State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd., vs Shri Shyam Umakant Naik, on 13 March, 2012
BEFORE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Appeal No. 05/2011 The New India Assurance Co. Ltd., Velho Building, 3rd Floor, Panaji Goa. ...Appellant V/s 1.Shri Shyam Umakant Naik, r/o F-7, Silver Arc Building, Fatorda, Margao, Goa 2.M/s. Chowgule Industries Ltd., Opp. Damodar Temple, Fatorda, Margao, Goa 403 602. ... Respondents Appellant/OP-1 represented by Adv. Shri E. Afonso Respondent No.1/Complainant is represented by Adv. Shri Kapil Verenkar Respondent No.2/OP-2 ex-parte Coram: Shri Justice N.A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 13/03/2012 ORDER
[Per Justice Shri. N. A. Britto, President] The New India Assurance Co. Ltd. (New India, for short) Opposite Party No.1 in Complainant No.21/2004 before the South Goa District Forum (DF, for short) has filed the present appeal and has assailed the order dated 10/11/2010 of the Lr. District Forum.
2. This Appeal was filed with an application for condonation of delay of 13 days, and Respondent No.1 (Complainant, for short), has given his no objection and therefore we grant the application and proceed to decide the appeal on merits.
3. The Complainant had purchased a Maruti Omni vehicle having registration No. GA-02-J-7623 on hire purchase basis from ICICI Bank Ltd., on 01/01/2002. The said vehicle was under a policy of comprehensive insurance issued by New India, when it met with a self accident on 01/05/2003 at about 22.45 hours near Holy Spirit Church, Margao.
4. The Complainant then moved the vehicle to the workshop of M/s. Chowgule Industries Ltd. (Chowgules, for short) on the same day and obtained from them an opinion for replacement of bodyshell, vide letter dated 15/07/2003 (copy at page 3). Chowgules gave an estimate for Rs.1,48,123/- with a rider that additional parts may be required and if required a separate estimate would be given (copy at page 4). The Complainant intimated New India of the said accident on 12/05/2003 and on the same day New India appointed Shri B. S. Kamat, Surveyor/ Loss Assessor to assess the damage to the vehicle. On 15/07/2003 (copy at page 33) the New India noted that the vehicle was lying with Chowgules without any clarification on bodyshell repairs and wrote to the Complainant to take up the matter with the repairer, the said Chowgules, and asked him to give further details so that the Survey Report could be released at the earliest and in case they were not to hear from him they would close the claim, as no claim. The Complainant by his letter dated 21/07/2003, (copy at page 9) probably knowing that the estimate was made by said Shri Kamat, informed New India that the entire body shell was to be replaced and could not be repaired and therefore asked New India to approve a fresh estimate on urgent basis. The estimate prepared by Shri B. S. Kamat, however, came to be submitted only on 25/07/2003. On 30/07/2003 (copy at page 10) New India called upon the Complainant to shift the vehicle to Satardekar Garage, Zuarinagar, for repairs, as instructed earlier by their Surveyor. Complainant by his letter dated 05/08/2003 (copy at page 11)informed New India that he was not interested in repairing the vehicle with any other garage as his vehicle was new and the Chowgules was an authorized Service Station of Maruti Udyog Ltd., The Complainant also mentioned that New India could not force him to got to Satardekar Garage and he had every right to choose the garage. On 14/08/2003 (copy at page 65) upon the request of New India Shri V. P. Usgaonkar Sr. Surveyor/ Loss Assessor gave his opinion/ estimate concurring with the opinion of Shri B. S. Kamat stating that the body shell was repairable and the body shell did not require a replacement.
5. A meeting was held on 03/10/2003 between the Complainant, New India, Mr. Shetgaonkar of Chowgules and both the Surveyors/ Loss Assessors (copy at page
64). At the meeting Mr. Shetgaonkar agreed to carry out the repairs of the body shell but refused to give any guarantee for the said repairs. The matter was therefore left to the Complainant to discuss the problem with the said repairer and get back to New India.
6. Ultimately, by letter dated 07/10/2003, New India requested the Complainant to carry out the repairs, as agreed by the said Mr. Shetgaonkar and submit the bills to them.
7. In the meantime New India by their letter dated 04/02/2004 had called for an explanation from Shri B S. Kamat, Surveyor, for delay in submitting his report inspite of the papers having been handed over to him on 12/05/2003 and he having conducted an inspection on 13/05/2003. The said Shri B. S. Kamat gave his explanation on 15/02/2004 explaining as to why he had taken time, and, interalia, stating that the photographs of the accident car were shown to one Mr. Badri and Mr. Khan from Sai Service, Porvorim and Mr. Satardekar from Satardekar Industries, Zuarinagar who had agreed that body shell repairs could be carried out and this exercise had taken some time and since nothing was heard from the Complainant as well as from Chowgules, he released his report on 25/07/2003.
8. The dispute also landed before the Conciliation Committee of the Department of Civil Supplies and Consumer Affairs at the request of the Complainant but the conciliation proceedings failed as the Chowgules stated that as per the guidelines of M/s. Maruti Udyog Ltd., the warranty could not be extended to repairs and replacement done as a result of accident.
8A. The above is the sequence of events as reflected from the correspondence exchanged between the parties.
9. The complaint was filed on 14/06/2004, and, it is interesting to note that the Complainant who wanted the body shell to be replaced did not even claim its equivalent value in the sum of Rs.79,732/- as given by Chowgules. The column for replacement of body shell remains in blank not only in the complaint but also in the affidavit in evidence filed by the Complainant. The Complainant did not claim Rs.1,48,123/- as estimated by Chowgules. The Complainant only claimed a sum of Rs.50,000/- towards repairs of the car engine, Rs.25,000/- for not using the car without specifying the rate and the period, and Rs.45,000/- being the amount due of the loan installments which he was required to pay, without specifying the date from which it was paid or required to be paid. That much for non-application of mind on the part of the Complainant.
10. The Chowgules had taken the plea that the complaint was bad on account of misjoinder, stating that the complaint was filed against them without any cause and not only that, no relief was claimed against them nor any specific averment was made alleging deficiency of service on their part. The said plea has been considered by Lr. Forum, and we must say casually, observing that the documents on record and the nature of the transactions negated such a plea.
It is observed by the Lr. D.F. that Chowgules were bound to give warranty for the repairs. Why?
one may be constrained to ask even when they had not undertaken the repairs? At the same time it is observed that the Complainant being a consumer was regularly taking after sales service and if the Opposite Party denied after sales service then it amount to deficiency in service. (We assume that is what the Lr. D.F. wished to convey). At the same time the Lr. District Forum did not grant any relief to the Complainant as against Chowgules and dismissed the complaint against them.
Complainant has not filed any appeal against that part of the order.
The approach of the Lr. D.F. towards Chowgules is completely illogical.
11. The facts reproduced herein above would only show that the Complainant obtained an estimate from Chowgules who is an authorized Service Station and they were prepared to carry out the repairs but had refused to give any warranty for the repairs to be so carried out. The Complainant had not approached Chowgules because the vehicle was required to be repaired under warranty but because the vehicle was required to be repaired under the insurance policy. If that be the case, where was the question of deficiency of service on the part of Chowgules? Warranty is given by the manufacturer against manufacturing defects. The stand taken by Chowgules that they were unable to give any guarantee in case they carried out any repairs to the vehicle in question was pursuant to the policy of Maruti Udyog Ltd. that warranty would not be extended for parts which were replaced as a result of accident and therefore the stance of Chowgules could not be faulted. Chowgules could not be expected to give any warranty for body repairs as normally no such warranty is ever given by any repairer for body work. There was no cause of action for the Complainant to proceed against Chowgules for they were entitled to say that they would carry out the repairs but would not give any guarantee for repairs carried out, on account of an accident.
12. The Lr. D.F. has observed that they are at a loss to understand as to why at all there was a need to appoint 2 Surveyors.
They also observed that even higher Courts (without referring to any citation) have repeatedly held that appointment of 2 Surveyors would go to weaken the case of Insurance Company. It was necessary for the Lr. D.F. to have given the citation of cases where such conclusion was arrived at. If any reference is required to be made to any decision then it is necessary to cite the citation. In fact, we find from M/s.
Goel Jeweller (2011) (3) CPR 272) that 3 investigators were appointed and such appointment was said not to be arbitrary.
Next, it was expected of the Lr.
District Forum to have perused, the documents on record and if the documents on record were perused it was self evident, that the second Surveyor was appointed by New India at the request of the Complainant, as can be seen from the Complainants letter dated 21/07/2003 and which position is also clarified in the Conciliation Committees proceedings dated 20/04/2004 in the following words:
The Consumer requested the Assurance Company to appoint another Surveyor. The new Surveyor Mr. Usgaonkar also gave a report for repair of the vehicle than replacement of body shell.
13. The Lr. Forum has referred to the case of Rajesh Kumar Hiralal Bajaj 1995 (1) BOM-C.R, Pg. 53 as a comparable case to the facts of the case at hand.
Firstly, the Oriental Insurance Co. Ltd. had not contested the said appeal before the State Commission. Secondly, if there was delay in that case it was because of settling of the claim of the Complainant. If there has been a delay in this case it is entirely due to the Complainant and thereafter due to the District Forum who kept the case pending without a decision for 4 years. In that case the vehicle was totally damaged and was required to be dismantled for purpose of survey to ascertain the damage. There was lot of correspondence made by the Complainant with the Insurance Company and although Surveyors were deputed no survey report was ever prepared. In the case at hand, the first Surveyor Shri Kamat had immediately inspected the vehicle in question and submitted his report later and thereafter at the request of the Complainant another report was prepared by Shri Usgaonkar which concurred with the first report.
Therefore there was nothing comparable in this case to the facts of the case of Rajesh Kumar Hiralal Bajaj. What is of importance of a decision is its ratio and not every observation made in it. A fact here or there could bring about miles of difference.
As stated by the Apex Court in Sumtibai and ors (AIR 2007 SC 3166) (quoting AIR 1968 SC 647) a decision is only an authority for what it actually decides. What is of essence in a decision is its ratio and not every observation found therein nor what logically follows from various observations made in it. There cannot be any dispute that unexplained delay while settling Complainants claim amounts to deficiency in service.
14. The Fora under the Act are not expected to go against reason and against law. No doubt, their orders are expected to be short and precise, as precise as practible but not opposed to reason and the law.
The Consumer Courts, if we may use that expression, were created to supplement and not to supplant the jurisdiction of the Civil Courts. They were meant to provide a simple, summary, less expensive and more expeditious remedy to settle consumer grievance. As observed by the Apex Court in Vishwa Bharati House Building Co-operative Society (2003(2) All M.R. 1091, it is one of the postulates of such a body that it should arrive at a decison based on reason. Ours is a country governed by rule of law and when points of law were urged by one of the parties it was expected of the Lr. District Forum to answer the same. The words of Thomas Fuller Be you ever so high, the law is above you have now become our judicial dictum. By way of illustration we may refer to Marine Contract Services South Pvt. Ltd. (AIR 1999 SC 80) wherein the Apex Court showed a little surprise when the National Commission held that the provisions of Contract Act were not applicable to complaints filed under the Consumer Protection Act and held that the Contract Act applied to all.
15. Admittedly, the Lr. District Forum has taken 4 years to pronounce the order after filing of written arguments when they were required to pass the final order invariably within 15 days of the conclusion of the arguments, in terms of Regulation 18 (7) of the Consumer Protection Regulations, 2005. To say the least, this is shocking. It only shows the way the fora in this State are functioning without any control or supervision. It is not unknown that adjourning a matter for seeking clarification is an indirect way of gaining some time to overcome the said provisions of passing final order within 15 days. That the Lr. D.F. has taken 4 years does not at all speak well of its functioning. The Bombay High Court had an occasion to consider such matters in Pradeep K. R. Sangodkars Case (2007) (1) AIR BOM R 18 wherein a note was taken of certain other High Court decisions wherein it was held that delay in rendering a judgment for a period ranging from 6 months to 10 months was bad in law and the judgments were therefore set aside. The High Court gave certain directions and amongst them, the relevant for our case, would be :
(v)Directions contained in clauses 4 and 5 above shall be subject to any statutory provisions, if any, providing for a different period such as Consumer Protection Regulations, 2005; wherein Consumer Forum is required to pass the order invariably within fifteen days of the conclusion of the arguments as per clause 7 thereof.
(vi) Any judicial officer, failing to comply with directions at Sr. Nos. 15 above shall report to the Registrar, High Court of Bombay at Goa every such matter where there is a failure with reasons for non-delivery of such order/ judgment. The same will form part of their personal file.
(vii) In case of Government Officers discharging judicial/ quasi judicial functions, such report shall be made to the Chief Secretary of Goa and the same will form part of their personal records.
16. These directions must have been brought to the notice of the Lr. District Forum and were required to be complied with. Shri. E. Afonso seeks a remand. We do not propose to add salt to the injury of the Complainant, by remanding the matter for a fresh disposal and delaying it further, moreso because in the case at hand written arguments were filed by the parties and the complaint could have always been disposed off on the basis of the same, delay notwithstanding.
17. Shri E. Afonso, the Lr. Advocate appearing on behalf of New India has submitted that Lr. District Forum had no jurisdiction to decide the dispute, as the dispute had to be decided by referring to arbitration as provided by clause 7 of the conditions of the policy, which reads as follows:
If any dispute or difference shall arise as to the quantum to be paid under this policy (liability being otherwise admitted) , such difference shall independent of all other question be referred to the decision of sole arbitrator to be appointed in writing by the parties to the dispute or if they cannot agree upon a single arbitrator within 30 days of any party invoking arbitration the same shall be referred to a panel of 3 arbitrators comprising 2 arbitrators one to be appointed by each of the parties to the dispute/ difference and the 3rd arbitrator to be appointed by such 2 arbitrators who shall act as a presiding arbitrator and arbitration shall be conducted under and in accordance with provisions of the Arbitration and Conciliation Act, 1996.
18. Shri Afonso submits that in this case the dispute was whether the Complainant was entitled to the compensation as assessed by Shri Kamat or whether he was entitled the compensation as estimated by Chowgules and therefore the dispute had necessarily to be decided by an Arbitrator.
19. Shri Verenkar the Lr. Advocate of the Complainant on the other hand, referring to Udaypur Cement Works (1999) (ICPR 74 (NC) submits that mere existence of arbitration clause cannot come in the way of an aggrieved party from seeking legitimate relief under the Consumer Protection Act which is special piece of legislation to protect the interest of consumers not withstanding other laws in force.
20. We are unable to accept the submissions made by either of the Lr. Counsel. The choice was between the Forum chosen by the parties or the one provided either under C.P. Act or C.P.C. The point raised by Shri Afonso was not raised by New India before the Lr. District Forum, nor it has been raised in the memorandum of appeal. In our view, such a point cannot be raised for the first time in appeal. In case there was an arbitration clause in the agreement between the parties then it was necessary for New India to invoke the same as provided by section 8 of the Arbitration and Conciliation Act, 1996. In the case of M/s. Alka S. Naik Vs. Mr. Shiv Prasad R. Kakodkar (unreported decision dated 13/12/2011 in Complaint No.4/2011) this Commission, after considering a number of decisions of Apex Court, have come to the conclusion that :
The Consumer Protection Act does not derogate section 8 of the 1996 Act. In any event, 1996 Act being a special law and having been enacted later in point of time ought to prevail over the provisions of Consumer Protection Act. As stated by the Apex Court in decisions cited herein above, Section 8 of the 1996 Act is peremptory and casts an obligation on the judicial authority to refer the parties to arbitration or in other words Section 8 conveys a legislative command to refer the dispute to arbitration once the prerequisite of section 8 are satisfied.
21. The New India not having invoked the arbitration clause before the Lr. District Forum is not entitled to raise such an issue before the Appellate Forum. The prerequisites of section 8 were not satisfied in this case and the submission therefore needs to be rejected.
22. Shri E. Afonso then submits that the complaint was barred by limitation as provided by a condition of the policy which reads as follows:
It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim herein and such claim shall not, within 12 calendar months from the date of such disclaim have been made the subject matter of the suit in the Court of Law the claim shall for all purpose be deemed to have abandoned and shall not hereafter be reversible herein an any.
23. Shri Afonso has placed reliance on the Vulcan Insurance Co. Ltd. (1976 (1) SCC 943) which was followed in National Insurance Co. Ltd. (1997 4 SCC 366) wherein the Apex Court has held that the contract curtailing a period of limitation, prescribing a shorter period then the period prescribed by law does not fall within the mischief of section 28 of the Contract Act.
24. The complaint in this case was filed on 14/06/2004 and that too after the Complainant was told by letter dated 07/10/2003 to get the vehicle repaired.
25. Liability was not disclaimed by New India at any time. This submission also needs to be rejected.
26. We have perused the photos of the vehicle, taken after the accident in the file of New India, and shown to us and those produced by the complainant showing the present state of the vehicle. The complainant can blame no one but himself for the present state of the vehicle. In terms of the policy, New India was required to indemnify the loss or damage caused to the vehicle at the time of accident. New India in terms of the policy could have at its own option repaired the vehicle and reinstated the same to the complainant and for that reason probably that New India asked the complainant to shift the vehicle to Satardekars garage. It was not the case of the complainant that Satardekars garage was not a duly authorized garage by the manufacturers of the vehicle. Chowgules have stated that they were not only the authorized repairers and there were other garages as well which were duly authorized to carry out the repairs. It is quite probable that Satardekars garage was also duly authorized.
27. Ultimately, New India had even told the complainant to carry out the repairs in the garage of his choice and submit the bills. The Chowgules have stated, and, in our view rightly, that the present state of the vehicle is due to the vehicle being subjected to natural effects of sunlight, moisture and other climatic conditions which have set the corrosion and deterioration of the paint.
28. Although the Chowgules had initially recommended that replacement of the body shell to get the vehicle to pre-accident condition, subsequently Chowgules had not adhered to the said recommendation in their written version but again Shri. R. N. Redkar the Works Manager of Chowgule in his Affidavit-in-evidence had stated that the complainant was advised to replace the body shell because the body shell, if replaced, it does not move out easily once fixed. However, the said Shri. R. N. Redkar had not given any disadvantages in his affidavit-in-evidence which would be there in case the body shell was repaired. Both the surveyors appointed by New India and those who were consulted were of the opinion, that the bodyshell could be repaired. Their opinion could not be simply brushed aside.
29. As stated by the National Commission in National Insurance Company Ltd (II) 2006 CPJ 193, a report of a surveyor is an important document and cannot be brushed aside and the assessment made therein has to be specifically agreed or rebutted. In this case we find that there is no rebuttal to the report of the surveyors by any other report of equivalent weight. Again, the National Commission in the case of Oriental Insurance Company Ltd , (II) CPJ 339, has stated that the surveyors report is an important piece of evidence and the respondent can be awarded compensation only on the basis of the surveyors report. A similar view was also taken in h.c.
Sazena v/s New India Assurance Co. 2012 (1) CPR 31.
30. The complainant had produced no proof whatsoever that he had paid any installments to ICICI bank except for his bare self serving statement. The complainant showed no urgency to comply with the requests in letters dated 15/07/03 (copy at pg. 33) dtd. 30/07/03, (copy at pg.
10) & lastly dated 7/10/03 (copy at pg. 66) and in our view, considering the facts of the case, the complainant would not be entitled to any compensation of more than Rs. 43,012/- as assessed by both the surveyors.
31. We therefore allow the appeal and set aside the Impugned Order and award to the complainant the said sum of Rs. 43,012/- with pending and future interest at the rate of 9% from 12/05/03 until payment.
Considering the facts, the parties are left to bear their own costs.
[Smt. Vidhya R. Gurav ] [Justice Shri. N. A. Britto] Member President