State Consumer Disputes Redressal Commission
Manjit Singh Khaira vs Hdfc Ergo General Insurance Company ... on 21 November, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 97 of 2014 Date of Institution 20.08.2014 Date of Decision 21.11.2014 Manjit Singh Khaira, House No.4, Sector 8A, Chandigarh 160008. .Complainant. VERSUS 1. HDFC ERGO General Insurance Company Limited having its Registered ad Corporate Office at: 1st Floor, 165-166, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai 400020. Also at: HDFC ERGO General Insurance Company Limited, 6th Floor, Leela Business Park, Andheri Kurla Road, Andheri (East), Mumbai 400059. Also at: HDFC ERGO General Insurance Company Limited, branch office SCO No.124-125, Sector 8-C, Chandigarh. 2. Union Territory of Chandigarh through its Secretary (Transport and Engineering), Civil Secretariat, Sector 9, Chandigarh. 3. Municipal Corporation, Chandigarh through its Commissioner, Sector 17, Chandigarh. . Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SHRI DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by:
Sh. Deepak Jain, Advocate for the complainant.
Sh. Sandeep Suri, Advocate for Opposite Party No.1.
Sh. Jatinder Singh, Govt. Pleader for Opposite Party No.2.
Sh. V. K. Sachdeva, Advocate Proxy for Ms. Deepali Puri, Advocate for Opposite Party No.3.
PER DEV RAJ, MEMBER The brief facts of the case, as alleged by the complainant, are that he is the registered owner of the car make Mercedes Benz, Model M-Class-ML-350CDI as per Registration Certificate issued by the Registering and Licensing Authority, Chandigarh Transport Department (Annexure C-1). It was stated that as per the said Certificate, after the purchase and at the time of registration of the same, the complainant paid Rs.1,76,000/- as road tax to Opposite Parties No.2 and
3. It was further stated that the complainant availed of Private Car Package Policy (Annexure C-2) from Opposite Party No.1, valid for the period from 16.05.2013 to 15.05.2014 for the Insured Declared Value of Rs.37,62,000/- after payment of Rs.42,356/- as premium.
2. It was further stated the son-in-law of the complainant namely Sh. Gagan Chabbra, his daughter and grand children, had gone to see a movie in the aforesaid car on 4.5.2014 at Elante Mall, Chandigarh, as per online booking confirmation receipt (Annexure C-3). It was further stated that after watching the show and having food at a Restaurant at Elante Mall, they left for home at around 8.30 P.M. While going home, they had to cross the underpass constructed at the Railway crossing in the Industrial Area. It was further stated that when they entered the same, they found that their car stopped suddenly as there was water logging inside the underpass, which was not visible from a distance as there were no lights and warning signs outside or inside the underpass in order to forewarn the commuters regarding the presence of water logging and its depth on account of dangerous dip. It was further stated that due to sudden stoppage of car, all windows got jammed and fortunately the family was able to come out, since one window glass was open. It was further stated that call was immediately made to number 100 as well as Mercedes helpline, by Sh. Gagan Chabbra. It was further stated in response to call made to the Police Control Room, it was informed that the matter pertained to the Transport Department. It was further stated that it was only when Mercedes people came and help was made available, that the vehicle was also towed to Mercedes workshop.
3. It was further stated that the complainant gave copy of the Insurance Policy to the workshop. It was further stated that after thorough inspection of the vehicle, it transpired that serious damage had occurred to the vehicle and it was a case of total loss as per estimate (Annexure C-4 Colly). It was further stated that the complainant filed claim with Opposite Party No.1, and was given Claim No.C230014012645. It was further stated that Opposite Party No.1 appointed a surveyor for verification of the claim, who was provided with the aforesaid documents, alongwith copy of the driving license of Sh. Gagan Chabbra, who was driving the car. It was further stated that the Surveyor also made spot inspection, wherein it was brought to his attention that no lights were working inside the underpass and there were no warning signs outside the underpass. It was further stated that, as such, in the absence of any warning, by no stretch of imagination, it could be imagined by Sh. Gagan Chabbra that there would be serious water logging inside the underpass coupled with dangerous dip on the road. It was further stated that the media also verified that there were no warning sign outside the underpass nor there was any light inside it as per newspaper cutting (Annexure C-6).
4. It was further stated that Opposite Parties No.2 and 3 were aware of the problem, but they failed to take remedial measures in time. It was further stated that the complainant was surprised to receive letter dated 03.06.2014 (Annexure C-7), whereby the claim was rejected, on the ground, that the vehicle was driven in water despite knowledge through water marks. It was further stated that due to negligence of Opposite Party No.1, the complainant had to pay for parking expenses of the car as per bill (Annexure C-8), as the same could not be repaired due to refusal by it (Opposite Party No.1). It was further stated that Opposite Parties No.2 to 3 were also negligent in maintaining the roads in the City of Chandigarh, despite collecting huge amount of Rs.1,76,000/- as road tax from the complainant. It was further stated that the Opposite Parties, failed to provide proper drainage facility and they were also duty bound to put a hoarding/notice outside the underpass, in order to warn commuters. It was further stated that the actual site photographs (Annexure C-9 Colly.), proved that the water marks were neither visible from distance in daylight nor visible at night. It was further stated that the water marks were after the starting of the underpass and not visible from a distance, besides they were on a very small portion, which easily skipped the attention of any driver.
5. It was further stated that the activities like drainage, desilting, cleaning of drains, maintenance, relaying, carpeting of roads and quality of material used, maintenance of other civic amentieis, removal of filth, rubbish and effective traffic management are covered under services as per the Consumer Protection Act, 1986 (for short hereinafter to be referred as the Act). It was further stated that after refusal by Opposite Party No.1, as the complainant was not able to pay huge amount for repairs, as Mercedes Benz people were insisting for their payments, he had to ask the Mercedes Benz for packing the vehicle. It was further stated that left with no other option, the complainant had to use an old Optra car, which was of much less standard as compared to Mercedes SUV. It was further stated that after the loss of more than 75% of the IDV of the car, Opposite Party No.1 was liable to pay entire IDV of the car of Rs.37,62,000/-. It was further stated that Opposite Party No.1 was also liable to compensate the complainant for the loss caused to the car.
6. It was further stated that the aforesaid acts of omission and commission amounted to deficiency in rendering service and indulgence into unfair trade practice on the part of the Opposite Parties. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Parties to pay Rs.37,62,000/- for total loss caused to the vehicle; Rs.25,00,000/- as compensation due to non-maintenance of underpass by Opposite Parties No.2 & 3; Rs.5,00,000/- as compensation for mental agony and physical harassment due to arbitrary refusal of the claim by Opposite Party No.1; Rs.10,00,000/- on account of loss of reputation by Opposite Party No.1; Rs.49,996/- on account of packing expenses by Opposite Party No.1 and pay cost of litigation.
7. Opposite Party No.1, put in appearance on 30.09.2014. In its written statement, it stated that consequential losses were not covered under the Policy. It was further stated that the vehicle was driven in high water. It was further stated that while admitting that the vehicle was driven into standing water, the complainant tried to set up a case wherein he was trying to shift the negligence of the driver onto the Opposite Parties. It was further stated that the driver of the vehicle, without taking adequate precautions and paying attention to the road conditions, was driving the vehicle into the severely waterlogged area, which in turn, caused damage to the vehicle. It was further stated that the driver of the vehicle had failed to pay attention to the signs, which had been put at the spot. It was further stated that no person could be allowed to take benefit of his own wrongs. It was further stated that loss was caused, not on account of any accident but was attributable to the gross negligence of the driver. It was further stated that since the complainant was not present in the vehicle at the time the loss took place, it was not for him to state as to what precautions were taken by the driver. It was further stated that a standard motor policy only pays for direct damages like an accident and the add-on covers or riders such as engine protector cover (hydrostatic lock cover) could be taken under the Policy on payment of extra premium. It was further stated that while trying to start the car, when it was submerged in water, it was highly damaged and repeated trials broke down the car and caused immense loss to the engine. It was further stated that a kind of loss, not prescribed under the Insurance Policy, was not covered under the Policy. It was further stated that in this particular Policy, no such add-on cover was ever taken to cover such type of loss.
8. It was further stated that there was admission of the complainant in his complaint, that at the spot of loss, there was accumulation of water, and the vehicle stopped suddenly and there was attempt to restart the vehicle. It was further stated that during examination of the vehicle by the Surveyor in the workshop, it was found that the water had entered into the engine and even the inside coupe of the car, part like Turbo charger and alternator were destroyed, which caused damage to the vehicle. It was further stated that the Survey was conducted through a duly appointed independent Surveyor, whose report was Annexure R-1. It was further stated that the complainant submitted duly filled in claim form (Annexure R-3) to the Company. It was further stated that the type of losses covered, under the Policy, were specifically elaborated in Section I relating to LOSS OF OR DAMAGE TO THE VEHICLE INSURED of the Policy (Annexure R-4). It was further stated that since the claim did not fall under any type of losses covered under the Policy, the same was rightly repudiated vide letter (Annexure R-2). It was denied that there was any deficiency, in rendering service, on the part of Opposite Party No.1, or it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9. Opposite Party No.2 put in appearance on 30.09.2014. In its short reply, it stated that it was not responsible to maintain the underpass, which included lights, warning signboards and water logging system. It was further stated that these functions were not in the jurisdiction of the Secretary, Engineering, U.T., Chandigarh and the jurisdiction for such activities, pertained to Opposite Party No.3 i.e. Municipal Corporation, Chandigarh. It was further stated that Opposite Party No.2 was unnecessarily arrayed by the complainant. It was denied that there was any deficiency, in rendering service, on the part of Opposite Party No.2, or it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10. Opposite Party No.3, put in appearance, on 30.09.2014. In its written statement, it took up certain preliminary objections to the effect that that the complainant was not a consumer as provided in Section 2(1)(d) of the Act. It was pleaded that the complainant did not approach the Commission with clean hands and distorted the correct factual position with utmost impunity so as to project himself a victim of the wrong doings of the Opposite Parties.
11. On merits, it was admitted that the maintenance of road was a non-sovereign function. It was denied that water logging inside the underpass was not visible from a distance. It was also denied that there was no warning sign inside or outside the underpass, regarding the presence of water as well as the depth on account of dangerous dip. It was further stated that on the night of 4.5.2014, there was heavy rain fall in Chandigarh and, in fact, even as per the reports in the leading newspapers, it was one of the heaviest rain falls in a decade. It was further stated that the complainant was well aware of the fact that there was heavy rain fall as the entire city was flooded that day. It was further stated that perusal of the photographs (Annexure R-1 Colly.) revealed that not only the dangerous dip signal but the water level indicators were also posted at the said site by Opposite Party No.3. It was further stated that son-in-law of the complainant, who was driving his car, through an underpass, was supposed to act in a prudent manner. It was further stated that the water level indicator clearly showed the warning to the commuters, who were supposed to drive carefully after heavy rainfall. It was further stated that due to heavy rain fall, the electricity was disrupted in many parts of Chandigarh and even there was no traffic signal operating on the said date. It was further stated that no call was received by Opposite Party No.3 nor any claim was lodged, in this regard, with it, by the complainant.
12. It was vehemently denied that the water marks on the wall of the underpass do not glow at night. It was further stated that perusal of photographs showed that the water marks on the wall glow at night also and due to heavy rainfall, on that day, there was no light. It was denied that there were no warning signs outside the underpass. It was further stated that the complainant, being a resident of Chandigarh, was well aware of the fact that there was an underpass on that road. It was further stated that Opposite Party No.3, had taken all precautions, by not only putting the water level indicators, but also putting warning signs. It was further stated that Sh. Gagan Chhabra, who was driving the vehicle, was well aware of the fact, that there was heavy rainfall in Chandigarh, on the said date, but he in the most negligent and careless manner, chose to drive his vehicle through an underpass on a day, when the streets of Chandigarh were flooded with water and, as such, his car suffered mechanical defects, for which, Opposite Party No.3 could not be made liable.
13. It was further stated that the matter was highlighted by the media on the asking of the complainant on 6.5.2014 i.e. two days after the alleged incident. It was specifically denied that Opposite Party No.3 had not taken remedial measures in time. It was further stated that since the claim of the complainant was rejected by the Insurance Company, the complainant thought of roping in Opposite Party No.3. It was further stated that till date, neither any complaint was received by Opposite Party No.3, from the complainant, nor any claim was filed with regard to the same. It was denied that the water marks were not visible. It was further denied that deep water logging could not be imagined by the person driving the vehicle. It was also denied that Opposite Party No.2 collected huge amount from the complainant as road tax. It was further stated that issuance of estimate by Mercedes Bens did not, in any manner, indicate that the amount was paid by the complainant. It was further stated that Municipal Corporation, Chandigarh, is not charging any fees/tax for providing the drainage facility for storm water. It was further stated that sufficient light was provided inside the underpass but due to heavy rain fall, on the said day, there was no electricity in Chandigarh and, as such, no deficiency of service could be attributed to Opposite Party No.3. It was denied that the Opposite Party failed to provide proper facilities and was liable to compensate the complainant for the loss caused to the car. It was denied that Opposite Party No.3 was liable to indemnify the complainant, for the loss caused to the vehicle, and harassment caused to his family. It was denied that the complainant suffered any loss of reputation. It was denied that there was any deficiency, in rendering service, on the part of Opposite Party No.3, or it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
14. The complainant, in support of his case, submitted his own affidavit, by way of evidence alongwith a number of documents.
15. Opposite Party No.1, in support of its case, submitted the affidavit of Sh. Pankaj Kumar, its Legal Manager, alongwith a number of documents, by way of evidence.
16. Opposite Party No.2, did not file any evidence, except short reply.
17. Opposite Party No.3, in support of its case, submitted affidavit of Sh. R. C. Diwan, its Superintending Engineer, alongwith a number of documents, by way of evidence.
18. The complainant filed replications, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written versions of Opposite Parties No.1 and 3.
19. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully as also the written submissions submitted by the complainant.
20. The Counsel for the complainant, submitted that on 4.5.2014, children of the complainant i.e. son-in-law, Shri Gagan Chabbra, daughter and two grand daughters, after watching movie and having some food at Elante Mall, were returning for their home towards Panchkula when their car suddenly stopped due to water logging inside underpass which was not visible from a distance. It was further submitted that there was no negligence, on the part of the complainant as the car stopped suddenly. It was further submitted that the car was insured with Opposite Party No.1 and the Insured Declared Value was Rs.37,62,000/-. It was further submitted that Opposite Party No.3 i.e. Municipal Corporation, Chandigarh, in its reply, admitted that due to heavy rain fall, the electricity was disrupted in many parts of Chandigarh and even traffic signals were not operating on the said date due to heavy rainfall. It was further submitted that words flood and inundation have been defined in the The World Book Dictionary as Flood: a great flow of water over what is usually dry land and Inundation: The act or fact of over flowing. It was further submitted that Opposite Party No.3 also admitted in Para 5 of its reply, on merits, that the entire city was flooded on that day due to heavy rainfall. It was further submitted that water marks were on a very small portion and inside the wall. It was further submitted that the Surveyor appointed by Opposite Party No.l, finding the contents of the claim to be genuine, assessed the payable amount of claim to the tune of Rs.19,34,780.77Ps vide Motor Final survey Report dated 16.06.2014 (Annexure R-1) but while doing so, he even included certain parts, as rubber parts etc., which were not as such and consequently, the payable amount was assessed on the lower side. It was further submitted that repudiation of the claim on the ground of limitations as to use (Annexures R-2 and R-4), was wrong and illegal. It was further stated that loss being more than 75% of the IDV, it was a case of total loss. The Counsel relied upon G. Sridhar Goud Vs. Future General India Insurance Co. Ltd., Consumer Complaint No.70 of 2012, decided by State Consumer Disputes Redressal Commission, Hyderabad on 20.01.2014 and Mr. Anand Sai B Vs. M/s. ICICI Lombard General Insurance Company Ltd., First Appeal No.493 of 2011 decided by Andhra Pradesh State Commission, Hyderabad. It was submitted that Andhra Pradesh State Consumer Disputes Redressal Commission accepted the hydrostatic locking to be an accident.
21. On the contrary, Counsel for Opposite Party No.1, submitted that the son-in-law of the complainant was negligent as when he tried to restart the vehicle, the water entered in its engine. It was further submitted that Mr. Gagan Chabbra was driving the vehicle and his affidavit despite specific objection, had not been filed whereas the affidavit had been filed by the complainant. It was further submitted that the water level indicator clearly showed the warning to the commuters who were supposed to drive carefully after heavy rain fall. It was further submitted that due to heavy rain fall, electricity was disrupted in many parts of Chandigarh and when traffic signals were not operating, additional duty was cast on the driver to remain careful and vigilant. It was further submitted that there were glow signs and land sparks, which could be seen from the photographs. It was further submitted that since the loss was not covered under the Policy and there was no affidavit of Sh. Gagan Chabbra, the claim was rightly repudiated.
22. Govt. Pleader for Opposite Party No.2 submitted that Opposite Party No.2 was not responsible to maintain the underpass, which included lights, warning signboards and water logging system. It was further submitted that these functions were not in the jurisdiction of the Secretary, Engineering, U.T., Chandigarh.
23. Counsel for Opposite Party No.3 submitted that on the night of 4.5.2014, there was heavy rain fall in Chandigarh and the complainant was well aware of the same. It was further submitted that as per photographs, not only the dangerous dip signal but the water level indicators were also posted at the said site. It was further submitted that due to heavy rain fall, the electricity was disrupted, in many parts of Chandigarh, and even traffic signals were not operating on the said date. It was further submitted that the complainant, being resident of Chandigarh, was well aware of the fact that there was an underpass, on that road, and he was supposed to take all precautions. It was further submitted that sufficient light was provided inside the underpass but due to heavy rain fall, on the said day, there was no electricity and, as such, no deficiency of service could be attributed to it (Opposite Party No.3).
24. It is evident from the evidence, on record, that on 04.05.2014, there was heavy rainfall, the electricity was disrupted and in many parts of Chandigarh, even traffic signals were not operating. These facts find support from the written statement filed by Opposite Party No.3. Opposite Party No.3 has admitted that though sufficient light was provided inside the underpass but due to heavy rainfall on the said day, there was no electricity in many parts of Chandigarh. Clearly on 4.5.2014, as is evident from the newspaper reports (Annexure C-6) as also reply of Opposite Party No.3, the city had the highest rainfall in a decade and many parts of the city were flooded. It is, therefore, clear that due to unusual circumstances, there was system failure.
25. Opposite Party No.1 has taken an objection that the complaint has been filed by the father-in-law of Mr. Gagan Chabbra and affidavit of Mr. Gagan Chabbra, who was driving the vehicle, has not been filed. It may be stated here, that the complainant, being father-in-law of Mr. Gagan Chabbra, cannot be said to be not aware of the actual facts relating to the incident vis--vis damage to the vehicle and he being the owner of the car, has filed the complaint, which is supported by his affidavit.
26. The next question, which falls for consideration, is, as to whether the claim of the complainant was tenable or not. Opposite Party No.1 has repudiated the claim of the complainant vide letter dated 03.06.2014 (Annexure C-7), under Clause 3 (a) of Standard Form for Private Car Package Policy relating to Limitation as to Use.
27. Clause 3 (a) of Standard Form for Private Car Package Policy relating to Limitation as to Use is extracted hereunder:-
GENERAL EXCEPTIONS The Company shall not be liable under this Policy in respect of
1.xxxxx
2.xxxxx
3. any accidental loss damage and/or liability caused sustained or incurred whilst the vehicle insured herein is a. being used otherwise than in accordance with the Limitation as to Use
28. The Counsel for the complainant, during the course of arguments, while laying emphasis on the meaning of words flood and inundation, submitted that flood means a great flow of water over what is usually dry land and Inundation means the act or fact of over flowing. He submitted that due to heavy rains, the area under the underpass was flooded and in the absence of any visibility of the signals, the car when entered the deep water, got stuck there and water entered in the engine. It was also asserted that there was no negligence of the driver who could not visualise the water level due to disruption of electricity and non-operation of traffic signals and also due to the fact that water levels were on a very small portion and inside the wall.
29. Section I relating to LOSS OF OR DAMAGE TO THE VEHICLE INSURED, being relevant, is also extracted hereunder:-
SECTION I. LOSS OF OR DAMAGE TO THE VEHICLE INSURED.
The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon I. by fire explosion self ignition or lightening II.
by burglary housebreaking or theft.
III.
by riot and strike.
IV.
by earthquake (fire and shock damage) V. by flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost.
VI.
by accidental external means.
VII.
By terrorist activity.
VIII.
Whilst in transit by road rail inland-waterway lift elevator or air.
IX.
By landslide rockslide..
30. The Motor Final Survey Report dated 16.06.2014, submitted by Sh. Manoj Kumar Saxena, IRDA approved Surveyor & Loss Assessor, has come in evidence vide Exhibit R-1. The Surveyor assessed the net payable amount in the sum of Rs.19,34,780.77Ps. In his report, the Surveyor also made the following observations:-
1) Damage sustained by the vehicle tallies with the history of the accident & fresh in nature.
2) Labour charges allowed, keeping in view the quality of job and standard of workshop.
3) Payment to insured.
Issued without prejudice, subject to policy terms and conditions.
There is no mention in the survey report regarding any negligence attributable to the driver or that the driver tried to restart the vehicle. The Surveyor, as is evident from his aforesaid observations, found the damage to be genuine. The damage to the vehicle, in question, by flood/water logging under the underpass, in our opinion, is clearly covered under Sub Clause (v) of Section I LOSS OF OR DAMAGE TO THE VEHICLE INSURED, afore-extracted.
31. The next question, which falls for consideration, is, as to what amount, the complainant is entitled to. The Surveyor appointed by Opposite Party No.1 Insurance Company has assessed the loss in the sum of Rs.19,34,780.77 vide his Final Survey Report dated 16.06.2014 (Annexure R-1). No doubt the survey report is not the final word, but at the same time, in the absence of any cogent documentary evidence to controvert the Surveyor Report, the argument of the complainant that he is entitled to a sum of Rs.37,62,000/- is not well founded. In Sikka Papers Limited Vs. National Insurance Company Limited, (2009) 7 Supreme Court Cases 777, it was held that, no doubt, the report of the Surveyor is not the last word, yet there must be legitimate reason, for departing from the same. In New India Assurance Company Ltd. Vs. Rabindra Narayan, I (2010) CPJ 80 (NC), it was held that the Surveyors report, being an important piece of evidence, was required to be given weight and relied upon, unless proved unreliable. In Dabirudin Cold Storage Vs. New India Assurance Company Ltd. & Ors., I (2010) CPJ 141 (NC), it was held that the Surveyors report, being an important document, cannot be easily brushed aside.
32. No doubt, the Counsel for the complainant pleaded that since the estimate of repair was more than 75% of the Insured Declare Value, the vehicle was to be treated as total loss. The Counsel pleaded that for various parts, treating the same to be rubber parts, the depreciation @50% was allowed by the Surveyor. In the absence of any cogent documentary evidence and expert report, as to which parts were rubber and metal parts and deprecation allowed qua those parts by the Surveyor was incorrect, the contention of the complainant to this effect cannot be accepted. Had the complainant filed report of an expert to prove that depreciation was wrongly allowed, the matter would have been different.
33. In G. Sridhar Goud Vs. Future General India Insurance Co. Ltds case (supra), relied upon by complainant, the engine went off because of hydrostatic locking due to water logging on the road. The contention of the complainant was that as per the Insurance Policy wording, the damage caused to the vehicle was directly attributable to the inundation, in which, the vehicle was stuck down and which could never be termed as consequential damage/clash as stated by the Surveyor in report (Ex.BN2). On the other hand, the contention of Opposite Party No.1 was that the hydrostatic locking was not covered by the terms of the Insurance Policy. This contention of Opposite Party No.1 was, however, negated by the Andhra Pradesh State Commission and the appeal was allowed in part directing Opposite Parties No.1 and 2 to pay compensation plus costs of litigation. The ratio of G. Sridhar Goud Vs. Future General India Insurance Co. Ltds case (supra), is somewhat applicable to the facts of the instant case.
34. Thus, Opposite Party No.1 illegally and arbitrarily repudiated the claim of the complainant vide their letter dated 03.06.2014 (Annexure C-7) on the basis of general exceptions under the Policy. Repudiation of the claim arbitrarily clearly amounted to deficiency, in rendering service, and indulgence into unfair trade practice attributable to Opposite Party No.1. The complainant is, therefore, entitled to a sum of Rs.19,34,780.77P as assessed by the Surveyor. We are also of the considered opinion that complainant needs to be compensated further by awarding interest @9% per annum, at least w.e.f 03.06.2014 i.e. from the date of repudiation of the claim.
35. The complainant did not pay any consideration for availing of the services of Opposite Parties No.2 & 3. Road tax and other taxes are the statutory taxes, which the complainant has to pay. In S. P. Goel Vs. Collector of Stamps, Delhi, 1996 (1) SCC 572, a similar question fell for decision as to whether the complainant fell within the definition of consumer as the National Commission held that it had no jurisdiction to entertain and adjudicate upon the claim of the appellant, particularly as he was not a consumer within the meaning of Consumer Protection Act, 1986. The order of National Commission was upheld by the Honble Supreme Court holding that the complainant did not fall within the definition of consumer. The National Commission in Consumers Unity and Trust Society, Jaipur Vs State of Rajasthan, 1991(1) CPR 241, held that the payment of taxes/cess (defined as a tax/levy) cannot be regarded as consideration for service rendered by the Government, and the same principle applies to taxes paid to the Municipal Committee. Similar principle of law was laid down in Municipal Committee Gurgaon Vs Harish Kumar & another 1993CPC 537, The Director of Public Instructions (Schools) Pb Vs Sh. Surinder Mohan (1997) (1) CPC 187 and Bihar School Education Board Vs Suresh Prasad Sinha 2009 (3) CPC 217(SC). The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. In view of the law settled by the Honble Apex Court and the National Commission, in the cases, aforesaid, the complainant qua Opposite Parties No.2 and 3, is not a consumer. The complaint against them (Opposite Parties No.2 and 3) is, therefore, liable to be dismissed, being not maintainable.
36. No other point, was urged by the Counsel for the Parties.
37. For the reasons recorded above, the complaint is partly accepted, with costs against Opposite Party No.1, in the following manner:-
i. Opposite Party No.1 is directed to pay an amount of Rs.19,34,780.77 as assessed by the Surveyor vide Final Survey Report dated 16.06.2014 (Annexure R-1) to the complainant; alongwith interest @9% per annum w.e.f 03.06.2014 i.e. the date of repudiation of claim, within two months of the date of receipt of a certified copy of this order.
ii. Opposite Party No.1 is further directed to pay cost of litigation, to the tune of Rs.15,000/-, to the complainant.
iii. In case the payment of amount, mentioned in Clause (i) above, is not made, within the stipulated period, then Opposite Party No.1 shall be liable to pay the amount mentioned in clause (i) with interest @12% per annum, instead of 9% per annum, from the date of default, till realization, besides payment of cost, to the tune of Rs.15,000/-.
38. However, the complaint qua Opposite Parties No.2 and 3 is dismissed with no order as to costs.
39. Certified Copies of this order be sent to the parties, free of charge.
40. The file be consigned to Record Room, after completion.
Pronounced.
November 21, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (Consumer Complaint No.97 of 2014) (Manjit Singh Khaira Vs. HDFC ERGO General Insurance Company Limited and others) Argued by:
Sh. Deepak Jain, Advocate for the complainant.
Sh. Sandeep Suri, Advocate for Opposite Party No.1.
Sh. Jatinder Singh, Govt. Pleader for Opposite Party No.2.
Ms. Deepali Puri, Advocate for Opposite Party No.3.
Dated the 21st day of November, 2014 ORDER On 18.11.2014, the complainant moved an application for placing, on record, affidavit of Sh. Gagan Chabbra and till that date, the arguments in the main complaint had already been heard and the case was reserved for orders.
2. On 19.11.2014, notice of the said application was ordered to be issued to the Opposite Parties. Opposite Parties No.1 and 3 filed their separate replies to the application, aforesaid.
3. Arguments on the application, aforesaid, heard.
4. The only ground, taken by the complainant for not filing the affidavit of Sh. Gagan Chhabra earlier, is that Sh. Gagan Chabbra had gone out of country on 31.10.2014 and returned only on 10.11.2014 morning and, as such, his affidavit could not be filed alongwith the replication.
5. On the other hand, Opposite Party No.1, in its reply filed to the application, took a specific plea that the written statement was filed by it (Opposite Party No.1) on 16.10.2014 and, thereafter, the matter was adjourned for 29.10.2014, 4.11.2014, 5.11.2014 and finally, arguments were addressed on 7.11.2014. It was stated that not even any request for leading evidence was made by the complainant at any stage. It was further stated that no explanation, as to what prevented the complainant from placing the affidavit, on record, was mentioned in the application. It was further stated that when specific objection as regards not filing of affidavit of Sh. Gagan Chhabra was taken by Opposite Party No.1 in the written statement, which was filed on 16.10.2014, then what prevented the complainant to file his (Sh. Gagan Chhabra) affidavit before his leaving country on 31.10.2014. It was stated that the application, thus, being an afterthought, deserved to be dismissed.
6. It is apparent from zimini order dated 16.10.2014 that Opposite Party No.1, filed the written statement and evidence by way of affidavit of Sh.
Pankaj Kumar, its Manager alongwith certain documents, copies whereof were duly supplied to the Counsel for the complainant. Similarly, Opposite Party No.3 also filed its evidence by way of affidavit of Sh. R. C. Diwan, Superintending Engineer on the same date i.e. 16.10.2014. However, Opposite Party No.3 had already filed its written statement on 09.10.2014, copy whereof was also supplied to the Counsel for the complainant. Thus, the complainant was very well aware of the specific objection, raised by Opposite Party No.1, of not filing the affidavit of Sh. Gagan Chhabra. Once the objection raised by Opposite Party No.1, was in the knowledge of the complainant, it could have filed the affidavit of Sh. Gagan Chhabra before 31.10.2014, when he (Sh. Gagan Chhabra) left for abroad. Sh. Gagan Chhabra, whose affidavit, has been sought to be placed, on record, was very much in the country up-till 30.10.2014. Thus, the complainant was having sufficient time from the date i.e.16.10.2014, when Opposite Party No.1 filed its reply and evidence, up-till 29.10.2014, but it chose not to file the affidavit of Sh. Gagan Chhabra, now sought to be placed on record. As such, in the absence of any explanation, as to why the affidavit, was not filed between 16.10.2014 to 29.10.2014, the complainant cannot be heard to say that he be afforded an opportunity to file the same, at this stage. Thus, the application, aforesaid, deserves to be dismissed, at this stage.
7. The application is, accordingly, dismissed.
8. Vide our detailed order of the even date, recorded separately, the complaint has been partly accepted, with costs against Opposite Party No.1. However, the same (complaint) has been dismissed qua Opposite Parties No.2 and 3.
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(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT (PADMA PANDEY) MEMBER Ad