State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd. vs R.Balarami Reddy & Co. And Others on 8 September, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 159 / 2013
The Oriental Insurance Co. Ltd.
Through its Divisional Manager
Divisional Office: Ist Floor, 4-B, Sachdeva Colony
Haridwar Road, Dehradun
......Appellant / Opposite Party No. 2
Versus
1. R. Balarmi Reddy & Co.
Gorsali, Chauras, P.O. Kilkileshawar
Via Kirti Nagar, District Tehri Garhwal
......Respondent No. 1 / Complainant
2. M/s Dehradun Premium Motors Pvt. Ltd.
Haridwar Road Byepass, Ajabpur Kalan, Dehradun
......Respondent No. 2 / Opposite Party No. 1
3. Sh. R.K. Mankad
Surveyor & Loss Assessors
67/8, Tyagi Road, Dehradun
......Respondent No. 3 / Opposite Party No. 3
Sh. Suresh Gautam, Learned Counsel for the Appellant
Sh. H.L. Khanna, Authorized Representative of Respondent No. 1
Sh. Manish Gupta, Learned Counsel for Respondent No. 2
None for Respondent No. 3
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Dated: 08/09/2016
ORDER
(Per: Mr. D.K. Tyagi, Member):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986, against the judgment and order dated 23.04.2013 passed by the District Forum, Dehradun in consumer complaint No. 116 of 2008. By the order impugned, the District Forum has allowed the consumer complaint against the opposite party No. 2 and dismissed the same against the opposite party Nos. 1 and 3. The District Forum has directed the opposite 2 party No. 2-appellant-Insurance Company to repair the said vehicle from any of its workshop and to hand over the same to the complainant within one month from the date of this order, otherwise the opposite party No. 2- appellant shall pay IDV of the said vehicle Rs. 3,83,400/- to the complainant within the stipulated time alongwith interest @ 9% per annum from the date of filing the consumer complaint till the date of payment. Besides the above, the opposite party No. 2 is also directed to pay Rs. 1,00,000/- towards mental agony and Rs. 10,000/- for litigation expenses to the complainant.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant had purchased one Maxx Pick Up Van registration No. UA07-S-3277 from the opposite party No. 1, as per Invoice No. SM/0103/07-08 dated 27.04.2007. Further the opposite party No. 1 is also insurance agent of opposite party No. 2-Oriental Insurance Co. Ltd., who insured the showroom vehicle by issuing cover note No. 715008 dated 27.04.2007 after collecting a premium of Rs. 13,959/-. Opposite party No. 1 gets commission on this premium. The opposite party No. 2 is the insurer who through opposite party No. 1 has underwritten the insurance by issue of above-said cover note through opposite party No. 1. The opposite party No. 3 is the Surveyor and Loss Assessor appointed by the opposite party No. 2 to assess the loss of the accidented vehicle and submit reports to the insurer and insured, i.e. complainant. All the three opposite parties carry on their business at Dehradun and contract of insurance has also been made at Dehradun. The complainant purchased the said vehicle from opposite party No. 1 for a sum of Rs. 4,21,000/-, which was paid as per receipt No. 15996 dated 27.04.2007 issued by the opposite party No. 1. The opposite party No. 1 was also the agent of opposite party No. 2 who offered to insure the vehicle through opposite party No. 1. The opposite party No. 1 also represented that they had the authority to collect premium on behalf of opposite party No. 2 and could issue cover note straightaway under its own signatures as 3 Authorised Insurer. Inspite of written request opposite party No. 2 has not sent the policy document. However, the validity of insurance for the said period and comprehensiveness of insurance is not in dispute. On 07.02.2008 the insured vehicle met with a serious accident near Pant Village on Dev Prayag Rishikesh Road resulted in constructive total loss. FIR was lodged with Police Station Dev Prayag on 07.02.2008. On 18.02.2008 written claim was lodged by letter dated 18.02.2008, which was received by Branch Manager himself, who appointed two Surveyors to investigate and assess the loss. Surveyors surveyed the loss on 19.02.2008. They must have sent their reports to the opposite party No. 2, but copies of these reports have not yet been received by complainant inspite of demand and statutory obligation on the part of the Surveyors. On 23.02.2008, Civil Court released the accidented vehicle which was in police custody. After getting the accidented vehicle removed to Dehradun, it was got inspected by opposite party No. 1 on 12.03.2008, who issued estimate of Rs. 5,12,490/- for the repair of the vehicle. This having exceeded the cost of a new vehicle the loss became manifestly total. A total loss claim with complete papers was submitted to opposite party No. 2 and was received by the Branch Manager personally. A local representative Sh. H.L. Khanna was appointed and opposite parties informed for the prompt compliance of any requirement of the insurer. On 19/20 March, 2008, Sh. R.K. Mankad-opposite party No. 3 was appointed by opposite party No. 2 to assess the loss and this job was done on the same day. On 20 March, 2008, the opposite party No. 3, the third Surveyor instead of contacting complainant's local representative wrote a letter to the complainant to shift the accidented vehicle to DDPM at Mathurawala Kalan, Dehradun. Further opposite party No. 3 was trying to harass the complainant by making it a case of repair settlement sheerly for the purpose of making illegal gain. The complainant on receipt of this letter dated 29.03.2008 sent the letter of Sh. R.K. Mankad and Sh. H.L. Khanna and informed parties about it. On 02.04.2008, Sh. H.L. Khanna met with opposite party No. 2-Branch Manager himself and asked for written 4 instructions from him as the contract of insurance was between the opposite party No. 2 and complainant and not between the complainant and opposite party No. 3. Branch Manager did not issue the letter and Sh. H.L. Khanna met the Divisional Manager and asked for written instructions which was promised to be given on 03.04.2008. On 03.04.2008, a letter was issued by the Divisional Manager for shifting the vehicle to DDPM for inspection by Sh. R.K. Mankad. This letter was also confusing so that it had created an element of repair, which was absolutely impossible. However, the instructions were complied with the same day. The vehicle was shifted to DDPM and receipt obtained. On 04.04.2008, a letter was addressed to Divisional Manager giving full details and copies were endorsed to opposite party No. 3. There is no response from any of the three opposite parties, which clearly proves collusion. Opposite party No. 1 has signed the cover note, though it is not known as to how it has become the authorised insurer on behalf of opposite party No. 2.
3. The opposite party No. 1-Dehradun Premium Motors Pvt. Ltd. has filed written statement before the District Forum and has pleaded that it is admitted that the vehicle in question was sold by the answering opposite party to the complainant and this vehicle was insured with the opposite party No. 2. It is admitted that the answering opposite party carries on its business at Dehradun. It is also admitted that the vehicle in question met with an accident. It is admitted that the vehicle in question in accidental state was inspected by the answering opposite party and an estimate for repairs was prepared on the request of the complainant. The vehicle in question in accidental state was brought to the workshop of the answering opposite party. Under what circumstances, the vehicle was brought to the workshop of the answering opposite party is not in the knowledge of the answering opposite party. In additional pleas, the answering opposite party has pleaded that the complainant approached the answering opposite party for purchase of the vehicle in question for commercial use and accordingly the vehicle in question was sold by the answering opposite party to the 5 complainant. The answering opposite party is the authorised dealer of the manufacturer of the vehicle in question. The answering opposite party is not the insurance agent of the opposite party No. 2. The answering opposite party has got nothing to do with the insurance of the vehicle in question. Various companies' dealing in insurance of vehicles deputes their authorised agents to visit the dealers of the motor vehicle for obtaining business at the time of sale of the vehicles. Accordingly, the insurance agent of the opposite party No. 2 insured the vehicle in question. The answering opposite party had no role whatsoever in the insurance of the vehicle. The contract of insurance was entered into between the complainant and opposite party N. 2. Whatsoever premium was paid by the complainant, the same was paid to the opposite party No. 2. It is wrong to allege that the answering opposite party gets any commission on any alleged premium. It would not be out of place to mention that at time off rush; the form of insurance cover note is filled by the dealing clerk of the answering opposite party on the request of the insurance agent. If any cover note has been filled in by any of the employee of the answering opposite party, the same does not create any privity of contract between the complainant and the answering opposite party. A perusal of the cover note filed by the complainant would reveal that the same has been issued under the seal of opposite party No. 2. In any case the validity of the cover note is for a limited period. The contract of insurance is governed by the policy issued by the insurance company. It is wrong to allege that the answering opposite party had any occasion or reason to underwrite the value of the insurance amount. As per insurance laws, the first insurance is made after accounting for depreciation of 5%. Accordingly, as is evident from the cover note, the IDV is 5% less of the sale value. However, mentioning of the insurance amount is a matter between the insured and the insurer. The complainant is not the consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, as the vehicle in question had been purchased for commercial use and had been plied for commercial use. The District Forum has no jurisdiction to entertain and try the complaint under 6 Section 11 of the Consumer Protection Act, 1986. It is wrong to allege that the answering opposite party represented that it is the agent of the opposite party No. 2. It is wrong to allege that the answering opposite party offered to insure the vehicle in question. It is also wrong to allege that the answering opposite party ever represented that it had authority to collect premium on behalf of the opposite party No. 2 and it could issue cover note straightaway under its own signatures as authorized insurer or otherwise. It is wrong to say that the cover note had been issued by the answering opposite party. However, in view of the own admission of the complainant regarding there being no dispute with regard to insurance, its validity or its period, the entire allegations leveled against the answering opposite party regarding it being insurance agent, it having issued cover note, it having insured the vehicle etc. are redundant and irrelevant to the present controversy. Whatsoever amount of premium has been paid by the complainant towards insurance, the same has been received by the opposite party No. 2 and it is the opposite party No. 2 who has to settle the alleged claim of the complainant. It is the opposite party No. 2 who is liable and answerable to the grievance of the complainant. The estimate of repairs has got nothing to do with the price of the vehicle as the estimate of repairs includes labour charges and use of inputs on retail sale basis. There is no nexus between the cost of the vehicle and estimate of repairs. The answering opposite party has no role to play in the settlement of claim by the opposite party No. 2. There was no collusion or disobedience of Rules/Law. There exists no privity of contract between the complainant and the answering opposite party. There is no relationship between the answering opposite party and the opposite party No. 2. The answering opposite party does not solicit any business for any insurance company. The premium has been paid to the opposite party No. 2 who has given insurance cover. No commission is paid or received by the answering opposite party. The calculation of IDV is a matter between the complainant and the opposite party No. 2. The answering opposite party has no role to play in the same. It is wrong to allege that the answering 7 opposite party had ever agreed to repair the vehicle at a cost less than the amount mentioned in the estimate. It is wrong to allege that the answering opposite party is liable to pay alleged sum of Rs. 16,550/- towards any alleged willful under insurance or for not giving any alleged correct information. Sh. H.L. Khanna is not and cannot be the attorney of the complainant. Sh. H.L. Khanna practices as agent on professional basis. He has got no right to represent the claimant.
4. The opposite party No. 2-The Oriental Insurance Co. Ltd. has filed written statement before the District Forum and has pleaded that it is true that the vehicle of the complainant was insured with the answering opposite party vide cover note No. 715008 dated 27.04.2008. It is admitted that the vehicle of the complainant was insured with the answering opposite party for a sum of Rs. 4,21,000/-. It is admitted that the vehicle in question met with an accident. It is wrong to say that the vehicle suffered constructive total loss. It is admitted that an intimation with regard to the accident of the vehicle, was received by the answering opposite party and the Surveyor was appointed, but as the surveyor has not inspected the vehicle in question, therefore, he has not submitted any report to the answering opposite party. It is wrong to say that the total repair estimate of the vehicle was to the tune of Rs. 5,12,490/- and it is also wrong to say that vehicle of the complainant is a case of total loss. It is admitted that Sh. R.K. Mankad was appointed as Surveyor, but he could not inspect the vehicle and as such he could not submit his report to the answering opposite party. It is wrong to say that the opposite party No. 3 was the third Surveyor. It is wrong to say that the complainant on receipt of the letter dated 29.03.2008 sent the reply to Sh. R.K. Mankad, Surveyor. It is true that the representative of the complainant visited the office of the answering opposite party and he was informed about the entire situation of the case. A letter was issued by the answering opposite party for shifting of the vehicle to the authorised dealer. It is also true that a letter dated 04.04.2008 was received by the answering opposite party. It is wrong to 8 say that there was any delay in processing the claim, even ignoring the statutory obligation by the answering opposite party. It is wrong to say that there was any deficiency in services of the answering opposite party. It is denied that the copy of the policy was not supplied to the complainant. In additional pleas the answering opposite party has stated that the District Forum has no jurisdiction to hear and decide the case. On 18.02.2008, after receipt of intimation from the complainant, the answering opposite party appointed Sh. Rajeev Kumar Gupta for spot survey, who submitted his report on 03.03.2008. The accident took place on 07.02.2008 and the complainant was liable to inform the answering opposite party about the occurrence of the accident immediately. The answering opposite party appointed Sh. R.K. Mankad, Surveyor and Loss Assessor for assessment of loss. The complainant did not corporate with the Surveyor Sh. R.K. Mankad. Consequently on 20.03.2008, Sh. R.K. Mankad issued a letter to the complainant and advised the complainant to place the subject vehicle to the workshop of M/s D.D.P.M. at Mathurawala, Dehradun, so that he can carry out necessary inspection of the vehicle. The vehicle was not brought to the said workshop till 03.04.2008 and on 03.04.2008, the answering opposite party also issued a letter to the complainant that he should shift his vehicle to the workshop of the authorised repairer, i.e. M/s D.D.P.M., so that Sh. R.K. Mankad may assess the loss after stripping of the vehicle. The complainant brought his vehicle to the workshop of authorised dealer on 04.04.2008 and the same is lying there, but the vehicle was not dismantled by the repairer and as such the loss could not be assessed by the Surveyor. On account of non-cooperation of the complainant, the claim of the complainant could not be assessed and settled.
5. The opposite party No. 3-Sh. R.K. Mankad, Surveyor & Loss Assessor has filed written statement and has pleaded that the insurance company has appointed him for assessment and loss suffered by the complainant. The complainant did not co-operate with the answering opposite party and consequently on 20.03.2008, the answering opposite 9 party has issued a letter to the complainant and advised the complainant to place the subject vehicle to the workshop of the opposite party No. 1, so that the necessary inspection of the vehicle can be done. The vehicle was brought to the workshop of the authorized dealer on 04.04.2008 and the same is lying there, but the vehicle was not dismantled by the repairer and, as such, the loss could not be assessed by the Surveyor. On account of non-cooperation of the complainant, the claim of the complainant could not be assessed and settled.
6. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 23.04.2013 in the above manner. Aggrieved by the said order, the opposite party No. 2- appellant has filed this present appeal.
7. We have heard Sh. Suresh Gautam, learned counsel for the appellant, Sh. H.L. Khanna, Authorised Representative of respondent No. 1 and Sh. Manish Gupta, learned counsel for respondent No. 2. We have also gone through the entire record of the District Forum and have also perused the record. None appeared on behalf of respondent No. 3.
8. Learned counsel for the appellant has submitted before this Commission that the order of the District Forum is against the facts, law and merits of the case. The District Forum has failed to appreciate the evidence on record. The District Forum has wrongly allowed the complaint of the complainant inspite of clear evidence on record that he himself was guilty and responsible for his losses. The District Forum has failed to appreciate that the insured was not interested in repairing his vehicle, inspite of the clear order of the District Forum. The District Forum has passed the judgment against his own order dated 14.12.2009 in which he has directed the insured to dismantle the vehicle and the company was directed to assess the claim through Surveyor and after assessing the claim by the Surveyor, the insured refused to repair his vehicle. There is no deficiency on the part of the appellant. It is the complainant, who 10 himself was not interested for settling his claim. The District Forum has wrongly allowed the complaint of the complainant because without dismantling the vehicle the Surveyor was not able to assess the claim of the complainant and after the direction of the District Forum, the complainant never repaired his vehicle, as such the order passed by the District Forum that the appellant is liable to repair his vehicle and give it in running condition to the complainant, the order itself is totally contradictory and against the law. The District Forum has wrongly awarded Rs. 1.00 lac for mental agony and financial loss, whereas there is no deficiency on the part of the appellant.
9. So far as the commercial purpose of the vehicle is concerned, the District Forum has rightly observed in the light of several citations of Hon'ble Apex Court that even services have been availed by commercial company from other company, then the other company is a service provider and the company, who availed the service is a consumer. In this case also, although the complainant is a business company, had purchased the vehicle for company's daily work and the vehicle was insured with the appellant- insurance company. The complainant company has no business of sale or purchase of the vehicles, therefore complainant company is a consumer of the appellant-insurance company.
10. The District Forum has also observed that under the Consumer Protection Act, 1986, any person can file a complaint and there is no need to engage any advocate or counsel to contest the consumer complaint. Therefore, consumer complaint filed by the complainant through representative, is maintainable.
11. Admittedly, the vehicle in question is standing at the authorised workshop since 04.04.2008. If the vehicle was not dismantled by the workshop engineer, then it is not a fault of the complainant. The complainant obeyed the directions given by the appellant-insurance company and brought the accidented vehicle to the authorised workshop, 11 even then the surveyor and loss assessor Sh. Abdul Baqi Khan, who was appointed by the insurance company in place of Sh. R.K. Mankad, did not inspect and assess the loss on 23.12.2009 (as shown in paper No. 44Ka/9 on the District Forum's record). Again Surveyor Sh. Abdul Baqi Khan visited the work shop of M/s D.D.P.M. Pvt. Ltd., Mathurawala, Dehradun somewhere in the year 2011 and given a report dated 03.06.2011, which is at paper No. 53Ka on the District Forum's record, in which the Surveyor has assessed the loss of vehicle in case of repair of the vehicle is Rs. 1,95,312/-. There is no explanation in the report why the Surveyor Sh. Abdul Baqi Khan inspected the accidented vehicle in the year, 2011, i.e. after a period of 3 to 4 years of the accident, even the appellant- insurance company has not given any explanation about the belated inspection done by Surveyor Sh. Abdul Baqi Khan. The accidented vehicle was brought to the authorised service station on 04.04.2008 and till 03.06.2011, the said vehicle was still lying there. The appellant-insurance company neither inspected, nor assessed the loss through their Surveyors for four years from the date of accident, even after the accidented vehicle was brought by the respondent to the authorised service station. The District Forum has rightly observed that the matter regarding inspection and survey and loss assessment and repair of the accidented vehicle is in between authorised workshop of the manufacturer company and the insurance company. The complainant-insured is nothing to do with the repair of the vehicle. It is the duty of the insurance company to repair the vehicle or to pay the insured amount. The District Forum has also observed that the accidental vehicle of the respondent No. 1-complainant has been lying at the authorised work shop for last 5 to 6 years, i.e. up to the date of judgment and thereby caused deficiency in service, for which respondent suffered mental agony as well as financial loss.
12. Thus, we are of the view that the District Forum has properly considered all the facts and circumstances of the case and has passed a 12 reasoned order, which does not call for any interference and the appeal being devoid of merit is liable to be dismissed.
13. For the reasons aforesaid, the appeal is dismissed. The impugned judgment and order dated 23.04.2012 passed by the District Forum, Dehradun in consumer complaint No. 116 of 2008 is hereby confirmed. No order as to costs.
(D.K. TYAGI) (JUSTICE B.S. VERMA)