Tamil Nadu

South Chennai

66/2011

C.J.Ashok Kumar - Complainant(s)

Versus

Ms. Kotak Mahindra Prime Ltd & others - Opp.Party(s)

R.Jaya Kumar

25 Apr 2019

ORDER

                                                                        Date of Filing  : 11.03.2011

                                                                          Date of Order : 24.04.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.66/2011

DATED THIS WEDNESDAY THE 24^TH DAY OF APRIL 2019

                                 

Mr. C.J. Ashok Kumar,

No.21-13, Vinobaji Street,

NGO Colony Extn.,

Choolimedu,

Chennai – 600 094.                                                      .. Complainant.                                               

           ..Versus..

 

1. M/s. Kodak Mahindra Prime Ltd.,

Rep by its Manager,

Ceebros Centre, 1^st Floor,

No.45, Montieth Road,

Egmore,

Chenai – 600 008.     

 

2. Mr. Jagan,

Sales Manager,

M/s. Kodak Mahindra Prime Ltd.,

Ceebros Centre, 1^st Floor,

No.45, Montieth Road,

Egmore,

Chennai – 600 008.

 

3. M/s. Priya Associates,

Rep. by Mr. Vinod,

No.52, South West Boag Road,

T. Nagar,

Chennai – 600 017.                                                ..  Opposite parties.

 

Counsel for the complainant                 : M/s. S. Narashimhan &

                                                                 another

Counsel for the opposite parties 1 & 2 : M/s. Anand & others

3^rd Opposite party                                 : Given up on 06.05.2013

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 pray to refund the expenses of Rs.34,600/- incurred at the time of accident and the first year Insurance Premium amount of Rs.10,000/- with interest at the rate of 24% p.a. from the date of payment till date of realization and to pay a sum of Rs.3,00,000/- towards compensation for hardship, loss and mental agony suffered by the complainant with cost of Rs.10,000/-.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he purchased a Maruthi Swift – VDI car bearing Registration No.TN-21-AV-0600 from one Mr. PrakashChand on 11.03.2010 with the subsistence of policy in the name of Mr. PrakashChand.  The complainant submits that through the 3^rd opposite party, the loan was arranged from the 1^st opposite party. After receiving the required documents, the 1^st opposite party has sanctioned the loan amount for a sum of Rs.3,03,040/- on 16.12.2009 vide loan agreement No.5642388 as per the Agreement Schedule.  The complainant submits that the 2^nd opposite party’s Sales Manager Mr. Jagan compelled the complainant to avail life Insurance Product from M/s. Kodak Mahindra Insurance Limited with the false assurance that the 1^st opposite party will pay the 1^st year premium and subsequent premiums alone be paid by the complainant.  The complainant submits that from the loan amount of Rs.3,03,040/- a sum of Rs.21,540/- has been deducted towards the 1^st year life Insurance Premium.  But the opposite parties 1 & 2 replied that a sum of Rs.10,000/- alone is deducted towards the first year LIC premium and a sum of Rs.4,500/- alone deducted towards the processing fee.   The complainant submits that he has made repeated requests and demands to the opposite parties 1 & 2 for returning the Loan Agreement copy including R.C. Book, Income Tax Original documents of the complainant and his wife, Original Insurance copy etc.  The opposite parties belatedly given the RC copy showing some 3^rd party’s photo which was rectified later with the photo of the complainant.   The complainant submits that the loan amount has been foreclosed on payment of Rs.2,10,000/- on 01.11.2010 and Rs.1,21,060/- dated: 08.11.2010.  The 1^st opposite party has also issued ‘No Objection Certificate’ dated:23.11.2010.  The complainant submits that on 18.04.2010, when the loan was pending, the car met with an accident.   The complainant submits that he has expended a huge amount of Rs.34,600/- and requested the opposite parties to reimburse the same.  But the opposite parties failed and neglected to pay any amount stating that the policy is for like cover policy.   The act of the opposite parties amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

 

2.      The brief averments in the written version filed by  1^st opposite party which is adopted by the 2^nd opposite party is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 & 2 state that the complainant is not a consumer as defined as Section 2 (d) of the Consumer Protection Act, 1986.  According to the terms and conditions of the agreement, any dispute, difference and / or difference has to be settled by way of Arbitration Proceeding alone.  The opposite parties 1 & 2 state that after due verification of documents, a loan of Rs.3,03,040/- was sanctioned to the complainant.   The complainant was not compelled to avail the insurance policy.  Out of curiosity, the complainant has availed policy voluntarily and paid premium.  The allegation that the opposite parties 1 & 2 has deducted a sum of Rs.21,450/- is absolutely false.   But the opposite parties deducted a sum of Rs.10,000/- & Rs.806/- towards Kotak Life Insurance Products.  The opposite parties 1 & 2 state that it is not the practice to collect the original R.C. book, Income Tax documents and other insurance policy etc by the opposite parties and took the risk of name transfer etc by the opposite parties.  The opposite parties 1 & 2 state that the policy availed by the complainant is for life policy.  It shall protect the loan from risk of life. The opposite parties state that the compensation of Rs.3,00,000/- is exorbitant and imaginary.   Therefore, there is no deficiency in service on the part of the opposite parties 1 & 2 and hence, the complaint is liable to be dismissed.

3.     The complainant during the pendency of the case, given up the claim against the 3^rd opposite party on 06.05.2013 by way of endorsement that “The complainant’s claim against the 3^rd opposite party may be not pressed”.  This Forum also passed order that “endorsement made by Counsel for the complainant that case against the 3^rd opposite party is given up”.  Hence, the relief sought for against the 3^rd opposite party is dismissed as not pressed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A15 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and documents Ex.B1 to Ex.B3 are marked on the side of the opposite parties 1 & 2.  

5.      The points for consideration is:-

1. Whether the complainant is entitled to get refund of a sum of Rs.34,600/- incurred towards expenses for repairing the car and 1^st year insurance premium of Rs.10,000/- with interest at the rate of 24% p.a. as prayed for?
2. Whether the complainant is entitled to a sum of Rs.3,00,000/- towards compensation for hardship, loss and mental agony with cost of Rs.10,000/- as prayed for?

6.      On point:-

The complainant during the pendency of the case, given up the claim against the 3^rd opposite party on 06.05.2013 by way of endorsement that “The complaint against the 3^rd opposite party may be not pressed”.  This Forum also passed order that “endorsement made by Counsel for the complainant that case against the 3^rd opposite party is given up”.  Hence, the relief sought for against the 3^rd opposite party is dismissed as not pressed.

7.     Both the complainant and the opposite parties 1 & 2 filed their respective written arguments.  Heard the opposite parties’ 1 & 2 Counsel also.  Perused the records namely the complaint, written version, proof affidavit and documents.  The complainant pleaded and contended that he purchased a Maruthi Swift – VDI car bearing Registration No.TN-21-AV-0600 from one Mr. PrakashChand on 11.03.2010 with the subsistence of policy in the name of Mr. PrakashChand.  The complainant further contended that through the 3^rd opposite party, the loan was arranged from the 1^st opposite party.  After receiving the required documents, the 1^st opposite party has sanctioned the loan amount for a sum of Rs.3,03,040/- on 16.12.2009 vide loan agreement No.5642388 as per Ex.A1, according to Agreement Schedule.  Further the contention of the complainant is that the 2^nd opposite party’s Sales Manager Mr. Jagan compelled the complainant to avail life Insurance Product from M/s. Kodak Mahindra Insurance Limited with the false assurance that the 1^st opposite party will pay the 1^st year premium and subsequent premiums alone be paid by the complainant.  Ex.A14 is the copy of Certificate of Insurance cover.  Both the parties has not filed any document to show the alleged policy and the details of premium.  Further the contention of the complainant is that from the loan amount of Rs.3,03,040/- a sum of Rs.21,540/- has been deducted towards the 1^st year life Insurance Premium.  But the opposite parties 1 & 2 replied that a sum of Rs.10,000/- is alone is deducted towards LIC premium and a sum of Rs.4,500/- alone deducted towards processing fee.  On the other hand, the opposite parties 1 & 2 in their written version stated that a sum of Rs.806/- and Rs.10,000/- alone deducted towards Kotak Life Insurance Products.  But both parties has not produced any document to prove the deduction of Rs.14,500/- neither Rs.21,540/- nor Rs.10,806/- from the loan amount towards the 1^st year policy premium which amounts to suppression of material facts as well as deficiency in service.  

8.     Further the contention of the complainant is that he has made repeated requests and demands to the opposite parties 1 & 2 for returning the Loan Agreement copy including R.C. Book, Income Tax Original documents of the complainant and his wife, Original Insurance copy etc.  The opposite parties belatedly given the RC copy Ex.A3 showing some 3^rd party’s photo which was rectified later as per Ex.A4 with the photo of the complainant proves that the arbitrary whimsical act of the opposite parties 1 & 2 after sanctioning the loan amount.   The contention of the opposite parties 1 & 2 that registration of vehicle transfer of name of the vehicle and insuring the vehicle are of the risk and left upon the complainant; is not acceptable because it is not denied that the loan amount was paid directly to the seller of the vehicle Mr. PrakashChand.   Further the contention of the complainant is that the loan amount has been foreclosed on payment of Rs.2,10,000/- on 01.11.2010 and Rs.1,21,060/- dated: 08.11.2010 as per Ex.A9 & Ex.A10 respectively.  The 1^st opposite party has also issued ‘No Objection Certificate’ dated:23.11.2010 as per Ex.A7.   But on the initiation of the opposite parties, an arbitration awards dated:11.12.2010 was passed as per Ex.A5 proves the unfair trade practice exercised by the opposite parties 1 & 2.   Further the contention of the complainant is that the opposite parties 1 & 2 under the guise of collection agents sent hooligans which caused great mental agony also.   Further the contention of the complainant is that on 18.04.2010, when the loan was pending, the car met with an accident.  The said fact was informed to the opposite parties 1 & 2 and the insurance company.  The complainant also expended a huge amount of Rs.34,600/- as per Ex.A15 and requested the opposite parties to reimburse the same.  But the opposite parties failed and neglected to pay any amount stating that the policy is for like cover policy.  But on careful perusal of Ex.A14, Certificate of Cover, which reads as follows:

“We take great pride in welcoming you to the family of Kotak Mahindra Prime Ltd. (KMPL) customers and we thank you for taking up the Kotak Car Loan Cover (KCLC) scheme.  KMPL has protected your loan through its group insurance policy with Kotak Mahindra Old Mutual Life Insurance Ltd. (KLI) vide policy number F2, that will provide you with a life insurance cover to the extent of the outstanding loan amount”.

Further the contention of the complainant is that the opposite parties 1 & 2 have adopted all sought of deficiency in service and unfair trade practice which caused great mental agony.  The complainant is claiming a sum of Rs.3,00,000/- towards compensation for such mental agony.

9.     The learned Counsel for the opposite parties 1 & 2 would contend that the complainant is not a consumer as defined as Section 2 (d)(i) of the Consumer Protection Act, 1986 which is evidenced from the Loan Agreement as per Ex.B1.  Accordingly to the terms and agreement, any dispute, difference and / or difference has to be settled by way of Arbitration which ousted the jurisdiction of the Consumer Forum; is not acceptable because before passing orders by the arbitrator in arbitration proceedings, the complainant foreclosed the loan as per Ex.A9 & Ex.A10 and the opposite parties has issued ‘No Objection Certificate’ as per Ex.A7. Thereafter, initiating arbitration proceedings and passing awards on 11.12.2010 per Ex.A5 amounts to unfair trade practice and this Forum is having jurisdiction under Consumer Protection Act, 1986.  Further the contention of the opposite parties 1 & 2 is that after due verification of documents, a loan of Rs.3,03,040/- was sanctioned to the complainant.   The complainant was not compelled to avail the insurance policy.  Out of curiosity, the complainant has availed policy voluntarily and paid premium. The allegation that the opposite parties 1 & 2 has deducted a sum of Rs.21,450/- is absolutely false.   But admittedly, the opposite parties deducted a sum of Rs.10,000/- & Rs.806/- towards Kotak Life Insurance Products.  On a careful perusal of Ex.A14, it is seen that  a sum of Rs.806/- alone and KMPL service Charge of Rs.2,234/- totalling of  Rs.3,040/- was deducted.  The opposite parties has not explained the reason for collecting either Rs.10,000/- or Rs.3,040/- deducted from the loan amount proves the unfair trade practice.   But the opposite parties 1 & 2 has not produced any document to show what is the amount exactly deducted the loan towards insurance and other charges.  It is also pertinent to see that the opposite parties 1 & 2 has not supplied such documents to the complainant who is admittedly as a customer availed loan.   

10.    Further the contention of the opposite parties 1 & 2 is that it is not the practice to collect the original R.C. book, Income Tax documents and other insurance policy etc by the opposite parties and took the risk of name transfer etc by the opposite parties.  But it is not denied that the loan amount was paid directly to the seller Mr. PrakashChand  establishes the risk of name transfer and registration of vehicle and policy etc lies on the opposite parties 1 & 2.  Further the contention of the opposite parties 1 & 2 is that the policy availed by the complainant is for life policy.  It shall protect the loan from risk of life. The claim towards accident and maintenance cannot arise and it cannot be paid by way of this policy.   But it is not denied that the policy Certificate as per Ex.A14 is issued by the Insurance Company is very clear that it covers the loan amount.   During the accident also, the policy is subsisting since the loan is pending.  Neither the opposite parties nor the insurance company has not sent any reply for sanctioning the claim and the reason for repudiation of claim proves the deficiency in service.  Further the contention of the opposite parties is that the compensation of Rs.3,00,000/- is exorbitant and imaginary.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally shall pay a sum of Rs.34,600/- expended towards repairing the vehicle and a sum of Rs.10,000/- deducted towards insurance premium with a compensation of Rs.20,000/- for mental agony with cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.34,600/- (Rupees Thirty four thousand six hundred only) being amount expended towards repairing the vehicle, to refund a sum of Rs.10,000/- (Rupees Ten thousand only) being amount deducted towards the first year insurance premium and to pay a sum of Rs.20,000/- (Rupees Twenty thousand only)  towards compensation for mental agony with cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.  

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 24^th day of April 2019. 

 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	16.12.2009	Copy of Agreement Schedule
Ex.A2	01.11.2010	Copy of Accounts
Ex.A3		Copy of R.C. for TN 21 AV 0600 with stranger’s photo affixed
Ex.A4		Copy of R.C. with the complainant’s photo
Ex.A5	11.12.2010	Copy of Arbitration Award
Ex.A6		Copy of mail correspondence between the complainant and the opposite parties
Ex.A7	23.11.2010	Copy of ‘No Objection Certificate’ from the 1st opposite party
Ex.A8	06.01.2011	Copy of Form 35
Ex.A9	01.11.2010	Copy of payment receipt for a sum of Rs.2,10,000/-
Ex.A10	08.11.2010	Copy of payment receipt  for a sum of Rs.1,21,060/-
Ex.A11	11.02.2011	Copy of legal notice sent by the complainant
Ex.A12		Copy of Acknowledgement cards
Ex.A13		Copy of returned cover
Ex.A14		Copy of Certificate of Insurance cover
Ex.A15	20.12.2010	Copy of bill for servicing the car

 

OPPOSITE PARTIES 1 & 2 SIDE DOCUMENTS:-

Ex.B1		Copy of Loan Agreement
Ex.B2	09.08.2010	Copy of Statement of Accounts
Ex.B3	10.08.2010	Copy of recall notice with acknowledgment card

 

 

MEMBER                                                                  PRESIDENT