BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.598 of 2019
Date of Instt. 20.12.2019
Date of Decision: 01.09.2022
M/s Shiv Enterprises, Shop No.234, Bhai Ditt Singh Nagar, Opp. Kartar Bus Service, Jalandhar, through its Prop. Sneh Arora
..........Complainant
Versus
1. National Insurance, Divisional Office II, Bansal Complex, Dholewal Chowk, Ludhiana 141003, Through its Branch Manager.
2. Kotak Mahindra Prime Ltd., 1st Floor, Midas Corporate Park, Opp. Bus Stand, G. T. Road, Jalandhar, Through its Branch Manager.
3. Kotak Mahindra Prime Ltd., Ludhiana, Through its Branch Manager.
….….. Opposite Parties.
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. V. K. Attri, Adv. Counsel for the Complainant.
Sh. R. K. Chand, Adv. Counsel for OP No.1.
Sh. Vikas Sood, Adv. Counsel for the OPs No.2 & 3.
Order
Dr. HarveenBhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant availed a car loan from the OP No.2 and total amount was financed Rs.15,04,000/- on 31.01.2018. Thereafter, the complainant regularly paying the installments to the OP No.2 and as per account statement supplied by the OP No.2, the amount of Rs.12,13,164.16 is now payable by the complainant to the OP No.2. The complainant is doing the business of scrap business and is having godown at Qazi Mandi, Jalandhar and in the said godown car of the complainant usually got parked. On 26.04.2018, the godown of the complainant got fire and in the said godown the car was also parked and same got into fire. Due to that the complainant suffered total loss qua the said car. The said vehicle is insured with the OP No.1 and thereafter the complainant filed claim qua total loss of vehicle i.e. above said car. Moreover, the OP No.1 already admitted the claim of the complainant and after thorough investigation submitted report that a loss accrued to the complainant due to fire accident and the said fire accident is fully covered in the insurance policy. The OP No.1 now approved the claim of the car amounting to Rs.1957,795/- as full and final loss of the vehicle. The complainant thereafter received a letter from the OP No.1 on 29.07.2019 that the OP No.1 is ready to disburse the amount of Rs.19,57,795/- to Kotak Mahindra Prime Ltd. but the OP imposed one condition upon the complainant to provide No Due and No Objection Certificate from the OP No.2. Thereafter, further imposed the condition that payment of claim cannot be released before surrender/cancel the RC of the subject vehicle and submit a cancellation certificate issued by the RTO. The said letter was also served by the OP No.1 to the OP No.2 also. The complainant immediately approached the OP No.1 and requested that the complainant has no objection if the claim amount of Rs.12,13,164.16 i.e. balance car loan be disbursed to the OP No.2, but the OP No.1 refused to make the payment of claim and imposed the condition of submit cancellation certificate of RTO and No Due Certificate/NOC from the OP No.2. The complainant thereafter approached the OP No.2 and asked them to prove the said documents i.e. No Due Certificate/NOC to the OP No.1, but they refused to issue the same and they imposed the condition first of all the complainant should deposit the amount of Rs.12,13,164.16 with the bank and thereafter they issue the No Due Certificate/NOC and other relevant documents claimed by the OP No.1. The complainant suffering from mental tension, harassment and agony at the hands of the OPs as the complainant is not in position to settle the matter between the OPs No.1 & 2 as the OPs No.1 and 2 are not ready to perform their duties and unnecessarily imposed condition upon the complainant. The complainant also served a legal notice dated 05.08.2019, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to release the amount of Rs.12,13,164.16 to the OP No.2 and the OP No.2 shall supply the necessary documents to OP No.1 as per their letter dated 29.07.2019 and balance claim amount be disbursed to the complainant and to pay the Rs.1,00,000/- as amount of compensation on account of mental tension, harassment and agony suffered by the complainant alongwith cost of litigation Rs.22,000/-.
2. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable as there is no deficiency in service or negligence as alleged on the part of answering OP. The complainant has lodged the claim with the OP No.1 regarding damage to his vehicle No.PB-08 DX-8889 and immediately on receipt of the claim, it was duly registered, entertained and M/s Arun Kumar & Co., Surveyors and Loss Assessor was deputed for survey and assessment of loss. M/s Arun Kumar & Co. through its representative inspected the vehicle, took photographs and submitted their interim survey report dated 18.06.2018 and they also submitted their final survey report 04.02.2019 alongwith documents subject to terms and conditions of the policy. After receipt of the final survey report alongwith documents, official of answering OP No.1 duly scrutinized the claim file in view of the terms and conditions of the policy and competent authority of answering OP approved the claim in full and final for Rs.19,57,795/ - on net of salvage without RC which means the complainant is entitle to receive the said approved amount subject to surrender the registration certificate for cancellation in the concerned RTO and further submit the surrender/cancellation certificate to answering respondent for release of the approved amount. The answering respondent vide registered letter dated 29/07/2019 informed to the complainant that competent authority has approved the claim in full and final for Rs.19,57,795/- and further requested to the complainant to surrender the registration certificate to the concerned RTO and submit the cancellation certificate issued by the RTO. But the complainant has not submitted cancellation certificate rather the complainant had served false legal notice dated 05/08/2019 and said notice was duly replied by the answering respondent no.1 to their counsel vide reply dated 10/09/2019. Infact said vehicle of the complainant is hypothecated with Kotak Mahindra Prime Ltd and hence as conditions of the policy , the total claim amount of Rs.19,57,795/- will be disbursed to Kotak Mahindra Prime Ltd until unless the complainant provide a No Dues Certificate/No Objection Certificate from Kotak Mahindra Prime Ltd. i.e. respondents/OP No.2 & 3. The answering respondent never refused to pay and settle the claim. Infact as per policy terms and conditions the said amount can be released to the complainant if the complainant will provide a No Dues Certificate/No Objection Certificate from Kotak Mahindra Prime Ltd. So, there is no deficiency in service on the part of answering respondent and this Honorable Forum may pass appropriate order and directions to the parties for the said solution subject to fulfill the said conditions of the policy. The OP No.1 was always ready and still ready to settle and pay the said amount subject to fulfillment of the above said conditions which are mandatory for releasing the approved amount. It is further averred that the insurance policy is contract between insured and insurer and both the parties are bound by the terms and conditions of the op. The claim of the insured is payable subject to completion of above said terms of the policy. The complainant has not submitted the above said documents referred in afore going para and due to that reason the above said amount of Rs.19,57,795/- has not been released to the complainant. As such, the present complaint is not maintainable and same is liable to be dismissed. It is further averred that the complaint is barred u/S 26 of the Consumer Protection Act. The complainant is stopped by their own act and conduct from filing the present complaint since the complainant is not coming to the Commission with clean hands and had concealed the material facts from this Commission and as such, they are not entitled to the any discretionary from this Commission. On merits, the factum with regard to availing car loan from the OP No.2 is admitted and lodging the claim with the OP No.1 as well as issuance of insurance policy by OP No.1 is also admitted. It is also admitted that the OP No.1 had sent letter dated 29.07.2019 to the complainant, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OPs No.2 & 3 filed its separate joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form. The complaint is bad for mis-joinder and non-joinder of necessary parties. The present complaint is just an afterthought story. The present complaint has been filed just to deny the legal rights of the answering OPs No.2 & 3. The complainant has not come to this Commission with clean hands and has suppressed the true and material facts in connivance with OP No.1. Even if there is any dispute inter-se between the complainant and OP No.1, the answering OPs No.2 & 3 are nothing to do with that. The true facts are that earlier the vehicle was financed with the answering OPs No.2 & 3 and at that time the complainant assured to make the payment. Inspite of assurance default has been committed and the answering OPs No.2 & 3 are having right to recover their dues by adopting legal methods. Till getting entire liability discharged, the answering OPs No.2 & 3 cannot issue No Objection Certificate. The answering OPs No.2 & 3 are having every right to recover their dues. So, the present complaint is to be dismissed on this score alone ground. On merits, the factum with regard to availing car loan by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
7. It is admitted fact that the complainant has availed car loan from the OP No.2 for Rs.15,04,000/- on 31.01.2018. It is also admitted that the insurance policy was issued to the complainant by the OP No.1. The complainant has alleged that on 26.04.2018, the godown of the complainant got fire as the car of the complainant was parked, it also got into fire and the complainant suffered total loss qua the car. The complainant has proved on record Ex.C-4 to show that he is running the business under the name and style of M/s Shiv Enterprises and copy of the insurance has also been proved as Ex.C-5. Ex.C-6 is news publication to show that the fire broke out in the godown and as per submission of the complainant, he suffered total loss. It is also admitted that the complainant lodged the claim with the OP No.1. It is also proved and admitted that investigation was conducted by the OP No.1 and the report was submitted by the investigator to the extent that a loss accrued to the complainant due to the fire accident and the said fire accident is fully covered in the insurance policy. It is also proved by the OPs that the OP No.1 approved the claim of the car amounting to Rs.19,57,795/- as full and final loss of the vehicle. The OP No.1 has proved the documents to prove the settlement of the claim as Ex.R-1/2 to Ex.R-1/5 alongwith postal receipts, policy schedule Ex.R-1/8. Ex.R-1/13 is the letter written by the OPs to the complainant to surrender the original copy of insurance policy and RC after cancellation of the same and NOC from the bank. The complainant has written a letter to the OP No.1, vide Ex.R-1/9 dated 23.07.2019 committing to surrender the RC after cancellation and NOC. The complainant had admitted that Rs.19,57,795/- have been approved by the OP No.1. The complainant has also proved on record the statement of the accounts of the Kotak Bank i.e. OP No.2. Ex.C-7 account statement and as per which the amount due upto 22.07.2019 is Rs.12,13,164.16 and as per the document i.e. statement of account produced by the complainant, Rs.1,91,582.17 is due as on 01.09.2022. As per this document, the total principal amount outstanding as on 01.09.2022 is Rs.1,80,493.53 and pre-payment interest has been added by the bank i.e. OP No.2, to the tune of Rs.11,096.37. This amount of Rs.11,096.37 as pre-payment interest, without any reason and explanation has wrongly been added by the OP No.2 as the full amount is to be paid at one time. This is unfair trade practice on the part of the OP No.2 Therefore, the complainant is not liable to make the pre-payment interest of Rs.11,096.37.
8. In view of our above detailed discussion, it is proved that the complainant took car loan. He got total loss of the car in a fire and the OP No.1 has approved the claim of Rs.19,57,795/-. Therefore, the complainant is entitled for the relief and the complaint of the complainant is partly allowed and accordingly, OP No.1 is directed to make the payment of Rs.1,80,493.53 to the OP No.2 directly out of the settled amount of Rs.19,57,795/- and OP No.2 is directed to issue NOC to the complainant immediately on receipt of Rs.1,80,493.53. After receiving NOC from the OP No.1, the complainant is directed to handover the NOC to the OP No.1 and also directed to surrender the cancelled RC to the OP No.1. Thereafter, the OP No.1 is directed to pay the remaining amount of the approved and settled claim to the complainant in his account within 20 days from the receipt of the NOC and cancelled RC. Further, the OPs are directed to pay a compensation including litigation expenses of Rs.5000/- to the complainant for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Dr. Harveen Bhardwaj
01.09.2022 Member President
