State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Thirath Singh Brar on 30 April, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 377 of 2013
Date of institution: 04.04.2013
Date of decision : 30.4.2015
The New India Assurance Company Ltd., Divisional Office, The Mall,
Bathinda, through its Regional Manager (now represented through
authorized signatory of Chandigarh Regional Office, SCO No. 36-37, Sector
17-A, Chandigarh.
.....Appellant/Opposite Party
Versus
Thirath Singh Brar, son of Sh. Bakhshish Singh, R/o VPO Mehma Sarja,
Tehsil and District Bathinda.
.....Respondent/complainant
First Appeal against the order dated 14.02.2013
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Nitin Gupta, Advocate
For the respondent : Sh. L.R. Sharma, Advocate
GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER)
This appeal has been preferred by appellant/Opposite Party (hereinafter referred as 'OP') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 14.02.2013 in C.C. No. 477 of 20.09.2012 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (hereinafter referred as 'complainant') was allowed with the directions to Op to pay Rs. 11,31,826/- to the complainant and also to pay Rs. 50,000/- as First Appeal No.377 of 2013 2 compensation and costs. The compliance was ordered to be made within 45 days, otherwise it will carry interest @ 9% per annum from the date of institution of the complaint i.e. 14.02.2013 till realization.
2. A consumer complaint was filed by the complainant against the OP on the allegations that he had purchased one truck-trolla make Tata, Model, LPS-4018 T.C. in the month of March and got it insured with the OP vide insurance policy No. 36060031110100003149 covering the period from 21.03.2012 to 20.03.2013. The complainant had applied for registration of this vehicle in the office of DTO, Bathinda and he was allotted registration No. PB-03-AA8477 and the said vehicle was inspected by Motor Vehicle Inspector and it was passed on 30.03.2012. He had applied for goods carriage permit to the Regional Transport Authority, Bathinda and deposited the tax and permit fee and other expenses and RTA, Bathinda had issued the permit which was valid upto 11.04.2007. He got appointed Balwinder Singh @ Binder Singh as driver. However, on 10.04.2012, the driver was carrying the crusher in the said vehicle and at about 3 a.m. on 11.04.2015 when the truck-trolla reached near Zeera Town, some animal came from the right side and reached in front of the vehicle. The driver of the vehicle tried to save the animal and turned the steering to the left side and also tried to stop the vehicle by applying the brakes but unfortunately, the vehicle was turned turtle in the Khud after striking with the trees. This happening was reported to him by his driver on his mobile at about 5 a.m on the same day. He rushed to the place of accident and gave the information to New India Assurance Company Limited at Bathinda. The surveyor of the company reached at the spot and prepared the list of losses and damaged parts of the body and engine and also took some photographs. The complainant requested the OP that his vehicle was totally damaged and even its repair it First Appeal No.377 of 2013 3 would not be able to work properly and accordingly, he requested the OPs to pass the claim on the basis of total loss, however, the OP pressurized the complainant to get the vehicle repaired and assured that all the bills will be cleared by the company. Accordingly, he brought the damaged vehicle to the workshops and got repaired it from the five workshops at Bathinda. The engine parts, cabin and chassis were got repaired from Gobind Motors and paid Rs. 7,37,578/- and also paid Rs. 13,300/- to the Proprietor Surjeet Repair works against bill No. 541 dated 07.05.2012. A sum of Rs. 3,55,710/- to M/s JGR Fabricators against bill No. 4 dated 05.05.2012. He also paid Rs. 15038/- to Kohinoor Lubricants against bill No. 3895 dated 07.05.2012, Rs. 10200/- to Mohan Singh body maker against bill No. 487 dated 28.04.2015, in this way, the complainant paid a sum of Rs. 11,31,826/- in total. The complainant visited several times to the office of the ops to clear his bills but they lingered on the matter on one excuse or the other and ultimately refused to pay. The complainant had been paying loan instalments to Mahindra Finance Company Ltd @ Rs. 58,500/- pm, therefore, he could not use the vehicle for a month and suffered a loss to the extent of Rs. 3000/- per day. Non clearance of the claim of the complainant amounts to deficiency in service on the part of the OP. Hence, the complaint with a directions to the OPs to pay his claim of Rs. 11,31,826/- and also pay a compensation of RS. 1 lac on account of non use of the vehicle and Rs. 1 lac on account of mental and physical harassment and Rs. 20,000/- for litigation expenses.
3. The complaint was contested by the OP who filed written reply taking legal objections that the complaint was not maintainable in the present form as the complainant had no locus standi to file this complaint. The complainant did not have any cause of action to file the complaint. The First Appeal No.377 of 2013 4 District Forum did not have any jurisdiction to try and decide the complaint. The complaint filed by the complainant was false, frivolous and vexatious to the knowledge of the complainant, therefore, it was liable to be dismissed under section 26 of the Act with special costs of Rs. 10,000/- and that on the date of accident i.e. 10.04.2012, the complainant did not have any route permit and its route permit was valid from 12.04.2012 to 11.04.2017, accordingly, the claim of the complainant was rightly repudiated. On merits, the averments taken in the legal objections were reiterated where in it was again submitted that the claim of the complainant was rightly repudiated on the ground that he did not have a valid route permit on the date of alleged accident. Ultimately, it was submitted that the complaint was without merit and it be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence photocopy of insurance policy Ex. C-1, photocopy of Certificate of Registration Ex. C-2, photocopy of Fitness Certificate, Ex. C- 3, photocopy of Goods Carriage Permit Ex. C-4, photocopy of bill containing 2 pages Ex. C-5, photocopy of bill dated 07.05.2015 Ex. C-6, photocopy of bill dated 05.05.2012 Ex. C-7, photocopy of bill dated 07.05.2012 Ex. C-8, photocopy of bill dated 28.04.2012 Ex. C-9, photocopy of letter dated 29.08.2012 Ex. C-10, his affidavit Ex. C-11 and closed the evidence. On the other hand OPs tendered into evidence affidavit of Sh. J.R. Sharma, Sr. Divisional Manager Ex. R-1, photocopy of judgment of Hon'ble Supreme Court Ex. R-2, photocopy of route permit Ex. R-3, attested copy of verification report by Mr. Rajan Singla, Investigator Ex. R-4, photocopy of letter dated 26.10.2004 Ex. R-5 and closed the evidence. First Appeal No.377 of 2013 5
5. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum accepted the complaint in terms as stated above.
6. The present appeal has been filed by the OP/appellant.
7. We have heard the arguments of the learned counsel for the parties and have perused the record.
8. It has been argued by the counsel for the appellant that on the date of accident, the vehicle in question was not having the route permit. The accident took place on 10.04.2012 whereas route permit was issued on 12.04.2012, therefore, on the date of occurrence, the vehicle in question was not having the valid route permit and accordingly, the complainant had violated the terms and conditions of the policy. We have gone through the route permit placed on record by the complainant as Ex. C-4 and its expiry date is mentioned as 11.04.2017. The order was signed by Secretary, RTA, Bathinda on 12.04.2012. However, during the hearing of appeal, the counsel for the respondent has placed on the record the verification sought from Secretary, RTA that the permit was issued against the vehicle No. PB03AA8477 was from 11.04.2012. In case, we go through the allegations made in the complaint, the alleged accident took place at 3 a.m. on 11.04.2012 near Zeera as pleaded in Para No. 6 of the complaint. In reply to it, this fact has not been denied. However in verification report Ex. R-4 the date of permit is mentioned as 12.04.2012 and the accident took place on 11.04.2012 one day prior to the accident. However, it is pertinent to mention here that it was a new vehicle. After getting the registration number, it was duly tested by Motor Vehicle Inspector and the route permit is not processed in one day. The application with requisite charges was filed and then the file is processed and it takes sufficient time, therefore, certainly, First Appeal No.377 of 2013 6 it must have been applied before accident and in case, sufficient time was taken in the office of RTA for the issuance of the route permit, then the complainant could not be blamed for that. There is a circular of IRDA dated 20.09.2011 that the claim should not be repudiated on the technical ground in a mechanical fashion. In case, there is a difference of only one day in issuance of the route permit before the happening of accident, that in view of the formalities to be performed to get the permit, it must have been then applied before the accident, therefore, the claim cannot be repudiated on the technical ground and accordingly, we agree with the findings so recorded by the District Forum and same are hereby affirmed on that point.
9. Another point taken by the counsel for the appellant is that in case, the point of route permit is considered in favour of the complainant, then the order of the District Forum is bad as it had not referred to the surveyor report. Certainly, surveyor report has not been referred by the learned District Forum in its order. However, in case, we go through the written reply filed by the OP, there is no reference of any surveyor report under evidence. Before, the District Forum, the OP had tendered into evidence Ex. R-1 to Ex. R-5. Ex. R-1 is the affidavit of Sh. J.R. Sharma, Sr. Divisional Manager, Ex.R-2 is the judgment, Ex. R-3 is the copy of route permit, Ex. R-4 is the verification given by insurance investigator Sh. Rajan Singla, and Ex. R-5 is the letter issued by NIC to repudiate the claim. Therefore, the report of the surveyor was not even filed before the District Forum. Therefore, when no plea has been taken by the OP before the District Forum, such a plea now cannot be raised during the appeal. The copy of the surveyor report has been placed on the appeal file in which the surveyor had assessed the loss Rs. 7,45,000/- against the estimate loss of Rs. 12,69,032/- In the insurance policy Ex. C-1 in the column of IDV is Rs. 25,17,500/-. First Appeal No.377 of 2013 7 Even on the basis of estimated loss, it does not cover under the total loss, therefore, the complainant was required to go for the repairs. According to the complainant, he has stated and submitted the bills for Rs. 11,31,826/- for repairs on the vehicle, therefore, it is not the estimated loss but the actual payment made by the complainant. The surveyor in his report has referred to excess clause as well as salvage. The excess clause is recorded in the policy documents Ex. C-1. With regard to the salvage, it has not been explained by the complainant with whom he had deposited the salvage. In case, he has not deposited the salvage, the insurance company is entitled to deduct the salvage, otherwise, the terms and conditions have not been placed on the record to check the other deductions if any under the terms and conditions. Certainly, the amount of excess clause and salvage is required to be deducted from the amount spent by the complainant which was not considered by the District Forum. The excess clause is Rs. 1500/- and salvage has been assessed to Rs. 36905/- it will comes to Rs. 38405/-. This amount is required to be deducted from the amount of Rs. 11,31,826/-. Accordingly, the order so passed by the District Forum is requires modification.
10. In view of the above discussion, we partly accept the appeal and order of the District Forum is modified to the extent that the respondent/complainant will entitled of Rs. 10,93,421/-. The other terms of the order as passed by the District Forum will remain same.
11. The appellant had deposited amounts 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 respondent/complainant by way of a crossed cheque/demand draft after the First Appeal No.377 of 2013 8 expiry of 45 days, from the date of sending the certified copies of the order to the parties subject to stay, if any, by the higher Fora/Court.
12. Remaining amount shall be paid by the appellant to respondent/complainant within 30 days from the receipt of the copy of the order.
13. The arguments in this appeal were heard on 22.04.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER April 30, 2015.
Rupinder