DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 26th day of June, 2019
C.D Case No. 110 of 2016
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Bishnu Mohan Sahu
S/o: Rama Chandra Sahu
At: Thaila Rajendrapur,
Ps: Bhandaripokhari,
Dist: Bhadrak ……………………. Complainant
(Versus)
1. The Proprietor
Hinduja Leyland Finance Ltd., Kalidashpur
Po: Nuasahi (Near Hotel Chandrabhaga)
Dist: Balasore
2. The Authority
Cholamandalam Insurance Company Ltd.
At: Ashok Nagar (Near Arya Palace Hotel), Bhubaneswar
Po: Bhubaneswar,
Dist: Khordha
3. The Authority
Cholamandalam M.S General Insurance Company Ltd.
Regd. & Head Office, At: Dare House, 2nd Floor
No. 2 NSC Bose Road, Chennai- 600001, Tamilnadu
…………………………..Opp. Parties
Counsel For Complainant: Sri B. K. Mohanty Adv, & Others
Counsel For the OP No. 1: Sri Rabindra Kumar Ray Adv, & Others
Counsel For the OP No. 2& 3: Sri P. Kananugo, Adv & Others
Date of hearing: 04.04.2018
Date of order: 26.06.2019
BASANTA KUMAR MALLICK, MEMBER
This dispute arose out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts of the complaint are to the effect that the complainant, in order to earn his livelihood and maintain his family, acquired a truck bearing registration No. OR-22E-9815 with the credit support of OP No. 1 and the said truck was insure with OP No. 2 & 3 which was valid from 29.08.2015 to 28.08.2016. When the said vehicle was plying on road (NH- 149) from Rajgangpur to Kamakshanagar faced an accident at Naikanali under Samal police station area and got severely damaged. Soon after the occurrence, the driver of the vehicle reported about such accident to the complainant, as the owner of the vehicle, who arrived at the spot within minimum possible time and filed FIR with Samal police station and also reported the matter of accident of the insured truck to the insurer i.e. OP No. 2 over phone. After having information from the complainant, the OP (insurer) deputed a surveyor-cum- loss assessor namely Er. S. K. Mohapatra, who arrived at the spot and conducted preliminary inspection. Soon after the inspection works were completed the surveyor accorded permission for shifting of the vehicle from the accident spot to the workshop which is an authorized workshop of Ashok Leyland. With due permission from the police and surveyor, the complainant shifted the vehicle to Shree Ganesh Automobiles, an authorized dealer and service provider of Ashok Leyland Ltd. situated at Rathia on NH- 5, Dhramsala, Jajpur for repairing of the vehicle. Prior to the repairing work was taken up, with the advice of surveyor, complainant obtained an estimate from afore mentioned workshop and submitted the same to the surveyor who received without acknowledgement. That apart the complainant had also submitted the claim proposal together with all required documents and papers to the insurer for settlement of claim within the stipulated time as per rules. The OP No. 2 has, time to time, made correspondence with the complainant for compliance of different requirements which were also complied by the complainant but to his ill luck, the insurer consumed too much time and caused inordinate delay in settlement of claim. Finding no other way the complainant served a notice upon OP No. 2 & 3 through his advocate on dt. 05.10.2016 requesting to release the claim amount within a period of 7 days from the date of receipt of notice failing which the complainant would be constrained to adopt legal recourse for getting the claim settled. Despite such notice, O.Ps did not settle the claim within the time as mentioned in the said notice which compelled the complainant to take shelter in this Forum in filing a dispute praying for a direction to the O.Ps to settle the claim together with cost and compensation.
O.Ps objected the claim and contested the case. Both the O.Ps filed written version separately. OP No. 1, Hinduja Leyland Finance Ltd. at Kalidaspur, Nuasahi, Balasore, vehemently opposed the allegations of the complainant and denied to have caused deficiency of service and refused to have resorted to any unfair trade practice in course of transaction with the complainant. Further the OP has stated that it has advanced a loan to the complainant for acquisition of an Ashoka Leyland truck which was supplied by the dealer as per choice of the complainant and after compliance of all required formalities. After availing of loan the complainant had been paying the loan installments in an irregular manner which has warranted some other costs. Apart from above the OP No. 1, as part of his moral duty, has been paying the insurance premiums for renewal of insurance policy on or before the due date as mentioned in the policy papers. It is painful to state that the complainant is regularly irregular in respect of payment of loan installments as per prefixed repayment schedule because of which late payment charges etc. have been debited to his loan account in accordance with the terms of the agreement executed between the financier and the complainant. The answering OP has been persistently demanding, through correspondences, for payment of arrear dues together with the current installments which is also not responded by the complainant. From the above facts it is made crystal that the OP No. 1 has nowhere and not at any point of time caused deficiency of service or resorted to any unfair trade practice. Therefore this complaint does not bear any merit against OP No. 1.
In submitting written version OP No. 2 & 3 have raised the question of cause of action, non-joinder of relevant parties, and the complainant has not come to the Forum in clean hands. Further it is also stated in the said written version that the complainant is not a consumer within the meaning of CP Act as the relation between complainant and the financier is of “borrower” and “lender” and it is distinctly provided in the CP Act that no case can be adjudicated or maintainable in a consumer Fora if it relates to accounts matter or accounting transaction. Further the answering O.Ps have also stated that the vehicle bearing registration No. OR-22E-9815 was covered under insurance vide police No. 3379/01238555/000/00 for a sum insured of Rs 13,000,00/- which was valid for the period from 29.08.2015 to 28.08.2016 and the complainant also intimated OP No. 2 regarding the incidence of accident dtd. 18.07.2016. In response to the intimation given by the complainant, OP No. 2 deputed a surveyor-cum-loss assessor to the accident spot for inspection of accident vehicle. After completion of inspection/survey the complainant was permitted to sift the vehicle to the authorized workshop of Ashok Leyland Company for getting the damaged vehicle repaired and accordingly complainant shifted the vehicle to the workshop as advised. But when the complainant caused inordinate delay in submission of genuine documents, OP No. 2 and 3 (here in after said as O.Ps) issued letters and reminders advising the complainant to submit all required documents so as to enable the surveyor to submit final assessment report for settlement of the claim. But the complainant did not pay any heed to the correspondences made by the O.Ps which compelled to intimate the complainant regarding his claim as “No Claim”. It is made crystal from the above descriptions that the complainant has made gross negligence despite all-round efforts made by the O.Ps for settlement of claim. Therefore it is made clear that the complainant, but not O.Ps, is responsible for repudiation of claim.
Admittedly the complainant had availed credit support from OP No. 1 for acquisition of a vehicle and the said vehicle was insured with the O.Ps having validity period from 29.08.2015 to 28.08.2016. When the insurance policy was in force, the insured vehicle met an accident while plying on the road and the matter of such accident was intimated to the police as well as insurer. On having such information O.Ps deputed the surveyor cum loss assessor who inspected the damaged vehicle at the accident spot and accorded permission to shift the damaged vehicle to the authorized workshop of Ashok Leyland situated at Rathia on NH- 5, Dharmasala Jajpur. In addition to aforementioned facts it is also admitted by the parties about the submission of claim proposal for settlement. Apart from above all other allegations of the complainant were disputed.
Perused the complaint, written version filed by the O.Ps, materials available on record, heard the parties to this case and observed as follows:-
1. The O.Ps have objected and raised the question of maintainability of this case on the ground that the complainant is not a consumer within the meaning of CP Act and there is no cause of action to file this case. That apart OP No. 1 has vehemently objected as it is a matter touching to accounts and financial transaction of a non banking financial institution, the consumer Forums does not have jurisdiction to admit and adjudicate this case. On perusal of materials on record and analysis of relevant provisions of act, it is held that the complainant is a consumer within the meaning of CP Act and the cause of action as mentioned in the pleadings is just and proper.
2. The complainant has alleged that he has extended his active corporation to the surveyor-cum-loss assessor appointed by O.Ps at all stage and has furnished all required information’s and documents till the end of survey work conducted by the surveyor. It is worth mentioning that the complainant received a letter on dt. 04.10.2016 from the O.Ps wherein he was directed to proceed with the repairing work without causing further delay and accordingly the complainant has also taken up the work and has submitted the final bill obtained from the concerned workshop and body builder. In addition to above documents complainant has also submitted the other statutory documents required for settlement of claim to the surveyor and also to the O.Ps without proper acknowledgement as the parties concerned refused to acknowledge receipt of the document. Further the complainant has alleged that the letter claimed to have been communicated by the O.Ps to the complainant on dt. 28.07.2017 is false and fake. No such letter was received by the complainant and he prays to verify the documents by the Hon’ble Forum. On the other hand O.Ps objected in submitting that the complainant has not co-operated the surveyor nor has furnished required papers before the surveyor. It is also a fact that the complainant has also not submitted the estimate and related retail invoice showing the cost incurred for repairing the damaged vehicle as a result of which O.Ps issued a letter to expedite and complete the repairing work sooner as possible or else the claim would be treated as “No Claim”. Since the complainant has grossly failed to discharge his part of responsibility within the time frame, no way was left other than to treat the claim as “No Claim”.
Perused the materials on record and examined all the materials evidences pertaining to this case and observed that the O.Ps has taken false plea to avoid the claim to be paid to the complainant. It is also evident that the O.Ps have not adduced most important document i.e. the report of the surveyor and the assessment of loss caused due to accident which leads to doubt that the O.Ps trying to suppress their own negligence, deficiency of service and avoiding to settle the claim as the claim amount is very high which amounts to unfair trade practice.
3. The complainant has made the financer/credit provider a party (OP No. 1) to this case who had no role to play in the process of settlement of claim starting from the incidences till filing of this case. On the other hand OP No. 1 has stated that it has extended all required services in respect of providing credit supports to the complainant and at no point of time said OP has caused deficiency of service. That apart, it also alleged by the complainant that OP No. 1 and O.Ps have nexus to consume the entire claim amount depriving the complainant of his genuine and legitimate claim. On perusal of materials on records and scrutiny of documents, it is observed that the OP No. 1 is in no way involved or responsible for non settlement of claim in question and has not resorted to any unfair trade practice nor has caused any deficiency of service.
In view of the discussions and analysis made in foregoing paragraphs it is held by the Forum that the O.Ps (insurer) have intentionally and deliberately forged the ground to avoid payment of claim of the complainant and hence caused inordinate delay in settlement of genuine claim. It is a relevant point to mention here that when the accident is true, due intimation is given to insurer, local police was duly intimated and the damaged truck was shifted to the authorized workshop of Ashok Leyland with the permission of the surveyor and within the knowledge of O.Ps, what prompted the insurance company not to settle the claim. Such behavior of the O.Ps gives a clear picture of their ill intention at caused inordinate delay with malafide intention. Therefore it is held that the O.Ps are liable to pay the insurance claim taking the actual expenses incurred for getting the damaged truck repaired into consideration. Hence it is ordered; ORDER
The complaint be and the same is allowed on contest against OP No. 2 & 3. OP No. 2 & 3 are directed to settle the claim of actual expenditure incurred for repairing of the vehicle together with compensation of Rs 10,000/- for mental agony and harassment and Rs 4,000/- as cost of litigation within a period of 30 days to the complainant failing which interest @ 7% shall be charged on the awarded amount from the date of order till the date of payment.
This order is pronounced in the open Forum on this day of 26th June, 2019 under my hand and seal of the Forum.
