VIJAY KUMAR ESHWAR PADUVANI Vs. MAHABALESHWAR CO-OP. BANK LTD.

JUDGEMENT

(1.) APPEAL No. 1737/2008 is by the Complainant challenging the Order of the District Forum, Karwar, Uttara Kannada, having not satisfied with the relief granted in his favour in Complaint No. 68/2008. Appeal No. 2138/2008 is filed by the OP challenging the very same Order. We have heard both the Appeals together for consideration. The parties in these two Appeals are referred as per their position before the District Forum. The facts of the case are as follows: The Complainant is the owner of Eicher Truck bearing No. KA -30/B -3369 having purchased the same on 3.12.2003 by raising a loan of Rs. 8,58,500, with the OP Bank. The said vehicle was insured with the United India Insurance Company, Kumta. The vehicle in question met with an accident on 4.12.2004. In the said accident, the vehicle suffered certain damage. The fact of accident was intimated to the Insurance Company. The Insurance Company ultimately has come forward to pay a compensation of Rs. 1,77,000 on "cash loss repair basis" and had issued a Cheque for a sum of Rs. 1,77,000 to the Complainant. The Complainant presented the said Cheque with the OP and the OP got encashed the said Cheque and adjusted a sum of Rs. 1,45,542 to the Loan Account No. HP 141 of the Complainant and the balance amount was adjusted towards other loan without even intimating the said fact to the Complainant; After the accident, the vehicle was handed over to the mechanic for necessary repair. The Garage owner in turn intimated the Complainant vide his letter dated 24.1.2005 stating that the vehicle is ready for delivery after repairs and the cost of Rs. l,36,000 is to be paid. As there was a shortfall of Rs. 35,000 the Complainant requested the OP Bank to pay Rs. 35,000, in order to get the vehicle released from the Garage. But the O.P. refused to pay the same on the ground that the amount paid by the Insurance Company was adjusted towards loans borrowed by the Complainant. This has made the Complainant to deprived of the vehicle and thereby suffered a loss to the extent of Rs. 2,500 per day for about 601 days as he was not able to get the vehicle from the Garage as he could not pay the money as demanded by the Garage owner. Ultimately, in the meanwhile, the vehicle was seized by the OP Bank when it was in the Garage.

(2.) FURTHER the case of the Complainant is that the OP Bank after seizure of the vehicle issued notice in the newspaper proposing to sell the vehicle in public auction fixing the date of sale as 18.5.2006. In the said notice, they have asked the participants to deposit a sum of Rs. 5,000 as Earnest Money through DD. But, on the said day, the vehicle could not be sold in the public auction. Again, OP Bank notified in the newspaper proposing to sell the said vehicle by fixing the date of auction as 3.10.2006. Though there was an offer to purchase the said vehicle for Rs. 2,20,000 , the said offer was not accepted and thereby the vehicle could not be sold on the date of auction. It appears that one Mr. Satish Ganapati Naik had come forward to purchase the said vehicle for Rs. 1,90,000. The said offer was accepted and the vehicle was sold in favour of Mr Satish Ganapati Naik in the auction held on 8.1.2007.

(3.) THE vehicle in question was purchased by raising a loan of Rs. 8,58,500 which represents 75% of the sale price of the vehicle. In the year of accident, the value of the vehicle declared as Rs. 5,50,000 in the proposal form which was accepted by the Insurance Company. But, the vehicle was sold for a sum of Rs. l,90,000 . According to the Complainant, the OP Bank has virtually prevented the Complainant to get the vehicle released from the garage by refusing to pay a sum of Rs. 35,000 from out of the insurance amount of Rs. 1.77,000 paid by the Insurance Company, stating that the said amount has been adjusted towards loans. If the Insurance Company has paid the shortfall of Rs. 35,000 from out of Rs. 1,77,000, the Complainant could have got the vehicle released by the Garage owner and could have made use of the same for his livelihood. This according to the Complainant is deficiency in service on the part of the OP. The Complainant is not due any amount to the OP Bank as on 18.5.2005 since the amount paid by the Insurance Company has been adjusted towards loan account of the Complainant. If that is so, there was no reason for the Insurance Company to seize the vehicle and sell the same in the public auction. Therefore, the Complainant has filed the Complaint for a compensation of Rs. 19,87,500, which includes the loss of income and the loss suffered due to the sale of the vehicle for a paltry sum of Rs. 1,90,000.