PER: SRI SATISH KUMAR PANIGRAHI, PRESIDENT
The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Party (in short O.P.).
The complainant is the owner to the Truck/Tripper of Tata Motors made LPT 3118 TC BS III, 8X2, bearing Registration No. OD-07-AJ-7972 having chassis No. MA466412B2D08615 and Engine No. HD63119058 and was purchased with the finance of Sri Ram City Finance company. The same was insured at O.P. vide Policy No. P0023400020/4103/100235 dated 13.06.2022 validity up to 12.06.2023. The said vehicle was handed over to Dilip Kumar Ram, s/O Mangar Bhuiya, resident of vill/p.O: Bariyath, Sirsi, Ps: Hazaribagh, Dist: Hazaribagah Pin: 825402, Jharkhand, Adhar No. 6958 6697 5286 under an agreement dated 18.04.2022 for plying the vehicle for commercial purpose. Unfortunately Dilip Kumar Ram has taken away/stolen the above said vehicle from, 15.04.2022, his where about are not known to the complainant even at his known address. But for the reasons of his illegal acts the complainant has lodged an FIR on 15.12.2022 for legal action under sections 378, 405, 406 and 420 IPC before IIC, Golanthra for the crime of Dilip Kumar Ram and for recovery of the said vehicle. After lodging the FIR the complainant has approached the O.P. for the insurance claim. Accordingly the agents of O.P. has reached to the place of complainant and collected relevant documents on 20.12.2022 for early settlement of the claim so that the complainant can pay the entire EMIs to finance of Sri Ram City Finance Company at an early date. Inspite of telephonic contacts to the O.P. they did not respond positively, avoiding to pay on one ground or order. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P. to pay assured amount of Rs.11,00,000/- and Rs.5,00,000/- towards compensation in the best interests of justice.
3. The O.P. filed written version through his advocate. It is stated that the averments made by the complainant are not true and correct, and hence the complainant is put to strict proof of the same. The above case is not maintainable for non-joinder of financer of the alleged vehicle OD-07-AJ-7972. Hence the case suffers for non-joinder of necessary parties and the case is not maintainable and liable to be dismissed. Mr. R. Prakash Rao bought motor insurance policy from the Magma General Insurance Company vide policy No.P0023400020/4103/100235 for vehicle TAATA LPT 3118 TC BSIII8X2 TS./TIPPERE with Reg. No.OD-07-AJ-7972 for the period from 13.06.2022 to 12.06.2023. The complainant’s case is not maintainable as he has been using the Trucks/vehicles for commercial purposes including the case vehicle OD-07-AJ-7972. He was knowingly handed over the above alleged vehicle to one Dilip Kumar Ram of vill/P.O: Bariyuath, Sirsi, within Hajaribagh P.S/District: Jharkhand by executing an agreement with the above said Dilip Kumar Ram on 18.04.2022 for plying the above alleged vehicle for commercial purpose, hence the complainant is not a consumer under the C.P.Act, and the present dispute is also not maintainable under the C.P.Act. The O.P. has executed an agreement with the above Dilip Kumar Ram on 18.04.2022 and handed over the physical possession of the above vehicle to him without the knowledge of the financer, and after handed over possession of the above vehicle. The complainant has averrwed in para 3 about the theft of the above alleged vehicle on 15.06.2022. Soon after the above incident the complainant has not taken any steps to lodges a complaint before the concerned police station or also did not choose to give intimation to the Financer or to this O.P. soon after the incident. After long lapse of more than six days of the alleged incident the complainant has lodged FIR before Golanthara P.S. on 20.12.2022 and for that the present case is not maintainable as per the contact of the insurance policy and hence the same is liable to be dismissed. After the accident was intimated to the company on 22.12.2022, the Company immediately appointed a surveyor on the same day to conduct spot survey. The company had also appointed investigator smart investigations on 22.12.2022. The appointed investigator velocity Investigation vides its report dated 10.01.2023 apprised to the company as below:-
“As reported by the insured, that his vehicle TATA LPT 3118 was handed over to one Delip Kumar Ram s/o Mangar Bhuiya of Hazaribagh, Jharkhand on lease basis exciting a lease agreement executed on 18.04.2022. Lease taken away the vehicle and did not pay monthly lease amount from very next month May 2022, When insured demanded the monthly lease amount, he moved to an unknown place by taking the vehicle and was also not contactable. Insured tried to trace him by visiting his place but he was not traceable, and finally the insured felt that his vehicle was stolen by lessee”.
As per the exclusion clause of the insurance contract, the present claim is not maintainable as the complainant has not been intimated about the handover of the above vehicle to the Financer or has not intimated the same to this O.P. There is a clear violation of one of the terms and conditions of motor insurance policy as the insured had voluntarily handed over the vehicle to Dilip Ran through execution of lease agreement and later Dilip Ram absconded with the vehicle for which FIR has been filed under Section 406 which is criminal br3ach of trust and not theft. It is not covered under perils mentioned in condition 1 of the policy as such the Company, exploring their rights, repudiated the claim vide repudiation letter dated 20.01.2023 stating the condition violated vis-à-vis repudiation. The complainant has not approached with clean hands and has deliberately suppressed the material evidence, and has concealed the truth for the purpose of the claim, and hence the complainant is not entitled for any such relief. The allegations of deficiency of service and unfair trade practice leveled against the O.P. are all false and baseless and the same is not maintainable. Hence the O.P prayed to dismiss the case.
4. On the date of hearing the advocate for the O.P. is present. The complainant found absent since long and not taking any steps. The complainant is the owner to the Truck/Tripper of Tata Motors made LPT 3118 TC BS III, 8X2, bearing Registration No. OD-07-AJ-7972 having chassis No. MA466412B2D08615 and Engine No. HD63119058 and was purchased with the finance of Sri Ram City Finance company. The same was insured at O.P. vide Policy No. P0023400020/4103/100235 dated 13.06.2022 validity up to 12.06.2023. The said vehicle was handed over to Dilip Kumar Ram, s/O Mangar Bhuiya, resident of vill/p.O: Bariyath, Sirsi, Ps: Hazaribagh, Dist: Hazaribagah Pin: 825402, Jharkhand, Adhar No. 6958 6697 5286 under an agreement dated 18.04.2022 for plying the vehicle for commercial purpose.
This Commission has relied upon a citation passed by Hon’ble National Commission, New Delhi in Gurbakash Logistsic India versus Action Construction Equipments ltd. And another 2012 (3) CPR 227 such as:- “Commercial users cannot maintain consumer complaint”. And also another citation passed by National Commission, New Delhi in Vijaya Kumar versus Indusind Bank 2012(3) CPR 242 such as:- “Dispute between parties relating to commercial purpose are excluded under C.P.Act”.
The case in hand attracts the Doctrine of clean hands. Thus, one who seeks the aid of equity must come into Court with clean hands. Hence a clear inference can be drawn that, the complainant has not approached the Commission in clean hands. The very law is laid down by the Hon’ble Apex Court of India in Ramjas Foundation & Anr. v. Union of India & Ors. Civil Appeal No.:6662 of 2004 disposed of on November 9, 2010.
Therefore, in the above circumstances and considering the ratio decidendi in above cases, the case is not maintainable in the eye of the law and hence dismissed against the opposite party. No cost.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
Pronounced on 22.02.2024
