DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, RUPNAGAR

                                      Consumer Complaint No. 101 of 05.07.2022 

                                      Date of Decision:   21.10.2022 

Boparai Construction Company Village Rajuwal Naushera Majja Singh, through its sole proprietor Barjinder Boaprai son of Harjit Singh office cum resident at house No.293, Garden Colony, Ropar, Tehsil & District Rupnagar

                                                                                      ……Complainant

                                                          Versus

1. The New India Assurance Company Limited, Jalandhar BMC Branch, 1^st Floor Nirmal Complex Near City Square and BMC Chowk above OBC Bank GT Road, BMC Chowk, Jalandhar, through its Branch Office Nangal Chowk Ropar, Tehsil & District Rupnagar 
2. Tata Motors Finance Limited Unit 3, Central Mall, 32, Mall Road, Amritsar through its proprietor or Branch Manager. 

                                                                                  ….Opposite Parties

Complaint under Consumer Protection Act

QUORUM:-

                  SH. RANJIT SINGH, PRESIDENT

                  SMT. RANVIR KAUR, MEMBER

ARGUED BY:-

                  Sh. SP Kaushal, Adv. For complainant

                  Sh. Amit Gupta, Adv. For OP NO.1

                  Sh. Ajay Talwar, Adv. For OP No.2

ORDER:-

SH. RANJIT SINGH, PRESIDENT

1.     The present order of ours will dispose of the above complaint filed under Consumer Protection Act, by the complainant against the opposite parties on the ground that the complainant is the sole proprietor of Boparai Construction Company Village Rajuwal Naushera, Majja Singh and complainant is having its office cum resident of House No.293, Garden Colony, Ropar, Tehsil & District Rupnagar. The complainant had purchased a new tipper bearing temporary registration No.PB2021-TR-5969 B Sigma 2823 TK BS VI 39 WHD and at the time of purchase of the said tipper, the complainant has got it financed with the OP No.2 and the monthly installment was fixed as Rs.84,210/- and the complainant has to pay the installments of the aid vehicle upto 15.4.2025. The complainant is paying the installments of the said tipper regularly to the OP No.2. The complainant has also got the said tipper from the OP NO.1, vide policy No.3609013121030000218/. The complainant is the sole proprietor of Boparai Construction. The complainant paid the premium of the insurance to the OP No.1 regularly. The complainant has kept HarmanpreetSIngh son of Rachpal Singh, resident of Sheena Rail Wala as Driver and Mittar Masih son of Prem Masih resident of Umarwal PS Kila Lal Singh as helper. It is further alleged that on the fateful day of 11.6.2021, the driver Harmanpreet Singh and Helper Mitter Masih had parked the tipper on the HP Petrol Pump situated at Pal Gokhuwal Highway behind 1 KM of Gurdaspur side which is owned by Labh Singh son of Chanchal Singh resident of TelianwalaBatala and after parking the said tipper on the petrol pump, both the driver and helper went to their houses and they had locked the said tipper. On the next day, at 7.30 AM when the driver and helper came to the petrol pump, then they saw that their tipper was not parked and it was stolen by some body and then both the driver and helper narrated the whole incident to the complainant, driver and helper tried their best to found the tipper but at no use. Regarding this incident, FIR No.0117 dated 12.6.2021 was lodged in PS Civil Lines, Batala, under Section 379 IPC against the unknown person. The price of the tipper is more than Rs.40,00,000/-. The complainant is paying the installments of the tipper regularly to the OP No.2. The complainant has paid the premium to the OP No.1 regularly. The said tipper was insured with the OP NO.1 and the same covers the date of theft. The complainant has informed the OP No.1 regarding the theft of the said tipper and as per the demand of the surveyor of the OP No.1, the complainant has also submitted the relevant documents to the OP No.1 for getting the claim of his vehicle. Now the OP No.1 is making the excuse to pay the claim of the vehicle of the complainant and is harassing him unnecessarily. It is further alleged that the complainant has also requested the OP No.1 many times to pay the claim of the vehicle in question, but the OP No.1 has not paid any heed to his request. The complainant is still paying the installments of the loan amount to the OP NO.2, however, the vehicle of the complainant has been stolen by someone and FIR to this effect has been lodged in PS Batala. After stolen of the vehicle in question, the OP NO.1 is liable to pay the claim amount to the OP NO.2 and the balance amount to be paid to the complainant. So, the OP NO.2 has no authority to claim the installment of loan amount from the complainant after stolen of the vehicle in question till date, deposit of installments to the OP No.2 by the complainant and this amount is liable to be paid by the OP No.1 to the complainant and rest of the same be paid by the OP NO.1 to the complainant as per the claim submitted by the complainant before the OP NO.1 after copy of the vehicle with copy of the FIR. After purchase of the vehicle there was no use of vehicle by the complainant due to reason the temporary number was issued and vehicle was insured by the complainant with OP No.1 and permanent number was not issue till the stolen of the vehicle. Due to the said act and conduct of the OPs, the complainant has filed the present complaint. Thus, alleging deficiency in service on the part of the OPs, the complainant sought the following reliefs against the OPs:-

1. To pay the claim amount along with interest @ 24% per annum from the date of theft. 
2. To pay Rs.5,00,000/- as compensation on account of mental agony and physical harassment suffered by the complainant 
3. To pay Rs.1,00,000/- as other expenses 
4. To pay the litigation expenses which this Hon’ble Commission deems fit just and proper for the filing and perusing the present complaint against the OPs. 

2. In reply, the OP No.1 has filed written version taking preliminary objections; that the tipper with Chassis No.MAT797025M3C08361 and with engine No.63863560 in question was insured by the answering OP w.e.f. 30.04.2021 to 19.4.2022 strictly subject to the terms and conditions of the policy; that the complainant has intimated with regard to the theft of the tipper on 11.6.2021 from the Petrol Pump and the claim in this regard on 29.7.2021 and the insurance company has deputed Sh. Nirvair Singh, investigator vide letter dated 23.5.2022 has requested the complainant to provide the Registration Certificate of the vehicle, if not yet received provide us the application along with receipt with fees paid for applying the RC. He also demanded the Route Permit of the vehicle in question, if yet not received please provide the application along with receipt of the dues paid for obtaining the permit. The reminder dated 16.6.2022 was also issued to the complainant to comply with the same but again nothing has been complied with. Then on 24.8.2022, also issued reminder by the answering OP to the complainant but due to non supply of the said documents, the claim file has been closed by the answering OP permanently. On merits, it is stated that the answering OP has never refused to pay the claim, but the claim be pending on account of non compliance on the part of the complainant. The answering OP has not decided the claim on merit and as such the present complaint is liable to be dismissed being premature. Thus, alleging no deficiency in service on the part of the answering OP and prayed for dismissal of the present complaint being premature. 

3. In reply, the OP No.2 has filed written version taking preliminary objections; that the complainant is not a consumer as defined undre Consumer Protection Act; that this Commission has no jurisdiction to try and decide the present complaint as the arbitration award has already been passed on 21.7.2022 in the Arbitration proceedings initiated per clause 21 & 22 of the Loan cum Hypothecation agreement. On merits it is stated that the tipper was purchased for commercial purpose and for earning profits and not for the self employment as per the definition of the consumer under the Consumer Protection Act. Further the complainant under the schedule 1 of the loan cum hypothecation cum Guarantee agreement (contract) it is clearly mentioned that the borrower is availing the said loan to use the tipper for commercial purpose. Therefore, the complainant cannot be treated as Consumer under the Consumer Protection Act. It is further stated that the complainant obtained the loan facility of Rs.34,00,000/-0 from the answering OP by financing his tipper SIGNA 2823 TK. The total contract value was of Rs.40,42,080 including interest of Rs.6,42,080. The complainant entered into a loan cum hypothecation cum guarantee agreement dated 15.3.2021 with the answering OP for grant of financial assistance and hypothecated his tipper by creating charge over the truck in lieu of the amount received under the loan agreement. Even prior to filing the present complaint, the arbitration vide order dated 31.5.2022 passed interim order under Section 17 of the Arbitration and Conciliation Act. It is further stated that in case any amount was ordered to be paid by the OP No.1 to the complainant and in that eventually the said amount is payable to the answering OP being the financer of the vehicle. Thus, alleging no deficiency in service on the part of the answering OP and prayed for dismissal the present complaint against the answering OP. 
4. The learned counsel for the complainant has tendered certain documents in support of his evidence and closed his evidence. The learned counsel for the OPs has also tendered documents in their evidence and closed their evidence.
5. We have heard the learned counsel for the complainant and OPs and have gone through the record file, carefully and minutely. 
6. The learned counsel for the complainant has argued that the complainant had purchased the tipper in question and the same was insured by the OP NO.1 and issued temporary registration number. On 11.6.2021 when the driver and helper of the tipper in question parked the tipper on petrol Pump, Batla then the same was stolen by unknown person. After trying to found the same, the complainant has lodged the FIR No.0117 dated 12.06.2021 at PS Civil Lines, Batala. After lodging the FIR, the complainant informed to the OP NO.1 and submitted the claim form with documents for claim amount but the Insurance Company refused to pay the claim amount. Lastly prayed to allow the complaint with cost. 
7. The learned counsel for the OP No.1 (Insurance Company) has argued that the claim of the complainant has not been decided by the insurance company on merits but due to non compliance, the insurance company is unable to pass the claim amount in favour of the complainant. Lastly prayed to dismiss the present complaint being pre mature. 
8. The learned counsel for the OP No.2 has also argued that the OP NO.2 is only means his payment either to the complainant or to the insurance company. The OP No.2 has also argued that the present complaint is only against Insurance Company not to OP No.2 and prayed for dismiss the present complaint. 
9. It is pertinent to mention here that the present complaint pertains to theft of tipper bearing temporary registration No.PB-2021-TR-5969 B Signa which was purchased on 20.04.2021 and was financed by the OP NO.2 and insured by OP No.1. Unfortunately, the said tipper was stolen on 11.6.2021 and FIR in this regard was duly lodged at PS Civil Lines, Batala. The claim was lodged with OP No.1. who in their written statement has admitted that the claim in this regard was intimated to the Insurance Company and Insurance Company has deputed Nirvair Singh Investigator to investigate the loss. The Insurance Company has requested the complainant to provide the Registration Certificate and Route Permit. It is not in dispute that on account of onest of Covid-19, as per document Ex.C3 i.e. notification dated 26.3.2021, bearing No.RT-11036/35/2020-MVL, issued by the Ministry of Roadways and Transport for extension of the validity of the documents related to the Motor vehicle Act, 1988 and Central Motor Vehicle Rules, 1989 and further to consider relaxation in Permit-fees/taxes etc, which are going to be expired on First of February 2020 and would expired by 30.06.2021. The same may be treated as valid up-to 30.06.2021. The documents which are mentioned in the said notification are Fitness Permit, Driving License, Registration and other concerned documents, who is extension of validity could not be or was not likely to be granted due to lockdown. It is not in dispute that the tipper was purchased by the complainant during COVID period and temporary Registration Certificate was also granted and as such the requirement raised by the OP 1 with regard to the permanent RC stands exempted on account of above describe notification. When the Government has specifically granted exempted from the said described documents and in Government notification, it is specifically mentioned that this exemption has been granted specially to provide availability of essential goods and has allowed for vehicle of transport of such goods. Thus, in our opinion the said exemption is also applicable on the present complaint qua permit also. The objection raised by the OP1 with regard to the non applicability of said notification on issuance of fresh Registration Certificate and fresh permit has got no force on account of said described clarification given by the government itself in the notification and as such, we opined that the complainant is entitled to receive the claim amount. 
10. In view of our above discussion, we allow the present complaint with the direction to the OP No.1 to pay the claim amount of Rs.36,10,000/- (as insurance value of the vehicle in question as per insurance policy) to the complainant.  The excess clause of Rs.1500/- as mentioned in the policy is liable to be deducted from the said amount i.e. Rs.36,08,500/-  and the said amount is liable to be paid with interest @ 7% per annum from the date of theft of the vehicle in question along with cost of Rs.1,00,000/- as compensation. The complainant is also entitled Rs.25,000/- as litigation expenses. It is made clear that OP2 will deduct the financed amount from the above said amount without any penalty or penal interest as the case being treated as theft case and theft on account of the reasons beyond the control of the complainant.  The OP No.1 is further directed to pay the compensation and litigation amount directly to the complainant. The OP No.2 is also directed to pay the remaining amount after deducting of his own payment without any penal interest or penalty to the complainant. Free certified copies of this order be supplied to the parties, as per rules. The file be indexed & consigned to the Record Room. 

Announced:

21.10.2022

                                                                              (RANJIT SINGH)

                                                                              PRESIDENT

                                                                              (RANVIR KAUR)

                                                                              MEMBER 

CC No. 101 of 2022

PRESENT: Sh. SP Kaushal, Adv. for complainant

                  SH. Amit Gupta, Adv. for OP1

                  Sh. Ajay Talwar, Adv. for OP2

Vide our separate detailed order of even date, the complaint stands allowed. The file be indexed & consigned to the Record Room.

                            MEMBER                                            PRESIDENT

                                                                                        21.10.2022