BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM.
Dated this the day of 6th day of October 2023
PRESENT:
Shri.D.B.Binu President
Shri. V. Ramachandran Member
Smt. Sreevidhia T.N., Member
C.C.No. 846/2015
Complainant
Shain Raj, S/o.Rajendran, 3/646, Manadath House, Eloor South, Ernakulam-686 501
(By Adv. Manu Roy and Adv.Bindu K.N., Vyapar Bhavan, Opp. Lourdes Church, Thevara Junction, Cochin-15)
Vs.
Opposite paries
1) The Oriental Insurance Company Ltd., Micro Office, 375B/XXXI, Methala, Kodungallur Azhikode Road, Thrissur-680 669
(Op. 1 rep by Adv.K.N.Sivasankaran, Adv.Sunil Shankar, Adv.Sikha G.Nair, Raviuram Road, Ernakulam)
2) The Managing Director, M/s.Geo VPL Finance Pvt. Ltd., Near St.Sebastian’s Church, Thoppumpady, Kochi-682 005
(O.p 2 rep. by Adv.Pramoj Abraham)
F I N A L O R D E R
Sreevidhia T.N, Member
The complainant had purchased a used Skoda Fabia car bearing No: KL-17-BH-1719 from one Sri.Balachandran of Kodungallur. The said vehicle was insured with the 1st opposite party. The complainant had entered into a loan agreement with 2nd opposite party for availing a vehicle loan for purchasing the vehicle. The loan amount of Rs 1,25,000/- was paid by the 2nd opposite party to the complainant on 23-03-2015. While paying the loan amount 2nd opposite party had insisted that he will change the ownership of the vehicle in RC book after endorsing vehicle loan. The 2nd opposite party insisted for the same due to the reason that the wanted to endorse the vehicle loan in the RC book.
The 2nd opposite party had also assured that they will change the insurance policy in my name within 14 days of change of ownership. Hence the complainant had entrusted all the records for changing the RC ownership on 23-03-2015 to the 2nd opposite party opposite party. The 2nd opposite party had submitted transfer form for changing the RC ownership before the Sub RTA Office. Aluva on 23-03-2015. The 2 opposite party had also promised that they will hand over the Registration Certificate and insurance policy after effecting the changes to the complainant.
But due to the utter negligence on the part of 2nd opposite party, date in the application for change of ownership was shown as 19-03-2015 instead on 23-03-2015. After submitting the application for change of ownership, on many occasions I had enquired whether the RC book and the insurance policies are ready, but the reply which I received from the 2nd. opposite party was that they have not received the RC book from the RTA authorities. As per the rules, the insurance policy should be changed to the name of the owner within 14 days of change of ownership.
On 04-04-2015, vehicle met with an accident at Container Road, Ernakulam sustaining damages of more than Rs 2.5 Lakhs Since 2nd opposite party could not provide the RC book and the insurance policy, for getting the insurance premium, and the complainant had approached the RTA authorities directly. The complainant realized that RC ownership was changed with effect from 19-03-2015. Infact two dates were shown in RC book as 19-01-2015 and 19-03-2015. Due to the negligence on the part of 2nd opposite party, the Registration Certificate was not collected from the RTA office in time and the insurance policy was not changed to complainant’s name. When the complainant t approached the insurance company, he was told that since 14 days have be elapsed after change of ownership of vehicle, the insurance company is not liable to meet the expenses to repair the vehicle. Infact from all the records submitted before the RTO office it can be seen that the loan was granted on 23-03-2015, the papers were submitted on 23-03-2015 for change of ownership. Moreover when application was submitted on 23-03-2015 for change of ownership, a receipt was issued by the Motor Vehicles Department dated 23-03-2015 for remittance of the fee. All these facts were brought to the notice of 1st opposite party. But they stood firm on minor technicality that 14 days’ time period expired and they are not responsible to compensate for the loss that caused to the vehicle in the accident.
When the vehicle was taken to Marikkar Motors, the authorized dealers of Skoda cars, they gave an estimate of Rs.3,98,619/- forwards the repairing charge of the vehicle. Hence the vehicle was given for repairs at Auto Technix Work Shop at Kalamassery who gave an estimate of Rs2,09,800/-. Due to the negligent attitude, which is the deficiency of service on part of 1st opposite party in not meeting the charges to repair the vehicle, the same is still lying at Auto Technix Work Shop at Kalamassery.
The 2nd opposite party had filed an application under Section 9 of Arbitration and Conciliation Act. In the same, suppressing the fact that the vehicle has been met with an accident and is still lying in the workshop, it was alleged the complainant was not repaying the vehicle loan and Rs.1,41,894/- is due in loan account. In the same it was also stated that they are about to initiate Arbitration proceedings against the c complainant. The complainant could not use the vehicle after 11 days of its purchase on 23-03-15 due to the deficiency of service on the part of 2nd opposite party. Now suppressing these facts, complainant is about to initiate arbitration proceedings which are unfair trade practices and deficiency of service on the part of the 2nd opposite party.
The complainant was unable to use the vehicle for the past 255 days till the filing of the complaint due to the deficiency of service on the part of opposite parties. The 1st opposite party is duty bound to pay the amount for the damages sustained by the vehicle. Similarly the 2nd opposite party is bound to compensate for their negligence in submitting the application for change of RC ownership showing a wrong date and thereby denying the complainant’s right to use the vehicle.
Hence the complainant approached this commission seeking orders directing the 1st op to pay the charges for repair of vehicle in accordance with the insurance policy and to direct the 2nd op to pay Rs.1,00,000/- towards the mental agony and loss suffered by the complainant and for the deficiency of service on their part. The complainant also seeks Rs.10,000/- each as cost of proceedings to the complainant.
2. NOTICE
Notice was issued to the op from this commission on 07-01-2016.The op 1 and 2 appeared and filed their versions.
3. VERSION FILED BY THE OPPOSITE PARTY 1
The above complaint is not maintainable in law and on facts.
The complainant is not a consumer vis a vis this opposite party. The complainant had never availed any service from this opposite party. The complainant is a stranger to the insurance policy. The above complaint has been filed without any bona fides, is frivolous and experimental in nature. From the facts narrated in the complainant itself, it is clear that the complainant has only filed the above complaint, as a counter blast to the Arbitration OP filed against the complainant by the 2nd opposite party.
It is submitted that one Mr. Balachandran had availed the Private Car Package Policy No. 441192/31/2015/2041 from the 1st opposite party, in respect of a car Skoda Fabia Car- having registration number KL-07-BH-1719 for the period 20-2-2015 to 19-2-2016. The terms and conditions of the policy inter alia provide that any transfer of the vehicle should be intimated within two weeks to the Company. The Company did not receive any claim intimation and therefore survey was not conducted.
The 1st opposite party has not received any notice of claim. The allegations of accident having occurred, the actions of the 2nd party not providing the papers etc are not admitted. The complainant admits that the insurance policy was not changed to the name of the complainant. The opposite party 1 is under no legal liability to indemnify the complainant, who is a stranger to the contract of insurance, as on date of the accident. As per the policy conditions, the policy of insurance has to be transferred within 14 days of the transfer of the vehicle.
The 1st opposite party has no knowledge of the vehicle being taken for Marikkar Motors or any other workshop, and the estimates given by such workshop. The complainant is not an insured person under the policy.
The 1st opposite party is not liable for meeting any repair charges to the complainant with respect to the repair of his vehicle. The averments as regards the pendency of the Arbitration OP etc are matters between the complainant and the 2nd opposite party, and have nothing to do with the 1st opposite party.
No cause of action has arisen against the 1st opposite party.
4. VERSION FILED BY OPPOSITE PARTY 2
The above complaint is not maintainable either in law or on facts.
The 2nd Opposite Party deny each and every averment in the complaint, except those that are specifically admitted hereunder.
The 2nd opposite party, GEO VPL Finance Private Limited company is engaged in the business of providing loans mainly on Hypothecation and guarantee basis.
The complainant entered into the loan agreement with the 2nd opposite party and obtained a loan of Rs. 1,25,000/- which is an admitted fact. The complainant entered in to an agreement of loan with the 2nd opposite party on 20 -03 -2015 for the purchase of Skoda Fabia vehicle bearing registration No KL -7-BH- 1719.
In the agreement there is an arbitration clause. The arbitration clause 15 read as follows
"All disputes, differences and or claims arising out of this Loan Agreement shall be settled arbitration, in accordance with the provisions of the Arbitration and Conciliation Act, 1996, or any statutory amendments thereof referred to the sole arbitration of Sri Sabu S, Amples building, Ernakulam and the place of Arbitration shall be at Ernakulam and that the award given by the Arbitrator shall be final and binding on all the parties concerned.
The complainant had received an amount of Rs. 1,25,000/- from the 2nd opposite party and the loan installment amount of Rs. 6,773/- is to be paid in every 24 installments. As on 17.8.2015 an amount of Rs. 1,41,894/- is due to the 2nd opposite party and they filed O.P (Arb.) No. 957/2015 before the District Court, Ernakulam for attachment of immovable property and interim attachment was granted by the District Corut, Ernakulam and the scheduled property was attached, which is owned by Mr.Ajai Sivanad, who is the guarantor of the above said agreement.
The complainant was to understand that the property was under attachment and he approached the 2nd Opposite Party and assured that he is ready to re-pay the entire debt and he issued a cheque of Rs.1,41,894/-, dated 12.10.2015 and the cheque bearing No. 881261 of S.B.I, Banerji road Branch, Ernakulam and the same was returned with an endorsement that "Funds Insufficient".
The 2nd opposite party states that this District Consumer Disputes Redressal Commission Ernakulam has no jurisdiction to entertain the matter, since there is a valid arbitration clause in the loan agreement.
The averment that the 2nd Opposite Party assured that they will change the insurance policy in the name of the complainant within 14 days of change of ownership is false and hence denied and further averment that the complainant entrusted all the records for changing the R C ownership with the 2nd Opposite Party on 23.3.2015 and he submitted transfer form before the Sub RTA Office, Aluva and 2nd Opposite Party promised that they will hand over the Registration Certificate and insurance policy after changing the name of complainant is not within the knowledge of the 2nd Opposite Party and hence denied.
There was no act committed by the 2nd opposite party which amounts to deficiency in service. There was no negligence on the part of the 2nd opposite party.
No cause of action whatsoever has been made out for filing the above complaint against the 2nd opposite party. The claims raised by the complainant against the 2nd opposite party is without any basis. The complainant is not entitled to get any of the reliefs sought for in the complaint.
5) EVIDENCE
Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence which were marked as Exbt.A1 to A8. Complainant is cross examined by the 1st opposite party and his depositions are recorded as ‘PW1’.
The opposite party 1 produced one document which is marked as Exbt.B1. The 2nd opposite party has no documentary evidence. No oral evidence from the side of the opposite parties.
Evidence closed and the case was posted for Hearing. To 04.02.2021.
Neither the complainant nor his counsel was absenting for a long time since 11.09.2020,. Hence notice was issued to the counsel for the complainant on 23.01.2021 for presenting his arguments before the Commission. The notice sent to the counsel for the complainant’s Adv.Manu Roy seen served on 27.01.2021. But the complainant or his counsel not appeared before the Commission. Hence hearing adjourned so many times. Since both the parties are not interested for presenting the arguments, taken for orders.
6) the issues came up for consideration in this case are as follows:
1) Whether any deficiency in service or unfair trade practice is proved from the side of the opposite parties towards the complainant?
2) If so, reliefs and costs?
We have analyzed the facts of the case, version filed by the opposite parties 1 and 2, the documents and evidence in this case.
The case of the complainant is that he had purchased a car (Skoda Fabia) bearing Reg. No. KL 07 BH 1719 from one Balachandran at Kodungalloor. The car was insured with the 1st opposite party. The complainant had interested into a loan agreement with the 2nd opposite party for an amount of Rs.1,25,000/-. The complainant states that the 2nd opposite party had assured that they will change the ownership of the vehicle in the RC Book after endorsing loan amount the 2nd opposite party had submitted transfer form for change of ownership before the Sun RTA Office, Aluva on 23.05.2015. On 04.04.2015, the vehicle had met with an accident re ownership was changed with effect from 19.03.2015. Insurance poicy was not changed to the complainant’s name by the deficient act of the 2nd opposite party. The Insurance Company repudiated the claim of the complainant since 14 days’ elapsed after change of ownership of vehicle.
Exbt.A1 is the RC book of the vehicle Skoda Fabia KL 07 BH 1719. In the RC book, details of Hypothecation/hire Purchase Lease Agreement was shown as ‘with effect from 19.01.2015’. RC book was issued on 27.03.2015. Exbt.A2 is the Motor Insurance Certificates Cum policy Schedule car packing policy insured’s name is shown as Balachandran, S/o.Krishnan Menon. Period of Insurance was 20.02.2015 to 19.02.2016. It is endorsed by in the policy by oriental Insurance Company Ltd that “In case of transfer of ownership of the insured vehicle, the insurance policy must be transferred to the name of the new owner within 14 days from the date of change of ownership. Otherwise the claims related to the damage of the vehicle are rejected”. Exbt A3 is the copy of the application for Transfer of Ownership within the State.
The 2nd opposite party had submitted transfer form for changing the RC ownership before the Sub RTA office, Aluva on 23.03.2015. Exbt.A5 is the estimate of Repairs of the complainant’s vehicle for Rs.39861/- issued by Marikkar Engineers Pvt. Ltd. The vehicle was given for repair work at Auto Technix Workshop at Kalamassery and they had given an estimate of rs.209800/- (Exbt.A6). Exbt.A7 is the counter affidavit filed by the complainant in I.A No.5046/2015 in OP (Arb)No.957/2015. Exbt.A8 is the complaint filed against the complaint filed against the complainant by the 2nd opposite party (VPL Finance Pvt. Ltd. under Section 138,141 and 142 of the Negotiable Instrument Act.
On verification of all the evidence filed in this case, the RC book of the Skoda Fabia 14 clause T D1 Diesel KL 07 CH 1719 was changed to the complainant’s name on 27.03.2015. the alleged accident was on 04.04.2015. the complainant states that the 2nd opposite party had assured that they will change the insurance policy and RC book within 14 days of change of ownership. The complainant also states that the date in the application for change of ownership was shown as 19.03.2015 instead of 23.03.2015. the complainant has denied the insurance claim by the opposite party due to the reason that one Mr.Balachandran had availed the private car package policy No.441192/31/2015 2041 from the 1st opposite party, in respect of a Skoda Fabia car having Reg.No.KL07 BH 1719 for the period form 20.02.2015 to 19.02.2016. The terms and conditions provide that any transfer of the vehicle should be intimated within 2 weeks to the Insurance Company. The Insuracne company did not receive any claim intimation and therefore survey was not conducted.
Exbt.A2 Insurance policy was in the name of one Mr.Balachadran at the date of accident ie., on 04.04.2015. There was no privity of contract between the complainant and the 1st opposite party on 04.04.2015. The complainant had not produced any evidence to show that he had taken steps to transfer the name of the insurer in the insurance policy of the car from the previous owner to the complainant’s name on any date prior to the date of the alleged accident. Exbt.A4 also states that the application for change of Hypothecation and sold date is re book by 2nd opposite party was given only on 07.04.2015. Moreover there was no mention about the date of purchase of the vehicle on the complaint or in the proof affidavit of the complainant.
During cross exam of the PW1 by the 1st opposite party, PW1 also deposed that only after changing the RC book he informed the insurance company that he bought the car from Balachandran. PW1 also deposed that this information was passed to the Insurance Company only after the accident.
From the available documents filed by the complainant, no deficiency in service or unfair trade practice is proved from the side of the opposite parties towards the complainant. The complainant has failed to prove his allegations against the opposite parties with sufficient documents. Hence issue No. (1) is found not in favour of the complainant and since point No. (1) is found not in favour of the complainant, we do not analyze point No. (2).
In the result, the complaint is dismissed with no costs.
Pronounced in the open Commission on this the 6th day of Ocotber 2023.
Sd/-
Sreevidhia.T.N, Member
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Exbt.A1 :; copy of certificate of registration.
Exbt.A2 :; copy of Motor Insurance certificate cum policy schedule private car package policy – Zone B
Exbt.A3 :;copy of Form TR5 issued by Government of Kerala
Exbt.A4 :;copy of letter dated 07.04.2015 for changing Hypothecation date and Sold date in RC Book
Exbt.A5 :; copy of estimate of repairs issued by Marikar Engineering pvt. Ltd.
Exbt.A6 :; copy of estimate
Exbt.A7 :; counter affidavit filed by the respondents
Exbt.A8 :; copy of complaint
Deposition
PW1 ::
