National Consumer Disputes Redressal
Oriental Insurance Co. Ltd. vs Amarjeet Singh Kawatra & Ors. on 13 December, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 130 OF 2010
(Against the order
dated 10.03.2010 in Complaint Case No.
12 of 2008 of the
Himachal
Pradesh State Consumer Disputes Redressal Commission, Shimla )
Oriental Insurance
Co. Ltd.
Kothi No.
4, Opposite Petrol Pump ......... Appellant
Kaithu,
Shimla 171003 (H.P.)
Versus
1. Amarjeet Singh Kawatra
S/o Shri
Sohan Singh
58, The
Mall, Shimla 171001 (H.P.)
2. M/s Snow View Automobiles Pvt. Ltd.
Through its General Manager
Opposite
govt. Printing Press
Main
Highway, Ghora Chowky
Shimla-
171005 .......... Respondents
3. M/s Mahindra & Mahindra Ltd.
SCO 17,
Sector 26-D,
Madhya
Marg,
Chandigarh
BEFORE:
HONBLE MR. JUSTICE R. C. JAIN,
PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA, MEMBER
For the
Appellant :
Mr. Mohan Babu Agarwal, Advocate
For the
Respondent No. 1 : Mr. Anil Nag,
Advocate
For the
Respondent No. 2 : NEMO
For the
Respondent No. 3 : Mr. Shekhar
Gupta, Advocate
Dated: 13th December, 2010
ORDER
PER JUSTICE R.C.JAIN, PRESIDING MEMBER Aggrieved by the order dated 10.03.2010 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, the State Commission) in complaint case No. 12 of 2008, the opposite party-Oriental Insurance Company Limited has filed the present appeal.
By the impugned order, the State Commission has allowed the complaint holding that opposite party No. 1-insurance company was liable to indemnify the complainant to the extent of Rs.4,71,000/- (the sum assured) alongwith interest from 1.9.2009 (without specifying the rate of interest) with the stipulation that the salvage of the car shall be delivered to the insurance company. Besides, the State Commission also awarded compensation of Rs. 1 lakh in not settling the claim within reasonable time after the vehicle was destroyed in fire and Rs.50,000/- as punitive damages and Rs.5,000/- as cost of proceedings.
2. This case presents a set of somewhat piquant facts and circumstances which we would like to notice in some detail. Mr. Amarjeet Singh Kawatra, complainant had purchased a Logan Car K7MPS GLS 5 SM AIR Bag Car (Sedan), manufactured by opposite party No. 3-M/s Mahindra & Mahindra Ltd. through opposite party No. 2-M/s Snow View Automobiles Private Limited at a price of Rs.4,94,501/- on 29.02.2008 and got it insured with the opposite party No. 1-M/s Oriental Insurance Company Limited in the sum of Rs.4,71,000/- by paying the requisite premium.
The car, was inter alia, insured for the peril of fire, subject to certain conditions. As luck would have it, only after four days of purchase of the car, on 3.3.2008 when Mr. Kawatra-complainant was driving the car from his new Shimla office to his residence and when he reached near Ayurvedic Hospital, Chhota Shimla, he noticed in the rear view mirror, that smoke was coming out of the car. On inspection, he found that the car had caught fire which was got extinguished with the help of fire brigade. A report was also lodged with the police and afterwards the complainant lodged the claim with opposite party No. 1-insurance company for indemnification of the loss suffered by him.
3. Finding no favourable response, he filed the complaint claiming a sum of Rs.4,71,000/- as the amount of insurance claim, a sum of Rs. 12 lakh on account of mental and physical harassment, Rs. 5 lakh for loss of business besides a sum of Rs. 12,000/- towards the litigation cost.
The complaint was resisted by the insurance company as well as on behalf of opposite party-3-M/s Maindra & Mahindra Ltd. In its written version filed in response to the complaint, the insurance company objected to the very maintainability of the complaint interalia raising objection that the complaint did not disclose any cause of action and it was premature because, on the date of filing the complaint, the claim had not been repudiated by the insurance company. However, the main plank of defence of opposite party No. 1 was that the fire and resultant damage to the car had occurred due to manufacturing defect in the vehicle in question, the car having caught fire within four days of its purchase by the complainant, and therefore, the insurance company was not liable to indemnify the complainant for the loss occasioned to him. The manufacturer and dealer resisted the complaint on the ground that there was no manufacturing defect in the car and, therefore, they were not liable either to refund the price of the car or to replace the car. It would appear that after the above defence versions were filed, the State Commission, without further trial of the complaint, made the following order on 25.5.2009:-
25.5.2009 Present: Mr. Atul Jhingan, Advocate for the complainant.
Mr. Deepak Bhasin, Advocate for the OP No. 1 Mr. Prince Chauhan, Advocate Vice counsel for OP No. 2.
Mr. Rahul Mahajan, Advocate for OP No. 3.
Admitted facts giving rise to this complaint are, that the complainant purchased a brand new Mahindra Logan Car from OP No. 2 who is the authorized dealer of its manufacturer i.e. of OP No. 3. At the time of hearing it was not disputed between complainant one one side and OP No. 1 on the other, that the former had obtained insurance cover in the sum of Rs.4,71,000/- from it for this car.
Annexure R.1 is the policy of insurance. Again it was not disputed that in ordinary circumstances loss due to fire is covered as per this insurance policy. However case of OP No. 1 is, that the fire had taken place due to manufacturing defect in the vehicle, as such it is not liable to indemnify the complainant. Whereas this stand was seriously contested and resisted besides being disputed by the manufacturer-OP No. 3 as well as the dealer who had admittedly sold the vehicle in question to the complainant.
From the narration of the above facts, what emerges is that the dispute prima facie is not between complainant on one side and the OP on the other. In the face of the stand of the Ops, dispute is between OP No. 1 on one side and the OP Nos. 2 and 3 on the other.
In these circumstances and as purely interim measure we direct OP No. 1 to immediately deposit Rs.4,71,000/- the amount for which the vehicle was admittedly insured with it and on such deposit being made we further direct that this amount will be released by the office to the complainant by remitting it to his bank account No. 3157, that is having with bank of India, Shimla.
This interim arrangement has been ordered looking to the nature of complaint as well as dispute which to our mind is between OP No. 1 on one side and OP Nos. 2 & 3 on the other. It is clarified that in case after conclusion of the trial the contention of OP No. 1 is upheld, in such a situation OPs No. 2 and 3 either jointly or severally will be directed to refund the amount to OP No. 1 on such terms as we may deem just and proper while disposing of the complaint as per law.
So far grievance of the complainant regarding compensation etc. and or liability inter-se between the OPs is concerned, we have left this question open and the direction regarding deposit as well as its release in favour of the complainant will not in any manner prejudice the case of any of the parties to this complaint. As this order is passed without expressing any opinion on the question as which of the OPs is liable to indemnify the complainant.
4. The said order was complied with by the opposite party No. 1 insurance company and the amount so deposited by it was transferred to the account of the complainant. At the trial, the parties adduced their evidence in support of their respective pleas which comprised the evidence of Er. Mohinder K. Sharma, Surveyor and Loss Assessor, Mr. Girish Sharma, Mr. P. C. Sharma, retired Mechanical Transport Officer, Mr. Kamal Narayan, Investigator as also Shri Prashant Jadav and Mr. Balbir Singh, officer of the insurance company. The witnesses were also cross-examined. On consideration of the evidence and the material on record, and in particular, going by the reports of the Surveyor/investigator, which the State Commission chose to discard by giving its own reasoning and it allowed the complaint in the above manner.
5. We have heard Mr. Mohan Babu Agarwal, learned counsel for the appellant-insurance company and Mr. A. K. Nag, learned counsel for respondent-complainant and Mr. Sekhar Gupta, Advocate on behalf of respondents No. 3 and have given our thoughtful consideration to their respective submissions.
6. Learned counsel for the appellant - insurance company would assail the impugned order primarily on the ground that the findings and order of the State Commission are not based on correct and proper appreciation of the evidence and material brought on record. In this regard, he has taken us through the depositions of the above referred witnesses and the report given by them. In particular, he submits that in the face of categorical opinion given by these witnesses and the attending circumstance that the insured car in question caught fire within four days of its delivery, there being no other cause of fire, the State Commission ought to have persuaded itself to rely upon the said report and held that the car in question caught fire due to manufacturing defect or on account of some mechanical or electrical breakdown/failure for which the Insurance Company could not be held liable. He contends that the State Commission discarded the reports of the above-named Surveyors/Investigators on wholly untenable premises and based its findings on surmises and conjectures. On the other hand, learned counsel for the respondent-complainant and the dealer and manufacturer of the car have fully supported the finding and order of the State Commission.
7. Having considered the entirety of the facts and circumstances of the case and the gamut of controversy as noticed by the State Commission in the opening part of the impugned order, we are of the view that the complaint has not received the kind of consideration it deserved at the hands of the State Commission. The methodology of deciding the complaint in piecemeal by making the order dated 25.5.2009 at the threshold without full trial of the complaint would show that the State Commission had proceeded to answer the complaint with a certain amount of pre-conviction and prejudged the issue which course is not permissible in law before a quasi-judicial forum like the State Commission. That apart, we are also constrained to note that the State Commission, as per its own observation, had entertained the complaint which it had no pecuniary jurisdiction to try, as the value of the claim / relief had been inflated in order to create jurisdiction of the State Commission.
8. The factum that the car in question was insured against certain risks and it got damaged due to automatic fire within four days of its delivery being not in dispute, the crucial question which was required to be answered before fixing the liability on one party or the other, was whether the car in question caught fire on account of any manufacturing defect or for some other cause and, if so, what that cause was. To decide such a question, opinion of some independent expert having skill and expertise to give opinion in such matters ought to have been obtained than deciding the question by discarding the opinion of the Surveyors/investigator and going by the testimony of an Executive Manager of opposite party No. 3 alone. There exist many automobile experts in the country and to name a few are All India Automotive Research Institute, Pune, etc., whose services can be utilized for the purpose. We are of the view that for fair and effective adjudication of this complaint, the State Commission should obtain opinion of such an independent expert, maybe at the cost of the opposite parties to begin with.
9. For the above stated reasons, we allow the present appeal and set aside the impugned order and remand the complaint to be answered afresh in accordance with the above terms. Mr. Mohan Babu Aggarwal, learned counsel for the appellant states that during the pendency of the complaint itself, the insurance company had paid a sum of Rs. 4,68,000/- and respondent No. 1-complainant may be asked to refund the said amount. While, we are not inclined to pass such an order at this stage, we observe that the amount paid to respondent No. 1-complainant shall abide by the final outcome of the complaint. The parties are directed to appear before the State Commission on 6.1.2011 for receiving further directions in the matter. No order as to costs in these proceedings.
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( R. C. JAIN, J. ) PRESIDING MEMBER .....
(ANUPAM DASGUPTA) MEMBER Naresh/7