State Consumer Disputes Redressal Commission
The New India Assurance Company Limited vs Balwinder Singh on 7 April, 2014
2nd ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1854 of 2010.
Date of Institution: 25.10.2010.
Date of Decision: 07.04.2014.
The New India Assurance Company Limited, Regional Office, SCO
No.36-37, Sector 17-A, Chandigarh, through its Manager.
.....Appellant/OP-1
Versus
1. Balwinder Singh S/o Sh. Bhag Singh, R/o Mehraj Basti, Rampura
Phul, District Bathinda.
....Respondent No.1/complainant
2. Centurion Bank of Punjab, now merged with HDFC Bank Limited,
Guru Kanshi Marg, Bathinda, through its Manager.
...Respondent No.2/OP-4.
Argued by:-
For the appellant : Sh. V. Ramswaroop, Advocate.
For respondent no.1: Sh. D.D. Bansal, Advocate.
For respondent no.2: Exparte.
First Appeal against the order dated
12.08.2010 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
First Appeal No.1854 of 2010 2GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER:-
The appellant/opposite party no.1 (In short "opposite party no.1") has filed the present appeal against the order dated 12.08.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum") vide which the complaint filed by the respondent no.1/complainant (hereafter called 'the complainant') was partly accepted with a direction to opposite parties no.1 to 3 to pay jointly and severally the claim amount of Rs.12,49,250/- alongwith interest @ 6% p.a. from three months from the date of accident till payment to opposite party no.4 within 30 days from the date of transfer of ownership of the vehicle. In case, payment of the claim will not be made within the stipulated period, it will yield interest @ 9% p.a. from the date of accident till realization; opposite party no.4 was directed to pay the remaining amount after deducting the loan amount to the complainant within 15 days; opposite parties no.1 to 3 were jointly and severally directed to pay Rs.50,000/- as compensation and Rs.5,000/- as costs to the complainant.
2. The complaint was filed by the complainant on the allegations that he is owner of truck tralla model Tata-4018 which was financed by opposite party no.4. It was registered with DTO, Bathinda vide registration No. PB-03-R-9104. It was got insured from opposite parties no.1 to 3 vide policy no.360604/31/07/01/00002971, valid from 25.02.2008 to 24.02.2009 after paying premium of Rs.40,995/- and its IDV was Rs.17 lacs. It was having a valid National Permit which was valid from 14.03.2008 to 13.03.2013. It was further alleged that during the subsistence of the policy, the said truck tralla met with an accident on 06.08.2008 near village Sainsarwal, when it was on the way to Ex- First Appeal No.1854 of 2010 3 Maliya to Rajpura via Rampura Phul. At that time, Sh. Gurmail Singh was its driver and Sh. Karamjit Singh was its conductor and his father Sh. Ajmer Singh was also present at the time of accident. Intimation was given to the Police Station Gajewas about the accident and DDR No.13 dated 10.08.2008 was recorded. The complainant shifted his truck/tralla No.PB-03-R-9104 to Gobind Motors, Authorized Service Station for Tata Diesel vehicles and they prepared an estimate of Rs.15,36,260/-. Opposite party no.3 also deputed their surveyor Sh. Swaran Deep Singh from Ludhiana for final assessment of the loss, who stated the loss as total damage. The complainant lodged the claim and completed all the formalities, but they deferred the claim for one reason or the other and on 30.11.2019, opposite party no.1 wrongly repudiated the claim. Hence the complaint, seeking directions to the opposite parties to release the claim of Rs.17 lacs i.e. IDV of the vehicle in question alongwith interest @ 18% p.a. from the date of accident till realization and also to pay compensation of Rs.2 lacs on account of mental agony and harassment alongwith litigation expenses to the tune of Rs.50,000/-
3. Opposite parties no.1 to 3 in its written statement have taken the legal objections that the vehicle in question is a commercial vehicle, not meant for carrying passengers but at the time of alleged accident, Sh. Ajmer Singh father of the cleaner Sh. Karamjit Singh was travelling in the said vehicle as a gratuitous passenger. Therefore, the driver of the vehicle has violated the terms and conditions of the policy; the District Forum has no jurisdiction to try and entertain the present complaint as the claim is more than Rs.20 lacs; the insured vehicle was plied for commercial purpose, therefore, the complainant is not a consumer and the claim of the complainant was rightly repudiated by First Appeal No.1854 of 2010 4 the opposite parties; the complainant has no locus standi or cause of action to file the present complaint and that the complaint is false, frivolous and vexatious to the knowledge of the complainant, as such, the complaint is liable to be dismissed U/s 26 of the Consumer Protection Act.
4. On merits, issuance of the insurance policy for the period 25.02.2008 to 24.02.2009 was admitted and that its IDV was Rs.17 lacs. It was also admitted that the intimation was received from the complainant that the insured vehicle met with an accident on 06.08.2009. The spot survey was conducted by Sh. R.K. Bansal. The complainant had obtained excessive estimate from Gobind Motors. Er. Swarandeep Singh of Ludhiana was deputed as Final Surveyor to assess the loss and he assessed the loss on 'Net of Salvage Basis' to the tune of Rs.8.75 lacs. Accordingly, it was stated that there is no merit in the complaint and the same is liable to be dismissed.
5. Opposite party no.4 in its written reply has taken the legal objections that the complaint is not maintainable against the opposite parties; the complaint is false and is liable to be dismissed with special costs and that the vehicle of the complainant was hypothecated with the answering opposite party and the complainant has not foreclosed the loan and a sum of Rs.1,66,654/- and Rs.6,32,935/- is still due towards the complainant. With regard to factum of accident, it has been denied for want of knowledge. Other averments of the complaint have also been denied for want of knowledge.
6. Parties were allowed by the learned District Forum, to lead their evidence.
7. In support of his allegations, the complainant tendered his own affidavit Ex.C-1, copy of insurance policy Ex.C-2, copy of premium First Appeal No.1854 of 2010 5 receipt Ex.C-3, copy of RC of the vehicle in question Ex.C-4, copy of driving licence of Gurmail Singh Ex.C-5, copy of route permit Ex.C-6, copy of DDR Ex.C-7, copy of estimate Ex.C-8, copy of repudiation letter dated 30.11.2009 Ex.C-9, copy of retail invoice darted 19.10.2008 Ex.C-10 and copy of invoice dated 25.02.2008 Ex.C-11.
8. On the other hand, opposite party no.4 tendered in evidence copy of letter dated 17.06.2010 Ex.R-1. Opposite parties no.1 to 3 have tendered affidavit of its Sr. Divisional Manager Sh. P.K. Jain a Ex.R-2, affidavit of Sh. Swarandeep Singh, Surveyor Ex.R-3, copy of final surveyor report dated 25.11.2008 Ex.R-4, copy of photographs Ex.R-5, copy of letter dated 20.11.2009 Ex.R-6, copy of letter dated 17.07.2009 Ex.R-7, copy of proposal form Ex.R-8, copy of the RC of the vehicle No.RJ-31G-4904 Ex.R-9, copy of the builty Ex.R-10 and copy of claim form Ex.R-11.
9. After going through the allegations in the complaint, written statement filed by the opposite parties and perusing the record, the learned District Forum, vide the impugned order, observed that in this truck, only three persons were permitted to sit and moreover, Sh. Ajmer Singh was father of the cleaner and was not a gratuitous passenger. The total estimated loss was Rs.15,36,260/-, whereas the IDV was Rs.17 lacs and it is more than 75%, therefore, it was a case of total loss. In case, we take it that the insured has violated the terms and conditions of the policy, then also he is entitled to the claim on Non- standard Basis i.e. 75%. Accordingly, it was held that he is entitled to a sum of Rs.12,49,250/-. Accordingly, the complaint was partly accepted, as stated above.
First Appeal No.1854 of 2010 6
10. Aggrieved by the impugned order dated 12.08.2010, so passed by the learned District Forum, the appellant/opposite party no.1 has filed the present appeal.
11. We have heard the learned counsel for the parties and have perused the record.
12. In the grounds of appeal, it was contended that it was a commercial vehicle, therefore, the complainant does not fall within the definition of consumer.
13. It has been specifically mentioned in the complaint that the said truck tralla is being used for livelihood by the complainant, which has not been contradicted by the counsel for the appellant, therefore, the complainant falls under the proviso of section 2 (d) (ii) of the Act. Therefore, the version as stated by the counsel for the appellant is not acceptable that respondent no.1/complainant does not fall within the definition of consumer.
14. So far as the proposition that Sh. Ajmer Singh, father of the cleaner Sh. Karamjit Singh, was traveling as a gratuitous passenger and that there is violation of the terms and conditions of the policy is concerned, the learned District Forum has already granted the claim on Non-standard Basis i.e. 75% of the total loss, considering the violation of the terms and conditions of the policy. Therefore, this point cannot be re-opened by the appellant/opposite party no.1, when this proposition has been accepted by the District Forum.
15. The next point that the District Forum did not have the pecuniary jurisdiction as the claim asked is for more than Rs.20 lacs after calculating the interest @ 18%. Once the claim has been adjudicated upon and the claim has been allowed to the complainant, less than Rs.20 lacs and the claim adjudicated by the District Forum First Appeal No.1854 of 2010 7 falls within the pecuniary jurisdiction of the District Forum, then this point cannot be agitated by the counsel for the appellant that the complaint does not fall within the pecuniary jurisdiction of the District Forum. If it was so, it should have been agitated before the findings returned by the District Forum.
16. It has been stated that Er. Swarandeep Singh had assessed the loss on Net off Salvage Basis to the tune of Rs.8.75 lacs. For assessment of the total loss, we have to see the total loss on 'Net off Salvage Basis' as observed by Er. Swarandeep Singh, Surveyor in his report Ex.R-4. In case, we go through his report, he has deducted 5% towards IDV i.e. Rs.65,750/- and he has also deducted Rs.4,50,750/- towards the Value of Trailor fabricator by local market workshop. Once the IDV has been assessed at the time of insurance, its value cannot be depreciated. Moreover, the counsel for the appellant has not been able to challenge as to how the loss assessed by Gobind Motors as per Ex.C-8 to the tune of Rs.1,5,36,260/- is on the excessive side. Taking into consideration the above report and evidence on record, the loss is more than 75%, therefore, it is a case of total loss.
17. Another point raised by the counsel for the appellant that the matter should have been referred to the civil court. In this respect, it is suffice to say that the Presiding Officers, having sufficient experience at their disposal, are heading the District Forums and are competent to adjudicate these matters. Therefore, there is no substance in the plea taken by the counsel for the appellant/opposite party no.1 that the matter should have been referred to the civil court.
18. In view of above discussion, we do not find any infirmity in the impugned order passed by the District Forum as the same is legal and valid.
First Appeal No.1854 of 2010 8
19. Accordingly, the appeal filed by the appellant/opposite party no.1, being without any merit, is dismissed with cost which is assessed at Rs.5,000/- and the impugned order under appeal dated 12.08.2010 passed by the District Forum is affirmed and upheld.
20. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal and another sum of Rs.8,50,000/- vide receipt dated 07.12.2010 in compliance of the order dated November 8, 2010 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
21. Remaining amount as per order of the District Forum alongwith cost imposed vide this order shall be paid by the appellant/opposite party no.1 as well as opposite parties no.2 & 3 to respondent no.1/complainant within 45 days of the receipt of copy of the order.
22. The arguments in this appeal were heard on 26.03.2014 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member April 07, 2014.
(Gurmeet S)