State Consumer Disputes Redressal Commission
M/S Padam Tata Motors Workshop vs Capt. Gulzar Singh Sharma on 22 March, 2013
1st Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No. 567 of 2010
Date of Institution: 08.04.2010
Date of Decision: 22 .03.2013
1. M/s Padam Tata Motors Workshop, Bibiwala Road, Bathinda through
its Managing Director/Proprietor
2. The General Manager, Padam Tata Motor Workshop, Bibiwala Road,
Bathinda
...Appellants/OP 2&3
Versus
1. Capt. Gulzar Singh Sharma, aged about 58 years, S/o Sh. Billu Ram,
R/o House No. 405 (185), Ward No. 22, Guru Nanak Basti, Sangria
(Raj) now residing in Lal Singh Basti, Near Canal Rest House,
Bathinda.
2. Oriental Insurance Company Ltd, Divisional Office, Bank Bazar,
Bathinda through its Divisional Manager
...Respondents/Complainants
First Appeal against the order dated
26.02.2010 of the District Consumer
Disputes Redressal Forum, Bathinda
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member ...................................
Present:- Sh. Pankaj Katia, Advocate, counsel for the appellant.
Sh. Inderjit Sharma, Advocate, counsel for the respondent No.1 Sh. Vinod Chaudhary, Advocate, counsel for the respondent No.2
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ---------------- VINOD KUMAR GUPTA, MEMBER:-
This order shall disposed of the following three (3) appeals, as the question of facts and law involved in all the appeals are the same and the First Appeal No. 567 of 2010 2 same are directed against the same impugned order dated 26.02.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum"):-
Sr. No. Appeal Number Name of Parties
1. F.A. No.567 of 2010 M/s Padam Tata Motors Vs. Capt. Gulzar
Singh Sharma
2. F.A. No.622 of 2010 OIC Vs. Capt. Gulzar Singh Sharma
3. F.A. No. 624 of 2010 Capt. Gulzar Singh Sharma Vs. OIC
Facts are taken from F.A. No.567 of 2010 and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that the respondent No. 1/complainant (hereinafter called respondent No. 1) pleaded that he is the owner of Tata Winger Car bearing registration No. PB-03R/6521 which was financed by Tata Motors Finance Ltd., Mumbai. Respondent No. 1 purchased cashless policy from respondent No. 2/OIC and (here-in-after called respondent No. 2) for the period from 22.2.2009 to 21.2.2010 vide policy No. 233291/31/2009/907 on 8.7.2009 at about 9.15 PM. The said car met with an accident near Mehal Kalan while coming from Ludhiana to Bathinda. The car was badly damaged. The intimation was given by the respondent No. 1 to respondent No. 2 and the financer. A DDR No. 12 dated 9.7.2009 has been lodged at Police Station Mehal Kalan. Respondent No. 2 got conducted spot survey. The said car was taken to the work shop of the Padam Tata Motors (Appellants) for repair on dated 9.7.2009. It was further stated that he got a contract carried permit No. PCOP 342/DTO/BTI/2008 in respect of the above said Tata Winger Car No. PB-03 R/6521 for the period from 16.5.2008 to 15.5.2013 by the DTO, Bathinda for plying the same on hire basis. It was further alleged that due to the non-repair of the vehicle he could not ply it and is unable to pay the installment of loan. Respondent No. 1 made repeated request to the appellants to repair the vehicle in question but to no effect. A registered legal First Appeal No. 567 of 2010 3 notice was sent to the appellant on 8.9.2009. Thereafter, the respondent No. 1 filed the complaint with the prayer that the appellants be directed jointly and severally to repair the vehicle and further directed to pay Rs. 1,20,000/- being the amount of monetary loss suffered by the respondent No. 1so far and further to pay Rs. 30,000/- per month being the amount of loss suffered continuously by the respondent No. 1 till handing over of the vehicle fully repaired and making it roadworthy and also directed to pay Rs. 50,000/- being the amount of compensation and Rs. 10,000/- as costs.
3. Upon notice respondent No. 2 replied by taking preliminary objections that the respondent No. 1 has concealed the material facts. It was admitted that the intimation of loss was received and the surveyor was deputed to assess the loss of the accidental vehicle. The loss was assessed to the tune of Rs. 2,21,000/ plus 700/- as surveyor fee-. It was further pleaded that the payment of Rs. 2,21,700/- has been made to the appellants vide cheque dated 8.12.2009 and they accepted the same as full and final payment for repairs carried out by them. It was further stated that the depreciation amount has to be paid by the respondent No. 1 to the appellants. It was denied that the policy in question is a cashless policy. The accident occurred on 8.7.2009. The depreciation has been charged as per terms and conditions of the policy and IMT. It was further pleaded that the respondent No. 1 submitted the claim form much later on 23.10.2009. Other allegations were denied and prayed for dismissal of the complaint.
4. Upon notice the appellants replied by taking preliminary objections that the respondent No. 1 has concealed the material facts. The complaint is false, frivolous and vexatious and the vehicle in question is commercial in nature. Complaint is bad for non-joinder of necessary parties i.e. the manufacturer of the vehicle (Tata Motors Ltd.) It was admitted that the vehicle was repaired and Bill No. 1051 dated 13.10.2009 with regard to the First Appeal No. 567 of 2010 4 cost of the repair of the vehicle i.e. to the tune of Rs. 3,13,652/- was issued. It was further stated that the appellants request to the respondent No. 1 to lift the vehicle from the work shop of the appellants but the respondent No. 1 neither paid the amount nor lifted the vehicle. It was further pleaded that the respondent No. 2 has submitted cheque dated 8.12.2009 for Rs. 2,21,700/- in favour of the appellants before the learned District Forum and they accepted the same under protest and the respondent No. 1 is liable to pay the remaining amount. Other allegations were denied and prayed for dismissal of the complaint with costs.
5. Both the parties produced evidence in support of their contentions.
6. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum accepted the complaint and directed the appellants and respondent No. 2 jointly and severally to pay Rs. 2000/- as cost and Rs. 10,000/- as compensation and directed to deliver the vehicle to the respondent No. 1 fully repaired to his satisfaction.
7. Aggrieved by the impugned order dated 26.02.2010, the appellant has come up in appeal.
8. We have gone through the pleadings of the parties and perused the record of the learned District Forum. We have also heard the arguments advanced by the learned counsel for the parties.
9. Submissions of the learned counsel for the appellants was that the accidental vehicle of the respondent No. 1 was repaired and bill No. 1051 dated 13.10.2009 was prepared to the tune of Rs. 3,13,652/- . The appellants had made various requests to respondent No. 1 to lift the vehicle from the work shop of the appellants after making the payment of the repair of the vehicle. But the respondent No. 1 neither paid the amount nor lifted the vehicle. Letter dated 28.10.2009 Ex. R-47 was sent to respondent No. 1 to lift First Appeal No. 567 of 2010 5 the vehicle otherwise parking charges will be charged @ Rs. 250/- per day. The respondent No. 2 gave the cheque before the learned District Forum dated 8.12.2009 for Rs. 2,21,700/- only which was accepted under protest. Remaining amount is still not paid by the respondent No. 1 and prayed that the appeal may be accepted and the order of the District Forum may be set aside.
10. Submission of the learned counsel for the respondent No. 2 was that total amount involved in the repair of the vehicle is Rs. 3,13,652/- whereas the amount assessed by the surveyor vide Ex. R-4 is Rs. 2,21,000/- .The respondent No. 2 has already paid the amount assessed by the surveyor as per terms and conditions of the policy to the appellants on 14.12.2009 before the learned District Forum vide cheque dated 8.12.2009 as Ex. R-20 alongwith Rs. 700/- on account of the amount paid as survey fees i.e. 2,21,700/-. The difference between the amount spent on repairs and the amount assessed by the surveyor has to be paid by the respondent No. 1 to the appellant. Whereas respondent No. 1 is claiming insurance policy Ex. R- 21/Ex. C-5 to be a cashless insurance policy but it was not a cashless and prayed the appeal may be accepted and the order of the District Forum may be set aside.
11. Submission of the learned counsel for the respondent No. 1 was that he purchased a cashless policy from the respondent No. 2 which was valid from 22.2.2009 to 21.2.2010. The car met with an accident and the appellant assessed the loss of repair Rs. 3,13,652/- whereas the respondent No. 2 paid Rs. 2,21000/- plus 700/- as surveyor fee total 2,21,700/- vide cheque dated 8.12.2009 to the appellant. The remaining amount should be paid by the respondent No. 2 to the appellant and the appellant had delivered the vehicle after 8 months and prayed for modification of the order of the learned District Forum and appeal may be accepted.
First Appeal No. 567 of 2010 6
12. Record has been perused. Submissions have been considered.
13. The admitted facts are that the respondent No. 1 was the owner of the Tata Winger Car bearing registration No. PB-03R/6521 which was insured with the respondent No. 2 for the period from 22.2.2009 to 21.2.2010 it is also admitted that the vehicle met with an accident on 8.7.2009 at 9.15 PM and suffered extensive damage to the tune of Rs. 3,13,652/- as per the repair bill of the appellants. The respondent No. 2 had appointed a surveyor who has assessed the loss to the tune of Rs. 2,21,000/- plus 700/- surveyor fee i.e. 2,21,700/- and the respondent No. 2 gave the cheque of Rs. 2,21,700/- to the appellants on account of repair of the accidental vehicle.
14. The dispute is only that the respondent No. 1 claimed that he purchased the cashless insurance policy and respondent No. 2 denied that it was a cashless policy.
15. R-4 is the surveyor report dated 26.10.2009 vide which all the bills mentioned were taken into consideration. The surveyor report shows that the vehicle was of 2007 model and as per the policy Ex. R-22 the terms and conditions of the policy are that the depreciation for all rubber/nylon/plastic parts tyre and tubes, papers and air bags 50% for fiber glass component 30% was applied. On the basis of that the surveyor assessed the loss of Rs. 2,21,000/- plus 700/- as surveyor fee i.e. 2,21,700/-. The bill Ex. R-46 is for Rs. 3,13,652/- which include the parts which were not covered under the policy and the deduction qua the said parts was rightly made by the surveyor. The parts which have been replaced and salvaged are valued as per the surveyor report for Rs. 17,900/- and the service parts are property of the insurance of the respondent No. 2/OIC. In case the respondent No. 1 hands over salvage parts to respondent No. 2/OIC then the respondent No. 1 shall be entitled to receive Rs. 17900/- and on failure to do so he will not be entitled to receive any amount of salvage, the respondent No. 2/OIC had given a First Appeal No. 567 of 2010 7 cheque of Rs. 2,21,700/- which include surveyor fee to the appellants where as the appellants has spent Rs. 3,13,652/-, therefore the balance amount of Rs. 92,652/- is liable to be paid by the respondent No. 1 to the appellants. The respondent No. 1 is directed to pay the above amount to the appellant No. 1 within 30 days from the receipt of the copy of the order.
16. In view of the above discussions, the First Appeal No. 567 of 2010 is accepted and the order of the learned District Forum, Bathinda dated 26.2.2010 is set aside and consequently, the complaint filed by respondent No. 1/complainant is partly allowed to the extent that in case the respondent No. 1 hands over salvage parts to respondent No. 2/OIC then the respondent No. 1 shall be entitled to receive Rs. 17900/- and on failure to do so he will not be entitled to receive any amount of salvage, the respondent No. 2/OIC had given a cheque of Rs. 2,21,700/- which include surveyor fee to the appellants where as the appellants has spent Rs. 3,13,652/-, therefore the balance amount of Rs. 92,652/- is liable to be paid by the respondent No. 1 to the appellants. The respondent No. 1 is directed to pay the above amount to the appellant No. 1 within 30 days from the receipt of the copy of the order. No order as to costs.
17. The appellant has deposited an amount of Rs. 6,000/- vide receipt dated 8.4.2010 with this Commission at the time of filing of the appeal. This amount of Rs. 6,000/- with interest accrued thereon, if any, be remitted by the registry to the appellant No. 2 by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No. 622 of 2010 :-
This appeal was filed by Oriental Insurance Company Ltd./appellant for setting aside the impugned order dated 26.2.2010 passed by the learned District Forum, Bathinda. The appellant/Insurance Company file the appeal on the grounds that the claim stood settled on acceptance of First Appeal No. 567 of 2010 8 Rs. 2,21,700/- by respondent No. 2. The Insurance Company has paid the said amount as per the report of the surveyor and there was no deficiency in service on the part of the appellant/Insurance Company. The appellant is not liable to pay any cost of compensation to respondent No. 1. In view of the discussions in First Appeal No. 567 of 2010, First Appeal No. 622 of 2010 (Oriental Insurance Company Ltd. Vs. Capt. Gulzar Singh Sharma and Ors.) is accepted and the impugned order dated 26.2.2010 passed by the learned District Forum is set aside. Consequently, the complaint filed by respondent No. 1/complainant is partly allowed to the extent mentioned in Para-16 of this order.
The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing of the appeal and another sum of Rs. 75,000/- vide receipt dated 17.5.2010 in compliance of the order dated 22.4.2010 passed by this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the appellant-OIC Ltd. by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No. 624 of 2010 :-
This appeal was filed by Capt. Gulzar Singh Sharma/complainant for modification of the impugned order dated 26.2.2010 for enhancement of the amount awarded by the learned District Forum, Bathinda. The appellant sought the enhancement of the compensation on the grounds that the vehicle remained stand still for 8 months and could not be used by him. Respondent No. 2/Padam Tata Motors repaired the vehicle and prepared the bill and the respondent No. 1/Insurance Company paid the amount as per the survey report and as discussed in detail in First Appeal No. 567 of 2010. Respondent No. 1/Insurance Company was not liable to pay the amount of Rs. 3,13,652/- which included such parts for which no amount was payable. The appellant is not entitled to seek an enhancement as he himself failed to pay the remaining First Appeal No. 567 of 2010 9 amount of the bill to the respondent No. 2/Padam Tata Motors and for his fault the vehicle remained stationary and for that no relief can be granted. In view of the discussions in First Appeal No. 567 of 2010, we find no ground to enhance the amount of compensation as such the appeal being without any merit is dismissed.
18. The arguments in all these appeals were heard on 11.03.2013 and the orders were reserved. Now the orders be communicated to the parties.
19. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
20. Copy of this order be placed in F.A. No. 622 of 2010 (Oriental Insurance Company Ltd. Vs. Capt. Gulzar Singh Sharma & Ors.) and F.A. No. 624 of 2010 (Capt. Gulzar Singh Sharma Vs. Oriental Insurance Company Ltd. & Ors.) (Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member March 22 , 2013 kalyan First Appeal No. 567 of 2010 10