OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.4/2010
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Mrs.Rasida Begum -Complainant
W/O-Nazrul Islam
R/O –Ananda Nagar,Bilasipara,
Dist.Dhubri, Assam.
-vs-
1) The Authority/Manager, -Opp.parties
TATA MOTORS FINANCE LTD.
Tata Motors Building ,2nd Floor
Teen Hath Nakagyan Sadhana College
Service Road,Thane.
2) The Manager,
Tata Motors Finance Ltd.
2nd Floor ,Godrej Building, G.S.Road,
Ulubari,Guwahati-7
3) The Manager, Hire Purchase department,
HIMMATSINGKA AUTO INTERPRISE,
Prameswari Building
Chatribari Rd,Guwahati-01
4) The Dealer,
Himmatsingka Auto Enterprise,
North trunk Road,Tezpur,Sonitpur,Assam.
5) The Branch Manager,
New India Assurance Company Ltd.,
G.S.Road, Ulubari branch,Guwahati-7
Appearance-
Learned advocates Aminul Hauqe for the complainant but none for the opp.parties.
Date of argument- 18.1.2017
Date of judgment- 3.2.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Mrs. Rasida Begum was admitted on 12.1.10. The notices were served on all opp.parties and after receiving the notice. Opp.Party No.3 & 4 filed their joint written statement while Opp.Party No.1, 2 & 5 neither appeared nor filed written statement; and in result, this forum, vide order dtd. 23.4.2010, directed that the case against them will proceed on exparte. The complainant side filed her affidavit and she was cross-examined by Opp.Party No.3 & 4 side and one Nur Mohmad Mustafa also filed affidavit supporting the case of the complainant and he was also cross-examined by the Opp.Party No.3 & 4 side, but Opp.Party No.3 & 4 did not file their evidence, and in result the stage of filing evidence by the Opp,Party No.3 & 4 is also closed by this forum’s vide order dtd. 25.6.15. Thereafter, the complainant side filed their written argument and Opp.Party No.3 & 4 side was also allowed to file their written argument, but they did not file their written argument and have also been absent in all dates after cross-examination of the witnesses of the complainant side; and being compelled this forum, on 18.1.17, heard the oral argument of ld.advocate Mr.Aminul Hauque for the complainant and deliver the judgment today which is as below-
2) The gist of the pleading of the complainant is that the vehicle No. AS-17/7607 , Model SPACIO GOLD Chassis No.421 056 LUZ 951004, Engine No. 497 SP 28 LUZ 907581, which the complainant had purchased on a Hire-Purchase agreement with M/S Tata Motors Ltd., Guwahati vide Loan agreement No.885218/5600 dtd.19.12.05, met with an accident on 13.9.08 at village Sagunmari under Bilasipara P.S. and was badly damaged; and the M.V.I. of Dhubri district inspected the vehicle and made a report dtd. 4.10.08; and Bilasipara P.S. also issued an accident report dtd. 6.9.09. The complainant had also informed the Financer, Insurer and Dealer about the accident over telephone and filed one application with the insurance company, New India Assurance Co. Ltd. (Ulubari, Guwahati).For repairing of the said vehicle and also sent one application dtd. 8.12.2008 to the Manager, Hire Purchase Department, Himmat Singka Auto Enterprises, Guwahati, informing them that if the insurance of the vehicle is being continued then compensation for the damage of the vehicle should be given. The complainant also sent one letter to Tata Motors Finance Ltd.,Guwahati on 13.7.09 for claiming of insurance papers with compensation, but they did not respond . She also sent another letter dtd. 1.9.09 to Himmat Singka Auto Enterprises, Guwahati,(Chatribari Rd.) for claim of Insurance Papers, but they also did not respond. She also sent another letter dtd. 12.9.2009 to them through Fax claiming the Insurance Paper of the vehicle. The vehicle was insured with New India Assurance Co.Ltd.(Ulubari, Guwahati) vide policy No.53201/31/05/01/00006161 with yearly premium of Rs.17,266/-of which the maturity value of Rs.4,41,750/- and it was effective from 19.12.2005 to 18.12.2008 and insurance was valid up till 18.12.2008. She suffered financial loss due to damage of the said vehicle, but the opp.parties refused to pay her compensation; and then her advocate filed representation before the Branch Manager, New India Assurance Co. Ltd. Ulubari branch, Guwahati on 17.9.2009 , but the said authority neither accepted the representation nor responded them, rather asked them to go to the manager, Tata Motors Finance Ltd., G.S.Road, Ulubari, and then they also met him, but he also did not accept the petition and respond them; and hence, she prays for recovery of Rs.3,00,000/- from the opp.parties together with compensation from the opp.parties with interest @ 12% per annum and the cost of the suit.
3) The gist of the pleading of the Opp.Party No.3 & 4 namely, Himmat Singka Auto Enterprises is that the complainant is not entitled to claim any relief from them as she defaulted to pay the monthly installment as per agreement dtd. 19.12.2005. They have not received any application dtd.18.12.2008 from the complainant. The complainant defaulted to pay the outstanding dues towards the loan. They received one letter from the complainant on 1.9.2009. It is the obligation of the complainant to renew the insurance policy , but they are not liable to renew the insurance policy. The complainant failed to pay the premium of the insurance policy as well as the installment of loan; and therefore, question of claim the compensation from them does not arise at all. They had not received any application dated 8.12.08 from the complainant. The complainant defaulted to pay the monthly installments of the loan as per terms and condition of Agreement No.40885218 dtd.19.12.2005 and in result a huge amount remained due from the complainant. The statements given by the complainant are not true.
4) We have perused the evidence of the complainant side as well as the argument of her counsel ld advocate Mr.Aminul Haque. The complainant in her evidence states that she had purchased one specio Gold from M/S Tata Motors Ltd. on Hire Purchased Agreement at a value of Rs.4,36,423/- and the loan is to be cleared in 45 equal monthly installments. From Ex.3 it is clear that the complainant is the registered owner of the said SPACIO GOLD vehicle vide registration No. AS-17/7607 .
5) The complainant states in evidence that the said vehicle was insured with New India Assurance Co. Ltd.Ulubari, Guwahati and Ex.11& 12 are the insurance policies . We have perused Ex.11 & 12 and found that the connected vehicle was insured with New India Assurance Co.Ltd. Ulubari, Guwahati (Opp.Party No.5) for the period from 19.12.2005 to 18.12.2006 and from 19.12.2006 to 18.12.2007 . The complainant states that the accident meted to her vehicle on 13.9.2008 . So if the said vehicle had met an accident on 13.9.2008, then it must be said that on the day of accident the said vehicle was not covered vide policies Ex.11 & 12. The complainant further states that the Tata Motors Finance Ltd. sent her a letter on 13.11.2008 stating inter-alia that her vehicle having insurance policy till 18.12.2008 and Ex.13 is the said policy. We have perused Ex.13 and it is found that Tata Motors Ltd.(Opp.Party No.1) vide letter dtd. 13.11.2008 informed the complainant that the insurance policy of the vehicle of the complainant will be expiring on 18.12.2008 and they also asked the complainant through that letter to clear the monthly installments and that is the only document produced by the complainant to prove her statement that the vehicle was covered with insurance policy issued by Opp.Party No.5 on the date of accident; and except that document no supporting evidence adduced by the complainant side. The complainant in her cross examination states that the insurance policy of the year 2008 was not delivered to her by Tata Motors Ltd. (Opp.Party No.1). although she paid the premium of the insured policy till 18.12.2008. The complainant failed to proooooduce any policy which covers the day or period of the accident. So in such situation, it can not said that the vehicle was covered by an insurance policy on the day of alleged accident and the said policy was issued by Opp.Party No.5.
6) The complainant states in her complaint as well as in evidence that her vehicle met with an accident on 13.9.2008 at vill Sagunmari under Bilasipara P.S. and the M.V.I. of Dhuburi inspected the vehicle and he issued a certificate vide Ex.3 and police of Bilasipara P.S. also issued a certificate vide Ex.4, and that Ex.5 is the photograph of the said vehicle, which was damaged in the said vehicle. It is found that the complainant (P.W.1) was not eye witness of the said accident, nor the P.W.2 . We have perused Ex.3 i.e. the MVI report. We have found that the MVI report is of dtd. 24.10.2008 which means that MVI inspected the vehicle after 36 days of the alleged accident. In the said report, the MVI has not mentioned the date of accident, but mentioned that he inspected the vehicle as per Bilasipara P.S. case No. 249/08 u/s 279/337/338/426 I.P.C . We have also perused Ex.4 which is a certificate issued by the Officer-In-Charge of Bilalsipara P.S. on 6.6.09, and in the said report, the Officer-In-Charge certified that the vehicle of the complainant met with an accident under Bilasipara P.S. on 13.9.2008 and they have registered a case vide Bilasipara P.S. Case No. 249/08 dtd. 27.9.2008 u/s 279/337/338/427 I.P.C. and they inspected the matter and sent the charge-sheet the case vide C/S 194/08 dtd. 26.11.08. Thus, it is crystal clear that Ex.3 & 4 supports the statement of the P.W.1 as to the fact of meeting an accident by her vehicle (AS-17/7607) at vill Sagunmari under Bilasipara P.S. on 13.9.2008. Therefore, it is clearly established that the vehicle of the complainant (AS-17/7607) had met with an accident at vill Sagunmari under Bilasipara P.S. on 13.9.2008 and it was badly damaged.
7) In the evidence, the complainant states that her vehicle was badly damaged in the said accident and an amount of Rs.3,28,500/- is required for repairing her vehicle. We have perused Ex.3 (M.V.I.report) and it is found that M.V.I. has reported that on the date of inspection he found that (i) Front windshield glass with channel damaged (ii) Front mordguard Front and rear door of the right side were in damage condition (iii) Body and Hood of the vehicle damaged (iv) Door of glasses were in damage condition (v)Front and rear bumpers are in damage condition (vi) Left side fender damaged . If we believe the MVI report (Ex.3) we will find that the engine as well as the chassis of the said vehicle were not damaged in the said accident. Thus, it is found that the estimate of damage given by the complainant is an over-estimate and bases on no proof.
8) The complainant states in her evidence that she filed a written representation before the Opp.Party No.5 on 17.9.2009 claiming compensation for the damage of her vehicle in the said accident and Ex.14 is the said representation. We have perused Ex.14 and found that Ex.14 is a photo state copy, but the original of it has not been filed. It is found that complainant side adduced no other evidence to prove her statement that she had on 17.9.09 or any other subsequent dates filed claim with Opp.Party No.5 claiming damages of her vehicle in the accident meted to the said vehicle on 13.9.2008. So, in such situation, Ex.14 cannot held to be a concrete evidence of filing claim before Opp.Party No.5 claiming compensation for damage of her vehicle in an accident meted to the said vehicle on 13.9.2008.
Thus, it is held that the complainant side had not filed any claim petition with Opp.Party No.5 claiming compensation for damage of her vehicle in the accident that it happen on 13.9.2008.
9) In this case it is found that the complainant side has not filed any surveyor report done by the surveyor of the Opp.Party No.5, nor she states that surveyor of the Opp.Party No.5 surveyed the vehicle after the accident. In the evidence also the complainant does not show that she had informed Opp.Party No.5 about the accident, but says that they informed Op.Party No.2 & 4 about the accident vide Ex,6 & 7. We have perused Ex.6 &7 and it is found that by Ex.6 &7 the complainant informed Op.Party No.3 & 4 about the accident on 1.9.09 & 9.9.09. Thus, it is evident that Opp.Party No.5 was not informed by the complainant at all about the accident and in result Op.Party No.5 did not get any scope to survey the vehicle after the accident.Thus, it is clearly established that the complainant never informed Opp.Party No.5 (the insurance) about the accident.
10) In our discussion in the foregoing paragraphs, we have found that the concerned vehicle had no insurance policy covering the time/period of accident, either with the New India Assurance Company Ltd. or with other insurer. Secondly, as per law, it is the burden of the registered owner to get his/her vehicle insured and he can not assign his burden to anybody else. It is already found that the vehicle concerned was not insured by the complainant for the relevant period and no assumption can be made on the basis of insurance policies of the previous years that the vehicle had also insurance policy coverage for the period of happening of the accident. Even if, it is supposed that the vehicle had insurance coverage for the relevant time, then also we find that the complainant can not claim any compensation from the insurance company (Opp.Party No.5) as because the complainant never informed the insurance company about the accident and never gave them opportunity to survey the vehicle after the accident. Secondly as per law, the financer is not liable to pay any compensation to the owner of the vehicle financed by them for damage caused in road accident, rather they are entitled to get back the money advanced to the owner of the vehicle . Therefore, we hold that Tata Motors Finance Limited (Opp.Party NO.1 & 2) are not liable to pay compensation for damage of the vehicle in the said accident to the complainant as prayed. On the other hand, as per law, the sellers are also not liable to pay any compensation to the complainant for damage of the vehicle in an accident. Therefore, we hold that Himmatsingka Auto Enterprises ( Opp.Party No.3 & 4) are also not liable to pay any compensation the complaint as prayed.
11) Because of what has been discussed as above, we hold that the complaint as filed by the complainant, has no merit. Hence , the complaint against Opp.Party No.1,2 & 5 is dismissed on exparte and against Opp.Party No.3 & 4 is dismissed on contest.
Given under my hand and seal of the District Forum, Kamrup, this the 3rd Feb,2017
(Mrs.Archana Deka Lahkar) (Md Sahadat Hussain)
Member President
