State Consumer Disputes Redressal Commission
Sham Sunder vs Oriental Insurance Company Ltd. on 21 May, 2013
F.A. No. 846 of 2010 1
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 846 of 2010
Date of institution : 13.05.2010
Date of decision : 21.05.2013
Sham Sunder son of Teja Ram, resident of House No. 7473, Gali No. 3,
Near Kali Mata Mandir, Bathinda
.....Appellant
Vs.
1. Oriental Insurance Company Ltd., Bank Bazar, Bathinda, through
its Divisional Manager.
2. Oriental Insurance Company Ltd., D.O. VII, 7 Red Cross Place,
Kolkata, through its Divisional Manager.
3. Magma Shrachi Finance Corporation Ltd, Tinkoni, Guru Kashi Marg,
Bathinda, through its Manager/Authorized, person/Pardep Bansal.
..Respondents
First Appeal against the order dated 31.03.2010
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Before:-
Sh. Piare Lal Garg, Presiding Member.
Sh. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. Navjeevan Gupta, Advocate For respondents No. 1&2: Sh. V.K. Chaudhary, Advocate For respondent No. 3 : Sh. Bhavyadeep Walia, Advocate JASBIR SINGH GILL, MEMBER This is an appeal filed by the appellant/complainant (hereinafter called the 'appellant') against the order dated 31.03.2010 of the District Consumer Disputes Redressal Forum, Bathinda (hereinafter F.A. No. 846 of 2010 2 called the "District Forum") vide which the complaint of the appellant was dismissed.
2. The brief facts of the case are that the appellant was owner of Mahindra Maxi Pick-up bearing Registration No. PS-03-S-9407 Model August 2008 financed by respondent No. 3. The vehicle was insured under cashless policy for Rs. 4,56,950/- with respondents No. 1&2 vide cover note number 105540 from 30.08.2008 to 29.08.2009. On 29.09.2008, the said vehicle met with an accident at Barnala by pass road Bathinda. The intimation of the accident was given to respondent No. 3 who deputed Sh. Dinesh Kumar Goel as surveyor. The vehicle was shifted at M/s Imperial Motogrs, Authorised Service Centre of Mahindra and Mahindra Company as per the direction of Mr. Dinesh Kumar Goel surveyor who inspected the vehicle there. The vehicle was repaired under the supervision of Mr. Rakesh Gupta. After repair of the vehicle by M/s Imperial Motor, demand of an amount of Rs. 13,000/- as repair charges was made by it. The appellant told that the vehicle was insured under the cashless policy as such respondents No. 1 and 2 were liable to pay the repair charges, if any. Respondents No. 1 and 2 did not pay the repair charges to M/s Imperial Motors and ultimately Rs. 13,000/- was paid by the appellant. The complaint was filed with the prayer that respondents No. 1 and 2 may be directed to pay Rs. 13,000/- with interest @ 18% as well as Rs. 50,000/- as compensation and Rs. 20,000/- as litigation expenses due to deficiency in service on the parts of respondents No. 1 & 2.
3. Upon notice, reply was filed by the respondents No. 1 and 2 taking preliminary objections that the complaint was not maintainable, the complainant has not come to the Forum with clean hands as he has concealed the material facts. It was further submitted that the appellant had already consented to receive claim amount of Rs. 8270/- after deducting the salvage value. The answering respondents had paid Rs. F.A. No. 846 of 2010 3 7920/- to Magma Finance Corporation Limited as per consent/direction of the appellant. On merits it was admitted that the Mahindra Maxi Pick Up was insured by appellant with respondents No. 1 and 2. Dismissal of complaint was prayed.
4. Respondent No. 3 filed the separate reply taking objection that as per clause 22 of the agreement, dispute between the parties was to be referred to the arbitrator as such, the Forum had no jurisdiction to entertain and try the complaint. It was further submitted that the claim amount of Rs. 7920/- had already been paid by respondents No. 1 & 2 to answering respondent on behalf of the appellant and dismissal of the complaint was prayed.
5. After going through the evidence, complaint, documents and after hearing the counsel for the parties, the District Forum dismissed the complaint.
6. Aggrieved against the order of the District Forum, the appellant filed the appeal on the grounds that the appellant never gave any consent. The appellant has suffered a loss of Rs.13000/- whereas respondent No. 1 has paid only Rs. 7920/-, therefore, the appellant is entitled to recover the balance amount as per the terms and conditions of the policy and the order of the District Forum is liable to be set-aside.
7. It is admitted fact that vehicle of the appellant was insured with respondents No. 1 and 2 through respondent No. 3 for an amount of Rs. 4,56,950/- vide cover note No. 105540 w.e.f. 30.08.2008 to 29.08.2009. There is also no dispute that on 29.09.2008, the vehicle met with an accident on Barnala bye pass road Bathinda. The intimation of the accident was given to the respondent No. 3. Sh. Dinesh Goyal was deputed to inspect the vehicle and as per his instructions the vehicle was shifted to M/s Imperial Motors authorized service center of Mahindra F.A. No. 846 of 2010 4 Company. Mr. Rakesh Gupta was appointed to assess the loss. The disputes between the parties which we have to decide are as under:-
(i) Whether the vehicle in dispute was insured under cashless policy ?
(ii) Whether any consent was given by the appellant to accept Rs.
7920/- as claim after deducting the value of salvage or not ?
8. We have perused the policy Ex. C-2 which was package policy. We have also perused the final survey report Ex. C-11 of Sh. Rakesh Kumar Gupta surveyor and loss assessor dated 04.07.2009. As per the summary of assessment he estimated the cost of spare parts of Rs. 7593/- and labour charges as Rs. 8400/- i.e. total Rs. 15993/- but assessed the loss of Rs. 8270/- only and Rs. 350/- was assessed as scrap/salvage value.
9. The surveyor assessed only Rs. 1324/- as labour charges against Rs. 8400/-. But no reason is given in the assessment of labour how he assessed only Rs. 1324/- as labour against the estimate of Rs. 8400/-. We have also perused the consent letters Ex R-3 and Ex R-4. Consent letter Ex. R-3 relates to the consent of Rs. 8270/- as full and final loss. But no date is mentioned in the said consent letter, when the same was given by the appellant. Even respondents No. 1&2 have not disclosed the name and date in whose presence the consent letter was executed and handed over to such person. The claim number is also not mentioned in the consent letter Ex. R-3
10. We have also perused the consent letter Ex. R-4 but no date is also mentioned in the consent letter Ex. R-4. Even respondents No. 1 and 2 in their reply had not disclosed the name of person in whose presence the consent letter was executed by the appellant and to whom the same was handed over by the appellant. Respondents No. 1 and 2 had also not mentioned the date in their reply when the consent letters were submitted by the appellant to the respondent No. 1. However the F.A. No. 846 of 2010 5 appellant has not disputed regarding the payment of Rs. 7920/- to respondent No. 3 on behalf of the appellant as such there is no dispute regarding the payment of Rs. 7920/- by respondents No. 1&2 to respondent No. 3 on behalf of the appellant. The version of respondents No. 1 & 2 that Rs. 7920/- was accepted by the appellant as full and final settlement is not correct as the amount was paid by respondents No. 1 & 2 to respondent No. 3 and not to the appellant as such acceptance of the amount of Rs. 7920/- as entire claim does not arise. The respondents No. 1 & 2 also fail to prove the consent letters Ex. R-3 and Ex. R-4 allegedly given by the appellant.
11. So, we are of the view that the appellant is entitled for the loss of Rs. 7446/- cost of the parts as assessed by the surveyor + Rs. 8400/- as labour charges for the repair of the vehicle (i.e. Rs. 15846/-) as estimated by M/s Imperial Motors but Mr. Rakesh Gupta who was deputed to assess the loss has not challenged the estimate of repair made by the M/s Imperial Motors. The appellant has made the demand of Rs. 13,000/- only which he has paid to M/s Imperial Motors. The order of the District Forum is against the evidence on record and the District Forum failed to discuss how the surveyor assessed the labour charges as Rs. 1324/- against Rs. 8400/-.
12. In view of the above discussion, the order of the District Forum is liable to be set-aside. The appeal is accepted and respondents No. 1&2 are directed to pay Rs. 5080/-. As per Ex. C-13 Rs. 7920/- was paid by respondents No. 1 & 2 on behalf of the appellant on 24.11.2009, as such, respondents No. 1&2 are directed to pay the remaining amount of Rs. 5080/- to respondent No. 3 on behalf of the appellant with interest @ 9% per annum from 24.11.2009 as well as Rs. 3000/- as litigation expenses.
13. The arguments in this appeal were heard on 08.05.2013 and the order was reserved. Now the order be communicated to the parties. F.A. No. 846 of 2010 6
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(PIARE LAL GARG)
PRESIDING MEMBER
May 21, 2013. (JASBIR SINGH GILL)
Rupinder MEMBER