State Consumer Disputes Redressal Commission
Sumit Mahajan Son Of Inderjit Mahajan vs New India Assurance Company Limited, on 25 March, 2013
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1400 of 2009
Date of institution: 5.10.2009
Date of decision : 25.3.2013
1. Sumit Mahajan son of Inderjit Mahajan,
2. Inderjit Mahajan son of Bhagat Ram,
Both residents of 131/A, Model Town, Pathankot.
.....Appellants
Versus
1. New India Assurance Company Limited, New India Assurance
Building, 87, M.G. Road Fort, Mumbai through its General
Manager.
2. The Divisional Manager, New India Assurance Company Limited,
Divisional Office 710 500, East Coast Chambers, 1st Floor, 92,
G.N. Chetty Road, T. Nagar, Chennai - 600 017
3. The Senior Divisional Manager, New India Assurance Company
Limited, Divisional Office No. 1 (360 900) 36, Gobind Niwas, G.T.
Road, Jalandhar.
.....Respondents
2nd Appeal
First Appeal No. 1168 of 2009
Date of institution: 19.8.2009
1. The General Manager, New India Assurance Company Limited, New
India Assurance Building, 87, M.G. Road Fort, Mumbai.
2. The Divisional Manager, New India Assurance Company Limited,
Divisional Office 710 500, East Coast Chambers, 1st Floor, 92, G.N.
Chetty Road, T. Nagar, Chennai - 600 017
3. The Senior Divisional Manager, New India Assurance Company
Limited, Divisional Office No. 1 (360 900) 36, Gobind Niwas, G.T.
Road, Jalandhar.
...Appellants
Versus
1. Sumit Mahajan son of Inderjit Mahajan,
2. Inderjit Mahajan son of Bhagat Ram,
Both residents of 131/A, Model Town, Pathankot.
...Respondents.
First Appeal against the order dated 24.6.2009
passed by the District Consumer Disputes
Redressal Forum, Gurdaspur.
First Appeal No. 1400 of 2009 2
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present in F.A. No. 1400 of 2009:-
For the appellants : Sh. Vishal Gupta, Advocate
For the respondents : Sh. Vikas Chatrath, Advocate
PIARE LAL GARG, PRESIDING MEMBER
This order will dispose of two appeals i.e. First Appeal No. 1400 of 2009(Sumit Mahajan & others Vs. New India Assurance Company and others) and First Appeal No. 1168 of 2009 (The New India Assurance Company Limited and another Vs. Sumit Mahajan and anothers). Both appeals are filed against the same order dated 24.6.2009 passed by the District Consumer Disputes Redressal Forum, Gurdaspur(in short the "District Forum") and the same are disposed off in a single order. The facts are taken from 'First Appeal No. 1400 of 2009' and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that the truck of the appellants bearing registration No. PB-06E-7577 was insured with the respondents for the period of 21.12.2004 to 20.12.2005. The truck met with an accident near Tanu Hatti, Himachal Pradesh Katori Bangla, Punjab. Intimation regarding the accident was given by the appellants to the respondents. Sh. Rajeev Mahajan, Surveyor-cum-Loss Assessor was appointed by the respondents to assess the loss, who after inspection of the vehicle, assessed the loss to the tune of Rs. 3,46,769/- as well as Rs. 8,000/- as value of the salvage. It was also pleaded by the appellants that they had paid Rs. 14,000/- as towing charges to take the vehicle in the workshop as well as Rs. 3,36,000/- for the repair of the vehicle but the claim of the appellant was filed as no claim illegally by the respondents. The information to this effect was given by the respondents to the appellants First Appeal No. 1400 of 2009 3 vide letter dated 23.1.2007. Complaint was filed with the prayer that the respondents may be directed to pay Rs. 3,36,000/- as repair charges, Rs. 14,000/- as towing charges alongwith interest @ 18% per annum from the date of accident till its payment. It was also prayed that Rs. 15,000/- may also be awarded as litigation expenses to the appellants.
3. Upon notice, reply was filed by the respondents through Divisional Manager, Pathankot taking preliminary objections of cause of action, locus-standi, maintainability of the complaint, appellant estopped to file the complaint, territorial jurisdiction, as well as the appellants do not fall under the definition of consumer as the vehicle was being used for commercial purpose. On merits, it was admitted that the vehicle was insured with the respondents and the policy was valid upto 20.12.2005. The accident of the truck near Tanu Hatti Himachal Pradesh Katori Bangla was also not denied. It was also admitted that Sh. Rajeev Mahajan was appointed as Surveyor and Loss Assessor to inspect the vehicle and to assess the loss, who assessed the loss as Rs. 3,46,769/- (-) Rs. 8000/ as salvage. It was further pleaded that the truck met with an accident in Himachal Pradesh but the appellants had no route permit to ply the truck in Himachal Pradesh, as such, the claim of the appellants was filed as no claim correctly and the appellants were intimated vide letter dated 23.2.2007. It was prayed that the complaint of the appellants may be dismissed with costs.
4. The complaint of the appellant was accepted by the District Forum and the respondents were directed to pay Rs. 3,46,769/- less salvage value as assessed by the Surveyor-cum-Loss Assessor vide his report dated 16.5.2008 Ex. R-3. The respondents were further directed to pay Rs. 5000/- to the appellants as compensation for mental agony, harassment and inconvenience as well as litigation expenses within two months from the receipt of the copy of the order.
First Appeal No. 1400 of 2009 4
5. Aggrieved from the order of the District Forum, the appellants filed the present appeal for the modification of the order as no interest was awarded by the District Forum as the claim of the appellants was repudiated by the respondents without any rhyme or reason and against the terms and conditions of the policy, as such, the appellants are entitled for the interest @ 18% per annum for the amount of loss which was awarded by the District Forum.
First Appeal No. 1168 of 2009
6. The respondents-New India Assurance Co. Ltd. also filed First Appeal No. 1168 of 2009 for the setting aside of the order of the District Forum on the grounds that the truck was met with an accident in Himachal Pradesh but the appellants were not having the route permit to ply the same in the Himachal Pradesh, as such, the appellants breached the terms and conditions of the policy and were not entitled for any claim as held by the Hon'ble Supreme Court in the matter of "National Ins. Co. Ltd. Vs. Chella Bharathamma, 2004 (4) RCR Civil 399, as such, the order of the District Forum is liable to be set-aside.
7. There is no dispute between the parties that the truck was insured with the respondents for an amount of Rs. 10,45,000/- for the period of 21.12.2004 to 20.12.2005 vide cover note Ex. C-11. There is also no dispute between the parties that the truck met with an accident on 3.5.2005 near Tannu Hatti and intimation to this effect was given by the appellants to the respondents vide Ex. R-1.
8. There is also no dispute between the parties that Sh. Rajeev Mahajan was appointed as Surveyor to inspect the spot and vehicle in dispute. The Surveyor inspected the spot and submitted his report Ex. R-2 dated 6.5.2005 to the respondents.
9. We have perused the Survey Report. Against the comments the Surveyor had mentioned that:-
First Appeal No. 1400 of 2009 5
"Comments I also confirm that:-
1. No breach of warranty was observed.
2. The damages are by accidental external means.
3. No commitment was made with the insured/insured's representative regarding the amount of loss."
10. R.P. Bhasin and Co. was appointed to assess the loss. The Loss Assessor submitted his report Ex. R-3 vide which loss of Rs. 3,46,769/- was assessed and the value of the salvage was assessed as Rs. 8000/-.
11. The claim of the appellants was repudiated only on the ground that the truck met with an accident in Himachal Pradesh but the appellants were not holding the route permit to ply the truck in Himachal Pradesh.
12. Now we have to decide only:-
1) Whether the truck was met an accident in Himachal Pradesh or in Punjab?
2) Whether the appellants had violated any term and condition of the policy?
3) Whether the appellants are entitled for any claim or the claim was filed as 'no claim' by the respondents correctly?
13. The appellants to prove the place of accident in the State of Punjab tendered into evidence the report of Assistant Regional Transport Officer, Tanu Hatti, District Chamba vide which it was reported by the A.R.T.O. that the vehicle met with an accident before reaching at the barrier, as such, the Tax was not charged regarding the route permit of the truck. From the said report Ex. C-6 of the A.R.T.O., it is proved that the truck was not entered in the territorial jurisdiction of Himachal Pradesh and met with accident in Punjab State. It is also pleaded case of the appellant that the vehicle met with an accident near Tanu Hatti nor at Tanu Hatti. First Appeal No. 1400 of 2009 6
14. To rebut the version of the appellants and to prove that the vehicle met with an accident in Himachal Pradesh, no evidence was produced by the respondents.
15. The counsel for the respondents submitted that the truck met with an accident at Village Dagoh, which is situated in Himachal Pradesh.
16. We have perused the reply as well as affidavit Ex. R-9 of Suman Gupta, Divisional Manager of the respondents, but nowhere it was mentioned in the reply as well as in the affidavit that the vehicle met with an accident at village Dagoh, which is situated in Himachal Pradesh.
17. The version of the appellants as well as of the respondents is that the vehicle met with an accident near Tanu Hatti. The Himachal Pradesh State has erected the barrier at Tanu Hatti from where the limit of the Himachal Pradesh starts and the limit of Punjab State ends. It is also not the case of the respondents that the truck had crossed the barrier. The version of the respondents that the truck met with an accident in Himachal Pradesh is without any basis and evidence and based on conjectures and surmises. However, the Surveyor, who inspected the spot of accident nowhere in his report mentioned that the truck met with an accident in Himachal Pradesh rather he mentioned in his report that he had not observed any breach of warranty. So from the report of the Surveyor Ex. R-2 it is also proved that there was no violation of the terms and conditions of the policy.
18. The counsel for the appellants cited the judgment of the Hon'ble Supreme Court of India titled as "National Ins. Co. Ltd. Vs. Chella Bharathamma"(supra) but the same is not applicable to the facts of the present dispute as the appellants had not violated any terms and conditions of the policy.
19. The appellants filed the appeal with the prayer for the modification of the order as no interest was awarded by the District Forum First Appeal No. 1400 of 2009 7 upon the amount of loss which was suffered by the appellants and directed by the District Forum to the respondents to pay the same to the appellants. There is no dispute between the parties that the vehicle met with an accident on 3.5.2005 and till date no amount has been paid by the respondents to the appellants i.e. after the lapse of eight years. The District Forum has awarded only Rs. 5000/- as damages for mental agony, harassment and inconvenience suffered by the appellants and also as litigation expenses but no reason is mentioned by the District Forum in its order how the appellants were not entitled for the interest. It is also not the version of the respondents that the requisite documents were not submitted by the appellants to the respondent to decide/settle the claim of the appellants.
20. The version of the appellants has weight that the appellants are entitled for the interest, as such, the order of the District Forum is modified and the respondents-Insurance Co. are directed to pay interest @ 9% per annum on the amount of Rs. 3,46,769/- after three months of the assessment of the loss suffered by the appellants and assessed by R.P. Bhasin & Co. dated 16.8.2005.
21. In view of the above discussion, First Appeal No. 1400 of 2009 of the appellants is accepted and the order of the District Forum is modified and the respondents will pay interest @ 9% per annum to the appellants after the loss assessed by R.P. Bhasin & Co.. First Appeal No. 1168 of 2009
22. The appeal of the appellants-Insurance Co. is without any merit and evidence. The order of the District Forum is speaking one and there is no infirmity in the same except not awarding the interest to the appellants/complainants(respondents in F.A. No. 1168 of 2009) and the order of the District Forum is modified as in F.A. No. 1400 of 2009. The appeal of the appellants-Ins. Co. is dismissed.
First Appeal No. 1400 of 2009 8
23. The arguments in these appeals were heard on 19.3.2013 and the orders were reserved. Now the orders be communicated to the parties.
24. The appellants in F.A. No. 1168 of 2009 had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondents of F.A. No. 1168 of 2009 in equal share by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
25. Remaining amount shall be paid by the appellants to the respondents within 30 days from the receipt of the copy of this order.
26. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
27. Copy of this order be placed on First Appeal No. 1168 of 2009 (The New India Assurance Company Limited and another Vs. Sumit Mahajan and anothers).
(Piare Lal Garg)
Presiding Member
March 25, 2013. (Jasbir Singh Gill)
as Member