State Consumer Disputes Redressal Commission
M/S Saluja Motors Private Limited vs 1. Gajender Singh on 13 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 303 of 2013 Date of Institution : 18.07.2013 Date of Decision : 13/09/2013 M/s Saluja Motors Private Limited, Plot No. C-43, Indl. Area, Phase-3, Mohali, through its Managing Director, Now M/s Saluja Motors Private Limited, through its Director Shri Varinder Singh Saluja, son of Shri Harbhajan Singh Saluja, aged about 38 years, Plot No.140, Industrial Area, Phase II, Chandigarh. Appellant/Opposite Party No.2 V e r s u s 1. Gajender Singh son of Shri Roop Singh, resident of Village: Panji, Post Office: Kotbeja, Tehsil: Kasauli, District: Solan, Himachal Pradesh. ....Respondent No.1/complainant. 2. New India Assurance Company Limited, through its Divisional Manager, having its office at SCO No. 804, N.A.C. Manimajra, Chandigarh, ....Respondent No.2/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986. Argued by: Sh.Vikas Jain, Advocate for the appellant/Opposite Party No.2 Sh. Gaurav Bhardwaj, Advocate for respondent no.1, alongwith Sh. Gajender Singh, respondent no.1, in person/complainant. Sh. Vinod Chaudhri, Advocate for respondent no.2/Opposite Party No.1. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded in connected First Appeal No. 291 of 2013 titled as New India Assurance Company Limited Vs. Gajender Singh and another, this appeal has been accepted, with no order as to costs.
2. Certified copy of the order, passed in First Appeal No. 291 of 2013 titled as New India Assurance Company Limited Vs. Gajender Singh and another, be placed on this file.
3. Certified copies of the main order, alongwith this order be sent to the parties, free of charge.
4. The file be consigned to Record Room, after completion.
Sd/- Sd/-
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
291 of 2013 Date of Institution :
12.07.2013 Date of Decision :
13/09/2013 New India Assurance Company Limited, SCO No. 804, NAC Manimajra, Chandigarh, through its Divisional Manager, Now Manager NIA Co. SCO 36, Sector 17A, Chandigarh.
Appellant/Opposite Party No.1 V e r s u s
1.
Gajender Singh S/o Roop Singh, resident of Village Panji, P.O. Kotbeja, Tehsil Kasauli, District Solan, H.P. ....Respondent No.1/complainant.
2. Saluja Motors Pvt. Ltd., Plot No. C-43, Indl. Area, Phase-III, Mohali, through its Managing Director.
....Respondent No.2/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by: Sh. Vinod Chaudhri, Advocate for the appellant/Opposite Party No.1.
Sh. Gaurav Bhardwaj, Advocate for respondent no.1, alongwith Sh. Gajender Singh, respondent no.1, in person/complainant.
Sh.Vikas Jain, Advocate for respondent no.2/Opposite Party No.2
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First Appeal No. :
303 of 2013 Date of Institution :
18.07.2013 Date of Decision :
13/09/2013 M/s Saluja Motors Private Limited, Plot No. C-43, Indl. Area, Phase-3, Mohali, through its Managing Director, Now M/s Saluja Motors Private Limited, through its Director Shri Varinder Singh Saluja, son of Shri Harbhajan Singh Saluja, aged about 38 years, Plot No.140, Industrial Area, Phase II, Chandigarh.
Appellant/Opposite Party No.2 V e r s u s
3. Gajender Singh son of Shri Roop Singh, resident of Village: Panji, Post Office: Kotbeja, Tehsil: Kasauli, District: Solan, Himachal Pradesh.
....Respondent No.1/complainant.
4. New India Assurance Company Limited, through its Divisional Manager, having its office at SCO No. 804, N.A.C. Manimajra, Chandigarh, ....Respondent No.2/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by: Sh.Vikas Jain, Advocate for the appellant/Opposite Party No.2 Sh. Gaurav Bhardwaj, Advocate for respondent no.1, alongwith Sh. Gajender Singh, respondent no.1, in person/complainant.
Sh. Vinod Chaudhri, Advocate for respondent no.2/Opposite Party No.1.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT The final arguments, in the Consumer Complaint bearing No.619 of 2012 were heard, by the District Consumer Disputes Redressal Forum (II), Chandigarh (hereinafter to be referred as the District Forum), on 22.04.2013, when it was being presided over by Shri Lakshman Sharma, the then President of the District Forum and Mrs. Madhu Mutneja, a Member thereof. Two dissenting orders by Sh. Lakshman Sharma, the then President of the District Forum and Mrs. Madhu Mutneja, Member, were rendered on 03.05.2013. Since, there was a difference of opinion, in the orders recorded by the President of the District Forum, as also Mrs. Madhu Mutneja, a Member thereof, as to whether, there was any deficiency, in rendering service, on the part of the Opposite Parties, or not, so in view of Section 14 (2A) of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act only), the matter was referred to be heard by the other Member of the District Forum, namely Mr. Jaswinder Singh Sidhu.
2. The other Member, Mr. Jaswinder Singh Sidhu, after hearing the Consumer Complaint, recorded the order dated 06.06.2013, which was, in agreement with the order dated 03.05.2013, recorded by Shri Lakshman Sharma, the then President of the District Forum.
3. This order shall dispose of the aforesaid two First Appeal Nos. 291 of 2013 titled as New India Assurance Company Limited Vs. Gajender Singh and another and 303 of 2013 titled as M/s Saluja Motors Private Limited, Vs. Gajender Singh and another, directed against the majority orders dated 03.05.2013, and 06.06.2013, rendered by the District Forum, recorded by the then President and the second Member of the District Forum, respectively, vide which, it accepted the complaint, filed by the complainant (now respondent no.1, in both the appeals) and directed the Opposite Parties (now appellants), as under:-
to pay the amount of Rs.3,26,365/-, as assessed by the surveyor in his report dated 11.6.2012;
i. to pay a sum of Rs.1,00,000/- as compensation for mental agony and harassment caused to the complainant; and ii. to pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) above shall carry interest @18% per annum from the date of filing of this complaint till actual payment besides payment of litigation costs.
4.
However, Mrs. Madhu Mutneja, one Member of the District Forum, recorded dissenting order dated 03.05.2013, dismissing the Consumer Complaint.
5. The facts, in brief, are that the complainant, being the owner of FORD Fiesta car bearing No. HP-15-A-0216, got the same insured from Opposite Party No.1, for the Insured Declared Value, to the tune of Rs.6,17,500/-, for the period from 24.10.2008 to the midnight of 23.10.2009. It was stated that the said car, met with an accident, on 07.04.2009, and was extensively damaged. The driver of the car died, in the accident, and nephew of the complainant sustained injuries. The matter was reported to the Police and F.I.R. No.41 dated 11.04.2009, was registered, on the basis of the statement of the father of the driver. The father of the driver had alleged that the car was being driven by Mr. Abhimanyu Singh, nephew of the complainant. It was further stated that Opposite Party No.1, was also immediately intimated, with regard to the accident. The vehicle was taken to Opposite Party No.2, for repairs, after the Police released the same. Eventually, the claim intimation form was filed with Opposite Party No.1, whereupon, it appointed a Surveyor, to investigate the matter. It was further stated that Opposite Party No.2, demanded some money, in advance, from the complainant, so that repairs could be started, in respect of the damaged vehicle. It was further stated that, while the complainant was making arrangements, for the funds, his claim was closed by Opposite Party No.1, as no claim in terms of the Survey report, submitted by him. It was further stated that, however, no written intimation was given, with regard to the same, to the complainant. It was further stated that the complainant paid some money, in advance, to Opposite Party No.2, whereafter, it started repair work, in respect of the damaged vehicle. Thereafter, the complainant visited the office of Opposite Party No.1, a number of times, and informed it that he was pursuing the case under Sections 279 and 304-A of the Indian Penal Code, registered against Abhimanyu, s/o Sh. Rajinder Singh, aged about 17 years, pending in the Court of Magistrate, Juvenile Justice Board, Rupnagar. It was further stated that the Court case was finally decided, on 07.12.2011, wherein the nephew of the complainant was acquitted. It was further stated that the Principal Magistrate, Juvenile Justice Board, Rupnagar, recorded the findings, to the effect that the prosecution witnesses PW1 to PW4 had not supported the case of prosecution, and also that Thakur Singh s/o Jeet Singh was driving the car, rashly and negligently, due to which the accident took place. It was further stated that even the father of the driver of the vehicle, had stated that he was not in the knowledge, as to who was driving the same, but on the asking of the Police, he had given the name of Abhimanyu - nephew of the complainant.
6. It was further stated that the complainant, accordingly, requested Opposite Party No.1, vide letter dated 11.01.2011, to re-open the case, based on the decision of the Magistrate, Juvenile Justice Board, Rupnagar. It was further stated that the Surveyor of Opposite Party No.1, also conducted re-inspection of the vehicle, after repairs, and prepared a detailed final Survey Report dated 11.06.2012, which was handed over directly to the complainant, on receiving his schedule fees, as Opposite Party No.1 had refused to accept the same. The Surveyor assessed the loss, to the tune of Rs.3,26,365/-, and the salvage value for Rs.10,386/. It was further stated that the act of Opposite Party No.1, in not making payment, on the basis of the Survey Report, amounted to deficiency, in rendering service, as also indulgence 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, directing Opposite Party No.1, to pay the amount of Rs.3,26,365/-, alongwith interest @18% P.A., from the date of accident, till realization; compensation, to the tune of Rs.1 lac, for deficiency, in rendering service, and adopting unfair trade practice; and cost of litigation, to the tune of Rs.33,000/-
7. Opposite Party No.1, in its written version, pleaded that the complaint was barred by time, as the cause of action accrued, in favour of the complainant, on 07.04.2009, the date when the accident took place, whereas it was filed on 04.12.2012, i.e. after more than three years and eight months, and no application under Section 24A of the Act, for condonation of delay, had been filed. It was stated that the complainant had wrongly stated that the driver died, in the accident. It was further stated that bare perusal of the F.I.R. aforesaid, revealed that Abhimanyu s/o Rajinder Singh, aged 17 years, who was not holding a driving licence, was driving the vehicle, in question, at the time of accident. It was further stated that since the vehicle was being driven by Abhimanyu, a juvenile in conflict with law, who was not having a driving licence, the case was registered by the Police, which was decided by the Magistrate, Juvenile Justice Board, Rupnagar, on 07.12.2011. It was further stated that since the complainant, very well knew that he could not get the claim amount, as the vehicle was being driven by a person, not holding the effective driving licence, or competent to hold the same, he never approached the Insurance Company, after intimation of the claim, for indemnification. It was further stated that though according to the complainant, Thakur Singh s/o Jeet Singh was driving the vehicle, yet, no copy of his driving licence was also produced by him, on the record. It was further stated that the complainant wrongly mentioned, in the complaint that the driver of the vehicle died. It was further stated that the claim of the complainant was closed, as it was not pursued by him, knowing fully well, that it was not payable, as Abhimanyu, who was driving the vehicle, was neither holding the effective driving licence, nor was competent to hold the same. It was further stated that since there was violation of the terms and conditions of the Policy, the claim was not payable. It was further stated that the mere fact that the witnesses turned hostile, before the Magistrate, Juvenile Justice Board, Rupnagar, did not mean that the complainant was entitled to the amount of claim, as the findings of the Criminal Court, were not binding upon the District Forum. It was further stated that there was no point, in accepting the Survey Report, at the belated stage, as the claim had already become time barred, and, as such not payable. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8. Opposite Party No.2, in its written version, pleaded that the complaint was barred by time. It was stated that the vehicle, in question, was brought to the workshop of Opposite Party No.2, on 12.06.2009. It was further stated that, later on, the delivery of vehicle, in question, was made to the complainant, after repairs, to his full satisfaction. It was further stated that even a discount of Rs.29,874/-, was given to the complainant, on humanitarian grounds, keeping in view his financial condition. It was further stated that the complainant had paid a sum of Rs.3,85,000/- against the total dues of Rs.4,14,874/-. It was further stated that Opposite Party No.2, had requested the complainant to deposit some amount, in advance, so that the repairs could be started, in respect of the damaged vehicle, in question, as there was no cashless facility, provided in the Insurance Policy. It was further stated that since, no specific grievance had been made by the complainant, in the complaint, against Opposite Party No.2, as also no relief had been sought, by him (complainant), against it (Opposite Party No.2), the same (complaint) was not maintainable against it. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong
9. The Parties led evidence, in support of their case.
10. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, vide its majority orders dated 03.05.2013, and 06.06.2013, accepted the complaint, in the manner, referred to, in paragraph number 3 above, of the instant order.
11. Feeling aggrieved, First Appeal Nos. 291 of 2013 titled as New India Assurance Company Limited Vs. Gajender Singh and another and 303 of 2013 titled as M/s Saluja Motors Private Limited, Vs. Gajender Singh and another, have been filed by the appellants/Opposite Parties No.1 and 2, respectively, for setting aside the majority orders dated 03.05.2013, and 06.06.2013, whereby, the complaint of the complainant was accepted.
12. We have heard the Counsel for the parties, in both the appeals, and, have gone through the evidence, and record of the case, carefully.
13. The Counsel for the appellants, in both the appeals, submitted that, the complaint was barred by time, as the cause of action accrued, to the complainant, on 07.04.2009, when the accident took place, but the same (complaint) was filed, on 04.12.2012, without any application, for condonation of delay. They further submitted that, as per the first version, incorporated, in the F.I.R. aforesaid, the vehicle was being driven by Abhimanyu s/o Rajinder Singh, aged 17 years, at the time of accident, and, therefore, he was neither competent to hold effective driving licence, for driving the vehicle, nor was holding the same. They further submitted that the name of Thakur Singh s/o Jeet Singh, driver of the vehicle, was introduced, later on, in the claim form, by the complainant which was filed after more than two months of the accident. They further submitted that, no doubt, Challan was presented against Abhimanyu s/o Rajinder Singh, driver, before the Principal Magistrate, Juvenile Justice Board, Rupnagar, and he was acquitted, on the ground, that the witnesses of the prosecution, turned hostile. They further submitted that the judgment of the Principal Magistrate, Juvenile Justice Board, Rupnagar, is not binding on this Commission. They further submitted that there was violation of the terms and conditions of the Policy, and, as such, the claim was not payable. They further submitted that, even the conduct of the complainant, clearly showed that he kept mum, for a period of about three years and eight months, and only waited for the decision of the Criminal case, against Abhimanyu s/o Rajinder Singh, as he knew that the witnesses had been prevailed upon, by him, and they will turn hostile. They further submitted that the District Forum, vide its majority orders, referred to above, was, thus, wrong, in coming to the conclusion, by relying upon the decision of the Principal Magistrate, Juvenile Justice Board, Rupnagar, that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice. They further submitted that the majority orders of the District Forum, referred to above, being illegal, and invalid, are liable to be set aside.
14. On the other hand, the Counsel for the respondent/complainant, in both the appeals, submitted that, it was Thakur Singh s/o Jeet Singh, who was driving the vehicle, at the relevant time, when it met with an accident, and he also died, on account of the injuries sustained by him. He further submitted that FIR was lodged by Jeet Singh, father of Thakur Singh, who mentioned the name of Abhimanyu s/o Rajinder Singh, as driver of the vehicle, though, he (Jeet Singh) was not present, at the time of the accident. He further submitted that the version of the complainant, that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle, at the time of accident, was, thus, correct and not an afterthought. He further submitted that even the Principal Magistrate, Juvenile Justice Board, Rupnagar, in clear-cut terms, held that Abhimanyu s/o Rajinder Singh, was not driving the vehicle, but it was Thakur Singh s/o Jeet Singh, who was driving the same, at the time of accident. He further submitted that, as such, the findings of the Principal Magistrate, Juvenile Justice Board, Rupnagar, were binding on the District Forum. He further submitted that the District Forum, vide its majority orders, was right, in accepting the complaint.
15. The first question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was bared by time, or not. No doubt, the accident, in this case, took place on 07.04.2009, and the Consumer Complaint was filed on 04.12.2012. However, there is no document, on the record, to prove, that the claim of the complainant was ever repudiated or closed, and he was communicated about the said decision, by the appellant/Opposite Party No.1, in First Appeal No. 291 of 2013 titled as New India Assurance Company Limited Vs. Gajender Singh and another. The cause of action, thus, subsisted, till repudiation, or the closure of claim, in question was communicated to the complainant. Since, in the instant case, no communication, with regard to the closure of claim, was ever sent to the complainant, by the appellant/Opposite Party No.1, there was a continuing cause of action, to file the complaint. Similar principle of law, was laid down, in New India Assurance Co. Ltd Vs. Smt. Satvinder Kaur and Anr., Revision Petition No.3532 of 2007 and New India Assurance Co. Ltd. Vs. Smt. Bhupinder Kaur and Anr., Revision Petition No.3533 of 2007, decided on 02.04.2012, by the National Consumer Disputes Redressal Commission, New Delhi. Under these circumstances, it is held that the Consumer Complaint filed by the complainant, was not barred by time. The submission of the Counsel for the appellants/Opposite Parties No.1 and 2, in both the appeals, therefore, being devoid of merit, must fail, and the same stands rejected.
16. The next question, that falls for consideration, is, as to who was driving the vehicle, at the time of accident, which took place, on 07.04.2009, in respect whereof FIR Annexure C-3 was got registered, by Jeet Singh Verma, on 11.04.2009, the translated copy whereof is Annexure 3-A. The first version of the accident, came to be incorporated, in the FIR dated 11.04.2009. It is evident, from this document, that the name of the driver, mentioned therein, was Abhimanyu s/o Rajinder Singh. It was stated by Jeet Singh Verma, in his statement, on the basis whereof, the FIR was registered, that his son Thakur Singh was sitting on the front side of the vehicle, alongwith the driver namely Abhimanyu s/o Rajinder Singh. It is not that the FIR was got registered by Jeet Singh Verma, when he was not in sound state of mind. Since, the FIR had been got registered, after four days of the accident, it clearly proved that Jeet Singh Verma was in a fit/sound state of mind, when he made the statement, giving rise to the registration of the FIR. In case, the contents of the FIR, in any way, were incorrect, then Gajender Singh, complainant, could immediately move an application, before the Police, that it was not Abhimanyu s/o Rajinder Singh, aged 17 years, who was driving the vehicle, when it met with an accident, but infact, Thakur Singh s/o Jeet Singh, who was driving the same, at the relevant time. No such application was moved by Gajender Singh, complainant, in that regard, immediately after the registration of the FIR. It means, that Gajender Singh, complainant admitted the version contained, in the FIR, which came into existence, first in point of time, after the accident took place. The FIR was registered on 11.04.2009, whereas, the claim intimation letter Annexure C-4, was submitted by the complainant, to the Insurance Company (Opposite Party No.1), on 12.06.2009. This claim intimation letter was submitted after about more than two months of the accident, by the complainant, to the Insurance Company. It was, for the first time, that, in this document, it was stated that the driver, who was driving the vehicle, at the relevant time, was Thakur Singh s/o Jeet Singh. Even the licence of Thakur Singh was not produced on record. This was an afterthought version, which was given by the complainant, in claim intimation letter, to the Insurance Company, after more than two months of the accident, as he very well knew that Abhimanyu s/o Rajinder Singh, aged 17 years, who was driving the vehicle, at the time of accident, was neither competent to hold an effective driving licence, nor was holding so, at that time. The version set up by Gajender Singh, complainant, in claim intimation letter, that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle, at the relevant time, could not be said to be reliable, in any manner. Not only this, even the affidavits of the alleged eye witnesses were not produced, on the record, as Gajender Singh, complainant was not present, at the time of accident, to prove that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle. No doubt, reliance was placed on Annexure C-5, copy of the judgment, dated 07.12.2011 passed by the Principal Magistrate, Juvenile Justice Board, Rupnagar, in the criminal case, which was registered against Abhimanyu s/o Rajinder Singh, under Sections 279 and 304-A of the Indian Penal Code. It is settled principle of law, that the findings of the Criminal Court, are not binding on the Quasi-Judicial Tribunals. Not only this, copy of the judgment Annexure C-5, clearly goes to reveal that all the alleged eye witnesses, did not support the case of the prosecution. It was, on account of this reason, that Abhimanyu s/o Rajinder Singh, aged 17 years, was acquitted of the charges, framed against him. It was not an hon`ble acquittal. It may be stated here, that a Criminal Case is required to be proved, by leading cogent and convincing evidence. Criminal case must be proved, beyond doubt, before the conviction of an accused is recorded. The witnesses were apparently prevailed upon, by the complainant, as a result whereof, they resiled from their previous statements, resulting into acquittal of Abhimanyu s/o Rajinder Singh. No reliance, therefore, can be placed thereon on Annexure C-5. It is, therefore, held that it was Abhimanyu s/o Rajinder Singh, who was driving the vehicle, at the time of accident. The findings of the District Forum, in its majority orders, that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle, at the time of accident, therefore, being not correct, are reversed.
17. The next question, that falls for consideration, is, as to whether, Abhimanyu s/o Rajinder Singh, who was driving the vehicle, at the relevant time, when it met with an accident, was competent, in accordance with the provisions of law, to hold an effective driving licence, to drive the vehicle, or was holding so. Admittedly Abhimanyu s/o Rajinder Singh, was juvenile in conflict with law, at the time of accident. It means that he was below 18 years of age, at the time of accident. Section 3 of the Motor Vehicles Act, 1988, lays down the necessity for holding a driving licence According to Section 3, no person can drive a motor vehicle, in any public place, unless he holds an effective driving licence, issued to him authorizing him to drive the same. Section 4 of the Motor Vehicles Act 1988, with regard to age limit, in connection with driving of motor vehicles, reads as under:-
4. Age limit in connection with driving of motor vehicles:-.
(1) No person under the age of eighteen years shall drive a motor vehicle in any public place: Provided that a motor cycle (with engine capacity not exceeding 50cc) may be driven in a public place by a person after attaining the age of sixteen years.
(2) Subject to the provisions of Section 18, no person under the age of twenty years shall drive a transport vehicle in any public place.
(3) No learner' s licence or driving licence shall be issued to any person to drive a vehicle of the class to which he has made an application unless he is eligible to drive that class of vehicle under this section.
18. The conjoint reading of the aforesaid provisions, clearly goes to show that Abhimanyu s/o Rajinder Singh, being below 18 years of age, could not hold an effective driving licence, for driving the vehicle, nor he could be granted the same, nor he was holding the same. Under these circumstances, Abhimanyu could not drive the motor vehicle, in any public place. It means that Abhimanyu s/o Rajinder Singh, driver of the vehicle, at the time of accident, was not holding an effective driving licence, to drive the same. According to the Policy document, marked as Annexure AX by this Commission, the vehicle could be driven by any person, including the insured, provided that the person driving the same was holding an effective driving licence at the time of the accident and was not disqualified from holding or obtaining such a licence. Abhimanyu s/o Rajinder Singh, was, thus, driving the vehicle, against the provisions of Sections 3 and 4 of the Motor Vehicles Act 1988, Rule 3 of Central Motor Vehicles Rules, 1989, and the terms and conditions of the Policy, referred to above. Under these circumstances, the Insurance Company could legally and validly repudiate the claim of the complainant, on this ground. The complainant, was, thus, not entitled to the indemnification of loss, assessed by the Surveyor. There was, therefore, no deficiency, in rendering service, on the part of Opposite Party No.1, in repudiating the claim of the complainant. The findings of the District Forum, to the contrary, in its majority orders, being perverse, are reversed.
19. Even the conduct of the complainant could not be said to be above-board. The complainant sent the claim intimation letter on 12.06.2009, and slept over the matter, for the reason, that he was awaiting the decision, in the Criminal Case, against Abhimanyu s/o Rajinder Singh, as he (complainant) apparently prevailed upon the eye witnesses, and knew that they would resile from their statements, leading to the acquittal and, ultimately, on the basis the Judgment of the Criminal Court, he will claim that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle. It could not be imagined that a person would sleep over the matter, after giving claim intimation letter, to the Insurance Company, for a period of about more than three years, and six months, and, ultimately, file the Consumer Complaint, after the decision of Criminal Case holding that it was Thakur Singh s/o Jeet Singh, who was driving the vehicle. The conduct of the complainant, therefore, speaks volumes, that one way or the other, after setting up a concocted story, he wanted indemnification of the claim, knowing fully well, that it was Abhimanyu s/o Rajinder Singh, who was driving the vehicle, at the relevant time, and Opposite Party No.1, repudiated the claim on this ground. Silence, on the part of the Gajender Singh, complainant, for such a long time, also clearly proved that his claim was not genuine.
20. Otherwise also, as per record, the complainant sent claim intimation form/letter on 12.06.2009, vide Annexure C-4. It was, vide this letter, that the intimation with regard to the accident of the vehicle, in question, was given to the Opposite Parties, for the first time. The accident of the vehicle, in question, took place on 07.04.2009. It means that Opposite Party No.1, for the first time, was informed with regard to the accident of vehicle, after more than two months of the happening of the same. In these circumstances, we are also required to see, as to whether, there was breach of any condition of the Policy Annexure AX, and, if, so, what were the consequences thereof. Condition number 1 of the Policy, contained in Annexure AX, under the heading DEDUCTIBLE, reads as under ;
DUDCTIBLE The Company shall not be liable for each and every claim under Section-1 (loss of or damage to the vehicle insured) of this Policy in respect of the deductible stated in the schedule.
CONDITIONS This Policy and the Schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear the same meaning wherever it may appear.
1. Notice shall be given in writing to the Company immediately upon the occurrence of any accidental loss or damage. In the event of any claim and thereafter the insured shall give all such information and assistance as the Company shall require. Every letter claim writ summons and/or process or copy thereof shall be forwarded to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the insured shall have knowledge of any impending prosecution inquest or fatal Injury in respect of any occurrence which may give rise to a claim under this policy. In case of theft or criminal act, which may be the subject of a claim under this Policy the insured shall give immediate notice to the police and co-operate with the Company, in securing the conviction of the offender.
21. The plain reading of Condition No.1, extracted above, clearly goes to show, that a notice shall be given, in writing, to the Company, immediately, upon the occurrence of any accidental loss or damage, in the event of any claim, and, thereafter, the insured shall give all such information and assistance as the Company shall require. No doubt, as per the said Clause, in case of theft or criminal act, which may be the subject of a claim, under this Policy, the insured shall give immediate notice to the Police and co-operate with the Company in securing the conviction of the offender. This is, in addition to the giving of notice, in writing, to the Company, immediately, upon occurrence of accidental loss or damage, and in the event of any claim. Under the heading deductible it was, in clear-cut terms, provided, that the Company shall not be liable for each and every claim under Section-1 (loss of or damage to the vehicle insured) of the Policy in respect of the deductible, stated in the schedule. There was certainly a breach of the aforesaid fundamental condition of the Policy Annexure AX. It is settled principle of law, that the Consumer Foras are required to construe the terms and conditions of the Policy, as it is, and nothing can be added or subtracted therefrom. Similar principle of law, was laid down in United India Insurance Company Limited v. M/s. Harchand Rai Chandan Lal reported in JT 2004 (8) SC 8.
22. Since there was violation of Condition No.1 of the Policy, as stated above, now let us see, as to what were the consequences thereof. In New India Assurance Company Ltd. Vs Trilochan Jane, First Appeal No.321 of 2005 decided on 9.12.2009 by the National Consumer Disputes Redressal Commission, a similar question, fell for decision. In that case also, there was condition No.1 in the policy, similar and identical to condition No.1, in the instant case. While accepting the appeal, holding the repudiation of claim, by the Insurance Company, as valid, and setting aside the order of the Fora below, the National Commission held as under ;
Word immediately has not been defined under the Act. Resort has to be made to the dictionary meaning assigned to it.
As per Oxford Advanced Learners Dictionary, the word immediately means at once.
As per Strouds Judicial Dictionary, Fifth Edition, word immediately is defined as under: -
(1). The word immediately, although in strictness it excludes mean times, yet to make good the deeds and intents of parties it shall be construed such convenient time as is reasonable requisite for doing the thing.
As per Blacks Law Dictionary, Sixth Edition, word immediately means: -
Immediately. Without interval of time, without delay, straightway, or without any delay or lapse of time. When used in contract is usually construed to mean within a reasonable time having due regard to the nature of the circumstances of the case, although strictly, it means, not deferred by any period of time. The words immediately and forthwith have generally the same meaning. They are stronger than the expression within a reasonable time and imply prompt, vigorous action without any delay.
23. According to Mitras Legal and Commercial Dictionary, Fifth Edition word immediately is defined as under: -
Immediately. Immediately is to be construed as meaning with all reasonable speed, considering the circumstances of the case. Halsburys Laws of England, 4th Ed. Vol. 23, para 1618, p. 1178.
The word immediately is stronger than the expression within a reasonable time, and imply prompt, vigorous action, without any delay. It means all convenient speed. The word immediately should not be construed so as to require doing something which is impossible.
As per Oxford Advanced Learners Dictionary, the word immediately means at once whereas Strouds Judicial Dictionary, Fifth Edition, word immediately in the context of contract has to be taken as reasonable requisite time for doing the thing. As per Blacks Law Dictionary, Sixth Edition, word immediately means doing of a thing straightway or forthwith but when used in the context of contract, it is usually construed to mean within a reasonable time having due regard to the nature of circumstances of the case. More or less to the effect, is the same meaning assigned in Mitras Legal and Commercial Dictionary, Fifth Edition. Since, in the present case, there was a contract between the insured and the insurer and, the word immediately, under the circumstances, has to be construed within a reasonable time having due regard to the nature of circumstances of the case.
In the case of theft where no bodily injury has been caused to the insured, it is incumbent upon the respondent to inform the Police about the theft immediately, say within 24 hours, otherwise, valuable time would be lost in tracing the vehicle. Similarly, the insurer should also be informed within a day or two so that the insurer can verify as to whether any theft had taken place and also to take immediate steps to get the vehicle traced. The insurer can coordinate and cooperate with the Police to trace the car. Delay in reporting to the insurer about the theft of the car for 9 days, would be a violation of condition of the Policy as it deprives the insures of a valuable right to investigate as to the commission of the theft and to trace/help in tracing the vehicle.
In the aforesaid case, there was a delay of 2 days in lodging the FIR and 9 days in reporting the loss to the Insurer. Even, in those circumstances, the National Commission, in clear-cut terms, held that since there was violation of Condition No.1 of the Policy, as the insurer was deprived of the valuable right to investigate the matter in its proper perspective, the repudiation of claim, was legal and valid.
24. In Devendra Singh Vs. New India Assurance Co. Ltd., & Ors. III (2003) CPJ 77 (NC), a case decided by a three Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, theft of the vehicle was reported to the Police, after four days and to the Insurance Company after about a month. The claim of the complainant was repudiated. Feeling aggrieved, he filed a complaint, before the District Forum, which was dismissed. First Appeal which was filed before the State Consumer Disputes Redressal Commission, by the appellant/complainant, was also dismissed. Still feeling dissatisfied, he filed Revision Petition, before the National Consumer Disputes Redressal Commission, New Delhi, which was also dismissed, on the ground, that the claim was rightly repudiated. Similar principle of law, was laid down in Silversons Vs Oriental Insurance Company Ltd. & Anr. IV(2011)CPJ 9(SC). In the instant case, also accident of the vehicle was reported, after more than two months, to the Insurance Company, as also after four days to the Police. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. In our considered opinion, Opposite Party No.1 was right, in repudiating the claim of the complainant, In view of the above, it is held that Opposite Party No.1, legally and validly repudiated/closed the claim of the complainant, and, as such, it could not be said that it was deficient, in rendering service, or indulged into unfair trade practice.
25. Now coming to First Appeal No. 303 of 2013 titled as M/s Saluja Motors Private Limited, Vs. Gajender Singh and another, it may be stated here, that no deficiency, was alleged against the appellant/Opposite Party No.2, by the complainant. M/s Saluja Motors Private Limited, was only repairer of the vehicle. Even no relief against Opposite Party No.2, in the District Forum, was sought by the complainant, in the complaint. It is not known, how the District Forum, vide its majority orders, granted relief, against M/s Saluja Motors Private Limited/Opposite Party No.1 also, knowing fully well that neither the same had been claimed against it, nor there was any deficiency, in rendering service, on its part, as it was only the repairer. The findings of the District Forum, holding Opposite party No.2, deficient, in rendering service, therefore, being perverse are reversed.
26. No other point, was urged, by the Counsel for the parties, in both the appeals.
27. In view of the above discussion, it is held that the majority orders 03.05.2013, and 06.06.2013, referred to, in paragraph number 3 of the instant order, passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
28. For the reasons recorded above, both the appeals are accepted, with no order as to costs. The majority orders, referred to above, of the District Forum are set aside.
29. Certified copy of this order be placed in First Appeal No. 303 of 2013 titled as M/s Saluja Motors Private Limited, Vs. Gajender Singh and another.
30. Certified copies of this order, be sent to the parties, free of charge.
31. The files be consigned to Record Room, after completion Pronounced.
September 13, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg