State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd., vs Shri Suraj Kashinath Ramteke+1 on 18 July, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/09/773
(Arisen out of Order Dated 30/09/2009 in Case
No.CC/09/411 District Forum,
Nagpur )
The Oriental Insurance Co. Ltd.,
Divisional Office No.1: Through its
Regional Office at "S.K. Towers"
Nelson Square, Chindwada Road, Nagpur.
..........Appellant(s)
Versus
1. Shri Suraj
Kashinath Ramteke,
Ambedkar Nagar, Control Wadi,
Near Janta Roadlines,
Amravati Road, Wadi, Nagpur.
2. Mr. Mahesh
Surajprakash Nangiya,
Proprietor : N.S. Motors,
R.C. 7 : M.I.D.C. Hinghna Road,
Nagpur.
...........Respondent(s)
First Appeal
No. A/09/784
(Arisen out of Order Dated 30/09/2009 in Case
No.CC/09/411 District Forum,
Nagpur )
Shri Suraj Kashinath Ramteke,
Ambedkar Nagar, Control Wadi,
Near Janta Roadlines,
Amravati Road, Wadi, Nagpur. .
..........Appellant(s)
Versus
1. Mr. Mahesh
Surajprakash Nangiya,
Proprietor : N.S. Motors,
R/o. C-7, M.I.D.C., Hinghna Road,
Nagpur-440 016.
2. The Oriental Insurance
Co. Ltd.,
Through Divisional
Manager,
D.O.I, Mount Road, Sadar, Nagpur.
...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A. Shaikh, Judicial PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER
HON'BLE MR.N. ARUMUGAM MEMBER
PRESENT:
Adv. Mr. Godbole in appeal No. 773/09
Adv. Mr. Khadgi in appeal No. 784/09
......for the Appellant
Adv. Mr. Khadgi for the respondent No. 1 in appeal
No. 773/09
Adv. Mr. Kothari for the respondent No.2 in appeal
No. 773/09 & respondent No. 1 in appeal No. 784/09
Adv. Mr. Godbole for the respondent No. 2 in appeal
No. 784/09
......for the Respondent
ORDER
(Delivered on 18/07/2013) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. Both these appeals are being disposed of by this common judgment and order as they are directed against the common order passed by the District Consumer Forum, Nagpur in CC/2009/411, by which the complaint has been partly allowed.
2. The case of the complainant as set forth in the complaint in brief is that he had purchased a truck in the year 2006 by obtaining loan from Indsund Bank, for earning his livelihood. The said truck met with an accident on 06/04/2008 and sustained damage. Report of that accident was given to police who prepared panchanama. Surveyor namely Nirmala Heda inspected the said damaged truck on the spot and submitted the report on 10/04/2008. The complainant took that damage truck to the workshop of the original O.P. No. 1 on 11/04/2008 for repairing. The O.P. No. 1 gave estimate for its repairing on 13/04/2008. The complainant submitted claim proposal to the original O.P. No. 1 to insurance company, along with all necessary documents. However, on 23/04/2008 the said truck caught fire when it was parked in the open place of the workshop of the O.P. No. 1. It was burnt totally in that fire. Report of that incident was also lodged with police, which prepared panchanam. Thereafter, complainant requested both O.P. Nos. 1 & 2 to pay him compensation on account of total loss of the truck. The O.P. No.1 appointed P.G. Bhandari, surveyor to assess the loss. He assessed the loss of Rs.1,37,626/-, caused in the road accident on 06/04/2008 and submitted a report about the same. He did not consider the loss of the truck sustained under fire on 23/04/2008. The O.P. No.1- insurance company handed over the cheque of Rs.1,37,626/- dated 20/01/2009 to the complainant. The complainant sustained total loss of the truck due to fire on account of negligence of O.P. No. 1. He is not paid compensation on account of total loss of the truck. Therefore, he served legal notice dated 27/02/2009 to the O.P. No.1 the workshop proprietor who did not give its reply. The complainant assess the total loss of Rs.4,62,374/- to which he is entitled, after deducting Rs.1,37,626/- paid to him by O.P. No.2. He also assessed his loss of Rs.79,800/- sustained by him due to loss of earning @ Rs.200/ per day. He also claimed Rs. 2,00,000/- towards mental harassment. Thus his total claim is for Rs.7,47,174/- from both the original O.P. Nos.1&2 He also claimed Rs.10,000/- towards cost of proceeding.
3. The O.P. No.1-Mahesh Surajprakash Nangiya the workshop proprietor (respondent No. 2 in appeal No. A/773/09 and respondent No.1 in appeal No. A/784/2009) filed written version and resisted the complaint, mainly on the ground that the fire was spread from forest area and therefore, his workshop caught fire and in that fire the truck of the complainant was burnt and damaged and the complainant was given estimated of Rs.5,34,444/- for repairing of that truck and that as per report of the surveyor, cheque for Rs.1,37,626/- was handed over to the Financer of the complainant and therefore it is not liable to pay compensation.
4. The original O.P. No.2, the Insurance Company (Appellant in appeal No. 773/2009 and respondent No.2 in appeal No. 784/2009) also filed its written version and resisted the complaint mainly on the ground that original O.P. No.1 only is liable to pay compression to the complainant due to loss sustained by him on account of burning of truck under fire and that it has already paid Rs.1,37,626/- to the complainant as per surveyors report, towards loss sustained by him due to damage of his truck in road side accident and that the complainant also signed discharge voucher towards full and final settlement. It therefore submitted that it is not liable to pay any more compensation to the complainant.
5. The District Consumer Forum below after considering the evidence brought on record came to the conclusion that O.P. No. 2-insurance company is liable to pay compensation to the complainant on account of loss sustained by him due to burning of his truck under fire in the workshop of the original O.P. No.1. In order to come to that conclusion it considered the fact that the road side accident took place on 4/06/2008 and the said damaged truck was burnt under fire on 23/04/2008 in the workshop of original O.P. No.1 and therefore the O.P. No.2 insurance company ought to have given compensation to the complainant on total loss basis by keeping salvage with it. It therefore directed the original O.P. No.2 insurance company to settle the claim of the complainant on total loss basis on deducting Rs.1,37,626/- from the compensation and the said amount be deposited with the said Forum with interest at the rate of 9% from 23/06/2009. It also directed the opponent to pay Rs.3000/- to the complainant towards the cost of complaint. The District Consumer Forum below dismissed the said complaint as against the original O.P. No.1, the Proprietor of Workshop.
6. Feeling aggrieved by the said order, the original O.P. No. 2 insurance company preferred appeal No.773/2009, whereas the original complainant preferred appeal No. 784/2009. Adv. of both parties filed written notes of argument in these two appeals. We have also heard them orally also and we have perused the papers placed before us.
7. The parties herein after are referred to by their original status in the complaint. The Learned Advocate of the complainant submitted that the District Consumer Forum below has not considered that the vehicle caught fire in the workshop of original O.P. No.1 due to his negligence and erroneously dismissed the complaint against the original O.P. No.1. He thus argued that as the vehicle was damaged in fire due to negligence of original O.P. No.1, the compensation ought to have been granted to the complainant form original O.P. No.1 also, as claimed by the complainant. He also argued that no compensation was awarded on account of mental harassment and therefore, he submitted that impugned order may be modified by allowing rest of the claim of the complainant.
8. The Learned Advocate of the original O.P. No.1, the workshop owner submitted that the vehicle caught fire in the workshop as the fire was spread from the adjoining forest area and as such there was no negligence on the part of the O.P. No.1 in occurrence of the fire. He further submitted that the District Consumer Forum below rightly held that the original O.P. No.1 is not liable to pay compensation and that only the original O.P. No.2-insurance company is liable to pay compensation on total loss basis. He also argued that the truck was totally damaged in road side accident and the estimate Rs.5,34,444/- was given for its repairing by the original O.P. No.1,which was more than depreciated value of the said truck and hence no loss was caused to the complainant due to burning of his truck in fire. He therefore submitted that both the appeals may be dismissed.
9. The Learned Advocate of the original OP No.2-insurance company submitted that admittedly the original complainant has received a cheque of Rs.1,37,626/- from original O.P.No.2 towards full and final settlement of his claim and he signed discharge voucher without protest in that respect and hence there is no deficiency in service on the part of the original O.P. No.2. He relied upon observations made in one of the case by Hon'ble Supreme Court, which will be considered in latter course of this judgment. He thus submitted that the District Consumer Forum below has not properly considered the legal and factual aspect of the present case and passed erroneous order against the original O.P. No.2 and hence it may be set aside.
10. The Original complainant in complaint admitted very specifically that he received Rs.1,37,626/- from the original O.P. No.2 towards the loss sustained by him due to damage caused to the truck in road side accident. The discharge voucher signed by the original complainant towards full and final settlement in his claim on receiving the aforesaid amount is also produced and it is not denied by the original complainant. The Hon'ble Supreme Court in the case of United India Insurance Company Vs. Ajmer Singh Cotton and General Mills and other, 2000(4) Civil LJ 499, held that the complainant is entitled to file a complaint regarding deficiency in service rendered by the insurance company even after discharge voucher issued by the insurance company is signed by him, but he should show that such voucher was signed under undue influence or misrepresentation or the like. There is no such case of the complainant in present case that he had signed the discharge voucher under undue influence or misrepresentation or the like. On the contrary the complainant has come with specific case that he received Rs.1,37,626/- from the insurance company after his truck was burnt under fire. The complainant did not receive the said amount under protest. Therefore, no deficiency in service rendered by the O.P. No.2 insurance company can be established against it. The District Consumer Forum below has not considered the legal effect of acceptance of Rs.1,37,626/- by the complainant towards full and final settlement of the claim and erroneously held liable the O.P. No.2 - insurance company to pay to the complainant compensation towards total loss basis by deducting said amount of Rs.1,37,626/-.
11. Admittedly the truck of the complainant caught fire when it was kept in the workshop of original O.P. No.1 for its repairing after it had met with road side accident. It is the case of the complainant due to negligence of the O.P. No.1 his truck caught fire. The said allegations were denied by the O.P. No.1. We find that since the complainant accepted Rs.1,37,626/- from O.P. No.2 towards full and final settlement, he ought to have filed separate complaint against the O.P. No.1 claiming compensation on account of his sustaining loss due to negligent act of the O.P. No. 1. Thus, there is misjoinder of cause of actions and misjoinder of parties in the present case. Hence, in the present case the complainant is not entitled to seek compensation from the original O.P. No.1, the proprietor of the workshop. Therefore, we find no reason to interfere with the impugned order by which the complaint has been dismissed as against the original O.P. No.1.
12. We thus find that the appeal No.773/2009 filed by the insurance company deserves to be allowed and the appeal No. 784/2009 filed by the original complainant deserves to be dismissed. The complainant is entitled to salvage since Rs.1,37,626/- are paid to him by insurance company after deducting the price of the said salvage of the truck. Hence, following order is passed.
ORDER 1. The appeal No.773/2009 field by original O.P. No.2- Oriental Insurance Company is allowed.
2. The appeal No.784/2009filed by original Complainant -Suraj Kasinath Ramteke is dismissed.
3. The impugned order dated 30/09/2009 passed in CC/411/2009 by District Consumer Forum Nagpur against the original O.P. No.2- Oriental Insurance Company is set aside.
4. The complaint bearing CC/411/2009 is dismissed.
5. The original complainant is entitled to retain the salvage of the truck.
6. No order as to cost in appeal.
Dated:- 18/07/2013.
[HON'ABLE MR.
B.A. Shaikh, Judicial] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay