Punjab

Ludhiana

CC/14/495

Sarabjit Singh - Complainant(s)

Versus

M/s Tata Motors Limited - Opp.Party(s)

27 Jan 2015

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

CC No: 495 of 16.07.2014

                                                                     Date of Decision: 27.01.2015

 

Sarabjit Singh s/o Sh.Jatinder Singh resident of 5242, New Lord Shiva Ji Nagar, Ludhiana.

                                                                                      … Complainant

                                      Versus

1. Tata Motors Finance Limited, SCO 1-2, Second Floor, Feroze Gandhi Market, Ludhiana, through its Manager.

2. National Insurance Company Limited, Link Road, Atam Park, Ludhiana, through its Manager.

                                                                             … Opposite parties

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

 

Present:       Sh.Ajay Dogra, Advocate for complainant.

                   Sh.S.S.Rai, Advocate for OP1.

                   Sh.D.R.Rampal, Advocate for OP2.

 

                   

                        ORDER

 

(S.P.GARG, MEMBER)

 

1.                The present complaint under section 12 of The Consumer Protection Act (hereinafter in short to be referred as ‘Act’) has been filed by Sh.Sarabjit Singh s/o Sh.Jatinder Singh resident of 5242, New Lord Shiva Ji Nagar, Ludhiana  (hereinafter to be referred as ‘complainant’) against Tata Motors Finance Limited, SCO 1-2, Second Floor, Feroze Gandhi Market, Ludhiana, through its Manager  and others (hereinafter to be referred as ‘OPs’)-directing them to settle the account no.500122144 by cancelling the policy no.5527003113 6300191640 dated 17.2.14 and to refund the whole amount of the complainant, which he had charged and to pay Rs.4.00 lacs as compensation to the complainant.

2.                Brief facts of the complaint are that complainant purchased a vehicle Tata ACE and got it financed from the OP1, through loan agreement no.500122144 dated 31.3.13. The said vehicle was being used by the complainant for his own personal use and not for any commercial purpose. The loan amount to be returnable in 47 equated monthly installment (EMI) of Rs.7247 including Rs.832/- advance insurance amount. The complainant regularly returning the loan amount to OP1. At the time of purchase of the said vehicle, the OP1 also insured the vehicle from Tata AIG General Insurance Company Limited, vide policy no.064001/0140111739/000000/00 and issued policy Certificate valid from 31.3.13 to 30.3.14 for private use vehicle. Suddenlty on 18.2.14 the complainant received a letter from the OP1 that the vehicle policy of the complainant is renewed on 17.2.14 for further period commencing from 31.3.14 to 30.03.15 for Rs.17,808/- bearing policy no.55270031136300191640 dated 17.2.14 by the OP2 and since the complainant paid Rs.13,026/- the insurance amount through installments, the balance amount of Rs.4782/- is debited in the loan account of the complainant. In fact the complainant never asked or applied for the purchase of the insurance policy from the OP2. The policy issued by the OP2 is illegal, wrong, null and void and is not binding on the complainant since he never purchased the same. The Ops intimated to the complainant about the new policy on the next day, as such, no due intimation was given to the complainant before issuing the policy and transferring the amount to the OP2. As the complainant was regularly paying the installments, but due to the policy issued by the OP2, the loan track of the complainant was disturbed since he added Rs.4782/- in the loan account of the complainant. The complainant is not liable to pay any amount of Rs.4782/-, rather the policy issued by the OPs is liable to be cancelled and the amount is liable to be returned to the complainant by the OPs. The complainant many times requested the OPs to cancel the policy no.55270031136300191640 dated 17.2.14 or to refund the amount, but the Ops did not pay any heed to the requests of the complainant. A legal notice was also sent to the Ops on 27.3.14 through registered post and the said notice was received by the OPs, but till date they neither settled the account nor sent any reply to the said notice. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 appeared through his counsel and filed written statement taking preliminary objections that complaint is false; the complainant has not come to the Forum with clean hands. Further submitted that at the time of availing of loan, the answering OP had already intimated the complainant about the insurance policy to be got done/renewed by the answering OP as per the terms of the loan cum hypothecation agreement duly signed by him. The said insurance was done only after the written consent (by signing the loan agreement) and due intimation to the complainant for the same and that the answering OP is empowered under the terms of the loan cum hypothecation agreement to get the insurance done against the said vehicle. Further the said insurance provision forms part of the monthly loan installments of the complainant and is recovered alongwith installments. Further the complainant is not a Consumer within the meaning and definition of Section 2 (1) (d) (i) of the Consumer Protection Act 1986. In the entire complaint the complainant has nowhere pleaded exception of ‘Self-emplacement’ engraved in Explanation to section 2 (1) (d) of the Consumer Protection Act, 1986. The complainant has not pleaded let alone a specific plea that they had purchased and was using the vehicle in question exclusively for the purpose of earning his livelihood by means of self-employment; there is no deficiency on the part of the OPs; intricate question of law and facts are involved in this case and the only remedy available to the complainant is to approach the civil court; the complainant is stopped from filing the present complaint by his own acts, conduct, omissions and acquiescence. On merits, admitted to the extent in para no.2 of the complaint that the OP1 had advanced the loan of total contract value of Rs.340609/- (including Finance amount of Rs.222957/- + Finance charges Rs.78548 + Insurance provisioning Rs.39,104/- to the complainant for the purchase of one vehicle Tata ace as per the request and documentation provided by the complainant, vide loan-cum-hypothecation-cum-guarantee Agreement no.500122144. The said vehicle is commercial vehicle and is not purchased for personal use of the consumer. Further in para no.3 admitted to the extent that the said loan was to be repaid in 47 monthly installments of Rs.7247/- each. Further denying the contents of remaining paras answering OP prayed for the dismissal of the complaint.

4.                On notice of complaint, OP2 also appeared through his counsel and filed written statement taking preliminary objections that the complaint is not maintainable in the present form; the complaint is false and frivolous one and is liable to be dismissed with exemplary costs; the complaint is bad for non joinder and misjoinder of necessary parties; the complainant has not come to this Forum with clean hands and has suppressed the material facts; the intricate question of law and fact are involved in this case and this case cannot be summarily decided by this Forum. On merits, it is submitted that the vehicle in question purchased by the complainant is also hypothecated by Tata Motors Finance Limited OP1. OP1 was required to get the vehicle insured as interest of OP1 is also involved in the vehicles, which were financed by it. The OP2 received the instructions from OP1 to issue insurance policy concerning to vehicle no.PB-10-DZ-6229 in the month of February, 2014 and accordingly OP2 insured the above said vehicle for the period of 31.3.14 to 30.3.15 on 17.2.14 and detail of premium was also mentioned in said certificate of insurance issued insuring the said vehicle. The name of Financer with whom this vehicle is hypothecated is also mentioned in said certificate of insurance dated 17.2.14. The premium of vehicle was also increased and by working out the premium the aforesaid vehicle was insured by OP2 on 17.2.14 covering the risk of aforesaid vehicle PB-10-DZ-6229 for the period of 31.3.14 to 30.3.15. The complainant is stopped by his own act and conduct. The premium so paid by the OP1 is to be collected from the complainant as aforesaid vehicle was got insured by Op1. Further denying the contents of remaining paras answering OP prayed for the dismissal of the complaint.

5.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Ex.CA, wherein, the same facts have been reiterated as narrated in the complaint alongwith documents Ex.C1 to Ex.C10. On the other hand, Ld. counsel for OP1 has adduced the evidence by way of duly sworn affidavit of Sh.Abishek Sharma, Legal Manager, Tata Motors Finance Limited Ex.RA, wherein admitted to the extent that the OP1 had advanced the loan of total contract value of Rs.340609/- (including Finance amount of Rs.222957/- + Finance charges Rs.78548 + Insurance provisioning Rs.39,104/- to the complainant for the purchase of one vehicle Tata Ace as per the request and documentation provided by the complainant, vide loan-cum-hypothecation-cum-guarantee Agreement no.500122144. Further reiterated that the said vehicle is a commercial vehicle and is not purchased for personal use of the consumer. The purpose of the purchase is the commercial purpose and the complainant therefore is not a consumer and complaint  merits dismissal on this score alone. Ld. counsel for OP1 has also submitted the documents Ex.OP1 to OP3. Whereas, Ld. counsel for OP2 has adduced the evidence by way of duly sworn affidavit of Sh.Sanjeev Khurana, Assistant Manager, National Insurance Co. Ltd., D.O-I, Near Atam Park, Ludhiana Ex.RA1/2.

6.                Oral arguments have been put forwarded by the parties. Ld. counsel for complainant argued that complainant purchased a vehicle Tata ACE and got it financed from the OP1, through loan agreement no.500122144 dated 31.3.13. The loan amount to be returnable in 47 equated EMI of Rs.7247/- included Rs.832/- as advance insurance amount. First policy for the vehicle was issued, which was valid from 31.3.13 to 30.3.14 and further it was renewed for the period 31.3.14 to 30.03.15 for Rs.17,808/- out of which Rs.13,026/- was paid as premium by the complainant. Thus Rs.4782/- was debited from the loan account of the complainant. But the policy issued by the OP2 is illegal, wrong, null and void, because the complainant never given any consent for the same and thus the OPs have committed deficiency in service by issuing the policy without consent of the complainant and the complainant is not liable to pay any amount of Rs.4782/- to the complainant and asked for the cancellation of the policy issued for the period 31.03.14 to 30.03.15.

7.                Refuting the allegations leveled by the complainant, Ld. counsel for the OP1 argued that consent of the complainant was very much given in Loan-cum-Hypothecation Agreement, which was duly signed by him and the said insurance was done only after the written consent by signing the loan agreement and OP1 is empowered under the terms of the loan-cum hypothecation agreement to get the insurance done against the said vehicle. The relevant part of the Loan cum Hypothecation cum Guarantee Agreement (Ex.OP3) is reproduced as under for the sake of convenience:-

          “Insurance

            10.1    The obligors agree that the Assets being hypothecated to the Lender will be comprehensively insured (at their own expenses during the continuance of the Security) will such insurance company as may be required by the Lender against all losses and damages by riot, civil commotion risks, accident, fire, theft and all other risks usually covered by the insurance including third party risks. The obligors shall punctually pay all premium payable for the insurance and maintain the policies in full force and effect and not to do or caused to be done anything whereby the policy gets vitiated and shall renew the policy from time to time and ensure that the Assets hypothecated to the Lender remains insured throughout the term/pendency of this Loan Agreement of while any monies due or payable to the Lender under this Loan Agreement are outstanding  and the original policies of insurance and renewal notes shall be immediately deposited with the Lender. The insurance policy to be taken out hereunder shall be in the name of Borrower and the Lender shall be described as loss payee under such insurance.”  

 

8.                Similarly, Ld. counsel for the OP2, refuted the allegations leveled by the complainant argued that the vehicle was purchased for commercial activities and as such, complaint is not maintainable. Moreover the second policy for the period 31.3.14 to 30.03.15 was issued and premium was increased by working out the value of the vehicle.

9.                We have gone through the pleading of the complainant as well as defence taken by the Ops and have also perused the entire record placed on file.

10.              It is evident that complainant that vehicle Tata Ace was purchased from OP1 and the same is being used by the complainant for his personal use for earning his livelihood. So, the complaint is maintainable. The averment of the complainant appears to be tenable that the EMI of Rs.7247/- includes Rs.832/- for insurance, because the EMIs of Rs.7247/- (47 in total) are for total loan of Rs.3,40,609/- (including Finance amount of Rs.2,22,957/- + Finance Charges Rs.78,548/- + Insurance provisioning Rs.39,104/-) as well as insurance also.

11.              Sequel to the above, discussion, the complaint is partly allowed and Ops are directed to overhaul the account in the presence of the complainant and to make him satisfy about the correctness of the charges (EMI). Further Ops are directed to pay Rs.2500/-(Two thousand five hundred only) as compensation and litigation expenses compositely assessed to the complainant. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                   (S.P.Garg)                                         (R.L.Ahuja)

                     Member                                             President

Announced in Open Forum.

Dated:27.01.2015 

Hardeep Singh