Karnataka

Chitradurga

CC/72/2018

B.M.Megharaj - Complainant(s)

Versus

S.Vasantha badamalli - Opp.Party(s)

R.Gangadar

01 Mar 2019

ORDER

COMPLAINT FILED ON:22/06/2018

DISPOSED      ON:01/03/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:72/2018

 

DATED: 1^st MARCH 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	B.M.Megharaj S/o B.V. Mallagowda, Aged about 37 years, Car Owner R/o:No.157,Kathral, Balekatte, Chitradurga.   (Rep by Sri.C. Shivu Yadhav, Advocate)
V/S
…..OPPOSITE PARTIES	1. S.Vasantha Badamalli aged about 34 years, C/o Shanthappa Owner Vin Tata Motors,Aero Motors, BVKS layout Main road, Bhimsamudhra road, Chitradurga. 2. Vinay Bandimane,Win Auto Tata Motors Dealer, Nisarga nilaya,2nd cross, 2nd block, Kuvempu Nagara, Tumkuru. 3. The Branch Manager,The New India Assurance Co.Ltd., Opp: to Sri Ram Mandir, General Kariyappa Road, K.R Extension, Tumkuru-572101   (Rep by Sri. R.N. Parthalinga, Advocate for OP No.1, K. Mohan Bhat, Advocate for OP No.3 and OP No.2 ex-parte )

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP No.1 and 2 to pay Rs.6,50,000/- towards tools and jock and other expenses, RS.1,97,565/- from OP No.3 and Rs.1,00,000/- towards mental agony   with interest @ 12% p.a and to grant such other reliefs.

2.      The brief facts of the case of the above complainant are that, he is the owner of Tata Moors Bolts XM bearing Registration No.KA-16 C-5517 and the same has been insured with OP No.3 through OP No.1 and 2.  The above said vehicle has been purchased on 17.06.2016 for a sum of Rs.7,20,000/-.  Out of which an amount of Rs.4,80,000/- has been taken as loan from Sri Ram Transport Finance Co. Ltd., agreeing to pay an amount of Rs.14,800/- p.m towards loan installment.  At the time of purchasing the above said vehicle, the complainant has paid the insurance premium and every done the service with OP No.1 and 2.  After purchasing the said vehicle, the same has been registered with the RTO, Chitradurga under the above said number.  The above said vehicle has been purchased for hiring purpose and was earning Rs.1,500/- per day.  The complainant has employed the driver by paying Rs.8,000/- per month.  From the date of purchasing the said vehicle, the same has been serviced with the OP No.1 and 2.  It is further submitted that, the above said car met with an accident on 18.04.2017 and the police have seized the same.  After releasing the same, the complainant left the car with the OP No.1 and 2 for repairs on 03.05.2017, where the OP No.1 and 2 orally assured that the vehicle will be repaired within one month stating that, the repair cost will be Rs.1,70,000/-.  On the same day, the complainant has paid Rs.50,000/- to the OP No.1 and 2 as an advance amount.  After 20days, the complainant approached the OP No.1 and 2 to take back the vehicle, by that time, the OP No.1 and 2 told the complainant that, the repair is yet to complete as the spare parts are not available and also there was labour problem and given back the vehicle on 20.01.2018 i.e., after 8 months 17 days by receiving the remaining amount of Rs.1,20,000/-.  At the time of giving the vehicle back, they have not given tools kit and jock, which is a deficiency of service on their part.  There was a loss of Rs.1,500/- per day to the complainant and in all the complainant has suffered a loss of Rs.3,85,000/- and also Rs.1,26,781/- towards the installment amount for 8 months 17 days.  In spite of receiving the amount towards repair charges, they have not repaired the vehicle to the satisfaction and not given bills towards spare parts.  The insurance is valid for the period from 17.06.2016 to 16.06.2018 under policy No.12220031160100194459 and the vehicle is damaged in an accident on 18.04.2017.  The vehicle left with the OP No.1 and 2 for repairs and the same has been given back on 20.01.2018.  Thereafter, the complainant submitted a claim form to OP No.3 through OP No.1 and 2, but the OP No.3 refused to pay the claim amount stating that, OP No.1 and 2 have not paid the policy amount within time under Sec.64VB of IRDA Regulation 2002 though the complainant has paid the amount within time, which is a deficiency of service and prayed for allow the complaint.

 3.     On service of notice, OP No.1 appeared through Sri. R.N. Parthalinga, Advocate, OP No.3 appeared through Sri. K. Mohan Bhat, Advocate and filed their respective version denying all the allegations made in the complaint.  In spite of service of notice, OP No.2 did not appear before this Forum and hence, placed ex-parte. 

According to the version filed by the OP No.1 that, the complaint is not maintainable and there is no relationship of a consumer between the complainant and OP No.1 and this Forum has no jurisdiction to entertain this complaint and the OP No.1 is not liable to pay any compensation.  It is true that, the complainant is the owner of Tata Motor Bolt bearing Registration No.KA-16 5517, OP No.1 is the Manager and OP No.2 is the dealer of Vin Auto Tata Motors, Chitradurga respectively.  The OP No.1 is only a Manager under OP No.2 and he is not the owner/dealer/partner.  It is denied that, on 17.06.2016 the complainant has purchased the vehicle from OP No.2 through OP No.1.  This OP has no knowledge about obtaining the loan of Rs.7,20,000/- from Sriram Transport Finance Co. Ltd., and agreed to repay the loan installment of Rs.14,800/- p.m and the same is within the knowledge of OP No.1 and 2.  It is denied that, the vehicle has been purchased for hiring purpose and he was earning  Rs.1,500/- as the complainant has not produced any documents and Bank pass book to show the same.  It is denied that the complainant has employed the Driver to drive the vehicle by paying Rs.8,000/- p.m as there was no documents to prove the same.  It is not known to this OP No.1 that, on 18.04.2017 the vehicle met with an accident, the police have seized the same and thereafter released the same.  It is denied that, the OP No.1 has not given any assurance that, the vehicle will be repaired within one month.  The OP No.1 is only a Manager with the OP No.2 and therefore, there is no deficiency of service on his part.  The averments made in para 6 is denied as false.  It is true that, the OP No.3 is the insurance company, the complainant has paid the insurance premium at the time of purchasing the vehicle from OP No.1 and 2 and the insurance policy is valid for the period from 17.06.2017 to 16.06.2017.  It is not known to this OP that, the vehicle met with an accident on 18.04.2017 and damaged.  It is true that, the vehicle left for repairs on 03.05.2017 and the same has been repaired on 20.01.2018.  It is not known to this OP that, the OP No.2 has not paid the insurance amount within time.  The averments made in para 8 is denied as false.  The averments made in para 10 that, the cause of action for this complaint arose on 03.05.2017 when the complainant left the car for repairs is denied as false.  The complainant has impleaded the OP No.1 unnecessarily without any deficiency of service.  The OP No.1 is only a Manager with the OP No.2 and there was no relationship of consumer with this OP and any type of contract/agreement.  It is submitted that, the complainant has left the vehicle for repairs on 03.05.2017 with OP No.2.  As the complainant not paid the loan dues to the Sriram Transport Finance Co. Ltd., the company has not kept the vehicle documents and without the vehicle documents, it cannot be assessed about the repair of the damaged vehicle.  After four months, the complainant has paid the loan dues to the Finance company and thereafter, the transactions have been done, for that, the complainant is responsible and there is no deficiency on the part of OP No.2 ie., the dealer and therefore, there is no cause of action arose to file this complaint and prayed for dismissal of the complaint against OP No.1.

According to the version filed by the OP No.3, it is stated that, OP No.3 is tie up business from Tata Motors and Vin Auto.  The Tata Motors issued policy No.12220031160100194859 for the period from 17.06.2016 to 16.6.2017 and as per the policy issued by Vin Auto-dealer Tata Motors the payment should deposited to CMS vendor within 24 hours.  The complainant purchased the policy through M/s Vin Auto dealers for Tata Motors and premium paid to the dealer and issued the policy under IRDA regulations 2002 for the compliance of the 64VB as below:

In all cases of risks covered by the policies issued by an insurer, the attachment of risk to an insurer will be in consonance with the terms of Section 64VB of the Act and except in the cases where the premium has been paid in case, in all other cases the insurer shall be on risk only after the receipt of the premium by the insurer. 

Provided that in case of a policy of general insurance that where the remittance made by the proposer or the policy holder is not realized by the insurer, the policy shall be treated as void ab-initio.

The Vin Auto has not paid the premium amount within 24 hours to New India Assurance Co. Ltd., therefore, the policy cancelled as void ab-initio and hence without compliance of 64VB, this OP is not liable to pay any damages to the complainant.   

The averments made in para 1 is true that, the OP No.3 is tie up with the Vin Auto and issued the policy to the cars sells by the said dealer and the rest of the averments are denied.  The averments made in para 2,5 and 6 are denied as false.  The averments made in para 8 to 11 are denied and the complainant is put to strict proof of the same.  Therefore, the complainant is not maintainable and barred by limitation and prayed for dismissal of the complaint.

          4.      Complainant herself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-16 were got marked and closed his side. OP No.1, one Sri. Vasanth has examined as DW-1 by filing the affidavit evidence and on behalf of OP No.3, one Sri. M.R. Nagaraja Adiga, the Sr. Divisional Manager has examined as DW-2 and Ex.B-1 to Ex.B-6 documents have been got marked and closed their side.  

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OP No.2 and 3 have committed deficiency of service in repairing the vehicle and settling the claim under the policy and entitled for the reliefs as prayed for in the above complaint?

              (3) What order?

         7.       Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

Point No.2:- As per final order.

REASONS

8.      Point No.1:- There is no dispute between the parties that, the complainant has purchased Tata Moors Bolts XM car bearing Registration No.KA-16 C-5517 from OP No.2 and the same has been insured with OP No.3 through OP No.1 and 2 on 17.06.2016 for a sum of Rs.7,20,000/- by obtaining loan of Rs.4,80,000/- from Sri Ram Transport Finance Co. Ltd., agreeing to repay the loan amount of Rs.14,800/- p.m towards loan installment.  Accordingly, the complainant was paying the EMI to the finance company.  It is argued that, the above said car met with an accident on 18.04.2017 and the same has been intimated to the OP No.3.  The OP No.3 appointed a surveyor to estimate the damaged vehicle, in turn the OP No.3 estimated the cost of repair of the damaged vehicle to the tune of Rs.1,25,000/-.  On 03.05.2017, the complainant has left the vehicle with OP No.1 under the instructions of OP No.2 for repairs and on that day itself, the complainant has paid an advance of Rs.20,000/- towards repairs.  After repairs, the complainant has paid the entire amount to the OP No.2 and in turn the OP No.3 instructed the OP No.1 to hand over the vehicle to the complainant.  The OP No.1 is only a Manager working under the OP No.1 and he done the work as per the instructions of OP No.2.  Accordingly, the OP No.2 has intimated the OP No.1 for repair of the damaged vehicle and hand over the same to the complainant.  The delay in handing over the vehicle is nearly for 8 months 17 days.  The complainant has filed this complaint before this Forum seeking relief against the OP No.1 and 2 for delay in repairing the vehicle for the above said period and the OP No.3 has failed to pay the insurance amount to the damaged vehicle.  The Advocate appeared on behalf of complainant submitted that, the OP No.3 has failed to pay the cost of the damaged vehicle and OP No.1 and 2 have delayed in repairing the vehicle.  The Advocate appeared on behalf of OP No.1 submitted that, he is only a Manager working as per the instructions of OP No.2 and he is no way concerned to the complainant and the insurance company.  The OP No.2, 3 and complainant are concerned to this case and OP No.1 is only a formal party to this proceedings.  So, the claim against OP No.1 is not maintainable and not sustainable under law and liable to be dismissed.  The notice has been served to the OP No.2, but did not appear before this Forum and hence, placed ex-parte.  Advocate appeared on behalf of OP No.3 submits that the OP No.3 is liable for payment of Rs.1,25,000/- as per the report submitted by the surveyor.  The documents produced by the complainant and OP No.1 and 3 clearly shows that, the complainant has produced the estimation towards cost of the repair for Rs.1,70,000/-.  But the surveyor appointed by the OP No.3 has estimated the cost of Rs.1,25,000/-.  The variation of the estimation given by the OP No.2 and surveyor is   of Rs.50,000/-.  Accordingly, this Forum comes to the conclusion that, the OP No.3 is liable to pay a sum of Rs.1,50,000/-.  Here the case on hand, the OP No.2 is only responsible person and further the OP No.2 has collected the insurance premium amount from the complainant, that amount has to be sent to the OP No.3.  Firstly, the OP No.3 submits that, the premium amount was not at all received from the complainant or from OP No.2.  But as per the exhibits produced by the complainant, it clearly shows that, the OP No.2 has received the premium amount from the complainant.  Further the documents produced by the OP No.3 is also admits that, the OP No.2 has sent the premium amount to OP No.3 by late.  In this case, the OP No.1 has not committed any deficiency of service and OP No.2 and 3 are only the parties, they have to pay the compensation amount to the complainant.  The complainant has stated in his complaint that, the delay in repairing the vehicle is of 8 months 17 days.  The entire family of the complainant is depending upon the earnings of the said vehicle and every day there was an income of nearly Rs.1,500/-, that amount has been lost due to the delay in repairing the vehicle.  Therefore, the Forum taken into consideration the amount of Rs.1,000/- per day towards loss, going to pass an award of Rs.2,40,000/- along with interest to be paid by OP No.2.

 9.     We have gone through the entire documents and exhibits produced by both parties, it clearly goes to show that, the complainant has obtained the loan from Srirama Transport Finance Co. Ltd., for Rs.4,80,000/- for purchasing the car from OP No.2 by paying down payment.  Here the case is on hand that, there is no dispute between OP No.2 and 3 or the complainant that, the complainant has taken vehicle from OP No.2 and the same has been insured with OP No.3.  The main allegation made by the complainant is that, the OP No.2 has not at all delivered the vehicle within time and they have handed over the vehicle after 8 months 17 days from the date of leaving the vehicle for repairs, the same is not disputed by the OP No.2, the same amounts to deficiency of service on its part.  The OP No.3 is the insurance company has received the premium amount through OP No.2.  The contention taken by the OP No.3 that, the OP No.2 has not sent the premium amount to it, the same cannot be accepted because, the documents produced by the complainant and OP No.3 shows that, the OP No.3 has received the premium amount from OP No.2.  Such being the case, the OP No.2 and 3 are held liable to pay the compensation to the complainant.  Therefore, this Forum comes to the conclusion that, the OP No.2 and 3 have committed deficiency of service in rendering their service.   Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            10.     Point No.3:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that the OP No.2 is hereby directed to pay a sum of Rs.2,40,000/- to the complainant towards delay in repairing the vehicle nearly for 8 months 17 days along with interest at the rate of 9% p.a from 03.05.2017 till realization.

It is further ordered that the OP No.3 is hereby directed to pay a sum of Rs.1,50,000/- to the complainant towards repair cost of the said vehicle.

It is further ordered that, the OP No.2 and 3 are hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings to the complainant.  

M/s Srirama Transport Finance Company is hereby directed to recover the loan amount of the vehicle from the principal debtor first, if that amount is not sufficient, then only, they have to take steps against the surety by name Gangadhara   S/o Mahalingappa, Advocate, M.K. Hatti, Chitradurga.

          Complaint filed as against OP No.1 is hereby dismissed.

It is further ordered that, the OP No.2 and 3 are hereby directed to comply the above order within 30 days from the date of this order.

 

 (This order is made with the consent of Member after the correction of the draft on 01/03/2019 and it is pronounced in the open Court after our signatures)         

 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri. Vasanth by filing the affidavit evidence

DW-2: Sri. M.R. Nagaraja Adiga, the Sr. Divisional Manager of OP No.3 by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Proforma Invoice
02	Ex-A-2:-	B-Register Extract
03	Ex-A-3:-	Form No.42
04	Ex-A-4:-	Insurance policy
05	Ex-A-5:-	Job Slip
06	Ex-A-6 to 9:-	Receipts dated 20.05.2016, 20.09.2017, 05.12.2017 and 10.01.2018
07	Ex.A-10:-	Letter dated 03.11.2017 to complainant by OP No.3
08	Ex-A-11:-	Letter dated 02.05.2018 to complainant by OP No.3
09	Ex-A-12:-	Legal Notice dated 22.05.2018
10	Ex-A-13:-	3 postal receipts
11	Ex-A-14 and 15:-	3 postal acknowledgements
12	Ex-A-16:-	Letter dated 28.05.2018 to one Sri.Gangadhar by OP No.3

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Insurance Policy
02	Ex.B-2:-	e-mail copies
03	Ex.B-3:-	Letter dated 02.05.2018 to complainant by OP No.3
04	Ex.B-4:-	Letter dated 09.02.2017 to OP No.2 by OP No.3
05	Ex.B-5:-	Statement of payments
06	Ex.B-6:-	Final Survey report dated 15.03.2018

 

 

 

MEMBER                                                   PRESIDENT

Rhr**