PER:

Nidhi Verma, Member

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 against the opposite parties on the allegations that the complainant is registered owner of vehicle Tata Make 1612 Registration No. PB02-H-9957. The complainant is plying the above said vehicle for earning his livelihood and livelihood and maintenance of his dependent family members by way of self employment. The complainant himself is employed on this vehicle and he has not engaged any servant etc. for this purpose. The above said vehicle of the complainant was duly financed by the opposite party No. 1 for Rs. 1,40,000/-. Out of this the complainant has repaid more than Rs. 50,000/- in installments. The above said vehicle was fully insured with the opposite party No. 2 insurance company vide policy/ cover note 10203/31/14529409 valid from 15.11.2013 to 14.11.2014 (mind night). The insured’s declared Value (IDV) of the vehicle was Rs. 1,78,096/-. The policy is comprehensive and covers risks. As such, complainant is consumer of the opposite parties. The insurance of the vehicle was done by the opposite party No.1. On 15.6.2014, the above said vehicle of the complainant met with an accident on Ganda Nala G.T. Road Gurdaspur at about 5.30 AM and which the vehicle was completely damaged. At that time, the vehicle was being driven by the complainant who is holding a valid driving license. The complainant reported the matter to the police of P.S. Sadar Gurdaspur and FIR No. 78 dated 19.6.2014 Under Section 279/337/427/338 IPC was registered. Matter was reported to the opposite parties by the complainant and the opposite parties deputed their surveyor who visited the spot on the next day and assessed the loss to the vehicle as total loss and it was assured that the complainant will get the full insured amount of the vehicle. Even the opposite party No. 1 told the complainant not to pay the remaining installments of loan, as the complainant has to receive much more money from the opposite party No. 2 and the remaining loan amount will be adjusted from the same. The opposite parties have also taken possession of the vehicle from the complainant now they have parked the same as Mukrian road Gurdaspur. Thereafter, the complainant lodged his claim with the opposite parties supported by all the requisite documents for payment on account of the loss suffered by him. But to the utter surprise of the complainant, the opposite parties are lingering the matter with one pretext or the other and till today no action in to the mater has been taken. Even the opposite parties are not giving anything in writing to the complainant. At the time of accident the vehicle was being driven by the complainant who is holding valid driving license issued by the competent authority. The complainant was not plying the vehicle against the terms and conditions of the insurance policy or in contravention of the insurance policy rules, nor there was any intentional or willful delay on the part of the complainant in reporting the matter to the opposite parties. The complainant himself suffered injuries in this accident and remained admitted at Dashmesh Hospital Adda Jaintipur District Amritsar from 15.6.2014 to 23.6.2014 and it was also assured by the opposite parties that they will reimburse the amount spent by the complainant on his treatment, but now the opposite parties have resiled from the same and refused to pay any money to the complainant spent on his treatment. The complainant spent more than Rs. 80,000/- on his treatment. The opposite parties by not making payment of full insured amount of the vehicle and the amount spent on the treatment of the complainant on fake and baseless observations are trying to back out from their obligations of making payment of the sum assured to the policy holder/ complainant with malafide intention and ulterior motive without any reason or rhyme. The complainant is entitled to receive the amount of insurance policy for the loss suffered by him. The complainant is also entitled to compensation to the tune of Rs. 50,000/- besides the amount of claim for the mental torture, physical harassment and financial loss caused by the opposite parties for no fault on the part of the complainant. The complainant has prayed that directions may kindly be issued to the honour the claim of the complainant and make the payment of full insured amount i.e. Rs. 1,78,096/- qua the claim of the complainant and Rs. 80,000/- spent by the complainant on his treatment due to injuries suffered in this accident immediately in terms of the insurance policy alongwith interest @ 18% P.A. from the date of accident of the vehicle till actual realization. He further prayed Rs. 50,000/- as compensation and Rs.5,000/- as litigation expenses. 

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version and contested the complaint by taking the preliminary objections that no cause of action has arisen to the complainant to file the present complaint. As such, the present complaint is liable to be dismissed. the complainant approached the opposite party No. 1 for financial assistance for the purchase of commercial vehicle Tata 1612 which was approved by the opposite party No. 1 vide loan agreement No. AMRIT0312090009 for the amount of Rs. 1,40,000/-. At the time of availing said financial assistance the complainant executed loan cum Hypothecation agreement on 14.12.2013 and agreed to pay back the said amount of Rs. 1,40,000/- in 23 equal installments alongwith interest commencing from 20.1.2014 payable till 20.11.2015, the total interest amount being 46,618/- and the same was payable by the complainant in monthly installments as per the schedule agreed to by complainant at the time of execution of loan documents and copy of which was also given to the complainant. Accordingly on account of the said financial assistance the complainant purchased said vehicle which was registered with the transport authorities with registration No.PB02-H-9957 and as per the said agreement the same was hypothecated with the opposite party No. 1. The complainant failed to maintain the financial discipline regarding the said finance facility and failed to make the payment of the installments to the opposite party as per the schedule but the payments were made by him as per his sweet will which will be evident from the account statement and several times committed default in the timely payment of installments and several times requests were made to the complainant to make the payment of the defaulting amount but to no effect. The lapse on the part of the complainant in maintaining the financial discipline and the demands raised by the opposite party No. 1 will be evident from the account statement. The complainant was called upon several times to clear the outstanding dues but the complainant utterly failed to comply with the terms and conditions of the agreements which he had executed with the opposite party No.1. As per terms and conditions of hypothecation agreement dated 14.12.2013 the complainant was liable to pay the installments for the repayment of the loan amount as per the schedule. As uptill 10.1.2018 an amount of Rs. 4,71,219/- has become outstanding against the complainant. As such, the present complaint is liable to be dismissed. The complainant does not fall within the definition of consumer as defined in Consumer Protection Act, 1986 as amended up to date. In fact the financial facility is being availed by the complainant for purchasing the vehicle in question to be used for commercial purpose. The complainant is running a business of Transport Company. Moreover, the conduct of the complainant will be evident from the fact that the complainant is defaulter in the payment of the installments and has failed to adhere to the terms and conditions of the loan agreement. As such, since the complainant has not come to this commission with clean hands and also does not fall within the definition of consumer, the present complaint is liable to be dismissed.  On merits, it was pleaded that the complainant cannot take the benefit of the plea that he is earning his livelihood from the said vehicle and he is a self employed person and that he is playing the said vehicle himself for the reason that the said vehicle was purchased by the complainant out of the financial assistance from the replaying opposite party and the said vehicle is being used by the complainant for commercial purpose. The complainant might have lodged his claim with the opposite party No. 2 and the same has nothing to do with the opposite party No.1. The opposite party No. 1 has denied the other contents of the complainant and prayed for dismissal of the same.

4        Notice was issued to the opposite party No. 2 and it was duly served but it opted not to come forward to contest the complaint and consequently, the opposite party No. 2 was proceeded against ex-parte vide order dated 3.1.2018. 

5        To prove his case, the complainant has tendered in evidence his affidavit Ex. CW1/A, copy of RC Ex. C-1, copy of certificate of policy schedule for the year 2013-14 Ex. C-2, copy of certificate of policy schedule for the year 2014-15 Ex. C-3 and closed the evidence. On the other hands, Ld. counsel for the opposite party No. 1 tendered in evidence affidavit of Sumit Kumar Ex. OP1/1 copy of account statement Ex. OP1/2 and closed the evidence. 

5        We have heard the Ld. counsel for the complainant and opposite party No. 1 and have gone through the record on the file.

6        In the present complaint, the complainant is registered owner of vehicle TATA Make 1612 Registered No. PB 02H9957. The said vehicle is fully insured with OP NO2 vide policy no. 10203/31/41529409 valid from 15.11.2013 to 14.11.2014 . On dated 15.06.2014 the said vehicle met with an accident on Ganda Nala GT ROAD Gurdaspur at 5:30Am and the vehicle was completely damaged . The complainant reported the matter to the police of P.S.Sardar Gurdaspur and FIR No. 78 dated 19.06.2014. U/s 279/337/427/338 IPC was Registered. Matter was reported to the respondents by the complainant and the respondents deputed their Surveyor who visited the spot on the next day and assessed the loss to the vehicle as total loss and it was assured that the complainant will get the full insured amount of the vehicle. Even the opposite party number 1 told the complainant not to pay the remaining installments of loan as the complaint has to received much more money from the opposite party number 2 and the remaining loan amount will be adjusted from the same. Thereafter the complainant lodged his claim with the opposite parties supported by all the required documents for payment on account of the loss suffered by him. It is pertinent to mention here that the complaint himself suffered injuries in this accident and admitted at Dashmesh Hospital Amritsar from 15^th June 2014, 23^rd June 2014 and spend more than ₹80,000 on his treatment the opposite parties assured that they will reimburse the amount to spend by the complainant on his treatment. But the opposite parties are lingering the matter with one pretext or the other. OP No.1 stated in their written version that the complainant Executed loan agreement on 14^th December 2013 and agreed to pay the said amount of ₹1,40,000 in 23 equal installment along with interest from 20^th January 2014 till 20^th November 2015 the total interest amount being ₹46,618. But the complainant failed  to maintain the financial discipline regarding the said finance facility and failed to make the payment of the installments to the opposite party as per the schedule. The complainant was called upon several times to clear the outstanding dues but the complainant utterly failed to comply with the terms and conditions of the agreement as up till 10^th January 2018 the amount of ₹4,71,219 has become outstanding against the complainant. The vehicle has been insured from OP No. 2 does not relate to the OP No. 1. However, complainant has failed to maintain the financial discipline and has failed to clear the outstanding dues towards the payment of installment for the repayment of loan , the complainant does not fall within the definition of consumer as defined in consumer protection Act. Further the lodging of claim by the complainant with OP No.2 and the same has nothing to do with OP No1.

7        We have heard the learned counsel for the parties and have gone through the record very carefully.

8        The complainant attached the valid driving licence (Ex.C 1) , certificate of policy schedule for the year 2013-14 (Ex C 2) , certificate of policy schedule for the year 2014-15 (Ex.C 3) but failed to provide any further documents related to the accident of the said vehicle like the copy of FIR, Photographs etc. as well as any bills or receipt regarding the treatment of the complainant for which he spend Rs. 80,000/- . On the other hand OP No.1 attached the copy of the account statement (Ex. C 1 /2) to prove their point that the complainant failed to maintain the financial discipline regarding the said finance facility and failed to make the payment of the installments to the OP No. 1 as per the schedule. Further in the absence of copy of FIR, claim form it has not been established on the record as how the accident was occurred. Further as per version of the complainant, on obtaining the intimation, the opposite party No. 2 has appointed the surveyor to access the loss but there is no report of surveyor which could establish that how much loss was occurred to the vehicle. In the absence of all the above said documents related to accident of vehicle as well as treatment allegedly taken by the complainant, the complainant has miserably failed to prove the accident on record.  Hence, the complainant has failed to prove any deficiency in service on the part of the opposite parties.

9        In view of above discussion the present complaint is dismissed  and the parties are left to bear their own costs. Copy of order will be supplied by District Consumer Disputes Redressal Commission, Amritsar to the parties as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

04.10.2022