State Consumer Disputes Redressal Commission
Sh. Dharam Singh. vs Shree Ram General Insurance Co. Ltd. & ... on 5 March, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 158/2018
Date of Presentation: 20.06.2018
Order Reserved on : 30.10.2018
Date of Order : 05.03.2019
......
Dharam Singh son of Late Shri Khajana Ram resident of Village
and Post Office Kot Tehsil Ghumarwin District Bilaspur H.P.
...... Appellant/Complainant
Versus
1. Shree Ram General Insurance Company Ltd. E-8 EPIP
RICO Sitapura Jaipur Rajasthan-302022 India.
2. Shree Ram Transport Finance Company Limited House
No.3 Near College Chowk NH-21 Bilaspur District
Bilaspur H.P.
......Respondents/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Vijay Bhatia Advocate.
For Respondent No.1: Mr. Jagdish Thakur Advocate.
For Respondent No.2: Mr. Rahul Thakur Advocate vice
Mr. Ashwani Kaundal Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes. Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) 26.04.2018 passed by Learned District Forum in consumer complaint No.53/2013 titled Dharam Singh Versus Shree Ram General Insurance Company Ltd. & Anr.
Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is registered owner of Truck No. HP-12-8753. It is pleaded that vehicle in question was financed by opposite party No.2 vide agreement dated 31.01.2011 for loan amount of Rs.342000/- (Three lac forty two thousand). It is further pleaded that vehicle in question met with accident on dated 05.11.2011 near Police Chowki Kalama District Ropar Punjab and vehicle of complainant was totally damaged in the accident. It is further pleaded that complainant engaged crane and took the vehicle from the place of accident to M/s. Sonu Enterprises Body Builders Bilaspur H.P. It is further pleaded that complainant requested the Insurance Company to make the payment to the complainant. It is further pleaded that Insurance Company did not pay the amount and thereafter complainant sold the damaged vehicle to junk dealer on dated 02.05.2012 at Mandi H.P. It is further pleaded that thereafter complainant deposited amount of Rs.130000/- (One lac thirty thousand) to opposite party No.2 on dated 03.05.2012 vide receipt No.AD- 2
Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) 4835861 and same was deducted from total loan amount of complainant. It is further pleaded that thereafter complainant submitted application before opposite party No.2 on dated 11.01.2012 for not insuring the vehicle. It is further pleaded that opposite party No.2 insured the vehicle w.e.f. 14.02.2012 to 13.02.2013 and charged Rs.16773/- (Sixteen thousand seven hundred seventy three) from the complainant. It is further pleaded that thereafter complainant again requested opposite party No.2 for the settlement of loan amount but opposite party No.2 did not settle the loan amount. It is further pleaded that there was balance loan amount of Rs.60096/- (Sixty thousand ninety six) but Financer demanded amount of Rs.126000/- (One lac twenty six thousand) from the complainant and committed deficiency in service. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that opposite party No.1 did not commit any deficiency in service. It is pleaded that after getting the information regarding accident opposite party No.1 deputed Surveyor-cum-Loss Assessor. It is further pleaded that Surveyor-cum-Loss Assessor has assessed the loss to the tune of Rs.10280/- (Ten thousand two hundred eighty) on repair basis which is already paid by opposite party No.1 as full and final settlement to the complainant. It is further 3 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) pleaded that Shri Ram General Insurance Company and Shri Ram Transport Finance Company are two different entities and they have nothing to do with each other. It is further pleaded that District Forum has no territorial jurisdiction to hear and decide the consumer complaint. It is further pleaded that complainant has no cause of action against opposite party No.1. Prayer for dismissal of consumer complaint against opposite party No.1 sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that complainant has no cause of action against opposite party No.2. It is pleaded that complainant is estopped from filing the present complaint by his own act, conduct, omission and commission. It is further pleaded that complainant is liable to pay amount of Rs.517506.55 (Five lac seventeen thousand five hundred six rupees and fifty five paise) as loan amount and complainant is defaulter. It is further pleaded that terms and conditions of the agreement are binding upon complainant. It is further pleaded that opposite party No.2 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.2 sought.
5. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed 4 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) by learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether it is expedient in the ends of justice and on the principles of natural justice to pass order under Consumer Protection Act 1986 after passing of Award by Arbitrator under Arbitration and Conciliation Act 1996?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ex.C-1 in evidence.
There is recital in affidavit that deponent is registered owner of Truck No.HP-12-8753. There is further recital in affidavit that vehicle in question was financed by opposite party No.2 vide agreement dated 31.01.2011 for loan amount of Rs.342000/- (Three lac forty two thousand). There is further recital in affidavit that vehicle in question met with accident on dated 05.11.2011 near Police Chowki Kalama District 5 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) Ropar Punjab and vehicle of the deponent was totally damaged in the accident. There is further recital in affidavit that deponent thereafter requested the Insurance Company to pay the damaged amount. There is further recital in affidavit that Insurance Company did not pay the amount and thereafter deponent sold the damaged vehicle to junk dealer on dated 02.05.2012 at Mandi H.P. There is further recital in affidavit that deponent deposited amount of Rs.130000/- (One lac thirty thousand) to opposite party No.2 on dated 03.05.2012 and same was deducted from total loan amount of the deponent. There is further recital in affidavit that there was balance loan amount of Rs.60096/- (Sixty thousand ninety six) but Financer demanded amount of Rs.126000/- (One lac twenty six thousand) from the deponent. There is further recital in affidavit that deponent requested many times for settlement of loan amount but loan amount was not settled. There is further recital in affidavit that opposite parties have caused financial loss, mental pain and tension to the deponent and did not provide proper service and have committed deficiency in service knowingly and intentionally. State Commission has carefully perused all the annexures filed by complainant.
9. Opposite party No.1 filed affidavit of Brij Bhushan Sharma Branch Manager in evidence. There is recital in the 6 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) affidavit that opposite party No.1 did not commit any deficiency in service. There is further recital in affidavit that after getting the information regarding accident opposite party No.1 deputed Surveyor-cum-Loss Assessor. There is further recital in affidavit that Surveyor-cum-Loss Assessor has assessed the loss to the tune of Rs.10280/- (Ten thousand two hundred eighty) on repair basis. There is further recital in affidavit that loss assessed by Surveyor-cum-Loss Assessor stood paid by opposite party No.1 as full and final settlement of claim. There is further recital in affidavit that vehicle was not totally damaged. There is further recital in affidavit that only meager loss was caused in the accident. There is further recital in affidavit that opposite parties No. 1 & 2 are two different entities and they have nothing to do with each other. There is further recital in affidavit that vehicle was used for commercial purpose and consumer complaint is not maintainable. There is further recital in affidavit that complainant has no cause of action against opposite party No.1. There is further recital in affidavit that opposite party No.1 did not commit any deficiency in service.
10. Opposite party No.1 also filed affidavit of Deepak Sood Surveyor-cum-Loss Assessor in evidence. There is recital in the affidavit that deponent is authorized Surveyor-cum- Loss Assessor. There is further recital in affidavit that 7 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) deponent has conducted the survey and assessed the loss to the tune of Rs.10280/- (Ten thousand two hundred eighty) on repair basis. State Commission has carefully perused all the annexures filed by opposite party No.1.
11. Opposite party No.2 filed affidavit of Archit Sant. There is recital in the affidavit that vehicle No.HP-12-8753 was financed by opposite party No.2 for loan amount of Rs.342000/- (Three lac forty two thousand). There is further recital in affidavit complainant is liable to pay amount of Rs.517506.55 (Five lac seventeen thousand five hundred six rupees and fifty five paise) as loan amount to the opposite party No.2 upto 22.08.2014 and complainant is defaulter. There is further recital in affidavit that opposite party No.2 did not commit any deficiency in service. State Commission has carefully perused all the annexures filed by opposite party No.2.
12. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for amount of Rs.91727/- (Ninety one thousand seven hundred twenty seven) as damaged amount of vehicle from Insurance Company and on this ground appeal filed by complainant be allowed is decided accordingly. Insurance Company has placed on record Claim Discharge-cum-Satisfaction Voucher. As per Claim Discharge-cum-Satisfaction Voucher placed on 8 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) record complainant has received amount of Rs.10280/- (Ten thousand two hundred eighty) from Insurance Company as full and final settlement with respect to his claim. Claim Discharge-cum-Satisfaction Voucher Annexure R-4 is signed by complainant in English language. There is no evidence on record in order to prove that complainant received the amount of Rs.10280/-(Ten thousand two hundred eighty) under protest. There is also no evidence on record in order to prove that signature of insured was obtained by Insurance Company under coercion or undue influence.
13. In view of the fact that complainant himself received amount of Rs. 10280/-(Ten thousand two hundred eighty) from the Insurance Company as full and final settlement with respect to his claim voluntarily it is held that at this stage complainant is estopped from agitating the matter against the Insurance Company subsequently. See 2013 (1) CPJ 440 NC titled Ankur Surana Versus United India Insurance Co. Ltd. & Ors. See 2013 (1) CPJ 73 NC titled K.B. Sport Wear Goods World Wide Versus New India Assurance Co. Ltd. See 2009 (2) CPC 436 NC National Insurance Co. Ltd. Versus M/s. Vasanthi Marine Foods Ltd. See. 2010 (IV) CPJ 335 NC titled New India Assurance Co. Ltd. Versus C.P. Mathur. See 2012 (III) CPJ 281 NC titled Avon Automobiles Versus National Insurance Co. Ltd. & Anr. See 2009 (3) CPJ 9 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) 158 NC titled Sidra Rama Thombare Versus United India Insurance Co. Ltd.
14. It is also proved on record that complainant has executed Loan-cum-Hypothecation Agreement with opposite party No.2 and it is also proved on record that complainant obtained loan amount from opposite party No.2 vide agreement dated 31.01.2011 to the tune of Rs.342000/- (Three lac forty two thousand) alongwith interest. It is also proved on record that opposite party No.2 instituted claim before the Arbitrator under Arbitration and Conciliation Act 1996 against complainant and Arbitrator Shri Mehar Singh Additional District and Sessions Judge (Retd.) has passed award No. BL 27 of 2015 on dated 24.08.2015 in favour of Finance Company. Arbitrator has awarded amount of Rs.420698/- (Four lac twenty thousand six hundred ninety eight) to the Finance Company and also awarded interest and other charges from the date of Award to the Finance Company. There is no evidence on record in order to prove that complainant has filed appeal under Arbitration and Conciliation Act 1996. State Commission is of the opinion that in view of Award passed by Arbitrator under Arbitration and Conciliation Act 1996 against complainant qua similar matter it is not expedient in the ends of justice and on the principles of natural justice to interfere in the order of learned 10 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) District Forum. See 2007 (I) CPJ 34 NC titled Instalment Supply Ltd. Versus Kangra Ex-serviceman Transport Co. & Anr. See 2018 (1) CLT 312 NC titled M/s. Manas Constructions Versus L&T Finance Ltd. & Ors.
15. Submission of learned Advocates appearing on behalf of opposite parties that order of learned District Forum is in accordance with law and in accordance with proved facts and on this ground appeal filed by complainant be dismissed is decided accordingly. Complainant has himself admitted that he has sold the vehicle to junk dealer on dated 02.05.2012. It is also proved on record that complainant has executed Loan-cum-Hypothecation agreement with opposite party No.2 and it is well settled law that complainant was bailee of vehicle only and Finance Company was bailor of the vehicle in question. It is well settled law that under hire purchase agreement it is the Finance Company who is owner of vehicle and the person who takes the loan retain the vehicle as bailee/trustee. State Commission is of the opinion that complainant was not legally competent to sell the vehicle to junk dealer on dated 02.05.2012 without express and implied consent of the Finance Company. It is well settled law that party could not be allowed to take benefit of its own wrong in quasi-judicial proceedings. See AIR 1979 SC 850 Trilok Singh & Ors. Versus Satya Deo Tripathi. Point No.1 is decided accordingly.
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Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum is affirmed. Parties are left to bear their own litigation costs before State Commission. Loan-cum-Hypothecation Agreement executed between complainant and opposite party No.2, Award No. BL 27 of 2015 dated 24.08.2015 passed by Shri Mehar Singh Additional District and Sessions Judge (Retd.), Claim Discharge-cum-Satisfaction Voucher signed by complainant shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 05.03.2019.
*GUPTA* 12 Dharam Singh Versus Shree Ram General Insurance Co. Ltd. & Anr. (F.A. No.158/2018) 13