SUBHASH CHANDRA DAS vs AUTO SYNDICATE

THIS appeal by the complainant is directed against an order dated 11.1.1995 passed by District Forum, Patna, in Case No. 708 of 1992 whereby the District Forum dismissed the complaint with cost holding the same as frivolous and vexatious.

ON 24.9.1992 the complainant-appellant filed a complaint before the District Forum alleging therein that he purchased one Bajaj Chetak Scooter from Auto Syndicate (opposite party No. 1) on 16.3.1991 under hire purchase scheme. Prior to the purchase of the scooter, he on 12.3.1991 paid to Auto Syndicate (opposite party No. 1) Rs. 500/- in cash vide receipt (Annexure-I) for Bajaj Chetak Scooter and Rs. 250/- in cash vide receipt (Annexure-II) towards road tax, registration fee and other incidental charges. Apart from that, he on 15.3.1991 paid Rs. 262.20 paise in cash vide receipt (Annexure-III) for accessories etc. Besides that, he paid to Auto Syndicate Rs. 315/- + Rs. 315/- for the insurance of the scooter vide Cheque Nos. 884537 and 884535 drawn in favour of Oriental Insurance Company Ltd., Patna counterfoils of which are Annexures-IV and V to the complaint. Thereafter he paid several instalments towards the price of the scooter. In between the night of 12th and 13th September, 1992, the scooter was stolen away. In the morning of 13th September, 1992 F.I.R. (Annexure-VI) was lodged at Shastrinagar Police Station. Thereafter he came to know that the aforesaid two cheques handed over to Auto Syndicate for insurance of the scooter were not given to Oriental Insurance Company as a result of which the vehicle remained uninsured. Consequently he could not file claim before the Insurance Company. ON the allegations aforesaid the complainant prayed for a direction to Auto Syndicate (opposite party No. 1) to compensate for the loss caused to him due to negligence of the Auto Syndicate. Further prayer of the complainant was for supply of another scooter by Auto Syndicate in lieu of the stolen one. The opposite parties (respondents in this appeal) filed written statement in the form of rejoinders dated 3.3.1993 and 2.11.1994 and contested the case before the District Forum. The case of the opposite party was that the complainant purchased one Bajaj Chetak Scooter on 16.3.1991 under hire purchase scheme and got all accessories fitted therein after paying Rs. 262.20 paise. Since the vehicle was new one, it would have been against basic norms of law to move or drive the same on road without insurance and hence the opposite party at the time of delivery of the vehicle got the same insured vide Policy No. 6204030/91 for the period 15.3.1991 to 14.3.1992 and handed over the original policy to the complainant by preserving photostat copy thereof with a direction to get the same renewed in future. The complainant made available to the office of the opposite party one ante-dated and one post-dated cheque for the year 1993 which caused suspicion in the mind of the opposite party and as such the complainant who was duty bound to produce the vehicle as per the standard form of contract was directed to produce the vehicle at the time of renewal by the Insurance Company but the complainant failed to produce the vehicle on the required date and even thereafter due to which the policy could not be renewed and under the circumstances the complainant himself is responsible for his deliberate negligent act.

Further case of the opposite party is that the Consumer Protection Act is not applicable to this case as the opposite party has not charged anything for the service of insurance. Apart from that, the responsibility to get the policy renewed was that of the complainant himself. The story of theft appears to be false and has been engineered for swallowing up the remaining instalments payable by the complainant to the opposite party under hire purchase scheme. The opposite party cannot be held responsible for the negligent act of the complainant. On the allegations aforesaid, the opposite party prayed for being exonerated from any responsibility.

THE complainant-appellant in support of his case filed his own affidavit before the District Forum but he did not file any affidavit with regard to photo copies of documents annexed to the complaint petition. THE opposite party did not file any affidavit either in support of its case as made out in the said rejoinders or in support of the photo copy of document annexed thereto. At the time of hearing of this appeal no one appeared on behalf of the opposite party- respondents and hence this appeal was heard ex parte. Now it has to be considered if the impugned order passed by the District Forum is sustainable in law or not. Certain facts are not disputed. It is not disputed that opposite party Auto Syndicate deals in Bajaj Scooters and accessories thereof under hire purchase scheme. It is also not disputed that the complainant on 16.3.1991 purchased one Bajaj Chetak Scooter from the said opposite party. It is also not disputed that the complainant gave two cheques of Rs. 315/- each to the said opposite party out of which one was for insurance of the scooter at the time of delivery and the other which was post-dated cheque was for renewal of the policy. It is also not disputed that the said opposite party got the scooter insured for the period 15.3.1991 to 14.3.1992 but failed to renew the policy from 15.3.1992. Though the opposite party in its rejoinders has described the story of theft of the scooter in between the night of 12th and 13th September, 1992 as false and has alleged that the said story of theft has been set up with a view to swallow the remaining instalments payable by the complainant but the copy of the written F.I.R. (Annexure-VI to the complaint petition) to which there is reference in the rejoinders of the opposite party, shows that the police had registered Shastrinagar P.S. Case No. 732/92 on the basis of the same. In para 13 of his affidavit the complainant has stated that the police in the said case had submitted final report to the effect that the occurrence was true but there was no clue. This fact has neither been denied by the opposite party in its rejoinders nor by filing affidavit. That being so, there appears no reason to disbelieve the story of theft of the scooter.

ACCORDING to the opposite party the insurance policy could not be renewed due to failure of the complainant to produce the scooter at the time of renewal or even thereafter inspite of direction to produce the vehicle. It may be pointed out that the opposite party has neither produced any paper nor has filed any affidavit to show that the complainant had been directed to produce the scooter at the time of renewal but he failed to do so. Furthermore, if the complainant failed to produce the scooter at the time of renewal inspite of direction, the natural conduct on the part of the opposite party would have been to return back the post-dated cheque of Rs. 315/- given by the complainant for the purpose of renewal of the policy but the opposite party did not do so and there is no explanation for such conduct on the part of the opposite party. Under the circumstances the case of the opposite party to the effect that the policy could not be renewed due to failure of the complainant to produce the vehicle can hardly be accepted. It has been pleaded in the rejoinder of the opposite party that responsibility to renew the policy was on the complainant and the opposite party cannot be held liable if the policy was not renewed. In this connection copy of the hire purchase agreement on record of the District Forum was referred to. It is true that as per terms of the hire purchase agreement the responsibility for keeping the vehicle insured was on the complainant but it is an admitted fact that the opposite party got the vehicle insured for the period 15.3.1991 to 14.3.1992 and the complainant simply paid the premium amount to the opposite party by issuing cheque for that. It is also undisputed that the complainant had already handed over a post-dated cheque for Rs. 315/- to the opposite party for renewal of the policy and the opposite party had received that cheque and had not returned back the same to the complainant on the ground that responsibility to get the policy renewed was on him (complainant). That being so, the opposite party Auto Syndicate had undertaken to get the policy renewed but failed to do so. Such conduct on the part of opposite party Auto Syndicate amounted to negligence and deficiency in service and hence the said opposite party cannot escape from the responsibility to compensate the complainant. In support of this view of mine I would like to refer to the decision dated 18.5.1995 of the National Commission in Original Petition No. 77 of 1992 Pradip Kumar Jain v. The Citi Bank & Anr., reported in II (1995) CPJ 219 (NC)=VII-1995 (2) CPR 402 (NC). In that case the complainant had purchased Car with Bank loan subject to hire purchase endorsement in favour of the Bank. Cheque drawn in favour of Insurance Company had been delivered to the Bank by the complainant but policy was not renewed as the cheque was not deposited by the Bank with insurer. The Car met with an accident and was total loss. It was held by the National Commission that non-delivery of the renewal premium cheque by the Bank to the insurer amounted to negligence and deficiency on the part of the Bank and the Bank was liable to compensate the complainant. It has been pleaded in the rejoinder of the opposite party that the Consumer Protection Act is not applicable to this case as the opposite party had not charged anything for getting the policy renewed. As pointed out above, the National Commission in a similar case held the Bank liable to compensate the complainant. In view of this, there appears no merit in the said plea in the rejoinder of the opposite party-respondent.

NOW I would like to consider the reliefs sought for by the complainant (appellant). The first relief sought for by the complainant is a direction to the opposite party No. 1 Auto Syndicate to compensate for the loss caused to him. In para-6 of his affidavit the complainant has stated that at the time of purchase the value of the scooter was Rs. 16,993/-. Had the policy been renewed by opposite party No. 1, as undertaken, the Insurance Company would have paid to the complainant the sum assured minus 10% depreciation for one year. As it appears from the photo copy of the insurance policy (Annexure to the rejoinder of the opposite party) the sum assured was Rs. 18,000/-. Ten percent of Rs. 18,000/- would be Rs. 1,800/-. On deducting Rs. 1,800/- from Rs. 18,000/-, the net amount would be Rs. 16,200/- which the complainant would have got within reasonable period of six months from the Insurance Company had the policy been renewed by opposite party Auto Syndicate. The theft took place in between the night of 12th and 13th September, 1992. Six months from 13th September, 1992 would be 13th March, 1993. As a necessary corollary, opposite party No. 1 Auto Syndicate is liable to pay compensation of Rs. 16,200/- to the complainant with interest at the rate of 12% per annum with effect from 13th March, 1993 till the date of payment.

THE second relief sought for by the complainant is for supply of another scooter by opposite party No. 1 Auto Syndicate in lieu of the stolen one. Since the first relief sought for by the complainant has been allowed, the second relief cannot be granted. In view of the above discussions, the impugned order passed by the District Forum is not sustainable in law. In the result this appeal is allowed and the impugned order is hereby set aside. Opposite party-respondent Auto Syndicate is directed to pay a sum of Rs. 16,200/- to the complainant-appellant with interest @ 12% per annum with effect from 13.3.1993 till payment. The said opposite party No. 1 will be entitled to adjust the amount of Rs. 16,200/- and interest thereon towards the amount due from the complainant. The payment of balance of the amount shall be made to the complainant within two months from the date of receipt/production of the copy of this order. Appeal allowed.