State Consumer Disputes Redressal Commission
Niac Ltd. vs Sham Sunder on 28 July, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.114 of 2012
Date of Institution: 01.02.2012.
Date of Decision: 28.07.2015.
1. New India Assurance Company Limited, Branch Office, Park
Road Mansa through its Branch Manager.
2. New India Assurance Company Limited, Near Bus Stand,
Shaheed Bhagat Singh Nagar through its Divisional Manager.
3. New India Assurance Company Limited, Head Office, Building
87, Mahatma Gandhi Road, Mumbai-400001
.....Appellants/opposite parties
Versus
Shri Sham Sunder Gagg S/o Sh. Shanti Sarup, r/o village Samundra
Tehsil Garshankar, District Shaheed Bhagat Singh Nagar.
.....Respondent/complainant
First appeal against order dated
06.12.2011 passed by the District
Consumer Disputes Redressal
Forum, Shaheed Bhagat Singh
Nagar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. R.S. Madaan, Advocate. For the respondent : Sh. Rahul Gautam, Advocate .............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against respondent herein (the First Appeal No.1511 of 2012 2 complainant in the complaint), assailing order dated 06.12.2011 of District Consumer Disputes Redressal Forum Shaheed Bhagat Singh Nagar (in short, "the District Forum"), accepting the complaint of the complainant by directing the OPs to pay Rs.1,05,892.19 paise (Rs.1,10,892.19 - Rs.5000/- the cost of salvage) to the complainant within 30 days from the date of receipt of copy of order.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that complainant purchased Tata Indica car bearing registration no.PB-01-0789 and has been plying it for self- employment exclusively for earning his livelihood. The complaint was pending before the District Forum, which was disposed of on 26.04.2011 with the direction to OPs to finalize the claim of the complainant within 30 days, from the date of receipt of copy of order. The complainant insured his above referred car with OPs on 26.03.2007 vide insurance policy no.360801/31/06/01/ 00007038, which was valid upto 25.03.2008. The OPs assured the complainant that they would pay all the damages to the complainant, if any loss occurred to the car of the complainant during the currency of the insurance policy. On 13.03.2008, the car of the complainant was taken on rent by Jagtar Singh R/o Village Saloh Tehsil and District Nawanshahr for dropping his son and daughter in law from Salob to Indira Gandhi International Air Port New Delhi. On 14.03.2008, on First Appeal No.1511 of 2012 3 the way at Khanna to Samrala road at Bhati Dhaba, the said car was struck by a truck. FIR no.71 dated 14.03.2008 under section 279/337/427 of IPC was lodged at Police Station Sadar Khanna about this accident. The intimation was also given to the OPs and surveyor was appointed by the OPs for this purpose. The District Forum directed the OPs in the previous order to finalize the claim of the complainant within 30 days. The OPs have not given the damages to the complainant on the basis of the insurance policy. The complainant has, thus, filed the complaint directing the OPs to pay the amount of Rs.2,20,000/- as damages of the insured car occurred due to alleged accident alongwith interest @ 10% per annum, besides Rs.20,000/- as damages/compensation for deficiency in service.
3. Upon notice, OPs appeared and filed written reply raising preliminary objections that complainant has no locus standi to file the complaint. The complainant submitted blank claim form bearing his signatures without mentioning the name of the driver of the said vehicle and without mentioning the date and place of accident thereon. No timely intimation was given to the OP about the accident of this case and no spot survey report was submitted. The complaint of the complainant was alleged to be bad for non-joinder and misjoinder of necessary parties. On merits, It was denied by the OPs that the car was taken on rent by Jagtar Singh. It was admitted that First Appeal No.1511 of 2012 4 the said vehicle met with an accident on 14.03.2008. It was further averred by the OPs in the written reply that complainant informed the OPs only on 02.06.2008 about this matter. It was further pleaded that complainant did not cooperate with the surveyor deputed by the OPs and the complainant did not supply the original driving license, RC and necessary information regarding one person, who subsequently died. It was further pleaded that as per directions of District Forum, the OPs are prepared to settle the claim within 30 days, but the required documents are not supplied to them by the complainant. It was further pleaded that three letters dated 07.09.2010, 10.05.2011 and 17.05.2011 were written to the complainant to submit the final repair bills, salvage and production of the vehicle for re-inspection, but the same have not been supplied by the complainant. The OPs prayed for the dismissal of the complaint of the complainant.
4. The complainant tendered in evidence his affidavit Ex.C-1 alongwith documents Ex.C-1/A to Ex.C-1/G. As against it, the OPs tendered in evidence the affidavit Ex.R-1 alongwith documents Ex.R-2 to Ex.R-11. On conclusion of evidence and argument, the District Forum Shaheed Bhagat Singh Nagar accepted the complaint of the complainant. Dissatisfied with the above order, the OPs, now appellants have directed this appeal against the same. First Appeal No.1511 of 2012 5
5. We have heard the learned counsel for the parties and have also examined the record of the case. The affidavit of the complainant Sham Sunder Gagg is Ex.C-1 on the record in support of his averments. Order dated 26.04.2011 passed by the District Forum Shaheed Bhagat Singh Nagar in complaint no.08 of 2011 is Ex.C-1/A on the record to the effect that OPs were directed to finalize the claim of the complainant within 30 days. Copy of insurance policy is Ex.C-1/B on the record. Copy of registration certificate Ex.C-1/C of the said car in the name of complainant is on the record. Copy of FIR no.71 dated 14.03.2008 under section 279,337 and 427 of IPC is on the record. Copies of letters dated 10.05.2011, 17.05.2011 and 25.05.2011 from OPs to the complainant are Ex.C-1/E to Ex.C-1/G.
6. To rebut this evidence, OPs placed reliance upon affidavit of Ram Kishan, Sr. Divisional Manager Ex.R-1. Ex.R-2 the copy of letter dated 17.05.2011 from OPs to the complainant that in case the documents were not supplied by the complainant, his claim would not be entertained after prescribed days. Similarly, the correspondence which took place between the parties is Ex.R-3 to Ex.R-6 on the record. Ex.R-7 is copy of survey report by Kapoor and Company. The net payable amount has been found to be Rs.1,10,892.19 paise by the surveyor. Ex.R-8 is the copy of motor claim form. Ex.R-9 is the letter from surveyor to the complainant for First Appeal No.1511 of 2012 6 demanding the documents as detailed in it. Ex.R-10 is the copy of preliminary survey report.
7. We have examined the memorandum of appeal of the OPs, now appellants in this case as well. It is submitted that no timely information was given to the OPs about the accident and consequently no survey could be carried out by the OPs. Many letters were written to the complainant for submitting the final repair bills, which were necessary to settle the claim of the complainant, but to no effect. The inspection of the vehicle could not be carried out. On the above referred averments, the OPs, now appellants sought the reversal of the order of the District Forum in this appeal. We have carefully gone through the order of the District Forum. The fact of accident is not in dispute in this case. The factum of the vehicle, being insured with OPs is also not in dispute. The OPs appointed Kapoor and Company, as surveyor to visit the spot and he assessed the loss of Rs.1,10,892.19 paise, vide his report Ex.R-7 on the record. The OPs have not settled the claim pursuant to the report of surveyor and wanted to avoid it on one flimsy ground or the other. The report of the surveyor is a valuable piece of evidence. The surveyor is appointed under the Insurance Act and his report is generally to be given weightage by the Forum. In this case, there are no strong reasons and evidence to the contrary so as to discard the report of the surveyor. The OPs have failed to settle the claim after First Appeal No.1511 of 2012 7 lapse of so much time period, when the surveyor found the loss to the vehicle of the complainant genuine, vide Ex.R-7 on the record. The complainant categorically pleaded in the complaint and also filed his affidavit on the record Ex.C-1 that he has been using the vehicle exclusively for self-employment to earn his livelihood. There is no rebuttal to it. Consequently, the complainant is the consumer of the OPs. The order of the District Forum, which is based on the report of surveyor Ex.R-7 is infallible and is not erroneous in our view. The order of the District Forum under challenge in this appeal is affirmed in this appeal.
8. As a result of our above discussion, finding no merit in the appeal of the appellants, the same is hereby dismissed.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days. The remaining amount shall be paid by the OPs to the complainant, as per the order of District Forum within 30 days from date of receipt of certified copy of the order.
10. Arguments in this appeal were heard on 23.07.2015 and the order was reserved. Now the order be communicated to the First Appeal No.1511 of 2012 8 parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER July 28, 2015.
(MM)