Haryana

Karnal

CC/188/2018

Sunil Kumar - Complainant(s)

Versus

The Cholamandalam MS General Insurance Company Limited - Opp.Party(s)

Som Dutt Sharma

12 Mar 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 188 of 2018

                                                          Date of instt. 01.08.2018

                                                          Date of Decision 12.03.2020

 

Sunil Kumar son of Shri Suresh Bhanot, resident of village Salwan, Tehsil Assandh, District Karnal.

 

                                                                        …….Complainant

                                        Versus

 

The Cholamandalam MS General Insurance Company Ltd. SCO-334, Basement Mugal Canal Market, Karnal through its authorized signatory.

 

                                                                        …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri S.D. Sharma counsel for complainant.

                   Shri Vineet Rathore counsel for OP (defence struck off).

 

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant purchased one vehicle i.e. Eicher Canter Model no.11.10 Pro after taking loan from Cholamandalam Investment and Finance Co. Ltd. After purchasing the abovesaid vehicle the complainant got insured his aforesaid vehicle with the OP, vide policy no.3379/01742275/000/00, valid from 31.05.2017 to 30.05.2018. After purchasing the said vehicle complainant has deposited regular installments with Cholamandalam Investment. In the month of January, 2018, the complainant had deposited the installment of loan amounting to Rs.36,700/- with Cholamandalam Investment. On 15.02.2018 the complainant was going to Dabwali from Delhi then in the area of Police Station Bada Buddha the aforesaid vehicle of the complainant met with an accident and the said vehicle of the complainant was taken into custody by the police of Police Station Bada Buddha and the vehicle was released in favour of the complainant on Superdari as per the order passed by learned Illaqua Magistrate, Sirsa. Thereafter, complainant has brought his vehicle for repair on the shop of Lathar Denting and Painting Transport Nagar, Karnal and the matter was duly intimated to the OP and the surveyor of OP visited the shop of Lathar Denting and Painting and received estimate Bill of repair from him and brought the vehicle of the complainant on 04.05.2018 in the absence of the complainant and without informing the complaint from the shop of Lather Denting and Painting Karnal. The surveyor of the OP has taken the estimated bill of the accidental vehicle of the complainant and has not made the payment of the estimated bill to the complainant whereas the OP is liable to make the payment of the repair to the complainant. The complainant contacted the OP so many times and requested to make the payment of the bill of repair by Lathar Denting and Painting and also make the payment of insurance to complainant and further made request to Cholamandalam Investment Co. to handover the vehicle of the complainant but OP did not pay any heed to the request of complainant. Complainant visited the office of Cholamandalam Investment, Karnal and wanted to check his account but the official of the abovesaid office does not allow the complainant to check his account nor the abovesaid company has submitted any documents to the complainant in respect of the loan. It is alleged that the said vehicle was only source of income of complainant and due to non-receipt of vehicle, the complainant cannot deposit the monthly installment with Investment company. The estimated bill of repair was Rs.3,56,915/- which was to be paid by OP to the Lather Denting and Painting Karnal. The complainant visited the office of OP several times and requested to make  the payment of estimated bill but did not pay the same. Then complainant sent a legal notice dated 02.07.2018 to the OP in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability; cause of action; complaint is bad for non-joinder of necessary parties and concealment of true and material facts. On merits, it is pleaded that the claim amount to the tune of Rs.1,00,000/-as per the Final surveyor report has already been paid as per the hypothecation clause under the policy and this amount has been duly credited in the loan account of vehicle in question maintained with Cholamandlam Investment & Finance company limited. It is further pleaded that the finance has got the first right to get the insurance claim if the vehicle is under finance. It is further pleaded that the date of loss was 15.02.2018 and same was intimated belatedly to company on 22.02.2018, which is against the terms and conditions of policy, since the intimation to loss has to be imparted to insurance company without delay and immediately. Even complainant submitted documents in delayed manner and even repairs were not started as per final survey report. It is further pleaded that complaint is bad for non-joinder of necessary parties. The vehicle under dispute is hypothecated/under hire purchase with the Cholamandlam Investment & Finance company limited. In order to reveal out the actual facts the Cholamandlam Investment & Finance company limited is required to be arrayed as proper and necessary party. As such complainant be directed at this stage to array Cholamandlam Investment and Finance Company Limited  as one of necessary party. It is further pleaded that after receiving the delayed intimation OP company appointed surveyor to assess the loss, who after inspecting and technically observing the affairs submitted final survey report. It is denied that OP visited the shop of lather denting and painting and received estimate bill of repair and brought the vehicle of the complainant and without informing the complainant from the said shop. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence his affidavit Ex.CW1/A, affidavit of Krishan Kumar prop. Ex.CW2/A and documents Ex.C1 to Ex.C11 and closed the evidence on 25.09.2019.

4.             On the other hand, OP led no evidence after availing several opportunities including last opportunity subject to the cost of Rs.1000/-. Cost also not paid by the OP. Hence the evidence of the OP was closed by court order, vide order dated 11.02.2020.

5.             OP has failed to pay the cost. In this regard we can rely upon the citation titled as Sarvajanik Vyayam Mandir Versus Anand Nagarpalika 2018 (4) Civil Court Cases 735 (Gujrat high Court) in which it is held that Civil Procedure code, 1908, S.35-B, 2(2)-Costs-Non payment -Right to further prosecute the suit or defence is lost-Suit cannot be dismissed for non-payment of costs.

        In view of above citation, the OP has lost the right to further prosecute the complaint.

6.             We have heard the learned counsel for the complainant and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Admittedly, the complainant got insured the vehicle in question with OP. As per version of the complainant, he got financed the vehicle from Cholamandlam Investment and Finance Co. but complainant did not array the said investment and finance co. as a party in the present complaint.

8.             As per the version of the complainant, the vehicle in question met with an accident on 15.02.2018. This fact has been proved from FIR Ex.C1. After accident, the vehicle in question was brought on the shop of Lather Denting and Painting, Karnal. The matter was intimated to OP, on intimation having been given to OP, appointed a surveyor, who assessed the loss for the tune of Rs.1,00,000/-.

9.             As per version of the OP, the loss assessed as Rs.1,00,000/- has already  been paid as per the hypothecation clause under the policy and that amount has been duly credited in the loan account of the vehicle in question maintained with Cholamandlam Investment & Finance Company Limited as the financer has got the first right to get insurance claim.

10.            Further, as per the version of the complainant, complainant has deposited loan investment with the Cholamandlam Investment and finance co. but the complainant failed to place any receipt or account statement to prove his version. Moreover, said finance co. did not array as party in the present complaint, who was the necessary party. Thus, there is nothing on the file to prove that the complainant has deposited the loan amount.

11.            Further, the complainant has placed on file only rough estimate Ex.C9 to Ex.C11, said estimates had been issued by Lather Denting and Painting, Karnal. Affidavit Ex.CW2/A proprietor of the said workshop has been tendered but he did not explain Ex.C9 to Ex.C11 has been issued by him. Neither survey report nor any cogent, convincing and concrete evidence produced by the complainant to prove his cause. Thus, in the facts and circumstances as discussed above, we held that the present complaint has no merits and the same deserves to be dismissed.

12.            Thus, as a sequel to above findings, we do not find any merits in the complaint and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.03.2020

                                                                       

                                                                  President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

     (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member                  Member