MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

          Instant appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred targeting the judgment and order dated 26.09.2013 passed by the Ld. District Forum, Unit – I, Kolkata in Complaint Case No. 347/2011 allowing the complaint on contest with cost against the Respondents/O.Ps who are jointly and severally directed not to take possession of the vehicle No. WB-29A/0695 from the possession of the Appellant/Complainant.

          The Respondent/O.P. No. 4 was directed to issue insurance certificate in favour of the Appellant/Complainant forthwith and thereafter, the Appellant/Complainant to make payment of balance EMI as usual inclusive of usual interest due to stop payment of EMI by the Appellant/Complainant.

          The Respondent/O.P. No. 4 was further directed to pay to the Appellant/Complainant compensation for harassment and mental agony and litigation cost for the amounts of Rs.5,000/- and Rs.2,000/- respectively, failing which, as ordered, an interest @ 10% per annum should accrue over the entire amount due to the credit of the Complainant till full realization.

          The facts, in brief, having relevance with the instant complaint, were that the Appellant/Complainant purchased one Tata  ACE Magic 8 SEA vehicle taking loan of Rs.2,30,000/- from the Tata Motor Finance Limited from the Kharagpur branch being Respondent/O.P. No. 3 herein on certain terms and conditions.  Repayment of the entire loan amount as above together with interest was supposed to be made in 47 EMIs @ Rs.7,640/- of which, 18 EMIs were already paid.

          Appellant/Complainant, as stated, handed over to the Respondent/O.P. No. 3, 35 number of post dated cheques of which 18 number of cheques were already encashed.  During the year 2010-2011, the Appellant/Complainant could not ply the vehicle on road allegedly due to the Respondent/O.P. No. 3’s negligence towards forwarding the policy papers in original which made the Appellant/Complainant sustain a huge loss both, to his profession and to the vehicle itself which had to be kept stranded at the garage for a longtime in absence of the said documents.

          Sensing the fact that the loss already sustained by him due to prolonged non-plying of the vehicle has every likelyhood of being compounded by the Respondent/O.P. No. 3’s indifference to make good the above indicated deficiencies, the Appellant/Complainant had to take steps for non-encashment of any cheque in excess of 18 out of 35 number of post dated cheque which the Appellant/Complainant had handed over earlier to the Respondent/O.P. No. 3.

          Sensing further that the Respondent/O.P. – Financier was likely to take step for repossessing the subject vehicle because of his being defaulter as a result of his taking steps towards non-encashment of his post dated cheques, the Appellant/Complainant resorted to the filing of the complaint case.  The impugned judgment and order, which was under challenge, was the outcome of the said complaint case.

          We have heard the Ld. Advocates appearing on behalf of the Appellant/Complainant and the Respondent/O.P. Nos. 1 to 3 and Respondent/O.P. No. 4.  All of them defended the causes and interests of their respective client.

          The Ld. Advocate for the Appellant/Complainant submitted that in absence of the insurance policy in original, the Appellant/Complainant could not ply the vehicle on road which reached substantial damage to his sustenance as well as damage to the vehicle. 

          The Ld. Advocate continued that the Appellant/Complainant had no alternative means than to file the complaint case as he, on repeated persuasions through formal communications only came to know that the Respondent/O.P. Financier had already sent to the Appellant/Complainant the copy of the insurance policy.  Admittedly, the Appellant/Complainant received one copy of the insurance policy quite indistinct and hardly a readable document.

          The Ld. Advocate continued that the Ld. District Forum failed to apply its judicious mind while passing the impugned judgment and order towards payment of a paltry amount of cost and compensation by the Respondent/O.P. No. 4, the Insurance Company, which, as contended, anything but commensurate with the loss of income sustained by the Appellant/Complainant.

          With the above submission, the Ld. Advocate prayed for the appeal to be allowed setting aside the impugned judgment and order.

          The Ld. Advocate appearing on behalf of the Respondent/O.P. Nos. 1 to 3, per contra, submitted that the said Respondents were not, in any case, liable to send copy of the policy to the Appellant/Complainant.  It was, as continued, the job of the Insurance Company itself.  Still, the said Respondents/O.Ps, as the Ld. Advocate continued to submit, took the pain of sending the copy of the same to the Appellant/Complainant who stated the said copy as indistinct and far from being a legible documents.

          In view of the above perspective, the Ld. Advocate refused to admit any deficiency on the part of his clients and prayed for the appeal to be dismissed affirming the impugned judgment and order.

          The Ld. Advocate appearing on behalf of the Respondent/O.P. No. 4, on the other hand, submitted that the said policy was not issued by his organization.  Referring to the running page 39, the Ld. Advocate pointed out the uncontroverted report of the Respondent/O.P. Nos. 1 to 3 and submitted that the same was sufficiently indicative about the policy for the year in question was executed with a different Insurance Company.  The impugned order against him, should, therefore, be set aside as contended.

          Perused the papers on record.  The only point needed to be resolved in order to arrive at a conclusive finding was whether the insurance policy for the year in question in respect of the said vehicle was at all initiated.  Annexure – ‘B’ at running page 39 being the uncontroverted document of the Respondent/O.P. Nos. 1 to 3 Financier indicated that the subject policy, that is, the policy for the year 2010-2011 was purchased from ICICI Lombard General Insurance Company. 

          The Appellant/Complainant, in his complaint, has not made the said Insurance Company a party to the complaint.  Instead, it made Tata AIG General Insurance Company a party.  The complaint, in the above circumstances, suffered from both non-joinder and mis-joinder of parties. 

          Moreover, we do not find any merit in the case as the financial institution made no mistake in purchasing Insurance Policy of the subject vehicle for the year 2010-2011, the year in question.  Its statement at running page 39 and its WV at para H indicated that the policy of the subject year was actually initiated.  The financial institution, the Respondent/O.P. Nos. 1 to 3 also submitted that the copy of the policy meant for him was sent to the Appellant/Complainant.  Admittedly, the said copy being indistinct and not readable, the Appellant/Complainant wanted a legible copy through his communication.

          We, however, are not at one with the Respondent/O.P.  Financier so far as the denial of its liability for supplying the original policy paper to the Appellant/Complainant.  Since the Respondent/O.P. Financier paid the policy premium on behalf of the Appellant/Complainant out of the amount deposited for the purpose by the Appellant/Complainant, its liability towards supply of policy papers in original to the Appellant/Complainant should not be ruled out. 

          The Appellant/Complainant appeared to be similarly indifferent about collecting the original papers either from the Respondent/O.P. Financier or from the Bank.  The record is not supported with the allegedly illegible and indistinct policy papers admittedly received by the Appellant/Complainant.  There was, therefore, absolute lack of initiative towards collection of policy papers on the part of the Appellant/Complainant himself too.  What was more, the Appellant/Complainant, willingly defaulted in making repayment rendering his status not to be accommodated as consumer under the Consumer Protection Act, 1986.

          Further, we do not agree with the direction of payment of cost and compensation to be made to the Appellant/Complainant by the Respondent/O.P. No. 4 who, in fact, had no involvement with the instant allegation, particularly because of the fact that it did not issue the policy in question and accordingly, feel that the Respondent/O.P. No. 4 should be exonerated from carrying out the directions passed upon him in the impugned order.

          Since the issue involves the deficiencies on the respective part of the Appellant/Complainant and the Respondent/O.P. Financier, we are of the view not to intervene with the order passed upon the Appellant/Complainant and the Respondent/O.P. Financier.

          Hence, ordered, that the appeal be and the same is allowed in part.  The directions passed upon the Respondent/O.P. No. 4 stand set aside.  The rest part of the impugned order stands affirmed.  No order as to cost.