP has produced documents which were marked as Ex-R1 to R3. We have heard the arguments of both parties and pursed the documents and then posted the cases for order.

7. Based on the above materials, the following points will arise for our consideration.

1.      Whether there is deficiency in service on the part of the OPs as alleged by the complainant?

2.      What Order?      

8. Our findings on the above points are;

                    Point no.1: In the negative  

                    Point no.2: As per the final order below.

REASONS

          9. On perusal of the pleadings of the complaint, objections of the OPs and documents of both parties, it is an admitted fact that, the complainant is the owner of TATA Indica V2 LSBSIII vehicle bearing Reg. No.KA-44-5980 and the said vehicle was insured with the OP No.1,2 and 5 insurance company vide policy No.25331031140150028048 dated 26-8-2014 and the same was valid from 26-8-2014 to 25-8-2015. It is also admitted fact that, on 4-11-2014 the complainant’s driver was parked the above said vehicle at 6^th Cross, Srinagara, Kyathasandra, Tumakuru and the very next morning, the said vehicle was stolen by unknown person. The complainant’s driver was lodged the complaint before the Kyathasandra police station on 5-11-2014 and registered the case in Cr.No.325/2014 under section 379 of IPC.

          10. The main contention of the complainant is that, immediately after the theft of vehicle, the complainant has intimated the said incident to the insurance company situated at Subbaiah Road, Bengaluru. And the OPs Insurance Company told to the complainant to produce necessary documents for insurance claim. As per the instructions of the OPs, the complainant has submitted the required documents well in time to the Insurance Company and the 3^rd OP, but the OPs have not settled the claim of the complainant. To substantiate the above said facts, the complainant has not produced any piece of documentary evidence to prove his case that, he has intimated the above said incident to the OPs Insurance Company and also he has made the insurance claim to the OPs Insurance Company.

          11. On the other hand, the counsel appearing for the OP No.1, 2 and 5 Insurance Company submitted that, the complainant has not intimated the theft of the vehicle through by calling toll free number or by mail of the OPs Insurance Company immediately. The complainant has not submitted required documents for claiming the insurance amount and also he has not produced any relevant documents before the OP No.1, 2 and 5 Insurance Company. The complainant has not made any claim before the OPs Insurance Company. Hence there is no negligence and deficiency in service on the part of the OP No.1, 2 and 5 Insurance Company.

12. On perusal of the documents produced by the complainant, it is no doubt true that, the theft of the vehicle of complainant took place on 4-11-2014. The complainant has given the complaint to the jurisdictional police on 5-11-2014 and got registered the case. The complainant has produced legal notice/Ex-P7 dated 9-6-2016 issued by the complainant to OPs calling upon them to pay Rs.3,99,980=00 plus interest from 5-4-2014 and Rs.2,00,000=00 towards general damages within 15 days from the date of receipt of this notice and pay Rs.2,000=00 toward charge of this notice. In the said legal notice, the complainant has not explained on which date, he made claim to the OPs along with relevant documents. The entire copy of legal notice is ominous silent on this vital aspect. The complainant has not satisfied the forum with documentary evidence, on which date he submitted his claim form to the OPs calling to grant a sum of Rs.3,99,980=00 along with relevant documents. In the absence of the producing any convincing documentary evidence, the only presumption to be drawn by the forum is that, the complainant has intimated the OPs late and not immediately.

13. The OP No.1, 2 and 5 have produced the terms and conditions of the policy/Ex-R4. As per the condition No.1 of policy, it is made clear that, it is mandatory on the part of the complainant to give notice to the insurance company immediately. In this regard, the Ops insurance company has produced the Hon’ble National Consumer Disputes Redressal Commission, New Delhi judgment 2013 NCJ 153 (NC) in the case of National Insurance Co. Ltd. –vs- Surender wherein it is held that, if the vehicle has been stolen, the obligatory on the part of the complainant to intimate about the theft of vehicle to the insurance company immediately. 

14. So looking to the averment of the complaint and relevant policy condition, i.e. condition No.1, it is no doubt true that, the complainant has not informed to the insurance company immediately after the incident of theft of the vehicle and there is breach of condition by the complainant. The oral evidence of the complainant to effect that, he has immediately informed the insurance company about the theft of the vehicle and also made claim with the OPs Insurance Company is not corroborated by any documentary evidence.

15. In fact, Insurance policy taken by the complainant is contract between the complainant and OPs/Insurance Company and both parties must act in accordance with the terms and conditions of the policy. If there is any violation of terms and conditions of the policy, the complainant will not come to rescue of the OPs/Insurance Company. Moreover, the complainant has not intimated the theft of the vehicle immediately and also he has not made his claim to the insurance company immediately after the theft of the vehicle. The complainant has not acted strictly in accordance with the terms and conditions of the policy. The complainant has not produced any documentary evidence that, he has intimated the theft of the vehicle immediately to the insurance company. Accordingly, we hold that, the complainant has failed to prove this point with believable material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs. Accordingly, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

        The complaint filed by the complainant is hereby dismissed. No costs.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the Open Forum on this, the 10^th day of August 2017)

LADY MEMBER                                  PRESIDENT