State Consumer Disputes Redressal Commission
Hdfc Ergo General Insurance Company ... vs 1. Paramjit Singh on 22 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 334 of 2013 Date of Institution : 02.08.2013 Date of Decision : 22/10/2013 HDFC ERGO General Insurance Company Limited, SCO No. 124-125, 1st Floor, Sector 8-C, Chandigarh, through their authorized signatory Shyama Charan Vats, available at N-22, 2nd Floor, Sector 18, Noida. Appellant/Opposite Party No.1 V e r s u s 1. Paramjit Singh, resident of House No.2414, BSNL Society, Sector 50, U.T. Chandigarh. 2. Jashan Brar, resident of House No. 452, Sector 46-A, U.T. Chandigarh. ....Respondents No.1 and 2/complainants 3. Swami Automotives Pvt. Ltd., Plot No.72, Industrial Area-1, Chandigarh, through its Director (Service dispensed with vide order dated 05.08.2013). ....Respondent no.3/Opposite Party No.2 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Gaurav Bhardwaj, Advocate alongwith Sh. Sanjeev Goyal, Advocate of the appellant.
Sh.
Deepak Aggarwal, Advocate for respondents no.1 and
2. Service of respondent no.3 dispensed with vide order dated 05.08.2013.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 24.05.2013 rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it disposed of the complaint, filed by the complainants (now respondents no.1 and 2) and directed Opposite Party No.1 (now the appellant), as under:-
We accordingly dispose off this complaint, with a direction to the Complainant to submit the relevant application/ papers required by the Opposite Party No.1 to transfer the insurance policy in his name. Thereafter, all papers needed to be signed/filed for sanction/ approval of insurance claim should also be signed by the Complainant(s). After the said application & claim papers have been received from the Complainant, Opposite Party No.1 should release the payment to Complainant No.1. against the amount incurred on the repair of the car, in terms of his entitlement, as per the terms of policy.
The transfer of the insurance policy be made by the Opposite Party No.1 forthwith, and the amount due as per the policy, be paid to the Complainant, within 45 days of receipt of the application for claim from the Complainant.
Opposite Party No.1 will also pay Rs.10,000/- towards costs of litigation.
2.
Complaint qua Opposite Party No.2 was dismissed, with no order as to costs, by the District Forum, on the ground that it was a dealer of Volkswagon Company, and had no role to play, in the repudiation of claim of complainant No.1.
3. The facts, in brief, are that Sh. Paramjit Singh, complainant no.1, purchased Volkswagen Vento Trendline Diesel car, bearing Registration No. CH01AK-0452, from Complainant No.2, on 26.03.2012. The said car had already been insured with Opposite Party No.1, for the period from 24.10.2011 to 23.10.2012 (midnight), for the Insured Declared Value, to the tune of Rs.8,02,892/-. After the purchase of the said car, complainant No.1 applied to the Registering and Licensing Authority, U.T. Chandigarh, on 29.03.2012, for transfer of the same, in his name. A sum of Rs.400/- was deposited, as fee, vide receipt Annexure C-3, to the said Registering and Licensing Authority, by complainant no.1. As per the said receipt, the Registration Certificate, with the change of name, was to be issued to the new owner (complainant no.1), on 30.05.2012.
4. On 20.05.2012, the said car, being driven by the father of complainant No.1-Sh. Inderpal Singh, having valid and effective driving licence, met with an accident and got damaged. It was stated that Intimation, in this regard, was given to the Police, as well as the Opposite Parties. Spot survey was conducted by the Surveyor, appointed by Opposite Party No.1. The car was towed to the showroom of Opposite Party No.2. An estimate of Rs.6,00,256.48Ps., was issued. Later on, a final bill, in the sum of Rs.2,82,000/- dated 02.08.2012 , Annexure C-6, was issued, by the said workshop of Opposite Party No.2. The entire payment of Rs.2,82,000/- aforesaid, was made by complainant no.1. However, the claim lodged by complainant no.1 was repudiated by Opposite Party No.1, vide repudiation letter dated 26.06.2012 Annexure C-11, addressed to complainant No.2, on the ground that he (complainant No.2) had sold the car, to Paramjit Singh, complainant no.1, on the date of accident i.e. 20.05.2012, whereas, the Insurance Policy, in question, had not been transferred, in his (complainant No.1) name, and, as such, he was not having insurable interest, in the same (car).
5. It was further stated that complainant no.1 had complied with the provisions of the Motor Vehicles Act, 1988, by applying for the transfer of car, in his name, within the prescribed period of 14 days. It was further stated that though at the time of accident, the Registration Certificate had not been transferred, in the name of complainant no.1, by the Registering and Licensing Authority, Chandigarh, but it was not on account of his fault. It was further stated the repudiation of claim of complainant no.1, was illegal, arbitrary and invalid. It was further stated that the aforesaid acts of the Opposite Parties/Opposite Party No.1, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, 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 refund the amount of Rs.2,82,000/-, referred to above, alongwith interest @18% P.A., w.e.f. 26.06.2012 i.e. the date of repudiation of claim; pay Rs.1 lac, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.35,000/-.
6. Despite service, none put in appearance, on behalf of Opposite Party No.1, as a result whereof, it was proceeded against exparte, on 05.11.2012.
7. Opposite Party No.2, in its written version, pleaded that the complaint was not maintainable against it, as it (Opposite Party No.2) was only a dealer of the Company of car, in question, and had nothing to do with the repudiation of insurance claim, made by complainant no.1. 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.
8. The complainants and Opposite Party No.2, led evidence, in support of their case.
9. After hearing the Counsel for the complainants, Opposite Party No.2, and, on going through the evidence, and record of the case, the District Forum, disposed of the complaint, in the manner, referred to, in the opening para of the instant order.
10. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
11. Service of respondent no.3, which was Opposite Party No.2, in the District Forum, was dispensed with, as the complaint against it, was dismissed, by it (District Forum).
12. We have heard the Counsel for the appellant/Opposite Party No.1, respondents no.1 and 2/complainants, and, have gone through the evidence, and record of the case, carefully.
13. The Counsel for the appellant/Opposite Party No.1, submitted that none put in appearance, on behalf of Opposite Party No.1, in the District Forum, and, as such, it was proceeded against exparte, as a result whereof, it was deprived of filing its written version and evidence. They further submitted that the absence of Opposite Party No.1, was neither intentional nor willful. They further submitted that since complainant no.2, had already sold the vehicle, as on the date of accident, in favour of complainant no.1, but the Insurance Policy had still not been transferred, in his favour (complainant no.1), he had no insurable interest, in the same. They further submitted that after the sale of car, in question, complainant no.2 also had no insurable interest, in the same. They further submitted that, as soon as, the vehicle was sold, in favour of complainant no.1, by complainant no.2, it was the duty of the former, to apply to the Insurance Company, alongwith the requisite documents, for transfer of the Insurance Policy, in his name, within 14 days, but he did not do so. He further submitted that the order of the District Forum is liable to be set aside, and the appellant/Opposite Party No.1 is entitled to be afforded an opportunity, to file its written version, and lead evidence.
14. On the other hand, the Counsel for respondents no.1 and 2/complainants, submitted that since complainant no.1 had applied, on 29.03.2012, for the transfer of Registration Certificate, of the vehicle, in question, in his name, to the Registering and Licensing Authority, Chandigarh, and the said Authority had given the date-30.05.2012, for receipt of the transferred Registration Certificate, he could not apply, to the Insurance Company, for transfer of the Insurance Policy, in respect of the same (vehicle), in his favour, before the transfer of the same (Registration Certificate). He further submitted that the absence of Opposite Party No.1, in the District Forum was intentional and deliberate. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
15. No doubt, Opposite Party No.1, as per the report of the Process Server, was duly served, but none put in appearance, on its behalf, in the District Forum, as a result whereof, it was proceeded against exparte. Opposite Party No.1, was, thus, deprived of filing the written version and leading evidence. It could be said that there was some negligence, on the part of authorized representative of Opposite Party No.1, as he did not put in appearance, on the date fixed, in the District Forum. However, in our considered opinion, there are very significant and material issues, involved in the instant case, requiring proper adjudication, for the final determination of the controversy. In the complaint, the complainant stated that he immediately intimated the Police and Opposite Party No.1, with regard to the accident, in question. The date(s) on which, such intimation was given to the Police and Opposite Party No.1, with regard to the said accident, was/were not mentioned, in the complaint. Even copy of the F.I.R., if any, lodged was not produced, on the record. No doubt, as per copy of the receipt Annexure C-3, the tentative date given for supplying the transferred Registration Certificate, in favour of complainant no.1, was 30.05.2012. However, as per the own admission of complainant no.1, in Annexure C-16, he received the said transferred Registration Certificate, on 25.05.2012. Since, Opposite Party No.1, did not put in appearance, before the District Forum, report of the Surveyor, who was appointed by it, to inspect the vehicle, was not placed on the record. The report of the Surveyor could be said to be a significant document, to come to conclusion, with regard to the extent of loss assessed by him/her. Not only this, even the terms and conditions of the Insurance Policy, were not placed, on the record, by the complainants, wherefrom, it could be decided, as to what amount of indemnification, complainant was entitled to. There is also, nothing on the record, that after the Registration Certificate was transferred, in favour of complainant no.1, on 25.05.2012, he applied for transfer of the Insurance Policy, in his name or not. All these questions, being very material, can only be decided if Opposite Party No.1, is afforded an opportunity, to file written version, and lead evidence.
16. It is settled principle of law, that every lis should normally be decided, on merits, by affording an opportunity to the parties of putting forth their version and leading evidence. When the hyper-technicalities, and the substantial justice, are pitted against each other, then the latter shall prevail over the former. The procedure, is, in the ultimate, the hand-maid of justice, meant to advance the cause thereof, than to thwart the same. In our considered opinion, it is a fit case, in which the order of the District Forum, deserves to be set aside, and the complaint is required to be remanded back to it, for fresh decision, in accordance with law.
17. No doubt, it was, on account of the negligence of Opposite Party No.1 that no representative, on its behalf, put in appearance, in the District Forum. On account of such negligence, the case is being remanded back to the District Forum, for fresh decision. On account of this reason, certainly delay, in the disposal of complaint, shall be caused. Such delay is solely attributable to Opposite Party No.1. The appellant/ Opposite Party No.1, is, thus, liable to be burdened with costs. Rs.7000/- as cost, if imposed upon the appellant/Opposite Party No.1, in our considered opinion, shall meet the ends of justice.
18. For the reasons recorded above, the appeal is accepted. The order impugned is set aside. The case is remanded back, to the District Forum, with a direction to afford an opportunity, to Opposite Party No.1/appellant, to submit its written version, and lead evidence, and, thereafter, permit the complainants/respondents no.1 and 2, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, in accordance with the provisions of the Act. The appellant/Opposite Party No.1, is, however, burdened with costs of Rs.7,000/-. Payment of costs, by the appellant/Opposite Party No.1, to respondents no.1 and 2/complainants, shall be a condition precedent. In other words, the costs shall be paid, before the written version and evidence, are filed, by the appellant/Opposite Party No.1.
19. The parties are directed to appear, before District Forum (II) on 30.10.2013, at 10.30 A.M., for further proceedings.
20. The District Forum record, alongwith a certified copy of the order, the record summoned from the Registering and Licensing Authority, U.T., Chandigarh- Annexure AX, and affidavit-Annexure AY submitted by Jai Ram Singh, Registering and Licensing Officer, U.T., Chandigarh, alongwith his statement, recorded during the course of appeal, after proper page marking of the same, be sent back immediately, so as to reach there, well before the date and time fixed i.e. 30.10.2013, at 10.30 A.M.
21. Certified Copies of this order, be sent to the parties, free of charge.
22. The appeal file be consigned to the Record Room, after due completion.
Pronounced.
October 22, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg STATE COMMISSION (First Appeal No.334 of 2013) Argued by: Sh. Gaurav Bhardwaj, Advocate alongwith Sh. Sanjeev Goyal, Advocate of the applicant/ appellant.
Sh.
Deepak Aggarwal, Advocate for respondents no.1 and 2.
Service of respondent no.3 dispensed with vide order dated 05.08.2013.
Dated the 22nd day of October 2013 ORDER Alongwith the appeal, an application for condonation of delay of 30 days, in filing the same (appeal) has been filed, by the applicant/appellant, stating therein that certified copy of the order impugned was received by the Branch Office on 03.06.2013. The Regional Office at Noida, received the certified copy of the order, from the Branch Office on 10.06.2013. The papers were, ultimately, sent to the Head Office at Bombay. It was stated that the file was to move through many channels, and, thus, due to the cumbersome procedure, required to be followed before the grant of approval, by the Head Office, at Mumbai, delay in filing the appeal occurred, which was not intentional.
2. Reply to the application for condonation of delay, was filed by respondents no.1 and 2, stating therein that no sufficient cause was constituted to condone the delay.
3. Arguments, on the application for condonation of delay of 30 days, in filing the appeal, have already been heard.
4. We are of the considered opinion, that no doubt, there is delay of 30 days, in filing the appeal, yet, the same cannot be said to be so huge, as to deny the substantial justice. It is settled principle of law, that technicalities should not stay, in the way of the Commission, in granting substantial justice. Every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
5. For the reasons, mentioned in the application, which is supported by a duly sworn affidavit of Akshay Kshitij Bose, Authorized Signatory of the appellant/Opposite Party No.1, and finding sufficient cause, the delay aforesaid, in filing the appeal, is condoned. The application is disposed of, accordingly.
6. Admitted.
It be registered.
7. Arguments, in the main appeal have already been heard.
8. Vide our detailed order of the even date, recorded separately, the appeal has been accepted. The order impugned has been set aside. The case has been remanded back, to the District Forum, with a direction to afford an opportunity, to Opposite Party No.1/appellant, to submit its written version, and lead evidence, and, thereafter, permit the complainants/respondents no.1 and 2, if need be, to lead evidence, in rebuttal, by way of affidavit(s), and then decide the same (case), afresh, in accordance with the provisions of the Act. The appellant/Opposite Party No.1 has been burdened with costs of Rs.7,000/-, for causing delay, in the disposal of complaint.
9. The parties have been directed to appear, before District Forum (II) on 30.10.2013, at 10.30 A.M., for further proceedings.
10. The District Forum record, alongwith a certified copy of the order, the record summoned from the Registering and Licensing Authority, U.T., Chandigarh, Annexure AX, and affidavit-Annexure AY submitted by Jai Ram Singh, Registering and Licensing Officer, U.T., Chandigarh, alongwith his statement, recorded during the course of appeal, after proper page marking of the same, has been ordered to be sent back immediately, so as to reach there, well before the date and time fixed i.e. 30.10.2013, at 10.30 A.M.
11. Certified Copies of this order, be sent to the parties, free of charge.
Sd/- Sd/-
DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg