State Consumer Disputes Redressal Commission
Branch Manager, M/S. Magma Fincorp Ltd. vs Prasant Kumar Patel on 22 June, 2020
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
FIRST APPEAL NO. 483 OF 2015
(From an order dated 9.9.2015 passed by the District Forum,
Sambalpur in C.C. No. 6 of 2011)
Branch Manager,
M/s Magma FinCorp Ltd.,
Samaleswari Complex, Sambalpur,
Bhubaneswar Branch Office,
At - Nirmal Plaa, 1st Floor, Forest park,
Bhubaneswar - 9, Dist - Khurda
... Appellant
Vrs.
1. Prasant Kumar Patel,
S/o Late Maheswar Patel,
At - Ramtireimal,
Ps - Kuchinda,
Dist - Sambalpur
2. Reliance General Insurance Co.Ltd.,
Branch Office at 38 - B,
8th Floor, Jawaharlal Nehru Road,
Kolkata - 700071
... Respondents
____________
For the appellant : M/s R.K.Pattnaik & Associates
For respondent No.1 : None
For respondent No.2 : M/s G.P.Dutta & Associates
_____________
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P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT
AND
DR. S.MOHANTY, MEMBER
DATED THE 22nd JUNE, 2020
ORDER
DR. D.P. CHOUDHURY J., PRESIDENT This appeal is directed u/s 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the order dated 9.9.2015 passed by the learned District Forum, Sambalpur in C.C. No. 06 of 2011 wherein the District Forum has directed opposite party No.1 to pay to the complainant Rs.25,000/- towards compensation along with pendentlite interest @ 18% per annum from the date of claim filed before the O.Ps till the date of payment.
2. Appellant representing Magma FinCorp Limited was OP No.1 whereas respondent No.1 was the complainant and respondent No.2 was OP No.2 before the learned District Forum. Hereinafter the parties to this appeal shall be referred 3 to with reference to their respective status before the District Forum.
FACTS
3. The unsworn details of the case of the complainant is that complainant approached OP No.1 for finance to purchase a Maruti Omni car in the month of June, 2007. On being financed by OP No.1, on 22.6.2007, he purchased the car and it was duly registered vide registration No.OR-15-L-3846. It was registered for private use. As per loan agreement, OP No.1 asked the complainant to insure the vehicle since it was purchased and therefore the complainant insured the vehicle on the same day with National Insurance Company Limited. This insurance was valid till 21.6.2008. Since EMI and insurance per month was demanded by OP No.1, the complainant used to pay Rs.5,622/- per month. For the period of 2008 - 2009 complainant has no any knowledge as the OP No.1 was looking after the aspect of the insurance. Again OP No.1 insured the vehicle with OP No.2 4 on behalf of the complainant by paying premium being valid from 22.6.2009 to 21.6.2010.
4. It is alleged inter alia that on 7.2.2010, the vehicle met with an accident and the parts were damaged. OP No.2 sent the surveyor for inspection of the vehicle. Since the claim of the complainant was not settled within time, the complainant got the vehicle repaired in the garage of M/s Odissey Motors Pvt.Ltd and paid Rs.9,999/- from his pocket. After pursuing the OPs to settle the claim, letter dated 10.1.2011 was issued by the Claims Officer of OP No.1 intimating that his claim has been repudiated on the ground that the vehicle insured with them was said to be a private vehicle as per registration certificate but as per the policy the vehicle was booked under the commercial package. As OP No.1 was duty bound to provide insurance coverage of the vehicle, the complainant was kept in dark whether the vehicle was registered as commercial vehicle or not. According to the complainant the repudiation of the claim without going through the registration certificate is 5 deficiency of service on the part of OP No.2. So the complainant filed the complaint claiming compensation from the OPs.
5. OP No.1 filed written version admitting about the purchase of the vehicle on hire purchase basis. The case of the OP No.1 is that the vehicle was financed by OP No.1 under the category of FTB i.e. commercial and accordingly, insurance premium was submitted for covering commercial vehicle. Likewise the insurance certificate issued by OP No.2 for the period from 22.6.2009 to 21.6.2010 was handed over to the complainant in due time. When the vehicle was taken for commercial use, it should be registered as commercial but for his personal gain he registered the vehicle as private by paying less tax and cheated the Government authorities. Even after receiving the insurance certificate the complainant has never asked for changing of insurance policy from commercial to private. So OP No.1 is not responsible for any deficiency in service. Apart from this, it is stated in the written version that 6 the complainant is debtor and OP No.1 is a creditor and such relationship cannot come under the consumer dispute under the Consumer Protection Act. Apart from this, in no way OP No.1 being the financer is responsible for settlement of the claim. It is the insurer solely responsible for repudiation of the claim. So, OP No.1 denied his liability.
6. OP No.2 filed separate written version refuting the allegations made in the complaint. It is the case of OP No.2 that policy of insurance covering from 22.6.2009 to 21.6.2010 for the vehicle in question was made with OP No.2 insurance company. Further, it is stated that OP No.2 is not aware of the lodging of any claim for the vehicle OR - 15- L 3846 and as such the repudiation of the claim by OP No.2 does not arise. So the claim against OP NO.2 is not maintainable. FINDINGS OF DISTRICT FORUM
7. The learned District Forum after hearing both the parties and after going through all the documents passed order 7 directing opposite party No.1 to pay to the complainant Rs.25,000/- towards compensation along with pendentlite interest @ 18% per annum from the date of claim filed before the O.Ps till the date of payment.
SUBMISSIONS
8. Learned counsel for the appellant submitted that the learned District Forum has passed order contrary to law and weightage of evidence on record. The learned District Forum should have considered the terms and conditions of the agreement and as such OP No.1 has not made any deficiency in service and thoroughly has complied the terms and conditions. Learned District Forum has committed error by ignoring the written version filed by the appellant. The learned District Forum ought to have understood the role of the financer and the role of the insurer. Since the insurance claim has been repudiated, it is for the learned District Forum to fix up responsibility with OP No.2 but not with OP No.1. It is further submitted by the learned counsel for the appellant that there is 8 no evidence on record to show the deficiency of service on the part of OP No.1 and as such learned District Forum without understanding the type of service rendered by OP No.1 has exonerated OP No.2 from the liability but fixed up entire responsibility on OP No.1 towards deficiency of service and unfair trade practice which OP No.1 has never committed. Further, it is submitted by the learned counsel for the appellant that the complainant is a borrower and OP No.1 is the lender and as such the relationship cannot be agitated before the Consumer Forum. In toto, it is submitted to allow the appeal and set aside the impugned order.
9. In spite of notice, respondent No.2 did not appear and summon against him is made sufficient.
POINTS FOR DISCUSSIONS
10. The main point for consideration in this case is whether the complainant has proved deficiency of service on the part of the OPs.
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11. Perused the evidence on record, impugned order and considered the submission of learned counsel for the appellant. It is an admitted fact that the complainant has purchased Maruti Omni car being financed by OP No.1. It is not in dispute that the vehicle in question was insured for the relevant period i.e., 2009 - 2010 with OP No.2.
DISCUSSIONS POINT NO.1
12. It is not disputed that the claim was repudiated and the vehicle in question met in an accident during the currency of insurance policy of the vehicle. It is not in dispute that the vehicle was insured with OP No.2.
13. The copy of the claim form shows that the complainant has made claim before OP No.2 Reliance General Insurance Company Ltd. The copy of repudiation letter shows that they are only to facilitate the settlement of the claim. The order of repudiation of claim has not been filed by the complainant. But the learned District Forum has observed in the order that on 10 10.1.2011 the Claims Officer of OP No.1 intimated that OP No.2 has repudiated the claim on the ground that though the vehicle was registered as private vehicle but the policy bond issued shows that the vehicle was under commercial package policy. We are afraid to observe that when the copy of letter dated 10.1.2011 as stated above is simply a letter of OP No.1 stating that the settlement of claim lies with OP No.2, how the learned District Forum believed that the claim has been repudiated by OP No.2. Apart from this, OP No.2 in their written version has clearly stated that they are not aware of lodging of claim over the vehicle bearing Registration No. OR - 15-L-3846. So there is no cause of action for the complainant to lodge a complaint before the Consumer Forum. The learned District Forum has misplaced this aspect while appreciating the case of the complainant.
14. We find the complainant has filed copy of the bill where the vehicle was repaired, copy of the insurance policy for 2007
- 2008 and copy of the insurance policy for 2009 - 2010.It 11 appears from the copy of the National Insurance Company Limited that the vehicle was insured with National Insurance Company Limited for the year 2007 - 2008 as a private vehicle. The copy of the policy of OP No.2 for the period from 22.6.2009
- 21.6.2010 shows that policy stands in the name of the complainant but it is not found from the appropriate column whether it is private or public and it appears, it is (NA) not available. However, the complainant has not proved that for the concerned policy period the vehicle was insured as private vehicle. It may not be out of place to mention that complaint has insured the vehicle during 2009-2010 with OP No.2 but not OP No.1/appellant. When the vehicle has not been properly insured and OP No.2 also denied about the receiving of any claim petition for the concerned vehicle and the OP No.1 clearly stated that he is only financer and insurer is solely responsible, the complainant has failed to prove that there is deficiency of service or unfair trade practice on the part of the OPs.
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15. When the deficiency of service or unfair trade practice on the part of the appellant or respondent No.2 are not proved, the conclusion arrived by the learned District Forum is illegal and improper. On perusal of the impugned order, it appears that only at finding portion the learned District Forum discussed about the responsibility between OP No.1 and OP No.2 without mentioning about role of the complainant. It may be remembered that when the complaint is to be decided, it is for the complainant to prove the case, of course can also take the assistance of the District Forum to call for the documents if he or she is not able to procure the documents from the concerned authorities.
16. Be that as it may, the order of the learned District Forum has misplaced the material on record and has landed a wrong conclusion that the appellant is solely responsible to pay the compensation. Point No. 1 is answered accordingly. 13 CONCLUSION
17. In view of the aforesaid discussion, we are of the opinion that the order of the learned District Forum by directing OP No.1 to pay to the complainant Rs.25,000/- towards compensation along with pendent lite interest @18% per annum from the date of claim filed before the OPs till the date of payment is illegal, improper and hence they are set aside.
18. In the result, the appeal is allowed. No cost.
Free copy of this order be supplied to both the parties. Statutory dues, if any, be refunded to the appellant. DFR be sent back forthwith.
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(Dr.D.P.Choudhury J) President I agree.
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(Dr.S.Mohanty) Member Cuttack Date:- 22.6.2020 14