Tamil Nadu

South Chennai

CC/139/2016

M/s.Raja Rajendran - Complainant(s)

Versus

The Regional Manager, Mahindra & Mahindra Financial Service - Opp.Party(s)

S.Ravindran

14 Oct 2022

ORDER

Date of Complaint Filed : 20.01.2016

Date of Reservation      : 27.09.2022

Date of Order               : 01.11.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

 

CONSUMER COMPLAINT No. 139/2016

FRIDAY, THE 14^thDAY OF OCTOBER 2022

Raja Rajendran,

S/o. Marimuthu,

C/o. Vincent,

No.7/3, Jawahar Street,

K.K. Nagar West,

Chennai-600078.                                                             …    Complainant

 

-Vs-

1. The Regional Manager,

Mahindra Mahindra Financial Service,

New No.244 (Old No.713) 3^rd Floor,

Level-4 Rear Block, Care and Centre,

Thousand Lights,

Mount Road, Chennai-600 006.

 

2. The Manager,

Cholamandalam MS General Insurance Ltd.,

Mahindra Mahindra Financial Service,

Old No.217, New No.265, GST Road,

Chromepet,

Chennai-600 044.                                                                        ....  Opposite Parties

******

Counsel for the Complainant           :    M/s. S. Raveendran

Counsel for the 1^st Opposite Party    :    M/s. PASS Associates

Counsel for the 2^nd Opposite Party    :    M/s. M.B Gopalan Associates

 

        On perusal of records and having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:

 

ORDER

Pronounced by Member-I, Thiru.T.R. Sivakumhar, B.A., B.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Party to compensate a sum of Rs.2,00,000/- and direct the Opposite Party to pay a sum of Rs.1,00,000/- towards mental agony suffered by the Complainant and to pay a sum of Rs.25,000/- towards cost.

2.     The averments of Complaint in brief are as follows:-

 

The complainant had availed financial service on 27.05.2015for purchase of vehicle from the 1^st Opposite Party for a tune of Rs.2,20,000/-, which is repayable 35 monthly installments of premium of Rs.10,500/- against the TATA Indica EV2 Ls CR4 bearing registration No.TN 112180 with Engine No.IND-1308437 with Chassis No.IX 00050120, Commencing from 05.07.2015. At the time of availing loan for insurance the vehicle issued policy No.1 policy with cover dated 23.05.2015 with policy end cover date as 23.05.2016. The premium amount of Rs. 10,500/- for insured amount of Rs.2,50,000/- was deducted and it was insured by Mahindra and Mahindra Finance Service, the 1^st Opposite Party. The 2^ndOpposite Party is the Insurance Company i.e.,Cholamandalam MS General Insurance Company Ltd. In the statement of accounts report No.3698243 it is stated that on 27.05.2015 a premium amount of Rs.7494/- paid on 29.05.2015 with receipt No.2 voucher No.15 for insurance. Due to the recent flood in the month of December first week the vehicle was completely damaged by water and all the parts of the vehicle were immersed in under flood water and the vehicle become not road worthy. To recover the vehicle from the flood water and to made road worthy it took more than 1.5 lakhs for repair charges and he wrote many letter along with request to grant him compensation from the insurance company i.e., the 2^nd Opposite Party herein, in order to recover for the damage, and requested to give his insurance policy to him which was so for kept by the 2^nd Opposite Party. He pressed him hardly to issue the policy, after a lapse of a period of 5 months, when the same was issued after payment of 6^th Installment, he was shocked and surprised to note that the policy was covered from 14.12.2015 instead of 27.05.2015. The policy issued by the 2^nd Opposite Party "policy schedule certificate motor with a certificate No.3362/0400574/000/00 and the policy commences from 14.12.2015 at 16.41 hrs and ends on 13.12.2016 ie., policy issued to him after a lapse of a period of 5 months that too on his request suppressing the original date of payment of first premium Le.. on 27.05.2015 le, after a lapse of a period of 7 months with a black and clandestine desire of avoiding payment of the compensation for the Insurance Policy. The act of the 2^nd Opposite Party was dereliction of his duty under the contract Act. The gross negligence with a motive and purpose of avoiding the claim from the policy which was an unethical practice and gross negligence and dereliction of duty with gross deficiency of service and an unethical practice i.e., malafide trade practice ended in deficiency of service. Hence the complaint.

3.      Written Version filed by the 1^st Opposite Party in brief are as follows:-

         The allegations set out in the above complaint were false, frivolous, and vexatious and in any event the above Complaint is maintainable neither in law nor on the facts and the same is liable to be dismissed in limini as against the 1^stOpposite Party. Above all, there was absolutely no deficiency of service on the part of the 1^st Opposite Party. In fact there was absolutely no prima facie case has been made out as against the 1^st Opposite Party, the present complaint has been instituted with ulterior motive to ripe unlawful gains. The Complaint is bad for non-joinder of the necessary and proper party being M/s. Mahindra Insurance Brokers Ltd. They have been Incorporated two decades ago under the Companies Act, 1956 and commenced its journey in the rural Non-Banking Finance Industry. They extend financial facilities to various customers for the purchase of vehicles, machineries, equipments, etc. and doing business strictly in compliance with the norms of Reserve Bank of India. The Complainant approached them seeking financial assistance in month of May, 2015 for the purchase of vehicle being Tata Indica EV2LSCR4 Car on an assurance that he has sufficient earnings and potential to repay the loan together with finance charge without any delay or default. Based on his representation and assurance, the 1^st Opposite Party had entered into a Loan Agreement dated 27.05.2015 vide Contract No. 3698243. The cost of the vehicle was Rs. 3,02,700/-. In pursuance of the said agreement, they extended financial facility to the extent of Rs. 2,02,700/- which shall be payable together with the agreed finance charges. The value of agreement is Rs 2,63,200/-. The Complainant had agreed to repay the value of the agreement in 35 monthly instalments at Rs. 10,500/- per month commencing from 05.07.2015 to 05.05.2018. As far as the insurance is concerned, the Complainant had engaged M/s. Mahindra Insurance Brokers Ltd to avail insurance policy and it was specifically instructed to the borrower to follow the vehicle insurance with M/s. Mahindra Insurance Brokers Ltd. They were no way connected with the insurance policy. They and Mahindra Insurance Brokers Ltd are totally a different and separate legal entity. The Complainant having failed to follow the insurance policy with M/s. Mahindra Insurance Brokers Ltd filed the above vexatious Complaint as against them with false allegations. The Complainant had caused a legal notice dated 04.01.2016 to the 1^stOpposite Party and the same was duly replied by the 1^st Opposite Party. Hence prayed the complaint is to be dismissed.

4.    Written Version filed by the 2^nd Opposite Party in brief are as follows:-

       The complaint is not maintainable either in law or on facts and is liable to be dismissed as against this Opposite Party. The whole case of the Complainant as against this Opposite Party is entirely misconceived. Merely by reason of a debit entry shown in the Complainant's statement of account for insurance by the 1^st Opposite Party on 27.05.2015 there could be no assumption or presumption that they were approached for insurance or that premium was actually paid to them on that date or that any insurance was actually concluded and taken with them on that date. Unless the premium was remitted with them, they were not obliged to issue any Policy. In this regard, it is a completely different entity from the Complainant or the 1^st Opposite Party who have the primary duty to ensure proper insurance for the vehicle. Merely by remitting payment to the 1^stOpposite Party or by reason of the 1^st Opposite Party debiting the premium in Complainant's account, there could be any responsibility or liability on them, as an insurance company. In respect of Complainant's vehicle they received premium of Rs.7,494/- on 17.12.2015 based on which the Policy was issued w.e.f. 14.12.2015 upto 13.12.2016. They were not liable for any loss/damage that had occurred prior to 14.12.2015 from which date it has issued the Policy. Until receipt of premium, they cannot issue any Policy and it is statutorily barred by provisions of Sec.64 UM of Insurance Act from assuming any risk. Hence they have no liability for the loss in the first week of December stated in the Complaint vaguely without disclosing the exact date of loss, as it was prior to the date of commencement of insurance. The Complainant has not stated as what he was doing from May 2015 to December 2015 without asking for the Policy from the 1^st Opposite Party. As a owner of vehicle the Complainant was bound to obtain and keep the original Policy in the vehicle at all times and failure to do so reveals a reckless conduct on his part. Had the Complainant followed up with the 1^st Opposite Party for the insurance, it would have ensured that the vehicle was covered from May 2015 itself. It was the failure of the Complainant despite being the owner of the vehicle to even enquire about the insurance which has resulted in absence of insurance at the time of loss and the Policy being taken after the loss from 14.12.2015. In any case they have no liability for the delay in obtaining insurance by the Complainant and/or the 1^stOpposite Party or the loss before 14.12.2015. They had not committed any deficiency in service whatsoever. Allegations in paragraphs 1 and 2 entirely relate to transactions between the Complainant and 1^stOpposite Party. They deny the vague and incoherent allegations regarding cover dated 23.05.2015, as the allegations are not clear or understandable, they would specifically deny any insurance prior to 14.12.2015. The Statement of A/c. about premium amount mentioned therein were entirely between the Complainant and 1^st Opposite Party which does not bind them. The Complainant was unaware of any such Statement. Suffice to state that premium was not received on 27.05.2015.No reliable evidence was produced to establish the damage or loss occurred in flood during first week of December 2015 or the complainant incurred Rs.1.5 lakhs. It was false to allege that they had kept the Insurance Policy and had issued after a lapse of 5 months, the lapse was on the part of the Complainant. No proof of payment of premium on 27.05.2015. Only on 17.12.2015 they had received the premium and it was denied that only to avoid paying compensation the Insurance policy was issued after lapse of 7 months. The allegations that there was dereliction of duty or unethical practice or gross negligence on their part were denied and negligence was on the part of the Complainant and/or 1^st Opposite Party. Without establishing any damage or loss the Complainant had attempted to abuse and exploit the Consumer Protection Act by making baseless and fanciful claims for compensation, mental agony and cost. Hence prayed to dismiss the complaint.

5.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-5  were marked. The Opposite Parties submitted their Proof Affidavit and Written Arguments. On the side of the 1^stOpposite Party, documents Ex.B-2 to Ex.B-3, were marked. On the side of the 2^nd Opposite Party, documents Ex.B-1 was marked.

 

Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1 :-

It is an undisputed fact that on 27.05.2015 the Complainant had availed financial services from the 1^st Opposite Party for his vehicle TATA Indica EV2 Ls CR4 bearing registration No.TN 11 2180.

The disputed facts are that the subject vehicle was damaged due to heavy rainfall during the first week of December, 2015, which needed to be repaired, hence he had sought approval from the 2^nd Opposite Party being the Insurance Company, since approval was not given he had carried out the repairs at his cost to run the subject vehicle in road worthy condition. Further the 1^st Opposite Party in spite of his repeated requests and demands to provide the Insurance Policy has not been provided, though they had collected necessary sum of Rs.7497/- on 27.05.2015 itself towards Insurance Policy for the subject vehicle, to be insured with the 2^nd Opposite Party. Hence the Complainant sought for compensation for the damages and loss occurred and spent by him to the subject vehicle.

The contention of the 1^st Opposite Party was that on assurance that the Complainant had sufficient earning they had entered into a Loan Agreement on 27.05.2015. With regard to Insurance Policy, the Complainant had engaged Mahindra Insurance Brokers Ltd to avail the same and it was specifically instructed to the Complainant to approach the said Company, hence they were no way connected with the insurance policy and the Company dealing with the Insurance Policy is a different and separate legal entity. Having failed to follow with the said company for Insurance Policy, the Complainant had filed a vexatious complaint against them. They had not indulged in any deficiency of service. Hence they were not liable to pay any compensation.

The Contention of the 2^nd Opposite Party was that merely a debit entry shown in the Statement of accounts for insurance policy by the 1^st Opposite Party on 27.05.2015 it cannot be assumed or presumed that they were approached for insurance or that premium was actually paid to them on that date or that any insurance was actually concluded and taken with them on that date. Only on remittance of premium they could issue insurance policy. They had received premium of Rs.7494/- in respect of the subject vehicle of the Complainant, only on 17.12.2015 on which the policy was issued with effect from 14.12.2015 upto 13.12.2016, hence they were not liable for loss/damage occurred prior to 14.12.2015. Until receipt of premium they cannot issue any policy as the same is barred under Section 64 UM of Insurance Act from assuming any risk. The exact date of loss was not mentioned in the complaint and there was no reason for not asking the insurance policy from May 2015 to December 2015 from the 1^st Opposite Party, failure to do so shows the reckless conduct of the Complainant, if he would have followed up with 1^st Opposite Party the subject vehicle would have covered from May 2015 itself. They have not received any premium on 27.05.2015 hence no liability on them and there was no deficiency in service on their part.

On discussions made above and on perusal of the exhibits marked in support of the Complaint and Written Versions of the Opposite Parties 1 and 2, it is clear from Ex.A-2 the Statement of Accounts dated 11.12.2015 issued by the 1st Opposite Party, a sum of Rs.7497/- was debited from the loan account towards Insurance Policy and had mentioned that the Insurance Policy covering the period 23.05.2015 to 23.05.2016 with the 2^nd Opposite Party and in the 2^nd Page of Ex.A-2 it was clearly mentioned that the Insurance Premium of Rs.7497/- shall be payable on 27.05.2015. Having deducted a sum of Rs.7497/- towards Insurance Policy to be covered from 23.05.2015 to 23.05.2016 by the 1^st Opposite Party, the Insurance Policy was not provided to the Complainant, by the 1^st Opposite Party. Even when the damages caused to the subject vehicle, the 1^st Opposite Party had failed to provide the Insurance policy in order to claim compensation from the 2^ndOpposite Party, when the Insurance Policy was provided belatedly it was found the Insurance Coverage was only from 14.12.2015 to 13.12.2016, which was subsequent to the damages caused to the subject vehicle.  Hence the contentions of the 1^st Opposite Party that the Complainant had been instructed to approach another company who is dealing with insurance policies and which is a separate legal entity, are not legally sustainable, as the 2^nd Opposite Party had clearly contended that the insurance premium was received from the 1^st Opposite Party only on 17.12.2015 in respect of the subject vehicle and from Ex.B-1 the Premium Receipt dated 17.12.2015 marked by the 2^nd Opposite Party to prove that the premium amounts received from the 1^st Opposite Party. Further from E.A-1 Legal notice dated 04.01.2016, it was clearly mentioned that the Insurance Policy was found to be provided after the claim made to the 1^st Opposite Party on the damages caused to the subject vehicle due to rain, though Ex.B-2 the reply notice to the Legal Notice sent on 01.03.2016 by the 1^st Opposite Party to the Complainant’s Advocate, it was admitted that deduction of insurance premium amount was made by them. Thus, the duty is cast upon the 1^st Opposite Party to ensure the subject vehicle under Loan Agreement was covered with insurance policy during the Loan period and as a Financier, the Original Insurance Policy should have been provided to them and not to the Complainant, which the 1^st Opposite Party had failed to obtain the same and provide a copy of the Insurance Policy to the Complainant. Hence we hold that the 1^st Opposite Party by not paying the Insurance Premium in time and by not covering the policy of the subject vehicle as assured from 23.05.2015 to 23.05.2016, had committed gross negligence to the Complainant, which resulted in the damages caused to the subject vehicle due to rain during the first week of December 2015 and the same could not be claimed by the Complainant, as the insurance policy was not under coverage. Further as the Insurance Policy was not under coverage with the 2^nd Opposite Party at the time of damages caused to the subject vehicle of the Complainant and the insurance premium was found to be paid only on 17.12.2015 and the Insurance policy of the subject vehicle was covered from 14.12.2015 to 13.12.2016, the 2^nd Opposite Party is no way liable or responsible in any manner, as alleged by the Complainant. Therefore, we are of the considered view that the 1^st Opposite Party had committed deficiency of service and caused mental agony to the Complainant and as against the 2^nd Opposite Party the Complaint is dismissed. Accordingly Point No.1 is answered.

Point Nos.2 and 3:-

     As discussed and decided Point No.1 against the 1^st Opposite party, the 1^st opposite party is liable to pay a sum of Rs.2,00,000/- towards compensation for the damages and loss occurred to the vehicle of the Complainant, bearing Registration No.TN-11-2180, of the negligent act of the 1^st Opposite Party and to pay a sum of Rs.25,000/- towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.3,000/- towards costs, to the Complainant. And the Complainant is not entitled for any other relief/s. Accordingly Point No.2 and 3 are answered.

In the result the Complaint is allowed in part. The 1^st opposite party is directed to pay a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) towards compensation for the damages and loss occurred to the vehicle of the Complainant, bearing Registration No.TN-11-2180, of the negligent act of the 1^st Opposite Party and to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) towards deficiency of service and mental agony caused to the Complainant, along with cost of Rs.3,000/-  (Rupees Three Thousand Only) towards costs, to the Complainant, within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of receipt of this order till the date of realisation.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 14^thof October 2022. 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	14.01.2016	Copy of Legal Notice
Ex.A2	27.05.2015	Copy of Insurance Amount collect (Receipt)
Ex.A3	14.12.2015	Copy of Certificate of Insurance from the 2nd Respondent
Ex.A4	-	Copy of Letter from the 1st Respondent loan amount sanctioned
Ex.A5	15.12.2015	Copy of Repair charges

 

 

List of documents filed on the side of the 1^st Opposite Party:-

 

Ex.B2	04.01.2016	Copy of the Legal Notice issued by the Complainant to the Opposite Parties
Ex.B3	01.02.2016	Copy of the Reply Notice issued by the 1st Opposite Party to the Complainant

 

List of documents filed on the side of the 2^nd Opposite Party:-

 

Ex.B1

17.12.2015

Copy of Premium Receipts

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT