State Consumer Disputes Redressal Commission
Pramod Kumar Pandey vs Icici Lombard General Insurance Co. ... on 1 August, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/303
Instituted on : 06.05.2017
Pramod Kumar Pandey,
S/o Abhay Shankar Pandey,
Near Dr. Das, Gangaram Nagar, Main Road,
Raipur (C.G.) ...Appellant (Complainant)
Vs.
1. I.C.I.C.I. Lombard General Insurance Co. Ltd.,
Inside Vanijya Bhawan,
Near Devendra Nagar Chowk,
Raipur (C.G.) ... Respondent No.1 (O.P. No.1)
2. Cholamandalam Investment and Finance Co. Ltd. ,
National Corporate Part 5th Floor,
Shop No.506 to 509,
Opposite Rajkumar College, G.E. Road,
Raipur (C.G.) ...... Respondent No.2 (O.P. No.2)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES :
Shri D.L. Rathore, Advocate for the appellant (complainant).
Shri Sanjay Tiwari, Advocate for the respondent No.1 (O.P. No.1).
Shri Saurabh Shukla, Advocate for the respondent No.2 (O.P. No.2).
ORDER
DATED : 01/08/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 07.02.2017, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.699/2015. By the impugned order, the learned District Forum has partly allowed the complaint of the complainant and directed that :-
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(a) The O.P. No.1 will pay a sum of Rs.21,363/- (Rupees Twenty One Thousand Three Hundred Sixty Three) within a period of one month from the date of order along with interest @ 6% simple interest from the date of filing of the complaint i.e. 04.11.2015 till realization.
(b) The O.P. No.1 will pay a sum of Rs.10,000/- (Rupees Ten Thousand) towards compensation for mental agony to the complainant.
(c) The O.P. No.1 will pay a sum of Rs.2,000/- (Rupees Two Thousand) towards advocate fees and cost of litigation to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant is owner of vehicle bearing registration No.C.G.04-J.D. 4726 and at the time of purchasing of the above vehicle, the vehicles was got insured with the O.P. No.1. The vehicle was insured for the period from 25.06.2013 to 24.06.2014. The above vehicle was purchased by the complainant with the financial help of the O.P. No.2. On 15.05.2014 at about 9.30 P.M. near Kabirdharm, the driver of red colour Mahindra Tractor, who was driving the vehicle rashly and negligently, dashed the vehicle of the complainant, due to which the vehicle of the complainant was turtled and the driver of the vehicle in question, Subhash Tiwari, sustained injuries. At the time of accident, the brother in law of the complainant namely Subhash Tiwari, was driving the vehicle. Ashish // 3 // Tiwari gave intimation regarding the accident to Police Station Sahaspur Lohara. The Police Station, Sahaspur Lohara registered offence against the driver of the tractor and the charge sheet was filed before Chief Judicial Magistrate, Kabirdham. After accident, the complainant obtained estimate from Vardhman Commercial, who is authorized repairer of the above vehicle for the amount of Rs.2,31,610/-. The complainant felt that the amount of estimate regarding repairing of the vehicle, given by Vardhman Commercial is on very higher side, therefore, he got his vehicle repaired from Pappu Auto Motors, Dumartarai, Mohbabazaar. The complainant purchased the parts required for his vehicle from Vardhman Commercial and some parts were purchased by the complainant from Atul Motors, Moudha Para, Raipur. The complainant paid labour charges to Pappu Motors. Thus, the complainant paid total amount of Rs.1,01,963/- for getting his vehicle repaired completely. The complainant submitted all bills in respect of the repairing of his vehicle before the O.P. no.1. The O.P. No.1 on 13.11.2014 treated the claim of the complainant "No Claim"
on the ground of Misrepresentation of facts (driver details are misrepresented at intimation / claim form and in actual, try to hide the material facts. The O.P. No.1 did not pay the amount spent by the complainant in repairing of his vehicle, therefore, he took loan from his relatives and got repaired the vehicle. The complainant could not pay the due installment in time to the O.P. No.2, therefore, the O.P. No.2 had unauthorizedly and forcibly took the vehicle. If the O.P. No.1 would have paid the claim amount in time to the complainant then the complainant // 4 // would have paid the due amount in time and the complainant would have not been suffered any loss. Thus the act of the O.P. No.1 & O.P.No.2 shows the deficiency in service, unfair trade practice on their parts. Hence, the complainant filed the instant complaint and prayed for granting reliefs, as prayed in the prayer clause of the complaint.
3. The O.P. No.1 filed its written statement and averred that the insurance Policy No.3005/31009749/11141/000 in respect of vehicle bearing registration No.C.G.04-J.D. 4726 was issued for the period from 14.02.2015 to 13.02.2016 under the terms and conditions mentioned in the insurance policy. The terms and conditions of the insurance policy are binding on the policy holder If the policy holder is not following the terms and conditions of the insurance policy, then there is violation of insurance contract and the Insurance Company is not liable to pay the insured amount. The complainant gave intimation regarding the accident in respect of vehicle bearing registration No.C.G.04-J.D.-4726 to the O.P. No.1. The complainant submitted the documents relating to the accidented vehicle i.e. claim form, driving licence of driver, copy of insurance policy, copy of estimate, Cash Memo, bills and vouchers issued by Vardhman Commercial and other documents for settlement of the claim. The O.P. No.1 examined the documents filed by the complainant in respect of his claim and it is found that the complainant gave false information to the Insurance Company regarding the driver, who was driving the vehicle at the time of accident, therefore, the O.P. No.1 vide // 5 // letter dated 13.11.2014 to the complainant and informed regarding non- settlement of his claim. Thus, the O.P. No.1 gave information to the complainant regarding the accidental claim and also informed the reasons for not settling his claim. The O.P. No.1 did not commit any deficiency in service, unfair trade practice. In the complaint, it has been averred that at the time of accident, the vehicle in question was being driven by the brother in law of the complainant namely Subhash Tiwari and intimation regarding the accident to the Police Station, Sahaspur Lohara was given by Ashish Tiwari. In the case, the complainant did not deliberately file the copy of the Police Report, lodged to Police Station, Sahaspur Lohara in respect of the accident. The copy of the above Police Report is essential for proper disposal of the case. In the claim form submitted by the complainant, it is mentioned that at the time of accident, the vehicle was being driven by Ravji Bhai Patel and later on in the another claim form it is mentioned that the vehicle in question was being driven by Subhash Tiwari. At the time of accident, Subhash Tiwari was possessing driving licence for driver MCWGR & LMV whereas the vehicle in question was Goods Carrying Vehicle for which LTV is required. Thus, at the time of accident, Subhash Tiwari was not having valid and effective driving licence to drive vehicle bearing registration No.C.G.04-J.D-4726, which is violation of terms and conditions of the insurance policy, therefore, the complainant is not entitled to get insured amount from the O.P. No.1. The complainant submitted first claim form in respect of accident dated 15.05.2014 before O.P. No.1, in which he mentioned that at the time of // 6 // accident Ravji Bhai Patel was driving the vehicle, whereas in the another claim form the name of driver is mentioned Subhash Tiwari. Thus the complainant himself told the name of two different driver as driver of the vehicle in question. Thus the complainant gave false information to the O.P. No.1 regarding accident, which is violation of terms and conditions of the insurance policy. The O.P. No.1 examined the documents submitted by the complainant in respect of the accident and it was found that the complainant gave false information regarding the driver, in the claim form, therefore, vide order dated 13.11.2014, the O.P. No.1 informed that Misrepresentation of Facts (Driver details are misrepresented at Intimation / Claim Forum and in actual, try to hid the material facts). Thus, the O.P. No.1 acted as per rules and did not commit any deficiency in service. The complainant did not give information regarding true fact in respect of the accident to the O.P. No.1 and in the complaint filed against the O.P. No.1, true facts have not been mentioned. Thus, the complainant did not file the complaint with clean hands and on the false ground he is demanding relief. The complaint is liable to be dismissed with cost.
4. The O.P. No.2 filed its written statement and averred that the complainant did not pay the installments, therefore, as per terms and conditions of the agreement, the vehicle was repossessed The O.P. No.2 several time requested the complainant to pay the due amount, but he expresses his inability, therefore, on 12.02.2015, he surrendered the vehicle and the vehicle was taken in possession of O.P. No.2 lawfully. Agreement // 7 // No.XVFPRPV00000995664 was executed between the complainant and O.P. No.2 Cholamandalam Investment for purchasing Ashok Leyland Auto Al Dost and terms and conditions were fixed. In Condition No.29 of the agreement it is clearly mentioned that if any dispute arises between both the parties then the same shall be resolved through provisions of Arbitration and Conciliation Act, 1996 by appointing Arbitrator. On the contrary, the complainant has filed the instant complaint before the District Forum, which is not maintainable and is liable to be dismissed. From the provisions of Section 8 of the Arbitration and Conciliation Act, 1996 it is clear that if any dispute arise between the parties, then the same can be settled by appointing Arbitrator. If the above condition is mentioned in the agreement, then proceedings cannot be initiated in the other Court. The Court is bound to sent the above dispute to the Arbitrator. As the agreement has been executed between both the parties, therefore, the dispute can be settled only through appointment of Arbitrator and the award passed by the Arbitrator will be final and binding on both the parties. Therefore, the complaint is not maintainable and is liable to be dismissed. As per agreement executed between the complainant and O.P. No.2, the O.P. No.2 filed a case before Arbitrator Mr. K. Rajmanikkam, for recovery of the amount along with interest, which is pending at present and the complainant is having knowledge regarding the same. The complainant has filed the instant complaint to escape from the liability of payment of the loan amount, which is prima facie liable to be dismissed. As per condition No.30 of the agreement // 8 // executed between the complainant and O.P. No.2, the dispute arisen between the parties with be settled at the jurisdiction of Courts situated at Chennai and in the agreement the complainant put his signature. The District Forum, has no jurisdiction to take cognizance in the matter and the complaint is liable to be dismissed. The complainant would have filed complaint before Consumer Forum, Chennai but he filed the complaint before District Forum, Raipur which is not maintainable. The complainant has filed the instant complaint to escape from his liability to pay the installment and with malafide intention whereas the O.P. No.2 had taken all action as per the conditions mentioned in the agreement. On the date of repossession, a sum of Rs.1,37,039/- was due against the complainant and the O.P. No.2 demanded the same from the complainant on 05.12.2014 but the complainant did not pay the above amount and due to nom-payment of the due amount, the vehicle was repossessed, for which complainant is liable. Prior to sale of the vehicle and thereafter, the complainant did not pay the due amount along with interest. The O.P. No.2 sent pre-sale notice to the complainant on 16.02.2015 and demand sum of Rs.4,86,959/- but he did not pay the same and thereafter with malafide intention the complainant filed the instant complaint, which is liable to be dismissed. The O.P. No.2 repossessed the vehicle in question lawfully. The complicated questions relating to evidence cannot not be settled by the District Forum and the competent Civil Court is eligible to decide the case. The O.P. No.2 did not commit any deficiency in service or unfair trade practice. The complainant has suppressed true facts and // 9 // filed the instant complaint. The complainant was provided sufficient opportunities to pay the due amount but he did not pay the same therefore, the vehicle was repossessed and thereaftrer it was sold, for which the complainant was also agreed. The complaint is liable to be dismissed against the O.P.
5. The complainant has filed documents. Annexure 1 is Motor Insurance Cover Note Goods Carrying Vehicle, Annexure 2 is Goods Carrying Package Policy - Certificate Cum Policy Schedule, Annexure 3 is Cash Memo dated 02.05.2014 issued by Vardhman Commercials, Annexure 4 is Estimate, Annexure 5 is Cash Voucher dated 01.09.2014 issued by Vardhman Commercials, Annexure 6 is Bill dated 26.09.2014 issued by Vardhman Commercials, Annexure 7 is bill dated 21.10.2014 issued by Vardhman Commercials, Annexure 8 is Claim Status Communication dated 13.11.2014, Annexure 9 is Bill dated 13.11.2014 issued by Vardhman Commercials, Annexure 10 is bill dated 18.11.2014 issued by Vardhman Commercials, Annexure 11 is bill dated 20.11.2014 issued by Vardhman Commercials, Annexure 12 is Final Call Letter to the Customer dated 05.12.2014 sent by the O.P. No.2, Annexure 13 is bill dated 09.12.2014 issued by Vardhman Commercials, Annexure 14 is bill dated 10.12.2014 issued by Pappu Spray Painting, Annexure 15 is bill dated 13.01.2015 issued by Vardhman Commercials, Annexure 16 is bill dated 17.10.2015 issued by Atul Motors, Annexure 17 is driving licence of Subhash Tiwari.
6. The O.P. No.1 has not filed any documents.
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7. The O.P. No.2 has filed documents which are Final Call Letter to the Customer dated 05.12.2014 sent by the O.P. No.2 to the complainant, loan application submitted by the complainant to O.P. No.2, Loan Agreement - Vehicle Finance, Schedule, Pre-Sale Letter to Customer dated 16.02.2015 sent by the O.P. No.2 to the complainant, Surrender letter dated 12.02.2015, Inventory, Vehicle Valuation Report, Repayment Schedule, letter dated 14.07.2015 sent by Mr. A. Anandan to the Complainant, Subhash Tiwari and Karun Pandey.
8. Learned District Forum after having considered the material placed before it by the parties, has partly allowed the complaint and directed the O.P. No.1 to pay amounts, as mentioned in para 1 of this order.
9. Shri D.L. Rathor, learned counsel appearing for the appellant (complainant) has argued that the appellant (complainant) is owner of vehicle bearing registration No. C.G.04-J.D.-4726 and it was insured with the respondent No.1 (O.P. No.1) for the period from 25.06.2013 to 24.06.2014. On 15.05.2014 at about 9.30 P.M., the vehicle met with an accident because the driver of Mahindra Tractor, who was driving the vehicle rashly and negligently dashed the vehicle in question, due to which the vehicle in question was turtled and the driver Subhash Tiwari sustained injuries. The vehicle was taken to Vardhman Commercials, who gave estimate of Rs.2,31,610/-. The appellant (complainant) felt that the amount of estimate regarding repairing of the vehicle given by the // 11 // Vardhman Commercials is on higher side, therefore, he took the vehicle to Pappu Auto Motors, Dumartarai, Mohbabazaar for repairing purpose where the vehicle was repaired. The appellant (complainant) paid a sum of Rs.1,01,963/- to the repairer. The claim form along with relevant documents were submitted by the appellant (complainant) to respondent No.1 (O.P. No.1). The respondent No.1 (O.P. No.1) treated the claim of the appellant (complainant) as No Claim. The respondent No.2 (O.P. No.2) unauthorizedly and forcibly took the vehicle. If the respondent No.1 (O.P. No.1) would have paid the claim amount in time to the appellant (complainant), then the appellant (complainant) would have paid the due amount in time to the respondent No.2 (O.P. No.2). The respondents (OPs) have committed deficiency in service, but the learned District Forum did not consider the above aspect of the matter and only awarded a sum of Rs.21,363/-, towards compensation, which is meager and has also awarded only Rs.10,000/- towards compensation for mental agony.. The appellant (complainant) is entitled for getting the reliefs, as prayed by him in the relief clause of the complaint. Hence the appeal may be allowed and impugned order passed by the District Forum be modified accordingly.
10. Shri Sanjay Tiwari, learned counsel appearing for the respondent No.1 (O.P. No.1) has argued that that the appellant (complainant) suppressed material. In the claim form submitted by the appellant (complainant) it is mentioned that at the time of accident the vehicle was // 12 // being driven by Ravji Bhai Patel and later on in another claim form it is mentioned that at the time of accident, the vehicle in question was being driven by Subhash Tiwari, therefore, the appellant (complainant) has misrepresented the facts. The vehicle in question is Goods Carrying Vehicle whereas Subhash Tiwari was holding driving licence for driving MCWGR & LMV. It is established that at the time of accident, driver Subhash Tiwari, was not holding valid and effective driving licence. The appellant (complainant) violated the terms and conditions of the insurance policy, but learned District Forum has erroneously awarded compensation to the appellant (complainant). Therefore, the appeal filed by the appellant (complainant) is liable to be dismissed.
11. Shri Saurabh Shukla, learned counsel appearing for the respondent No.2 (O.P. No.2) has argued that the District Forum has exonerated the respondent No.2 (O.P. No.2), therefore, the appeal filed by the appellant (complainant) against the respondent No.2 (O.P. No.2) may be dismissed.
12. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
13. The appellant (complainant) pleaded that he is registered owner of vehicle bearing registration No.C.G.04-J.D.4726 and it was insured with the respondent No.1 (O.P.) for the period from 25.06.2013 to 24.06.2014. The respondent No.1 (O.P. No.1) admitted the above facts. The appellant // 13 // (complainant) filed copies of Motor Insurance Cover Note (Annexure 1) and Certificate Cum Policy Schedule (Annexure 2), issued by the respondent No.1 (O.P. No.1), therefore, it is established that the appellant (complainant) is owner of the vehicle bearing registration No.C.G.04-J.D- 4726 and the same was insured with the respondent No.1 (O.P. No.1) for the period from 25.06.2013 to 24.06.2014.
14. The appellant (complainant) has pleaded that the vehicle in question met with accident at about 9.30 P.M. on 15.05.2014 and at that time, the vehicle was being driven by Subhash Tiwari, who is brother in law of the appellant (complainant). The appellant (complainant) also pleaded that the First Information Report was registered at Police Station, Sahaspur Lohara and charge sheet against the driver of the tractor was filed before Chief Judicial Magistrate, Kabirdham. The appellant (complainant) has not filed copies of First Information Report, charge sheet, seizure memo and nuksani panchanama.
15. According to the appellant (complainant) at the time of accident, the vehicle in question was being driven by Subhash Tiwari, who is his brother in law of the appellant (complainant). The appellant (complainant) has filed copy of driving licence of Subhash Tiwari. Looking to the driving licence, it appears that he was holding driving licence for driving Light Motor Vehicle and Motor Cycle With Gear. According to the Motor Insurance Cover Note and Certificate Cum Policy Schedule, the vehicle in question is Goods Carrying Vehicle.
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16. In Reliance General Insurance Co. Ltd. Vs. Jivabhai Maldebhai Godhaniya, III (2017) CPJ 1 (NC), Hon'ble National Commission has observed thus :-
"15. ........ it is abundantly clear that the vehicle in question was a commercial vehicle, but the person who was driving the vehicle at the time of the accident, did not have a valid and effective licence to drive the same. Considering the distinct requirements laid down in The Motor Vehicles Act, 1988 and The Central Motor Vehicles Rules, 1989 about the grant of licence for commercial vehicles, it is clear that the holder of the LMV licence had no authority to drive the commercial vehicle without proper endorsement from the concerned transport authority...."
17. It appears that at the time of accident, Subhash Tiwari, the driver of the vehicle in question was not having valid and effective driving licence, but the respondent No.1 (O.P. No.1) has not filed any appeal against the impugned order passed by the District Forum, therefore, the impugned order passed by the District Forum against the respondent No.1 (O.P., has attained finality.
18. So far as the respondent No.2 (O.P. No.2), is concerned, we have perused the complaint. The appellant (complainant) did not seek any relief against the respondent No.2 (O.P. No.3). Even in Memo of Appeal, the appellant (complainant) did not challenge the impugned order passed by the District Forum in respect of the respondent No.2 (O.P. No.2), therefore // 15 // the order passed by the District Forum exonerating the respondent No.2 (O.P. No.2), is just and proper and has attained finality.
19. According to the appellant (complainant), initially he took the vehicle to Vardhman Commercials, who gave estimate of Rs.2,31,610/- for repairing of the vehicle and he felt that the amount of estimate regarding repairing of the vehicle given by Vardhaman Commercial is on higher side, therefore, he took the vehicle to Pappu Auto Motors, Dumartarai, Mohbabazaar for repairing.
20. The appellant (complainant) has filed document Annexure 8, which is Claim Status Communication dated 13.11.2014 sent by the respondent No.1 (O.P.No.1) to the appellant (complainant). On the basis of above document, the claim of the appellant (complainant) was declared as No Claim because of Misrepresentation of facts (Driver details are misrepresentation at intimation / claim form and in actual, try to hid the material facts). The appellant (complainant) filed document annexure 13 to 16. Annexure 13 bears date 09.12.2014, annexure 14 bears dated 18.12.2014, Annexure 15 bears date 13.01.2015 and Annexure 16 bears date 17.10.2015. It appears that the above documents were obtained by the appellant (complainant) after declaration of his claim as No Claim by the respondent No.1 (O.P. No.1). The appellant (complainant) has not filed any documents to prove that for how much amount he submitted his claim before the respondent No.1 (O.P. No.1).
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21. Learned District Forum in para 13 to 15 of the impugned order has discussed the matter and came to conclusion that the complainant is only entitled for Rs.21,363/-, Rs.10,000/- towards compensation for mental agony and Rs.2,000/- as cost of litigation. At the time of the accident, the driver Subhash Tiwari was not having valid and effective driving licence, therefore, the District Forum awarded Rs.21.363/- to the appellant (complainant) towards compensation. It appears that at the time of accident, the driver of the vehicle in question Subhash Tiwari, was not having valid and effective driving licence, even then the learned District Forum awarded amount of Rs.21,363/- to the appellant (complainant). The respondent No.1 (O.P. No.1) did not file any appeal against the impugned order, therefore, looking to the facts and circumstances of the case, the appellant (complainant) is not entitled to get enhanced amount from the respondent No.1 (O.P. No.1). The finding given by the District Forum is just and proper. The appellant (complainant) has not been able to prove that he spent Rs.1,01,963/- in repairing of the vehicle, therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appellant (complainant) is not entitled for getting enhanced amount from the respondent No.1 (O.P. No.1).
22. Therefore, the impugned order dated 27.02.2017, passed by learned District Forum, is just and proper and does not suffer from any irregularity or illegality, hence does not call for any interference.
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23. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar)
President Member
01/08/2017 01 /08/2017