Presented by Sri B.K.Pati, Member.<br /> The present complaint pertains to deficiency in service as envisaged under the provision of Consumer Protection Act-1986 and its brief fact is as follows:-<br /> The Complainant in order to maintain his livelihood had purchased a TATA-215, Truck bearing Regd No. OR-17-D-4844 being financed by the Opposite Party No.1(a). The vehicle was initially insured by the Complainant personally with the New India Assurance Co Ltd for the period Dt.11/08/2005 to Dt.10/08/2006. The policy was submitted to Opposite Party No.1(a). The vehicle made an accident, claim was lodged with the New India Assurance Company which settled the claim at Rs. 50,500/-(Rupees fifty thousand five hundred)only. The vehicle being under loan agreement the Opposite Party No.1(a) received the settled amount directly from the Insurance Company. The Complainant intended to renew the policy with the same Insurance Company after the expiry of the former policy but he received a letter from the Opposite Party No.1(a) that the Opposite Party No.1(a) has insured the vehicle with the Opposite Party No.2(two) with out prior information or consent of the Complainant. On Dt. 31/08/2006 the vehicle was extensively damaged by fire set to it by an unlawful mob at village Kalinga Nagar of Jajpur District while it was engaged in its business and the Truck turned into a scarp of iron.<br /> <br /> The Complainant lodged a claim before the Opposite Party No.2(two) for reimbursement of the insured amount of Rs.10,00,000/-(Rupees ten lac)only. The Opposite Party No.2(two) vide its letter Dt.07/01/2008 repudiated the claim on the ground that 'NO CLAIM BONOUS' @ 20%(twenty percent) has been availed from the total premium amount while affecting the above policy and declaration made towards the N.C.B. was found to be false since the Complainant has availed a claim from the New India Assurance Company earlier. The Complainant contends that, since the Opposite Party No.1(a) has made the policy with Opposite Party No.2(two) behind the back and without the knowledge and consent of the Complainant he was not aware of the fact as to whether 20%(twenty percent) No Claim Bonous was availed by the Opposite Party No.1(a) while affecting the policy with Opposite Party No.2(two) and in view of the fault committed by the Opposite Party No.1(a) in giving misleading and false declaration in the proposal Form, the claim of the Complainant was repudiated by Opposite Party No.2(two) for no fault of the Complainant on that ground. The Complainant contends that the Opposite Party No.1(a) by affecting the policy without the knowledge and consent of the Complainant and the Opposite Party No.2(two) by accepting the proposal of purchase of the impugned policy, in absence of the Complainant are both equally responsible for the loss sustained by the Complainant and are liable to make good of the loss caused to him. But the Opposite Party No.1(a) repeatedly demanded the repayment of the balance installment amount along with penal and regular interest, although the vehicle was lost due to the fault and false declaration of Opposite Party No.1(a). The Complainant claim that he was regularly paying the installment amount to Opposite Party No.1(a) till the incidence. The Complainant several times approached the Opposite Party No.1(a) to reimburse the loss amount and to take back the scrap of the damage vehicle but the Opposite Party No.1(a) remained silent even after receiving the pleader notice Dt. 28/03/2008 served on the Opposite Party No.1(a) and Opposite Party No.2(two).<br /> <br /> From a pleader notice Dt.07/06/2008 issued on behalf of Opposite Party No.1(b), demanding arrear installment the Complainant came to know that the Opposite Party No.1(a) was subsequently taken over by Opposite Party No.1(b) which is trying to escape the liabilities to reimburse the loss amount to the Complainant.<br /> <br /> The Complainant claims from the Opposite Parties, jointly, and severally a sum of Rs. 10,00,000/- (Rupees ten lac)only and Rs. 50,000/- (Rupees fifty thousand)only for compensation harassment and mental agony.<br /> <br /> The Opposite Party No.1(a) in its version question the maintainability of the complaint on the ground of suppression of material fact and the vehicle being a commercial one under agreement for loan cum hypothetication as well as the Complainant not being a consumer under the provision of the Consumer Protection Act-1986 as regards 'services' which he has availed for commercial purposes. <br /> <br /> It further contends that as per the terms of agreement the vehicle is to be insured by the Complainant for the first year of the agreement period and from the next year insurance should be done by the Opposite Party No.1(a). The Opposite Party No.1(a) had kept the amount of Rs.50,500/-(Rupees fifty thousand five hundred)only towards payment of the loan amount as the Complainant never communicated to this Opposite Party that the said amount was under an insurance claim. The Opposite Party No.1(a) has made the Insurance Policy, with the Opposite Party No.2(two) under good faith and honest belief that no previous claim have been made by the Complainant under any insurance policy for the vehicle because the Complainant had never communicated to this Opposite Party that he had paid Rs.50,500/-(Rupees fifty thousand five hundred)only as insurance claim and the same was taken as the loan amount. The policy was not made behind the back of the Complainant as the Complainant has enough knowledge about the policy as per the agreement and got the insurance policy, from the Opposite Party No.2(two). In fact the Complainant was paying Rs.1,630/-(Rupees one thousand six hundred thirty)only as insurance premium amount to Opposite Party No.2(two). The Opposite Party No.1(one)(a) denies knowledge about the previous claim. It alleges that the loss sustained by the Complainant is due to negligence of the Complainant himself and the Opposite Party No.1(b). The Complainant is a chronic defaulter and has filed this complaint for avoiding I.C.C. Case No.22/92/2009 at Bhubaneswar filed by the Opposite Party No.1(a) against the Complainant. The Opposite Party No.1(a) prays for dismissal of the Complainant with cost.<br /> <br /> The Opposite Party No.1(b) has been set ex-parte.<br /> <br /> The Opposite Party No.2(two) in its version questions the maintainability of the case against it due to lack of cause of action. It admits that the Complainant lodged claim before it for reimbursement of the damage of the vehicle on Dt.31/08/2006 by fire set by unlawful mob near Kalinga Nagar, Jajpur and that it repudiated the claim by its letter Dt. 07/01/2008 on the ground that 'NO CLAIM BONOUS' being false, the Complainant having availed a claim from the New India Assurance Company Ltd.. It denies that the policy was effected by the Opposite Party No.1(a) with this Opposite Party behind the back and without the knowledge and consent of the Complainant and that the Complainant was not aware of the fact as to whether 20%(twenty percent) N.C.B was availed by the Opposite Party No.1(a) while affecting the policy with this Opposite Party. It also denies its responsibility for the loss sustained by the Complainant, and its liability to make good the same. Since a claim was availed earlier from the New India Assurance Company Ltd. and false declaration was made to avail no claim bonous at the time of effecting the policy with this Opposite Party, the very basis of insurance contract got defeated and the claim of the Complainant was repudiated by the Opposite Party.<br /> <br /> The Complainant has to accept that the Opposite Party No.1(a) acted on his behalf in taking the policy in which case the Complainant is bound by the declaration or there stands no policy in favour of the Complainant at all. The Complainant can not be allowed to avail the beneficial parts to disowning the accountable or detrimental part. The Opposite Party No.2(two) after full investigation and due application of mind in good faith, repudiated the claim on valid grounds which can not be termed as deficiency of service in any manner. It further contends that the claim requires elaborate evidence and in depth scrutiny and discussion which can be done only in a regular Civil Suit and not in a summary procedure like the present one.<br /> <br /> The Opposite Party No.2(two) prays for dismissal of the Complaint against it with cost.<br /> <br /> Perused the complaint, the version of the Opposite Party No.1(a) and Opposite Party No.2(two) along with copies of documents filed by the Parties and find as follows:-<br /> <br /> The Opposite Party No.1(a) assails the maintainability of the complaint on the ground of the vehicle in question being a commercial one but it has not adduced any evidence to disprove the stance of Complainant that he purchased the vehicle for earning his livelihood. Hence it is not 'Services' availed for commercial purposes and thus very much maintainable under the provision of Consumer Protection Act-1986. The relationship between the financer that is Opposite Party No.1(a) and Complainant can not be treated solely as debtor and creditor but as financing institution and loanee, the Opposite Party No.1(a) providing financial service to the Complainant being a loanee-consumer of the said Opposite Parties.<br /> <br /> It is the case of the Complainant that the vehicle met with a accident and claim was lodged with New India Assurance Company Ltd. which was the first insurance of the vehicle. The said company settled and paid the claim of Rs.50,500/-(Rupees fifty thousand five hundred)only to the Opposite Party No.1(a). The Opposite Party No.1(a) admits having received Rs.50,500/-(Rupees fifty thousand five hundred)only but claims that he had no knowledge that it was insurance claim amount and received it as loan deposit. The policy of the New India Assurance Company was in force up to Dt.10/08/2006 which the Complainant intended to renew with the same insurance company i.e. the New India Assurance Company but the Complainant learnt from a letter from the Opposite Party No.1(a) that the Opposite Party No.1(a) had insured the vehicle with Opposite Party No.2(two) with out the prior information or consent of the Complainant. When the vehicle was extensively damaged by fire set to it by unlawful mob on Dt. 31/08/2006 at village Kaling Nagar of Jajpur District, the Complainant lodged a claim before the Opposite Party No.2(two) for reimbursement of the insured amount valued at Rs.10,00,000/-(Rupees ten lac)only. The Opposite Party No.2(two) vide its letter Dt.07/01/2008 repudiated the claim on the ground that 'NO CLAIM BONOUS' @ rate of 20%(twenty percent) has been availed from the total premium amount while effecting the above policy and the declaration made towards the N.C.B. was found to be false, since the Complainant has availed a claim from the New India Assurance Company earlier.<br /> <br /> Admittedly, as per the terms of agreement, the vehicle was insured by the Complainant in the first year and the Opposite Party No.1(a) insured the vehicle in the next year wherein the information about availing of the no claim bonous from the total premium amount was suppressed/ or false information was provided while taking the second insurance with the Opposite Party No.2(two) by the Opposite Party No.1(a). The claim of Opposite Party No.1(a) that it was not known to it that the amount of Rs. 50,500/-(Rupees fifty thousand five hundred)only received by it was insurance claim amount from the first insurance, because the Complainant had not communicated to it about the same.<br /> <br /> It seems quite improbable that a financing company while receiving such a substantial amount had no knowledge of its source. It is normally expected of the Opposite Party No.1(a) that it should have checked and inquired about the first insurance made by the Complainant as per agreement while making the second insurance with the Opposite Party No.2(two), since it had received Rs.50,500/-(Rupees fifty thousand five hundred)only from the First Insurance. The furnishing of the wrong information/suppressing meterial facts as regards the receipt of the No Claim Bonous squarely lies with the Opposite Party NO.1(a).<br /> <br /> From the pleader notice Dt.07/06/2008 on the Complainant by Opposite Party No.1(b) demanding payment of arrear installment, the Complainant could know that the Opposite Party No.1(a) was subsequently taken over by Opposite Party No.1(b). By taking over the Opposite Party No.1(a), the Opposite Party No.1(b) has stepped into the shoes of the Opposite Party No.1(a) in toto and has become inheritor to both the assets and liabilities, risks and gain and profit and loss of Opposite Party No.1(a) and accountable for its omissions and commissions.<br /> <br /> As it has already been established that the Complainant's insurance claim was repudiated by Opposite Party No.2(two) due to the false declaration made by the Opposite Party No.1(a) while making the insurance with Opposite Party NO.2(two), now it is the bounden duty of the Opposite Party No.1(b) to discharge the responsibilities it has inherited from the Opposite Party No.1(a) as a taking over company.<br /> <br /> As regards the Opposite Party No.2(two), no deficiency of service has been established against it by the Complainant, because it repudiated the claim on technical ground is the Opposite Party No.1(a) having furnished wrong information at the time of making the policy with it. So the Opposite Party No.2(two) is absolved from any liabilities.<br /> <br /> In the light of the facts and circumstances, both the Opposite Party No.1(a) and No.1(b) are directed, jointly and severally to pay to the Complainant the insured amount of Rs.10,00,000/-(Rupees ten lac)only along with 9%(nine percent) interest over the same chargeable w.e.f. Dt.07/01/2008 to the date of this Order and a cost/compensation of Rs.2,000/-(Rupees two thousand)only, within 30(thirty) days hence failing which both the amount shall carry 18%(eighteen percent) interest per annum till the date of payment. The Opposite Party No.1(a) and No.1(b) shall not charge any penal or regular interest on the loan amount of the Complainant w.e.f. Dt.31/08/2006, the date of setting fire of the vehicle by mob.<br /> Both the Opposite Parties are also directed to adjust the balance loan amount of the Complainant from the awarded insured amount of Rs.10,00,000/-(Rupees ten lac)only to be paid by them to the Complainant and the balance amount shall be paid to the Complainant within 30(thirty) days from the date of this Order. The Opposite Parties shall take back the vehicle from the Complainant on such adjustment/payment as directed above.<br /> <br /> The complaint allowed accordingly.