THE BRIEF FACTS OF THE CASE:

1.       The complainant has filed this complaint against the Opposite Party U/s 12 of Consumer Protection Act, seeking a direction to Opposite Party to pay a sum of Rs.2,15,200/- towards Insurance claim difference amount, Rs.4,800/- towards charges recovered illegally and Rs.9,312/- towards O.D. charges illegally recovered along with interest, compensation, punitive damages and cost of the proceedings.

2.       The case of the Complainant is that, the Complainant Haji Malang is a small businessman at Raichur, he has not in a station regularly, he frequently going out of station for his business purpose, hence he has executed a General Power Attorney in favour of Syed Rasheed on 22.12.2015.  The Complainant has purchased a truck bearing Reg. KA-36/A 6883 with the financial assistance of the Opposite Party vide Agreement No.XVFPRIA0000100377 for an amount of Rs.21,51,172/- on 01.08.2013 on monthly installment of Rs.49,080/- for a tenure of 60 months.  The Complainant has promptly paying the monthly installment from 01.08.2013 to 28.05.2015.  He was also paying the OD charges to the Opposite Party as per agreement.

3.       The Complainant was totally depending upon the said hypothecated truck income only.  Except this the Complainant has no other source of income.  Unfortunately, the said hypothecated truck was met with an accident on 30.06.2015 near Dharmapur Ghat at Yadgir-Hyderabad Road.  The Gurmitkal Police have registered the case in Crime No.84/2015 against the Complainant’s driver.  In the said accident the truck was completely damaged.  This fact is very well known to the Opposite Party’s officials.  As per the instructions of the Opposite Party the Complainant has insured the above truck with Royal Sundarm Insurance Company.  The said insurance Company had given the cheque No.511833 for an amount of Rs.6,76,000/- to the Opposite Party, the same was credited to the Opposite Party’s A/c on 30.09.2015.  This aspect has not at all brought to the notice of the Complainant thereby, gross negligence and deficiency of service on the part of the Opposite Party.

4.       Later on, the Complainant came to know about the Insurance amount was deposited/credited to the Opposite Party’s A/c.  After this, the Complainant had approached the Opposite Party several times and requested him to refund the balance Insurance amount after deducting the Installment amount.  But the Opposite Party postponed the matter on one or the other pretext.  However after long period the Opposite Party had promised the Complainant that, half of the insurance cheque amount will be refunded to him for the truck repairs etc.  But till today the Opposite Party have not refunded the same and failed to fulfill the promise made earlier.  There is totally mischief the truck is lying in the garage for repairs, this aspect also very well known to the Opposite Party and his officials.

5.       The Complainant has regularly paid the monthly installment promptly from the date of hypothecation uptodate of accident i.e. 23 installments prior to the unfortunate accident, and at no time he had given room for default.  Now the Opposite Party and his officials are pressurizing the Complainant to pay the installment amount and giving him mental torture by asking him frequently.  Already the truck is under major repairs required huge amount, on the other hand knowing very well about the draught conditions prevailed in the North Karnataka affected the transport business purposely the Opposite Party is harassing and giving mental torture to the Complainant, resulting the Complainant is facing mental distress and agony.

6.       The Opposite Party has illegally charged Rs.200/- for every installment amount, which is quite illegal and unjustified.  The said amount has become Rs.4,800/-.  Inspite of the fact that the Complainant has already paid total amount of Rs.13,29,960/- and OD charges of Rs.9,312/- upto 28.05.2015.  The Opposite Party have also got accident claim cheque of Rs.6,76,000/-.  Hence, the Opposite Party is liable to refund the difference amount of Rs.2,15,000/- + Rs.4,800/- + Rs.9,312/- = Rs.2,29,312/- which was illegally collected by the Opposite Party from the Complainant with 24% interest per month from 30.09.2015 to till date to the Complainant.  In this regard the Complainant had sent a legal notice dt. 26.10.2015 through his Advocate to the Opposite Party for repaying the above said amount, but the Opposite Party has sent a reply date 05.11.2015 without any base.

7.       Further it is gross negligence and carelessness on the part of the Opposite Party which shows the guilt and deficiency of service.  The Opposite Party finance withholds the due amount of Rs.2,29,312/- unauthorisedly which shows the guilt of the deficiency of service of the Opposite Party.  Hence, the Opposite Parties are liable to pay interest @24% per annum on the said amount from 30.09.2015 to till date.  Hence, this complaint with above reliefs.

8.       After service of notice of complaint on the Opposite Party, Opposite Party appeared through his counsel.  On 24.05.2016 Opposite Party filed I.A. alongwith version seeking to receive the same but on 23.12.2016 this Forum passed an order on I.A., rejecting the same. Hence version taken as not filed.

9.       The complainant has examined as PW-1 by his evidence affidavit and he reiterated the averments of his complaint and documents got marked as Ex.P-1 to Ex.P-12.  No witness has been examined on behalf of the Opposite Party.   Heard the arguments of both sides, perused the records and evidence led by the Complainant.

10.     On perusal of the above said facts, the points for consideration arose are:

1.       Whether the complainant proves that, there is a deficiency of service on the part of the Opposite Party in  refunding the insurance claim amount granted by the insurance company in respect of his truck bearing No.KA36 A-6883?

3.       Whether the complainant is entitled for the reliefs claimed?

4.       What order?                         

11.     We answer the above points as under:

Answer to Point No.1       :   In the  Affirmative

Answer to Point No.2       :   Partly in the Affirmative

Answer to Point No.3       :   As per final order.

:: REASONS ::

Point No.1 :        

12.     It is a case of the Complainant that he has purchased a Truck bearing No.KA36/A-6883 on 01.08.2013 with a finance assistance of Opposite Party for Rs.21,51,172/- on a monthly installment of Rs.49,080/- for 60 months and he has paid all installments regularly upto 28.05.2015.

13.     Unfortunately the above truck of the Complainant was met with an accident on 30.06.2015 within the limit of Gurumitkal Police Station near Dharmapur Ghat and thereby said vehicle extensively damaged.  The above truck of the Complainant was duly insured with Royal Sundaram Insurance Company Ltd. as the date and time of accident and hence said insurance company has assessed the loss caused to the said vehicle for an amount of Rs.6,70,000/- and said amount of cheque has been  directly paid to Opposite Party on 30.09.2015 under vide its Cheque No.511833.  Then Opposite Party has accepted the said cheque and credited into the loan account of the Complainant.  But this aspect has not been brought to the notice of the Complainant by Opposite Party.

14.     Later, when the Complainant came to know about the same, has approached the Opposite Party and requested him to refund the said amount after deducting the installment dues.  But Opposite Party has postponed the same on one or the other pretext and has not refunded the balance amount till this day, though the Opposite Party has promised the Complainant that , half of the insurance amount will be refunded.  Hence, the Opposite Party has failed to fullfil the said promise till this day.  Hence, the truck of the Complainant is still lying in the garage for repairs as Complainant is unable to bear the repair expenses in the absence of above insurance amount.

15.     The Complainant further stated that, he has already paid 23 installments regularly prior to the said accident, without any default.  But now the Opposite Party pressurizing the Complainant to pay installments, by taking undue advantage of the situation and by knowing the present condition of the Complainant.

16.     The Complainant further claimed that the Opposite Party has charged Rs.200/- illegally on every installments, inspite of the fact that the Complainant has paid in all total Rs.13,29,960/- towards his loan dues and O.D. Charges of Rs.9,312/- upto 28.05.2015.  Hence, there was no balance of installments due as on the date of receipt of insurance claim.  Therefore, the Opposite Party is liable to refund the difference amount of Rs.2,15,000 + Rs.4,800/- + Rs.9,312/- total of Rs.2,29,312/- out of amount insurance claim amount of Rs.6,76,000/-.  So in this regard the Complainant has sent a legal notice to Opposite Party for refund of above amount but the same was replied without any base.  So the Complainant contended that such act of the Opposite Party is constitutes a deficiency of service to Complainant in not refunding or withholding his amount.

17.     In order to prove the above facts, the Complainant has produced 12 documents under Ex.P-1 to Ex.P-12 including FIR, Complaint, Legal notice issued to Opposite Party and its reply notice, repair estimation and photos of accidental vehicle and statement of the loan account of Complainant issued by the Opposite Party.  The said statement of account is marked as Ex.P-3.

18.     On perusal of the Ex.P-3 an amount of Rs.6,76,000/- was credited in the said account on 30.09.2015, received through vide Cheque No.511833 as contended by the Complainant.  Hence, such say of the Complainant confirms by Ex.P-3 document.  The Complainant further says that there is an excess credit in the above loan account for an amount of Rs.2,15,000/- after adjusting his loan dues pending upto the date of receipt of the insurance claim cheque of Rs.6,76,000/- i.e. 30.09.2015.  So he contended that withholding of said balance amount by the Opposite Party is nothing but deficiency in his service towards Complainant.  Because the Opposite Party cannot be withheld excess amount without any dues as on 30.09.2015 in his loan agreement.  So this very fact was intimated to Opposite Party through his legal notice dated 26.10.2015 marked as Ex.P-4.  But on perusal of Ex.P5 reply notice  said fact is not denied by Opposite Party specifically, though he has replied the same but he contended that as per the terms of agreement the Opposite Party is entitled to appropriate any such claim and adjust the same toards the loan availed and after adjusting the same if there are any short fall, the same shall be settled by the Complainant.  But the Opposite Party has not placed any records to show that he is entitled to recover or adjust the entire insurance claim  amount of Rs.6,76,000/- by showing such of amount dues in the loan agreement account. So in the absence of the said proof,  in our view the Opposite Party is not permitted to withheld balance amount after adjusting the loan dues upto 30.09.2015.  We further considered that the Opposite Party has no power to deduct further /future loan installments in advance out of the insurance claim amount of Rs.6,76,000/-.  So under such circumstance, the duty cast on the Opposite Party to return an amount of Rs.2,15,000/- to the Complainant which was wrongly adjusted to the future loan dues of complainant loan agreement without his consent. 

19.     So such act of the Opposite Party, in our view, constitute a deficiency in his service to the Complainant.  Because the Opposite Parties are at liberty to recover the future balance dues by following other legal modes of recovery available under law.  But he cannot adjust the said loan dues in advance by taking situational benefits now happened in this case.  So the Opposite Party is under legal obligation to refund the balance amount of Rs.2,15,000/- to the Complainant.

20.     The another grievance of Complainant is that, the Opposite Party has wrongly charged total Rs.4,800/- as visit charges and Rs.9,312/- as O.D. charges but to substantiate the said claim the Complainant has not shown any cogent evidence to show that how the said charges are illegally.  Hence, in the absence of the same, we are of the opinion that the Complainant is not entitled the said amount from the Opposite Party.

21.     So as discussed above, we are of the view that the Complainant has proved to Point No.1.  Hence, we answered the same in the Affirmative.

Point No.2:

22.     As observed above, we answered the Point No.1 in the Affirmative.  Hence, the clam of the Complainant is answerable by Opposite Party. 

23.     The Complainant claims that he is entitled Rs.3,17,279/- on various heads claim.  But considering the facts of this case in our opinion the Complainant is entitled to get refund of an amount of Rs.2,15,000/- only from the Opposite Party, out of the insurance claim amount of Rs.6,76,000/-.

24.     Further the Complainant is entitled Rs.10,000/- towards pain and sufferings and Rs.5,000/- towards his litigation charges of this case from Opposite Party.  In our view, the same will meet the ends of justice.  Therefore, in all complaint is entitled to Rs.2,15,000/- + Rs.10,000/- + Rs.5,000/- total Rs.2,30,000/- from the Opposite Party.  Hence, the Opposite Party is liable to answer the said claim within two months.  Therefore, the point No.2 is answered partly in the affirmative.

25.     Thus, we pass the following order

ORDER

          The complaint filed by the Complainant through his GPA holder is allowed partly against the Opposite Party with cost.

          Consequently the Opposite Party is directed to pay Rs.2,30,000/- to the Complainant alongwith interest at the rate of 10% per annum from the date of complaint till its realization, within two months from today.

          Intimate the parties accordingly.