Epitome of the complaint is that the complainant intended to purchase a vehicle and he settled to purchase it from SN Motors Pvt. Ltd. who was an authorized dealer of Mahindra Vehicle and has been made party as OP no 3. He purchased vehicle on 31.03.15 and took delivery from Mahindra and Mahindra C. Ltd. The vehicle was hypothecated to Indusind Bank, Consumer finance division, Raiganj Branch Uttar Dinajpur who had been made party as OP no 4. The vehicle was insured by New India Assurance Company Ltd with having policy no 1410331150100000095 to cover up to the period 05.04.2015 to 4.4.2016 with premium amounting to Rs 24326/- who had been made party as OP no 1 and 2. The Complainant purchased the vehicle with financial assistant of OP no 4 i.e. Indusind Bank and loan agreement was executed between them on 17.04.2015 for the period 48 months as per clause 13 of the agreement to the effect that the lender bank was duty bound to deposit the premium amount of insurance. The bank deposited Rs 63000/- in total for last 3 years which was charged from the complainant by the bank as per statement of accounts. Now all on a sudden on 27.11.2015 his vehicle was stolen from the garage adjacent to the house of the complainant. He lodged Complaint to Kushmandi Police Station on 28.11.2015 under case no 168 of 2015 under section 379 IPC and also informed to SN Motors i.e. OP no 3 and also the Branch Manager of Indusind Bank on 21.12.2015 and lastly to the Branch Manager of Insurer New India Assurance Co. Ltd on 07.12.2015. The complainant also submitted a claim intimation letter to the Divisional Manager of New India Assurance, of Malda Division i.e. OP no 2 through registered Post. But these Ops 1 and 2 did not make any reply even not repudiated his claim. The complainant deposited the loan amount on the basis of monthly installment to OP no 4 since the date of purchase consecutively till 28.10.2015. But due to theft he was unable to repay the loan amount to the lender bank. Despite of theft the lender bank realized the loan amount of Rs 16750/- from the complainant on 29.02.2016, 01.03.2016 and 31.03.2016 respectively as per agreement of the loan the lender bank is entitled to repay the loan amount of Rs 642000/- from the Borrower-complainant but as the vehicle was stolen and insured with OP no 1 and 2, the complainant is entitled to get claim amount of Rs 642000/- with Interest from OP 1 and 2, the insurer. The complainant being policy holder intimated to OP no 1 and 2 about theft on 04.12.2015 and 07.12.2015 through register letter and submitted all papers of insurance to the registerd office i.e. matter of theft, claim intimation letter, certificate of registration, road tax voucher, policy documents and other papers. But from the very beginning OP no 1 and 2 avoided to disburse claim amount to him and adopted dilatory tactics. Therefore the complainant gave a lawyers notice to OP no 1 and 2 after elapsing 3 months by his lawyer namely Rajatnarayan Kundu but till now there no views came regarding his claim or payment. As this complainant intimated about theft within 30 days complainant is entitled to get claim amount which should be incurred by OP no 1 and 2 as the vehicle was insured. The claim of complainant is genuine one and it’s a gross negligence and deficiency in service towards to the policy holder on the part of OP no 1 and 2. Due to nonpayment this complainant is suffering mental agony and irreparable loss.
So the complainant approaches before this commission for seeking redress under Consumer Protection Act. He prays for an order of payment of Rs 6,42,000/- by OP no 1 and 2 with interest towards the cost of the vehicle which is payable to OP no 4. He also prays an order against OP 4 to minimize the bank interest so payable by the complainant due to theft and to issue clearance certificate in favor of him after realization of the loan. His further prayer is to pay Rs 10,000/- for mental agony and harassment and Rs 8,000/- as litigation cost.
On the other dogma O. P no 1 and 2 approaching before the commission on being summoned, averted that, claim petition is not at all maintainable since claim of the Complainant repudiated after enquiry or application of mind on all relevant factors on deficiency of service and unfair trade practice which in no way arise. It is fact vehicle was insured by these Ops through its broker agent OP no 3 but up till now OP 3 did not pay any premium against the issued policy or terms of policy. So due to nonpayment of premium the policy became void and declared as canceled. So the complainant is not entitled to get any compensation on the strength of that invalid policy. Moreover, story of theft is concocted one. Complainant did not inform Police Station instantly, he informed after 17 hours and sets of keys of the vehicle were missing before the date of occurrence and missing of key was not informed to this office of OP no 2. So it is very much suspicious about the theft as said. Another to be mentioned as per vehicle enquiry report as investigated by the National Crimes Records Bureau where it is clearly found that no such stolen vehicle incident has been reported by the state police up to 29.05.2017. So this occurrence was not entered in the NCRB so present case is not maintainable one to misuse the public money.
OP no 4 i.e. Indusind Bank who was lender bank also made response at summons by the Court and filed WV where in it was stated, Complaint Petition is not maintainable or no cause of action of this suit against OP no 4. Complainant does not come in the court in clean hand and suppressed vital materials. Complainant did not liquidated the entire loan amount with interest and AFC charges as per agreement and OP no 4 would get amount of Rs 5,99,000/- as on 19.09.2019 and the complainant is legally bound to pay that amount. So any award is passed against OP no 1 and 2 entire amount would be adjusted in the loan amount of the complainant. This OP no 4 provided loan for purchasing the vehicle to the complainant out of loan agreement no WNF002183 dt 16.04.2015. This OP has no knowledge of theft or policy of vehicle no WB-66 T 2089 on 04.12.2015. This OP requested many time to repay the entire loan but in vain. Complainant either is to be directed to pay the entire due loan amount to this OP no 4 or if any award is passed against OP no 1 to 3 entire awarded amount is to be adjusted against the due loan amount of the complainant.
Points to be Decided
- Whether complainant insured the Vehicle no WB-66 T/2089 to OP no 1 and 2.
- Whether complainant gave all the premium of the insurance covering statutory period.
- Whether there any actual theft of the vehicle or as alleged by.
- Whether there any coverage of theft under the insurance contract.
- Whether the complainant is entitled to get any award from OP no 1 to 3.
- Whether any loan amount is due to the OP no 4 as financer of the vehicle (Lender Bank)
- Whether the complainant is liable to pay any amount loan with interest to the OP no 4 or is liable to pay entire loan as taken from OP no 4.
- Whether any award if passed for complainant against OP no 1 and 2 the OP no 4 is entitled to get satisfied from that amount as lender/financer of the complainant.
Decision with reason
Points of issues are taken together for discussion:
Now, in order to have an affirmative order, the complainant in respect of his prayer of complaint examined himself where he deposed in writing that he purchased the vehicle on 31.03.2015 and it was hypothecated to the OP 4 i.e. Indusind Bank Ltd. And the vehicle was insured to the OP no 1 and 2 i.e. the New India Assurance Co. Ltd under policy no 1401331150100000095 on covering the period 05.04.2015 to 06.04.2016 and paid the insurance premium amount of Rs 24,326/- when policy certificate was issued with the id no PO33678746 on 05.04.2015. He further deposed that he purchased it at the financial assistance of OP no 4 i.e. Indusind Bank and the Loan agreement was executed on 17.04.2015 covering period 48 months. As per clause 13 of the said agreement bank was duty bound to deposit the premium of insurance. In this connection in total Rs 63,000/- was charged from him by the bank as per statement of account by the bank for last 3 years. Complainant further deposed on 27.11.2015 that said vehicle was theft from his garage which is adjacent to his house and he lodged complaint on 28.11.2015. He informed SN Motor who was dealer on same day 28.11.2015. Bank manager of Indusind Bank was also informed on 21.12.2015 (one month after) and to the insurance company on 07.12.2015. A criminal case started out of complaint at Kushmandi PS no as 168/2015 dated 28.11.2015 under section 379 IPC which is pending at Criminal Court. He further deposed, he gave claim petition or letter to the insurer but his issue was not replied by them even they not repudiated his claim. He further deposed he gave monthly installment of loan to the lender bank Indusind till 28.10.2015. He intimated about the theft to the insurer on 04.12.2015 and 07.12.2015 through register post and submitted all papers of FIR, claim intimation, certificate of registration, road tax valuation, policy documents etc. But the insurer did not respond rather avoiding his claim. Thereby he issued notice of lawyer namely Rajatnarayan Kundu. But till today he got no payment which he is entitled to get as claim amount as per policy term amounting 6,42,000/- with interest. He further deposed that he also wants a direction to the lender bank to minimize Bank interest which is payable due to theft of vehicle and to issue clearance certificate. He also deposed that he is entitled to get Rs 10,000/- for his harassment and Rs 8,000/- for his litigation cost as incurred by him for this case.
We, the commission find that this complainant was tested by the OP 4 who is Bank wherein he admitted his loan to the bank and execution of loan agreement. He also admitted that at the date of deposition his outstanding loan was 5,99,000/- and stated that if he gets award from the court he will satisfy the loan amount.
OP no 1 and 2 is found also tested the complainant wherein it was asked about the purchase of vehicle from the authorized dealer SN Motor, and the insurance company has further taken affirmative note from the complainant about complain to police station on 28.11.2015 and specific policy of insurance was handed over to him by the SN Motor from whom he purchased the vehicle or a dealer of the vehicle. OP no 1 and 2 have further taken from complainant that Indusind Bank was lender of the complainant regarding purchase. OP no 1 and 2 also have taken from complainant that after theft Company were informed on 07.12.2015 i.e. 10 days after the theft. Insurance company admitted about their repudiation of claim. In cross examination insurance company has taken from complainant that after theft the complainant did not pay any premium or E.M.I. etc. From their cross examination of the complainant it was revealed that lender bank has taken his vehicle for the defaulter of the premium, E.M.I. etc.
Behind the documentary evidence we the commission find that photocopy of loan agreement dated 16.04.205 is deposited to the commission, a statement of account is found in record, registration certificate of the vehicle ( in Xerox copy), pollution certificate (in Xerox copy), delivery certificate of SN Motor ( in Xerox copy), policy certificate of insurance (in Xerox copy), written complain (carbon copy), FIR (Xerox), intimation to SN Motor dated 28.11.2015 (carbon copy) intimation to lender bank Indusind dated 21.12.2015 (Xerox copy), letter of advocate to bank manager of insurer dated 26.02.2017 (Xerox copy), postal receipt of sending notice to the insurer, claim information form dated 04.12.2015 (Xerox copy) these are all remain in the record though not marking as exhibit by ex officio.
This commission has carefully perused the entire oral testimony of the parties as well as documents filed by.
From the documents as on records i.e. insurance policy nowhere we find that “theft coverage” was in the policy certificate. Even at the time of trial not any scrap of paper as original was deposited by the alleged policy holder as original policy certificate. Even no receipt of payment of policy either by himself or by any other else as financer was produced before this commission to hold that this insured is a bona fide one as to their agreement in between insurer and insured.
Though for argument sake we hold that under “Private Car Package Policy”, theft coverage exists but no scrap of paper or original was produced with regard to the payment of premium to the insurance company either by financer or by showroom. It is fact from the last page of loan agreement it is noticed 63,000/- is payable in 1st installment but that also has no proof of payment to the insurer by any voucher.
More to say from the document as “loan agreement” which is produced before this court, this commission is able to hold that there was an agreement in between the financer and loanee/ complainant that the premium of insurance was scheduled to be paid by the financer and that would be deducted from the payment of installment of the loanee. So, if any lacuna or deficiency of service remains in this litigation that is on the part of financer who ought to pay the premium in favour of complainant to the insurance company as per last page of agreement. Rather we find after the alleged theft this complainant was defaulted in payment of loan.
Apart from that if for argument sake, we hold that premium of insurance was paid by the OP no 3 (SN Motor Pvt. Ltd.) but nowhere we find from the document of insurer which is produced by the New India Assurance Company as the “ Auto Tie- Up Premium Register” the name of this complainant has been reflected or existed.
Accordingly on the dearth of proper proof regarding the payment of premium either by him-self or by any financer or any showroom like S N Motors, this commission fails to give any relief to the complainant.
Matter of loan if defaulted to the financer that should be settled through arbitration as per loan agreement.
But insurance company can never be ordered to pay either any claim amount or any compensation for harassment and mental agony. Or no order can be passed against the financer to minimize the bank interest so payable by the complainant.
Rather as per last page of loan agreement i.e. (First Schedule) this financer is directed to adjust the taken amount of 63,000/- as premium with their principal loan amount for the vehicle itself as taken by the loanee.
HENCE ORDER
That the complaint petition be and same be dismissed on the dearth of proof. No order of cost is allowed.
Let a copy of judgment/final order be supplied to the party at a free of cost.
