Haryana

Jind

CC/227/2012

Hari Bhoomi - Complainant(s)

Versus

Shri Ram Transport Finance - Opp.Party(s)

Sh. P.P. Singh

22 Aug 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND. 
                                           Complaint No. 227 of 2012
   Date of Institution: 20.7.2012
   Date of final order: 22.8.2016

Hari Bhoomi Senior Secondary School near railway junction, Tehsil and District Jind through its founder Raj Singh s/o Sh. Duli Chand r/o village Julal Pur Kalan, Tehsil and District Jind.       
                                                                    ….Complainant.
                                       Versus
Shri Ram Transport Finance Co. Ltd. IIfloor shop No.145, Opp. ICICI Bank near Hotel Minerva, Red Square Market, Hissar through its Manager.     
                                                                 …..Opposite party.
                          Complaint under section 12 of
              Consumer Protection Act, 1986.

Before: Sh. Dina Nath Arora, President.
            Smt. Bimla Sheokand, Member.
            Sh. Mahinder Kumar Khurana, Member.    

   Present:     Sh. P.P. Singh, Adv. for  complainant.
                 Sh. H.M. Sharma, Adv. for  Opposite Party.
         
ORDER:
    The brief facts in the complaint are that the complainant had  got financed a school bus bearing registration No. HR56-2447 for a sum of Rs.2,50,000/- from the opposite party. The school bus was being run by the complainant on no loss no profit basis. The school bus of the complainant was stolen on 18.6.2010 and matter of the theft of school bus was reported to the police.  An FIR No.338 dated 18.6.2010 was 
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lodged against unknown person. The complainant approached and demanded insurance policy and other related papers of insurance from the opposite party to lodge a claim with the insurer for indemnity but the opposite party stated that the school bus was not insured on 18.6.2010 when it was stolen.  The insurance of the bus had expired on 2.6.2010 and the opposite party had not renewed the insurance or got the bus insured till 10.7.2010. The opposite party got the insurance cover of the above said bus on 10.7.2010 only. Deficiency in service on the part of the opposite party is alleged. It is prayed that the complaint be accepted and opposite party be directed to pay a sum of Rs.7.00,000/- as compensation on account of mental pain and agony as well as to pay a sum of Rs.20,000/- as litigation expenses to the complainant.  
2.    Upon notice, the opposite party has  put in appearance and filed the written reply stating in the preliminary objections  that the complainant has not come before this Forum with clean hands and has suppressed the true real facts; the complainant has got no cause of action and locus-standi to file the present complaint and the complaint is false and frivolous. On merits, it is contended that the  complainant  used the school bus in question for transporting the student as public carrier and used to earn profit. The insurance  cover note of the above said bus was in possession of the complainant  and it was bounden duty of the complainant to get its bus insured prior to 2.6.2010 i.e. expiry date of insurance policy. The opposite party never agreed to get the bus of the complainant comprehensively insured rather it was the 
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duty of the complainant to get its bus insured at his own risk and responsibility as the bus was in possession of complainant and it was plying the same on road. The date of expiry of insurance cover note was in the knowledge of the complainant himself. The complainant is defaulter of the opposite party as he never deposited the amount of installment as per agreement. All the other allegations have been denied by the opposite party. Therefore, there is no deficiency in service on the part of the opposite party. Dismissal of complaint with  special compensatory costs is prayed for. 
 3.    In evidence the complainant has produced the  affidavit of Raj Singh Ex. C-1,  copies of application Ex. C-2 to C-4, copy of FIR Ex. C-5 and  copies of policy schedule Ex. C-6 and C-7 and closed the evidence. On the other hand, the opposite party has produced the affidavit of Sh. Raj Kumar Saini Ex. OP-1, copy of loan cum hypothecation agreement Ex. OP-2, copy of summary of loans for vehicle Ex. OP-3, copy of order dated 23.12.2013 Ex. OP-4 and  copies of policy schedule Ex. OP-5 and OP-6 and closed the evidence. 
4.    We have heard Ld. counsel of both the parties and also perused the record placed on file. The forth most question involved in this case whether the opposite party is liable to pay the cost of the vehicle which was stolen by unknown person. Counsel for complainant argued that complainant had obtained the loan from opposite party as insured the vehicle at the time of hypothecated the vehicle in question at the time of giving the loan and it was the duty of the opposite party  to get the  school bus comprehensively insured after expiry of the insured 
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period, when the vehicle in question was stolen on 18.6.2010 matter of theft of school bus was reported to police on the same day and after theft of the vehicle complainant approached to the opposite party for supplying the insurance policy but the opposite party has not insured the vehicle after expiry of the insured period because the vehicle in question firstly was insured by the opposite party from 2.6.2009 to 1.6.2010. So it was the duty to insured the vehicle again and they can charge the premium amount from the complainant but they did not do so and it is a great negligency on the part of the opposite party and prayed for giving the insured claim amount.
5.    On the other hand, the opposite party has taken the first objection the complainant does not fall under the definition of consumer, the school bus bearing No.HR56-2447 is registered as a public carrier and not a private vehicle and complainant used the bus for transporting  the student and not for personal use. Since the bus in question is a commercial vehicle and registered as a public carrier as such the complaint is liable to be dismissed on the score alone. He further argued that since the bus in question and its insured cover note was in possession of complainant it was the duty of the complainant to get its bus insured prior to 2.6.2010 i.e. expiry date of insurance policy. There is no agreement with the complainant the vehicle in question will be insured by the opposite party. It was the bounden duty of the complainant to get its bus insured at its own risk and responsibility as the bus was in possession of the complainant and it was plying the same on road. The date of expiry of insurance cover 
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note was in the knowledge of the complainant himself. In this way, the opposite party was under no obligation to get the vehicle insured. It was sold fault and negligence on the part of complainant himself. Even otherwise the complainant has not deposited the installment ultimately matter was preferred to Arbitrator and complainant did not appear before the Arbitrator on the various date lastly appeared before the Arbitrator on 2.4.2011 thereafter he did not join the proceeded and ex-parte award was passed by the Arbitrator on 23.12.2013 directing the complainant to pay Rs.3,48,736 together with interest @12 A from 1.6.2010 till payment and opposite party also filed the execution for award in District Judge, Jind and complainant also filed the objection and matter is sub-judice. There is no deficiency in service on the part of the opposite party and prayed for dismissal of complaint.
6.    We have gone through the record it is clear that the Arbitration proceedings were initiated on 10.8.2010 as per Annexure OP-4 and award was passed by the Arbitrator on 23.12.2013. We have also perused the Arbitration award it is clearly mentioned that complainant lastly appeared on 2.4.2011 thereafter he did not join the proceeding and ultimately award was passed against the complainant. It is also clear that the present complaint has been filed by the complainant on 20.7.2012 after initiating the proceeding before the Arbitrator. The complainant has also filed the objection before the District Judge in the Execution filed by the opposite party and matter is still sub-judice. The law laid down by the Hon’ble National Commission in case titled T. SiriNivas and others Vs. Srija Constructions 2016 (I) CPJ 
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page 512  held that the Arbitration Proceeding invoked-complaint-Maintainability-Arbitration petition was filed by petitioners prior to filing of consumer complaint-two parallel proceedings cannot go on simultaneously-complaint not maintainable. 
So it is clear that Arbitrator proceeding was filed by the opposite party prior to file the complaint in this Forum and Arbitration proceeding was very much in the knowledge of the complainant  and execution is pending for  implementation of award and complainant also appeared in the execution and matter is still pending. Therefore, two parallel proceedings cannot go on simultaneously. The complaint is not maintainable. Similar view has also given by the Hon’ble National Commission in case titled Hanuman Parsad Vs. The New India Assurance Company CPJ 1993 (I) and 2014 (II) CPJ page 109. In view of the above discussion, we are of confirm view that the complaint is not maintainable  even otherwise there is no agreement placed  on the file by the complainant that whether the opposite party was bound to insured the vehicle  when the insured period  was expired on 2.6.2009. It is also clear that the complainant has also renewed the insurance on 10.7.2011 which is Ex. C-6 after vehicle in question was stolen on 18.6.2010. Hence there is no substance in the question of maintainability of complaint as well as on merits, so the complaint of the complainant is hereby dismissed with no order as to costs.  Copies of order be supplied to the parties under the rule. File be consigned to the record room after due compliance.
  Announced on: 22.8.2014
                                President,
 Member          Member               District Consumer Disputes                                      Redressal Forum, Jind

Hari Bhoomi Vs. Shri Ram 
                    

Present:     Sh. P.P. Singh, Adv. for  complainant.
                 Sh. H.M. Sharma, Adv. for  Opposite Party.
         
         Arguments heard. To come up on 22.8.2014 for orders. 

                                President,
            Member     Member         DCDRF, Jind
                                  16.8.2014

Present:     Sh. P.P. Singh, Adv. for  complainant.
                 Sh. H.M. Sharma, Adv. for  Opposite Party.
         
         Order announced. Vide our separate order of even date, the complaint is dismissed. File be consigned to record room after due compliance.  
                                President,
        Member        Member           DCDRF, Jind
                                  22.8.2014