State Consumer Disputes Redressal Commission
Premier Shield vs Tata Aig General on 1 October, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal Case No. : 231 of 2012 Date of Institution : 10.07.2012 Date of Decision : 01.10.2012 M/s Premier Shield Pvt. Ltd., Regd. Office 282, Okhala, Phase-I, Delhi, through its Regional Office, SCO 216, Sector-37-C, Chandigarh through its Regional Manager. --Appellant Versus 1. Tata-AIG General Insurance company Ltd., Corporate Office, Peninsula Corporate Park, Nicholas Piramal Tower, 9th Floor, Ganpatrao Kadam Marg, Mumbai. 2. Tata-AIG General Insurance company Ltd., Zonal Office, Lotus Towers, 1st Floor, Community Centre, New Delhi-110025 3. Tata-AIG General Insurance company Ltd., Branch Office, SCO 232-234, IInd floor, Sector-34-A, Chandigarh, through its Branch Manager. ....Respondents. Appeal U/s 15 of Consumer Protection Act, 1986 BEFORE: JUSTICE SHAM SUNDER(Retd), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Present:
Sh.Mohan Lal Joshi, Assistant Manager (authorized representative) for the appellant.
Sh.Varun Chawla, Advocate, proxy for Mrs.Vandana Malhotra, Advocate for the respondents.
PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 3.7.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint for non-prosecution.
2. The facts, in brief, are that the complainant, on being approached by the Opposite Parties, with a proposal of better services in comparison to other General Insurance Companies, entered into a contract of insurance by purchasing Policy No.0100439806 00 dated 4.3.2009, at a base premium of Rs.8390/-, for its vehicle bearing No.CH04-E-4304, make Mahindra Bolero, Model 2008, for the period from 4.3.2009 to 3.3.2010. For additional cover under Clauses IMT 17,28 & 39, an additional premium of Rs.5757.66 was also paid. It was stated that the cover note was provided on the date when the vehicle was insured i.e. on 3.3.2009, but the endorsement containing Clauses IMT 39,28 & 17 forming part of the Policy, was received by the complainant vide letter dated 21.3.2009, copy whereof is Annexure C1(Colly). It was further stated that on 18.11.2009, at around 7.00 P.M, when the aforesaid vehicle was being driven by Sh.Raghubir Singh, alongwith four staff members of the complainant Company, while coming back from ICICI bank, Derabassi, towards Chandigarh, it met with an accident with a tractor trolley near Zirakpur on NH-1 Chandigarh-New Delhi road. It was further stated that the matter was amicably resolved between the parties at P.S.Zirakpur, for which DDR was also lodged, copy whereof is annexure C3. Opposite Party No.3, was informed of the accident on the same day i.e. 18.11.2009, which advised the Branch Office of the complainant to get the vehicle repaired, at their authorized dealer M/s Goyal Motors Pvt. Ltd. , Mohali. Accordingly the vehicle was towed to the above mentioned dealer, where the surveyor of Opposite Party No.3 inspected the vehicle. It was further stated that the complainant submitted all the requisite documents, and after receiving those documents, Opposite Party No.3 assured that the authorized dealer had given the repair estimate of Rs.4,99,543/- and the Opposite Parties would compensate by paying lumpsum amount of Rs.3,90,000/-. Subsequently, on asking by the Opposite Parties, the complainant submitted the driving licence of the Driver, issued by the D.T.O. Fatehgarh Sahib (Pb), after the date of accident. Thereafter, the complainant submitted another driving licence, which was earlier stated to have been misplaced by the driver, issued by RTO Dimapur Nagaland valid from 3.7.2008 to 2.7.2011. However, the claim of the complainant was repudiated vide letter dated 22.5.2010, on the ground that the driver was having two driving licences. It was further stated that the claim of the complainant was repudiated by the Opposite Parties, on frivolous and flimsy grounds. It was further stated that the complainant made frequent efforts for settlement of the claim, but to no avail. It was further stated that, by not settling the genuine claim of the complainant, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him, directing the Opposite Parties, to pay Rs.6,72,842/- the Insured Declared Value of the vehicle; damages of Rs.1,83,539/- @ Rs.200/- per day to be paid to the authorized dealer; compensation of Rs.2 lacs on account of deficient service, rendered by the Opposite Parties ; towing expenses of Rs.3300/- and litigation expenses of Rs.75,000/-. Thus, in this way, the complainant claimed a total sum of Rs.11,34,681/-.
3. The complaint was admitted vide order dated 29.2.2012, and notice was ordered to be issued to the Opposite Parties for 16.4.2012. On 16.4.2012, on behalf of the Opposite Parties, their Counsel appeared and the complaint was adjourned to 9.5.2012 for their reply and evidence. On 9.5.2012, reply and evidence was not filed by the Opposite Parties, and accordingly on their request , last opportunity was granted and the case was adjourned to 5.6.2012. Still reply and evidence was not filed, on the adjourned date, and another opportunity was granted to the Opposite Parties to do the needful subject to payment of costs of Rs.500/- and the case was adjourned to 3.7.2012.
4. On 3.7.2012, the complaint was called many times, but none entered appearance, on behalf of the complainant, as a result whereof, the same was dismissed for non-prosecution.
5. Feeling aggrieved, the instant appeal, has been filed by the appellant/ complainant.
6. We have heard the authorized representative of the appellant, Counsel for the respondents, and have gone through the record of the case, carefully.
7. The authorized representative of the appellant, submitted that, on 5.6.2012, the Counsel for the appellant , noted down the wrong date as 4.7.2012 and informed the complainant accordingly. However, on 4.7.2012 when the authorized representative of the complainant and its Counsel came for appearance in the District Forum, they came to know that the said complaint was dismissed on 3.7.2012.
On 5.7.2012, the complainant moved an application before the District Forum for restoration of the complaint, but the same was dismissed on 10.7.2012, being not maintainable. He further submitted that it was, on account of noting down the wrong date, in the complaint, that neither the authorized representative of the complainant, nor its Counsel could appear on 3.7.2012, before the District Forum. It was further submitted that the absence of the complainant, or its Counsel, on 3.7.2012, was neither intentional, nor deliberate, but for the reasons, aforesaid. It was further submitted that the order, being illegal, is liable to be set aside.
8. On the other hand, the Counsel for the respondents, submitted that the absence of the complainant (now appellant) on 3.7.2012, was intentional and deliberate. He further submitted that the complainant has the remedy of filing a fresh complaint, on the same of cause action. He further submitted that the order, being legal and valid, is liable to be upheld.
9. After giving our thoughtful consideration, to the rival contentions, advanced by the authorized representative, for the appellant, Counsel for the respondents, and, on going through the record, we are of the considered opinion, that the appeal deserves to be accepted, and the case is liable to be remanded back, for fresh decision, in accordance with law, for the reasons, to be recorded hereinafter. As stated above, the complaint was admitted on 29.2.2012, and notice was ordered to be issued to the Opposite Parties for 16.4.2012. On 16.4.2012, the Opposite Parties put in appearance and sought adjournments for filing reply and evidence. However, they did not file reply despite availing of two adjournments, one of which was granted as last opportunity. Still they were granted another opportunity , subject to costs of Rs.500/-.
On 3.7.2012, the Opposite Parties were to file reply and evidence on payment of costs. Alongwith the Memorandum of Appeal, the Counsel for the appellant, has filed his affidavit, in support of the contents of the appeal that his non-appearance on 3.7.2012 was neither willful, nor intentional, but due to noting down of wrong date.
10. It is settled principle of law, that every lis should normally be decided, on merits, than by resorting to the hyper- technicalities. When the hyper- technicalities and the substantial justice , are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. The complaint was fixed for 3.7.2012, for filing reply and evidence by the Opposite parties, and that date was granted to them, subject to payment of costs of Rs.500/-, but no reply and evidence was stated to have been filed by the Opposite Parties. There is also no mention of tendering of costs by the Opposite Parties, subject to which, they were granted opportunity to file reply and evidence. The District Forum could adjourn it to some other date, for the said purpose. No doubt, there was negligence, on the part of the Counsel for the complainant, as he did not confirm the date, which was given in the complaint on 5.6.2012. It is settled principle of law that for the negligence or inadvertence of the Counsel, the party should not suffer. In our considered opinion, an opportunity should be afforded to the complainant to prosecute the complaint, so that the same could be decided, on merits, and the rights of the parties are determined, by one Forum, on merits, one way or the other. In this view of the matter, the order impugned is liable to be set aside. .
11. On account of inadvertence or negligence of the complainant or its Counsel, the delay in the disposal of the complaint, on merits, was caused. According to Section 13 (3A) of the Act, every complaint is required to be decided within three months, from the date of appearance of the Opposite Parties, except the one, in which the goods are required to be sent to the Laboratory for examination. In that event, the complaint is required to be decided within a period of 5 months, from the date of appearance of the Opposite Parties. The complaint had been admitted on 29.2.2012. A period of three months, has already lapsed, much earlier. For causing delay, in the disposal of the complaint, on merits, the appellant is required to be burdened with costs.
12. The Counsel for the respondents, however, submitted that, the appellant/complainant, has the remedy to file a fresh complaint, and, as such, the order impugned cannot be set aside. The submission of the Counsel for the respondents, in this regard, does not merit acceptance. Since, the complaint was dismissed, for non-prosecution by the complainant on 3.7.2012, it has availed of the legal remedy of filing the instant appeal, against the said order. Once it chose the remedy, which was available to it, by way of filing an appeal against the order dated 3.7.2012, it would not be in the fitness of things, to direct it to withdraw the appeal and file a second complaint, on the same cause of action. The submission of the Counsel for the respondents, in this regard, being devoid of merit, stands rejected.
13. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The complaint is remanded back to the District Forum, with a direction to restore the same, to its original number, proceed further, from the stage, at which, it was dismissed for non-prosecution and decide the same on merits, in accordance with the provisions of law. However, the appellant/complainant is burdened with costs of Rs.3000/- (three thousands), for causing delay, in the disposal of complaint. The payment of costs shall be a condition precedent.
14. The parties are directed to appear before District Forum (II) on 15.10.2012 at 10.30 A.M. for further proceedings.
15. The District Forum record, alongwith a certified copy of the order, be sent back immediately, so as to reach there, well before the date fixed.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to the Record Room, after compliance.
Sd/-
Pronounced.
(Justice Sham Sunder)(Retd) October 1, 2012 President.
Sd/- (Neena Sandhu) Member STATE COMMISSION (Appeal No.231 of 2012) Present:
Sh.Mohan Lal Joshi, Assistant Manager (authorized representative) for the appellant.
Sh.Varun Chawla, Advocate, proxy for Mrs.Vandana Malhotra, Advocate for the respondents.
Dated:
ORDER Vide our detailed order of the even date, recorded separately, the appeal has been accepted, and the order impugned has been set aside. The case has been remanded back to the District Forum for fresh decision. The parties have been directed to appear before the District Forum on 15.10.2012 at 10.30A.M. for further proceedings.
(Neena Sandhu) (Justice Sham Sunder)(Retd) Member President