DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 115 of 2017

 

Smt. Basanti Nath,

W/O.-Sri Krishna Kumar Nath,

R/O.-Vill.-Laxmipur, Dasda Kanchanpur,

District-North Tripura.….....................................................................................Complainant.

 

 

 

-VERSUS-

 

 

 

1. The Divisional Manager,

Oriental Insurance Co. Ltd.,

Divisional Office, Agartala, 

44/2, Central Road,

Dist.-West Tripura,

Agartala-799001.

 

2. The Branch In-Charge, 

Tata Motors Finance Ltd., 

Melarmath, Agartala, 

Opp. Madan Mohan Mandir,

Tripura West, Pin-799001............................................................................ Opposite parties.

 

 

     __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SRI UMESH DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SMT. Dr BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

 

C O U N S E L

 

 

For the Complainant : Sri Pijush Kanti Chakraborty,

  Advocate.

For the O.P. No.1  : Sri P. Gautam, 

   Sri Sumit Debnath,

  Advocates.  

For the O.P. No.2 : Sri Swarup Pandit,

  Advocate. 

 

JUDGMENT  DELIVERED  ON :  14 / 01 /2020

 

J U D G M E N T

          The Complainant Smt. Basanti Nath, set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act, 1986 complaining deficiency of service by the O.Ps.

Complainant's case, in brief, is that the Complainant's son Ajit Kumar Nath since deceased had purchased one Truck from Rajarshi Motors Private Limited. While purchasing the truck Ajit Kr. Nath had obtained loan from the O.P. No.2, Tata Motors Finance Ltd. pursuant to a hypothetication-cum loan agreement which was executed between Ajit Kr. Nath and the Authorized Representative of the Tata Motors Finance Ltd. After few months of purchase the vehicle was completely damaged on account of fire caused by miscreants. The vehicle was duly insured with the O.P. No.1, Oriental Insurance Company Ltd. In due course of time Ajit Kr. Nath, son of the Complainant raised insurance claim concerning the vehicle before the Oriental Insurance Company Ltd. As asked by the Oriental Insurance Company some documents / papers were produced from the claimant's side before the Oriental Insurance Company. But before getting the insured amount, Ajit Kr. Nath was murdered. The Complainant being the only legal heir of her unmarried son raised the insurance claim again before the O.P. Insurance Company Ltd. The O.P., Oriental Insurance Company paid Rs.4,40,000/- by way of cheque to the O.P. No.2, Tata Motors Finance Ltd. The Tata Motors Finance Ltd. out of the paid amount subsequently sent one cheque for an amount of Rs.28,300/- in the name of Ajit Kr. Nath. As Ajit Kr. Nath has already expired, so the cheque was returned to the Tata Motors.    

Being aggrieved and dissatisfied with the conduct of the O.Ps.,  the Complainant has filed the instant complaint before this Forum claiming Rs.5,17,432/- as compensation from the O.Ps.  

Hence this case.

 

2. In due course of time notices were duly sent to the O.Ps. from the Forum. Initially only the O.P. N.O.1, Oriental Insurance Company appeared and contested the case by filling W.O. 

  The O.P. No.1, Oriental Insurance Company in his written objection denied the claim of the Complainant. It is stated that the vehicle was hypotheticated to O.P. No.2, Tata Motors Finance Ltd. and as per terms and conditions of the Insurance Policy the O.P. No.1 paid the insured amount of the vehicle to the Tata Motors Finance Ltd. and that the Payment was made with consent  of the Owner of the vehicle. So it has been asserted in the W.O. that the O.P. Insurance Company had no deficiency of service at all.             

  It is to be mentioned here that in this case my predecessor gave judgment on 11/04/2018 allowing the complaint. The O.P. Oriental Insurance Company Ltd. assailed the judgment by filing an appeal before the Hon'ble State Commission. The Hon'ble State commission after hearing of both sides set aside the judgment dated 11/04/2018 passed in this case by my predecessor and remanded the case record to this Forum for deciding the case afresh in accordance with law after providing opportunity to the parties to adduce fresh evidence if any.       

On receiving the case record from the Hon'ble State Commission, notices were duly sent to the Complainant and the O.Ps. asking them to appear before the Forum.

In due course of time, the Complainant and the O.Ps. appeared before the Forum through their engaged Advocates. The O.P. No.2, Tata Motors Finance Ltd. after appearance has submitted Written Objection. The O.P. Insurance Company had already submitted W.O. in this Forum denying the allegations and claim raised by the Complainant. The O.P. had stated that the subject vehicle was hypotheticate to the O.P. No.2, Tata Motors Finance Limited and that as per the terms of the Hypotheticate Agreement the Oriental Insurance Company paid the insured amount to the Tata Motors Finance Limited(O.P. No.2). The said amount was paid with consent of the Owner of the Vehicle and that the owner of the vehicle signed on the discharged voucher. So the O.P. No.1 in his W.O. had asserted that there was no deficiency of service on their part towards the Complainant. The O.P. has thus prayed for dismissal of the Complaint. 

  The O.P. No.2, Tata Motors Finance Ltd. has appeared after the case has been remanded from the Hon'ble State Commission and contested the complaint by filing of the W.O. denying the allegations of the Complainant. The O.P. has asserted that the complaint is barred by the Principles of Res-Judicata and that the Complainant having used the subject vehicle for commercial purpose can not be considered to be a consumer as defined under sub-section (d)(i) of section 2 of the Consumer Protection Act, 1986. Hence, the complaint is liable to be dismissed. The said O.P. has further stated in his W.O. that Ajit Kr. Nath had taken a loan of Rs.3,40,000/- from Tata Motors Finance Ltd. by executing a Loan-cum-Hypothecation Agreement No. 5000587511 dated 10/08/2010 in order to purchase a commercial vehicle TATA-207DI bearing engine No.497SP28AZY604699 and chesis No. MAT374464A9B03918. As per the agreement repayment of the loan amount should be made in 35 installments commencing from 11/09/2010 to 11/07/2013. The terms and conditions of the Agreement clearly provide that the monthly installments due are to be paid regularly on monthly basis and that any delay or default in repaying the monthly installment is a breach of the terms and conditions of the Agreement, THEREBY GIVING Opp. Parties a legal right to terminate the loan account and repossess the subject vehicle to secure the loan payment. The O.P. also stated in his W.O. that the O.P. had received a cheque of Rs.4,40,000/- as the final settlement of the total loss claimed from the O.P. No.1 as a Financier of the subject vehicle. As per clause 10.4 of the Loan-cum-Hypothecation agreement the Insurance claim received from the Insurance Company would be adjusted against the outstanding principal, interest, other charges etc. payable by the Complainant Borrower. The O.P. had accordingly recovered the entire dues to the full satisfaction out of the amount received from the O.P. No.1, Oriental Insurance Company Ltd. and thereafter refunded Rs.28,300/- to the Complainant in compliance with clause 10.4 of the Loan-cum-Hypothecation Agreement.    

 

Denying any deficiency of service towards the Complainant, the O.P. No.2 urged before the Forum to dismiss the complaint with cost. 

EVIDENCE ADDUCE BY THE PARTIES:-

 

 

3. The Complainant examined herself as PW-I and submitted her examination in chief by way of affidavit. She has produced Survival Certificate, G.D. Entry, Death certificate of Ajit Kr. Nath, Motor Insurance Certificate of the subject vehicle, Postal receipt, Letters, Communication, Loan-cum-Hypothecation Agreement, Temporary Certificate of Registration of the subject vehicle & Xerox copy of one cheque of Rs.28,300/- dated 03/10/2012 in the name of Ajit Kr. Nath. The documents on identification have been marked as Exhibit – 1 Series. The complainant was cross examined by the O.P. side.

  On behalf of the O.P. Nos.1 one witness namely Sri Gautom Banik, Assistant Manager of Oriental Insurance Company, Agartala Branch was examined. The said witness was also cross examined by the Complainant side. The said witness has produced 03 documents namely true copy of Discharge Voucher dated 29/03/2011, true copy of Hypothetcation Agreement & true copy of Policy Certificate. On identification the documents have been  marked  as Exhibit A Series.

        On behalf of the O.P. No.2 one witness namely Sri Sabhyasachi Datta, Area Legal Manager, Tata Motors Finance Ltd. Was examined. He was also cross examined by the Complainant side. The said witness has produced 12 documents. The documents have been marked as Exhibit -B Series.           

 

 

4. POINTS TO BE DETERMINED:- 

  (i) Whether there is deficiency of service on the part of the O.Ps towards the Complainant?

  (ii) Whether the complainant is entitled to get compensation/  relief as prayed for?

            

 

5. DECISION   AND  REASONS  FOR  DECISIONS:- 

      We have heard arguments from both sides. 

We have carefully gone through the pleadings of both the parties, the evidence, both documentary and oral adduced by both sides. We have  also gone through the written arguments submitted by the O.P. No.2, Insurance Company.

It is evident from the case record that the son of the Complainant had purchased one Truck from Rajarshi Motors Private Limited. While purchasing the truck Ajit Kr. Nath since deceased had obtained loan from the O.P. No.2, Tata Motors Finance Ltd. pursuant to a Hypothetication-cum-Loan Agreement which was executed between Ajit Kr. Nath and the Authorized Representative of the Tata Motors Finance Ltd. After few months of purchase the vehicle was completely damaged due to setting of  fire to the truck by miscreants. The vehicle was duly insured with the O.P. No.1, Oriental Insurance Company Ltd. In due course of time Ajit Kr. Nath, son of the Complainant raised insurance claim concerning the vehicle before the Oriental Insurance Company Ltd. We find that the Oriental Insurance Company, O.P. No.2 after observing all formalities and in complaince with the clause 10.4 of the Hypothetication-cum-Loan Agreement issued a joint cheque in the name of Owner of the Vehicle and the O.P. No.2, Tata Motors Finance Ltd. for an amount Rs.4,40,000/- being the assessed insured amount of the truck. The Tata Motors Finance Ltd. after adjusting the loan due amount of Rs.4,11,700/- out of the amount of Rs.4,40,000/- received from the Oriental Insurance Company refunded the rest amount of Rs.28,300/- to the claimant Petitioner through a cheque on 03/10/2012. It is further evident from the case record that the claimant Petitioner had refused to receive the amount sent by the Tata Motors Finance Ltd. She has returned the cheque to the Tata Motors Finance Ltd. We find that the Complainant in her complaint and also in her evidence-in-chief has failed to satisfy us for what reason she had refused to receive the cheque which was sent by the Tata Motors Finance Ltd. It is already established that Ajit Kr. Nath while he was alive had failed to meet up the loan amount obtained by him from the Tata Motors Finance Ltd. for purchasing the truck. Hence, according to us the Oriental Insurance Company has lawfully issued the joint cheque for an amount of Rs.4,40,000/- being the assessed insured value of the truck and the Tata Motors Finance Ltd.(O.P. No.2) also acted rightly in recovering Rs.4,11,700/- out of the amount Rs.4,40,000/- and refunding the rest amount of Rs.28,300/- to the claimant Petitioner. 

We do not find any deficiency of service on the part of the O.Ps.  towards the Complainant Petitioner  and as such the Complainant is not entitled to get any compensation. We further observed that the O.P. No.2's pleas regarding the maintainability of the complaint on grounds of the complaint being barred under the Principles of res-judicata and that the complainant can not be consider to be a Consumer as defined under the Consumer Protection Act, 1986 do not appear to us convincing and acceptable having regard to the facts and circumstances of the case and having seen that the previous two complains filed by the Complainant had not been decided finally on merit. Hence, both the pleas of the O.P. No.2 stand rejected as those are devoid of any merit.   

Both the issues framed above are answered accordingly. 

 

 

6. In view of the discussion made above, we find and hold that the Complainant has failed to make out a case U/S 12 of the Consumer Protection Act, 1986. The O.Ps.  according to us can not be held liable for any sort of deficiency of service towards the Complainant. 

In the result, the Complaint filed by the Complainant Smt. Basanti Nath is dismissed without any costs.

However, for fair ends of justice we direct the O.P. No.2 to send A/C payee cheque afresh for an amount of Rs.28,300/- in the name of the Complainant Petitioner Smt. Basanti Nath to her residential address by registered post within 03 weeks on receipt of copy of this judgment failing which the amount shall carry 9% interest P.A. till the payment is made.   

 

    Announced.

 

SRI  BAMDEB  MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

SRI  UMESH  DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA

 

 

 

SMT. DR  BINDU  PAL

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA