State Consumer Disputes Redressal Commission
Prem Singh vs Reliance General Insurance Co. Ltd. on 29 April, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 577 of 2012
Date of institution: 09.05.2012
Date of Decision: 29.4.2015
Prem Singh, aged about 66 years ex-serviceman, son of Tulsi Singh,
resident of Shaheed Bhagat Singh Colony, Ward No. 1, Morinda,
Tehsil Chamkaur Sahib, District Ropar.
Appellant
Versus
1. Reliance General Insurance Co. Ltd., SCO No. 145-146, 2nd Floor,
Sector 9-C, Madhya Marg, Chandigarh through its Divisional
Manager.
2. PASCO Motors, NH-21, Village Khabran, P.O. Singh Bhagwantpura,
Opp. Solkhian Gurudwara Sahib, District Ropar, (PB) 14001 through
its Proprietor/Manager.
3. Tata Motors Finance Co Ltd., SCO No. 1124-1125, Sector 22 B,
Chandigarh through its Manager.
..... respondents/complainant
First Appeal against the order dated
30.03.2012 passed by the District Consumer
Disputes Redressal Forum, Ropar
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri. Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. R.C. Gupta, Advocate
For respondent No. 1 : Sh. R.S. Joshi, Advocate for
Sh. T.K. Joshi, Advocate
For respondent No. 2 : None
For respondent No. 3 : None
2
FIRST APPEAL NO. 577 OF 2012
2nd Appeal
First Appeal No. 719 of 2012
Date of institution: 31.05.2012
Date of Decision : 29.4.2015
Reliance General Insurance Company Ltd., through Rakesh Sonkar,
Manager legal and power of attorney holder of M/s Reliance General
Insurance Company Ltd., SCO 135-137, IInd Floor, Sector 9-C,
Chandigarh
.....Appellant
Versus
1. Prem Singh aged about 65 years, Ex.-Serviceman, son of Tulsi
Singh, resident of Shaheed Bhagat Singh Colony, Ward No. 1,
Morinda, Tehsil Chamkaur Sahib, District Ropar.
2. PASCO Motors, NH-21, Village Khabran, P.O. Singh Bhagwantpura,
Opp. Solkhian Gurudwara Sahib, District Ropar (Punjab), 140001
through its Proprietor/Manager.
3. TATA Motors Finance Co. Ltd., SCO No. 1124-1125, Sector 22-B,
Chandigarh, through its Manager.
....Respondents
First Appeal against the order dated
30.03.2012 passed by the District Consumer
Disputes Redressal Forum, Ropar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. R.S. Joshi, Advocate for
Sh. T.K. Joshi, Advocate
For respondent No. 1 : Sh. R.C. Gupta, Advocate
For respondent No. 2 : None
For respondent No. 3 : Deleted vide order dated 18.07.2013
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned appeals as both the appeals are arising out of the order dated 3 FIRST APPEAL NO. 577 OF 2012 30.03.2012 passed in Consumer Complaint No. 166 dated 01.11.2011 by the District Consumer Disputes Redressal Forum, Ropar (in short the "District Forum") vide which the complaint filed by complainant/respondent was allowed directing OP No. 1 to pay a sum of Rs. 76,546/- more to the complainant alongwith interest @ 9% p.a. from 05.09.2011 till the date of payment with Rs. 2000/- as costs of filing the complaint within a period of two months from the date of receipt of copy of the order. OP No. 2 was directed to deliver the vehicle to the complainant within a period of 10 days from making of payment of amount of bill excluding the amount of Rs. 45,000/- already paid in advance.
2. F.A. No. 577 of 2012 has been filed by the complainant for enhancement of the amount whereas F.A. No. 719 of 2012 has been filed by OP NO. -1 to set-aside the order regarding payment of Rs. 76,546/- to the complainant.
3. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the OPs on the allegations that he purchased vehicle i.e. TATA-207 DI, Model-2008 bearing Regn. No. CH-041-6685 financed by OP No. 3 in the year 2009 and got it insured from OP No. 1 for the period from 31.08.2009 to 30.08.2010 vide cover note No. 109000630837. Unfortunately the vehicle met with an accident on 29.07.2010 when it was being driven by its driver Gurdarshan Singh and was badly damaged. Its information was given to OP No. 1 who appointed Surveyor and Loss Assessor Sh. P.K. Bansal to assess the loss and he visited the spot. As per the instructions of OP No. 1, the 4 FIRST APPEAL NO. 577 OF 2012 complainant brought the vehicle to the workshop of OP No. 2 on 03.08.2010 and to start the repair, OP No. 2 demanded Rs. 10,000/- which were paid on 09.09.2010. Then on 12.11.2010, he again approached OP No. 2. OP No. 2 had not started the repair work and assured to start it soon. On 08.02.2011 he again approached OP No. 2 but they demanded a sum of Rs. 25,000/- which was paid and assured that they will complete the repair work within 10 days. On 05.10.2011, OP No. 2 informed the complainant that the vehicle in question was ready for delivery and asked to pay Rs. 2,17,020/- and they had prepared the bill dated 06.06.2010 and also demanded Rs. 300/- per day as parking charges and also demanded interest @ 12% on the amount of invoice whereas OP No. 1 had paid only Rs. 1,13,000/- vide cheque dated 05.09.2011. This vehicle was being plied by the complainant to earn his livelihood and has been paying instalments to the bank. On account of delay on the part of OP No. 2 to carry out the repairs, he lost his earning and he was issued letters dated 24.01.2011, 12.07.2011, 22.09.2011 to pay the penalty on late payment of instalments. It amounted to deficiency in services on the part of the OPs by not repairing the vehicle in time and not to make the payment of bill of repair by OP No. 1. Hence, the complaint seeking directions to OP No. 1 to pay a sum of Rs. 1,04,020/- more on account of balance repair costs and directions to OP No. 2 to adjust a sum of Rs. 45,000/- and to pay Rs. 50,000/- per month as loss of income of the complainant and directions to both OP No. 1 & 2 to pay a compensation of Rs. 1 lac with costs and interest. 5 FIRST APPEAL NO. 577 OF 2012
4. The complaint was contested by the OPs. OP No. 1 in its written reply took preliminary objections that the OPs had no office within the jurisdiction of this Forum, therefore, this Forum did not have any jurisdiction to entertain this complaint. The claim with regard to damage of the vehicle was lodged with the company and competent authority appointed Sh. PEE Kay & Co. Surveyor and loss Assessor to assess the loss and he asked the complainant vide letter dated 20.08.2010 to get the vehicle repaired. However, the vehicle was not got repaired and reminder was issued on 05.12.2010 and a warning was given to the complainant that in case, the repair is not done, then his filed will be closed. However, after the repair the complainant requested to re-open the file and it was re-opened on the request of the complainant. As per the report of the surveyor, a sum of Rs. 1,13,000/- was payable and paid. The complaint filed by the complainant was false and frivolous, therefore, liable to be dismissed with special costs. On merits, insurance policy was admitted. Damage to the vehicle was admitted. The surveyor was appointed and as per the report of the surveyor, a sum of Rs. 1,13,000/- was paid to the repairer as per the instructions given by the complainant, therefore, there was no deficiency in services on the part of this OP. The complaint was without merit and it be dismissed.
5. OP No. 2 in its written reply took the preliminary objections that the complaint was not maintainable against this OP because the complainant does not fall within the definition of 'Consumer' against this OP. The vehicle was purchased only for commercial purpose as the complainant was running the business of transport. The 6 FIRST APPEAL NO. 577 OF 2012 complainant had not come to the court with clean hands and had suppressed the material facts from the Hon'ble Court. The complainant parked the vehicle in the workshop of this OP for its repair and mischievously took the bills of repair to submit the same in the office of OP NO. 1 as he was fully aware that the cost of the damaged vehicle was less than the bill obtained by him. On merits, it was admitted that the vehicle of the complainant was brought to the workshop of this OP for repair. This OP had given the estimate of the repair and demanded 50% of the repair as advance payment as per their policy, but the complainant had not paid that amount and paid just Rs. 10,000/- on 09.09.2010 and Rs. 25,000/- on 08.02.2011. The intimation was given to the complainant in the first week of June when he took the invoice from this OP. Vide letter dated 05.10.2011, he was reminded that he had not come forward to collect the vehicle. There was no deficiency in service on the part of this OP, therefore, the complaint against this OP was liable to be dismissed.
6. OP No. 3 in its written reply submitted that OP No. 3 had financed the vehicle in question which met with an accident and that this OP had first right to get the insurance claim in the case of accident, therefore, no deficiency has been alleged against this OP. It was submitted that the complaint was without merit and it be dismissed.
7. The parties were allowed by the learned District Forum to lead their evidence.
8. In support of his allegations, the complainant had tendered into evidence his affidavit as Ex. C-1 and photocopies of 7 FIRST APPEAL NO. 577 OF 2012 documents i.e. R.C. Ex. C-2, D.D.R. Ex. C-3, retail invoice of PASCO Motors Ex. C-4, Performa invoice Ex. C-5, letter dated 05.10.2012 of PASCO Motor Ex. C-6, receipts Ex. C-7 to Ex. C-9, insurance policy Ex. C-10, Cheque Ex. C-11, legal notice Ex. C-12, letter dated 12.07.2011 Ex. C-13, loan re-call notice Ex. C-14, letter dated 29.03.2011 Ex. C-15, letter dated 07.06.2011 Ex. C-16, letter dated 10.04.2011 Ex. C-17 and closed the evidence. On the other hand OP No. 1 tendered into evidence affidavit of Sh. Rakesh Sonkar, Manager Ex. RW-1/A, affidavit of Sh. Parvinder Kumar Bansal, Surveyor Ex. R-2/A and photocopies of documents i.e. policy alongwith terms and conditions Ex. R-1, letter dated 20.08.2010 Ex. R-2, letter dated 05.12.2010 Ex. R-3, Surveyor Report Ex. R-4, Claim form Ex. R-5, re-opening request Ex. R-6, letter dated 10.05.2011 Ex. R-7, letter dated 20.01.2011 Ex. R-8 and close the evidence. OP No. 2 tendered into evidence affidavit of Sh. M.S. Chittoria, General Manager, Ex. R-1 and photocopies of documents i.e. letter dated 21.10.2011 Ex. R-3, Job Card Ex. R-3, Pre-Job Card Ex. R-4 and closed the evidence. OP No. 3 tendered into evidence affidavit of Johnson Andrews, Authorized Signatory Ex. R-9 and photocopies of documents i.e. hypothecation agreement Ex. R-10, Cardex-I Ex. R- 11, Carxex II repayable schedule Ex. R-12, termination letter Ex. R- 13, power of attorney in favour of Sh. Johnson Andrews, Authorized Signatory Ex. R-14 and closed the evidence.
9. After going through the allegations in the complaint, written statements filed by the OPs, evidence and documents brought on the record, the complaint was allowed by the learned District 8 FIRST APPEAL NO. 577 OF 2012 Forum as referred above. With regard to the parking charges as per the averments made in the written reply filed by OP No. 2, a Civil Suit is pending and this matter can be adjudicate by the Civil Court.
10. Feeling aggrieved with the order passed by the learned District Forum, the complainant as well as OP No. 1 have filed their respective appeals.
FIRST APPEAL NO. 719 OF 2012
11. This appeal has been filed by the opposite party No. 1. It was contended by the counsel for the appellant that as per the surveyor report, a sum of Rs. 1,13,000/- was paid to the complainant as assessed by the surveyor whereas learned District Forum has wrongly ordered to pay a sum of Rs. 76,546/- more to the complainant. As per the version given by the complainant and OP No. 2, total repair bill was of Rs. 2,17,020/-. The same is on the record as Ex. C-4. The report of the surveyor is Ex. R-4 vide which he assessed the net payable amount is Rs. 1,13,000/-. He has allowed the spare parts for the value of Rs. 1,07,370/- whereas the total bill for repair was Rs. 2,13,341/-. After deducting the depreciation of metal and plastic parts, less compulsory deductible and salvage value, a bill of Rs. 1,13,000/- was assessed by the surveyor. In case, we go through the order passed by the District Forum, it has also allowed the depreciation of Rs. 17,256/-, salvage value of replaced parts Rs. 11,539/- and compulsory deduction under excess clause of the policy Rs. 500/-. However, counsel for OP No. 1 was not justified not to allow various items assessed by the surveyor in his report when actually the payment was made by the 9 FIRST APPEAL NO. 577 OF 2012 complainant. During the course of argument, counsel for OP No. 1 was unable to justify under which terms and conditions of the policy, these parts were not permissible to be replaced by the complainant in case those were damaged in any accident. The report of the surveyor is certainly a valuable piece of evidence, however, it cannot be considered to be a gospel truth. In case the surveyor has left number of items without any reason, then the Consumer Fora has a right to consider these items whether its payment is admissible to the complainant. When the payment of various spare parts of Rs. 2,13,341/- has been paid by the complainant to OP No. 2, no evidence has come forward on behalf of OP No. 2 that these parts were not changed after the accident by OP No. 2. Therefore, without any reason, those payments cannot be withheld and that has not justified the report of the surveyor. Therefore, we are of the opinion that the District Forum was justified to allow Rs. 76,546/- more against OP No. 1.
12. Therefore, we do not find any merit in the appeal so filed by the appellant/OP No. 1 and the same is hereby dismissed.
13. The appellant had deposited a sum of Rs. 25,000/- with this Commission at the time of filing the appeal. The amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent No. 1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of sending the certified copy of the order to the parties, subject to stay, if any, by the higher Fora/Court.
10FIRST APPEAL NO. 577 OF 2012 FIRST APPEAL NO. 577 OF 2012
14. This appeal has been filed by the complainant regarding enhancement of the amount specifically against OP No. 2. It has been alleged that on 03.08.2010, the vehicle was left with OP No. 2 for repair and he had sent the intimation to the complainant on 05.10.2011 to take the delivery of the same against bill of Rs. 2,17,020/-. It has been stated that the vehicle was commercial vehicle purchased by the complainant to earn his livelihood, therefore, in case, the vehicle remain with OP No. 2 for a period of more than one year, during that period, he was deprived to earn his livelihood and had to repay the loan instalments and had to pay the penal interest, in case he had failed to repay the instalments on due date. Whereas the point of OP No. 2 is that the vehicle was left with OP No. 2 on 03.08.2010 for repair. It was not a cashless policy. The complainant was asked to pay 50% of the estimated amount to start the repair whereas he had paid just Rs. 10,000/- on 09.09.2010 and Rs 25000/- on 08.02.2011 and due to this reason, there was delay in undertaking the repair. As stated above, it was not a cashless policy, therefore, OP No. 2 was not bound to repair of the vehicle without obtaining any advance and in case some advance amounts were demanded by OP No. 2 to start the repair, that was justified. In case the complainant failed to pay the amount, then that can be the reason for delay in repairs. So far as evidence is concerned, there is no evidence either led by the complainant or by OPs with regard to 50% of the repair charges to be taken in advance or he has demanded 11 FIRST APPEAL NO. 577 OF 2012 only Rs. 10,000/- and Rs. 25,000/- as paid by the complainant. Since, it was not the cashless policy, the repair was undertaken as per the instructions of the complainant and normally some advance amount is taken to purchase spare parts by the service dealer. Therefore, his contention seems to be justified. The same was considered by the District Forum, therefore, no special costs regarding delay in delivery of the vehicle was allowed in favour of the complainant. Those findings seem to be correct findings and we affirm the same.
I5. In view of the above discussion, we do not see any merit in the appeal and the same is hereby dismissed.
16. The arguments in these appeals were heard on 23.04.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.
17. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
18. Copy of this order be placed on F.A. No. 719 of 2012.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (SURINDER PAL KAUR) MEMBER April 29, 2015.
Rupinder 12 FIRST APPEAL NO. 577 OF 2012