DATE OF FILING: 26.08.2013
DATE OF DISPOSAL: 24.08.2017.
O R D E R
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased a new TATA Indigo CL LX TDI BS-III Car for his personal use duly financed by Magma Fin Corp Ltd who has got branches all over India. The vehicle in question was purchased from the authorized dealer of TATA Company M/S A.C.E. Motors, Cuttack. By the time of purchase there was free offer of insurance by the TATA Company and such fact of sponsor of free insurance was within the active knowledge of the O.P.No.3 to 5 as well as Magma Fin Corp Ltd. who financed for purchase of the vehicle by the complainant. Accordingly, the authorized dealer insured the vehicle in question with M/S Royal Sundaram Insurance Company since there was tie up in between TATA Company and M/s Royal Sundaram Insurance Company. Accordingly the authorized dealer of TATA Company M/s A.C.E. insured the vehicle in the name of the complainant before it is delivered to the complainant to ply on the road w.e.f. 05.04.2010 to 04.04.2011 mid night on payment of premium of Rs.12,254/- to M/s Royal Sundaram Insurance Company and such fact is also within the knowledge of Magma Fin Corp being the financier of the vehicle. But the complainant is least concerned with the first year insurance in view of offer of free insurance by the TATA Company. While the vehicle was plying on the road unfortunately met with an accident in the month of October 2010 for the first time due to mechanical defect. The complainant informed the fact to the authorized dealer M/s A.C.E. Motors, Cuttack and on instruction the complainant carried the accidental vehicle to the show room of the authorized dealer. The authorized dealer being insured the vehicle in the name of the complainant claimed the repair charges and costs of the materials damaged from M/s Royal Sundaram Insurance Company and the complainant paid Rs.18,000/- towards depreciation charge and got released of his vehicle from the garage of M/s A.C.E. Motors, Cuttack after repairing. But the complainant is not least but last person to avail or to get any benefit under the insurance policy made by the authorized dealer of TATA Company M/s A.C.E. Motors, Cuttack with M/s Royal Sundaram Insurance Company. The Magma Fin Corp is also well aware of such facts. It is also stated that the Magma Fin Corp used to collect insurance premium along with E.M.I. from the complainant for the second year through the O.P.No.3 amounting to Rs.10,427/- and insured the vehicle of the complainant with the O.P.No.1 acting as the insurance broker agent for the period from 26.05.2011 to 25.05.2012 mid night deliberately even knowing the fact of lapse of insurance period on 04.04.2011 midnight. Before insuring the vehicle of the complaint as insurance broker agent neither the O.P.No.3 nor the O.P.No.1 tried to ascertain the period of insurance from the insured or from M/s A.C.E. Motors, Cuttack or from the Royal Sundaram Insurance Company. The O.P.No.1 being one of the reputed insurance company having branches all over India did not make enquiry from the complainant about the previous insurance and claim of any amount against the first policy bond from the insurer in the event of any accident met by the vehicle. It is also alleged that the O.P.No.1 and 3 in collusion with each other insured the vehicle of the complainant for the second year commencing from 26.05.2011 to 25.05.2012 midnight bearing policy bond No.150100/31/11/ 6100059075 issued by the O.P.No.1. For the deliberate and reckless negligence of O.P.No.3 the vehicle of the complainant was run from 04.04.2011 to 25.05.2011 without insurance and he is solely responsible for such lapses. During subsistence of valid insurance, the vehicle of the complainant bearing Regn.No. OR-07-U- 2929 of R.T.A. Chatrapur met with an accident on 22.02.2012 at about 5.30 AM while coming from Ganjam to Berhampur at Chatrapur bypass road driven by the driver Sri Bhimsen Patra, son of B.Lachaya Patra having valid license. The complainant being informed about the accident by the driver immediately after the incident reported the fact of accident to the O.P.No.2 which is the branch office of O.P.No.1 in writing on the very date i.e. on 22.02.2012. According to the instruction of O.P.No.2 he brought back his accident vehicle from the accident site for repairing to the garage of Maa Dakhina Kali Motors located at the side of K. K. College stadium, SBI Road, Berhampur on the same day to avoid mischief by miscreants and theft of parts of the accident vehicle. The garage owner after inspecting the vehicle prepared tentative estimate and assessed the amount for replacement of materials and the repair charges at Rs.40,556/-. The complainant thereafter submitted the claim form by enclosing the copies of the required documents along with original policy bond issued by O.P.No.1 on 22.02.2012 before the O.P.No.2 and the same were acknowledged by the O.P.No.2 by putting his office date seal. After receipt of the claim form the O.P.No.2 appointed Sri C.R. Mahapatro, Surveyor and Loss Assessor for survey and inspection of accident vehicle of the complaint vide his letter No. 16320/OCS Claims/DVA/2012 dated 23.02.2012. The Surveyor-cum-Loss Assessor on the strength of the said order came to the garage Maa Dakhina Kali and took the photographs from different sides of the accidental vehicle. The owner of the motor garage thereafter prepared supplementary estimate towards cost of further materials required for full fledges repair of the vehicle with repair charge of Rs.10,965/-. The complainant also supplied the supplementary estimate to the O.P.No.2. When the vehicle in question was completely repaired, the complainant again reported the fact verbally to O.P.No.2 on 16.03.2012. The O.P.No.2 on receipt of such information requested his surveyor Sri Salil Kumar Satapathy vide his letter No. 163201 dated 14.03.2012 to re-inspect the vehicle kept in the garage after being repaired. He in pursuance to the direction of the O.P.No.2 came to the motor garage Maa Dakhinakali, re-inspected the accidental repaired vehicle of the complainant, took photographs from all directions and submitted his report before the O.P.No.2 for further follow up action. Thereafter the complainant got released his repaired vehicle from the garage on payment of the total amount of Rs.57,612/- towards cost of the materials and repair charge including the depreciation charges. The O.P.No.2 being incompetent to settle the claim processed all the papers and documents to the O.P.No.1 to settle the claim as per the terms and conditions of the insurance policy bond and to make payment of the claim amount to the complainant. When delay was experienced to settle up the claim and to make payment of the amount of Rs. 57,612/- to the complainant contacted with the O.P.No.1 over phone several times and requested for payment of the claim amount as per the terms and conditions of the insurance policy bond. But the O.P.No.1 on some pretext avoided to settle up the claim amount. The insurer O.P.No.1 instead of settling the claim at the belated stage rejected the claim treating as no claim and communicated the letter dated 01.02.2013 signed on 14.02.2013 by the Sr. Divisional Manager, extending a copy to the Magma Fin Corp. It is stated in the said letter that N.C.B. 20% enjoyed by the complainant though there was an O.D. claim in previous year as confirmed by Royal Sundaram which violates policy conditions and other grounds. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P.No.1 and 2 to pay the claim amount of Rs.57,612/- incurred by the complainant for repair of his accidental vehicle bearing Regd. No. OR-07-U- 2929 with 12% interest per annum from the date of submission of claim from 22.2.2012 to till final payment, compensation of Rs.1,00,000/- for causing mental torture, financial loss and harassment including the litigation charges.
3. Despite notice issued by this Forum, the O.P. No. 1 & 2 failed to put their appearance and as a result they were proceeded ex-parte on dated 19.07.2016.
4. Upon notice, the O.P.No.3, 4 & 5 appeared through Sri Raj Kishore Polai, Advocate and filed written version/argument resisting the claim of the complainant. In the written version/ argument is stated that as per the established principles of law, the complainant does not fall within the definition of “consumer” and the relationship between the complainant and these answering O.Ps is that of ‘borrower’ and ‘lender’ as such, no consumer dispute arises. It is essentially a civil dispute for which the complaint is not maintainable under the Consumer Protection Act 1986. The vehicle in question was financed by the answering O.P. to the complainant and the answering O.P. being the financier is not liable to pay any compensation, hence on this ground alone the present application is liable to be dismissed against the answering O.P. The transaction between the parties is a contract where both parties have to perform their part of obligation. The complainant has agreed to pay the installments in a stipulated time failing which complainant has further agreed to pay the delayed payment charges on the respective installment amount. The O.Ps have performed their part of obligation by sanctioning loan to the complainant and now it is his turn to perform his part of obligation on repayment of loan dues as per agreement. Time is the essence of contract of this nature which both parties are expected to observe. But the complainant never made payment of the installments as per agreed terms and conditions for which a huge amount of loan remained unpaid. It is also contended that it is the owner of the vehicle to insure the vehicle hence the answering OPs has no role to play and the allegations raised by the complainant is false. It is submitted that no deficiency service committed by the answering O.Ps The complainant has never suffered any financial loss or otherwise due to the staff of the answering O.Ps If ever any loss has been incurred by him, it is only due to his own malicious deeds and mischievous attitude for which these answering O.Ps in no way be held responsible. These O.Ps committed no unfair trade practice and therefore there is no reason for the complainant to undergo any physical, financial and mental loss and agony attributable to these O.P. Extending financial help to a person in need cannot be construed as unfair trade practice. The complainant is not entitled to any relief as claimed by him and this case is liable to be dismissed on merit against the O.P. Nos. 3 to 5 with exemplary cost.
5. On the date of final hearing of the consumer dispute, we have heard the learned counsel for the complainant as well as for the O.P.No.3 to 5 present in the Forum. We have also gone through the complaint, written version/arguments filed by the learned counsel for complainant and for O.P.No.3 to 5 and also verified the materials placed on the case record. In this case, the O.P. No.1&2 despite proper notice did not prefer to contest their case hence declared exparte on 19.07.2016 and proceeded accordingly.
On perusal of case record and on merit, it reveals that the O.P.No.1&2 are insurers of complainant’s aforesaid vehicle and the O.P. No.3 to 5 are financier which is beyond doubt or dispute. As per the materials placed on the case record, the complainant insured his vehicle through the financier O.P. No.3 to 5 with O.P.No.1&2 who has been declared exparte in this case. It is also a fact not in dispute that the driver of the vehicle was having valid and effective driving license issued by R.T.O., Chatrapur, Ganjam to drive the light motor vehicle as is evident from the case record bearing DL No.7798/04 which was valid for the period 19/08/2004 to 18/08/2024. There is also no doubt or dispute that the said vehicle was got registered with concerned Registering Authority in the name of the complainant as is evident from the registration certificate bearing No.OR-07-U 2929 dated 30/04/2010 and the fitness validity was up to 24/04/2025. The O.P.No.1&2 has issued vehicle insurance bond in favour of vehicle of the complainant bearing Regd. No.OR-07-2929 i.e. TATA Indigo CS LX TDI BSIII and Policy bond bearing No.150100/31/11/61/ 6100059075 which was valid from 26/05/2011 to midnight of 25/05/2012 subject to the terms and conditions of the policy as stated therein the policy document on payment of a sum of Rs.10,427/- towards premium of the said vehicle insurance policy. We also find that during the subsistence of the aforesaid policy, the vehicle of the complainant met with an accident at Chatrapur on 22/02/2012 at 5.30 AM. After accident of the vehicle, the complainant intimated the incident to the O.P.No.2 on 22/02/2012 and accordingly deputed a surveyor to inspect the damaged vehicle at Maa Dakhina Kali Motors located at the side of K.K. College Stadium, Berhampur. The complainant also lodged the claim form before the O.P. No.2 in the prescribed form along with all documents for a claim amount of Rs.48,556/- which was acknowledged by the O.P. No.2 as is evident from the case record. The Branch Manager of O.P.No.2 in his letter No.163201/OS CLAIM/DAV/2012 dated 23/02/2012 appointed Mr. C. R. Mohapatra, Surveyor and Loss Assessor, Berhampur to complete the survey job of the aforesaid damaged vehicle and to submit the report at the earliest. Similarly, the said Branch Manager in his letter No.163201/OS CLAIM/DAV/2012 dated 19/03/2012 once again issued a letter to Mr.Salil Kumar Satpathy, surveyor to re-inspect the damaged vehicle which was roadworthy at that point of time and to report at the earliest for needful action by the O.P.No.2. However, the O.P. No.1 on 01/02/2013 vide his letter which was signed on 14/02/2013 intimated to the complainant with the copy to the Magma Fin Corp Ltd that due to violation of policy conditions the claim of the complainant was closed as no claim on the ground that NCB 20% enjoyed by the complainant though there was an OD claim in previous year as confirmed by Royal Sundaram. On receipt of the repudiation letter by the complainant, he issued an Advocate’s notice to the O.P.No.1to5 but that also did not reap any effective or fruitful result and the O.Ps did not give any heed to settle the claim of the complainant. As a result, the complainant has filed the present complaint against the O.Ps paying to direct the O.Ps to pay the amounts as prayed in the complain petition.
6. In the above context, the points raised for consideration by this Forum– whether the O.Ps are justified repudiating the claim of the complainant? Whether the present complainant is entitled to get the claim amount from the O.Ps due to damage of his insured vehicle? Whether the O.Ps are liable to pay any compensation or cost of this litigation in the fact and circumstances of the case as prayed by the complainant?
With regard to first point raised above, we would like to say that there is no dispute or doubt that the insured vehicle as discussed above of the complainant was met with an accident on 22/02/2012 during the validity of insurance policy as discussed above and it was also duly intimated by the O.P.No.2 on the same date i.e. on 22/02/2012 as is evident from the acknowledgment of the O.P.No.2. There is also no dispute that the vehicle was duly registered with the concerned registering authority and the fitness was valid up to 24/04/2025. It is also a fact not in dispute that the driver of the accident vehicle was having a valid and effective driving license to drive the light motor vehicle which was valid w.e.f. 19/08/2004 to 18/08/2024 and the damaged vehicle in fact was a light motor vehicle. The damaged vehicle was also duly repaired and made roadworthy in the garage of Maa Dakhina Kali Motor on payment of Rs.48,556/- which was inspected by two surveyors of the O.P.No.2 respectively as is evident from the repairing bills and claim form placed on the case record as discussed above. On further perusal, it appears that the O.P. insurance company has appointed two surveyors to conduct the survey of the damaged vehicle and to submit the report to the O.P. insurance company. However, the insurance company though appointed two surveyors but failed to settle the claim of the complainant on receipt of the reports from the surveyors. The O.P. insurance company could have settled the claim of the complainant as per the survey report of the two surveyors as discussed above but did not do so even after receipt of Advocate’s notice and repudiated the claim of the complainant on the ground of violation of policy conditions i.e. the complainant has enjoyed NCB 20% though there was an OD claim in previous year as confirmed by Royal Sundaram as contended by O.P. insurance company. In the aforesaid context, we would like to view that there is nothing placed on the case record to hold that the complainant was enjoyed NCB 20% since no cogent and convincing documentary evidence submitted before us to hold otherwise. That apart, the O.Ps even after receipt of notice from this Forum did not give any heed to the grievances of the complainant and despite several opportunities given not preferred to controvert the contentions of the complainant. In our considered view, we theretofore, hold that the O.P. insurance company is not justified repudiating the claim of the complainant and due to non-settlement of genuine claim of complaint, they are deficient in services and liable to make good of the losses of the petitioner.
7. In this case, the complainant has submitted a claim form before the O.Ps for a sum of Rs.48,556/- towards repairing charges of the damaged vehicle as is evident from documents record submitted by the complainant and acknowledged by the O.P. No.1 placed on the case record. On the contrary, the complainant in his prayer has claimed a sum of Rs.57,612/- incurred towards repairing of the damaged vehicle in dispute on the plea that the owner of the garage prepared a supplementary bill amount of Rs.10,965/- towards complete repairing of the damaged vehicle. Similarly, in the instant case though the complainant sued the O.P.No.3 to 5 i.e. financier for negligent and deficiency in service but prayed before this Forum to direct the O.P.No.1&2 to pay the claim amount of Rs.57,612/- towards repairing charges of the damaged vehicle along with interest @ 12% per annum from the date of submission of the claim form before the O.P. insurance company on 22.02.2012 along with Rs.1,00,000/- as compensation for causing mental agony, financial loss and harassment and cost of litigation. On a careful perusal of the arguments of O.P.No.3 to 5 we find that the O.P.No.2 to 5 are concerned with the finance of the vehicle and as per the contentions of the learned counsel for O.P.No.3 to 5 the financier is not liable for damage of the insured vehicle and not liable to pay compensation or cost of the present litigation in view of the decision of the Hon’ble Supreme Court in the case of Godavari Finance Co Vs. Degala Satyanarayanamma & Ors reported in AIR 2008 SC 2493. After careful examination of the contentions of the complainant and counter submissions of O.P. No.3 to 5, we also feel that there is no deficiency in service on part of financer i.e. O.P.No.3 to 5 for non-settlement of the claim of the complainant. In our considered view we would like to say that in view of the foregoing discussions, the O.P. No.3 to 5 are not proved on record for any deficiency in service for non-settlement of insurance claim of the complainant by the O.P. No.1&2. In the light of the foregoing discussions and considering the fact and circumstances of the case, the O.P. No.1&2 are jointly liable to settle the genuine claim of the complainant. As far as the claim amount is concerned, in this case, the complainant has submitted his claim form on 22/02/2002 for an amount of Rs.48,556/- towards repairing charges of his damaged vehicle in dispute along with other relevant documents which was acknowledged by the O.P. No.1. However, in his complaint he has prayed to direct the O.Ps to pay a sum of Rs.57,612/- towards repairing charges of his damaged vehicle as insurance claim. In this context, we would like to state that when the complainant has already submitted a claim form for Rs.48,556/- towards insurance claim from the O.P. insurance company how can he be entitled for claim amount of Rs.57,612/-? The bills and other documents placed on record also corroborate the claim of the complainant that he has incurred expenses of an amount of Rs.48,556/- towards repairing charges of the vehicle and accordingly the concerned garage Maa Dakhina Kali Motors has issued money receipt in favour of the complainant. Hence, the complainant is entitled to receive Rs. 48,556/- from the O.P insurance company towards his insurance claim along with interest @ 6% per annum from the date of repudiation of the claim till the actual payment is made to the complainant by the O.Ps. As far as the compensation and cost is concerned, in this case we are not inclined to award any compensation since we have already directed the O.Ps to pay interest on the claim amount as discussed. Besides, the complainant has not filed any cogent and convincing documentary evidence regarding loss of Rs.1,00,000/- to be compensated by the O.Ps hence we are not inclined to accept the claim of the complainant and rejected. However, we are interested to direct the O.Ps to pay cost of this litigation since the O.Ps even after receipt of the claim form they did not prefer to settle the genuine claim of the complainant as a result he was forced to issue an Advocate’s notice as well as hired the services of an Advocate to file this consumer dispute in this Forum. As far as cost of litigation is concerned, in this case, the complainant has hired the services of an advocate who is attending this case for the last four years and has also paid the court fees and incurred other expenses in secretarial works. We, therefore, feel that an amount of Rs.5,000/- will be just and proper in the fact and circumstance of case to award towards cost of litigation to be paid by the O.Ps to the complainant. In the light of foregoing discussion and considering the fact and circumstances of the consumer dispute, the case of the complainant is partially allowed against O.P. No.1&2 and dismissed against O.P.No.3 to 5 due to devoid of any merit.
8. In the result, complaint case is partially allowed against O.P. No.1&2 and dismissed against O.P.No.3 to 5. The O.P. No.1&2 who are jointly and severally liable are directed to pay Rs. 48,556/- (Rupees Forty Eight Thousand Five Hundred Fifty Six) only as claimed by the complainant towards repairing charges of the damaged vehicle bearing No.OR -07-U-2929 against policy No.150100/31/11/ 6100059075 along with 6% of interest from the date of repudiation of the claim i.e. from 01/02/2013 till the actual payment is made to the complainant. The O.P.No.1& 2 are also directed to pay a sum of Rs.5,000/- (Rupees Five Thousand only) towards cost of litigation to be paid to the complainant along with claim amount. The aforesaid orders shall be complied by the O.P.No.1 & 2 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the whole amount under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly. No orders as to compensation.
9. The order is pronounced on this 24th day of August 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
