State Consumer Disputes Redressal Commission
Oriental Insurance Company vs Ashwani Kumar on 26 February, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1547 of 2011.
Date of Institution: 21.10.2011.
Date of Decision: 26.02.2014.
Oriental Insurance Company through its Manager, SCO No.109-110-
111, Sector-17, Chandigarh.
.....Appellant.
Versus
Ashwani Kumar, aged 45 years, S/o Sh. Rattan Chand, R/o House
No.163, Friends Colony, Moga, District Moga.
...Respondent.
First Appeal against the order dated
11.07.2011 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. Vinod Choudhari, Advocate, counsel for the appellant.
Sh. Gurdip Singh, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Oriental Insurance Company, appellant (In short "the appellant") has filed this appeal against the order dated 11.07.2011 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short "the District Forum").
2. Facts in brief are that Sh. Ashwani Kumar, respondent/ complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the First Appeal No.1547 of 2011 2 Act"), asserting that he purchased new Indigo CS-LX car on 29.01.2010 and Temporary No.PB-10-CK-3142 was allotted by the dealer of the car and later on, permanent registration No.PB-29-K-9276 was allotted by the District Transport Officer.
3. On 29.01.2010, the respondent got the said car comprehensively insured for the value of Rs.4.41 lacs from the appellant. One Rajiv Kumar, friend of the respondent, asked him to give the car for a day as he was to go to "Mata Chintpurni" alongwith his family and friends for religious purpose. The respondent obliged him and gave the said car on 11.02.2010. The said car was being driven by driver Amrit Pal Singh. When said Rajiv Kumar alongwith his friend Rahul Monga, his wife Mamta and mother Smt. Kamla Devi were returning to Moga and when they reached at Balraj Palace, near Nakodar, the driver of the tralla, going ahead of the said car, suddenly applied brakes and the said indigo car struck against the said tralla and Rajiv Kumar and driver of the car Amrit Pal Singh died at the spot due to the injuries suffered in the accident. The accident took place due to the negligence of the said tralla driver.
4. The car in question was got damaged and the respondent lodged the claim of own damage with the appellant for a sum of Rs. 3.76 lacs as per the estimate given by Dada Motors Pvt. Ltd. The surveyor nominated by the appellant demanded illegal gratification of Rs.20,000/- from the respondent for assessing the loss of the car as per the estimate, but the respondent refused to oblige him and the surveyor got annoyed and fraudulently obtained the signatures from the wife of the deceased Sh. Rajiv Kumar on blank papers under the garb of telling her that the claim has already been sanctioned and he converted the said blank papers into statement of the wife of deceased Sh. Rajiv First Appeal No.1547 of 2011 3 Kumar to the effect that the deceased Rajiv Kumar hired the said car and it was for a commercial purpose. The appellant repudiated the claim illegally on 30.08.2010. The FIR was registered. The car was not hired, but was given on friendly basis. The appellant is liable to pay the claim amount of Rs.3.76 lacs alongwith interest and to pay compensation of Rs.20,000/- for mental torture and harassment and Rs.30,000/- for deficiency in service and the prayer was accordingly made.
5. In the written version filed on behalf of the appellant, preliminary objections were taken that the complaint is not maintainable and the respondent has no locus standi to file the complaint. There is no deficiency in service. Complicated questions of law and facts are involved and the civil court is competent. The perusal of the copy of FIR No.37 dated 12.02.2010 registered at P.S. Nakodar shows that temporary number of the car mentioned in the complaint is PB-10-CK- 3143. The fraud is involved and the District Forum has no jurisdiction. The respondent has not come to the District Forum with clean hands and has suppressed the material facts. The car in question having temporary registration No.PB-10-CN-(T)-1335 was insured and after receiving the intimation of accident of the said car, the surveyor Royal Associates was appointed to investigate the matter as well as Arun Kumar & Co., Jalandhar and the surveyor assessed the loss. On the basis of investigation report, the claim was repudiated.
6. On merits, it was pleaded that the appellant never insured the car bearing registration No.PB-10-CK-3143. In fact, the said Rajiv Kumar hired the insured car bearing temporary registration No.PB-10- CN (T)-1335 for going to "Mata Chintpurni" and the said car was used for commercial purpose at the time of accident. There is no question of First Appeal No.1547 of 2011 4 surveyor, taking signatures of the wife of the deceased Rajiv Kumar. The claim has been rightly repudiated. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the only ground for repudiation of the claim by the insurance company is that the vehicle was not used for any personal use, but was used by way of being hired, though no payment for hiring charges was proved. Relying upon the authorizes of the Hon'ble Supreme Court and National Commission, the District Forum concluded that the respondent is entitled to 75% of the net assessed loss which comes to Rs.2.41 lacs alongwith interest @ 9% p.a. from the date of repudiation till realization and Rs.5,000/- as costs of litigation.
9. Aggrieved by the impugned order dated 11.07.2011, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
11. The appeal was filed on the grounds that the District Forum has passed the order without appreciating the facts and law. The District Forum has awarded the amount which exceeds the assessed amount. The mode of settlement of claim was on the basis of cash loss basis, computed at sum of Rs.1,65 lacs and the second mode was on repair basis at Rs.3,21,858/-. The competent authority decided to settle First Appeal No.1547 of 2011 5 the claim on cash loss basis and the approach of the District Forum is without judicial reasoning. The District Forum has ignored all these facts and the impugned order is liable to be set aside.
12. It was contended on behalf of the appellant that the vehicle in question was being run for hire and reward and the District Forum passed the order and an application for review of the same was made which was dismissed vide order dated 15.09.2011. It has been contended that no salvage was given to the appellant insurance company and no value was assessed as the parts were not given. The District Forum has passed the order of payment, but has not stated anything about the salvage and the parts salvaged. It has been argued that the order under appeal may be modified accordingly.
13. On behalf of the respondent, it has been argued that the respondent is ready to give the salvage and except this, the order passed by the District Forum is legal and there is no ground to interfere with the same.
14. We have considered the respective version/submissions of the parties and have thoroughly screened the entire record.
15. Perusal of the order of the District Forum shows that the District Forum has directed the appellant insurance company to pay Rs.2.41 lacs i.e. 75% of the net assessed loss by the surveyor alongwith interest @ 9% p.a. from the date of repudiation of the claim i.e. 30.08.2010 till realization and Rs.5,000/- were awarded as costs of litigation. The District Forum has not, at all, stated anything about the salvage and the parts which are to be replaced. The appellant insurance company has placed on record, the Final Survey Report Ex.R-8. The surveyor has mentioned the salvage value of damaged vehicle as Rs.2.25 lacs with RC, if disposed of immediately. First Appeal No.1547 of 2011 6
16. As stated above, the District Forum has not made any mention of the salvaged parts which were required to be mentioned.
17. Accordingly, the appeal is disposed of and the order under appeal dated 11.07.2011 passed by the district Forum is modified to the extent that the respondent shall deposit the complete salvage with the appellant insurance company and shall also complete all other formalities for transfer of registration certificate in the name of the appellant insurance company within 45 days of receipt of copy of the order and once the same is done, the appellant insurance company shall pay the awarded amount as per the order passed by the District Forum to the respondent within 15 days thereof. With this modification, the appeal is disposed of.
18. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
19. The arguments in this appeal were heard on 17.02.2014 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member February 26, 2014.
(Gurmeet S)