State Consumer Disputes Redressal Commission
Sh. Raju vs Goel Motors Pvt. Ltd. on 30 December, 2010
H
H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.
F.A. No. 61 of 2010 Decided
on 30.12.2010.
Sh. Raju,
S/o Sh. Sadhak Ram
R/o Near
Labour Hostel, Krishna Nagar,
Shimla (H.P).
....Appellant.
Versus
Goel Motors Pvt. Limited,
Through
its Manager,
Show
Room-cum-Service Station,
At Deo Ghat, Solan
(H.P)
..Respondent.
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Honble
Mrs. Saroj Sharma, Presiding Member.
Honble Mr. Chander
Shekher Sharma, Member.
Whether
approved for reporting ?
For the Appellant. Mr.Vivek Negi, Advocate.
For the Respondent. Mr. Ratish Sharma,
Advocate
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ORDER
Per Mrs . Saroj Sharma, Presiding Member.
1. The present appeal is the outcome of the order passed by District Consumer Forum, Solan, in Consumer Complaint No. 60/2008, titled as Raju V/s Goel Motors vide which the complaint was dismissed. Feeling aggrieved by the order of the District Forum below, the appellant came before us with the present appeal.
2. Facts as they emerge from the complaint are that the appellant purchased one Maruti Alto bearing registration No. HP-03B-0937, which met with an accident on 2.1.2008, near Dharampur, District Solan and the same was handed over to the respondent on 10.01.2008. As per the appellant respondent assured that vehicle shall be given back to the appellant after repair within 30 days. But inspite of various request and visits to the respondent shop, vehicle was not handed over to the appellant. For this reason the appellant came before this Commission with the prayer to direct the respondent to hand over the vehicle to the appellant within 7 days and also that he be directed to pay compensation to the appellant to the tune of Rs. 1,35,000/- alongwith litigation cost of Rs. 11,000/- as the appellant suffered loss of Rs. 1,500/- per day due to deficiency in service on the part of the respondent.
3. We have heard learned counsel for the parties as well as have gone through the record of the case. The stand of Mr. Vivek Negi, learned counsel for the appellant is that his client has suffered huge loss due to late delivery of vehicle. He further submitted that his client suffered loss of Rs. 1500/- per day due to non-delivery of the vehicle in time and as such the vehicle could not be plied by his client on road for about 3 months. So as per Mr. Negi, his client is entitled to the compensation as claimed in the prayer clause of the complaint. Another submission of Mr. Negi is that the spare parts of the vehicle like Maruti Alto are easily available everywhere and the respondent is not justified in giving late delivery of his car after repair and also that the car was given back to him only after he filed complaint before the Forum below.
4. However the stand of Mr. Negi has been controverted by Mr. Ratish Sharma, learned counsel appearing for the respondent. He though admitted that the vehicle met with an accident as mentioned in the complaint but denied that the same was handed over to the respondent on 10.1.2008. As per him the car was handed over to the respondent on 11.1.2008. But his version is that the car was never agreed to be given back on 31.1.2008, though this was a tentative date given by the respondent. Mr. Ratish Sharma referred to the undertaking given by the appellant which is duly signed by the appellant which reads as under :-
On dated 11.01.2008, I have handed over my vehicle bearing No.HP-03B-0937 for repair to M/s Goyal Motors Pvt. Ltd., Taradevi, Shimla.
I have been given the estimated date for delivery/repair on 31.1.2008.
I understand that the above date given for delivery is tentative estimated date. Delay, if any due to reasons of non-availability of Spare Parts, Labour Problem, Insurance delay or any due to reasons whatsoever, the delivery date will automatically be changed/extended.
I understand that in case of late delivery of vehicle due to any reasons whatsoever, I will not make any claim against or hold responsible M/s Goyal Motors Pvt. Ltd. Taradevi, Shimla.
I understand that, in case the insurance company doesnt pay the claim, the reasons as per insurance companys policy, conditions or pays less claim, then I undertake to pay the entire bill amount, at the time of delivery of vehicle.
I also undertake that the depreciation amount or uncovered parts/repair charges are also solely to be born by me at the time of delivery.
I was also explained that in case of total vehicle loss or removal of accidental vehicle un-repaired, I have to pay Rs. 200/- per day after 7 days of receipt of the vehicle at workshop of Goyal Motors & Rs. 3500/- as estimate charges. I undertake to agree this condition along with all above conditions.
I have read over and understood all above conditions carefully OR I have been made to understand the above conditions in the language I understand and thereafter put my signature in this undertaking.
5. Mr. Sharma further submitted that the report of surveyor was given to the respondent only on 5.4.2008 by the surveyor and the vehicle was handed over to the appellant on 7.4.2008 as the major portion of the repair charges was to be paid by National Insurance Company Ltd.
As per Mr. Sharma, the complainant could not get his vehicle surveyed in time and within 3 days after the survey report was received by the respondent, the vehicle was handed over to the appellant.
6. After hearing the counsel for both the parties as well as going through the record of the case, it has been established that the vehicle was handed over to the respondent after repair on 7.4.2008 whereas the same was given for repairs on 11.1.2008. The main reason for delivery after about 3 months is that the survey surveyor submitted his report on 5.4.2008 and immediately after that, the vehicle was delivered to the appellant reason being that the major portion of the repair charges was to be paid by the National Insurance Company and the vehicle was handed over to the appellant after adjusting the money which was paid by the Insurance Company. There is no rebuttal filed by the appellant to this specific stand taken by the respondent while filing reply to the complaint. It is a matter of record that the survey report by Mr. Vinod Bhardwaj, Mechanical Engineer was prepared on 5.4.2008 and after 2 days only the vehicle was given back to the appellant after getting specific certificate which is on page 64 of the file of the Forum below. The undertaking given by the appellant which is another document on page-31 of the case file of Forum below clearly mentioned that the same has been singed by the appellant after understanding the contents of the same. In view of this undertaking we do not find any reason to allow the complaint.
31.1.2008 was only a tentative date of delivery and not the actual date and as soon as the survey report was received by the respondent, the vehicle was handed over within 2 days time to the appellant.
7. So far as the first portion of the relief claimed by the appellant regarding direction to the respondent to hand over the delivery of possession is concerned, the same cannot be allowed being infructuous as the vehicle stands already delivered to the appellant which is a matter of record. So far as the compensation part is concerned, there is not an iota of evidence to suggest that the appellant has suffered a loss of Rs. 1500/- daily as mentioned in the complaint. There is also no evidence to suggest that the vehicle was withheld without any reasonable excluse and the stand taken by the respondent in its reply remain un-rebutted.
8. No other point was urged.
9. In view of the above discussion we do not find any reason to interfere with the orders passed by the Forum below as there is no deficiency of service on the part of the respondent.
10. Therefore, we are of the considered view that there is no merit in the present appeal and the same is hereby dismissed and the impugned order passed by the Forum below is upheld leaving the parties to bear their own costs.
11. All interim orders passed from time to time shall stand vacated forthwith.
12. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Saroj Sharma) Presiding Member (Chander Shekher Sharma) Member Suneera 30.12.2010.
H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9.
F.A. No. 162 of 2009 Decided on 27.4.2010.
1. Zonal Manager Life Insurance Corporation of India, Cannaught Circus, New Delhi.
2. LIC of India Dharamshala through its Manager, Branch Office Dharamshala.
3. LIC of India Branch Mandi Dadwali Model Town Karnal (Haryana) Through its Divisional Manager.
....Appellants.
Versus Smt. Sudesh Kumari W/o Late Kashmir Singh R/o Village Bhagiar, PO Jaunta Ratial, Tehsil Jawali, District Kangra, H.P. ..Respondent.
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Honble Mr. Justice Arun Kumar Goel (Retd.), President.
Honble Mr. Chander Shekher Sharma, Member.
Whether approved for reporting ?
For the Appellants. Mr. Navlesh Verma, Advocate.
For the Respondent. Mr. Bhupinder Thakur, Advocate vice Mr. V.B.Verma, Advocate.
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ORDER Justice Arun Kumar Goel (Retd.) President (Oral).
1. Heard learned counsel for the parties, and with their assistance we have also examined the record of the complaint file.
2. District Forum below has fallen into error while allowing Consumer Complaint No. 336/2006, on 25.3.2009, per Mr. Verma, learned counsel for the appellants, while issuing direction to his clients holding them jointly and severally liable to indemnify the respondent for the sum insured,
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Whether reporters of Local Papers may be allowed to see the orders ?
.2.
accrued policy benefits within 30 days after receipt of copy of the said order, failing which the amount would carry interest @ 9% per annum from the date of complaint, till its realization. Grant of compensation, besides cost of litigation also needs to be set aside per him. In this behalf he drew our attention to the certificate issued by the employer of the deceased, life assured-Sh. Kashmir Singh, husband of the respondent, vide Annexure RW-3. Its perusal shows that from 7.7.2000 to 28.10.2002 the deceased had availed earned leave on the ground of his sickness as under :-
1. 7.7.2000 to 14.8.2000.
2. 18.12.2000 to 21.12.2000
3. 14.6.2001 to 24.7.2001
4. 19.5.2002 to 26.5.2002
5. 9.10.2007 to 28.10.2002 x x x x x
3. Besides this document, Sh. Verma also referred to the affidavit of a Dr. Parkash Chand, RMP, under whose treatment deceased was throughout when he was on earned leave on account of his sickness right from 7.7.2000 till 13.3.2004. Sh. Verma also drew our attention to Annexure RW-1, the proposal form signed by the deceased at the time of obtaining insurance policy, and he pointed out that the deceased had given incorrect answers to personal history, ( regarding his state of health), as well as the leave availed by him in Column Nos. 10 & 11 of the proposal form.
4. All these pleas were seriously contested and resisted by Sh. Thakur, learned counsel for the respondent. He submitted that the perusal of the certificates issued by the Doctor under whose treatment the deceased-Kashmir Singh was, shows that he was having jaundice, diarrhea and sometime diarrhea with fever. Therefore according to him none of these diseases were of such nature which may call for interference with the impugned order. Sh. Thakur also submitted that assuming without admitting what was urged on behalf of the appellants to be correct, fact remains that there was no nexus .3..
between the cause of death and alleged diseases due to which the deceased was suffering prior to obtaining insurance policy on 13.3.2003. Therefore, according to Sh. Thakur this appeal deserves to be dismissed by upholding the impugned order and he prayed for accordingly.
5. It is now well settled that a contract of insurance under Insurance Act, 1938 is based on utmost good faith and bonafide on doctrine of uberrimafides. As such a duty is enjoined upon the person seeking insurance to give all the material information in the proposal form including that relating to his personal health truly and correctly. Here Annexure RW-3 assumes significance, i.e. certificate issued by the employer of the deceased-Kashmir Singh. It clearly shows, that from 7.10.2000 to 28.10.2002 he had been on earned leave on account of his sickness. In these circumstances respondent cannot be allowed to say that the deceased was not aware as to what was the nature of disease due to which he remained absent from the place of work on account of earned leave during last 5 years at the time when he got insured. Likewise deceased has incorrectly stated in the proposal form, that during the last 5 years he did not consult any medical practitioner requiring treatment. Answer given by him is contradicted from the certificates issued by Dr. P.C.Sharma, copies of which are at pages 55 to 75 of the complaint file. Those indicate that he had suffered from jaundice etc. for the period more than 7 days at a stretch. At this stage Sh. Thakur pointed out that the nature of ailment cannot be termed to be such, which may justify repudiation of claim, and or for allowing this appeal.
6. This question is no more res-integra in view of the decision of Honble Supreme Court, in the case of Satwant Kaur Sandhu V/s New India Assurance Company Ltd., 2009 CTJ 956 (Supreme Court) (CP). While rejecting the claim of the appellant, Honble Supreme Court amongst other things held, that the insured is under a solemn obligation for making true and full disclosure of the information within his knowledge to the questions asked in .4.
the proposal form. Any inaccurate information entitles the insurer to repudiate its liability because there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into contract of insurance. It is not the proposer who is to determine whether the information sought for is material or not. Material in the context means important, essential and relevant information, thus there is no scope for doubt that the information required by questions below, question Nos. 10 and 11 of the proposal form was on material facts and answers given to them were definitely the factors, influencing and guiding the insurance company to enter into contract of mediclaim insurance with the insured.
7. Ratio of this decision in our opinion squarely covers the case of the appellants in this appeal before us. In this context we have noted the submission of Mr. Thakur for rejecting it, that neither respondent, nor her late husband was aware about the seriousness of the ailment. Reason being that the deceased remained on sick leave for long spells before he was insured. So he was duty bound to have disclosed it.
As such this plea is without substance and hence rejected.
8. To similar effect is a recent decision of the National Commision, in the case of LIC of India & Anr. V/s Smt. Suresh Kumari & Anr., Rev. Pet. No. 2756 of 2009, decided by the National Commission on 8.2.2010. In this case while setting aside the order of this Commission, National Commission held that in case it was proved that insured had not disclosed the full material facts, then the Insurance Co. was within its right to repudiate the claim. Since the life assured in this case before National Commission had not disclosed his true state of health when he got the lapsed policy revived, while allowing the appeal of the Insurance Company, complaint was dismissed.
9. No other point was urged.
.5.
10. In view of the aforesaid discussion we are of the view that this appeal deserves to be allowed, ordered accordingly and as result of it order passed by District Forum, Kangra at Dharamshala in Consumer Complaint No. 336/2006, decided on 25.3.2009 is set aside and as a consequence of it the said complaint is dismissed leaving the parties to bear their own costs.
11. All interim orders passed from time to time shall stand vacated forthwith.
12. Learned counsel for the parties have undertaken to collect copy of this order free of cost from the Court Secretary as per Rules.
(Justice Arun Kumar Goel) (Retd).
President (Chander Shekher Sharma) Member Suneera 27.4.2010.