State Consumer Disputes Redressal Commission
Gurminder Singh S/O Sh. Ajmer Singh vs United India Insurance Company, on 22 August, 2013
1st Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1033 of 2010
Date of institution : 11.06.2010
Date of Decision : 16.09.2013
M/s Star Studio's and Digital Gallery, Store No.2, Main Road, Hira Bagh,
Opposite Jain Petrol Pump, Rajpura road through its sole Propreitor, Sh. Jaideep
Narula.
........Appellant.
Versus
The New India Assurance Company Limited through its Branch manager, 7,
Chotti Baradari, The mall, Patiala.
.....Respondent
First Appeal against the order dated 10.05.2010 of
the District Consumer Disputes Redressal Forum,
Patiala.
Before:-
SH.INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER
SH.VINOD KUMAR GUPTA, MEMBER Present:-
Sh. Vikram Tandon, Advocate, Counsel for the appellant Sh. Vinod Mahendru, Advocate, Counsel for the respondent VINOD KUMAR GUPTA, MEMBER :
This appeal was filed by the appellant/ complainant (hereinafter called as 'appellant') under Section 15 of Consumer Protection Act, 1986 (hereinafter called as "Act") against the impugned order dated 10.05.2010 passed by the District Consumer Disputes Redressal Forum, Patiala (in short 'District Forum') vide which the complaint of the appellant was dismissed.
2. Brief facts of the case are that the appellant had purchased the insurance policy from the respondent for the period from 26.10.2006 to 25.10.2007 for stock of goods, lying in his business premises. The insurance policy covers burglary and theft of goods for a sum of Rs.20,00,000/-. The appellant paid the premium as mentioned in the policy to the respondent. During the intervening night of 9/10th August, 2007, theft of goods including a laptop, First Appeal no.1033 of 2010 2 Computer, lamps, cameras and currency notes etc. lying in the business premises of the appellant, took place on account of which FIR No.360, was got registered under Section 380/457 of IPC, at Police Station Sadar, Patiala. The appellant lodged the complaint and completed the requisite formalities as required by the respondent, but he had failed to settle his claim, despite service of reminders on 25.10.2008 and 8.11.2008 which shows the deficiency in service on the part of the respondent. The appellant filed the complaint seeking directions to the respondent to pay a total sum of Rs.3,05,000/- to the appellant including a sum of Rs.2,80,000/- as costs of the articles stolen, Rs.10,000/- as compensation and Rs.15,000/- as litigation expenses along with interest @18% per annum w.e.f.10.08.2007 till date of payment.
3. Upon notice the respondent replied by taking preliminary objections that the appellant has no cause of action to file the complaint and the District Forum has no territorial jurisdiction to try the complaint. On merits it was admitted that the respondent has issued the insurance policy covering burglary and theft for the period of 26.10.2006 to 25.10.2007 for a sum of Rs.10,00,000/- in favour of the appellant covering "on stocks of Rs.6 lac on stock digital cameras, handy cam etc., Rs.1,50,000/- five split AC-2006, Rs.1,00,000/- on 3 computers with all attached accessories, Rs.1,50,000/- on studio fixer and denied that the policy covers risk of Rs.20,00,000/-. It was stated that on intimation of theft, respondent deputed Sh. Navdeep Singh Chaudhary Charted Accountant, Patiala Surveyor to assess the loss and he submitted his report dated 13.11.2007, vide which he assessed Rs.2,32,627/- as loss and observed that entry in the shop was with the help of duplicate key as there was no damage to shutter and other infrastructure of the shop. Sh. K.S.Chandhok, investigator Patiala found that there was no evidence of forcible entry in the shop and is not covered under the terms and conditions of the policy. All other allegations were also denied. The claim of the appellant was rightly repudiated.
First Appeal no.1033 of 2010 3
4. Parties led evidence in support of their respective contentions by way of affidavits and documents.
5. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum dismissed the complaint.
6. Aggrieved by the impugned order dated 10.05.2010, the appellant has come up in appeal on the ground that the District Forum has not considered the fact that the theft has taken place at the premises of the appellant which has been clearly mentioned by the investigator appointed by the respondent. The District Forum has also ignored the fact that the respondent also appointed Surveyor who also gave his report, vide which it is clearly mentioned as under:-
"In my opinion the facts which have precipitated during investigation made by me reveal fact that the above theft has taken place on reported date of loss at shop M/s Star Studio's & Digital Gallery (insured). The cause of loss is theft with entry to shop with opening of locks, without damaging the shutter and other structure."
The District Forum has also ignored that the locks of the shop were opened, one lock was missing, shutter of the shop was up and there was an unauthorized entry into the shop and admittedly theft took place. The District Forum also ignored this fact that the respondent never gave terms and conditions of the policy to the appellant and the appellant was not aware of the technicalities of the policy. District Forum has also ignored that the opening of locks and shutter by duplicate keys is also a forcible entry when it is not authorized/authenticated/admitted. The order of the District Forum is based on conjectures and surmises which is liable to be dismissed. The learned District Forum has not considered the statement of Sh. Mohinder Kumar dated 22.12.2007 given before the investigator. It was prayed that the appeal may be accepted and the order of the District Forum may be set -aside. First Appeal no.1033 of 2010 4
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. It is admitted fact that the appellant has purchased the policy Ex.C-4 from the respondent for the period from 26.10.2006 to 25.10.2007 for covering risk against burglary, theft etc. for a sum of Rs.10,00,000/-. During the intervening night of 09/10.08.2010 theft took place in the premises and the FIR no.360 dated 10.08.2007 was got registered. It is also admitted that the intimation regarding the theft was received and respondent Company appointed Sh. Navdeep Singh Chaudhary, Surveyor to assess the loss. The Surveyor submitted his report dated 13.11.2007 and assessed the loss at Rs.2,32,627/-. We have perused the report of the Surveyor as Ex.R-6. The relevant portion of the report is reproduced is as under:-
" There were two locks on the shutter and there was no central lock. The locks were found in open condition with its one lock missing and there was second lying near the shutter in open condition. The cause of loss is theft with unauthorized entry in the shop with the help of duplicate key or master key but there were no damaged to shutter and other infrastructure of the shop."
9. We have perused the report of Engineer Sh. K.S.Chandhok, Investigator Ex.R-7 who was deputed by the respondent on 15.11.2007 for investigation of the case. Relevant portion of the report is reproduced as under:-
"There were two locks on the shutter and there was no central lock. The locks were found in open condition with its one lock missing and there was second lying near the shutter in open condition. The cause of loss is theft with unauthorized entry in the shop after opening locks without damaging the shutter and other structure."
10. We have also perused the terms and conditions of the policy Ex.R-5. The Operative Clause of the policy is as under:- First Appeal no.1033 of 2010 5
"The company hereby agrees subject to terms, conditions and exclusion, herein contained or endorsed or otherwise expressed hereon, to indemnify the insured, to the extent of intrinsic value of:
a) Any loss or damage to property or any part thereof whilst contained in the premises described in the schedule hereto, due to 'burglary' or house breaking (theft following upon an actual forcible and violent entry of and/or exist from the premises) and hold up."
A perusal of the above said provisions apparently makes it clear that the insurance company cannot be held liable in case of loss of goods is not preceded with violence or force.
11. The version of the respondent is that the claim of the appellant was rightly repudiated on the basis of the terms and conditions of the policy Ex.R-3 dated 13.02.2008. But it is not believable because an entry obtained by picking the lock or forcing back the catch by means of instruments involves the use of violation and is therefore, covered under Burglary. In the present case also one lock was missing and one was lying near the shutter, it means that some force was used to open the locks of the shutter and entered into the premises of the appellant. In the case "Mono Industries Vs. New India Assurance Co. Ltd., II (2008) CPJ 125 (NC), it has been held that entry in the premises, if is found to have been effected by exercise of force, however, slight. It would be sufficient to constitute forcible entry within the meaning of burglary policy.
12. As per the report of the Surveyor Ex.R-6, it is clear that there were two locks on the shutter, out of which one lock was missing and the second was lying near the shutter in open condition. As per report of the Investigator Ex.R-7 same remarks were made. Thus the reports show that one lock was missing and the other lock was opened. There is no evidence on record to prove that some duplicate key was used and in the absence of that it is clear that the lock has been broken open with the use of force and the said force was used for breaking the lock only and there cannot be any evidence of use of force on the shutter or any other part and unauthorized entry was made for committing the burglary. First Appeal no.1033 of 2010 6
13. The District Forum ignored all these facts as well as legal position quoted above and the order passed by the learned District Forum is not sustainable in the eyes of law. The Surveyor of the respondent in report Ex.R-6 assessed the loss to the tune of Rs.2,32,627/- after making various deductions and calculations and in our opinion this amount the respondent Insurance Company is liable to pay to the appellant.
14. Accordingly, the appeal filed by the appellant is accepted and the order passed by the learned District Forum under appeal dated 10.05.2010 is set-aside. Consequently, the complaint filed by the appellant is partly allowed and the respondent-insurance Company is directed to pay Rs.2,32,627/- as loss, Rs.10,000/- as compensation and Rs.5,000/- as litigation expenses. The amount shall be paid within 45 days from the date of receipt of the copy of the order, failing which the respondent would be liable to pay interest @9% per annum from the date of filing of the appeal.
15. The arguments in this appeal were heard on 11.09.2013 and the order was reserved. Now the order be communicated to the parties.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Judicial Member
September 16, 2013 (Vinod Kumar Gupta)
Rashmi Member
First Appeal No.730 of 2009 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.730 of 2009 Date of institution : 26.05.2009 Date of Decision : 16.08.2013 Sukhdev Singh son of Shri Surjit Singh, r/o village Giana, District Bahtinda. Patiala.
...Appellant Versus
1. M/s Duni Chand Faquir Chand, Wholesale & Reyali Pesticides and Seeds Merchants, Raman 151 301 (Bathinda), Punjab through its Proprietor/ Partner.
2. M/s Shakti Vardhak Hybrid Seeds Private Limited, Registered office at New Rishi Nagar, Hisar (Haryana) through its Managing Director/ Director/ Chairman. ...Respondents First Appeal against the order dated 21.04.2009 of the District Consumer Disputes Redressal Forum, Bathinda.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member Shri J.S.Gill, Member Present:-
For the appellant : None
For respondent No.1 : Sh. G.L.Bajaj, Advocate
For respondent No.2 : Sh. P.K.Chugh, Advocate
J.S.GILL, MEMBER:
In this appeal none had been appearing for the appellant since 13.10.2011. Thereafter, the appeal was fixed for 19.03.2012, 05.09.2012, 28.01.2013, 8.5.2013, 16.07.2013 but on those dates and even today none appeared for the appellant. It seems that the appellant is not interested to pursue the appeal.
The appeal is accordingly, dismissed for want of prosecution. First Appeal No.730 of 2009 2 Copies of this order be sent to the parties free of costs.
(Gurcharan Singh Saran)
Presiding Judicial Member
August 16, 2013 (Jasbir Singh Gill)
Rashmi Member
First Appeal No.730 of 2009 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.730 of 2009 Date of institution : 26.05.2009 Date of Decision : 16.08.2013 Sukhdev Singh son of Shri Surjit Singh, r/o village Giana, District Bahtinda. Patiala.
...Appellant Versus
1. M/s Duni Chand Faquir Chand, Wholesale & Reyali Pesticides and Seeds Merchants, Raman 151 301 (Bathinda), Punjab through its Proprietor/ Partner.
2. M/s Shakti Vardhak Hybrid Seeds Private Limited, Registered office at New Rishi Nagar, Hisar (Haryana) through its Managing Director/ Director/ Chairman. ...Respondents First Appeal against the order dated 21.04.2009 of the District Consumer Disputes Redressal Forum, Bathinda.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member Shri J.S.Gill, Member Present:-
For the appellant : None
For respondent No.1 : Sh. G.L.Bajaj, Advocate
For respondent No.2 : Sh. P.K.Chugh, Advocate
J.S.GILL, MEMBER:
In this appeal none had been appearing for the appellant since 13.10.2011. Thereafter, the appeal was fixed for 19.03.2012, 05.09.2012, 28.01.2013, 8.5.2013, 16.07.2013 but on those dates and even today none appeared for the appellant. It seems that the appellant is not interested to pursue the appeal.
The appeal is accordingly, dismissed for want of prosecution. First Appeal No.730 of 2009 2 Copies of this order be sent to the parties free of costs.
(Gurcharan Singh Saran)
Presiding Judicial Member
August 16, 2013 (Jasbir Singh Gill)
Rashmi Member
1
First Appeal No.79 of 2012
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.79 of 2012 Date of institution: 23.01.2012 Date of Decision: 11.09.2013 New India Assurance company Ltd. Sector-17, Chandigarh through its duly Authorized Officer.
...Appellant/OP Versus Sameer Gupta S/o Sh. Vinay Kumar Gupta Prop. M/s Gupta Chips and Marble Store, Nawashahr road, Denowal Khurd, Garhshankar, Distt. Hoshiarpur.
...Respondent/complainant First Appeal against the order dated 07.12.2011 of the District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Piare Lal Garg, Member.
Shri Jasbir Singh Gill, Member.
Argued by:-
For the appellant : Sh. Vinod Gupta, Advocate
For respondent : None
J.S.GILL, MEMBER:
This appeal has been filed by the OP /appellant against the order dated 07.12.2011 passed by the learned District Consumer Disputes Redressal Forum, Shaheed Bhagat Singh Nagar (in short 'the District Forum') in Consumer Complaint No.147 of 2011 whereby the complaint of the complainant/respondent was allowed and the OP was directed to pay to the complainant a sum of Rs.55,100/- on account of theft of articles.
2. Brief facts of the case are that the complainant had taken the insurance policy for Rs.20,00,000/- from the OP which was valid from 29.11.2007 to 28.11.2008. On 26.05.2008 midnight, a theft had taken place and sanitary 2 First Appeal No.79 of 2012 goods amounting to Rs.1,65,000/- had been stolen and the complainant lodged FIR dated 27.05.2008 with the police station, Garhshanker. The complainant had approached the bank to settle the insurance claim and submitted all the relevant documents to Sh. S.K.Mittal, who was appointed as Surveyor by the OP. The complainant had visited the office of the OP for settlement of his claim and also served a legal notice but the claim of the complainant was not settled. The complainant filed the present complaint with the direction to the OP to pay to the complainant a sum of Rs.1,65,000/- and Rs.20,000/- as compensation.
3. Upon notice the OP filed the written reply taking preliminary objections that complaint was barred by time. The complainant had taken the insurance policy from the OP and it was only for chips and marbles and other related goods but it was not for sanitary goods. The complainant has not informed the OP about the theft which is in violation of the terms and conditions of the policy. The complaint is bad for non-joinder of necessary parties. The untraced report has not been supplied by the complainant to the OP and the complaint of the complainant is not maintainable. On merits the OP had admitted the insurance but denied the theft because the complainant had not supplied the list of stolen articles. The complainant is running his business under the name and style of Gupta's Chips and Marbles and insured through Punjab National Bank. Further, all other allegations were denied.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations the complainant filed affidavit Ex.C-1 of Sh. Sameer Gupta, Ex.C-2 is the order dated 8.7.2010, Ex.C-3 to Ex.C-5 are the letters, Ex.C-6 is the certificate issued by the Excise and Taxation Officer, Hoshiarpur, Ex.C-7 is the Form Vat-4, Ex.C-8 is the list of articles, Ex.C-9 is the insurance policy, Ex.C-10 is the FIR, Ex.C-11 is the intimation letter, Ex.C-12, C-
13, C-14 are the letters, Ex.C-15 is the copy of I-Card, Ex.C-16 is the copy of map, Ex.C-17 & C-18 are the bills. On the other hand, the OP tendered into 3 First Appeal No.79 of 2012 evidence by way of affidavit Ex.R-1 of Sh. Ram Kishan, and documents Ex.R-2 & Ex.R-3 are the letters and Ex.R-4 is the Survey report.
6. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum allowed the complaint vide impugned order dated 07.12.2011 and the OP was directed to pay to the complainant a sum of Rs.55,100/- on account of theft of articles. The District Forum has allowed the complaint on the ground that the there is no denial of theft of articles and list of articles were supplied by the complainant to the OP. The OP has challenged the same through this appeal.
7. We have heard the arguments of the Learned Counsel for the appellant and have perused the record. None has appeared for the respondent.
8. In the grounds of appeal it has been stressed that the District Forum has failed to appreciate the evidence on record to the effect that the complainant had taken a shopkeeper insurance policy covering the fire, burglary and house breaking for stock for all kinds of chips and marbles and other related goods. Whereas, the sanitary articles were stolen in the theft held on 26.05.2008 and the sanitary articles were not covered under the policy. As per the evidence on record it is clear that the stolen articles/goods were not insured and are not covered under the policy and the company is not liable to pay any compensation. Acceptance of the appeal and setting aside of the impugned order is prayed.
9. The complainant purchased the insurance policy called as shopkeeper insurance policy and was valid up to 28.11.2006. The policy covered the stock of all kinds of chips and marbles and other related goods like Burglary and fire. Only dispute is that the sanitary goods stolen in the theft took place on 28.05.2008 at midnight are not covered under the policy. We have perused the insurance policy Ex.C-9 which was valid from 29.11.2007 to 28.11.2008 policy was of Rs.20,00,000/- and the premium was Rs.10,304/-, stock of all kinds of chips and marbles and other related goods was covered and the sanitary articles were not written in the policy. Ex.C-8 is the list of the stolen articles. 4 First Appeal No.79 of 2012
10. As per the letter Ex.C-4 it was questioned to the complainant in para no.3 that he is dealing in marble, chips and white cement only and as per the stock statement given in the Punjab National Bank, Garhshanker up to March, 2008 you were having stock of Chips, Marble, Tiles, White Cement & Khapra Tiles and from April 2008 you have added the stock of sanitary goods, please confirmed s to whether you have got done any endorsement from us for sanitary goods. In the Audit report dated 15th July, 2008 Mr. Nitin Kanwal, CA has confirmed that complainant firm dealing in the trade of dealer of marble, chips and white cement and there is no change in business, as the report of the Surveyor Ex.R-4 list was given which was stolen, in which claim assessed at Rs.1,04,034/-. But he has not mentioned in his report that these articles come under the insurance policy or not. As such, these articles were not insured under this policy.
11. In our view the complainant cannot claim the insurance which was not covered under the policy. The complainant got insured only chips and marbles and no goods other good like sanitary articles. The articles which were insured were not stolen.
12. In view of the above discussion, we are of the view that there is merit in the appeal and the same is accepted and the order passed by the learned District Forum is set-aside. The insurance company is not liable to pay any compensation.
13. The arguments in this appeal were heard on 06.09.2013 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the statutory period, due to heavy pendency of the Court cases.
15. Amount of Rs.25,000/- was deposited by the appellant/OP on 23.01.2012 with this Commission at the time of filing the appeal. The appellant/OP would be entitled to withdraw the said amount with interest accrued thereon, shall be remitted by the registry to the appellant/OP after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission. 5 First Appeal No.79 of 2012
Parties are left to bear their own costs. Copies of the order be sent to the parties free of costs.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member (Jasbir Singh Gill) Member September 11, 2013 Rashmi 2nd Addl. Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.28 of 2013 Date of institution : 09.01.2013 Date of Decision : 09.09.2013
1. Hind Motors (Mohali) Pvt. Limited through its Law Officer i.e. Mr. Mohit, Plot No.B-16, Industrial Area, Phase-II, S.A.S.Nagar (Mohali) through Mr. Rajiv Sharma, its General Manager.
2. Mr. Rajiv Salesman, Hind Motors (Mohali) Pvt. Limited, Plot No. B-16, Industrial Area, Phase-II, S.A.S.Nagar (Mohali).
...Appellants/OPs Versus Vikramjit Singh son of Sukhpal Singh, resident of House No.2914, Sector 42/C, Chandigarh, presently at House No.2197, Phase-7, S.A.S.Nagar (Mohali).
...Respondent/complainant First Appeal against the order dated 06.11.2012 of the District Consumer Disputes Redressal Forum, Mohali.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Piare Lal Garg, Member Shri J.S.Gill, Member Argued by:-
For the appellants : None
For respondent : Sh. Vikramjit Singh, in person
J.S.GILL, MEMBER:
This appeal has been filed by the OPs/appellants against the order of the Learned District Consumer Disputes Redressal Forum, S.A.S.Nagar (Mohali) (hereinafter called as 'District Forum') vide which the complaint of the complainant/appellant was allowed against OP no.1 and the OP no.1 was directed to deliver to the complainant all the sale documents of the car First Appeal No.28 of 2013 2 in question bearing dated 02.08.2012, Rs.20,000/- as cash discount, Rs.50,000/- as compensation and Rs.5,000/- as litigation expenses.
2. Brief facts of the case are that the complainant had purchased from OP no.1 a car Volkswagen Vento 1.6 TLINE colour Candy White for a sum of Rs.8,35,308/-. He had booked this car on 31.07.2012 by paying booking amount of Rs.1.00 lac vide receipt Ex.C-1 issued by OP no.1. He was delivered the car on 1.8.2012 vide delivery challan Ex.C-2. OP no.2 was the salesman of OP no.1. At the time of deposit of booking amount, the OPs had promised that the complainant would get the benefits of the available scheme at the time of delivery of the car. At the time of delivery there was scheme of free insurance, Multi Media Music System of Rs.36,000/-, and Rs.20,000/- cash discount. But at the time of delivery the OPs had not given all the benefits and they only paid free insurance of the car. The complainant visited the OPs personally regarding remaining benefits and billing of the car and also sent e-mails, still the OPs had not provided the billing of the vehicle and benefits with the car. This amounts to deficiency in service on the part of the OPs. The complainant filed the present complaint with a prayer to pay him Rs.36,000/- as multi media system price, Rs.20,000/- as cash discount, issued him billing of the vehicle and Rs.90,000/- for mental agony and harassment.
3. Upon notice the OPs filed their written reply, by taking preliminary objections that the complaint is not maintainable. It is false, frivolous and vexatious, complicated questions of law and facts are involved so the District Forum has no jurisdiction to try the complaint and that the complainant is not a consumer of OP no.2 who has not received any consideration from the complainant. Even on merits they admitted sale of the car. They further stated that there was no scheme of booking as the vehicle was readily available. The scheme applicable to the sale in favour of the complainant was the one in vogue in July, 2012 because he had First Appeal No.28 of 2013 3 booked the car on 31.07.2012. He was not entitled to benefits of the scheme applicable to the month of August, 2012.
They have also pleaded that billing has been duly provided to the complainant and the plea of the complainant regarding their non provision is false and there is no deficiency on the part of the OPs and prayed for dismissal of the complaint.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations complainant filed affidavit Ex.CW- 1/1 of Sh. Vikramjit Singh and documents Ex.C-1 is the bill, Ex.C-2 is the delivery challan, Ex.C-3 is the copy of the cheque, Ex.C-4 is the copy of the bill, Ex.C-5/1, C-5/2 are the copies of the e-mail & C-6 is the proforma invoice. On the other hand, OP filed affidavit Ex.RW-1/1 of Sh. Mukesh Partap, Law officer, and documents Ex.R-1/1 is the bill, R-1/2 is the bill, Ex.R-1/3 is the sale certificate, Ex.R-1/4 is customer acknowledgment, Ex.R-1/5 is the accessories bill, Ex.R-1/6 & Ex.R-1/7 are the invoices, Ex.R-1/8 is the insurance policy and Ex.R-1/9 is the duplicate receipt.
6. After hearing the learned counsel for the parties and have perused the record, the learned District Forum allowed the complaint vide impugned order dated 06.11.2012 on the ground that the OP had taken a false stand regarding the delivery of the sale documents to the complainant which again amounts to deficiency in service on their part.
7. Aggrieved by the order of the District Forum the OP filed the appeal on the ground that the learned District Forum had grossly erred in passing the impugned order that there was a difference between two schemes of July, 2012 and August, 2012. As in the scheme of July, 2012 the purchaser will be given navigation stereo and exchange bonus of Rs.20,000/-. However, there was no exchange of the vehicle so the complainant was not entitled for the bonus. He further stated that in the First Appeal No.28 of 2013 4 present case the complainant had categorically admitted vide Ex.R-1/1 that he will avail July, 2012 scheme and will not opt for the benefits of the August, 2012 scheme and there was no unfair trade practice and deficiency in service on the part of the OP and prayed for the acceptance of the appeal.
8. We have heard the arguments of the complainant/respondent, in person and have perused the record. None is appearing on behalf of the OP/appellant.
9. As per the offer of the scheme in June the benefits given are as under:-
(i) Scheme is available for all variants of Vento TL Petrol and Diesel retailed in June, 2012 will be eligible for free navigation stereo and exchange bonus worth Rs.20,000/-.
As per the offer of the scheme in August, 2012 the benefits given are as under:-
(i) Free insurance + Cash discount worth Rs. 20,000/- and navigation stereo.
Both the schemes are different as observed above. Car was booked with the OP on 31.07.2012 and the delivery of the car was made on 1.8.2012 vide challan dated 1.8.2012 and before getting the delivery the complainant paid Rs.7,35,000/- vide Cheque No.562187 dated 1.8.2012 which was drawn from HDFC Bank as security as demanded by the OP and demand draft of Rs.7,35,308/- drawn on the Union Bank of India was delivered on account of balance sale price by the complainant to the OP on 2.8.2012. The question therefore, only the billing of the Car on 31.07.2012 did not arise when about 70% of the sale price was still payable to the OP. We have perused Performa invoice Ex.C-6, there are certain terms and conditions of sale are mentioned, one of them is that prices & Schemes prevailing at the time of delivery of the vehicle will be First Appeal No.28 of 2013 5 applicable. As the delivery of the Car was made on 1.8.2012 vide delivery challan Ex.C-2, therefore, as per condition of the performa invoice Ex.C-6, complainant was entitled to the benefits of August, 2012 scheme. Therefore, it appears that the condition in the deal format Ex.R-1/1 to the effect that billing will be done on 31.7.2012, subject to the scheme of July, 2012 has been intentionally incorporated by the OP by way of unfair trade practice with a view to grab the cash discount of Rs.20,000/-. The learned counsel for the complainant argued that the sale documents of the Car have not been supplied to the complainant so far by the OP. On the other hand, the version of the OP is that the complainant has received the bills Ex.R-1/4 duly signed by the complainant.
10. In our view the dealer always withhold the sale documents till actual receipt of the sale price when the sale price has been paid through cheque these documents were retained by the dealer till encashment of the cheque normaly the bills are delivered to the purchaser about one week after the delivery of the Vehicle. In this case, the sale certificate was issued on 31.07.2012 Ex.R-1/3. When even 70% of the sale price was still payable to the OP, this was paid by the complainant on 2.8.2012. Billing of the car could not be made prior to 2.8.2012 therefore, it is more clear that the sale was subject to the scheme of August, 2012.
11. In view of the above discussions, we are of the opinion that the learned District Forum rightly allowed the complaint. There is no merit in this appeal and the same is, accordingly, dismissed and the impugned order under appeal dated 06.11.2012 passed by the District Forum is affirmed and upheld. Parties are left to bear their own costs of appeal.
17. The arguments in this appeal were heard on 04.09.2013 and the order was reserved. Now the order be communicated to the parties.
18. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases. First Appeal No.28 of 2013 6
19. Amount of Rs.25,000/- and Rs.12,500 was deposited by the appellants/OPs on 09.01.2013 & 13.02.2013 with this Commission. The complainant would be entitled to withdraw the said amount with interest accrued thereon, shall be remitted by the registry to the respondent/complainant after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission.
(Gurcharan Singh Saran)
Presiding Judicial Member
(Piare Lal Garg)
Member
September 09, 2013 (J.S.Gill)
Rs Member
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.204 of 2010 Date of institution :10.02.2010 Date of Decision : 02.09.2013 Central Bank of India, a body corporate constituted under the Banking Companies (Acquisition & Transfer or undertaking) Act, 1970 having its Central Office at Chander Mukhi, Nariman Point, Mumbai and a branch office amongst other places at AMRVIL, Civil Lines, Queens Road, Amritsar through its Attorney Holder.
...Appellant/OP Versus Manmohan Singh Goraya R/o A-239, New Partap Nagar, Amritsar.
...Respondent/ complainant First Appeal against the order dated 01.12.2009 of the District Consumer Disputes Redressal Forum, Amritsar.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Piare Lal Garg, Member Shri J.S.Gill, Member Present:-
For the appellant : Sh. C.S.Pasricha, Advocate For respondent : Sh. M.K.Bhatnagar, Advocate J.S.GILL, MEMBER:
This is OPs appeal under Section 15 of the Consumer Protection Act (herein after called as 'Act') against the order dated 01.12.2009 passed by the Learned District Consumer Disputes Redressal Forum, Amritsar (hereinafter called as 'District Forum') vide which the complaint of the complainant/respondent was partly allowed and the OP/appellant was directed to pay to the complainant a sum of Rs.1,67,000/- which allegedly released by the OP without verifying the signatures of the complainant with First Appeal No.204 of 2010 2 the specimen signatures, Rs.3,000/- as compensation alongwith Rs.2,000/- as litigation expenses.
2. Brief facts of the case are that the complainant/respondent was having a savings bank account bearing No.2922 with the OP/appellant and obtained a cheque book from the OP bank. One day the complainant left his cheque book in the bank and could not find the same despite best efforts the complainant in order to avoid any misuse of the cheques wrote a letter to the OP and handed over the same to the Executive Officer who assured the complainant that the payment of the cheques will be stopped and the complainant in good faith and being customer of the OP for the last more than 15 years returned back. It is further alleged that in the month of September 2008, when the complainant got a statement from the OP relating to the account and came to know that the huge amount approximately Rs.1,50,000/- had been withdrawn against the cheques which were lost and were not bearing the signatures of the complainant which infact scanned from the original signatures with the OP. The aforesaid cheques were got enchased illegally from 1.7.2008 and thereafter on various dates because the complainant never withdrawn any payment himself during the said period. The complainant also moved representations in this respect to the OP on 23.09.2008 and 4.10.2008.
While alleging deficiency and unfair trade practice, the complainant has filed the present complaint with a direction to the OP to recover the amount against the cheques illegally encashed from the account of the complainant as mentioned above and adjust the same in the account of the complainant and Rs.50,000/- as compensation alongwith litigation expenses.
3. Upon notice the OP appeared and filed their written reply by taking preliminary objections that the complaint is false and frivolous and not maintainable under the law; complainant is not a consumer and that First Appeal No.204 of 2010 3 the District Forum had no jurisdiction to try the complaint. Otherwise, on merits it was admitted that the complainant obtained cheque books relating to his savings bank account. It is denied that the cheque book was left in the bank and could not be found despite best efforts. It was also denied that any letter was written by the complainant or handed over to the executive officer or ever advised the bank or any of its officials regarding stop payment of the cheques contained in alleged pass book. It is submitted that the amounts of the cheques which were issued by the complainant were duly debited to his account. It was denied that said cheques do not bear signatures of the complainant but all the cheques referred to by the complainant were duly signed by him, therefore, there is no deficiency on the part of the OP and prayed for dismissal of the complaint.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations the complainant filed affidavit Ex.C-1 of Sh. M.S.Goraya, Ex.C-2, C-3 are the letters, Ex.C-4 is the account statement, Ex.C-5 is the affidavit of Sh. M.S.Goraya, Ex.C-6 to C- 14 are the copies of cheques, Ex.C-15 receipt from bank, Ex.C-16 is the affidavit of Sukhpreet Kaur, hand-writing expert, Ex.C-17 report of hand writing expert and Ex.C-18 are the photographs. On the other hand, the OP tendered into evidence by way of affidavit Ex.RW-1/A, RW-2/A and documents Ex.R-1 receipt, Ex.R-2 to Ex.R-4 letters, Ex.R-5 statement, Ex.R-6 & R-7 are the form through which cheque books are got issued.
6. After hearing the learned counsel for the parties and have perused the record, the learned District Forum allowed the complaint vide impugned order dated 01.12.2009 on the ground that at the time of releasing the payment, the OP has not performed their duty efficiently and due to their carelessness and negligence, this incident has happened as a First Appeal No.204 of 2010 4 result of which the OP has committed deficiency in service during the performance of their duty.
7. Aggrieved by the order of the District Forum appellant/OP has come up in the appeal with the ground that the case of the complainant was mis-conceived in the eyes of law, the same is also bad for non-joinder or mis-joinder of the parties. Further stated that the complainant has not produced any evidence/letter on record to substantiate his allegations that he had written a letter to the bank to stop the payment of the cheque, as such, no letter was ever received. He further, submitted that signatures on the cheques were valid and cheques has been rightly enchased by the bank authorities and the payments were fully paid after tallying the signatures of the complainant. It was further stated that as per the version of the complainant that one cheque book was lost whereas, he has claimed Rs.1,50,000/- which was withdrawn by the cheques belonging two cheque books issued to him which shows that the complainant has not come to the forum with clean hands and he is not entitled to any relief and prayed for acceptance of the appeal.
8. We have perused the affidavits/documents and heard the arguments of the learned counsel for the parties.
9. It is admitted that the complainant had a savings bank account No.2922 with the OP and two cheque books was issued to him in his favour. The version of the complainant/respondent that one cheque book was lost in the bank and payment of Rs.1,50,000/- was withdrawn from the bank by the said lost cheque book Ex.R-6 & R-7 are the requisition slips submitted by Sh. M.S.Goraya duly signed by him for getting the cheque books. Ex.C-6 & C-7 are the cheques signed by the complainant and on the back side of the cheques signature of same Vinod Kumar who got the cheque book issued vide requisition slips Ex.R-7 on the instructions of the complainant. Signature of Vinod Kumar also appear in the cheque book First Appeal No.204 of 2010 5 register Ex.R-5. It shows that Vinod Kumar is a confident man of the complainant through whom the cheque book was got issued. In complaint, the complainant alleged in para no.2 that one cheque book was lost and it could not be traced despite efforts. Regarding the loss of the alleged cheque book the complainant has not produced any rapat on the record and never got case registered against anybody for the alleged loss of cheque book. All the cheques were issued by the complainant after tallying his signature.
10. We have seen the cheques on the file, these cheques are of two series, one is series 11 and other is series 12. It creates doubt of the said versions that one cheque book was lost. The complainant has not mentioned which cheque book was lost of series 11 or series 12. The cheques from which the amount was encashed, they are of two series and duly signed by the complainant. In complaint he has mentioned that he wrote a letter to stop the payment but no letter has been produced by the complainant in evidence. He has not mentioned the name of the official to whom he handed over the said letter to stop the payment of the cheque, no date has been mentioned when it was sent.
11. After seeing the disputed cheques the name of the Vinod Kumar, Anju Bala and Madhu Bala has signed on the backside of the cheque and enchased those cheques which were issued by the respondent/complainant and the complainant has not mentioned, who are these persons and why he has not lodged the FIR against these persons. Vinod Kumar is the same person who has issued the cheque book vide requisition slip Ex.R-7 on the behalf of the complainant. It creates doubt that the complainant has not come to the forum with clean hands which clearly shows that the case set up by the complainant was patently false.
12. In view of the above discussions, we are of the view that there is merit in the appeal and the same is accordingly, allowed. The impugned First Appeal No.204 of 2010 6 order passed by the learned District Forum is set-aside. Parties are left to bear their own costs.
13. The arguments in this appeal were heard on 23.08.2013 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
15. Amount of Rs.5,000/- was deposited by the appellant on 05.10.2009 with this Commission. The respondent no.1/complainant would be entitled to withdraw the said amount with interest accrued thereon, shall be remitted by the registry to the respondent no.1 complainant after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission.
(Gurcharan Singh Saran)
Presiding Judicial Member
(Piare Lal Garg)
Member
September 02, 2013 (J.S.Gill)
Rs Member
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.204 of 2010 Date of institution :10.02.2010 Date of Decision : 02.09.2013 Central Bank of India, a body corporate constituted under the Banking Companies (Acquisition & Transfer or undertaking) Act, 1970 having its Central Office at Chander Mukhi, Nariman Point, Mumbai and a branch office amongst other places at AMRVIL, Civil Lines, Queens Road, Amritsar through its Attorney Holder.
...Appellant/OP Versus Manmohan Singh Goraya R/o A-239, New Partap Nagar, Amritsar.
...Respondent/ complainant First Appeal against the order dated 01.12.2009 of the District Consumer Disputes Redressal Forum, Amritsar.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Piare Lal Garg, Member Shri J.S.Gill, Member Present:-
For the appellant : Sh. C.S.Pasricha, Advocate For respondent : Sh. M.K.Bhatnagar, Advocate J.S.GILL, MEMBER:
This is OPs appeal under Section 15 of the Consumer Protection Act (herein after called as 'Act') against the order dated 01.12.2009 passed by the Learned District Consumer Disputes Redressal Forum, Amritsar (hereinafter called as 'District Forum') vide which the complaint of the complainant/respondent was partly allowed and the OP/appellant was directed to pay to the complainant a sum of Rs.1,67,000/- which allegedly released by the OP without verifying the signatures of the complainant with First Appeal No.204 of 2010 2 the specimen signatures, Rs.3,000/- as compensation alongwith Rs.2,000/- as litigation expenses.
2. Brief facts of the case are that the complainant/respondent was having a savings bank account bearing No.2922 with the OP/appellant and obtained a cheque book from the OP bank. One day the complainant left his cheque book in the bank and could not find the same despite best efforts the complainant in order to avoid any misuse of the cheques wrote a letter to the OP and handed over the same to the Executive Officer who assured the complainant that the payment of the cheques will be stopped and the complainant in good faith and being customer of the OP for the last more than 15 years returned back. It is further alleged that in the month of September 2008, when the complainant got a statement from the OP relating to the account and came to know that the huge amount approximately Rs.1,50,000/- had been withdrawn against the cheques which were lost and were not bearing the signatures of the complainant which infact scanned from the original signatures with the OP. The aforesaid cheques were got enchased illegally from 1.7.2008 and thereafter on various dates because the complainant never withdrawn any payment himself during the said period. The complainant also moved representations in this respect to the OP on 23.09.2008 and 4.10.2008.
While alleging deficiency and unfair trade practice, the complainant has filed the present complaint with a direction to the OP to recover the amount against the cheques illegally encashed from the account of the complainant as mentioned above and adjust the same in the account of the complainant and Rs.50,000/- as compensation alongwith litigation expenses.
3. Upon notice the OP appeared and filed their written reply by taking preliminary objections that the complaint is false and frivolous and not maintainable under the law; complainant is not a consumer and that First Appeal No.204 of 2010 3 the District Forum had no jurisdiction to try the complaint. Otherwise, on merits it was admitted that the complainant obtained cheque books relating to his savings bank account. It is denied that the cheque book was left in the bank and could not be found despite best efforts. It was also denied that any letter was written by the complainant or handed over to the executive officer or ever advised the bank or any of its officials regarding stop payment of the cheques contained in alleged pass book. It is submitted that the amounts of the cheques which were issued by the complainant were duly debited to his account. It was denied that said cheques do not bear signatures of the complainant but all the cheques referred to by the complainant were duly signed by him, therefore, there is no deficiency on the part of the OP and prayed for dismissal of the complaint.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations the complainant filed affidavit Ex.C-1 of Sh. M.S.Goraya, Ex.C-2, C-3 are the letters, Ex.C-4 is the account statement, Ex.C-5 is the affidavit of Sh. M.S.Goraya, Ex.C-6 to C- 14 are the copies of cheques, Ex.C-15 receipt from bank, Ex.C-16 is the affidavit of Sukhpreet Kaur, hand-writing expert, Ex.C-17 report of hand writing expert and Ex.C-18 are the photographs. On the other hand, the OP tendered into evidence by way of affidavit Ex.RW-1/A, RW-2/A and documents Ex.R-1 receipt, Ex.R-2 to Ex.R-4 letters, Ex.R-5 statement, Ex.R-6 & R-7 are the form through which cheque books are got issued.
6. After hearing the learned counsel for the parties and have perused the record, the learned District Forum allowed the complaint vide impugned order dated 01.12.2009 on the ground that at the time of releasing the payment, the OP has not performed their duty efficiently and due to their carelessness and negligence, this incident has happened as a First Appeal No.204 of 2010 4 result of which the OP has committed deficiency in service during the performance of their duty.
7. Aggrieved by the order of the District Forum appellant/OP has come up in the appeal with the ground that the case of the complainant was mis-conceived in the eyes of law, the same is also bad for non-joinder or mis-joinder of the parties. Further stated that the complainant has not produced any evidence/letter on record to substantiate his allegations that he had written a letter to the bank to stop the payment of the cheque, as such, no letter was ever received. He further, submitted that signatures on the cheques were valid and cheques has been rightly enchased by the bank authorities and the payments were fully paid after tallying the signatures of the complainant. It was further stated that as per the version of the complainant that one cheque book was lost whereas, he has claimed Rs.1,50,000/- which was withdrawn by the cheques belonging two cheque books issued to him which shows that the complainant has not come to the forum with clean hands and he is not entitled to any relief and prayed for acceptance of the appeal.
8. We have perused the affidavits/documents and heard the arguments of the learned counsel for the parties.
9. It is admitted that the complainant had a savings bank account No.2922 with the OP and two cheque books was issued to him in his favour. The version of the complainant/respondent that one cheque book was lost in the bank and payment of Rs.1,50,000/- was withdrawn from the bank by the said lost cheque book Ex.R-6 & R-7 are the requisition slips submitted by Sh. M.S.Goraya duly signed by him for getting the cheque books. Ex.C-6 & C-7 are the cheques signed by the complainant and on the back side of the cheques signature of same Vinod Kumar who got the cheque book issued vide requisition slips Ex.R-7 on the instructions of the complainant. Signature of Vinod Kumar also appear in the cheque book First Appeal No.204 of 2010 5 register Ex.R-5. It shows that Vinod Kumar is a confident man of the complainant through whom the cheque book was got issued. In complaint, the complainant alleged in para no.2 that one cheque book was lost and it could not be traced despite efforts. Regarding the loss of the alleged cheque book the complainant has not produced any rapat on the record and never got case registered against anybody for the alleged loss of cheque book. All the cheques were issued by the complainant after tallying his signature.
10. We have seen the cheques on the file, these cheques are of two series, one is series 11 and other is series 12. It creates doubt of the said versions that one cheque book was lost. The complainant has not mentioned which cheque book was lost of series 11 or series 12. The cheques from which the amount was encashed, they are of two series and duly signed by the complainant. In complaint he has mentioned that he wrote a letter to stop the payment but no letter has been produced by the complainant in evidence. He has not mentioned the name of the official to whom he handed over the said letter to stop the payment of the cheque, no date has been mentioned when it was sent.
11. After seeing the disputed cheques the name of the Vinod Kumar, Anju Bala and Madhu Bala has signed on the backside of the cheque and enchased those cheques which were issued by the respondent/complainant and the complainant has not mentioned, who are these persons and why he has not lodged the FIR against these persons. Vinod Kumar is the same person who has issued the cheque book vide requisition slip Ex.R-7 on the behalf of the complainant. It creates doubt that the complainant has not come to the forum with clean hands which clearly shows that the case set up by the complainant was patently false.
12. In view of the above discussions, we are of the view that there is merit in the appeal and the same is accordingly, allowed. The impugned First Appeal No.204 of 2010 6 order passed by the learned District Forum is set-aside. Parties are left to bear their own costs.
13. The arguments in this appeal were heard on 23.08.2013 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
15. Amount of Rs.5,000/- was deposited by the appellant on 05.10.2009 with this Commission. The respondent no.1/complainant would be entitled to withdraw the said amount with interest accrued thereon, shall be remitted by the registry to the respondent no.1 complainant after the expiry of the period of revision, if no stay order is received from the Hon'ble National Commission.
(Gurcharan Singh Saran)
Presiding Judicial Member
(Piare Lal Garg)
Member
September 02, 2013 (J.S.Gill)
Rs Member
1
First Appeal No.573 of 2009
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.573 of 2009 Date of institution: 22.04.2009 Date of Decision: 17.09.2013 Roop chand aged 75 years, son of Nava Ram, R/o Village Chahlan Patti, Bhiwanigarh, Tehsil and District Sangrur.
...Appellant/complainant Versus Roop Chand S/o Argun Singh R/o Baba Bishan singh Nagar, Street No.2, Bhiwanigarh, Tehsil and District Sangrur.
...Respondent/OP First Appeal against the order dated 27.03.2009 of the District Consumer Disputes Redressal Forum, Sangrur.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Piare Lal Garg, Member.
Shri Jasbir Singh Gill, Member.
Argued by:-
For the appellant : Sh. P.S.Sekhon, Advocate
For respondent : Sh. Dinesh Kumar, Advocate
J.S.GILL, MEMBER:
This appeal has been filed by the complainant against the order dated 27.03.2009 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short 'the District Forum') in Consumer Complaint No.287 of 2008 whereby the complaint of the complainant was dismissed as complicated questions of law and facts are involved with liberty to the complainant to seek his remedy before the Civil Court.
2. The complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 against the OP on the allegations that he purchased a plot at Badial Road, Bhawanigarh. He approached the OP who is working as a mason and a contractor, for the purpose of construction of his house. In the month of May 2007, the OP started construction work. As per 2 First Appeal No.573 of 2009 agreement, it was the responsibility of OP to arrange the labour for the work of construction and to pay labour charges from his own pocket. At the time of agreement, it was settled between the parties that the complainant would provide construction material as per choice of the OP. Complainant's grievance is that the OP did not carry out the construction of lintel property, with the result, when shuttering was removed, the roof caved in, of which OP was complained, where after, latter agreed to reconstruct the lintel after making good the loss of the raw material, with the result, complainant had to purchased raw material such as, cement, sand, iron rods, crusher, stone and electric fittings etc and also paid rent for the shuttering, and thus spent a sum of Rs.70,000/-. After completing the construction work, complainant demanded from OP a sum of Rs.70,000/- as damages, which OP failed to pay. Thus, alleging deficiency in service on the part of the OP, the complainant filed the present complaint asking for reliefs of directing OP to pay to the complainant a sum of Rs.70,000/- as damages for loss of material, Rs.50,000/- as compensation for mental agony, pain and harassment, Rs.10,000/- as litigation expenses.
3. Upon notice the OP replied that it is not denied that the OP was engaged as such for the construction of his house. But, it is denied that the Op worked on contract basis as a contractor. Rather, OP's case is that OP was engaged on daily wages. It is also denied that the OP was responsible for arranging labour and making payment to them from his own pocket. OP's case is that, though, complainant bound to provide the raw material, but, he always provided the building material of his own choice. The allegation of lintel having caved in is also denied. According to the OP, the present complaint is a counter blast, as complainant approached him to pressurize to resile his own statement in a compliant of Schedule Caste and Schedule Tribes Prevention of Atrocity Act read with Section 323 & 324 IPC filed by one Jarnail Singh against the complainant's work.3
First Appeal No.573 of 2009
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. In support of his allegations the complainant filed affidavit Ex.C-1 of Sh. Roop Chand Ex.C-2 to Ex.C-5 are the bills, Ex.C-6 to Ex.C-13 are the photographs, Ex.C-14 to Ex.C-17 are the bills, Ex.C-18 to Ex.C-25 are the photographs, Ex.C-26 to Ex.C-33 negative of the photographs and Ex.-34 affidavit of Sh. Bant Singh. On the other hand, the OP tendered into evidence affidavit of Sh. Roop Singh as Ex.R-1, Ex. R-2 is the order, Ex.R-3 is the order, Ex.R-4 & Ex.R-5 are the affidavits of Sh. Balwant Singh and Sh. Gulab Singh.
6. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum dismissed the complaint as complicated questions of law and facts are involved with liberty to the complainant to seek his remedy before the Civil Court.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal on the ground that damage amount of Rs.70,000/- of raw material due to negligence of the OP who had not paid any amount uptil, which is a clearly deficiency on the part of the OP. Further stated that the roof was demolished and the same was again constructed by the OP and in the photographs it was also made up the entire demolish roof but the learned District Forum has not considered the evidence of photographs, who is an independent witness. He further stated that District Forum District Forum has wrongly dismissed the complaint only on the ground that against the son of the complainant and in that case OP is witness and prayed for acceptance of the appeal.
8. We have heard the arguments of the Learned Counsel for the parties and have perused the record.
9. As per the order of the learned District Forum in any case, require elaborate enquiry and through prop by examination and cross-examination of witness including expert 4 First Appeal No.573 of 2009
10. The Court/Forum of the District Forum is presided over by the Senior Judicial Officer of the rank of District Judge, therefore, he can very well distinguish between the correct and wrong evidence on the record; to record the findings. It was held by the Hon'ble National Commission in "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287. In that case - plea that case involves complicated questions of act and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have complete their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. It was held by the Hon'ble Kerala State Commission, Thiruvananthapuram in case "Manuel Sons Investment and Leasing Company Ltd. versus K.T. Sebastian",, III (2005) CPJ 468 that "complaint dismissed by the Forum as complicated questions of law and facts involved which cannot be adjudicated in summary proceeding - Fora not justified in relegating the dispute to Civil Court - Matter remitted back with directions to adjudicate upon the dispute on the basis of evidence." It was further held by the Hon'ble Supreme Court in case "CCI Chambers Co-op Housing Society Vs. Development Credit Bank Ltd.", III (2003) CPJ 9 (SC). Complaint was dismissed by the District Forum as complicated questions of law and facts are involved, which cannot be adjudicated in summary proceedings. It was observed that Fora was not justified in relegating the dispute to the Civil Court-
matter remanded with directions to adjudicate the dispute on the basis of evidence after relying upon the judgment of the Hon'ble Supreme Court referred above. It was also observed by the Hon'ble Supreme Court in the case of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 that:-
'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'. 5 First Appeal No.573 of 2009
9. It was held that in these circumstances the matter should not be relegated to the Civil Court.
10. In view of these circumstances, we are of the opinion that the order passed by the learned District Forum dismissing the complaint of the complainant and relegated the matter to the Civil Court being complicated questions of law and facts is not a correct order.
11. In view of the above, we accept the appeal and the case is remanded back to the learned District Forum. The impugned order of the District Forum is set-aside.
12. The parties through their counsel are directed to appear before the learned District Forum on 29.09.2013, who will decide the matter in accordance with law as both the parties have already completed their evidence.
13. Copy of the judgment alongwith record of the District Forum be sent back forthwith.
14. The arguments in this appeal were heard on 11.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member (Jasbir Singh Gill) Member September 17, 2013 Rashmi 6 First Appeal No.573 of 2009 In this case both the parties have led their evidence and the evidence has already been tendered and completed.
8. Complainant filed the appeal on the ground that learned District Forum wrongly dismissed the complaint only on the ground that against the son of the complainant and in that case OP is witness. In view of the matter District forum assessed that there was complicated questions of laws and facts are involved as such as the complainant's compliant is based on some terms and agreements.
As detailed above, the case SLP 24810/2012 titled 'State of Punjab Vs. Dinesh Bagga' is now fixed for hearing before the Hon'ble Supreme Court of India on 05.8.2013. On the last date of hearing the following order was passed by the Hon'ble Apex Court:-
"Learned Counsel appearing for respondent no.1 submits that subsequently selection was conducted on 11.4.2013 and appointment order has already been issued to the selected person.
List after ten days, to enable the learned counsel for the petitioner to ascertain the position."
After this order, a clarification was sought from the Government of Punjab, vide this Commission's letter no. 4816 dated 17.4.2013, as to whether the appointment letter in respect of Ms. Surinder Pal Kaur, whose name was recommended by the Selection Committee in its meeting held on 11.4.2013 as Lady Member of State Commission, has been issued.
Now, vide letter under reference, the Government of Punjab has replied that the case regarding appointment of Lady Member in the State Commission has been submitted to the Hon'ble Minister for Food, Civil Supplies and Consumer Affairs but no final decision has been taken by the Government of Punjab till date and the matter is under consideration with the Government of Punjab. If approved, a copy of the letter of the Government of Punjab along with copy of the advertisement issued by this Commission and a copy of the proceeding of the Selection Committee held on 11.4.2013 whereby the Section of Ms, Surinder Pal Kaur was recommended, may be forwarded to Sh. Saurabh Ajay Gupta, Advocate on record, in Supreme Court of India thorough e-mail and Mr. Suresh Pahwa, Senior Assistant may be directed to visit Delhi and meet the Advocate on record well before the date fixed that is 5.8.2013 so that the record can be produced before the Hon'ble Supreme Court of India, if required.
. Registrar/ 29.7.2013
Hon'ble President
To
The Registrar,
State Consumer Disputes Redressal Commission, Pb. Chandigarh.
R/Madam, With due respect, it is humbly submitted that due to urgent work, I am unable to attend the office for second half of today i.e. 08.08.2013 and oblige.
Thanking you, Yours Faithfully (Suresh Pahwa) Reader Date:-08.08.2013 To The Hon'ble President, State Consumer Disputes Redressal Commission, Pb.
Chandigarh.
Respected Sir, With due respect, it is humbly submitted that I could not attend the office on 24.07.2013 due to urgent work. So, kindly grant me leave for one days.
Thanking you, Yours Faithfully Jasbir Singh Gill Member Date:-22.07.2013 I have received a telephonic message from Ms. Rupinder Kaur that due to urgent work she is unable to attend the office for first half of today i.e. 23.09.2013.
Submitted for necessary actions.
(Rashmi) Steno-typist To The Registrar, State Consumer Disputes Redressal Commission, Pb. Chandigarh.
R/Madam, With due respect, it is humbly submitted that due to the death of my brother-in-law, I had not attended the office on Tuesday i.e.30.07.2013. kindly grant me casual leave for one day.
Thanking you, Yours Faithfully (Nirmaljit Kaur) Superintendent Date:-01.08.2013 To The Registrar, State Consumer Disputes Redressal Commission, Pb. Chandigarh.
R/Madam, With due respect, it is submitted that I could not attend the office for second half day of today i.e 16.8.2013 due to some urgent work. So, Kindly grant me second half day leave for 16.8.2013.
Thanking you, Yours Faithfully (Rashmi) Steno-typist To The Registrar, State Consumer Disputes Redressal Commission, Pb. Chandigarh.
R/Madam, With due respect, it is submitted that I had not attend the office on 22.8.2013 due to illness. So, Kindly grant me one day casual leave for 22.8.2013.
Thanking you, Yours Faithfully (Rupinder) SSS I have received a telephonic message from Ms. Rupinder Kaur that due to urgent work she is unable to attend the office for first half of today i.e. 23.09.2013.
Submitted for necessary actions.
(Rashmi) Steno-typist 1 First Appeal No.915 of 2011 2nd Addl. Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No. 915 of 2011 Date of institution: 09.06.2011 Date of Decision : 22.08.2013 Gurminder Singh S/o Sh. Ajmer Singh R/o House No.821, Street No.5-B, (Tanki Wali Gali) Dashmesh Nagar, Moga, District Moga.
...Appellant Versus United India Insurance Company, 151-A, Industrial Area, Cheema Chowk, Ludhiana Punjab, through its Manager, LTD. Sector 17, Chandigarh.
...Respondent First Appeal against the order dated 02.05.2011 of the District Consumer Disputes Redressal Forum, Ludhiana.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member. Shri Piare Lal Garg, Member.
Shri Jasbir Singh Gill, Member.
Argued by:-
For the appellant : None
For respondent : Sh. Munish Goel, Advocate
JASBIR SINGH GILL, MEMBER:
This appeal has been filed by the complainant/appellant (hereinafter called as 'appellant') against the order dated 2.5.2011 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short 'the District Forum') where the complaint of the appellant was dismissed.
2. Brief facts of the case are that Sh. Gurminder Singh is the owner of the vehicle Mahindra Scorpio bearing chasis No. MAITA2BSC52H79399 Engine No.BS54H43258 and Registration No.PB-29-F-9595 and the same was insured with OP (herein after called as 'respondent') vide policy no.201002/31/08/01/00001376. On 10.06.2009 at 10:00 PM during the insured 2 First Appeal No.915 of 2011 period an accident took place while the same was driven by Gurdeep Singh. An FIR was lodged with the Police Station Sadar, Roopnagar and the appellant got the estimate of repair from Mahindra Motors and the estimated amount of repair come out to be more than assured amount because the vehicle is totally damaged. It was further pleaded that the appellant also spend Rs.6,000/- for towing the vehicle from the place of accident to the Company workshop for its estimation. The claim was lodged by the appellant with the respondent but they repudiated the same vide letter dated 22.04.2010 on the ground that driver of the vehicle was not holding valid driving license to drive the vehicle. However, it was pleaded that driver of the vehicle Gurdeep Singh was holding a valid driving license issued by DTO Office, Ludhiana which was valid up to 4.8.2012. The repudiation of the claim is illegal and arbitrary, amounting of deficiency in service.
Hence, it was prayed that the respondent be directed to pay compensation of Rs.5,00,000/- on the account of deficiency in service, harassment, litigation cost along with alternative relief.
3. Upon notice the respondent/OP filed written reply that the learned District Forum has no jurisdiction to try and decide the complaint and the complaint is not maintainable. M/s R.P.Gupta & Company was appointed to verify the genuineness and validity of driving license of Gurdeep Singh from the DTO, Ludhiana whereas he submitted the report that the driving license of the driver was not valid at the time of accident and the license was only to drive motorcycle, LMV/ HMV only. On merits it was admitted that the appellant has obtained the insurance policy by paying a premium but the appellant has violated the terms and conditions of the policy by handing over the vehicle to Sh. Gurdeep Singh who was not holding a valid driving license on 10.06.2009 as license was expired on 25.10.2008 and was renewed on 05.08.2009 after the gap of more than 7 months and hence prayed for dismissal of the complaint.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
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5. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum dismissed the complaint vide impugned order dated 02.05.2011 on the ground that the driver of the vehicle was not having a valid driving license at the time of accident.
6. Aggrieved by this order the appellant has come up in the appeal on the ground that as per Section 149 of the Motor Vehicle Act sub Section (2) the driver once licensed unless he is dis-qualified would continue to be duly licensed persons for the purpose of chapter (xi) of the Act. It is submitted that Section 149(2) (1) (ii) of the Motor Vehicle Act empowers the insurance company to repudiate the claim wherein vehicle is damaged due to accident to which driver of the vehicle who does not hold a valid license is responsible in any manner. As in this case the negligent act was of the vehicle bearing No.HP-34-3021 which caused accident. So the insurance company has wrongly repudiated the claim. He further submitted that insurance company raised only one ground as Section 149 (2) of the MVA and this section only relates to, third party claims and it does not apply in the present case and prayed for acceptance of the appeal.
7. We have heard the arguments of the Learned Counsel for the respondent and have perused the record. None has appeared for the appellant.
8. It is admitted that Gurminder Singh son of Ajmer Singh had insured Mahindra Scorpio with the United India Insurance Company Ltd. It is also admitted that on 10.06.2009 the vehicle was met with an accident against the truck bearing No.HP-3021 which was being driven rashly and negligently at a high speed and hit in front of the vehicle. It is also admitted that FIR no.67 was lodged with the Police Station Sadar Roopnagar. The only ground for non payment of the claim by the respondent is that driver who was driving the vehicle at the time of accident was not holding valid license. The respondent submitted the report prepared by Surinder Singh, Clerk of DTO Office, Jallandhar whereas, he has stated that license No.56064 which was issued in favour of Gurdeep Singh had 4 First Appeal No.915 of 2011 expired on 25.10.2008 authorising him to drive Motorcycle, LMV/HMV only. This license was renewed from 5.8.2009 to 4.8.2012 whereas, alleged accident has taken place on 10.06.2009 and on the date Gurdeep Singh was not holding a valid and effective driving license.
9. In case "United India Insurance Co. Ltd. Vs. Sangram Singh Yadav" CPR 2013(2) page 51(NC) the Hon'ble National Commission held that the burden of the proving fact that driver of the vehicle was possessing a valid driving license at the time of the accident is on the complainant.
10. As mentioned in Section 15 of the renewal Act it is stated as under:-
"i) Any licensing authority may, on application made to it, renew a driving license issued under the provisions of this Act with effect from the date of its expire:
Provided that in any case where the application for the renewal of a license is made more than thirty days after the date of its expiry, the driving license shall be renewed with effect from the date of its renewal."
In this case no application for renewal was made within 30 days from the date of expiry as the driving license was expired on 25.10.2008 and it was renewed on 5.8.2009 after the gap of 8 months and 11 days then its date of renewal will be w.e.f. 5.8.2009. Therefore, it is clear from the above discussion that driver of the vehicle was not holding any valid driving license at the time of the accident. It is a violation of the provisions of the Motor Vehicle Act, 1988 and breach of terms and conditions of the insurance policy.
11. In view of the above discussion we are of the opinion that the order passed by the learned District Forum is legal and valid and the appeal is accordingly dismissed with no order as to costs.
12. The arguments in this appeal were heard on 06.08.2013 and the order was reserved. Now the order be communicated to the parties.
13. The appeal could not be decided within the statutory period, due to heavy pendency of the Court cases.
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Parties are left to bear their own costs. Copies of the order be sent to the parties free of costs.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member (Jasbir Singh Gill) Member 22nd August, 2013 Rashmi