BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.96/2009 Order dated this the 30th day of November 2009 COMPLAINANT/S Smt.N.Sharada W/o G.K.Ningegowda, R/o Sri Sai Sangeeth, 2nd Cross, Triveni Road, Kaveri Nagara, Mandya City. (By Sri.S.Manjunath., Advocate) -Vs- OPPOSITE PARTY/S 1. The Manager, T.M.L. Financial Services Ltd., Bezzola Complex, 1st Floor, V.V.Purav Marg, Chembur, Mumbai 400 071. 2. The Manager, T.M.L. Financial Services Ltd., No.189/1019, Corner Stone, Ramavilas Road, K.R.Mohalla, Mysore 570 024. 3. The Manager, T.M.L. Financial Services Ltd., Opposite to Vishweshwaraiah Statue, M.C.Road, Mandya. 4. The Branch Manager, United India Insurance Co., Ltd., No.25, Shankarnarayana Building, M.G.Road, Bangalore 560 001. (By Sri.G.B.Arunkumar., Advocate) Date of complaint 05.08.2009 Date of service of notice to Opposite parties 19.08.2009 Date of order 30.11.2009 Total Period 3 Months 11 Days Result The complaint is partly allowed, directing the Opposite parties 1 to 3 to pay compensation of Rs.1,24,600/- with cost of Rs.2,000/- within two months, failing which the Opposite parties are liable to pay interest at 9% p.a. from the date of complaint. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite parties claiming compensation of Rs.12,39,600/-. 2. The case of the Complainant is that for her livelihood, the Complainant purchased Tata Indica Cab bearing registration No.KA-11-7174 availing financial assistance from the Opposite parties on 27.10.2006. The loan was repayable in 36 monthly equal installments of Rs.8,950/-. The Complainant has issued 36 cheques to the Opposite parties towards monthly installments, drawn on Vijaya Bank, Mandya. The Opposite parties failed to present the 5 cheques for realization, even though the Complainant had kept sufficient funds in her account. But, the Opposite party representative contacted the Complainant at her residence on 10.04.2007 and appraised her regarding non-presentation of 5 cheques and requested for payment for 5 months installments and thereby the Complainant issued 5 MICR cheques for a sum of Rs.44,750/-. The Opposite party realized the said amount. Even after payment of that amount, the Opposite parties have charged Rs.2,190/- towards the collection charges. Further, on 29.06.2007 the representative of the Opposite parties visited the Complainant and again stated that they could not present the cheques and requested for payment of 2 monthly installments and the Complainant issued MICR cheque for Rs.17,900/- and the said amount was also realized by the Opposite parties. Likewise, the Opposite parties collected Rs.35,800/- returning 12 cheques on 25.10.2007. Again 02.11.2007, the Complainant issued 8 cheques towards monthly installments up to 02.06.2008. Instead of collecting the amount from presenting the cheques they have failed in their duty and representatives use to come near the house and were creating ugly scene, causing unbearable mental shock to the Complainant apart from lowering her status in the eye of neighbourers. Further, the Opposite party has informed on 21.05.2009 stating that cheque No.788770 to 788786 were lost in transit and hence caused apprehension in the mind of the Complainant that in case if the cheques comes into custody of others there is every possibility of their misuse. Further, the Opposite parties were bound to get the vehicle insured regularly. However, the Complainant had insured the vehicle with United India Insurance Company, Bangalore valid from 28.10.2006 to 27.10.2007. It is the duty of the Opposite party to insure the vehicle during the period of hypothecation as the Opposite parties have failed to insure the vehicle the Complainant was forced to get it insured at the cost of Rs.14,617/- and the copy of the insurance was furnished to the Opposite parties. Subsequently, the Opposite parties got the vehicle insured with United India Insurance Company Ltd., for a period from 08.10.2007 to 07.10.2008 and have obtained the policy 20 days earlier by paying premium of Rs.15,179/- estimating the cost of vehicle at Rs.2,80,000/-, without making inspection by the insurance company. The policy expired on 07.10.2008, but the Opposite parties have not at all informed the Complainant regarding the particulars of the policy obtained subsequent to 07.10.2008. Thereby huge loss was caused by the Complainant, since the car is being idle since lost one year and the Complainant has spent Rs.80,000/-for repair of the car. The Complainant wrote a letter on 01.06.2009 requesting the Opposite parties to furnish the insurance policy, but the Opposite parties have not at all bothered to reply the same. Therefore, the Complainant was forced to park the vehicle idle since November 2008 and thereby the Complainant has sustained huge loss. The acts of the Opposite parties clearly amounts to deficiency of service. Therefore, The present complaint is filed claiming loss of Rs.8,00,000/-, Rs.2,00,000/- mental shock and agony, Rs.2,00,000/- for loss incurred and Rs.25,000/- for litigation expenses and Rs.14,600/- as amount paid by the Complainant towards insurance charges. 3. The Opposite parties were served with notices. The 4th Opposite party has remained absent and on behalf of the Opposite parties 1 to 3, version is filed contending that the Complainant is not a Consumer and complaint is not maintainable. Admitting that the Complainant had availed loan for purchasing the vehicle and the Complainant issued post dated cheques for payment of 36 monthly installments, it is contended that though, the Opposite party presented the cheques regularly, the bank of the Complainant did not clear the cheques, since they are not MICR cheques and Opposite party requested the Complainant to furnish another set of MICR cheques, but the Complainant was reluctant to issue MICR cheques. But, after repeated request, the Complainant had issued only one MICR cheques for Rs.44,750/- towards the 5 installments and the delay made her to pay delay payment charges along with collection charges. Likewise, the Complainant has issued MICR cheques on demand. Denying other allegations. It is contended that the delay in the payment of the installments, the complainant not only caused loss to the Opposite parties, there is no question of suffering mental shock. It is denied that the cheques issued by the Complainant were lost in transit. The cheques bearing No.788770 to 788786, which are stated to be lost in transit are available with the Opposite party. It is the duty of the Complainant being the owner to get the vehicle insured. No request was made by the Complainant to procure the insurance policy after 07.10.2008. It is denied that loss has been caused to the Complainant as alleged and the Opposite party is not liable for any loss. The Opposite party has not committed any deficiency in service and the complaint is liable to be dismissed. 4. During trial, the Complainant has filed affidavit and produced Ex.C.1 to C.15. The Opposite party has not let in any evidence. 5. We have heard both the sides. 6. Now the points that arise for our considerations are:- 1. Whether the Complainant is a Consumer? 2. Whether the Complainant suffered mental shock and agony due to the acts of the Opposite party representatives? 3. Whether the Opposite party failed to get the insurance of the vehicle and failed to furnish the same to the Complainant? 4. Whether the Complainant has sustained loss? 5. Whether the Complainant is entitled to the compensation sought for? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- The admitted facts are that the Complainant for her maintenance of the family purchased Tata Indica Car bearing No.KA.11.7174 availing financial assistance from Opposite parties on 27.10.2006 to the tune of Rs.2,45,000/- and for the payment of installments of loan, the Opposite party obtained 36 cheques for Rs.8,950/- each drawn on Vijaya Bank, Mandya and loan is not cleared and naturally the Opposite party is charging interest for the financial services rendered to the Complainant and therefore, naturally the Complainant has hired the service of Opposite party by paying consideration and therefore, the Complainant will come under the definition of Consumer. 9. POINT NO.2:- It is admitted fact that on 10.04.2007, 29.06.2007, 25.10.2007 and 02.11.2007 the representatives of the Opposite parties visited the house and obtained the MICR cheques towards the installments up to 02.06.2008 and the amount was realized. According to the Opposite party, the cheques issued by the Complainant were not cleared by the bank of the Complainant and therefore, they requested to issue MICR cheques. But, no document is produced to prove that the cheques issued by the Complainant were not cleared by the bank of the Complainant and no letter was issued to the Complainant sending back the cheques issued by her and to send the MICR cheques for collection of the monthly installments. In fact, in Ex.C.1 it is clearly stated that in case you have not issued post dated cheques, then please remit each installment in time by MICR demand draft in favour of TML Financial Services Ltd., to our dealer / branch office directly on or before due dates and this letter is dated 21.11.2006. Nowhere, it is stated that the cheques issued by the Complainant are not accepted by the bank of the Complainant. In the absence of this, in view of Ex.C.1 it is not the duty of the Complainant to pay the amount in cash or remit by MICR cheque. The version of the Opposite party itself clearly proves that the representative of the Opposite party used to visit the house of the Complainant on several occasion and demanding the payment of installments through MICR cheques and accordingly, the Complainant has obliged. So, in spite of obtaining the cheques for monthly installments, the act of Opposite party going to the house of the Complainant and demanding the installments near the house, clearly causes mental shock and lowers the reputation in the eye of neighbourers. Therefore, we answer point no.2 in the affirmative. 10. POINT NO.3:- According to the Complainant, since the vehicle is hypothecated by the Opposite party it is the bounden duty of the Opposite party to get the insurance vehicle. But, the Complainant got insured the vehicle from 28.10.2006 to 27.10.2007 by paying premium of Rs.14,617/-. Further, the Opposite parties have got insured the vehicle for the period from 08.10.2007 to 07.10.2008, 20 days earlier to the expiry of earlier policy by paying premium of Rs.15,179/- and the said policy was insured on 07.10.2008. But, the Opposite party did not inform the particulars of the insurance obtained subsequent to 07.10.2008, thereby she has sustained loss without running the vehicle and kept the vehicle idle and Opposite party has committed deficiency in service. Ex.C.2 the contract details issued by the Opposite party clearly established that the Opposite party has collected insurance premium amount of Rs.23,000/- from the Complainant at the time of advancing the loan and it is included in the installments. According to the Opposite party, it is the duty of the Complainant to get the insurance. Naturally, at the time of purchasing of the vehicle the owners get the insurance of the vehicle, but on hypothecation of the vehicle, the financier get the vehicle insurance as security for the loan. The Complainant has produced Ex.C.3 the insurance copy for the period from 28.10.2006 to 27.10.2007 and Ex.C.4 the insurance from 08.10.2007 to 07.10.2008, we cannot accept as to how the Opposite party has obtained the insurance from 08.10.2007, though the earlier policy was valid up to 27.10.2007. Further, there is no evidence by the Opposite party whether it obtained the insurance again after 07.10.2008 and informed the Complainant. In fact, it is the duty of the Opposite party, when it has recovered Rs.23,000/- towards the insurance premium from the Complainant from the loan amount. In fact, the Complainant sent a letter Ex.C.13 to the 2nd Opposite party by registered post to send the insurance bond, but the Opposite party has not replied at all. Even, legal notice was sent as per Ex.C.12 and there is no reply by the Opposite party at all. Therefore, non-obtaining the insurance policy after 07.10.2008 in spite of recovery of the premium from the Complainant to which interests were charged by the Opposite party and without directing the Complainant to get the insurance of the vehicle clearly amounts to deficiency in service by the Opposite party. 11. POINT NO.4:- The Complainant has contended that she has sustained loss of Rs.2,00,000/- by not using the vehicle on account of want of insurance certificate. If actually, the Opposite party had taken the insurance policy, it should have furnished the same to the Complainant or it should have informed the Complainant to obtain the policy and it is bound to obtain the insurance policy of the vehicle as amount for insurance is collected. But, no such action was taken by the Opposite party in spite of the letter Ex.C.13 and legal notice. Naturally, when a vehicle is purchased by obtaining loan from the Opposite party, without insurance certificate the vehicle cannot be plied on the road and naturally she has sustained loss of income and according to the Complainant, she has sustained loss of Rs.2,00,000/- for one year from August 2008 to August 2009. Even though, all details of the income are not placed, but taking minimum income of Rs.8,000/- per month by plying a taxi, the Complainant could have earned income of Rs.96,000/- for one year and therefore, we hold that the Complainant has sustained loss of Rs.96,000/- rounded of to Rs.1,00,000/-. 12. POINT NO.5:- The Complainant has sought for Rs.2,00,000/- towards the mental shock and agony. As discussed above, the Complainant has suffered mental shock and agony and her reputation is lower in the eye of neighbourers, because admittedly the representatives of the Opposite parties went near the house of the Complainant and demanded the installments on several occasions, though the Opposite party has obtained the cheques in advance for monthly installments. Therefore, the Complainant is entitled to the compensation of Rs.10,000/- for mental shock and agony. 13. Further, the Complainant has sought for Rs.14,600/- being the insurance premium. When the Opposite party has recovered the amount from the loan towards the insurance of the vehicle, it is the duty of the Opposite party to get insurance of the vehicle by paying the premium, but Complainant has obtained the same which is not disputed and Complainant is entitled to refund of Rs.14,600/- being the insurance premium as sought for. 14. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed, directing the Opposite parties 1 to 3 to pay compensation of Rs.1,24,600/- with cost of Rs.2,000/- within two months, failing which the Opposite parties are liable to pay interest at 9% p.a. from the date of complaint. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 30th day of November 2009). (PRESIDENT) (MEMBER) (MEMBER)
