Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by original opposite party (for short O.P.) Nos.1 and 2, feeling aggrieved by an order dated 24/06/2005, passed by District Consumer Forum, Yavatmal, by which the consumer complaint No.CC/67/2005 filed by the respondent herein has been partly allowed.
2. The facts in brief giving rise to present appeal are as under.
a) The respondent herein purchased one jeep by obtaining finance of Rs.3,20,000/- from the appellants. It was to be repaid with finance charges of Rs.88,000/- by installments from 15/04/2004 till 15/02/2005. It is alleged by the respondent that though the monthly installment was of Rs.11,680/-, he as per the request of the appellants paid in addition to the said installments, Rs.957/- monthly i.e. total Rs.12,637/-/- and that the said additional amount of Rs.957/- was paid by way of premium to be paid to the insurance company for getting insured the aforesaid vehicle. The respondent paid the installments till the month of June 2004. However the installment from July 2004 to December 2004 were due.
b) The said vehicle met with an accident on 12/10/2004 and it was damaged in that accident. The respondent suffered loss of Rs.60,000/- due to damage of the said vehicle. Hence he demanded insurance policy from the appellant No.1 for making the insurance claim. However the appellant said that the insurance policy was not taken. The respondent also served notice dated 10/01/2005 to the appellant making the claim, but it was not complied with. Therefore the respondent alleging deficiency in service on the part of the appellant, filed consumer complaint under section 12 of the Consumer Protection Act, 1986 seeking direction to the appellant to pay him Rs.60,000/- to compensate his loss and further to pay him compensation of Rs.15,000/- for physical and mental harassment, notice charges Rs.300/- and litigation cost of Rs.5,000/-. He also claimed direction to the appellants that they will be responsible for third party claim if that arises in an accident.
3. The appellants filed reply to the complaint and thereby resisted the complaint. It raised legal objection, firstly that as there is arbitration clause in the agreement the complaint before the Forum is not maintainable, and secondly as per the clause in the agreement only the Civil Court of Mumbai has got jurisdiction to settle the dispute. They admitted that they paid Rs.3,20,000/- to the respondent by way of finance and it was to be repaid as per agreement by EMI of Rs.11,680/-. They denied that Rs.957/- were paid alongwith EMI by the respondent towards the insurance premium as per their request. They submitted that they had never asked the respondent to pay monthly premium of Rs.957/- for taking insurance of the vehicle. They also submitted that the respondent has not paid the installments with effect from the month of June 2004. Their case in brief is that it was the responsibility of the respondent to get insured the vehicle and it was necessary for the respondent to give consent for getting insured his vehicle and as he did not give the consent, they did not insured the vehicle. It is denied that the vehicle was damaged in an accident on 12/10/2004 and the respondent sustained loss of Rs.60,000/- due to the said reason. Thus denying that the appellants rendered deficient service to the respondent, they submitted that complaint may be dismissed with cost.
4. The Forum below after hearing both parties and considering evidence brought on record, partly allowed the complaint by passing impugned order. The Forum directed the appellants as follows :
a) The appellants shall pay to the respondent Rs.52,000/- towards the loss sustained by the respondent due to damage of his vehicle. Moreover the appellants can adjust the said amount in the out standing loan amount. Moreover the appellants shall not apply any interest and penalty and shall give accounts of the said finance to the respondent and if any amount is found paid in excess then it be refunded to the respondent and if some amount is found due to the respondent then the appellants shall make demand of the same from the respondent.
b) The appellants shall pay to the respondent, compensation Rs.3,000/- for mental harassment and litigation cost of Rs.1,000/-.
c) The order be complied with within 30 days from the date of receipt of copy of the said order.
5. Thus this appeal is filed by original O.P.Nos.1 and 2. This Commission issued notice of this appeal to the respondent, but he failed to appear despite service of notice. Hence this Commission proceeded ex-parte against the respondent. This Commission also called the original record and proceedings of the complaint No.37/2005 from District Forum, Yavatmal. We have perused the same. We have also perused the record and proceedings of the appeal.
6) The learned advocate of the appellant also filed written notes of arguments and reiterated the aforesaid case of the appellants as set out in their reply filed to the complaint. He also submitted that the Forum below has not properly considered the submission made in the reply and erred in partly allowing the complaint. He also submitted that before the Forum the respondent did not file any document to show that previously the appellants had taken insurance policy of the vehicle. Moreover the respondent did not give any consent in writing to the appellants for obtaining insurance policy and extra payment made by him was not towards the part of the premium but he paid that extra amount on his own for repayment of loan.
7) The learned advocate of the appellant pointed out the clause No.4 of the insurance policy filed on record in support of his submission that as per the said clause it was the responsibility of the respondent to get insured his vehicle independently. Therefore learned advocate of the appellant submitted that the Forum below erred in not considering the clause No.4 of the agreement and erred in holding that it was the responsibility of the appellant to obtain the insurance policy and as it failed to obtain the same, it is liable to pay the compensation.
8) The learned advocate of the appellant also relied on the observations in the following cases.
i) Rajasthan State Electricity Board………V/s………M/s.Universal Petrol Chemicals Ltd, decided by Hon’ble Supreme Court on 12/01/2009 in Civil Appeal No.5430 and 5431 of 2002. In that case an agreement contained an arbitration clause which stipulated that in case of dispute, the Jaipur Court only will have jurisdiction and no other Court. Therefore the proceeding was transferred to the Jaipur Court.
ii) Shimla Development Authority……V/s……Yash Pal Dass (HCDRCC), decided by learned Haryana State Commission in first appeal No.28/1991 as per order dated 06/05/1992. In that case it was agreed between the parties that all dispute shall be subject to Shimla Jurisdiction. But the complaint filed by the complainant before the District Forum of Ambala. It was held that the said Forum has no jurisdiction.
iii) H.D.F.C. Bank Ltd…….V/s……Kumari Reshma and others, decided by Hon’ble Supreme Court as per order dated 01/12/2014 in Civil Appeal No.10608 and 10609 of 2014. In that case it is held that when the intention of the legislature is quite clear to the effect, that registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there is evidence on record that the respondent No.2 without insurance plied the vehicle in violation of the statutory provision contained in Section 146 of the Motor Vehicle Act, 1988 and hence the High Court could not have mulcted the liability on the financier.
9. The learned advocate of the appellant therefore requested that the impugned order may be set aside by allowing the appeal.
10. At the out set we found that the terms and conditions of the contract of finance is binding on both the parties. Clause No.4 of the said contract is relating to the insurance. It is specifically mentioned in it that the borrower shall at his own cost insure and keep informed with the insurance company during the tenure of contract and the lender though not bound, may insure the vehicle.
11. Thus as per the said clause No.4 of the contract, it was the sole responsibility of the respondent to get insured the vehicle during the period of the contract of finance. Hence we find that the respondent cannot shift the said responsibility on the appellants and the thus the respondent cannot claim compensation from the appellants after the vehicle is damaged in an accident.
12. The respondent has not filed any document to show that he paid extra amount of Rs.957/- alongwith the EMI to the appellants towards the part of the premium for obtaining insurance policy by the appellants. It cannot be presumed without any evidence that Rs.957/- were paid alongwith the EMI for the purpose of obtaining insurance policy by the appellants.
13. We find that it was incumbent on the respondent to obtain the insurance policy and then only to ply the vehicle. He cannot shirk his responsibility on the appellants by plying the vehicle without insurance policy and claiming the compensation. It was the responsibility of the respondent to see that his vehicle is duly insured.
14. We thus find that the Forum has not properly considered all these material aspect of the case and erred in partly allowing the complaint holding the appellants responsible to compensate the loss of the respondent as above. Hence on this count we hold that the impugned order deserves to be set aside.
15. So far as the question of jurisdiction of the Forum is concerned, we find that the Hon’ble Supreme Court in the case of Fair Air Engineers Pvt.Ltd and Another…….V/s…….N.K.Modi, reported in III(1996) CPJ 1 (SC) has held that the remedy provided under Consumer Protection Act is additional remedy as provided under section 3 of the said Act and therefore the said Act intends to relieve the consumers of cumbersome arbitration proceeding or civil action, unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise, given in the said Act.
16. Thus we find that despite of the arbitration clause and the clause regarding particular jurisdiction of Civil Court of Mumbai, the complaint filed before the District Forum below was maintainable in law.
17. However as we have found that the respondent has not proved that the appellants provided deficient service to him by not getting insured his vehicle, the appeal deserves to be allowed. Accordingly we proceed to pass the following order.
// ORDER //
- The appeal is allowed.
- The impugned order is set aside.
- The complaint stand dismissed.
- No order as to costs in appeal.
- The original record and proceedings of complaint No.CC/67/2005 be sent back to the District Consumer Forum, Yavatmal.
- Copy of the order be furnished to both parties free of cost.
