Complaint filed on: 03-07-2015 Disposed on: 06-01-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM,
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.73/2015
DATED THIS THE 6th DAY OF JANUARY 2016
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SRI.D.SHIVAMAHADEVAIAH, B.A, LLB, MEMBER
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
Sanmathi Credit Co-Op. Society,
Behind old NCC Office,
GSS House Road,
Near SS Circle,
Tumakuru-02
By its Manager and CEO
Smt.Mamatha.G.P,
(By Advocate Sri.B.L.Chandrashekhar)
V/s
Opposite party:-
The Manager,
Oriental Insurance Co. Ltd,
J.C.Road,
Tumakuru-01
(By Advocate Smt.Indiramma.B.S)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to pay Rs.4,00,000=00 including principal amount along with interest @14.5% per month and plus 3% penalty for the default of payment and to pay legal expenses and miscellaneous charges, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant is a Co-operative Society, registered under the Societies Registration Act and governed by the Karnataka Co-operative Societies Act 1969. The complainant is having share holders and it can lend money through loan by getting proper security from the members. It is also having right of recovery of the loan advanced to its members. The complainant is having business of extending vehicle loan to its members and having right of recovery of the principal and interest as per law.
The complainant further submitted that, one Mr.Vijayakumar member of the complainant society had approached the complainant society and expressed his intention to obtain vehicle loan agreeing to hypothecate his vehicle and agreed the terms and conditions of the society and agreed to pay the monthly installments without any default. The complainant agreed for the terms and condition and agreed to extend the vehicle loan.
The complainant further submitted that, on 10-12-2008 Vijayakumar S/o. Krishnamurthy hypothecated his vehicle TATA Indica No.KA-06-B-5200 to the complainant society and had executed necessary documents in favour of the complainant society and obtained the loan on the said vehicle Rs.1,85,000=00. The said vehicle was insured with the OP and policy No.421101/31/2009/14057 was in force from 27-2-2009 to 26-2-2010.
The complainant further submitted that, on 15-11-2009 the owner of the vehicle Sri.Vijayakumar was driving the above said car, near Tavarekere police station, the said vehicle met with an accident and was completely damaged and was unrepairable. The owner-cum-Driver Mr.Vijayakumar died in the said accident. Since the said vehicle was hypothecated in the name of complainant’s society, the complainant had approached the OP on several times by writing letters to settle the claim in favour of the complainant, but the OP had postponed the claim one or the other pretext. When the complainant approached the OP, the OP gave promise to settle the claim, but till today, the OP delayed the settlement of the claim. Finally on 28-4-2014 the complainant has issued a notice to OP demanding the claim and the said notice served on the OP, but the OP failed to settle the claim or replied to the notice, which amounts to denied of the payment. The complainant is a society had incurred heavy loss due to illegal act of the OP. The loanee i.e. Vijayakumar has not paid the installments till today and the interest accrued day by day. Hence, the complainant has come up with the present complaint.
3. After service of notice, the OP has appeared through his counsel and filed objection contending interalia as under:
The complaint is not maintainable either in law or on facts. The present complaint filed by the complainant is barred by limitation hence it is liable to be dismissed in limine.
The OP further submitted that, the OP has issued the policy in favour of deceased Vijayakumar and insured his vehicle bearing Reg. No.KA-06-B-5200 under policy No.421101/31/ 2009/14057 and it was valid from 26-2-2009 to 26-2-2010. The liability is subject to terms and conditions of the policy. As per the condition no.1 of the policy, the legal heirs of the deceased Vijayakumar have not made any application immediately after the accident for own damage claim to the OP. Moreover the OP will not undertake to entertain any own damage claim after lapse of six years since the same time barred.
The OP further submitted that, immediately after the accident, the legal heirs of the deceased have made application for personal accident claim before the OP and the same was considered and disbursed a sum of Rs.2,00,000=00 to the legal heirs of deceased through cheque. Till today, the legal heirs of insured have not made any application for own damage claim for the damages caused to the vehicle. The legal heirs have not made any application for claiming own damage in respect of the vehicle in question. The complainant keep quiet for all these days for more than 6 years, the complainant has approached this forum at the belated time.
The OP further submitted that, the OP is not a party to the loan transaction said to have been transacted between the insured Vijayakumar and the complainant society. The OP has not given any valuation of the vehicle as on the date of alleged loan given by the complainant. The complainant has not given any letter after the hypothecation of the vehicle stating that, the said vehicle hypothecated with its bank and in future if any circumstances arise, before paying any money to the insured intimated the same to the bank. Since the insured or the complainant has not informed about the hypothecation of the vehicle to the complainant’s bank. The OP on the application made by the insured’s legal heirs considered the personal accident (PA) claim and paid an amount of Rs.2,00,000=00 through cheque.
The OP further submitted that, the complainant bank is liable to be dismissed for non-joinder of necessary parties. There is no previty of contract between the complainant and OP. The complainant is claiming the dues through one Vijayakumar said to have obtained the loan from the complainant bank. After the death of original borrower his legal heirs are to be heard before considering the prayer of complainant. In the absence of legal heirs of the deceased Vijayakumar, the complaint itself is not maintainable against the OP. The OP further submitted that, there is an endorsement on the insurance policy regarding hire purchase agreement/hypothecation in favour of complainant bank. But the OP is not a party to the Hire-purchase/ Hypothecation agreement. The OP is not bound by such an agreement executed between the complainant and the deceased. Hence there is no previty of contract between the OP and the complainant.
The OP further submitted that, the OP is not liable to pay the alleged loan amount as claimed by the complainant. After death of the original borrower, the complainant has to recover the said alleged loan amount from his legal heirs or by attaching the property of the borrower or by attaching the property of the guarantor of the loan transaction. The OP is not any guarantor or principle borrower to the alleged loan transaction. Under such circumstances, the OP is not liable to pay as claimed in the complaint.
The OP further submitted that, the application filed by the complainant under Section 24 (a) of the CP Act and Section 5 of the Limitation Act is not maintainable either in law or on facts and it is liable to be dismissed in limine. The complainant has not shown any sufficient cause for condonation of inordinate delay of more than 4 years in filing the complaint.
The OP further submitted that, the OP has orally repudiated the claim of complainant immediately after the receipt of the letter dated 9-11-2009 of the complainant bank itself. Hence the OP has not given any written repudiation intimating through letter. The averments made in the complaint and affidavit of the complainant is hereby denied as false. Hence it is prayed to dismiss the complaint with cost, in the interest of justice and equity.
4. In the course of enquiry into the complaint, the complainant and OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents, which were marked as Ex-P1 to P25 (a). The OP has produced document, which were marked as Ex-R1. We have heard the arguments of both parties and perused the documents produced by the complainant and posted the case for orders.
5. Based on the above materials, the following points will arise for our consideration.
- Whether there was deficiency in service on the part of the OP as alleged by the complainant?
- What Order?
6. Our findings on the above points are;
Point no.1: In the negative
Point no.2: As per the final order below.
REASONS
7. On perusal of the pleadings, affidavit evidence, objections of the OP and documents produced by both parties, it is an admitted fact that, one Sri.Vijayakumar had obtained a loan for his vehicle TATA Indica bearing Reg. No.KA-06-B-5200 on 10-12-2008 for Rs.1,85,000=00 and hypothecated the above said vehicle to the complainant society. The said vehicle was insured with the OP Company vide policy No.421101/31/2009/ 14057 and policy was in force from 27-2-2009 to 26-2-2010. The said vehicle met with an accident on 15-12-2009. The vehicle was completely damaged and the owner of the vehicle Sri.Vijayakumar died. Admittedly, at the time of accident, the said policy was in force.
8. The main contention of the complainant is that, Sri.Vijayakumar died in the accident and the above said vehicle was hypothecated in the name of complainant society. The complainant society had incurred heavy loss due to non-payment of the installments. Hence, the complainant steps into the shoes of Sri.Vijayakumar. The complainant had approached the OP for the insurance amount, but the OP had not considered the claim of the complainant society, hence the complainant has filed this complaint.
9. The OP contended that, after the accident, the complainant had not approached the OP insurance company immediately. Hence, there is a violation of terms and conditions of the policy. The OP further submitted that, the legal heirs of the deceased Sri.Vijayakumar have not made any application immediately after the accident for own damages claim caused to the vehicle to the OP Company. The policy condition No.1 reads as under:
“Notice shall be given in writing to the company immediately upon the occurrence of any accident loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledged of any impending prosecution, inquest or fatal enquiry in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and co-operate with the company in securing the conviction of the offender”
On perusal of the condition no.1, it is clear that, notice shall be given in writing to the OP Company immediately upon the occurrence of any accidental loss or damages in the event of any claim.
10. On perusal of the documents, evidence and pleading of either parties, it is an admitted fact that, the LRs of late Vijayakumar have not approached this forum for redressal of their grievance, just because late Vijayakumar had taken loan from the complainant’s bank, the same does not mean to say that, the complainant can step into the shoes of late Vijayakumar and claim his legal rights. Therefore, the complainant does not have locustandi to approach this forum. Secondly, the LRs of late Vijayakumar had already approached the OP company and had taken Rs.2,00,000=00 as personal accident benefits. Hence the OP had settled the claim of the LRs of Vijayakumar and hence the claim made by the complainant is unsustainable. Be that as it may the complainant though did not have any subsisting legal right had approach this forum after an inordinate delay. The said delay has not been explained properly by the complainant to condone the same, as per terms and conditions of the policy the LRs of Vijayakumar nor the complainant had to make an application for non damages as per the condition no.1. Therefore, the claim made by the complainant is barred by limitation
.
11. Further, on perusal of the hypothecation/Pledge of Motor Vehicle/Ex-P9 of the complainant, Sri.Vijayakumar while obtaining the loan from the complainant’s society, one Mr.Vrushabendra Kumar had given surety for obtaining the loan. In the instant case, the complainant society had not approached the surety i.e. Vrushabendra Kumar nor LRs of the Vijayakumar for his recovery of loan amount, but the complainant society had approached the OP Company for his loss of loan amount which he has given policy for the vehicle of Sri.Vijayakumar.
12. Moreover, on perusal of the version and evidence of the OP that, the legal heirs of the Sri.Vijayakumar had taken personal accident claim benefits of Rs.2,00,000=00 through cheque. In this case, the complainant society has not made the LRs of Sri.Vijayakumar party to this proceeding. Hence, the facts and circumstances of the case, we do not find any deficiency in service on the part of the OP. Hence the complainant is not maintainable. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint is dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 6th day of January 2017).
LADY MEMBER MEMBER PRESIDENT
