State Consumer Disputes Redressal Commission
Icici Lombard General Insurance Co. ... vs Sanjay Kumar on 12 May, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 65 of 2015 Date of Institution 13.03.2015 Date of Decision 12.05.2015 ICICI Lombard General Insurance Company Limited, Registered Office at Zenith House, Keshavarao Khade Marg, Mahaluxmi, Mumbai through its Managing Director. ICICI Lombard General Insurance Company Limited, Local Office at SCO No. 24-25, First Floor, Sector 8-C, Madhya Marg, Chandigarh, through its Branch Head. .....Appellants/Opposite Parties No.1 & 2. Versus 1. Sanjay Kumar s/o Budhi Lal resident of House No.5734, Maloya Colony Chandigarh. ...Respondent No.1/Complainant 2. Ajay Tanwar Surveyor of ICICI Lombard General Insurance Company Limited, Local Office at SCO No.24-25, First Floor, Sector 8-C, Madhya Marg, Chandigarh. 3. Speed Motors, 181 Industrial Area, Phase 1, Chandigarh through its Proprietor/Manager .....Respondents No.2 & 3/Opposite Parties No.3 & 4. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Er.Sandeep Suri, Advocate for the appellants.
Sh.Manoj Lakhotia, Advocate for respondent No.1/complainant. Respondents No.2 & 3 already exparte vide order dated 23.04.2015 & 28.04.2015. PER PADMA PANDEY, MEMBER
This appeal is directed against the order dated 24.12.2014, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed Consumer Complaint No.399 of 2014, filed by the complainant, with the following directions:-
"13. As a result of the above discussion, the complaint is allowed partly. It is ordered as under :-
a) The complainant shall make the payment of the amount of Rs.47,383/- to OP-4 within 20 days of receipt of copy of the order and OP-4 shall immediately hand over the repaired vehicle in good running condition alongwith a certificate about its roadworthiness from a qualified engineer to him.
b) OPs 1 to 3 shall make the payment of compensation amount to the tune of Rs.25,000/- to the complainant on account of deficiency in service and for harassment caused to him because of delay resulting in loss of earning for which their liability shall be joint and several.
c) OP-4 shall make the payment of an amount of Rs.15,000/- to the complainant towards compensation for deficiency in service on its part.
d) OPs 1 to 3 shall make payment of litigation expenses to the tune of Rs.10,000/- to the complainant.
This order shall be complied with by the OPs within one month from the date of receipt of its certified copy; thereafter the OPs shall make the payment of the respective compensation amounts as at (b) & (c) above with interest @ 12% per annum from the date of filing of the present complaint, till realisation by the complainant, besides the litigation costs and compliance of direction at (a) above."
2. The facts, in brief, are that the complainant purchased a light goods vehicle namely Tata Ace BS-III bearing registration No.CH01-TA-9552 on 28.3.2013 for the purpose of earning his livelihood, by means of self-employment. It was stated that the complainant got the said vehicle insured from Opposite Party No.1 through its local branch office Opposite Party No.2 vide Policy (Annexure C-3) for the period from 28.03.2013 to 27.03.2014. It was further stated that on 27.07.2013 at about 9.30 PM, when the complainant and his driver, who was driving the vehicle, were going to Zeera Mandi, Sector 39, Chandigarh, all of a sudden, the engine of the vehicle caught fire and front portion of the same was badly damaged. Some passerby had informed the police and the fire brigade. As such, the police arrived at the spot and DDR No.38 dated 27.07.2013 (Annexure C-4) was registered. It was further stated that as 28.07.2013 was Sunday, therefore, the complainant intimated the Insurance Company on 29.07.2013 and lodged the complaint on telephone through customer care vide complaint No.MOTO3246339. It was further stated that as per instructions of the Insurance Company, the complainant took the vehicle to Opposite Party No.4 on 02.08.2013, which is the authorized service centre of Tata Motors and parked the same there for repair. It was further stated that the official of Opposite Party No.4, Mr. Pramod Kumar told the complainant that first the survey would be conducted by the official Surveyor of the Insurance Company and then the work would proceed further, upon which, he told the said official that the same be conducted in his presence. However, the complainant did not receive any call and after a week, when he visited Opposite Party No.4, he learnt that the survey of the vehicle had already been conducted by the Surveyor, Mr. Ajay Tanwar (Opposite Party No.3). The complainant time and again requested the Surveyor to do the needful, as early as possible, but he lingered on the matter and after 10-15 days told him to contact Mr. Suresh Gupta in the office of Opposite Party No.2. It was further stated that when the complainant contacted Mr. Suresh Gupta, he told that no such claim case file of the complainant was received by their office and further advised him either to contact the Surveyor again or contact their Mohali Office. It was further stated that that Opposite Party No.2 and its Surveyor Mr.Ajay Tanwar (Opposite Party No.3) started putting off the matter on one pretext or the other.
It was further stated that upon enquiries, it was learnt that Opposite Party No.4 had already prepared the work order as well as estimate of repair on 08.08.2013 and handed over to the Insurance Company (Opposite Party No.2) but inspite of this no repair work was done. Copy of the work order and estimate of repair dated 08.08.2013 are Annexure C-5 & C-6 (Colly.). It was further stated that the complainant time and again visited Opposite Parties No.2 to 4, and requested them to start the repair work, as it was the only source of his earning livelihood. However, after delay of months, Opposite Party No.2 wrote a letter dated 26.09.2013 (Annexure C-7) to the complainant, seeking repair consent for claim and garage detail, just to delay the matter. The complainant supplied the necessary consent to them immediately. It was further stated that on 14.11.2013 the complainant visited Opposite Party No.4 and it informed that the total estimate of repair would be around Rs.1,63,000/- and he had to pay Rs.20,000/-. The complainant immediately paid a sum of Rs.7,500/- to Opposite Party No.4 but it issued receipt (Annexure C-8) for a sum of Rs.7,000/- only. Thereafter, the complainant and his brother kept on visiting the Opposite Parties regularly and insisted them to repair his vehicle immediately. The complainant's brother left with no other option, lodged a complaint dated 25.04.2014 (Annexure C-9) with the Chandigarh Police. It was further stated that Opposite Parties No.1 to 4, in connivance with each other, neither repaired the vehicle nor delivered back the same to the complainant nor passed any claim for the last more than 10 months. It was further stated that the Opposite Parties were neither sharing any information with the complainant nor telling about the vehicle. It was further stated that vehicle of the complainant was lying parked with Opposite Party No.4, on the instructions of Opposite Parties No.1 & 2 since 02.08.2013 and they had no justification for delaying the matter. It was further stated that the aforesaid acts of the Opposite Parties, 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.
4. In their written statement, Opposite Parties No.1 to 3, admitted that the vehicle, in question, was got insured from them, by the complainant for the relevant period. It was denied that any instructions were given by them to the complainant to take the vehicle for the purpose of repair to Opposite Party No.4. It was admitted that Opposite Party No.3 was deputed to carry out the survey in respect of the vehicle, in question. It was further stated that upon providing the necessary documents, by the complainant, the insurance claim was paid to Opposite Party No.4, in conformity with the survey report prior to the filing of the complaint. It was further stated that the said amount exceeded the amount, at which, the complainant had agreed to settle. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Parties, nor they indulged into unfair trade practice.
5. In its written statement, Opposite Party No.4, admitted that the complainant, on account of accidental loss to the vehicle, had lodged a claim with Opposite Party No.1. It was further stated that the complainant was told that the repair cost of the vehicle would be approximately Rs.1.63 lacs and that he was supposed to deposit Rs.20,000/- for the start of repair work. However, he deposited Rs.7,000/- only, for which, the receipt of the like amount was issued. It was further stated that had the complainant paid a sum of Rs.7500/-, as against Rs.7000/-, he would have objected at the time of issuance of receipt. It was further stated that the complainant and his associates kept on visiting the office of the replying Opposite Party to monitor the repair work. It was further stated that the repair work of the vehicle was completed to the satisfaction of the complainant on 24.02.2014 and final bill of Rs.1,83,748/- was issued to the Insurance Company, as well as to the complainant and the replying Opposite Party received an amount of Rs.1,26,828/-, after deduction of TDS of Rs.2537/- and depreciation amount from the Insurance Company. It was further stated that Opposite Party No.4 requested the complainant to take delivery of the vehicle, after depositing the balance amount of Rs.47,383/- but he never offered to deposit the same and, therefore, the vehicle could not be released, without the receipt of the balance amount. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor it indulged into unfair trade practice.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, as stated above.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/ Opposite Parties No. 1 & 2.
9. Notice was issued to the respondents but nobody appeared on behalf of respondent No.2 and he was proceeded against exparte vide order dated 23.04.2015.
10. On 23.04.2015, Mr.Manoj Kumar, Administrative Officer and authorised representative had appeared on behalf of respondent No.3 but, thereafter, none appeared on its behalf. Hence, respondent No.3 was proceeded against exparte vide order dated 28.04.2015.
11. We have heard the Counsel for the appellants/Opposite Parties No.1 and 2, respondent No.1/complainant, and have gone through the evidence and record of the case, carefully.
12. The Counsel for the appellants/Opposite Parties No.1 and 2 submitted that the impugned order deserved to be set aside on the ground that the amount under the insurance claim had already been paid by the Insurance Company to Opposite Party No.4, prior to the filing of the complaint. He further submitted that the final repair had taken place on 24.02.2014 and the confirmation having been received by the appellants, the amount payable under the claim, was paid immediately, thereafter and, as such, there was no delay on the part of the appellants. He further submitted that the Policy of Insurance was the Policy of indemnification and the amount was to be paid after the necessary repairs had been carried out and not prior to the same. He further submitted that there was no delay on the part of the appellants.
13. The Counsel for respondent No.1/complainant, submitted that the complainant purchased the vehicle i.e. Tata Ace BS-III bearing registration No.CH01-TA-9552 for the purpose of earning his livelihood, by means of self-employment, which was got insured from the Insurance Company, for the period from 28.03.2013 to 27.03.2014 (Annexure C-3). He further submitted that on 27.07.2013 when the complainant and his driver, were going to Zeera Mandi, Sector 39, Chandigarh, all of a sudden, the engine of the vehicle caught fire and front portion of the same was badly damaged and in this regard, DDR dated 27.07.2013 (Annexure C-4) was lodged. He further submitted that the complainant intimated the Insurance Company on 29.07.2013 and as per their instructions, he took the vehicle to Opposite Party No.4 on 02.08.2013 for its repair. He further submitted that the complainant told the official of Opposite Party No.4 that the survey be conducted in his presence but no intimation was received or given by it. He further submitted that no satisfaction voucher/claim discharge letter was got executed/signed from the complainant to show that the vehicle was repaired to his satisfaction. He further submitted that Opposite Party No.4 in its written statement stated that the vehicle was repaired on 24.02.2014 but simultaneously it concealed the fact that the amount of repair work was released by the Insurance Company on 01.03.2014. He further submitted that none of the Opposite Parties shared this information earlier with the complainant nor conveyed to him by any means of communication, at any stage and there was no justification for causing delay in repair for about 8-10 months. He further submitted that the District Forum rightly awarded compensation and litigation expenses to the complainant.
14. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants/Opposite Parties No.1 and 2, respondent No.1/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be allowed, for the reasons to be recorded, hereinafter.
15. The core question, that falls for consideration, is, as to whether, there was any delay on the part of the appellants i.e. ICICI Lombard General Insurance Company Limited/Opposite Parties No.1 and 2 to decide the claim of the complainant. The answer, to this question, is in the negative. As per the complainant, after the fire incident of the vehicle, he took the same to Opposite Party No.4 i.e. authorised service centre of Tata Motors, for its repair, on 02.08.2013 and it (Opposite Party No.4) prepared the work order as well as the estimate of repair on 08.08.2013, as is evident from Annexure C-5 & C-6 (Colly.). The complainant further told the official of Opposite Party No.4 that the survey be conducted in his presence but no intimation was received or given, when his vehicle was repaired and final survey was conducted. The Counsel for the complainant submitted that any of the Opposite Parties never shared the information regarding payment of Rs.1,26,828/- made by the Insurance Company to the repairer i.e. Opposite Party No.4, with the complainant by any means of communication, and, as such, there was a delay on their part. On the other hand, Counsel for the appellants/Opposite Parties No.1 and 2 submitted that when the payment was made by the Insurance Company to the repairer i.e. Opposite Party No.4 even prior to the filing of the complaint, there was no delay on their part. The Insurance Company also filed the Observation Sheet (at page No.45 of the District Forum file). It is clearly proved from the said Observation Sheet that the payment of Rs.1,26,828/- was made by the Insurance Company to Opposite Party No.4 on 01.03.2014, through NEFT in their account No.30175292716 through transaction No.CMS198374640. It is clearly proved from the record that the complainant filed the complaint before the District Forum on 13.06.2014 i.e. after more than 3 months of making payment to Opposite Party No.4. Even Opposite Party No.4 pleaded in para No.14 of its written reply that the repair work of the vehicle, in question, was completed to the satisfaction of the complainant on 24.02.2014 and final bill amounting to Rs.1,83,748/- was issued to the Insurance Company and it received payment of Rs.1,26,828/- after deduction of TDS of Rs.2,537/- and depreciation amount from the Insurance Company. It is pertinent to note that the Insurance Company made the payment of the claim amount to Opposite Party No.4, within 4 days of the final repair of the said vehicle. So, we are of the considered opinion that when the appellants/Insurance Company made the claim of the complainant, in respect of the vehicle, in question, to Opposite Party No.4 prior to the filing of the complaint, no delay on account of the same was attributed to it. Thus, the District Forum erred in partly allowing the complaint against the Insurance Company, granting compensation and litigation expenses.
16. For the reasons recorded above, the appeal, filed by the appellants, is accepted, with no order as to costs. The order of the District Forum is set aside qua the appellants alone. Consequently, the complaint, qua them (appellants) is dismissed, with no order as to costs.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
12.05.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER rb STATE COMMISSION FIRST APPEAL No. 65 of 2015 (ICICI Lombard General Insurance Co. Ltd. & Anr. Vs. Sanjay Kumar & Ors.) Argued by: Er.Sandeep Suri, Advocate for the applicants/appellants.
Sh.Manoj Lakhotia, Advocate for respondent No.1/complainant. Respondents No.2 & 3 already exparte vide order dated 23.04.2015 & 28.04.2015. Dated _the 12th day of May, 2015 -.-
Alongwith the appeal, an application for condonation of 53 days, as per the applicants/appellants (as per the office report 43 days), in filing the same, has been moved by them on the ground that the impugned order was passed by the District Forum on 24.12.2014 and delivered on 31.12.2014. It was stated that the sanction for filing the appeal was given on 4th February and the draft of the statutory amount was prepared on 10.02.2015 and handed over to the Counsel around on 14.02.2015. It was further stated that the appeal and the affidavit were prepared on 23.02.2014. However, when the same was to be filed in the Court, it was found that the original order was not traceable. The office of the Counsel made several efforts to trace the same. However, the same was not traceable. Hence, a fresh order was applied on 09.03.2015 and the same was provided on 12.03.2015, due to which, a delay of 53 days had occurred in filing of the appeal.
2. Notice of the application, for condonation of delay, was issued to the respondents on 23.04.2015, to which, reply was filed by respondent No.1/complainant.
3. Arguments on the application were heard and the record of the case was gone through.
4. No doubt, there is delay of 53 days, as per the applicants/appellants, (as per the office report 43 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/appellants. Before discussing this question, let us have a look at law, laid down by the Hon'ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law".
5. In N. Balakrishnan v. M. Krishnamurthy , (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10. The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
6. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
"No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day's delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353".
7. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The reasons, mentioned in the application, for condonation of delay are plausible. The application for condonation of delay, is duly supported by the affidavit of Meenu Sharma, Manager of ICICI Lombard General Insurance Company Limited, applicants/appellants. The delay, in filing the appeal, has been sufficiently explained, by the applicants/appellants, with dates and events, which took place. The delay, in filing the appeal was, thus, not intentional. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice, and the procedural wrangles, are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. Some lapse, on the part of the litigant alone is not enough to turn down his plea, and shut the door against him. The explanation furnished for delay, in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hyper-technicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the appeal, by the applicants/appellants. Thus, for the grant of substantial Justice, the delay is liable to be condoned. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
8. For the reasons recorded above, the application for condonation of delay of 53 days, as per the applicants/appellants (as per the office report 43 days), in filing the appeal, is allowed, and the delay is, accordingly, condoned.
9. Admitted.
10. It be registered.
11. Arguments, in the main appeal already heard.
12. Vide our detailed order of the even date recorded separately, the appeal filed by the appellants has been allowed, with no order as to costs. The impugned order is set aside, qua the appellants alone. Consequently, the complaint qua them (appellants) is dismissed, with no order as to costs.
13. Certified copies of the order be sent to the parties free of charge.
Sd/- Sd/- Sd/- [DEV RAJ] MEMBER [JUSTICE SHAM SUNDER (RETD)] PRESIDENT [PADMA PANDEY] MEMBER rb