BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case is that the complainant is the permanent inhabitant of the above mentioned address O.P. No.-2, 3 & 4 are necessary parties in c/w the subject matter of this case. O.P. No.-1 & 2 have same liabilities, O.P. No.-01 is the authorized dealer of O.P. No. -3 & 4, the O.P. No.-3 & 4 are financier of involving vehicle/motor bike of this case. The complainant for his urgent requirement of a motor bike he purchased the vehicle-no- WB30Y0757Chassis Number of vehicle- MD634BE4XH2F79387, Engine Number of Vehicle- BE4FH2080276 from the showroom of O.P. NO.-01 and complainant is the owner of the said vehicle. On 22.06.2017 with financial assistance by O.P. No.2 & 3 through and from O.P. No.-01 and complainant paid down payment, registration fees, insurance charges/fees and all fees/charges through Bank and by cash as per instruction of O.Ps. It is a great regret that, after receiving all fees and charges in connection with registration fees, tax and other duties, insurance premium of schedule vehicle O.P. No.-01 did not apply for registration in proper time, even after repeated enquiry regarding registration of the vehicle, O.P. No.-01 as well as his staff all times disclosed that they already applied online on the date of purchase but complainant came to know they always use to tell lie. After repeated reminder and tagid O.P. No.-01 supplied a computer generated slip issued on 10.10.2017 by Tamluk RTO regarding registration of vehicle whereas complainant purchased on 22.06.2017. The complainant purchased an insurance policy for the vehicle from O.P. No.-02 insurance company through the O.P. No.-01, bearing Policy Certificate No.-990291723120100194 said insurance was valid from 29.06.2017 to 28.06.2018, at the time of incident schedule vehicle was under covered by insurance policy of the O.P. No.-02. Unfortunately on 01.09.2017 the said vehicle was theft by unknown miscreant from the sister’s house of complainant kept his bike safely. The complainant was staying in Delhi at the time of incident. Then and then said matter was informed to complainant, local people and Panskura police by Firoj Khan, brother-in-law of complainant. After search by family members of complainant, brother-in-law, nearest friends, neighbors and others people engaging all sources and efforts but stolen property/bike could not be found anywhere. Lastly on 03.09.2017 Firoj Khan lodged an FIR before Panskura P.S. and the officer-incharge started a police case vide No.- Panskura P.S. Case No.-459/17 dated 03.07.2017 u/s 379 of the I.P.C. After said incident on the same day complainant informed to the O.Ps and Police authority regarding the stolen vehicle/bike. As per advice of the O.P. members said matter was informed to the R. T. O. Tamluk by Firoj Khan Till now vehicle is not recovered by the police or any authority, investigating officer of the case has been submitted a Final Report being No. – 599/17 dated 31.12.2017. After information and application for claim to the O.P. No.-2, he sent one Mr. Ranabir Das on 09.09.2017, he meet with Firoj Khan and others family members of complainant and he disclosed that he was appointed as an investigator for investigation of theft matter in c/w the vehicle. During his enquiry Mr. R. Das received claim forms and others documents as per his requirements. After the said incident as per advice of O.P. No.-1 & 2, said Firoj Khan submitted original key of vehicle, all papers of vehicle, insurance policy certificate and full filled others queries, formalities with claim form to O.P. No.-2 for getting genuine and legitimate claim. After investigation by investigator/representative of O.P. NO.-2 as per their instruction on 12.09.2017 on behalf of complainant his attorney Firoj Khan submitted power of attorney, all documents and Consent Letter, Letter of Indemnity, Letter of Subrogation as per format which are supplied by O.P. No.-2. After passing of long days O.P. No.-02 sent a letter dated 15.12.2017 to complainant and informed that he repudiated the claim. After receiving of said letter complainant met with O.P. 1 & 2 and objected against contents of said letter. Then O.P. NO.-01 & 2 assured that they must inform after discussion with the higher authority but in vain. Several times complainant met with the O.P. No.-1 & 2 for settlement of the claim amount but in vain. In the aforesaid circumstances complainant has been constrained to take the shelter of law.
Under such circumstances complainant humbly prays for payment of claim amount of Rs. 77,070/- which is value of the vehicle with interest @ 12 % p.a. For compensation of Rs. 50,000/- for harassment, mental pain and agony etc. for litigation cost of Rs. 5000/- and for other reliefs as per law and equity.
Upon notice ops 1&2 filed written version on 06.02.2020, thereafter they did not turn up to contest the case, ultimately they preferred to see the case be decided ex-parte against them. Ops 3 & 4 contested the case by filing written version thereof. In the written version ops-3 & 4 have stated inter alia that there is no cause of action for filing this complaint. The complainant purchased a Motor Bike with the financial assistance of the Opp. Party no.-3 & 4 and availed of a loan of Rs. 65400/- and agreed to repay the said loan amount of Rs. 94821/- along with interest & Insurance accrued thereupon in 36 monthly installment commencing from 07.09.2017 to 07.08.2020 and the 1st installment to 36 installment would be Rs. 2539/- each. The complainant petitioner is not entitled to any of the relief as prayed for as in prayer in the plaint from O.P. No.-3 & 4. Without prejudice to the aforesaid and fully relying thereon, this Opposite Party proceeds to state the facts of the case, in the sub-paragraphs hereinafter following;- In or about 24.07.2017, the Complainant approached the Opposite Party No. 3 & 4 i.e. TVS Credit services Ltd. Avail a loan facility for purchase of a Motor Bike being Registration no. WB 30Y/0757. Upon the request and representation made by the complainant the Opposite Party No. 3 & 4 sanctioned a loan to the tune of Rs. 65400/- under a Loan Agreement no.- K03078TW0031946, on inter alia the following terms and conditions. This opposite party No.-3 & 4/TVS Credit Services Ltd. Are neither a necessary party nor proper party in this case and petitioner admitted no deficiency service against opposite party No.- 02 & -4 TVS Credit Services Ltd. After filing this case a peaceful compromise has been made between the parties and after compromise petitioner/ Amir khan made payment of the compromise amount. This Opposite party No.-3 & $/ TVS Credit Services Ltd. Provided financial help to purchase the vehicle to the Complainant and after payment of full and final settlement amount, loan agreement being No. – k03078TW0031946 dated 24.07.2017 has already been terminated and opposite party no.-3 & 4/TVS Credit Services Ltd. Issued NOC in favour of the Complainant. As such they have submitted for dismissal of the case against them.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the affidavit of the complainant, written version filed by ops, evidence of both parties and other documents.
Having regards had to the facts and circumstances of the case and other materials on record, it appears that the case is maintainable in its present form and in law.
On careful analysis of the evidence on record and written version of the op-3 & 4, it appears that the complainant has already settled his dispute outside this forum against ops 3 & 4 and the ops-3 & 4 have issued N O C to the complainant.
The main grievances now are lying against the ops 1 & 2 who are not contesting the case. According to complainant the op-2 repudiated the theft insurance claim illegally. From the copy Final Report being No. – 599/17 dated 31.12.2017 in c/w Panskura P.S. Case No.-459/17 dated 03.07.2017 u/s 379 of the I.P.C. it appears that the incident of theft is a fact and it is true. Now, it appears from the Insurance policy certificate bearing Policy Certificate No.-990291723120100194 and said insurance was valid from 29.06.2017 to 28.06.2018, At the time of incident of theft of vehicle was under covered by valid insurance policy of the O.P. No.-02. Having got claim information the op-2 caused investigation by its investigator. During his enquiry Mr. R. Das received claim forms and others documents as per his requirements. After the said incident as per advice of O.P. No.-1 & 2, said Firoj Khan submitted original key of vehicle, all papers of vehicle, insurance policy certificate and full filled others queries, formalities with claim form to O.P. No.-2 for getting genuine and legitimate claim. After investigation by investigator/representative of O.P. NO.-2 as per their instruction on 12.09.2017 on behalf of complainant his attorney Firoj Khan submitted power of attorney, all documents and Consent Letter, Letter of Indemnity, Letter of Subrogation as per format which are supplied by O.P. No.-2. The op-2 has not contested the case by placing the investigation report. The op Insurance company after taking premium and issuing a certificate, can not take the plea the vehicle had not obtained the Registration certificate within time. The vehicle was theft from the house the informant not from any public place. The insurance company can not hold the owner of the vehicle liable for violation u/s 39 of the M V ACT as no prosecution was lodged against the owner for such violation by appropriate authority. There is no condition in the insurance policy that absence of temporary registration /registration will be a ground to repudiate any claim. Moreover, the insurer itself is answerable as to why it issued the policy without even temporary registration number of the vehicle. The certificate was valid on the date of accident. The aforesaid repudiation has set an instance of unfair trade practice, repudiation is whimsical. The evidence of the complainant against the op-2 has not been challenged. From the unchallenged testimony of the complainant and other materials on record, it appears that the op-2 has illegally repudiated the claim of the complainant by setting an instance of unfair trade practice.
The complainant is entitled to get the insured purchase value of the vehicle /bike i.e Rs.77,070/- alongwith simple interest @ 9% per annum from the date of filing of this case till realization and further he will get compensation of Rs. 5,000/- and Rs. 5000/- as towards cost of litigation from the op-2 only. The complainant is not entitled to get any relief from the ops-1 , 3, & 4 in this case.
Both the points are decided accordingly. Thus, the complaint case succeeds.
Hence, it is
O R D E R E D
That the CC/328 of 2019 be and the same is allowed ex-parte against op-2, dismissed ex-parte against op-1 and dismissed on contest against the Ops 3 & 4 .
The OP-2 is hereby directed to pay Rs.77,070/- alongwith simple interest @ 9% per annum from the date of filing of this case till realisation , compensation of Rs. 5,000/- and Rs. 5000/- as towards cost of litigation to the complainant within one month from this date of order.
The complainant will be at liberty to put the order into execution .
Let a copy of the judgment be supplied to each of the complainant and the OP free of cost.
