Sri Baisnaba Charan Sahoo, Member - This is a complaint petition under Section 12 of CP Act filed by Mr Madan Mohan Moharana of village Khangarapali under the limits of Nayagarh District .The complainant in his complaint has prayed for following reliefs.
The OP No.1 be directed to refund the total cost of the bike to the complainant.
The OP No.1 be directed to bear the total interest grown and the capital due upon the complainant.
The OPs be directed to handover another new Bajaj Discover bike to the complainant.
Compensation of Rs 2,00,000/- on account of mental agony, harassment and emotional distress suffered by complainant due to negligence of opposite parties.
Litigation expenses which the forum may deem just and proper.
Any other relief the forum may deem just and proper.
The brief of the case is that the complainant purchased one Bajaj Discover Moter Cycle on 20.08.2011 from the showroom Bajapayee Bajaj, Odagaon through financial assistance from Bajaj Finance Ltd. The complainant insured his bike under National Insurance Company Ltd on 29.08.2011. The insurance was valid till 28.08.2012.
The complainant made initial payment of Rs 17,000/- in the show room at Odagaon on 20.08.2011. The rest amount was financed by Bajaj Finance Ltd. Subsequently Bajpayee Bajaj Branch at Odagaon was closed and all the transactions there after were made at Nayagarh Branch. The complainant paid Rs 4,950/- on 03.09.2011 in Odagaon Branch and Rs 9,925/- on 20.11.2011, 01.11.2011, 01.12.2011 and 15.05.2012 (Four installments) towards his installment. Total payment made by complainant is Rs 31,875/- for his bike.
On 24.12.2011 the complainant while going to Malasapadar, three unidentified persons armed with dangerous weapons attacked the complainant at Kenal Chhaka and snatched away his bike, one mobile and Rs 1,300/-. The complainant sustained grievous injury. The complainant also lodged FIR in the nearest Police Station, Bhanjanagar which registered a Case No 284/2011 on 24.12.2011.
After theft of the bike complainant approached the Bajapayee Bajaj (OP No. 3) and intimated the fact who advised him to go on depositing the installment.
The complainant also informed the matter to OP No. 1, 2 & 3 along with all relevant documents such as FIR Copy, RC Book purchased receipt in plain post. The claim form was also deposited by him before OP No. 1. The OP No 1 issued a letter to complainant on 10.08.2012 asking for police final report, original invoice of the concerned vehicle, original RC Book duly endorsed by the registering authority and duplicate key of the vehicle. The complainant could not submit the police final report as the same was not received from the police station and the RC book was not endorsed by the Registering Authority due to non-submission of Police Final report. The duplicate key was with the financing Agency. The complainant met the OP No. 1 personally and intimated the difficulties in submitting the documents asked for and wanted to submit the original money receipt. The OP No. 1 assured to wait till availability of final report and the claim will be settled automatically.
The Op No. 1 on dt 19.08.2013, 30.06.2013, 19.06.2013 and 15.05.2013 issued letters to the complainant to submit the documents failing which his case would be closed as no claim. After receipt of said letters the complainant submitted two applications in plain papers describing his inability for submission documents for non receipt of the documents.
On 16.05.2013 the OP No. 2 sent a letter to complainant to settle the installment dues which is growing day by day. On receipt of said letter from Op No. 2 the complainant sent a letter to OP no. 2 describing his difficulties. On 02.08.2014 the complainant received a letter from District Level Services Authority, Nayagarh to appear on 17.08.2014 in Lok Adalat. After inquiry the complainant came to know that a sum of Rs 62.000/- is pending outstanding for payment to Bajaj Finance Ltd. After getting this information the complainant wrote request letters to OP No 1 and 2 through registered post with AD on 20.08.2014 describing his problems. He complainant received no response from Ops though the said letter was received by them. He also came to know that his insurance claim has been dropped without any notice. Then he issued a pleader notice on 03.09.2014 to the Ops (1 & 2) to reopen his claim. On 24.10.2014 the complainant went to OP No. 1 with all documents such as RC Book with endorsement by RTO, Police final report, purchase invoice with medical certificate and made application to submit the documents for reopening his claim, but the senior Manager of Insurance Company (OP No.1) denied to receive the documents. Hence the complainant filed this complaint on 01.12.2014 with the prayer as mentioned above. He has filed his evidence on affidavit along with documents as per list and relied upon it.
The OP No. 1 ( National Insurance Company Ltd) filed his written version on 19.01.2015 and evidence on affidavit on 27.02.2015 along with list of documents through Advocate. He relied upon his evidence and documents filed. The OP No.2 ( Bajaj Finance Ltd) filed his written version on 29.01.2015 and evidence on affidavit on 12.03.2015 along with documents as per list through Advocate. The OP No. 2 relied upon his evidence and documents filed.
The OP No.3 (Bajapayee Bajaj) did not appear and file his written version though the notice of this Forum was duly served upon him. Hence he is set ex-parte on 23.12.2014.
The Op No.1 (Insurance Company) in the written version has stated that the company issued letters on dated 15.05.2013, 19.06.2013 and 30.06.2013 to submit documents , but the complainant failed to furnish the same. Lastly the company informed the complainant that due to non submission of documents the
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claim file has been closed. The OP No.1 also has stated that the case is barred by limitation and hence the Forum has no jurisdiction to hear this case. The OP No. 1 has prayed to drop the complainant against him.
The OP No.2 in his written version has stated that OP is a non Banking Finance Company under the provision of Indian Company Act, 1956. The complainant approached the OP for financial assistance to purchase a two wheeler (Bajaj Discover DTS-SI-ES). Considering his request the OP agreed to extend financial assistance of RS 46,680/-. As per mutual understanding an agreement was executed by the complainant. As per the agreement the loan amount to be recovered in 24 monthly installments @ Rs 1,945/-. The complainant did not pay his loan installments for which the OP No.2 issued a loan recall notice on 19.06.2014. The OP No. 2 also stated that they have no relation with the insurance company and they are only concerned about their finance. The OP No.2 is unnecessarily and unlawfully made party to this complainant which may be dropped in the present complaint.
On pleading of all the parties the following issues came up for consideration.
1. Whether the complaint is barred by limitation and liable to be dismissed ?
2. Whether the complainant is entitled to get his insurance claim of the theft vehicle?
3. Whether the OP No.1 is liable to pay interest accrued on the loan amount?
4. Whether the Op no.2 has any liabilities towards the insurance claim of complainant?
5. Whether the duplicate key of the vehicle is with OP No.2 ?
6. Whether the complainant is entitled to compensation for mental agony and litigation expenses ?
Findings
Issue No.1 : The complainant insured his vehicle with OP No.1 on 29.08.2011. His vehicle was stolen on 24.12.2011. He lodged FIR in nearest Police Station on the same day, Bhanjanagar. The theft was made on 24.12.2011. The complainant informed the OP No.1 about the theft of his vehicle and submitted FIR copy, claim form and RC particulars. In response of the claim of complainant, the OP No.1 issued a letter on 10.08.2012 asked for documents such as Police final report, original invoice of vehicle, original RC Book and duplicate key. But the complainant could not furnish the same saying that same documents are not received from Police Station and registration office. The OP No.1 issued several letters to complainant to furnish the required documents, but the complainant failed to do so because, the said documents were not received from police station and registration office. After collecting the documents the complainant submitted documents by registered post to OP No.1 on 24.10.2014. Prior to submission of documents by complainant the OP No.1 in his letter dated 29.08.2013 informed that the claim of complainant has been closed due to non-submission of documents. Hence the cause of action started from 29.08.2013 i.e when the last letter issued by OP No.1. Therefore there is no limitation of time in this complaint.
Issue No.2 : The vehicle of the complainant was insured under Op No.1 on 29.08.2011 and it was valid till 28.09.2011. The policy covers theft of the vehicle. The theft was made on 24.12.2011 within the policy period. The complainant lodged FIR in Bhanjanagar Police Station. Complainant informed all concerned about the theft of his vehicle. The complainant informed about theft of his vehicle on 15.05.2012 and submitted his claim form on 22.05.2012. On receipt of claim form OP No.1 issued a letter on dated 10.08.2012 to submit (I) Police final report (ii) RC Book duly enclosed by Registering Authority and duplicate key of the vehicle. But the complainant could not submit those documents because the same were not received by him from Police Satiation and Registering Authority. The OP No.1 issued letters on dt 15.05.2013 and 19.06.2013 to submit the necessary documents. For non-receipt of documents the OP also wrote a letter to complainant on 30.06.2013 to repudiate his claim due to non-receipt of documents. In spite of repeated letters issued by OP No.1 the complainant could not submit the documents. The OP No.1 finally closed the claim file on 29.08.2013 on the ground of non-submission of documents. After receipt of said letter the complainant requested for time to submit the documents in his letter dated 02.09.2013.
The complainant all along expressed his inability to furnish the documents as the final report of police was not received by him. The complainant has no control over it. The Police after receipt of FIR from complainant lodged a case under section 394 of IPC. After investigation by the Police, the case against three culprits viz, Jitendra Pradhan and two others was forwarded to the court of SDJM and the matter is under trial. The Police furnished their final report on 24.10.2014. After receipt of final report the complainant requested the OP No.1 to reconsider his claim but OP No.1 refused to receive the same.
It is a fact that there is no doubt about the theft of the vehicle. The Police system delayed the matter in issuing the final report which is beyond the control of complainant. For delay by the Police the complainant can not be blamed for furnishing the asked documents. The Insurance company (OP No.1) though being fully aware of the fact did not wait till receipt of final Police report and closed the claim file.
Here we don't find any fault with the complainant which was caused due the administrative system of Police Deptt. Hence the complainant is entitle to get his insurance claim on submission of required documents to OP No.1.
Issue No.3 : As explained in Issue No.2, the delay in payment of Insurance claim rests on submission of required documents by complainant. In the instant case the OP No.1 has not denied to pay the claim but asked for the documents as required for settlement of claim. The whole matter is delayed for non-submission of documents to OP No.1, thus no delay is caused by OP no.1. Hence we don't find any ground for any interest to be paid by OP No.1 on the claim amount.
Issue No.4 : The OP No.2 is a private financing company under Indian Company Act 1956. The OP provided a loan of Rs 46,680/- towards purchase of the vehicle on 08/09/2011 which to be recovered in 24 monthly installments. The OP No.2 has no relation regrading insurance of vehicle. According to clause 20 of loan agreement the borrower shall be solely responsible for insurance of the product including renewal of insurance. As per clause 23 of agreement the complainant has indemnified the BFL any loss/ thirty party claim arising out of and/or relating to use of the vehicle.
The complainant alleges that the duplicate key of the vehicle lwas with the Financing Agency but the OP No.2 has denied receiving the same. Here is no evidence from either side in thus regard. Hence it is not possible to arrive at any conclusion that who has kept that key.
The OP No.2 has cited one case reported in (1996) 45 SSC 704 where in it has been held that the Forums and Commissions are not entitled to modify the terms of agreements, which have been arrived at between the parties. As per the loan agreement there is no clause for any sort of compensation to the borrower for any eventuality. Hence the OP No.2 is not liable for loss/theft of the vehicle and the Op No.2 is unnecessarily made a party in this case.
Issue No.5 : As discussed in Issue No.2 the claim of insurance is delayed due to non-compliance of the requirements of Insurance Company (OP No.1). The Op No.1 nor Op No.2 are not responsible for such delay. Hence the complainant is not eligible for any compensation and litigation cost.
ORDER
The complaint is allowed in part. The OP No.1 is directed to revive the Insurance claim of the complainant and the complainant is to furnish the required documents for settlement of his claim within one ;month before OP No.1 who is to settle the insurance claim of complainant within three months . The OP No.1 is directed to pay the litigation cost of Rs.1000/-(Rupees One thousand) only to the complainant within the afore said period. The complaint against OP No.2 & 3 are dismissed.
The final order is prepared by us, corrected,
signed, sealed and pronounced in the open
Forum on this 26th March, 2015.
