PINKY SAHU vs National Insurance Co. Ltd.

THIS appeal, under Section 15 of the Consumer Protection Act, 1986 is directed against the order dated 6.12.2001 in Complaint No. 409/01 by District Consumer Disputes Redressal Forum, Durg (hereinafter called the ''District Forum'' for short) whereby the complaint of the complainant/appellant has been dismissed.

RELEVANT facts not in dispute stated in brief are: that the complainant had admittedly obtained finance of Rs. 1.00 lac from respondent No. 3 for purchase of a car. Respondent No. 2 is the principal of respondent No. 3. The said vehicle was insured with respondent No. 1, for the period from 15.2.2001 to 14.7.2001. The averment in the complaint was that complainant/appellant had repaid the whole amount of finance obtained by her from respondent Nos. 2 and 3 and thereafter she demanded ''No Objection Certificate'' (NOC) from respondent No. 3. However, respondent No. 3 informed her that NOC would be issued by respondent No. 2, but despite efforts, neither respondent No. 2 nor respondent No. 3 issued the NOC to the complainant/appellant. It further appears from the complaint that on 29.1.2001 the said car was stolen from Bhilai. A report was lodged with the police of the said incident. Police submitted its report on 31.3.2001. The complainant/appellant thereafter laid claim for reimbursement of the price of the car under the insurance policy obtained by her from respondent No. 1 insurer. The insurer-respondent No. 1 has however did not honour its obligation under the insurance agreement and has not paid any amount to the complainant.

Opposite party respondent No. 1 filed his written version. In the said written version the respondent No. 1 admitted that the claim for the recovery of the amount under insurance policy was submitted to them by the complainant/appellant and that respondent No. 1 appointed Surveyor J.S. Dhir who estimated the value of the car at Rs. 1,48,000/-. Another Surveyor R.K. Agrawal appointed by respondent No. 1 after verification affirmed the incident of theft of the car. However, according to respondent No. 1 since the complainant did not submit the NOC from the financier with whom the vehicle was hypothecated, the respondent No. 1 did not settle the claim of the applicant.

OPPOSITE party respondent Nos. 2 and 3 did not make their appearance. However, it appears that they sent their version by post which is on the record of District Forum. In the said reply the respondents 2 and 3 raised an objection to the effect that the jurisdiction of the Consumer Forum is barred. Reliance was placed in the said version on the decision of M.P. State Commission in Asad Ullah Khan v. M.C. Motor and Others, II (2000) CPJ 120. It was also averred in the written version that the complainant is not competent as Arbitrator ought to have been appointed as per hire purchase agreement between the parties. Learned District Forum in the impugned order made a reference to the decision of the Supreme Court in Skypak Couriers Ltd. v. Tata Chemicals Ltd., II (2000) CPJ 6 (SC)=IV (2000) SLT 494=2001 (1) CPR 1 (S.C.), wherein it was held that District Forum has jurisdiction, notwithstanding the arbitration clause in the agreement. However, the learned District Forum further stated that in view of the observation in the decision of Asad Ullah Khan, District Forum has no jurisdiction to hear and decide the complaint. It was also observed by the learned District Forum that since the complainant/appellant has failed to produce no objection certificate from respondent in form No. 3, therefore, the respondent insurer did not commit any deficiency in service.

SO far as objection of the respondent Nos. 2 and 3 regarding bar of jurisdiction on the ground of arbitration clause in the agreement is concerned, it may be noticed that Supreme Court in Skypak Couriers Ltd. (supra) has clearly ruled that even if there exists an arbitration clause in an agreement, the same would not bar the complainant in relation to deficiency of service. It was observed therein that the remedy provided under the Consumer Protection Act is in addition to the provision of any other law. It may be noticed that District Forum has observed that in view of observation in Asad Ullah Khan (supra), the dispute was beyond the competence of the District Forum. It may be noticed that in the said case there was a dispute regarding the default in payment of monthly instalments in terms of hire purchase agreement. It was observed in the above context that unless it was established that there was any deficiency in service on the part of the financier, the dispute as above could not be decided under the Consumer Protection Act, 1986. However, in the instant case respondent Nos. 2 and 3 have not raised any specific dispute in their written version. They have vaguely stated therein that there is a dispute, without specifying as to what that dispute is. In fact learned Counsel for complainant/appellant pointed out that the complainant in para 4 of the complaint clearly averred that the whole amount of loan taken on finance from respondent No. 3 has been repaid with interest by her. The said averment is supported by her affidavit. No counter affidavit or specific reply to the said averment is given by respondent Nos. 2 and 3 financier. Learned Counsel for the complainant/appellant submitted that he had also sent a notice dated 20.2.2001 to respondent Nos. 2 and 3 stating that the whole amount obtained from them with interest has been paid by her. The notice was refused by respondent No. 3 but was duly served on respondent No. 2. It was further stated in the said notice by the complainant that if any amount was liable to be paid by the complainant, she may be intimated about it, by the respondent No. 3, so that the complainant may make the payment thereof. There appears nothing on record to show that any reply to the said notice was given by the respondent Nos. 2 and 3 financier to the complainant. Thus, there appears to be no dispute regarding the repayment of amount obtained by the complainant and its repayment. In fact, the complainant despite efforts could not get any response from respondent Nos. 2 and 3.

IN view of the above, it is clear that rather than raising any specific dispute, the respondent Nos. 2 and 3 have made a general and vague averment that there being a dispute between them and the complainant, the matter deserves to be referred to the Arbitrator and that the District Forum had no jurisdiction. However, the material as above on record shows that there was no real dispute regarding the amount obtained by the complainant from respondent Nos. 2 and 3 and repayment thereof. Obviously the respondent Nos. 2 and 3 cannot get any advantage of such vague and general averments as no real dispute has been raised by them regarding repayment of loan made by the complainant.

IN the foregoing circumstances we hold that there is nothing to believe that there is any dispute between the complainant and the respondent Nos. 2 and 3 regarding repayment of loan. Therefore, respondent Nos. 2 and 3 committed deficiency in service. The complainant/appellant deserves to be compensated for the loss and inconvenience caused to her. So far as respondent No. 1 is concerned, it does not appear that respondent No. 1 acted in unreasonable manner. The respondent No. 1 when approached by the complainant for payment of amount under the insurance policy, only desired that complainant/appellant should fulfil the formalities so that her claim could be duly settled. The complainant/appellant was not in a position to do so, due to non-cooperation on the part of respondent Nos. 2 and 3, as noticed above.

Hence the complaint and this appeal deserves to be allowed so far as respondent Nos. 2 and 3 are concerned. The impugned order is accordingly set aside. It is directed that respondent Nos. 2 and 3 shall furnish ''No Objection Certificate'' to the complainant/appellant within 1 month of the receipt of this order, failing which the complainant appellant shall be entitled to take steps for reimbursement from respondent No. 1 insurer even without production of NOC from respondent Nos. 2 and 3, on the complainant satisfying respondent No. 1 that he had approached and communicated this order to respondent Nos. 2 and 3 and yet the NOC has not been issued in his favour in pursuance of this order. The complainant/appellant shall also be entitled to get compensation for harassment, loss and inconvenience caused to her by respondent Nos. 2 and 3. The said compensation in the circumstances of the case is fixed at Rs. 10,000/. The above amount of compensation shall be payable by the respondent Nos. 2 and 3 to the complainant/appellant within a period of 2 months from the date of this order, failing which interest @ 12% per annum shall also be payable on the said amount, from the date of default, by respondent Nos. 2 and 3. The respondent Nos. 2 and 3 shall also pay cost of this litigation to the complainant/appellant, which is quantified at Rs. 2,000/- (Rupees two thousand) only. Appeal allowed with costs.