SRI NILAKANTHA PANDA, PRESIDENT
The Complainant has filed this complaint petition, U/s-12 of C.P.A.-1986, (here-in- after called as the “Act”), on dated 29/01/2018, alleging a “deficiency-in-service” by the O.Ps, where O.P No.1 is the Divisional Manager, Cholamandalam MS General Insurance Co. Ltd. and OP No.2 is the Branch Manager, IndusInd Bank, Balasore. That, as per the complainant’s petition the cause of action arose on dated 21/11/2017.
That upon admission of the present case matter, the Ops were appropriately noticed along with copy of the complaint petition.
The record says, the notice was served on OP No.1, but his Vakalatnama & written version were not accepted, for the reason that the Authorizing person & Vakalatnama executant are two different persons and the W.V. was submitted beyond the stipulated time period, without any delay condonation petition. However the said documents were kept in record, for future references.
That the record also says the OP No.2 has appeared through its Advocate and filled Vakalatnama & the W/V, within the stipulated time period, which was accepted.
The case of the Complainant, in brief is that, the present complainant has purchased a “Hero Passion Motor Cycle” bearing Regd. No.OD-01C-9534, Engine no JA12ABDGM25716 & Chassis no MBLJA12ACDGM20418 acquiring a loan from OP No.2 for Rs.36,367.00. That the OP No.2 had fixed 24 instalments @ Rs.2045.00 per month fixing interest @ 14.67% per annum. The OP No.2, on its own accord, has instructed the complainant to insured the said vehicle, for all risks, with OP No.1, vide policy no 3361/00430910/000/00, valid for the period 16/05/2016 till 25/05/2017, for a sum of Rs.40, 000.00. That during the course of time the complainant has paid 13 no’s of instalments to the OP No-1, amounting to Rs 26, 585/-, out of fixed 24 instalments. The above said motor cycle of the complainant got stolen on 04/10/2016, subsequently, he intimated the fact of stolen to OP No.1 with all relevant documents and was accordingly OP No. 1 issued a claim registration no 3361005558 to the complainant. That after getting the above claim number the complainant had tried his best to resolve the matter and being failed to get any result had finally served a Legal Notice upon the Op No-1, on dated 21/11/2017. On the relevant dates, the complainant has paid 13 instalments out of 24. So, the complainant rightly claimed the insured amount to the OP No - 1, both for repayment of loan due and for loss of vehicle, but the OP No 1 remained silent. So, he served legal notice to the OP No - 1. That after service of the aforesaid Legal Notice, the OP No - 1 still remain silent and did not pay any attention to the complainant. Lastly, the compliment left with no other option was constrained took shelter under this commission by filing this case with the prayer stated in his complaint petition, for release of insure amount with appropriate compensation. Hence, this case.
That to substantiate the complaint, the complainant relied upon the following documents, which are placed in the record;
- Xerox copy of RC Book.
- Xerox copy of certified RC Book
- Xerox copy of Insurance policy
- Xerox copy of FIR submitted to IIC
- Certified copy of Order Sheet of SDJM, Balasore & First Form.
- Copy of Information Letter to Bank
- Copy of reply to demand notice of Insurance.
- Copy of reply submitted to Bank.
- Copy of document submission letter to Insurance.
- Copy of postal receipts.
- Copy of Legal Notice to insurance.
- Copy of Loan & Payment statement.
The Vakalatnama & Written Submission of the Op No-1, is rejected, as aforesaid. The Op No-1, has not also filled its Written Argument, in course of hearing of the case matter. However the pleadings of the OP No-1, as stated in its Written Submission is discussed on academic point of view, just to examine genuineness of complainant’s plaint and dispense of justice.
The OP No.1, being an Insurance Company, denying the averments made in the complaint petition, has stated in his written version that the complainant has no cause of action to file the case, hence not maintainable, barred by law of limitation and non-joinder and mis-joinder of parties.
It is specifically stated by the OP No. 1, that the insurance policy certificate was issued to the vehicle of the complainant covered the risk period from 26/05/2016 to 25/05/2017 for insured value of Rs.40, 000.00. That on receipt of information with regard to theft of insured vehicle, the OP had issued the claim form to the complainant and the complainant was advised to submit the required / relevant documents in support of his claim & theft. But the complainant failed to comply the same, on the other hand he has filed the case alleging deficiency of service. The complainant has not co-operate the OP for fruitful settlement. The complainant himself is responsible for non-settlement of his claim. On the other hand, filing of such vexatious claim against the OP, the complainant has lost all his reputation and good will before this OP. Therefore, the question of deficiency of service on the part of this OP does not arise at all. Hence, it is prayed by OP No.1 to dismiss the claim of the complainant petition.
That to substantiate its case, the OP No.1 relied upon the following documents, which are placed in the record;
- Motor policy schedule cum certificate of insurance.
The OP No.2, being a Banking Company, has denied the contentions claims, demands, allegations of the complainant made in the complaint petition. Challenging the maintainability of the case and cause of action, it is specifically stated in his written version that the complainant does not fall within the definition of Consumer and in order to get rid of the loan liability and to escape from the legal proceeding, the complainant has filed the case maliciously. Further, the complainant is a defaulter in payment of the instalment and the OP No.2 has suffered huge loss in this transaction. There still outstanding loan amount of Rs.23,388.00 as on 05/04/2018, as per the statement annexed. Further, exercise of rights under the loan-cum-hypothecation agreement cannot be construed as unfair trade practices and deficiency of service. It is the only duty of the complainant to repay the loan through regular periodical instalments in due time and he has cheated the OP No.2 by deliberately not repaying the loan which is legally liable to pay and the initiation of this proceeding against him with malafide intention only to deprive the financer from recovering its legal dues. The OP No.2 has nothing to do with theft of the vehicle. In the above facts and circumstances, the OP No.2 prayed to dismiss the case with cost.
That to substantiate its case, the OP No.2 relied upon the following documents, which are placed in the record;
- Xerox copy of statement of loan account.
In view of the above averments of the parties, the points for determination in this case are as follows:-
(i) Whether the Complainant is a Consumer as per C.P Act, 1986?
(ii) Whether there is any cause of action to file this case?
(iii) Whether this Consumer case is maintainable as per Law?
(iv) Whether there is any deficiency of service on the part of the O.P to the Complainant?
(v) To what other relief(s), the Complainant is entitled to?
F I N D I N G S
That upon meticulous examination of the Complaint Petition, along with the documents / statements presented by the parties to this case matter, it is admittedly found that the complainant has purchased a “Hero Passion XPro – Two Wheel Motor Cycle” bearing engine number JA12ABDGM25716, along with its spares & accessories. That the Financing Banking Company, OP No – 2, upon approach of the complainant, has sanctioned a loan amount of Rs 36,367/-, for the unsaid motor cycle and fixing 24 numbers of monthly instalments @ 02, 045/ per instalment. That for protection of the vehicle and safeguard of the loan amount the financer, on its choice, insured the vehicle with Op No- 1for an amount of Rs 40, 000/-.
That later on dated 04/10/2016, the motor cycle was got stolen and to that effect the complainant lodged a FIR and appropriately intimated this fact to both Ops, for releasing the insured amount and for not to take any corrosive action until insured amount is received to repay the due loan amount.
But to utter astonishment of the complainant, the OP No- 1, did not pay any attention to it and rather through its WS has denied any liability, despite undertaking Insurance policy on appropriate consideration.
That in the WS of OP No -1, stated that it was not in its direct knowledge of theft, whereas it is seen from the complaint petition that complainant was issued with a claim no 3361005558. Later on perusal of WS of the OP No-1, is observed that on getting theft information, the OP-1 sought for some relevant documents from complainant, but it is alleged that, the complainant fail to submit. But referring to the letter to Op No -1, of complainant dated 26/10/2017, it is known that all the required documents were submitted to Op -1. Hence it is concluded these aforesaid claim of OP – 1, are false and baseless. It is also relevant to discuss here that the complainant upon not getting any support from OP No -1, has served a Legal Notice dated 21/12/2017. But it is seen, nowhere in the WS of OP No -1, it has been meet with. Hence it is also concluded that the OP No -1, has no stand against all contents of this Legal Letter.
That the Written Submission of OP No- 2, was appropriately examined and it is noticed that, this is just a stereo phonic submission, quoting few citations without having any specific counter to the allegation levelled by the complainant. That particularly while going through the para no 13 of the WS of OP No -2, it is observed that the instant OP has denied any deficiency on the part of the Op No -3 & 4, where as in this case matter there is no OPs numbering 3 & 4.
So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant & OPs, this Commission is of the opinion that the OPs have not adjudicated their dispute properly before the Commission. There is no solution arrived by the Ops for the loss sustained by the Complainant incurring out of theft, which legally termed as deficiency-in-service by the O.Ps.
Having regards to our finding reflected above, the Complaint petition is allowed and both OPs are jointly & severally set liable. OP No -1 is directed to release the insured amount of Rs 40,000/- (Forty Thousand) along with interest @ 09.00% P.A., from the date of issuance of claim number (Claim No – 3361005558) till the date of release of insured amount. That along with the said amount, the OP No – 1, is additionally liable to pay Interest, Late Fee and / or any other Dues altogether, as will be fixed by the OP No – 2 on the loan amount, to the complainant, as a result of delay in payment of instalment/s.
Together with the OP No – 2, is directed to follow up, expedite and take appropriate step at the end of OP No -1, to release the insurance amount, as the policy was taken on choice of OP No 2, with that of OP No -1. The complainant is entitled to get the relief as sought for. Hence, the order:-
O R D E R
Having regard to the above findings, the Complaint Petition of the instant Consumer is allowed on contest against O.Ps. The OPs are hereby jointly & severally set liable for their deficiency of service. The OP No – 1 is hereby directed to release the insured amount supra, along with interest @09.00% P.A., from the date of claim number (3361005558) till the date of release of insured sum, within twenty days from receipt of this order. The OP No – 1, is also directed to pay a compensation of that amount to the complainant, which would be charged to complainant by the OP No – 2, over and above the normal contracted amount (Rs 2045 X 24 = 49080.00).
That OP No -2, is hereby directed to intimate its full and final dues receivable, to both the complainant and OP No -1, within ten days from receipt of this order, so as to do the needful at their end towards compliance of this order.
That delay in any manner for compliance of this order, for both the OPs, shall carry fine of Rs 500/-, per day, payable by the defaulter OP/s to the complainant.
In case of failure by the O.Ps to comply the order within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same amount from the O.Ps as per prevailing law.
Pronounced in the open Court of this Commission on this day i.e. the 20th day of March, 2023 given under my Signature & Seal of the commission.
