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Commercial Automobiles Ltd. & Another v/s Sukhendra Singh & Another

    First Appeal No. 904 of 2008

    Decided On, 20 February 2018

    At, Madya Pradesh State Consumer Disputes Redressal Commission Bhopal

    By, THE HONOURABLE MR. JUSTICE S.D. AGARWAL
    By, PRESIDING MEMBER & THE HONOURABLE DR. (MRS.) MONIKA MALIK
    By, MEMBER

    For the Appellants: R.K. Dhote, J.S. Parmar, Advocates. For the Respondents: R1, M.S. Tiwari, R2, Preetima Shrivastava, Advocates.



Judgment Text


Dr. Monika Malik, Member

1. This is an appeal by the appellants/opposite party Nos. 2 and 3 against the order dated 14.12.2007 Passed by the District Consumer Disputes Redressal Forum, Rewa in C.C.No.49/2007, whereby the District Forum has directed the opposite party Nos. 2 and 3, jointly or severally, to give complainant a sum of Rs.3.5 lakh as compensation along with Rs. 1000/- as cost.

2. Briefly stated, the facts of the case are that complainant/respondent No.1 had purchased a truck on 29.6.2002 bearing registration No. MP-17 C-4677 from appellant No.1/opposite party No. 3 which was financed from appellant No.2/opposite party No.2. The vehicle was insured with the respondent No.2/opposite party No.1 the National Insurance Co. Ltd. for the period 30.6.2004 to 29.6.2005. The said vehicle was repossessed by appellant No.1/opposite party No.3 on 16.3.2005. The complainant/respondent No.1 subsequently deposited pending dues on 29.4.2005 (Rs. 2,33,702/- along with Rs. 5000/- repossession charges), thereafter the opposite party No. 2 intimated the RTO and Insurance Company (opposite party No.1) stating that they have no rights over the complainant's vehicle, but even after this, the said vehicle was still detained by them despite his letter dated 9.5.2005, for release of the said vehicle. On 15.5.2005, when the complainant was coming after attending family function, he noticed that his truck was in an abandoned condition near Mishra Petrol Pump at Allahabad Road, where it was brought by the employees of opposite party Nos. 2 & 3 and it was found upon investigation that that various parts of the vehicle were missing. Subsequently, the complainant lodged a police complaint and police seized the truck and upon preliminary investigation various important & valuable parts of the vehicle were missing. Subsequently, panchnama was prepared and accordingly the case was registered against the employees of opposite party No.3. The complainant got the vehicle repaired and had to bear repair cost, which the insurance company refused to redeem, on the ground that the alleged theft occurred when the vehicle was in possession of opposite party Nos. 2 and 3, for which the insurance company is not liable.

3. The opposite party No.1 insurance company resisted the complaint on the ground that in the instant matter criminal case under Section 406 of IPC has been registered and the theft and burglary thus occurred are not covered under the terms and conditions of the policy, therefore, the insurance company is not liable in the instant matter.

4. The opposite party No.2 resisted the complaint stating the after receiving pending dues from the complainant, they had handed over the possession of the vehicle as their rights over the vehicle ceased to exist, and since the vehicle was handed over to complainant, they are not responsible for the alleged theft and burglary.

5. The opposite party No.3 stated that they had never kept the complainant’s vehicle in their possession and they are merely dealers of the vehicle and the instalments deposited by the complainant, were handed over to opposite party No.2 by them. Therefore they bear no concern with an agreement with the complainant and opposite party No.2.

6. Heard learned Counsels for parties. Perused the record.

7. Learned Counsel for appellant No.1, Commercial l Automobiles stated that they had no relation with the finance of the truck, and they had never repossessed the said truck, and they are not responsible for the alleged theft that had taken place. The complainant has not given proof of the alleged missing of the parts from the repossessed vehicle.

8. Learned Counsel for appellant No. 2 Tata Motors Limited stated that after the complainant appropriated a sum of Rs. 2,33,702/- with the opposite party No.2, a sum of Rs. 6,298/- was refunded to him with regard to the repossessed vehicle. Subsequently, a letter dated 3.5.2005 was sent to RTO intimating that all dues have been cleared. It was argued that they had subsequently released the repossessed vehicle and they are not concerned with the alleged theft, as the vehicle was not in their possession, at the time of theft.

9. Learned Counsel for complainant/respondent No.1 reiterated that despite having paid all the dues, the vehicle was still detained by the opposite party Nos. 2 and 3 and they are responsible for theft which had taken place in the said vehicle.

10. Learned Counsel for respondent No.2 insurance company argued that criminal case under Section 406 of IPC has been registered and the theft and burglary thus occurred are not covered under the terms and conditions of the policy, therefore, the insurance company is not liable in the instant matter.

11. As we carefully peruse the evidence on record, there is letter dated 3.5.2005 (Exhibit P-6) wherein there is an acknowledgement by Tata Motors Limited that they have received all the payment which were due on the said vehicle and therefore their interest in the ownership ceases. The Exhibit 'P-7' confirms again the fact cited above, wherein there is a mention of Form-35 and stating that the Tata Motors Limited has received the entire dues amount against the 'Hire Purchase agreement' which is thus terminated. Exhibit 'P-7(2)' is a copy of Form-35. The complainant has lodged a complaint with the Station Officer, Police Station Civil Line, dated 9.5.2005 Exhibit 'P-8',wherein it is mentioned that the opposite party No.2 is not releasing the vehicle despite clearance of all dues on his part. The complainant has referred to have sent a legal notice to Tata Motors Ltd in this regard which is confirmed from the fact that Tata Motors Limited has replied vide letter dated 13.5.2005. The above discussion leaves no doubt that the complainant's vehicle was detained by the opposite party No.2, despite clearance of all dues.

12. The FIR and various other documents reveal that certain parts were missing of complainant’s vehicle. The Police had subsequently possessed the vehicle on 17.5.2005, and mentioned that certain parts of the vehicle are missing there is a reference that panchnama was subsequently prepared and there is a survey report on record by Surveyor & Loss Assessor A.S. Chauhan in this regard as well. There are various repair bills of ‘Agarwal Motors’ which have been annexed by the complainant to substantiate his submission.

13. In the wake of above discussion, there is no doubt that theft had taken place in the complainant’s vehicle and certain vehicle parts were missing regarding which the complainant had filed complaint against the employees of opposite party Nos. 2 & 3. It is a clear negligence on the part of the opposite party Nos. 2 and 3 for not releasing the complainant’s vehicle after obtaining all dues from him and when the ‘Hire & Purchase agreement’ was subsequently terminated. The alleged theft had taken place while the vehicle was still in possession of opposite party Nos. 2 and 3 (which operates and acts on the part of the opposite party No.2 at local level).

14. There is no doubt about this that the alleged theft had place in the said vehicle, when it was repossessed by the financer. Thus, the respondent No.2 – Insurance Compan

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y is not liable to pay the damages in present facts and circumstances of the matter, as per their terms and conditions in the policy document. Holding the negligence and deficiency in service on the part of the opposite •party Nos. 2 and 3, the District Forum has directed them to make payment of Rs.3.50 lakh which appears to be on higher side. The ends of justice would meet, if they are directed to make payment of Rs.2,00,000/- towards compensation to the complainant along with interest@ 6% p.a. from 5.12.2006, till realization, along with cost of Rs.1000/- as awarded by the District Forum. 15. In the result, appeals are partly allowed and the order of the District Forum shall stand modified to the extent indicated hereinabove. No order as to costs of this appeal. Appeal partly allowed.
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