Orissa

Nuapada

CC/61/2012

Sankarsan Meher - Complainant(s)

Versus

Tata Moters Finance Limited , Sambalpur - Opp.Party(s)

Sri A.K.Patra

29 Apr 2014

ORDER

In brief facts of the case is as under:-

 

The Complainant is a registered owner of the vehicle named SUMO GRANDE registered No. OR-26-9889. The said vehicle is purchased from MAA SAMLESWARI AUTOMOBILES, Passenger Car Dealer, Sambalpur on 31.01.2010 being financed by TATA MOTORS FINANCE LTD (O.P. No. 1) under hire purchase agreement and hypothecated to Tata Motors Finance Ltd.

The complainant was using the said vehicle as contract carriage vide permit No. CC/PP/26/37/10 issued by the R.T.A., Nuapada with effect from 19.03.2010 to 18.03.2015 and he was earning his livelihood out of the income of the said vehicle with a promise to pay the equited monthly installment (E.M.I.) to the O.P. out of the income earn from the said vehicle.

 

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The said vehicle was insured under the comprehensive Motor Policy with “Loss Payee” (Hypothicated with Tata Motors Finance Ltd. endorse infavour of O.P. No. 1 with ICICI Lombard General Insurance Company Ltd., O.P. No. 2 vide Certificate-Cum-policy No. 3004/TM070654/00/000 with effect from 28/01/2010 to 27/01/2011.

 

Unfortunately the said vehicle got accident on 26.05.2010 near village – Limser Chowk, under Golamunda Police Station while returning from Dharamgarh to Sinapali causing severe damaged to the vehicle and grievous injury to the driver. The matter reported in Golamunda Police Station vide F.I.R. No. 50 dt. 26.05.2010 and at that time also informed to O.P. No.1 and O.P. No.2. As per the advice of the TATA MOTORS FINANCE Ltd. O.P. No.1, the complainant presented the accidental damage vehicle in its authorised Garage i.e. Maa Samleswari Automobiles, Ainthapali, Sambalpur for which the complainant has spend Rs. 21,000/- towards initial mechanic service.

 

Primarily the cost of repairing of the said damage vehicle was estimated at Rs. 2,94,500/- vide estimate report No. 179 & 180 dated 28.07.2010.

 

The complainant being asked by the Garage authority paid in advance Rs. 10,000/- on 12.07.2010 and Rs. 15,000/- on 21.07.2010 deposited in the account of Maa Samleswari Automobiles and again paid Rs. 25,000/- on 04.10.2010 by cash and deposited Rs. 15,000/- in the account of the said Garage in advance towards repairing cost, but the said vehicle is not repair and deliver to the complainant as yet so it is clear instance of deficiency in service on the part of O.Ps. As such the complainant knocked the door of this Forum to get relief as prayed for.

 

 

 

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The complainant relied the xerox copies of documents as under:-

 

1. Registration Certificate,

2. Extract copy of loan agreement,

3. Sale certificate,

4. Copy of permit certificate,

5. Copy of Insurance Certificate,

6. Copy of F.I.R.,

7. Copy of own damage investigation date sheet,

8. Copy of Estimate Report No. 179 & 180 dt. 28.07.2010,

9. Copy of deposit slip and money receipt,

10. Copy of Demand Notice,

11. Copy of the letter of repudiation dt. 21.01.2011,

12. Copy of Driving License, and

13. Copy of Fitness Certificate.

     

     

    1. Being noticed, the O.Ps appeared. O.P. No.1 has filed their written version. O.P. No.2 has not filed any written version and documents so he set ex-parte in this case.

        

       1. 1. O.P. No.1 has stated in their written version that he deny and dispute all the contents, claims, demands, allegations, averments, imputations and institutions of the complainant against him. He has also stated that Consumer Forum has no jurisdiction to entertain the matter and it is not maintainable as the loan agreement contains the clause for arbitration where all the disputes, differences, claims and questions whatsoever arising out of the said agreement shall be referred to the sole arbitrator and as such they have committed no deficiency of service and the claim of complainant is frivolous. O.P. No. 1 has not filed any documents in support of their plea in this case.

              

             1. As per the above pleadings, the following issues are framed and considered :-

                1. Whether the complaint is maintainable ?

                2. Whether the complainant is a consumer or not ?

 

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1. 1. 1. 1. 1.  

               2. Whether the Forum has jurisdiction to adjudicate upon and there is cause of action ?

               3. Whether there is any negligence and deficiency in service on the part of the O.Ps ?

               4. To what relief, if any the complainant is entitled to ?

 

1. 1. 1. 1. 1.  

ISSUE No. 1,2 & 3 :-

 

Since the issues are very much linked up with each other, those are taken of jointly for discussion and findings.

 

It is significant to mention that the complainant has purchased a Motor Vehicle “SUMO GRANDE GX from MAA SAMLESWARI AUTOMOBILES, Passenger Car Dealer, Sambalpur on 31.01.2010 being financed by O.P. No.1 under Hire Purchase agreement and hypothecated to O.P. No.1 and it insured infavour of O.P. No.1 with ICICI Lombard General Insurance Company Limited, O.P. No.2 vide Certificate-Cum-Policy No. 3004/TMO70654/00/000 with effect from 28.01.2010 to 27.01.2011 and it registered before R.T.A. Nuapada bearing Registration No. OR-26-9889 and as such he earns the status of a consumer as per Consumer Protection Act, 1986. Section 2(d)(ii) explains consumer means any person “who hires or avails of any service for a consideration which has been paid or promised or partly promised or any system of deferred payment and includes any beneficiary of such services other than commercial purpose “ so the status of consumer can not be deniable and thereby the maintainability.

 

On the other hand the complainant is a resident of village – Sinapali under Nuapada district so the complaint is within the jurisdiction of this Forum.

 

 

 

 

 

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In this case, the dispute attempt to justify the jurisdiction of this Forum by referring to the judgment of the Supreme Court in the case of Regional Provident Fund Commissioner ..Vrs.. Bhavani (Manu/SC/2084) and has contended that the complainant, too would fall within the definition of a consumer.

 

 

The Hon'ble Supreme Court of India in “Neeraj Munjal and others ..Vrs .. Atul Grover (Minor) and others, 2005 (3) C.L.T.-30 in para 10 and 11 of the judgment has held that the Court could not deprive the parties from a remedy, which is otherwise available to them in law. It has been further held that a Court of law has to jurisdiction to direct a matter to be governed by one statute when provision of another statute are available.

So we are of considered opinion that, this Forum has wide jurisdiction to adjudicate upon the present dispute and the complainant has cause of action.

 

Accordingly the issues are answered infavour of the complainant.

 

ISSUE No. 4 :-

On perusal of case record, it is found that on 26.05.2010 the said vehicle met an accident near village – Limser Chowk, under Golamunda P.S. causing damaged to the vehicle and it is reported in Golamunda Police Station Vide F.I.R. No. 50 dt. 26.05.2010 and informed to O.P. No.1 & 2 by the complainant.

 

Thereafter as per the advice of O.P. No.1, the complainant produced the said accident vehicle before authorised Garage i.e. Maa Samleswari Automobiles, Ainthapali, Sambalpur and he spend Rs.21,000/- towards initial service of the said vehicle. The damaged vehicle was estimated of Rs. 2,94,500/- vide estimate report No. 179 & 180 dated 28.07.2010.

 

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Again the complainant has deposited in advance of Rs. 10,000/- dt. 12.07.2010, and Rs. 15,000/- dated 21.07.2010 in the account of Maa Samleswari Automobiles and again paid Rs. 25,000/- dated 04.10.2010 by cash and again deposited Rs. 15,000/- in the account of the said Garage towards the repairing cost. But the said vehicle is not yet repaired and delivered to the complainant by O.P. No.1.

 

Further it is seen that O.P. No.1 has not taken any steps for settlement of the insurance claim and release of compensation money of the said damaged vehicle.

 

Further it is also seen that O.P. No.2 has not given any opportunity to the complainant on the matter of insurance and intentionally he harass the complainant mentally and financially.

 

Perused the documents filed by the complainant, we found that the documents are relating to the claim of complainant and as such it taken in consideration.

 

In another vital point is that the O.P. No. 1 has not filed any relevant documents in support of their plea so it is asserted that the plea of O.P. No.1 is untrue, unbelievable, and untenable; so it will not help to him in any manner.

 

Further it is seen that O.P. No.2 has not challenged the pleadings of the complainant, so it is to be treated as admission by O.P. No.2, which is principle of law.

 

So we assessed that the Opposite parties have failed to give proper service to the complainant for which the complainant is suffering financial loss and mental agony due to negligence and deficiency of service by the O.Ps. Thus the O.Ps are liable for the deficiency in service.

 

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So from the perusal of the provisions of the Consumer Protection Act, 1986 apply to all type of goods and all type of services availed by the consumers against consideration paid or promised. Section01(iv) of the C.P. Act,1986 is of wide connotation.

 

So we keep in our mind that the O.Ps have failed to prove their case.

 

Accordingly, this issue is answered infavour of the complainant.

 

ISSUE No. 5:-

 

It is clear crystal that the complainant has proved his case and he is entitled to get relief in this case. Hence, order.

 

Accordingly this issue is answered infavour of the complainant.

 

O R D E R.

In the aforesaid matrix of facts and circumstances, the complaint is partly allowed.

 

1. We direct the O.P. No.2 to pay the entire insurance benefit of insurance policy vide No. 3004/TM/070654/00/000 to the complainant within 30 days from the received of the order. In default pay 12% interest per annum from 26.05.2010 till payment.

    

2. We further direct the O.P. No.2 to pay Rs.5,000/- (Rupees five thousand) towards litigation cost and pay Rs. 10,000/- (Rupees ten thousand) towards mental agony and harassment within 30 days from the date of received the copy of order.

 

 

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2. We further direct the O.P. No.1 to intimate the appropriate award amount released from the insurer of the vehicle towards full and final settlement of the loan dues against this complainant in written to the complainant within 30 days from the date of received of this order.

    

   1. Failing which the above order, the complainant is at liberty to take steps as per process of law.

 

1. Judgment pronounced in the Open Court of the District Consumer Disputes Redressal Forum, Nuapada, this the 29^th day of April 2014.