OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.34/10
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3) Md Jamatul Islam - Member
Sri Biswajit Mahanta -Complainant
S/O- Late Basanta Kumar Mahanta
R/O- Maligaon Central Gotanagar,
Guwahati-11. P.O.Jalukbari,
District: Kamrup,Assam
-VS-
1) The Reliance General Insurance - Opp.Parties
Anil Dhirubhai Ambani Group,
Represented by the General Manager/Branch
Manager, Guwahati Branch,4th Floor,
Dihang Arcade, G.S.Road,
Tarun Nagar, Guwahati-5.
2) Abhishek Motors Pvt.Ltd.
Represented by General Manager,
Adabari , Guwahati,
District Kamrup(Metro), Assam
3) The Branch Manager, HDFC Bank Ltd.,
Rukminigaon Branch,Guwahati,
Guwahati,Assam
Appearance: Ld.advocate Mr. Kulendra Bhatta for the complainant.
Ld.advocate Mr.P.Chetia for the Opp.Party no.3. but none for Opp.Party No.1 & 2.
Date of argument - 25.07.2018
Date of judgment - 13.08.2018
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Biswajit Mahanta was admitted as a case u/s 12 of Consumer Protection Act ,1986 and notices was served on all the opp.parties. Opp.Party No.1 & 3 filed written statement separately. The case against Opp.Party No.2 Abhishek Motors is proceeding on exparte. The complainant filed his evidence on 29.6.11 and he was cross – examined by Opp.Party No. 1 & 3. One, Sri Samrat Baruah filed evidence for Opp.Party No. 1 and he was cross- examined by complainant side on 25.4.14 , but his further cross was reserved due to some circumstances and thereafter several adjournment was given to Opp.Party No. 1 to produce Opp.Party No. 1 for further cross-examined , but they unable to produce the said witness for further cross-examination even after getting several adjournments and later on the petition of Opp.Party No.1 Vide No.612/15. The evidence of O.P.W. ,Sri Samrat Baruah was cancelled giving chance to Opp.Party No. 1 to file fresh evidence , but after getting several adjournment Opp.Party No. 1 did not file evidence of any witness and likewise Opp.Party No.3 also failed to file evidence even after taking several adjournment and in later stage Opp.Party No. 1 defaulted to appear in this proceeding and accordingly vide this forum’s order, dtd. 9.1.18, the case against Opp.Party No. 1 is proceeding on exparte; and thereafter date was fixed for filing written argument by the complainant and Opp.Party No. 3 and on 22.2.18 ld.advocate Mr.M.K.Bhatta filed written argument for the complainant, but Opp.Party No.3 declined to file written argument and accordingly case was fixed for oral argument and on 25.7.18 we have heard oral argument of ld advocate Mr.K.Bhatta for the complainant and of ld.advocate Mr.P.Chetia for Opp.Party No.3 and today we deliver the judgment which is as below.
2) The case of the complainant in brief is that the vehicle of the complainant (Tata Indica car) bearing registration No. AS01-AF-0712 which was purchased on financed by HDFC Bank Ltd. and insured with Opp.Party No.1 , Reliance General Insurance, Guwahati Branch vide policy No. 1505782311005304 which was effective from 30.9.08 to 20.9.09 , met with an accident on 27.4.09 at about 1 A.M. through N.H.31 at village Deoduar under Kamalpur P.S. while it was driving from Baihata Chariali to Guwahati as a result of it struck with a truck bearing registration No. AS 01/Y-5999 and got damaged and he informed the Kamalpur police about the accident and they registered a case vide G.D.E.No.781 dtd.27.4.09 and they also issued report about the accident and he also informed Opp.Party No.1 about the accident and Opp.Party No.1 about the accident and Opp.Party No.1 side sent surveyor to inspect the vehicle who inspected the said car and submitted the record on 29.4.09 and the MVI also submitted report about the damage.
i) Right (F) bumper/Bornet /Headlight side render and Front Glass and vision glass broken and damaged complete body affected .
ii) Right door F.I.R.with panel board damaged.
iii) Engine gear box and Radial /Dynamo damaged.
iv) Chassis framed/ steering system damaged.
v) A/C compressure damaged and Front wheel arms and suspension damaged.
He filed claim on 2.5.09 before Opp.Party No.1 and the surveyor of Opp.Party No.1 instructing him to bring the vehicle to nearest repairing centre of Tata Motors i.e. premises of Abhishek Motors Pvt.Ltd. at Adabari and he brought the vehicle accordingly on 2.5.09 which was accepted by Opp.Party No.2 for repairing his job slip dtd. 2.5.09 and Opp.Party No.2 for taking more than 7 months in repairing the vehicle and issued a bill dtd. 19.2.2010 in proforma voice to the complainant as well as Opp.Party No.1 for releasing the vehicle and then he asked Opp.Party No.1 to pay the repairing charge to Opp.Party No.2 and release the vehicle , but Opp.Party No.1 & 2 both collusively deferring in settling his claim and Opp.Party No.2 has not released the vehicle in his favour. He did not instructed Opp.Party No.2 to change all the parts mentioned in proforma in voice, The bill amount which was Rs.2,29,354.52/- are excessive bill, but Opp.Party No.1 has not re-embarsed the repairing charge to Opp.Party No.2 and as a result , he suffered a loss of 17,000/- till filing of the complaint and for not releasing the vehicle he has not been able to pay EMI regularly to the HDFC and he is liable to pay RMI to 17,000/- to the bank for last 9 months , although he has not been able to using the said vehicle and as such Opp.Party No.1 is laible to pay the repairing cost to Opp.Party No.2 by their mutual agreements and consent and therefore, Opp.Party No.1 & 2 jointly liable to pay the full EMI’s to the bank, but Opp.Party No.1 has not taken initiative to pay the repairing charge to Opp.Party No.2 and the arrear EMI’s to his creditor and accordingly Opp.Party No.1 & 2 are liable to pay.
a) Expenditure for hiring other’s vehicle – Rs.70,000/-
b) Mental agony and inconvenience - Rs. 30,000/-
c) In E.M.I.@ Rs.7,200/-P.M. for 9 months- Rs.64,800/-
d) Bill of Opp.Party No.2 as repairing charge
to be paid by Opp.Party No.1- Rs.2,29,354.52/-
e) Up-to-date interest on the amount of compensation till realization of the amount @9% per annum -
Hence he prays to this forum to direct Opp.Party No.2 to release the vehicle immediately in his favour after settling the matter of payment of repairing cost that Opp.Party No.1 and also to pay Rs.70,000/- as expenditure for hiring their vehicle, Rs.30,000/- as compensation for causing mental agony to him and Rs.64,800/- as arrear EMI’s from 2.5.09 to 2.3.10 with interest @ 9% per annum.
3) The gist of the pleading of Opp.Party No.1 (the Reliance General Insurance Co.Ltd.) is that the maximum liability of them is o the extent of I.D.V. of the vehicle bearing registration No. AS-01/AF-0812 which is Rs. 3,20,000/- as per policy No. 1505782311005304 but they did not undertook liability to the extent of Rs.7,50,000/- as external by the complainant. Their surveyor surveyed the vehicle and quantified loss at Rs.1,27,542.37/- and they offered the said amount to the complainant. But the complainant denied to settle the claim on that amount. They had asked the complainant to submit the bills provided by Abhishek Motors , but he refuse to provide the same after receipt of the legal notice, they vide letter dtd. 27.4.2010 asked the complainant informed the complainant that without the original bills it would not be possible to reimburse and compensate the loss but the complainant thereafter never contacted them. They have not repudiated the claim of the complainant till 27.4.2010 and as such there is no deficiency on their part.
4) The pleading of Opp.Party No.3 namely, HDFC Bank is that the dispute is not a consumer dispute and there is no cause of action for filing the complaint against them. Emi is an essential part of agreement due to be continued with that is an essence of the agreement but if it is defaulted it becomes violation of the contract. The case against them is liable to be dismissed.
5) After perusing the pleading and evidence of the complainant and Opp.Party No.1, it is found that it is both sides’admitted fact that, the private vehicle of the complainant – an Indica Car of model Indica DLS VS-II bearing Chasis No.600142JSZPG2426 and Engine No. 4751D105JSZPG0 836 manufactured by Tata Motors Ltd. bearing registration No. AS-01AF 0812, which was purchased on being financed by HDFC Bank Ltd. (Opp.Party No.3) and which was insured with Opp.Party No.1 vide policy No. 1505782311005304 which was effective from 30.9.08 to 29.9.09 , met with an accident on 27.4.09 at about 1 A.M. while it was proceeding from Baihata Chariali to Guwahati at village Deuduar under Kamalpur P.S. as it struck with a truck bearing Registration No.AS-01/Y-5999 and got substantially damaged and the said vehicle was examined by the DTO Kamrup, and the police of Kamalpur P.S. also investigated about the accident and issued certificate dtd. 1.5.09 reporting about the accident. Both sides also admitted that, after the accident, the said vehicle was taken to the premises of Abhishek Motors Pvt.Ltd., Adabari, Guwahati (Opp.Pary No.2) for repairing and the said car was accepted by Opp.Party No.2 by issuing Job Card dtd. 2.5.09 and the vehicle was repaired by Opp.Party No.2 and Opp.Party No.2 also sent the bills to Opp.Party No.1 for payment, which is amounting to Rs.2,29,354/-, - but Opp.Party No.1 has not paid that bill. It is found that after the accident Opp.Party No.1 sent surveyor to survey the vehicle and he also submitted report quantifying the loss at Rs.1,27,542.37/- . It is also found that on the instruction of the Opp.Party No.1, the vehicle was brought to garage of Opp.Party No.2 and repairing was admittedly done there.
6) In this case the plea of the Opp.Party No.1 is that without submitting the original bills it would not be possible on their part to assess and re-imburse the loss suffered by the complainant . The second plea of the Opp.Party No.1 is that, the claim was not cashless one, but it is a cash loss arrangement as per policy and loss is to be re-imbursed on submission of original payment bills to them. In the cross examination the complainant states that, he has no documents to show that there was cashless arrangement with Opp.Party No.1. He also admitted that , he did not submit the original payment bills to Opp.Party No.1.
It is also found that the complainant, vide prayer No. e, , prays to this forum to direct Opp.Party No.1 to pay him Rs.2,29,354.52 as the repairing charge as bill submitted by Opp.Party No.2. This fact infers that, the arrangement was not cashless one , but it is a cash loss arrangement meaning hereby that on submission of original bills by the complainant, Opp.Party No.1 is liable to re-imburse the repairing charge to the complainant.
It is also found that,Opp.Party No.1 states that as the complainant had not submitted the original bills for repairing, it is not possible on their part to assess and re-imburse the loss suffered by the complainant ( repairing charge paid by the complainant). It is found that the complainant in his cross examination admits that he has not submitted the original bills of repairing charge paid by the complainant. It is found that the complainant in his cross examination , admits that he has not submitted the original bills of repairing charge to Opp.Party No.1 and Opp.Party No.1 also has not repudiated his claim. Thus, it is crystal clear that as the complainant has not submitted the original payment bills of repairing charge to Opp.Party No.1, they fail to settle the claim . As such we hold that in this stage, it cannot be said that Opp.Party No.1 by not settling his claim committed deficiency of service towards him. So in such backdrop we hold that the complainant has no cause of action against Opp.Party No.1 and Opp.Party No.2.
7) Because of what has been discussed as above, we hold that, the complainant has no cause of action for filing the present complaint against the opp.parties . Hence, the complaint against the opp.parties is dismissed on contest reserving the right of the complainant to get the expenditure, he had incurred in repairing his vehicle, re-imbursed by the Opp.Party No.1 by furnishing original bills and money receipts to them.
Given under our hands and seal on this 13th day of August , 2018.
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
