By Sri. MOHANDASAN.K, PRESIDENT
The complaint in short is as follows:-
1. The complainant purchased a mini goods vehicle from the opposite party and for that he availed loan from the first opposite party. The vehicle was insured with the second opposite party vide policy No.379/01688139/000/00. The vehicle met with an accident on 07/08/2019 at Manjalungal by collision with another car bearing registration No. KL 52B 4242, which came from the opposite direction. The complainant submitted that the vehicle sustained damages nearly worth Rs.2,40,000/-. The vehicle was taken to the third opposite party for repairs and the insurance surveyor inspected the vehicle to assess the damages and taken all the steps to avail insurance claim. The complainant failed to remit the loan instalments due to the accident. The complainant was under the expectation that on receipt of claim for damages, the finance could have closed.
2. The complainant submit that he had submitted all the documents to the second opposite party for availing the insurance claim. But so far the opposite party not allowed insurance claim. The complainant submitted that the second opposite party said to him that only on closing of due loan installments, they can issue the insurance claim. The grievance of the complainant is that the first and second opposite party colluded each other to defeat the interest of the complainant. Meanwhile the first opposite party issued a demand notice directing to remit 2,66,978/- rupees as arrears. The complainant is not able to remit the said amount. The complainant failed to remit the loan amount due to non-issuance of insurance claim to the complainant. The complainant sustained huge loss due to the act of the opposite parties. He claims compensation of Rs.2,00,000/- from the first and second opposite parties and claimed 2,40,000/- rupees as the insurance amount along with interest. The complainant also submitted that the first and second opposite parties in collusion with the third opposite party, the vehicle has been taken from the repair center without the knowledge and consent of the complainant. The act of third opposite party amounts deficiency in service. The complainant submitted that he had paid 30,000 rupees to the third opposite party and had assured to pay the balance amount on receipt of insured sum. The complainant submitted that he lost the vehicle due to the act of the third opposite party. The complainant submit that the vehicle of the complainant valued nearly Rs.1,50,000/- while it was taken by the opposite party. The complainant further alleges that the opposite parties insisted the complainant to transfer the RC in favor of other persons. The opposite parties threatened the complainant demanding the same. Hence, the complainant approached the Commission demanding compensation of Rs.2,50,000/- along with insured sum of 2,40,000/-. The complainant also prayed another sum of rupees 1,50,000/- on various other grounds also.
3. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance. The first opposite party filed version denying the entire averments and allegations in the complaint. The opposite party contended that the complaint is not maintainable and the complainant approached the Commission suppressing real facts and by averring misleading statements.
4. The first opposite party submitted that the complainant is not a consumer and the dispute is not a consumer dispute and there is no deficiency in service from the side of opposite party as defined under the Consumer Protection Act.
5. The opposite party submitted that the complainant approached the opposite party and requested for financial assistance for purchase of a vehicle and he purchased vehicle KL 55T 4091. It is submitted that a loan agreement was executed between the complainant and the opposite party and as per the loan agreement the complainant had agreed to repay the loan amount of Rs.2,25,734/- with interest thereon by 47 monthly installments of Rs.6,699/- commencing from 28/04/2016 and ending on 28/02/2020. The complainant had agreed that in case of delay in payment of the said instalments and all other monies becoming due and payable under the said agreement on the respective due dates as stipulated in the said agreement. It was the liability of the complainant to register the vehicle before the concerned RTO at the cost of complainant and hypothecation of the respondents also to be entered in the registration certificate.
6. The opposite party contended that there is arbitration clause in the agreement and the Commission have no territorial jurisdiction to entertain the complaint. Moreover the transaction between the complainant and the opposite party is purely commercial one and so the complainant is not a consumer as per the Consumer Protection Act. The complainant was using the vehicle for his business purpose.
7. The first opposite party submitted that the first and second opposite parties are different companies registered under the companies act and working in different field. The accounts of the company are maintaining separately and liabilities are also differently. It is submitted that the first opposite party never induced the complainant to take policy of the second opposite party for his vehicles. But after the option of the complainant to take the policy of the second opposite party, the first opposite party given all the support to the complainant as a customer of the first opposite party for a good customer relation.
8. The first opposite party submitted that they have no direct knowledge about the accident happened to the complainant and the gravity of loss happened to the complainant and also other dealings with the second opposite party and surveyor. It is submitted that the complainant is a chronic defaulter in the repayment of the loan instalments from the beginning onwards and it is not correct that the complainant defaulted the loan instalments after the accident. It is submitted that the first opposite party has got no offer from the complainant that he will clear his dues after receiving amount from the second opposite party. The first opposite party has no role in the insurance matter and never made any role for not allowing the insurance amount to the complainant at any face, there is no collusion between the opposite party and with the other opposite parties. The first opposite party never advised the second opposite party for non-sanctioning of the insurance amount to the complainant. It is admitted that the opposite party issued a notice to the complainant demanding to pay the defaulted amount of Rs.2,66,978/-. The opposite party submitted that the amounts paid by the complainant shall reflect in the account statement of the first opposite party. The complainant committed default in the repayment of the loan instalments and the second opposite party approached Hon’ble High Court of Madras as on.10006/2008 for the re possession of the vehicle and the Hon’ble High Court of Madras was pleased to allow the application on 11/02/2020 and Mr. Sreejith Nadapuram, Junior manager legal was appointed as receiver to re possess the vehicle and the vehicle is re-possessed. Even thereafter the possession the first opposite party sent letter to the complainant to clear the loan and take back the vehicle but is not done by the complainant and all the facts are hidden by the complainant. As on 18/03/2022 a sum of Rs.2,81,576 is due from the complainant to the opposite party company including interest. As per the loan agreement the opposite party is entitled to repossess the asset and to sell the same and the same proceeds so realized shall be adjusted towards the loan amount due and other charges. The opposite party never threatened the complainant at any face of the dealings. The complainant can even now close the loan by making payment of the due amount. The opposite party never collected interest on interest or additional higher chares illegally. As per the loan agreement the complainant and guarantor both are jointly and severally liable for the repayment of the said loan amount. It is also submitted that in order to secure the repayment of the amount advanced the opposite parties hypothecated the subject vehicle in the name of company also. The opposite party followed all procedures as per the existing law in the land and nothing has been done against the complainant illegally. The vehicle is re-possessed by the opposite party through the official receiver appointed by the Hon’ble High Court with the protection of the police persons and notice given to this regard to the concerned persons. But all the facts are intentionally hidden by the complainant in the complaint. The opposite parties never use gundas for repossessing the vehicle or used any illegal measures against the complainant. The complainant is a chronic defaulter and he is intentionally trying to hide the vehicle from the opposite parties.
9. The second opposite party filed version contenting that the cause of action arose on 07/08/2017 and the complainant has been filed in February 2021 and so the complaint is barred by limitation since it is filed after 3 years of cause of action.
10. The second opposite party admitted that they issued policy No.3379/01688139/000/00 to the complainant covering vehicle No.KL 55 T4091 for the period 31/03/2017 to 30/03/2018 with IDV of 2,30,000/- rupees which is subject to the terms and conditions and exclusions of the policy. The opposite party submitted that the present complaint is averred in more than 5 pages of legal papers but nowhere it is stated that who was driving the vehicle on 07/08/2017 when the accident happened and that was the main issue when the claim was submitted. The complainant submitted an incomplete claim form to the opposite party stating that the vehicle had been damaged in a collision on 08/09/2017 and not on 07/08/2017 as stated in the complaint and the question regarding name of driver in the claim form was left blank.
11. The second opposite party appointed an investigator to enquire about the accident as there had been no police enquiry in the matter. The investigator met the complainant and his son and also several people whose names were informed by the complainant and his son as the driver of the vehicle at the time of the accident. On enquiry the investigator came to the conclusion that the complainant was deliberately misrepresenting facts regarding the driver of the vehicle at the time of the accident as the driver of the vehicle at the relevant time of accident had no valid driving license.
12. The opposite party through the investigator requested the complainant to submit a proper claim form and also submit clear details of the driver of the vehicle at the time of the accident. The complainant has not till date acted on this. Without prejudice to the above contentions and without admitting the liability, upon claim intimation, the opposite party had deputed the surveyor to assess the damage caused to the vehicle. The surveyor assessed the net liability as Rs.93,720/-.
13. The submission of the opposite party is that as per the terms of the policy when there is misrepresentation of the material facts, the complainant forefeet’s his right to get reimbursement from the opposite party. It is further submitted the very fact that even after intervention of high police authorities like DYSP , Tirur the complainant did not get any relief indicates that the entire fault is on the side of the complainant and so the complaint be dismissed as the opposite party has not committed any deficiency in service .
14. The third opposite party filed version contenting that the complaint is not maintainable against the third opposite party. Since no way related to the opposite party. The third opposite party submitted that the complainant not paid financial instalments on time as contended in the complaint and meanwhile vehicle had met with an accident and had garaged for repairs before the third opposite party. After many months and after completion of repairs, the vehicle was seized from the premises of the opposite party and the vehicle is now in possession of the first opposite party and the vehicle was insured with second opposite party.
15. The third opposite party submitted that the averment and allegations against the opposite party that the vehicle was given by the third opposite party to the first opposite party is absolutely in correct. It is submitted that the first opposite party along with police and receiver came to the premises of the opposite party and seized the vehicle under law and also handed over a copy of judgment of Hon’ble high court of Madras. The receiver appointed by the Hon’ble High Court of Madras came along with the police and the opposite party has nothing to do except to complied to the demands of the police and receiver and therefore the vehicle was taken away from the opposite party and the complainant was duly informed on time by the opposite party. The opposite party is bound under law and under obligation to act upon the order of High court of Madras and that of police and there for there is no other way than to inform complainant regarding the seizure of the vehicle which was done on proper time.
16. The opposite party admitted that the vehicle was garaged for repairs and estimate of repairs to an amount of Rs.2,39,334/- and insurance claim was sent up by the complainant through the opposite party and necessary survey and inspections were carried out through second opposite party in respect of the vehicle and order of the replacement of parts were made and done by the opposite party. The second opposite party conducted the survey on 28/09/2017 and as per their work order, work was commenced on by 08/12/2017. The work was fully completed on 31/01/2018 and intimated to the second opposite party , for insurance claim and the insurance company sent surveyor for final survey and a bill was generated for Rs.239334/- for the repairs and was informed the complainant regarding completion of the repairs and the payment required for taking vehicle by the complainant . The complainant did not turn up to pay balance amount or to take the vehicle. Thereafter the first opposite party came to the premises with the court order along with police and received and took away the vehicle. Even after the total completion of the work, by 31/01/2018 the vehicle was not taken delivery by the complainant for his utility. It is to be treated that the complainant did not take any appropriate steps to see that the vehicles repairs are being carried out on time and he was reluctant to even take the delivery of the vehicle though it was completely done by the opposite party.
16. The opposite party submitted that if the vehicle was taken away on time by the complainant, the opposite party ought to have escaped from the presence of police and that of high court order. The opposite party had not committed any defective workmanship or service under any stretch of imagination and the opposite party is no way liable or responsible to complainant and everything was done on time and in time and appropriately. Hence, opposite party submitted that repairing amount is due from the complainant to this opposite party and the same may be ordered to be paid by the complainant to the opposite party within a period of 15 days from the day of filling the version or otherwise irreparable loss, hardship and damages will be caused to the opposite party. The prayer of the opposite party is to dismiss the complaint with the cost to the opposite party.
17. The Complainant and opposite parties field affidavit and documents. The documents on the side complainant marked as Ext. A1 to A9 and the document on the side of opposite parties marked as Ext. B1 to B8. Ext. A1 is copy of certificate of registration vehicle No. KL 55 T 4091. Ext. A2 is copy of insurance certificate No.3379/01688139000/00 in respect of vehicle No. KL 55 T 4091. Ext. A3 is copy of certificate of fitness of vehicle No. KL 55 T 4091. Ext. A4 is copy of certificate issued by the sub inspector of police Pattambi dated 23/04/2018. Ext A5 is copy of bills issued from Eram motors private limited dated 31/01/2018. Ext. A6 is copy of final reminder issued by the Eram motors private limited Kottakkal dated 01/12/2018. Ext. A7 is copy of complaint submitted before the DYSP, Tirur dated 16/12/2020. Ext. A8 is copy of reply issued by SHO, Tanur to the complainant nil dated. Ext. A9 is copy of driving license. Ext. B1 is copy of motor policy schedule cum certificate of insurance in respect of certificate No. 3379/01688139/000/00 vehicle No. KL 55 T 4091. Ext. B2 is copy of motor insurance claim form nil dated. Ext. B3 is motor final survey report dated 31/10/2017. Ext. B4 is copy of the order in A.10006 of 2018 dated 20/12/2018 of the Hon’ble High court of Madras. Ext. B5 is copy of the order in A.10006 of 2018 dated 05/03/2020 of the Hon’ble High court of Madras. Ext. B6 is copy of insurance application form dated 31/03/2016. Ext. B7 is inventory of the vehicle No. KL 55 T 4091. Ext. B8 is copy of loan account statement dated 07/10/2021.
18. Heard complainant and opposite parties, perused affidavit and documents. The following points arise for consideration:-
- Whether the complaint is barred by limitation?
- Whether there is deficiency in service on the part of opposite parties?
- Relief and cost?
19. Points 1 to 3
It is admitted fact that the complainant is the registered owner of vehicle No KL55 T 4091 and which is insured with the second opposite party. The complainant submitted that he availed vehicle loan from the first opposite party and the vehicle met with accident on 07/08/2017 at Manjalungal in a collision with another vehicle. The complainant further submitted that the accident was duly informed the insurance company and all the particulars for the insurance claim was also submitted. The complainant submitted that he could not remit duly the loan amount and so there was default. He was under the impression on receipt of claim from the insurance company, he can close the loan liability. But The insurance company cheated the complainant and thereby the second opposite party, the insurance company did not issue insurance amount to the complainant.
20. On the other side the opposite parties contended that there is limitation for filing this complaint and also submitted that the complainant did not furnish vehicular details as part of the insurance claim. The second opposite party, the insurance company specifically contended that the complainant did not furnish the details of the driver of the vehicle including the driving license. Since the complainant did not furnish proper details for the insurance claim, they could not process the claim of the complainant in addition to that it is submitted that the accident occurred on 07/08/2017 and the present complaint seen filed on 27/02/2021. The contention is that the complaint is time barred one. The first and third opposite parties further contended that there was legal proceedings before the Hon’ble High Court of Madras in respect of the vehicle and as part of the same a receiver was appointed and the receiver along with police officials approached the third opposite party to seize the vehicle with the order of High court of Madras. The submission of the third opposite party is that they complied directions of Hon’ble High Court of Madras and the police officials approached them. The first opposite party contended that the complainant is a chronic defaulter and the default was not commenced after the accident but even prior to the same the complainant was a defaulter. The first opposite party further contended that they were ready and willing to release the vehicle to the complainant on payment of arrears as per the terms of the agreement between the complainant and the first opposite party. But the complainant did not approach to release the vehicle with arrears. Hence there is no merit in the allegations of the complainant.
21. The commission perused the entire averments in the complaint, version and affidavits. It seems that the complainant did not submit anything about the proceedings initiated before the Hon’ble High Court of Madras which amounts suppression of fact. The complainant, it appears not approached the Commission with true facts and clean hands. Considering the entire aspects, we cannot up hold the contention of the complainant and we find that the complainant is not entitled a relief as prayed in the complainant. The complaint is liable to comply with terms and conditions entered during the period of financial transactions. We do not find any deficiency or unfair trade practice on the side of opposite parties, but they acted in accordance with law and so the complaint stands dismissed.
Dated this 27th day of July, 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A9
Ext.A1: Copy of certificate of registration vehicle No. KL 55 T 4091.
Ext.A2: Copy of insurance certificate No.3379/01688139000/00 in respect of vehicle
No. KL 55 T 4091.
Ext A3: Copy of certificate of fitness of vehicle No. KL 55 T 4091.
Ext A4: Copy of certificate issued by the sub inspector of police Pattambi dated
23/04/2018.
Ext A5: Copy of bills issued from Eram motors private limited dated 31/01/2018.
Ext A6: Copy of final reminder issued by the eram motors private limited Kottakkal
dated 01/12/2018.
Ext A7: Copy of complaint submitted before the DYSP, Tirur dated 16/12/2020.
Ext A8: Copy of reply issued by SHO, Tanur to the complainant nil dated.
Ext.A9: Copy of driving license
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B8
Ext.B1: Copy of motor policy schedule cum certificate of insurance in respect of certificate No. 3379/01688139/000/00 vehicle No. KL 55 T 4091.
Ext.B2: Copy of motor insurance claim form nil dated
Ext.B3: Motor final survey report dated 31/10/2017.
Ext.B4: Copy of the order in A.10006 of 2018 dated 20/12/2018 of the Hon’ble High
court of madras.
Ext.B5: Copy of the order in A.10006 of 2018 dated 05/03/2020 of the Hon’ble High
court of madras.
Ext.B6: Copy of insurance application form dated 31/03/2016.
Ext.B7: Inventory of the vehicle of vehicle No. KL 55 T 4091.
Ext.B8: Copy of loan account statement dated 07/10/2021.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
