State Consumer Disputes Redressal Commission
M/S Ram Hari Cars Pvt. Ltd. vs Sh. Rachit Sood. & Anr. on 13 October, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
(A) First Appeal No. : 13/2017
Date of Presentation: 17.01.2017
Order Reserved On : 11.08.2017
Date of Order : 13.10.2017
......
M/s. Ram Hari Cars Pvt. Limited Village Rani Ki Bain Post
Office Gutkar Tehsil Balh District Mandi H.P. through its
Managing Director Shri Gursev Singh.
...... Appellant/Opposite party No.2
Versus
1. Rachit Sood s/o Shri Vinod Kumar Director Mahan Roller
Floor Mills Pvt. Ltd. Tehsil & District Kullu H.P.
......Respondent /Complainant
2. The New India Assurance Company Limited Akhara
Bazar Kullu Branch through its Branch Manager.
......Respondent / Opposite party No.1
For Appellant : Mr. Sumit Raj Sharma Advocate vice
Mr. Kailash Behl Advocate.
For Respondent No.1: Mr. T.K. Verma Advocate
For Respondent No.2: Mr. Jagdish Thakur Advocate
(B) First Appeal No. : 134/2017
Date of Presentation: 24.01.2017
Order Reserved On : 11.08.2017
Date of Order : 13.10.2017
......
New India Assurance Company Limited Akhara Bazaar
Kullu Branch through its Senior Divisional Manager New India
Assurance Company Limited Divisional Office 3rd Floor Block
No.7 SDA Complex Kasumpti Shimla-9 H.P.
...... Appellant/Opposite party No.1
Versus
1. Rachit Sood s/o Shri Vinod Sood Director Mahan Roller
Floor Mills Pvt. Ltd. Tehsil & District Kullu H.P.
...Respondent /Complainant
M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017)
&
New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017)
2. M/s. Ram Hari Cars Pvt. Limited Village Rani Ki Bain
Post Office Gutkar Tehsil & District Mandi H.P. through
its Managing Director.
......Respondent / Opposite party No.2
For Appellant : Mr. Jagdish Thakur Advocate
For Respondent No.1 : Mr. T.K. Verma Advocate
For Respondent No.2: Mr. Sumit Raj Sharma Advocate vice
Mr. Kailash Behl Advocate.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Both appeals i.e. F.A. No.13/2017 and F.A. No. 134/2017 filed against the same order passed by learned District Forum. Both appeals consolidated and disposed of vide same order in order to avoid conflicting orders. Both appeals filed against order dated 06.12.2016 passed by Learned District Forum in consumer complaint No.25/2015 title Rachit Sood Versus The New India Assurance Company Limited & Anr.
Brief facts of Case:
2. Complainant Rachit Sood filed consumer complaint under section 12 of Consumer Protection Act 1986 1 Whether reporters of the local papers may be allowed to see the order? Yes. 2 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) against opposite parties pleaded therein that complainant is registered owner of vehicle Fiat Linea having registration No. HP-34B-0022 which met with accident on dated19.02.2015. It is pleaded that complainant suffered loss of Rs.168666/- (One lac sixty eight thousand six hundred sixty six). It is further pleaded that vehicle was insured with opposite party No.1 i.e. New India Assurance Company vide policy No. 35240031140100001846. It is further pleaded that complainant sent accidental vehicle for repair to the workshop of opposite party No.2. It is further pleaded that complainant submitted all relevant documents of accident to opposite party No.1. It is further pleaded that opposite party No.1 did not settle claim of complainant. It is further pleaded that opposite parties committed deficiency in service. Complainant sought relief for payment of Rs.168666/-(One lac sixty eight thousand six hundred sixty six) alongwith interest @12% per annum. Complainant also sought additional relief of Rs.100000/- (One lac) as damage for harassment and mental tension.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complaint is not maintainable. It is pleaded that insurance policy was automatically cancelled void ab initio on account of dishonour of cheque issued by complainant in lieu of payment of premium. It is admitted 3 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) that vehicle was insured with opposite party No.1. It is further pleaded that complainant sent cheque No. 002478 amounting to Rs.8740/- (Eight thousand seven hundred forty) dated 07.07.2014 in lieu of payment of premium of vehicle and it is further pleaded that cheque was presented before bank for encashment but the same was dishonoured vide memo dated 17.07.2014 on ground of exceeds arrangement. Prayer for dismissal of complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that complainant has not approached District Forum with clean hands. It is pleaded that complaint is not maintainable against opposite party No.2. It is further pleaded that District Forum has no jurisdiction to entertain and try complaint. It is further pleaded that complainant is estopped by his own act and conduct to file present complaint. It is further pleaded that complainant did not pay any repairs charges and it is further pleaded that vehicle is parked in the premises of opposite party No.2 which is causing harassment to opposite party No.2 in day to day working. It is further pleaded that opposite party No.2 is legally entitled to parking charges from the complainant. It is further pleaded that contract of insurance policy is between complainant and opposite party No.1. Prayer for dismissal of complaint sought.
4
M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017)
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
6. Learned District Forum allowed the complaint and ordered opposite party No.1 to settle claim of complainant in view of estimate prepared by opposite party No.2. Learned District Forum further ordered that opposite party No.2 would carry out necessary repairs of vehicle of complainant within one month of order. Learned District Forum further ordered that if complainant would not satisfy with the settlement of claim then complainant would be at liberty to file fresh complain on same cause of action. Learned District Forum further ordered that opposite parties would pay sum of Rs.5000/- (Five thousand) jointly and severally to the complainant as compensation. Learned District Forum further ordered that opposite parties would also jointly and severally pay sum of Rs.3000/-(Three thousand) to the complainant on account of litigation costs.
7. Feeling aggrieved against the order passed by learned District Forum opposite party No.2 i.e. Ram Hari Cars Pvt. Ltd. filed F.A. No. 13 of 2017 and opposite party No.1 i.e. New India Assurance Company Limited filed F.A. No.134 of 2017 before State Commission.
5
M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017)
8. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
9. Following points arise for determination in present appeals.
1. Whether appeal No.13/2017 title M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Whether appeal No.134/2017 title New India Assurance Company Limited Versus Rachit Sood & Anr. is liable to be accepted as mentioned in memorandum of grounds of appeal.
3. Final order.
Findings upon point No.1 with reasons relating to appeal No. 13 of 2017:
10. Complainant filed affidavit in evidence. There is recital in affidavit that complainant is registered owner of vehicle Fiat Linea having registration No. HP-34B-0022 which met with accident on dated19.02.2015. There is further recital in affidavit that complainant suffered loss of Rs.168666/- (One lac sixty eight thousand six hundred sixty six). There is further recital in affidavit that vehicle was insured with opposite party No.1 i.e. New India Assurance 6 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) Company Limited vide policy No. 35240031140100001846.
There is further recital in affidavit that complainant submitted all relevant documents of accident to opposite party No.1 but opposite party No.1 repudiated claim on the ground that cheque issued by complainant was dishonoured by drawee bank. There is further recital in affidavit that complainant did not receive any intimation regarding dishonour of cheque from opposite party No.1. There is further recital in affidavit that opposite parties committed deficiency in service and also committed unfair trade practice.
11. On dated 26.07.2016 opposite party No.1 filed affidavit of B.S. Kapoor Divisional Manager New India Assurance Co. Ltd. and there is recital in the affidavit that version filed by opposite party No.1 was drafted and prepared at the instance and under the instructions of deponent.
12. Opposite party No.2 filed in evidence affidavit of Vivek Kapoor General Manager posted in M/s. Ram Hari Cars Pvt. Ltd. There is recital in the affidavit that opposite party No.2 was not agent of opposite party No.1. There is further recital in affidavit that insurance of vehicle was got done through agent of opposite party No.1 namely Smt. Gagan Deep Kaur. There is further recital in affidavit that present dispute is between complainant and opposite party 7 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) No.1 only being insured and insurer. There is further recital in affidavit that agent of opposite party No.1 namely Smt. Gagan Deep Kaur issued cover note of insurance policy after receipt of cheque. There is further recital in affidavit that after accident of vehicle estimate of repairs was prepared to the tune of Rs.194779/- (One lac ninety four thousand seven hundred seventy nine) and same was given to opposite party No.1 for approval. There is further recital in the affidavit that opposite party No.2 did not commit any deficiency in service and did not commit unfair trade practice.
13. Submission of learned advocate appearing on behalf of opposite party No.2 i.e. M/s. Ram Hari Cars Pvt. Ltd. that insurance policy was executed between New India Assurance Co. Ltd. and Complainant Shri Rachit Sood on dated 15.07.2014 and name of M/s. Ram Hari Cars Pvt. Ltd. did not figure in the insurance policy and opposite party No.2 M/s. Ram Hari Cars Pvt. Ltd. is legally entitled for repair charges of vehicle is decided accordingly. We have perused certificate of insurance placed on the file of learned District Forum at pages 42 & 43. It is proved on record that insurance policy was issued by New India Assurance Company Limited in favour of complainant on dated 15.07.2014 and vehicle was insured w.e.f. 16.07.2014 to 15.07.2015 and total premium was mentioned as Rs.8740/- (Eight thousand seven 8 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) hundred forty). In the insurance policy placed on record of learned District Forum at pages 42 and 43 name of insured has been mentioned as Shri Rachit Sood and name of insurer has been mentioned as New India Assurance Company Limited. It is proved on record that as per certificate of insurance contract of insurance policy was executed directly between New India Assurance Co. Ltd and Shri Rachit Sood through agent Smt. Gagan Deep Kaur. State Commission is of the opinion that in view of the fact that name of opposite party No.2 did not figure in insurance policy placed on record opposite party No.2 is legally entitled for charges of repairs from complainant in accordance with law. Learned District Forum did not mention in the order that opposite party No.2 would be entitled for repairs charges. State Commission is of the opinion that order of learned District Forum is illegal to this effect and could not sustain in accordance with law and warrants interference of State Commission in the ends of justice and on the principle of natural justice because there was no privity of contract between opposite party No.2 and opposite party No.1 in insurance policy.
14. Submission of learned advocate appearing on behalf of opposite party No.2 that opposite party No.2 is not liable to pay amount to the tune of Rs.5000/- (Five thousand) as compensation to the complainant is decided accordingly. 9 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) State Commission is of the opinion that opposite party No.2 is not privity of contract of insurance policy. State Commission is of the opinion that opposite party No.2 is legally entitled for repairs charges. It is held that there is no evidence on record in order to prove that complainant paid repairs charges to opposite party No.2. Hence it is held that order of learned District Forum directing opposite party No.2 to pay compensation to the tune of Rs.5000/- (Five thousand) to the complainant jointly and severally is also illegal and could not sustain in accordance with law and warrants interference of State Commission in the ends of justice and on the principle of natural justice.
15. Submission of learned advocate appearing on behalf of opposite party No.2 that opposite party No.2 is not liable to pay amount to the tune of Rs.3000/-(Three thousand) as litigation costs to the complainant is decided accordingly. State Commission is of the opinion that no deficiency on the part of opposite party No.2 is proved on record because in the certificate of insurance policy opposite party No.2 has not been mentioned as intermediatory or intervener and has also not been mentioned as agent of New India Assurance Company Limited. On the contrary name of agent in the certificate of insurance policy is shown as Mrs. Gagandeep Kaur. In view of the fact that name of opposite 10 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) party No.2 did not figure as agent of New India Assurance Co. Ltd. in the insurance policy placed at pages 42 and 43 of file of learned District Forum it is held that opposite party No.2 is not liable to pay costs of litigation to the complainant to the tune of Rs.3000/- (Three thousand). It is held that order of learned District Forum directing opposite party No.2 to pay litigation costs to the tune of Rs.3000/-(Three thousand) to the complainant is illegal and could not sustain in accordance with law and warrants interference of State Commission in the ends of justice and on the principle of natural justice.
16. Submission of learned advocate appearing on behalf of complainant that opposite party No.2 i.e. M/s. Ram Hari Cars Pvt. Ltd. is liable to pay amount as ordered by learned District Forum is decided accordingly. State Commission is of the opinion that order of learned District Forum relating to repairs of vehicle without repairs charges from complainant and order of learned District Forum that opposite party No.2 would also pay compensation to the tune of Rs.5000/- (Five thousand) and would also pay litigation costs to the tune of Rs.3000/- (Three thousand) to the complainant jointly and severally is contrary to proved facts and contrary to law and could not sustain in accordance with law. Point No.1 is decided accordingly.
11 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) Findings upon point No.2 with reasons relating to appeal No.134 of 2017:
17. Evidence is not repeated again in order to avoid repetition. Submission of learned advocate appearing on behalf of insurance company that as per terms and conditions of insurance policy in case of dishonour of cheque of premium amount insurance policy would automatically cancelled and on this ground appeal be allowed is decided accordingly. It is proved on record that complainant issued cheque bearing No. 002478 annexure R-2/A in favour of New India Assurance Co. Ltd. to the tune of Rs.8740/- on dated 15.07.2014. It is also proved on record that cheque No. 002478 was presented for encashment before Central Bank of India. It is proved on record that cheque No. 002478 was returned by the bank vide memo annexure R-2/B due to exceed arrangement. As per memo issued by Central Bank of India it is proved on record that cheque was not returned to the insurance company on the ground of insufficient funds but was returned to insurance company on the ground of exceeds arrangement. It is held that return of cheque on account of exceeds arrangement and return of cheque on account of insufficient funds are entirely two different concepts under law.
18. It is also proved on record that New India Assurance Co. Ltd. had issued letter for dishonour of cheque 12 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) on dated 23.07.2014 annexure-IV to Regional Transport Authority Kullu. There is no evidence on record in order to prove that insurance company has informed complainant personally directly about dishonour of cheque towards premium. Insurance company did not return cheque to complainant alongwith bank memo directly by way of registered letter. State Commission is of the opinion that New India Assurance Company was under legal obligation to inform complainant directly personally by way of registered letter qua dishonour of cheque due to exceeds arrangement. No acknowledgement signed by complainant Rachit Sood placed on record by insurance company in order to prove that information was given to complainant Rachit Sood qua return of cheque due to exceeds arrangement. State Commission is of the opinion that insurance company has committed deficiency in service by way of repudiating claim of complainant without giving information to complainant qua dishonour of cheque. There is no evidence on record in order to prove that factum of return of cheque by the bank due to exceeds arrangement was in the knowledge of complainant. Even there is no evidence on record in order to prove that Central Bank of India has given notice to complainant qua returning of cheque due to exceeds arrangement. It is held that non-issuance of notice qua dishonour of cheque to the 13 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) complainant by insurance company prior to cancellation of insurance policy amounts to deficiency in service ipso-facto. It is held that notice to Regional Transport Authority Kullu will not ipso facto automatically deemed to be notice to complainant as per law qua dishonour of cheque due to exceeds arrangement. See 2015 (II) CPJ 72 NC Unit Trust of India Versus Consumer Rights Society.
19. Submission of learned advocate appearing on behalf of insurance company that insurance company is not liable to indemnify the complainant till the insurance premium is not received by insurance company is decided accordingly. It is well settled law that till the premium amount is not received by insurance company then insurance company is not liable to pay any compensation to the complainant. There is no evidence on record in order to prove that insurance company received premium amount from complainant by cash or by way of demand draft. It is held that order of learned District Forum directing the insurance company to settle the claim of complainant in view of estimate prepared by opposite party No.2 without receiving premium of insurance policy is also not sustainable as per law. It is further held that order of learned District Forum directing the insurance company to pay compensation to the tune of Rs.5000/-(Five thousand) to the complainant without 14 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) receiving premium amount of insurance policy by insurance company is also not sustainable. It is also held that order of learned District Forum directing the insurance company to pay costs of litigation to the tune of Rs.3000/-(Three thousand) to the complainant without receipt of premium is not also sustainable under law.
20. It is well settled law that insurer has no liability to insured unless and until premium payable is received by insurer. Insured promises the insurer that cheque on presentation would yield amount in cash. It is well settled law that party cannot be allowed to approbate or reprobate at the same time. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir.
21. Submission of learned advocate appearing on behalf of insurance company that order of learned District Forum giving liberty to complainant to file fresh complaint on same cause of action is also contrary to law is decided accordingly. Complainant did not file any application before learned District Forum to give permission to file subsequent complaint on same cause of action. State Commission is of the opinion that sufficient remedies of appeal and revisions have been provided to consumer under Consumer Protection Act 1986. It is not expedient in the ends of justice and on the 15 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) principles of natural justice to give liberty to complainant to file subsequent complaint on same cause of action.
22. Submission of learned advocate appearing on behalf of complainant that order of learned District Forum imposing liability upon insurance company is strictly in accordance with law and in accordance with proved facts is decided accordingly. State Commission is of the opinion that till date premium is not paid by complainant to the insurance company hence insurance company is not under legal obligation to pay any amount to the complainant. There is no evidence on record that in order to prove that complainant has paid premium amount to the insurance company. It is held that order of learned District Forum imposing liability upon insurance company relating to settlement of claim and relating to payment of compensation to the tune of Rs.5000/- (Five thousand) and litigation costs to the tune of Rs.3000/- (Three thousand) prior to payment of premium is not sustainable under law. In view of above stated facts point No.2 is decided accordingly.
Point No.3: Final Order
23. In view of findings upon points No.1 & 2 above both appeals i.e. F.A. No.13/2017 title M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. and F.A. No.134/2017 16 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) title New India Assurance Company Versus Rachit Sood & Anr. are partly allowed. Order of learned District Forum that opposite party No.1 would settle claim of complainant in view of estimate prepared by opposite party No.2 is set aside. Order of learned District Forum that opposite party No.2 would carry out necessary repairs of vehicle of complainant within one month of order is also set aside. Order of learned District Forum that opposite parties No.1 & 2 would jointly and severally pay compensation to the tune of Rs.5000/-(Five thousand) to the complainant is also set aside. Order of learned District Forum that opposite parties No.1 & 2 would jointly and severally pay litigation costs to the tune of Rs.3000/-(Three thousand) to the complainant is also set aside. Order of learned District Forum that complainant would be at liberty to file subsequent complaint on same cause of action is also set aside. In addition it is ordered that New India Insurance Company would issue personal notice to complainant as per address mentioned in the insurance policy by way of speed post registered letter with acknowledgment due relating to dishonour of cheque No.002478 due to exceeds arrangement and thereafter complainant will deposit premium amount of insurance policy alongwith interest @ 9% per annum w.e.f. 15.07.2014 till the date of payment to the insurance company by way of demand 17 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) draft within fifteen days after receipt of notice. After receipt of demand draft of premium amount from complainant insurance company would appoint registered Surveyor and Loss Assessor and would settle claim of complainant within one month in accordance with law and in accordance with proved facts strictly as per report of registered Surveyor and Loss Assessor. It is further ordered that complainant would pay repairs charges of vehicle to opposite party No.2 i.e. M/s. Ram Hari Cars Pvt. Ltd. strictly in accordance with law. Cheque annexure R-2/A, Cheque returning memo annexure R-2/B, insurance policy issued by New India Assurance Company Limited placed at pages 42 and 43 of file of Learned District Forum and registered notice annexure-IV issued by New India Assurance Co. Ltd. to Regional Transport Authority Kullu will form part and parcel of order. Order of learned District Forum is modified to this extent only. Order passed by State Commission in the ends of justice and on the principle of natural justice. Parties are left to bear their own litigation costs before State Commission. Certified copy of order be placed in the original file of appeal No. 134 of 2017 forthwith. File of learned District Forum alongwith certified copy of order be sent back forthwith and files of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to 18 M/s. Ram Hari Cars Pvt. Ltd. Versus Rachit Sood & Anr. (F.A. No.13/2017) & New India Assurance Co. Ltd. Versus Rachit Sood & Anr. (F.A. No.134/2017) parties forthwith free of costs strictly as per rules. Both appeals are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 13.10.2017.
*GUPTA* 19