State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Akhlender Singh Guleria & Ors. on 26 June, 2014
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.93/2014
Date of Presentation: 15.03.2014
Date of Decision: 26.06.2014
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National Insurance Company Limited,
Dharamshala, District Kangra, H.P.,
Through its Administrative Officer,
Divisional Office, Himland Hotel,
Circular Road, Shimla, H.P.
.......... Appellant.
Versus
(1) Akhlender Singh Guleria, son of Shri Rajinder Singh Guleria,
Resident of Village & Post Office Trilokpur,
Tehsil Jawali, District Kangra, H.P.
(2) M/s. Hans Paul Steel, Damtal,
Tehsil Indora, District Kangra, H.P.,
Through its owner/Proprietor.
(3) P.S. Guleria, Administrative Officer,
National Insurance Company Limited,
K.B. Dharamshala, H.P.
.......... Respondents.
....................................................................................
Coram
Hon'ble Mr. Justice (Retd.) Surjit Singh, President
Hon'ble Mrs. Prem Chauhan, Member
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Jagdish Thakur, Advocate.
For Respondent No.1: Mr. Shashi Bhushan, Advocate.
For Respondent No.2: Mr. Navlesh Verma, Advocate.
For Respondent No.3: Ex-parte.
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O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Present appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the 1 Whether Reporters of the local papers may be allowed to see the order? National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ order dated 20th January, 2014, of learned District Consumer Disputes Redressal Forum, Kangra at Dharamshala, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed by respondent No.1-Akhlender Singh Guleria against the present appellant, i.e. National Insurance Company Limited and respondents No.2 & 3, has been allowed and a direction given only to the present appellant, to pay a sum of `9,09,580/-, on account of insurance money, with interest at the rate of 6% per annum, from the date of filing of the complaint, to the date of its payment and also to pay `5,000/-, as compensation and litigation expenses.
2. Admitted facts are that respondent, Akhlender Singh Guleria, purchased chassis of a tipper and left the same with respondent No.2, M/s. Hans Paul Steel, Damtal, for building its body. Respondent No.2 took about one month to complete the job of body building. The job was completed on 30th July, 2007 and the vehicle was kept by the said respondent No.2 with it for the night. Next morning, around 07.00 a.m., vehicle was reported by the Chowkidar to his grandson, Vikramjeet @ Bickky, to have been forcibly taken away by four persons, around 01.00 p.m., towards Pathankot. Page 2 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ Proprietor of respondent No.2 was informed telephonically, by the above said grandson of the Chowkidar, who lodged report with the police on 31.07.2007.
3. The chassis was insured with the present appellant in the sum of `9,09,580/-. So, claim was lodged with the appellant for payment of insurance money. It was repudiated by the appellant on 6 th February, 2009, on the ground that vehicle had been stolen from the premises of respondent No.2, who was a bailee qua the respondent/complainant, Akhlender Singh Guleria, and that the said respondent No.2 was guilty of negligence and carelessness, which resulted in the theft of vehicle.
4. Complaint was filed by respondent, Akhlender Singh Guleria, under Section 12 of the Consumer Protection Act, 1986, before the learned District Forum, which the learned District Forum allowed, vide order dated 06.06.2011. Appeal was filed against that order before this Commission and this Commission, accepting the plea of the appellant that respondent No.2 was a necessary party, being the bailee, allowed the appeal and remanded the complaint to the learned District Forum, with the direction that Page 3 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ respondent No.2, be impleaded as one of the opposite parties and after impleadment of such opposite party, matter be proceeded and adjudicated afresh.
5. Respondent No.2 after its impleadment, as opposite party No.3, filed reply in which it was admitted that chassis of the tipper had been left at its premises by respondent/complainant, Akhlender Singh Guleria, for building its body and that the vehicle had been stolen, on the night intervening 30th/31st July, 2007, as reported by Chowkidar, Rattan Chand.
6. Present appellant in its reply denied its liability alleging that vehicle had been stolen, because of failure on the part of respondent No.2, to secure the vehicle against theft and, therefore, the liability, if any, for the loss of vehicle, was that of respondent No.2. It was stated that respondent No.2's failure to take proper care of the vehicle, amounted to breach of condition of the policy, which required the insured to take due care to prevent theft of the insured vehicle. Appellant also pleaded that there was collusion between the respondent/complainant and respondent No.2, the workshop owner.
7. Learned District Forum, vide impugned order, has held that vehicle being insured with the Page 4 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ present appellant and there being no evidence of alleged collusion between the respondent/complainant and respondent No.2, it (the appellant) is liable to indemnify the respondent No.1/complainant and has consequently passed the impugned order.
8. We have heard learned counsel for the appellant as also the counsel for respondents No.1 & 2 and gone through the record. Nobody put in appearance on behalf of respondent No.3, despite service. Hence, it was proceeded against ex-parte, vide order dated 04.06.2014. Today also, nobody appears for respondent No.3.
9. Vehicle at the time of its theft was with respondent No.2 in the capacity of a bailee. Being bailee, respondent No.2 was under contractual obligation to ensure the safety and security of the vehicle. Gurmukh Singh, who in his affidavit, Annexure CW-2, claims to be the proprietor and the Manager of respondent No.2, testified that body building work was completed on 30th July, 2007, around 06.00 p.m. and thereafter, the vehicle was parked inside the gated premises of respondent No.2. However, when cross- examined by the appellant, he stated that vehicle had been parked outside the four walled gated premises of Page 5 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ the workshop and that the site where it was parked belonged not to respondent No.2, but to the Government. He admitted that total area of the workshop within four walls is 1300-1400 square yards. He offered no explanation for not parking the vehicle inside the gated premises of the workshop. Not only this, he stated in the cross-examination that earlier also 5-6 vehicles had been stolen from that area. Now, when prior to the occurrence, in question, 5-6 thefts of vehicles from that area had taken place, it was all the more obligatory for respondent No.2 to have parked the vehicle inside the gated premises of the workshop, besides taking other requisite steps to ensure that the vehicle was not stolen.
10. Money charged by respondent No.2, or which was agreed to be paid to it for body building impliedly included the charges for ensuring against the loss of vehicle by theft or any other mode, during the period the insured vehicle was in its custody for the purpose, it was delivered to it. Therefore, there was a relationship of service provider and consumer between respondent No.2 and respondent No.1/ complainant, respectively.
Page 6 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________
11. Respondent No.2 failed in its duty to prevent the theft of vehicle by not taking due care as the vehicle was parked outside the gated premises despite the fact that in the past too, 5-6 vehicles from that locality had been stolen and, therefore, it is as much guilty of deficiency in service as any other service provider would be in similar circumstances.
12. Because of our finding that respondent No.2 is guilty of deficiency in service, which would necessarily mean that it is liable to compensate respondent No.1/complainant for the loss of vehicle, however, would not absolve the appellant of its liability to indemnify respondent No.1. Reason is plain and simple. Appellant made an agreement of insurance with respondent No.1, undertaking thereby to indemnify respondent No.1 for the loss of vehicle, inter alia, by theft and respondent No.1 has himself not violated any condition of policy, leave alone the alleged condition of due care to protect the insured vehicle against theft. Appellant being the insurer and, therefore, under contractual obligation to indemnify the insured, would step into the shoes of respondent No.1, the insured, after indemnifying respondent No.1/complainant (the Page 7 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ insured), which would entitle it to recover the sum paid by it to respondent No.1 from respondent No.2.
13. There is no evidence worth the name in support of the appellant's plea that there was collusion between respondent No.1, the insured and respondent No.2, the fabricator of body of the insured vehicle.
14. As a result of the above discussion, appeal is partly allowed to the extent that in addition to the liability of the appellant to pay insurance money and litigation expenses, as ordered by the learned District Forum, respondent No.2 is also liable to pay compensation equivalent to the insurance money, i.e. `9,09,580/-, with interest at the rate of 6% per annum, from the date of filing of the complaint, to the date of its payment, together with an additional amount of `5,000/-, on account of compensation for harassment and litigation expenses to respondent No.1 and its liability to pay the aforesaid compensation of `9,09,580/- with interest and compensation is joint and several with the liability of the appellant to pay a sum of `9,09,580/-, on account of insurance money and `5,000/-, on account of compensation and litigation expenses and the appellant on getting stepped into the shoes of respondent No.1, as aforesaid, will have the Page 8 of 9 National Insurance Co. Ltd. Vs. Akhlender Singh Guleria & Ors.
(F.A. No.93/2014) _______________________________________________________________ right to recover the money, which it may pay to respondent No.1, pursuant to the order of the learned District Forum from respondent No.2.
15. It is stated by the learned counsel for the appellant that a sum of `12.00 lacs & odds, already stands deposited with this Commission by the appellant. If this is so, respondent No.1 may make an application for withdrawal of money due to him, in terms of the impugned order of the learned District Forum, which has been upheld hereby and the appellant can recover an equal amount of money from respondent No.2, by enforcing this order.
16. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member June 26, 2014.
*dinesh* Page 9 of 9