Meghalaya

StateCommission

A/8/2022

Cholamandalam MS General Insurance Co Ltd - Complainant(s)

Versus

Shri Yndapeit Sohtun - Opp.Party(s)

28 Aug 2023

ORDER

MEGHALAYA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

SHILLONG

F.A No.8 of 2022

BEFORE

Hon’ble Mr.Justice(Retd) S.Pandey, PRESIDENT

Learned Member : Shri W.Khyllep

Learned Member : Shri C.P.Marak

Learned Member : Shri W.Synrem

Learned Member : Dr. G.B.M Mihsill

Cholamandalam MS General

Insurance Co. Ltd.

Aastha Plaza, 7^th floor, G.S. Road,

Opp. S.B. Deorah College                       

Ulubari, Guwahati - 781007                                                                                                                                                         ...Appellant

-versus-

1.Shri. Yndapeit Sohtun

S/o (L)S. Marbah

R/o Puriang,East Khasi Hills District

Meghalaya                                                                                                                                                                          ...Respondent No.1

2. M/S IndusInd Bank Ltd

Consumer Finance Division

Old No. 115,116, New No.34,

G.N Chetty Road, T. Nagar,

Chennai-600017                                                                                                                                                                 ...Respondent No.2

 

For the Appellant     :  Shri S. Jindal, Advocate

For the Respondent No.1:  Shri K. Sharma, Advocate

For the Respondent No.2:  Shri P.P.Borthakur,Advocate

Date of Judgment & Order  :   28.08.2023

Whether to be reported    :

 

Heard the Counsel for the Appellant Shri S. Jindal, Counsel for the Respondent No.1 Shri. K. Sharma, and Counsel for newly added Respondent No.2 IndusInd Bank Shri. Mr. P.P. Borthakur.  

This Appeal has been filed against the ex-parte Order dated 13.05.2022 passed by the District Consumer Disputes Redressal Commission, East Khasi Hills, Meghalaya, Shillong (hereinafter mentioned as ‘District Consumer Forum’) whereby and whereunder he has directed for payment of Rs. 5,36,510.52 (Rupees Five Lakhs Thirty six Thousand Five Hundred and ten and fifty two paisa)only under different heads, such as, cost of vehicle Rs. 4,91,510.52 (Rupees Four Lakhs Ninety one Thousand Five Hundred and ten and fifty two paisa) only, an amount of Rs. 25,000/- (Rupees Twenty five Thousand) only by way of deficiency in service and for mental agony, and Rs. 20,000/- (Rupees Twenty)only for litigation charges and intentional delay to resolve the matter at the earliest.

          The short fact of the case is that the Complainant / Respondent No.1 purchased a vehicle, namely, Maruti A-Star on 13.05.2013 bearing registration No. ML-05K-6037 from Rani Motors Madanryting, Nongthymmai, Shillong for an amount of Rs. 4,91,510.52 (Rupees Four Lakhs Ninety one Thousand Five Hundred and ten and fifty two paisa )only. The said vehicle was insured by Cholamandalam MS General Insurance Ltd.,Aastha Plaza, 7^th Floor, G.S. Road, Opp. S.B. Deorah College, Ulubari, Guwahati – 781007 with annual premium to be paid @ Rs. 13,291/- (Rupees Thirteen Thousand Two Hundred and ninety one) only. The financer was IndusInd Bank Ltd., Shillong having its registered office at 2401, Gen. Thimmayya Rd (Cantonment), Pune 411001, the vehicle was under insurance coverage for the period from 13.05.14 to 12.05.15. The said vehicle met with an accident on 11.06.14 at village Khappud under Mawryngkneng Police Station and, accordingly, a police case was registered at Mawryngkneng Police Station, G.D.E No. 05 dated 12.06.2014. It has been stated that, in the said accident, vehicle was completely damaged beyond repair. After the accident, the Appellant/ Insurance Company was informed by Shri. Wyraiwan Sohtun, who was driving the said vehicle at the time of the accident through its agent at Shillong. The Complainant/Respondent sustained injury in that accident, he was under treatment, after recovery, the Complainant/Respondent filed claim before the Appellant/Insurance Company submitting all relevant records and photos of damaged vehicle. The Appellant/ Insurance Company neither settled the claim of the Complainant nor made any correspondence with the Complainant/ Respondent with regard to the status of the claim. Having found no way out, the Complainant/ Respondent served a legal notice dated 09.07.2015 to the Appellant/Insurance making statement that in the said accident, vehicle was totally damaged beyond repair and claimed payment of full insurance amount. When having found no reply, the complaint case was filed before the District Consumer Forum vide C.C No. 41 of 2015. The said case was registered on 06.11.2015 and notice was issued to the opposite party fixing the date on 17.12.2015 for appearance and filing its reply. On different dates the Appellant/ Respondent remained absent as having not taken any step. As such, the case vide order dated 12.05.2016 was fixed for ex-parte hearing.

And from record, it appears that one Shri. Samrat Barua, learned counsel, filed power on behalf of the Appellant/ Insurance Company whereafter application dated 21.06.2018 was filed making prayer for recall of ex–parte order dated 12.05.2016. From the order sheets, it appears that the said application was placed before the District Consumer Forum on 13.09.2018 who took cognizance of recalling of the order dated 21.06.2018 and the case was fixed on 30.05.2019. The District Consumer Forum heard the complainant and passed the order dated 30.05.2019 in the following term:-

“ Case record put up today.

Learned counsel Shri. Krishna Sharma present. None appeared for the Opposite Party.

Heard learned counsel for the Complainant. The learned counsel submits that the Opposite party had filed an application on 21.06.2018praying for recalling the order dated 12.05.2016.

The Forum was pleased to proceed ex–parte against the Opposite party vide order dated 21.06.2018.

The petition filed by Opposite party is pending for disposal for almost one year. None had appeared today for Opposite party, it appears that Opposite party are not interested in pursuing the matter.

Accordingly, petition dated 21.06.2018 filed by Opposite party for vacating the ex – parte hearing stands dismissed.

Fix 22.08.2019 for hearing. ”                  

          Accordingly, the application dated 21.06.2018 filed by the Appellant was dismissed finally. Thereafter, on several dates, the case was taken up and was adjourned. The case was again fixed on 22.08.2019 and thereafter adjourned. The order sheets shows, the District Consumer Forum did not sit on 17.10.2019 and 14.11.2019. In the meantime, new President of the District Consumer Forum was appointed and the case was fixed on 13.02.2020. Counsel for the Complainant/Respondent appeared on that date and the case was again adjourned for 16.04.2020. On 16.04.2020 the case was not taken up due to the spread of the COVID – 19 pandemic. No sitting was held on 04.06.2021 also on account of COVID – 19. The case was fixed again on 16.12.2021 but not taken up. It is apparent from the order sheets that the case was again fixed for hearing on 23.12.2021 but adjourned and finally, the case was taken up on 17.03.2022 and decided ex-parte.

          Complainant/Respondent represented by Shri. K. Sharma submitted that order may be passed on the basis of documents filed and material on records. The Opposite party remained absent. The District Consumer Forum fixed the case for order on 13.04.2022. Accordingly, the ex – party order was passed.

      During the pandemic period, the new President joined. The new President ought to have issued a fresh notice to both the parties but the order sheets does not show that any notice was issued to the parties.

          It is relevant to note that during the COVID–19 pandemic, the movement of the people was restricted. Forum was not functioning.The District Consumer Forum ought to have issued fresh notices to both sides. It is also to be noted that in the present case, the IndusInd Bank Ltd. which was/is the financer of the vehicle which was under hypothecation. The ex-parte order has been passed where the District Consumer Forum directed the awarded amount as mentioned above be paid to the complainant/opposite party no.1 without considering the fact of the status of the financer in the event when the vehicle was under hypothecation of the financer.

          This Commission vide order dated 18.10.2022 added the financer as a party. The financer appeared, filed affidavit, making statement that the Complainant had made irregular payment of monthly installments as well as huge outstanding amount of arrear is standing against the registered owner of the vehicle. It has further been stated that the vehicle was abandoned by the Complainant/Respondent. When the claim was repudiated, the damaged vehicle was taken in possession without issuing inventory against the possession or surrender. It has been mentioned that the Complainant/Respondent has paid total amount of Rs. 1,45,120/- (Rupees One Lakh forty five thousand one hundred and twenty) only and as per record Rs. 14,72,843.06/- (Rupees Fourteen Lakhs seventy two Thousand eight hundred and forty three and six paisa) only along with other charges of the bank is still pending as outstanding dues against the Complainant / Respondent. This Commission is of the view that the financer viz. IndusInd Bank Ltd. is a necessary party and before deciding the issue, the financer ought to have been heard.

          Though the vehicle was covered under insurance but it is clear that the vehicle was/is still under hypothecation of the IndusInd Bank Ltd. In such circumstances, when the Complainant failed to deposit the entire money of the price of the vehicle, the District Consumer Forum ought to have considered whether entire insurance money is to be given to the Complainant/ Respondent or the money is to be paid to the IndusInd Bank as well, or it will be divided proportionately in between Financer and Owner of the vehicle.

          Looking to the fact that huge outstanding dues is still pending against the Complainant, the order of the District Consumer Forum dated 13.05.2022 is set aside and the matter is remanded back to the District Consumer Forum with a direction to decide all the issues including the issue of hypothecation as well as in what manner the payment of insurance will be divided between the parties.

          It is expected that the District Consumer Forum would decide the case within six months from the date of receipt of a copy of this order.

          It is directed that Complainant/ Respondent would make the financer as Opposite Party and all the parties including newly added opposite party (Financer) would remain present on 25.09.2023 before the District Consumer Forum. This direction is also applicable to the IndusInd Bank Ltd. (Financer).

          With the aforesaid observations and directions, the appeal is allowed.

          Let this order be communicated to all the parties and also handed over the same to the counsel of all the parties.   

          Let the records of District Consumer Forum be remitted back immediately.