State Consumer Disputes Redressal Commission
Icici Lombard General Insurance ... vs Dr.Amit Kumar Thakur & Anr. on 1 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2016/657
Instituted on : 18.11.2016
I.C.I.C.I. Lombard General Insurance Co. Ltd.
(Motor Insurance),
Through : Divisional / Regional Manager,
Office : Near Vanijya Bhawan, Second Floor,
Devendra Nagar,
Raipur (C.G.) ... Appellant/O.P. No.2
Vs.
1. Dr. Amit Kumar Thakur, S/o Shri A.R. Thakur,
Aged 40 years, Caste : Poreti,
R/o : Chhattisgarh Institute of Medical Science (Hospital),
Bilaspur, District Bilaspur (C.G.) ....Respondent No.1/Complainant
2. Shambhulal Agrawal,
Proprietor / Owner - Sky Automobiles Establishment,
Geedam Road,
Jagdalpur, District Bastar (C.G.) .... Respondent No.2/O.P. No.1.
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Sanjay Tiwari, Advocate for the appellant.
Shri Sagar Devre, Advocate for the respondent No.1.
Shri Sandeep Agrawal, Advocate for the respondent No.2.
ORDER
DATED : 01/04/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 10.08.2016, passed by District Consumer Disputes Redressal Forum, Bastar, at Jagdalpur (C.G.) // 2 // (henceforth "District Forum") in Complaint Case No.CC/10/2016. By the impugned order, the learned District Forum, has partly allowed the complaint of the complainant and directed that :-
(1) The complainant is entitled to get the Insured Declared Value Rs.4,82,364/- (Rupees Four Lakhs Eighty Two Thousand Three Hundred Sixty Four) from the O.P. No.2 in respect of the Maruti Swift Car VXI Engine No.K 12 MN 1169596, Chassis No.MA 3 EHKD 1500247037, registration No.C.G.17-C-3178, which was damaged. The O.P. No.2 will pay the above amount to the complainant within 30 days from the date of the order. (2) The complainant is entitled to get simple interest @ 6% on the above amount from the O.P. No.2 till date of payment. The above amount will also be payable within 30 days. (3) If the above amount is not paid by the O.P. No.2 within stipulated period, then interest @ 9% p.a. would be payable. (4) The O.P. No.2 will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards compensation for mental agony. (5) The O.P. No.2 will also pay a sum of Rs.2,000/- (Rupees Two Thousand towards cost of litigation to the complainant
2. Briefly stated the facts of the complaint of the complainant are that the complainant is Doctor by profession at present he is posted in Chhattisgarh Institute of Medical Science Hospital, Bilaspur as Assistant Professor // 3 // (Department of Medicines). Prior to above, he was posted at Government Medical College Cum Maharani Hospital, Jagdalpur. In the month of April, 2012, the complainant purchased a Maruti Swift (VXI) at the price of Rs.5,07,682/- bearing registration No.C.G.17-C-3178. The O.P. No.1 told the complainant that the O.P. No.1 is having tie-up with the O.P. No.2 I.C.I.C.I. Lombard General Insurance Company Limited. The O.P. No.1 obtained a sum of Rs.15663/- as premium from the complainant and insurance policy was issued, which was effective for the period from 18.04.2012 to 17.04.2013. On 06.02.2013 at about 11.55 P.M. the vehicle of the complainant met with an accident in which the complainant sustained grievous injuries in his left leg. The complainant had taken treatment in Maharani Hospital Cum Medical College, Jagdalpur. Due to grievous injuries sustained by him, he was unable to move here and there. On 07.02.2013, the complainant informed Dhananjay Sinha, Sales Executive of O.P. No.1 through mobile regarding the accident, who managed to have a talk of the complainant with Mr. Sagar, who is Inchsarge of Insurance Branch of O.P. No.1, Mr. Sagar. The complainant gave intimation regarding injuries sustained by him to Mr. Sagar. The Incharge of the Insurance Branch of O.P. No.1 along with 2-3 employees of his office with friend of the complainant Dr. Rajendra Rajendra Kumar Singh visited place of accident and inspected the spot. The matter was reported to the Police Station, Lohandiguda. The complainant obtained the vehicle on Supurdginama, and the vehicle was taken to establishment of O.P. No.1. The vehicle was loaded in tractor trolley and sent to establishment of O.P. No.1 // 4 // and expenditure was borne by the complainant himself. The complainant was referred to Raipur by doctors of Maharani Hospital, Jagdalpur on 09.02.2013 and the complainant was admitted in Shrree Narayana Hospital, Raipur from 09.02.2013 to 12.02.2013, thereafter he was admitted in Arihant Hospital, Raipur from 23.02.2013 to 10.03.2013. Thereafter Plastic and Cosmetic Surgeon Dr. Vivek Dubey treated the complainant and conducted operation of his left leg and done skin grafting. The complainant was advised for complete bed rest. The O.P. No.1 gave estimate of Rs.8,70,780.96 for repairing of the vehicle. The O.P. No.2 appointed Shri Katyayan, as Surveyor and Loss Assessor who assessed the loss and gave his report and he found that the vehicle comes within purview of total loss. The Surveyor told the complainant that value of the salvage will be taken by the Insurance Company and the insured amount will be given to the complainant, but the complainant has not received any amount from the O.P. No.2 till date. The complainant sent legal notice to the OPs, even then the OPs did not settle claim of the complainant and thus committed deficiency in service. The complainant filed instant complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. No.1 filed his written statement and averred that there is no tie-up between the O.P. No.1 and O.P.No.2. The complainant himself gave his consent for insurance, therefore, the insurance policy was obtained from the O.P. No.2 I.C.I.C.I. Lombard General Insurance Company Limited and // 5 // premium amount was received and insurance policy was given to the complainant. The estimate of Rs.8,70,780.96 was given to the complainant to reassemble the vehicle and not for repairing of the vehicle. The vehicle was brought by the complainant to the establishment of O.P. No.1 on 01.05.2013, prior to it, the vehicle was kept in Police Station, Lohandiguda. If any parts were stolen, then the parts were stolen at Police Station, Lohandiguda and not from the establishment of the O.P. No.1. If the consumer is not taking the vehicle after prescribed period, then the O.P. No.1 is taking parking charges. The O.P. No.1 did not commit any deficiency in service. The complainant is not entitled to get any relief from the O.P. No.1 and the complaint is liable to be dismissed against O.P. No.1.
4. The O.P. No.2 filed its written statement and denied the allegations made by the complainant against it in the complaint. The O.P. No.2 averred that the OP. No.2 has not pressurized the complainant to obtain insurance policy from the O.P. No.2. The complainant himself wanted to get his vehicle insured from the O.P. No.2. The vehicle was not damaged completely and the damages does not come within the category of total loss. The complainant has not sustained grievous injuries in the accident. Looking to the First Information Report, it appears that the First Information Report was only registered for offence under Sections 279, 337 IPC. It appears that the complainant has not sustained grievous injuries. If property could have damaged, then offence under Section 427 IPC would be also registered, but // 6 // offence under 427 IPC was not registered. It shows that the vehicle was not damaged. The complainant has not filed copy of estimate regarding repairing of the vehicle. The vehicle was hypothecated with the State Bank of India, but the complainant has not made party to State Bank of India, who is necessary party. The complainant has not filed No Objection Certificate from State Bank of India, therefore, the complainant is not entitled to get any relief from the O.P. No.2 and the complaint is liable to be dismissed against O.P. No.2.
5. The complainant has filed documents which are copy of order sheet dated 24.11.2015 and 10.12.2015 of Permanent Lok Adalat, Jagdalapur, copy or order sheet dated 27.01.2014 to 18.12.2014 of Permanent Lok Adalat, Jagdalpur, copy of complaint and affidavit dated 27.01.2014 submitted before Permanent Lok Adalat, written statement filed by O.P. No.1 and O.P. No.2, affidavits of witnesses Dr. Amit Thakur, Dr. Rajendra Kumar Singh and Shambhulal Agrawal (O.P. No.1), Notice dated 12.12.2013 sent by Advocate of O.P. No.1 to the complainant, notice dated 23.12.2013 sent by the complainant through his advocate, postal receipt and acknowledgement of notice sent to the O.P. No.1, copy of First Information Report dated 07.02.2013, copy of written intimation given regarding the accident on 15.04.2013, copy of Job Slip of Sky Automobiles, registration certificate of the vehicle, copy of insurance policy.
6. The O.P. No.1 has filed documents which are job card dated 01.05.2013, copy of registered notice dated 11.12.2013 sent to the complainant, copy of // 7 // registered notice dated 11.12.2013 sent to I.C.I.C.I. Lombard General Insurance Co. Ltd., postal receipts.
7. The O.P. No.2 has not filed documents.
8. Learned District Forum after having considered the material placed before it by the parties, has partly allowed the complaint of the complainant and directed the O.P. No.2 to pay amounts to the complainant, as mentioned in para 1 of this order.
9. Shri Sanjay Tiwari, learned counsel appearing for the appellant (O.P. No.2) has argued that the impugned order passed by the District Forum is erroneous. The O.P. No.1 had given estimate of Rs.8,70,780.96 for reassembling of the vehicle and nor for the repairing of the vehicle. Offence under Section 279 and 337 IPC was registered and offence under Section 427 IPC was not registered. It shows that the vehicle was not damaged. The respondent No.1 (complainant) has not filed No Objection Certificate of State Bank of India where the vehicle is hypothecated. State Bank of India is a necessary party. The appellant (O.P. No.2) has agreed to pay the amount after deducting value of salvage, but the respondent No.1 (complainant) has not filed No Objection Certificate from State Bank Of India, even then the District Forum has held that the appellant (O.P.No.2) committed deficiency in service. The order passed by the District Forum, is not sustainable in eye of law therefore, the same is liable to be set aside. The appeal be allowed.
// 8 //
10. Shri Sagar Devre, learned counsel appearing for the respondent No.1 (complainant) has argued that the impugned order passed by the District Forum is just and proper. The vehicle in question was completely damaged in the accident and comes within total loss. The respondent No.2 (O.P. No.1) provided estimate for repairing work which was sent to the appellant (O.P. No.2) but the appellant (O.P. No.2) did not settle the claim of the respondent No.1 (complainant), which comes in the category of deficiency in service. The respondent No.1 (complainant) had filed complaint before Public Utility Permanent Lok Adalt, Jagdalpur on 27.01.2014 where Case No.4/2014 was registered and notices were issued to the OPs. The OPs appeared before the Lok Adalat and filed their reply. Statements of witnesses were recorded and case was finally heard. In the meantime Hon'ble Chhattisgarh High Court, Bilapsur in Writ Petition (227) No.131/2015. Vide order dated 03.11.2015 held that the Permanent Lok Adalat has no jurisdiction to decide the dispute and the case be filed before competent Tribunal. The Permanent Lok Adalat, Jagdalpur on the basis of order of Hon'ble High Court of Chhattisgarh dated 03.11.2015 passed in Writ Petition (227) No.131/2015 directed the respondent No.1 (complainant) to file complaint before competent Tribunal having jurisdiction, then the respondent No.1 (complainant) filed the instant complaint before the District Forum. The vehicle was completely damaged. Mere non-registration of offence under Section 427 IPC, it cannot be held that the vehicle was not damaged. The respondent No.2 (O.P. No.1) admitted in his written statement that the vehicle was brought to his establishment // 9 // through tractor by tochan. Before Permanent Lok Adalat, Jagdalpur, affidavit of Satish Katyayan, was filed in which he admitted that the vehicle bearing registration No.C.G.17-C-3178 was totally damaged and the vehicle came in the category of total loss. The Insured Declared Value of the vehicle is 4,82,364/- and the vehicle came in the category of total loss, therefore, learned District Forum has rightly awarded Insured Declared Value of the vehicle to the respondent No.1 (complainant). Shri Devre has further argued that State Bank of India is not a necessary party in the instant case. Learned District Forum has rightly reached to the conclusion, that the State Bank of India is not a necessary party, therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal be dismissed.
11 Shri Sandeep Agrawal, learned counsel appearing for the respondent No.2 (O.P. No.1) has argued that the District Forum, has rightly exonerated the respondent No.2 (O.P. No.1), therefore, the impugned order passed by the District Forum in favour of the respondent No.2 (O.P.1) is just and proper and does not call for any interference by this Commission.
12. We have heard learned counsels appearing for the parties and have also perused the record of the District Forum as well as the impugned order.
13. Firstly we shall consider whether the State Bank of India is necessary party in the complaint.
// 10 //
14. The appellant (O.P. No.2) has specifically pleaded that the respondent No.1 (complainant) has obtained loan from State Bank of India and vehicle was hypothecated with the State Bank of India, therefore, the Bank is necessary party. The respondent No.1 (complainant) has not filed "No Objection Certificate"
15. Learned District Forum in para 10 of the impugned order has observed that it is true that the respondent No.1 (complainant) obtained loan from State Bank Of India and it is essential to obtain No Objection Certificate from the concerned Bank for payment of the insured amount. The O.P. No.2 did not given any notice to the complainant to produce No Objection Certificate and no such evidence or document has been filed. When the vehicle is purchased with the help of loan, then the it is the responsibility of the borrower to pay the loan. No fact has been kept from which it is made clear that in case when the vehicle is purchased with the help of loan, the concerned financer is to be made party. The District Forum has observed that the State Bank of India is not necessary party. The above finding of the District Forum, is not tenable.
16. The respondent No.1 (complainant) has obtained loan from State Bank of India for purchasing the vehicle and the vehicle was hypothecated with the State Bank of India. According to the Hypothecation Agreement, the true ownership vested to the financer and purchaser is simply bailee of the vehicle.
// 11 // The Insured Declared Value of the vehicle, which is hypothecated with the financer is only payable to the insured, if No Objection Certificate is submitted. In the instant case, the respondent No.1 (complainant) has not submitted No Objection Certificate of State Bank of India to the Insurance Company and the vehicle in question is still hypothecated with the State Bank of India, therefore, the State Bank of India, is a necessary party.
17. In the instant case, the affidavit of the Surveyor & Loss Assessor Satish Katyayan has been filed, which was filed before Permanent Lok Adalat, Jagdalpur, but report of the Surveyor & Loss Assessor has not been filed by the appellant (O.P. No.2) before the District Forum. Surveyor Satish Katyayan in his affidavit stated that the Insurance Company is only liable for paying Rs.2,50,000/- and the Insurance Company is agreed to pay the above amount to the respondent No.1 (complainant). Looking to the affidavit of Satish Katyayan and written statement filed by the respondent No.2 (O.P. No.1), Survey Report is essential document for proper adjudication of the case, therefore, it is just and proper to direct the appellant (O.P. No.2) to file Survey Report, hence, it is essential to remit back the case to the District Forum.
18. Therefore, the appeal filed by the appellant (O.P. No.2) is allowed and the impugned order dated 10.08.2016 passed by the District Forum, is set aside. The case is remanded back to the District Forum, with a direction to direct the respondent No.1 (complainant) to file an application under Order 1 Rule 10 CPC to make State Bank of India opposite party, and if the // 12 // respondent No.1 (complainant) files such application and State Bank of India is made party, then notice will be issued to the State Bank of India for filing written statement and documents. The appellant (O.P. No.2) is directed to file Survey Report of the Surveyor Satish Katyayan, before the District Forum. After filing written statement and documents by State Bank of India, and Surveyor's Report by the appellant (O.P. No.2), learned District Forum after hearing both the parties, will decide the case afresh on its own merits. The parties are directed to appear before the District Forum, Bastar at Jagdalpur (C.G.) on 29.04.2017. The office is directed to send back the record of the District Forum forthwith to District Forum, Bastar at Jagdalpur (C.G.).
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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