Hon’ble Mr. Haradhan Mukhopadhyay, President.
The basic fact of the Complaint case in brief is that the Complainant purchased a Motor Vehicle bearing No. WB-64-T4551 for his personal use with financial help of O.P. No.1 against which an insurance was registered vide policy No.3311/00186499/000/00 valid from 30.10.18 to 29.10.21. When the Complainant was driving the vehicle the said car met with an accident and it was damaged against which she filed a written complaint to OC, Ghoksadanga P.S. After full enquiry the O.P. No.2 Mrs Cholamandalam MS G.I. Company Limited, C/O- Sona Wheels, Sevoke Road, Siliguri settled the claim for Rs.1.5 Lakhs. Accordingly, O.P. No.2 sent a letter dated 26.02.19 to O.P. No.1 HDFC Bank for NEFT details of the said loan account of Complainant Smt. Mampi Barman in respect of the said vehicle. Despite repeated reminder the O.P. No.2 did not provide the said NEFT details to the O.P. No.2. The Complainant paid the loan EMI alongwith interest regularly to the O.P. No.1. The Complainant therefore sent a letter on 29.05.19 demanding the said information but the O.P. No.2 deliberately did not receive the said petition. Finally the Complainant sent written complaint through registered post to the O.P. No.2 on 29.05.19 with a request to disburse the claim amount directly in the said loan account or through account payee cheque to the Complainant but the O.Ps did not comply with any of the requests. Hence this case is filed. The cause of action arose on 30.10.18, 30.12.18 and lastly on 29.05.19. The Complainant prayed for an award against O.P. No.2 to pay insurance claim amount of Rs.1.5 Lakhs with up to date interest, Rs.1 Lakh for deficiency in service and litigation cost of Rs.20,000/-.
Both the O.P. No.1 & 2 contested the case by filing written version denying all the allegations against them. The positive defence case of O.P. No.1 in a nutshell is that the O.P. No.1 raised a quarry with O.P. No.2 on 20.07.19 for clarification in respect of the letter of the Complainant dated 26.02.19 through their Lawyer Milindo Paul which returned back with a remark “addressee left”. Having received no reply the O.P. No.1 again sent a fresh letter to the O.P. No.2 on 29.07.19 but to no effect. It is not clear as to why the account details are necessary. In most insurance cases the insurance company transfers the claim amount directly to the insurer as per the account details of the claim form. O.P. No.1 has already admitted that the Complainant has paid EMI on demand and is paying regularly on the due dates and the O.P. No.1 has no claim against the Complainant. The O.P. No.1 cannot accept any extra money from the O.P. No.2 on account of any insurance claim. The O.P. No.1 claimed that the case is liable to be dismissed with cost.
The positive defence case of the O.P. No.2 in a few words is that the insurance company cannot violate the IRDA norms or Govt. of India policy. The insurance company is fully dependent upon the said surveyor report which discloses that as per terms and conditions of insurance policy Complainant/ insured agreed to settle the claim for an amount of Rs.1.5 Lakhs by giving consent and thereafter he was requested to provide the NEFT details for settlement of dispute for a sum of Rs.1.5 Lakhs and tried to pay the said money directly to the Complainant’s bank account but since the vehicle was hypothecated with the HDFC Bank, Siliguri so NEFT details of financier of HDFC Bank was required. As per Insurance Act and IRDA norms, payment should be made to financier only on receipt of NOC through NEFT mode. In this case the Complainant did not supply the NEFT details for which the O.P. No.2 was compelled to hold the claim amount of Rs.1.5 Lakhs and could not release it. It clearly proves the negligence of the Complainant and O.P. No.1. So, O.P. No.2 is not liable. The Complainant agreed to retain the damage vehicle on as is where in condition. The Complainant tried to suppress material fact for unlawful gain. The O.P. No.2 claim that the case liable to be dismissed with cost.
The conflicting facts and allegations between the parties led this Commission to ascertain the following points for proper adjudication of this case.
Points for determination
- Whether the present case is maintainable in its form and law?
- Whether the Complainant is entitled to get the relief as prayed for?
- To what other relief the Complainant is entitled to get?
Decision with reasons
Point No.1.
The Complainant claimed to have purchased a car which met with an accident against which he claimed insurance policy money. The O.Ps denied the property of the claim. Thus after scrutiny of all the pleadings and the documents it is crystal clear that the relation between the Complainant and O.Ps is well within the purview of the C.P. Act. There is no legal bar to entertain the case. Accordingly, Point No.1 is answered in affirmative and goes in favour of the Complainant.
Point Nos.2 & 3.
Both the points are very closely interlinked with each other and these are taken up together for convenience and brevity of discussion.
The main allegation of the Complainant is that due to not providing the NEFT details of the loan account by the Branch Manager, HDFC Bank, O.P. No.1 to the O.P. No.2 M/S Cholamandalam MS G.I. Company Limited, insurance money could not be recovered.
The Complainant in order to substantiate the case adduced both oral and documentary evidence. The evidence on affidavit is sworn-in by the Complainant Smt. Mampi Barman is absolutely in consonance with the case made out in the pleading of the Complainant.
The Complainant also proved the insurance policy No. 3311/00186499/000/00 in the name of the Complainant Smt. Mampi Barman valid from 30.10.18 to 29.10.21, certificate of registration, copy of FIR dated 03.01.19 and letter of insurance company dated 26.02.19 to HDFC Bank for assessment of loan for Rs.1.5 Lakhs. It is the defence claim of O.P. No.2 inter alia that as per the IRDA norms in case of hypothecation of any surveyor always the payment should be made to surveyor or alternatively to make payment in the desired bank account of the insured only on receipt of NOC/ form-35 from surveyor bank and all payments has to be made through NEFT/RTGS where claim get settled. Annexure-D clearly reveals that after final survey the liability was settled for Rs.1.5 Lakhs. It is evident from Annexure-D that after settling the claim for Rs.1.5 Lakhs, the O.P. No.2 issued letter of request to O.P. No.1 on 26.02.19 for providing the loan account NEFT details of Complainant Mampi Barman.
On a plain reading and perusal of the evidence on record of O.P. No.1 it transpires that the O.P. No.1 did not deny about the settlement of the insurance claim for Rs.1.5 Lakhs. On the contrary the O.P. No.1 denied to have received any letter dated 26.02.19 seeking loan account NEFT details of the Complainant for the vehicle No. WB-64-T4551. But the O.P. No.1 pleaded that they raised a quarry to O.P. No.2 for clarification of the said letter dated 26.02.19.
Now it is a big question as to how the O.P. No.1 Company demanded clarification of a letter which alleged to have been not received by him.
The O.P. No.1 filed a letter/ notice given by his Advocate dated 29.07.19. In the last part of that legal notice (Annexure-A) dated 29.07.19, the sender tried to know as to where the said notice dated 26.02.19 was issued and if so to clarify as to why such information was required.
The purpose or reasons for issuing letter Annexure-D is clearly explained but the O.P. No.1 again raised question to the same. So the demeanour of the O.P. No.1 is proved to have been made just to drag the matter.
On the contrary O.P. No.1 just made an omnibus. They took an evasive defence plea that the O.P. No.1 has never come across such a situation where the insurance company has asked for the details of the loan account.
The O.P. No.2 as an insurance Company can claim the details of the bank account of the insurer. The O.P. No.1 could not prove any documents to show that such claim of O.Ps is illegal or irrational and that the O.P. No.1 is not bound to provide that information. Failure on the part of the O.P. No.1 to prove any contrary to the contention of the Annexure-D dated 26.02.19 should be considered as a sufficient ground for allowing the claim of the Complainant.
In course of argument it has been submitted by Ld. Advocate that a sum of Rs.1.5 Lakhs has been deposited to the account of the Complainant, during the pendency of the case. Ld. Advocate for the Complainant argued that there has been a substantial delay of about one and half years in payment of the principal amount. So the Complainant claimed interest for such delay. The argument has reasonable force in as much as the document supports the case of the Complainant.
Thus after assessing the oral and documentary evidence on record coupled with the argument advanced by the Ld. Advocate for both the parties the Commission comes to the inference that the Complainant proved the case up to the hilt. The demeanour on the part of the O.Ps tantamount to deficiency in service.
Consequently both the issue Nos. 2 & 3 are answered in affirmative and decided in favour of the Complainant.
In the result the complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/84/2019 be and the same is allowed on contest with cost of Rs.10,000/-.
The Complainant do get an award for a sum of Rs.50,000/- to be paid by O.P. No.1 and Rs.10,000/- to be paid by O.P. No.1 & 2 @ Rs.5,000/- each. The O.P. No.1 is directed to pay Rs.55,000/- and O.P. No.2 is directed to pay Rs.5,000/- within 30 days from the date of passing the Final Order to the Complainant failing which they will be liable to pay an interest @ 6% per annum from the date of passing Final Order till the date of realisation.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order be also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
