SMT. BANDANA ROY, PRESIDENT

            In short, complaint case is that he is owner of a truck being Registration No.WB 29A 8367 which he purchased with the financial assistance of the OP No.1 on 31.05.2014 and as per agreement value of the said vehicle was fixed at Rs. 23,43,600/-. It is the case of the complainant that he repaid all the installments to the OP No.1. One Santosh Kumar Sahoo is the driver of said vehicle who possesses a valid Driving License to drive HGV. The vehicle was the only source of his livelihood and he also repaid the installments from the earning of the vehicle. The petitioner purchased an insurance policy from the OP nos. 2and 3 through the OP No.1 with a yearly premium of Rs. 47,501/-. The vehicle was covered by the said B schedule insurance policy of the OPs no. 2 and 3. The OP no. 3 issued the insurance policy valid from 31.05.2015 to midnight of 30.05.2016. The local RTO issued certificate of National Permit  for goods carrier beiong No. NP/WB29/1313 dated 25.07.2014 and it was valid from 24.0-7.2014 to 23.07.2019. Unfortunately while moving from Salem, Tamilnadu  to Jorhat, Gouhati in Assam with turmeric packets. On 25.07.2015 at about 3.40 AM on NH 16 near Kotari under Balugaon PS,  Orissa, said vehicle was involved in an accident. Due to said accident the vehicle was badly damaged. The driver informed the incident to the IC , Balugaon PS on 25.07.2015 being Balugaon PS GDE No. 560 dated 25.07.2017 and the matter was also informed to the OPs over telephone. As per advise of the OPs the complainant toed the damaged vehicle by Maa Kali Recovery and Service, Salboni and  placed the same at Biswakarma Body Builder ,Tamluk for repair and the petitioner informed the matter to the OP Nos. 1 and 2. Thereafter the OP nos 1 and 2 send surveyor to make necessary inquiry of the said vehicle. The OPs asked the complainant to submit the bill  along with claim form after repairing.  The complainant repaired the vehicle after being advised by the surveyor of OP Nos. 1and 2  and he paid all the costs of repair after purchasing necessary spares etc. and submitted bill for Rs 5,93,215/- . The OPs gave assurance to the complainant to pass necessary order for payment of the claimed amount. After several correspondences with the OPs the OPs did not clear up the claimed amount but assured to pay the same. Ultimately  on 05.05.2017 the complainant sent a registered notice upon all the OPs demanding the amount or Rs. 5,93,215/-which the Ops received. In reply to said letter of the complainant the OP no. 2 send a letter to the complainant on 18.05.2017 but there was no whisper of the payment.

            Under such tremendous mental harassment the complainant has filed this complaint with a prayer for a direction upon the OPs to pay Rs. 5,93,215/- and other reliefs.

            The Ops appeared and contested the case by filing two written versions, one by the OP no. 1 and another jointly by the OP no. 2 and 3. All the OPs denied all the material allegations of the complaint and prayed for dismissal of the complaint petition on various grounds.

            It is the specific averment of the WV of the OP no1 that being approached by the complainant for a loan, they provided a loan to the complainant for purchasing the truck in question vide a loan agreement between them and the complainant being No. WMH00161D.  The loan was required to be repaid in 46 monthly installments commencing from 07.08.2014  and it was stipulated that every payment would be made by seven days of the next month. But the complainant did not pay the installments in due time and consequently overdue charge of Rs. 21,633/- became due as on 08.02.2018 and future due of Rs. 1,80,600/-. Loan outstanding  amount was Rs. 2,02,233/-.  This OP called upon the complainant to clear up all the above dues but the complainant did not any heed.  It is the clear case of this OP that they are not liable to pay any amount as claimed by the complainant. They are only financer of the vehicle, not insurer.

            By the joint written version, the Ops no. 2 and 3 averred that being informed of the accident they sent a surveyor for investigation and report about the damages.
After going through the damages the surveyor assessed the loss to the tune of Rs. 3,55,282.50 only. The OP insurance Co. requested the complainant to accept that amount but the complainant did not accept that amount nor did he pursue any more regarding his claim. It is the further claim of these OPs that they have no deficiency of service but it is the latches on the part of the complainant for not accepting the assessed amount. There is no repudiation of the claim of the complainant and so, the case is liable to be dismissed.

            Point to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version and all  the documents filed by both the parties, affidavit in- chief and questionnaires and also the reply thereto filed by the complainant and heard the submission of the ld advocate for the complainant.

            Admittedly on or about 31.05.2014 the complainant approached the OP no1 for a financial assistance. The OP bank  sanctioned  the loan to the tune of rs. 23,43,600/- under a loan agreement  and the complainant he purchased  the vehicle being registration No  WB 29A/8367 (Ashoke Lay land Truck). As per terms of the agreement between the complainant and the OP no1 the vehicle would remain hypothecated to the OP Financer till full recovery of the loan amount. Said loan was required to be repaid  in 46 equal monthly installments commencing from  07.08.2014  and it was stipulated that every payment would be made by seven days of the next month. But the complainant did not pay the installments in due time and consequently overdue charge of Rs. 21,633/- became due as on 08.02.2018 and future due of Rs. 1,80,600/-. Loan outstanding amount was Rs. 2,02,233/-.

            A copy of the loan agreement  has been filed by the complainant and also the OP no.1 and it has been marked as Annexure 1. The complainant accepted the terms and conditions of the OP no.1 and the loan amount was disbursed to the complainant. According to the OP no.1 the complainant failed and neglected to pay the contractual amount as per terms and conditions of the agreement. From time to time, according to the OP no.1, delay payment charge became overdue of Rs. 21,633/- as on 08.02.2018 and future due is Rs. 1.80,600/-. Loan outstanding amount is Rs. 2,02,233/- .

            It is also the claim of the OP no.1 that the complainant sought  for no relief against this OP no.1.    The allegation of this OP is that the complainant is a defaulter in violating the clause 14 of the agreement and in the event of any payment being made on the policy in relation to the insured sick the same will be made to the third party but not to the insured and since in this case the this OP is the financer of the said vehicle which is hypothecated to them they are entitled to get the insurance amount, not the complainant.

            In this regard we have given out anxious consideration. But in view of the   decision of 2018 (1) CPR 645 (NC) wherein it has been held that even if the petitioner wanted to make payment in accordance with the report of surveyor, they should have made such payment to the complainant and not in his loan account with the finance Co.

            OP no. 2, the Insurance Co. concerned has also filed written objection and stated that the vehicle met   an accident  and was badly damaged, wheels separated from the body of the vehicle, steering box, oil tank had been removed from the body of said vehicle. 4 nos. of tyres have been busted, front show also damaged, body and chassis have been bend, etc.  The accident was informed to Balugaon PS on 25.07.2015 vide GDE No. 560 dated 25.07.2017 and on the same day the matter was informed to this OP. The OP no1 arranged for surveyor to assess the damage and amount of compensation.  The surveyor assessed the loss to the tune of Rs.3,55,282.50. The OP no 2 requested the complainant to accept that amount but the complainant did not agree to accept.  This OP claims that they have no deficiency in the matter of paying the compensation as per terms of the insurance policy.

            In order to prove their case the complainant has filed statement of accounts of Indusind Bank, , registration certificate of vehicle No. WB 29A 8367, Authorization certificate of NP (Goods), Certificate of National Permit  goods carrier, etc.

            From the materials on record it appears that the complainant has claimed Rs. 5,93,215/- from the OP Insurance OPs which is actually the cost of repair of the damaged vehicle and the complainant has also claimed Rs. 1,00,000/- as compensation and litigation cost of Rs. 10,000/-

            We have given our anxious consideration over the issue.

            The complainant has filed examination in-chief and the OPs cross-examined him by way of filing questionnaires.

            It appears that the OP Insurance Co. stated in their written version that  their surveyor assessed  the loss to the tune of Rs.3,55,282.50  and it was informed to the complainant and they requested the complainant to accept the same but the complainant did not accept. The complainant in his examination in chief  did not deny said fact and  also did not  say that survey had been done and the surveyor on behalf of the Insurance Co. assessed the loss. It was also not denied that the Insurance Co. offered Rs. 3,55,282.50 to the complainant for settlement of the claim. 

            It is a settled law  that when the complainant defaulted  in payment of installments and did not obey the terms and conditions of the agreement for loan in to to, the financial has right to take possession of the vehicle and to sell it by auction for recovery of the outstanding due and it is also settled law  that during the continuance of the loan agreement between insurer and the insured, the financer Co.  is the owner of the vehicle, not the complainant.,

            In that point of view we hold that the complainant is entitled to get only Rs. 3,55,282.50 as per  assessment of the surveyor.

            Considering the nature of the case we do not find that the complainant is entitled to get any compensation  but he is entitled to get litigation cost.

            Both the issues are answered accordingly.

            Hence, it is

O R D E R E D

That CC/478 of 2017 be and the same is allowed  on contest in part against the OPs.

The OP Cholamandalam MS General Insurance Co. Ltd is directed to pay a sum of Rs. 3,55,282.50  to the complainant  within one month from the date of this order, failing which they will be liable to pay interest at the rate of Rs 9% per annum over the awarded amount  till full realization thereof.

The said OP would also pay a sum of Rs. 10,000/- to the complainant as litigation cost within the same stipulated period.

Let copy of the judgment be supplied to all the parties free of cost.