Date of filing:-03/08/2015.
Date of Order:-12/03/2018
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complaint No. 47 of 2015.
Pradeep Kumar Nepak, son of Kishor Prasad Nepak, Resident of W.No.9, V.S.S. Nagar, Bargarh Po/Ps/Dist. Bargarh ..... ..... ..... Complainant.
-: V e r s u s :-
The Branch Manager, TATA Motors Finance Ltd. TMFL, Sambalpur Branch, At. Second Floor Bajaj Towars, Po/Ps/Dist. Sambalpur (Odisha).
The Branch, TATA AIG General Insurance Company Ltd. Penisuja Business Park, Tower A. 15th Floor, Ganapatro Kadam Marg, Lower Parel, Mumbai- 400013.
..... ..... ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri S.K. Tripathy, Advocate with others Advocates.
For the Opposite Party No.1(one) :- Sri B.Panda, Advocate with others Advocates.
For the Opposite Party No.2(two) :- Sri A.K.Dash, Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.12/03/2018. -: J U D G E M E N T:-
Presented by Ajanta Subhadarsinee, Member(W):-
The Complainant has lodged this complaint U/s 12 of Consumer Protection Act-1986 alleging deficiency in service against the Opposite Parties. The gist of the complaint is as follows:-
The Complainant being an educated unemployed, for his livelihood has purchased a vehicle namely JET SILVER INDIGO ECS being financed by TATA Motors Finance Ltd., Sambalpur i.e. The Opposite Party No.1(one) at the price of Rs.5,53,527/-(Rupees five lakh fifty three thousand five hundred twenty seven)only on Dt.05/03/2014. The said vehicle was insured under TATA AIG GENERAL INSURANCE Company Ltd., i.e. Opposite Party No.2(two) on AWO secure private package policy at the premium amount of Rs.14,474/-(Rupees fourteen thousand four hundred seventy four)only and the policy was valid till midnight of Dt.06/02/2016. On Dt.27/02/2015, at midnight the vehicle of the Complainant was dashed from backside by the marriage procession vehicle, and the said vehicle has been damaged from both the back and front sides and also the side door. Then the Complainant has intimated the said fact to his dealer and the Opposite Party No.2(two), the Insurance Company and the visitors of the company visited the spot and the conditions of the vehicle. As per the direction of the Insurance Authority the Complainant took his vehicle to the dealer MAA SAMALESWARI AUTOMOBILE, SAMBALPUR the authorized workshop of the Tata Motors and repaired the same at the cost of Rs.33,960/-(Rupees thirty three thousand nine hundred sixty)only on Dt.05/03/2015 and the dealer has issued a retail invoice in that regard to the Complainant which was submitted before the Opposite Party No.2(two). On Dt.27/03/2015, the Opposite Party No.2(two) has deposited Rs.12,428/-(Rupees twelve thousand four hundred twenty eight)only in the account of the Complainant towards the cost of repairing of the alleged vehicle instead of the total repairing cost. As per the Complainant the alleged vehicle was under the Insurance Policy for which the Complainant has paid the installment amount time to time to the Opposite Party No.1(one) and also the policy premium to Opposite Party No.2(two) and he is a bonafide consumer being a policy holder. Then the Complainant has served a Pleader Notice Dt.11/05/2015 on the Opposite Parties calling upon them to pay the insurance amount in total and to compensate him for his suffering. But after receiving the notice the Opposite Parties remained silent. Hence the Complainant has filed this complaint.
Further the Complainant has contended that such act and conduct of the Opposite Parties are arbitrary and violation of the Insurance policy term, which amounts to deficiency in rendering consumer service towards the consumer/Complainant and the Complainant has suffered both mentally and financially. So the Complainant has sought for the direction of the Forum to direct the Opposite Parties to give Rs.1,50,000/-(Rupees one lakh fifty thousand)only from all count including litigation expenses besides the insurance claim amount for the damage of the vehicle.
The Complainant in his support relied upon the xerox copies of the following documents:-
The copy of Insurance Policy bearing No. 010107838800 issued in the name of the Complainant.
Certificate of Insurance and Policy schedule.
Retail invoice of repairing cost issued in the name of the Complainant by Maa Samaleswari Automobiles Dt.14/03/2015.
Office copy of the Pleader notice Dt.11/05/2015 with original postal receipts in the name of the Opposite Parties.
An affidavit filed by the Complainant Dt.16/02/2018.
Being noticed the Opposite Parties appeared through their counsels and have filed their written versions denying the allegation of the Complainant.
The Opposite Party No.1(one) in his written version contends that TATA Motors Finance Ltd is a renowned Asset Finance Company across India and widely acclaimed for its reputation and service. The petitioner approached him for availing a loan amounting Rs.3,48,000/-(Rupees three lakh forty eight thousand)only to finance an INDIGO ECS LX to which the Opposite Party No.1(one) agreed and the Petitioner has executed the vehicle loan cum hypothecation agreement with Opposite Party No.1(one) vide contract No. 50014974438 and the said loan was disbursed in the name of the Complainant.
The Opposite Party No.1(one) in his version contends that the Complainant does not become a consumer to attract the provision enumerated U/s 2(d) of Consumer Protection Act-1986, hence the complaint is not maintainable before the Consumer fora, and denies almost all the allegations contained in the complaint, so also the present dispute does not constitute a consumer dispute as there is neither any unfair trade practice adopted by the Opposite Party No.1(one) and the complaint is liable for rejection. Again in his version Opposite Party No.1(one) contended that the Complainant has defaulted in repayments within the prescribed time of several installments which violated the terms of the agreement and the transaction between the Parties governed under the Arbitration Act-1996 and Section 5 of the said Act bars the jurisdiction of any other court to adjudicate the dispute and Clause 23 of the loan cum hypothecation agreement clearly states that any dispute arising out of the agreement shall be settle by Arbitration Opposite Party No.1(one) again contended that the vehicle was insured by him through the Opposite Party No.2(two) as per the Insurance provision taken at the time of loan agreement and the Complainant has financed the said vehicle for commercial purpose.
Further the Opposite Party No.1(one) in his version contends that TATA Motors Finance Company is neither an Insurance agent nor any Insurance broker and the privily of contract is strictly between the Insurance Company and the insurer and the TATA Motors Finance Ltd's name is endorsed only as a Financer. Tata Motors Finance Ltd. can not play any role in processing of Insurance claim but only facilitates the processing for which it does not charge any consideration from the insurer and the insurer is solely responsible for the settlement of claim and related service, again there is no cause of action to file this petition against Opposite Party No.1(one) and there is no branch office of the Opposite Party at Bargarh.
Therefore Opposite Party No.1(one) prayed that the prayer and relief sought for by the complaint are not to be granted and hence liable to be rejected with exemplary cost. The Opposite Party No.1(one) in the support his contention relied upon the xerox copies of the following documents.
Copy of contract details vide contract No. 5001497438 Dt.14/02/2014 of Tata Motors Finance Ltd. with the Complainant.
Copy of repayment details by the Complainant as on Dt.31/08/2015.
Receipt information of TATA Motors Finance Ltd. Dt.31/08/2015.
Repayment Schedule Dt.31/08/2015.
Insurance details Dt.31/08/2015.
The Opposite Party No.2(two) i.e. TATA AIG GIC Ltd. in his version contends that the case of the Complainant is not maintainable in the eye of law and on the facts available on record and as such liable to be dismissed as per the provision of Sec 26 of the Consumer Protection Act-1986. It is submitted by Opposite Party No.2(two) that admissibility of any claim under the policy is governed by the terms and conditions of the policy, however it is denied that merely insurance of the policy entitles the Complainant to initiate legal action against the Opposite Party.
As per the version by Opposite Party No.2(two) after getting information regarding the accident of the said vehicle. Opposite Party No.2(two) deputed an independent surveyor duly licensed by IRDAI, Mr. Rabinarayan Tripathy to inspect the vehicle and to assess the loss sustained by the vehicle due to the alleged accident. Then the surveyor submitted his report before Opposite Party No.2(two) by assessing the net liability for an amount of Rs.12,428/-(Rupees twelve thousand four hundred twenty eight)only subject to terms of the policy and intimated the same to the Complainant, who accepted the same without any objection and authorized Opposite Party No.2(two) through EFT mandate Form to deposit the said amount in his bank account and accordingly the Opposite Party No.2(two) has deposited Rs.12,428/-(Rupees twelve thousand four hundred twenty eight)only in the account of the Complainant on Dt.27/03/2015, towards full and final satisfaction of the claim, without any protects and the Complainant is not entitled for Rs.33,960/-(Rupees thirty three thousand nine hundred sixty)only for the repair of the vehicle as per the invoice issued by the repairer Maa Samaleswari Automobile, Sambalpur.
Further the Opposite Party No.2(two) in his version contends that the liability of the Insurance Company is restricted to the survey report and the amount assessed by the surveyor and as per the terms and conditions of the policy and as per the Sec 64 UM of the Insurance Act-1938, the Insurance Company can not decide a motor claim without obtaining a survey report and the Opposite Party No.2(two) has also denied the allegation of the Complainant of servicing of the pleader notice upon him to pay the Insurance amount in total and to compensate him for his suffering and the Complainant has never suffered any financial loss and mental agony due to the negligence and deficiency in service by Opposite Party No.2(two) rather after receiving the legitimate claim amount from him the Complainant has dragged him to the court of law in order to made an illegal gain which is unjust and the Complainant has not come with clean hands before this Forum and has suppressed the meterial facts in orders to get an illegal claim.
The Opposite Party No.2(two) in his version has further prayed before this Hon'ble Forum not to made any award to the Complainant if any compensation cost and the complaint may be dismissed with cost under the provision of Sec 26 of the Consumer Protection Act-1986.
The Opposite Party No.2(two) in the support of his contention relied upon the xerox copies of the following documents:-
Copy of Insurance Policy in respect of the alleged vehicle bearing Regd. No. OD-17-B-9194 (2 sheets).
Copy of EFT Mandate Form Cum Claim Discharge note (one sheet).
Copy of Survey report Dt.16/03/2015 ( ten sheets)
Claim form submitted by the Complainant (2 sheet)
Retail invoice of Maa Samaleswari Automobiles (2 sheets)
Citations filed by Opposite Party No.2(two) through his advocate on Dt. 16/02/2018 (1 sheet)
Gone through the entire case record, pleadings of the parties and voluminous documents available in the record and citations filed and heard the matter from the parties, the forum found the issues likely to be decided in this case as follows :-
Whether the Complainant is a Consumer under the Opposite Parties as per the provision of Consumer Protection Act 1986 and whether the Complaint is maintainable before this forum ?
Whether the repudiation of claim of the Complainant by the Opposite Parties is justified and whether there is any deficiency in rendering service by the Opposite Parties to the Complainant ?
For what reliefs the Complainant is entitled for ?
Firstly, in answering Issue No.1(one) the Complainant has purchased the vehicle being financed by TATA Motors Finance Ltd., Sambalpur i.e. The Opposite Party No.1(one) at the cost of Rs. 5,53,527/-(Rupees five lakh fifty three thousand five hundred twenty seven)only on Dt. 05/03/2014, which is admitted by the Opposite Party No.1(one) also the Complainant has insured the said vehicle bearing Regd No. OD-17-B-9194 by paying the premium amount of Rs. 14,474/-(Rupees fourteen thousand four hundred seventy four)only bearing Insurance Policy No. 010107838800, which is a consideration money as per provision of Consumer Protection Act. 1986 and the insurance was within validity period and the accident took place on Dt. 27/02/2015 is also within the insurance period, which revealed from the documents. So also the Complainant was an educated unemployed person, plying the vehicle to earn his livelihood as averred in his Complaint was not disproved by the Opposite Parties in any manner, Hence as per the provision enumerated u/s 2 (d) of Consumer Protection Act. 1986, the Complainant is a consumer under the Opposite Parties and the Complaint is also maintainable before this forum.
Secondly, the Opposite Party No.2(two) has repudiated the claim of the Complainant on the ground that the report of the surveyor is the basis for settlement of a claim by the Insurer in respect of the loss suffered by the Insured. The Complaint reveals that the Complainant had intimated the dealer and Opposite Party No.2(two) about the accident of his alleged vehicle and the visitors of the Company visited the spot and the conditions of the vehicle. Then as per the direction of the Insurance Company i.e. Opposite Party No.2(two) the Complainant had repaired his damaged vehicle at M/s Maa Samaleswari Automoboles, Ainthapali, Sambalpur, i.e. The authorised workshop of TATA Motors and the expenditure of repair was Rs. 33,960/-(Rupees thirty three thousand nine hundred sixty)only which was submitted before the Opposite Party No.2(two) along with the retail invoice but the Opposite Party No.2(two) had deposited Rs. 12,428/-(Rupees twelve thousand four hundred twenty eight)only as per the assessment of the surveyor in the account of the Complainant for the cost of repairing of the alleged vehicle of the Complainant. It reveals from the documents that there is no signature of the Complainant available in the survey report which proved that in the absence of the Complainant the survey of the alleged vehicle was made by the surveyor, is not legal.
From the affidavit filed by the Complainant it is found that Opposite Party No.2(two) has taken the signature of the Complainant in the EFT form, where the amount was not mentioned and the Opposite Parties gave the complaint an assurance that they will pay the total amount. And in a good faith and compulsion the Complainant has put his signature there and also the Opposite Party No.2(two) has not met with the said evidence in the form of affidavit by filing any counter affidavit or taken any steps to deny the same.
The discussions made above as to the repudiation of the claim of the Complainant by the Ops on the ground stated is unjustified and is certainly a deficiency in rendering service to the Complainant.
Thirdly, in answering issue No.3(three) in the light of the discussion made above the Complainant is entitle for the relief claim and as per the decision of the forum for the just adjudication of the Complaint.
Delving deep into the matter and owing to the evidence available in the record and provision of Law the forum ordered that the Opposite Party No.1(one) TATA Finance Company is only the financer of the vehicle and is not responsible in this present case of Insurance dispute, so Opposite Party No.1(one) is exempted here, in this complaint from any liability.
O R D E R
The Opposite Party No.2(two) is hereby directed to pay an amount of Rs. 21,532/-(Rupees twenty one thousand five hundred thirty two)only the rest amount of repairing cost of the alleged vehicle with an interest @ 6%(six percent) per annum from the date of filing of this case till the actual date of payment to the Complainant along with Rs. 3,000/-(Rupees three thousand)only for mental agony and harassment and Rs. 2,000/-(Rupees two thousand) for litigation expenses to the Complainant within 30(thirty) days from the date of order, failing which the awarded amount shall carry @ 10%(ten percent) per annum till the actual date of payment.
Complaint allowed and disposed off accordingly.
Typed to my dictation
corrected by me.
(Ajanta Subhadarsinee)
M e m b e r(w).
I agree,
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
