THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/09/24
H.V.Krishnamurthy
...........Appellant(s)
Vs.
The Manager United India Insurance Company Limited
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 23.03.2009 Disposed on 07.10.2009 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 07th day of October 2009 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 24/2009 Between: H.V. Krishnamurthy, S/o. H.V. Venkatesh, Major, R/o. Parashosahalli Village, Huthur Hobli, Kolar Taluk. (By Advocate Sri. N.K. Nanjunda Gowda & others) V/S 1. The Manager, Canara Bank, Kolar Branch, Kolar. (By Advocate Sri. N.G. Vasudev Moorthy & others) 2. United India Insurance Company Limited, Branch Office, Ist Floor, Bagalur Mansion, Doddapet, Kolar. (By Advocate Sri. J. Simon & others) .Complainant .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to reimburse compensation amount awarded in M.V.C. 51/2004 for deficiency in service with costs and interest etc., 2. The material facts of complainants case may be stated as follows: That one Smt. Lakshmamma and another filed M.V.C 51/2004 against H.V. Rajendra Kumar, the brother of complainant claiming motor vehicle accident compensation for the death of one Anand Kumar the son of claimants. In the said case compensation of Rs.1,25,000/- with interest at 6% p.a. was awarded against H.V. Rajendra Kumar. The victim Anand Kumar had died in the motor vehicle accident on 18.11.2003, involving tractor-trailer bearing Registration No. KA-07-T-27 and KA-07-T-28. As there was no insurance policy covering the third party risk the entire amount was ordered to be paid by H.V. Rajendra Kumar, who was the owner of the said vehicle. It is alleged that complainant-H.V. Krishna Murthy along with his brother H.V. Rajendra Kumar, have been the absolute owners in possession of the above said tractor and trailer. The same was purchased with the financial assistance of OP.1-Canara Bank. It is alleged that as per the terms and conditions of loan agreement made between borrowers and OP.1, it was the bounden duty of OP.1 to pay the insurance premium amount every year till the discharge of entire loan to OP.2 and further that it was the bounden duty of OP.2 to collect the insurance premium amount from OP.1 regularly without fail. It is alleged that due to willful negligence, OP.1 has not paid the insurance premium during the period when the accident had taken place on 18.11.2003, thereby there was award in M.V.C 51/2004 against complainants brother. Therefore the complaint was filed before this Forum on 23.03.2009. 3. OP.1 appeared and filed version contending that there were no terms and conditions in the loan agreement which oblige this OP to pay insurance premium and to keep the insurance inforce till the discharge of loan. It contended that as per the terms and conditions of the loan agreement it was the duty of borrowers to keep the insurance inforce by paying insurance premium by themselves. It also contended that the complaint is barred by time as cause of action had arisen on 18.11.2003, the date of which the accident had taken place. Therefore it prayed for dismissal of complaint. 4. OP.2 appeared and contended that there was no obligation on its part to collect the insurance premium from OP.2 regularly in respect of the vehicle in question. Therefore it prayed for dismissal of complaint. 5. The parties filed the affidavits and documents. We heard the arguments. 6. The following points arise for our consideration: Point No.1: Whether the complainant proves deficiency in service by OPs or any of them? Point No.2: If so, to which reliefs the complainant is entitled to? Point No.3: To what order? 7. After considering the submissions of the parties and records our findings on the above points are as follows: Point No.1: It is admitted by both sides that new tractor and trailer was purchased on 27.03.2002 from the dealer Vinay Enterprises, Kolar with the financial assistance of OP.1. The Learned Counsel for complainant submitted that the complainant had earlier paid the margin money on 06.03.2002 payable by him. It appears the margin money must have been paid by purchaser directly to the dealer. OP.1 has issued D.D. in favour of dealer for Rs.3,91,000/- on 27.03.2002. There is no entry in the account extract relating to this loan transaction that apart from issuing D.D. for Rs.3,91,000/- any other D.D. was issued in favour of dealer. The loan agreement dated 27.03.2002 was executed by H.V. Rajendra Kumar and complainant, as borrowers. This loan agreement shows that loan of Rs.3,91,000/- was sanctioned for purchase of tractor and trailer worth Rs.5,21,800/- and the said tractor and trailer was hypothecated in favour of OP.1 as a security for repayment of loan and interest. It is not forthcoming from the record whether soonafter purchase of the tractor on or about 27.03.2002, third party insurance was obtained or not. The accident had taken place on 18.11.2003 i.e. nearly after 01 year 08 months from the date of purchase of tractor and trailer. It is told that usually a new motor vehicle is not released from showroom on the public road until temporary registration and the insurance for 3rd party risk are obtained. Therefore it appears for the first year after purchase of new tractor and trailer there was insurance coverage. Admittedly there was no insurance covering such risk at the time of accident. Therefore the third party filed M.V.C against H.V. Rajendra Kumar, who might be the R.C. Owner of the vehicle. The complainant has not produced the R.C. of the tractor and trailer to ascertain who was the R.C. Owner. As loan was jointly borrowed, we may assume that the complainant and his brother H.V. Rajendra Kumar were the owners of the tractor and trailer. The complainant has alleged that as per the terms and conditions of loan agreement OP.1 was bound to keep the insurance inforce through out till the discharge of loan. The relevant paragraph in the loan agreement is paragraph 22 relating to the insurance. Clauses (a) and (b) of paragraph 22 of the agreement are as follows: The Borrower/s hereby expressly undertake and declare as follows: a) That he/they shall take insurance cover against risk of .. in respect of the with Bank Clause appended thereto at his/their cost and in case, this cover against risk is not taken, he/they hereby authorise the Bank to take such insurance cover at Borrower/s risk and cost and to debit the premia payable on the policy/ies renewed from time to time to his/their account with the Bank which he/they hereby undertake to repay on demand made on borrower/s; failing to repay the amount so debited, he/they hereby declare and agree that he/they shall be liable to pay interest at the rate charged or to be charged by the Bank from time to time and the Bank shall be entitled to hold the referred to as security until payment is made in full and to the satisfaction of the Bank. b) The bank is at liberty and is not bound to effect such insurance, at the risk, responsibility and expense of the borrower with any Insurance Company only to the extent of the value of the security as estimated by the Bank and that in the event of insuring the security, the Bank shall not be considered or deemed to be responsible or liable for non-admission or rejection of the claim wholly or in part, whether the claim is made by the Bank or the Borrower. The reading of the above terms and conditions make it clear that the primary duty of taking insurance and keeping it inforce through out is on the borrowers but not on the Bank and it is only optional for the Bank to take the insurance policy and to keep it inforce. The account extract relating to this loan shows that Bank has debited for the first time insurance premium of Rs.6,859/- to this account on 04.03.2004 and for the subsequent years on or about the same date. Therefore it shows that subsequent to 04.03.2004 the OP.1 went on paying insurance premium every year to keep the insurance policy inforce. From this conduct of OP.1 one cannot infer that there was an obligation on it to keep the insurance inforce throughout. It appears as the Bank came to know that there was motor accident by this tractor and trailer and there was no insurance coverage, it might have undertaken to keep the insurance inforce. Therefore the allegations made in the complaint that the terms and conditions of loan agreement oblige OP.1 to keep the insurance inforce through out cannot be accepted. Section 146 of the M.V. Act 1988 casts a duty on the owner of the motor vehicle would take insurance against third party risk before allowing that motor vehicle in a public place. Therefore it appears the complainant or his brother could not have used the tractor and trailer without obtaining the insurance policy covering third party risk. The accident had taken place on 18.11.2003 award in M.V.C 51/2004 was passed on 06.09.2007, the complaint was filed on 23.03.2009. Therefore we think for reimbursement of the award amount passed in the said M.V.C the cause of action arises from the date of award and the present complaint is in time, but not barred by time as contended by OP.1. It appears the subsequent policies were taken from OP.2, the complainant has added OP.2 as a party in this case. By no stretch of imagination it can be said that OP.2 was under a duty to collect insurance premium from OP.1 regularly. No such obligation can be inferred in the present case. For the above reasons we hold point No.1 in negative. Point No.2: As point No.1 is held in negative, the point No.2 does not arise for consideration. Point No.3: Hence we pass the following: O R D E R The complaint is dismissed. The parties shall bear their own costs. Dictated to the Stenographer, corrected and pronounced in open Forum this the 07th day of October 2009. MEMBER MEMBER PRESIDENT
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