(As per A.A.Jain,Honorable Member)
Complainant filed this complaint against Opposite.Parties for seeking various relief as per prayer clause . :-
1 Complainant's case in short is that ,he is owner ot Tata Sumo Vehicle No. MH-35/M-168 insured with O.P.No.1 and f O.P.No.2 through O.P.No.3 who is a agent of O.P.No.1 &2 at Amgaon. This vehicle met with an accident at Mouza Gortha which is 4 Km. away from Amgaon toward Gondia. That , the said Tata Sumo sustained severe damages to its’s body. That, on 25-12-2007 at about 6.30 A.M. Mr. Macchindra Nandlal Mohbe along with his family members were coming from Gondia to Amgaon by Tata Sumo No. MH-35/M-168 and the vehicle was driven by Badal S/o Kishorilal Agrawal. One Metador No. MH-35/1700 driven by Dinesh S/o Ashok Mankar, R/o Kakodi, Tahsil – Deori dashed to Tata Sumo. In this accident Tata Sumo was badly damaged and it’s driver was died on spot. Police Department registered the Crime under Section 279, 304 (A), 337 I.P.C. against the driver of Metador. Police Department also conducted the spot panchnama. Charge Sheet filed against driver before J.M.F.C. Amgaon. The complainant submitted his claim to O.P.No.1 &2 as claim No. MOT 00677651. As per the advice of O.P. complainant sent his vehicle to authorized service centre of Tata Sumo at Safeway Motors Nagpur. Complainant has paid the repairing charge of Rs.2,90,646 and Toeing Charges of Rs.5000/- . This vehicle was financed by Tata Motors Finance Ltd. On dated 1-2-2008 O.P. refused the claim of complainant on the ground that this vehicle was used for commercial purpose. Complainant submitted that this vehicle was used by his closed friend and it was for personal use. Complainant prayed that he is entitled for Rs. 2,90,646/- as repair charges, Rs.5000/- toeing charges and Rs. 10000/- as mental and physical torture ie.e. total amount of Rs.3,05,646/- payable by O.P. Complainant prayed to declare that there was deficiency in service on the part of O.P. and they should be directed to pay Rs.3,05,646/- Plus Rs. 10,000/- financial loss and Rs.5000/- as the cost of the case (Exh.1)
2 In response to notice under Section 13 of C.P.Act 1986 O.P.’s appeared and filed their reply. O.P.No.3 submitted that he has no concern with the present complaint. He has not done any insurance of complainant’s vehicle. Hence complaint should be dismissed against him. (Exh.10).
3 O.P.No.1 and 2 appeared through their counsel (M.O.A.) filed their reply (Exh.13) O.P.No.1 and 2 submitted that present complaint is not maintainable. Because this complaint is of technical nature and require appreciation of evidence hence beyond the scope of consumer forum, O.P.No.1 and 2 submit that complainant has made exorbitant and unreasonable claim without justification. The vehicle was financed by Tata Motors Ltd. (TML) and TML was not made as necessary party. O.P. further submitted that the reason of repudiation has been intimated to complainant long back by letter dated 1-2-2008 . Even after that the complainant has given his vehicle for repair on 25-03-2008. Complainant has submitted the estimate of repairs of Rs.5,05,671/- but when the vehicle was repaired by complainant himself, it got repaired for Rs.2,90,646/-. This shows the approach as well as modus of the complainant . O.P.No.1 and 2 denied that the accidental vehicle was driven by Badal Agrawal in slow and moderate manner. The accident took place due to negligence driving of both the vehicles and crime was registered against driver of both the vehicle. O.P.No.1 and 2 submit that this case does not falls under the purview of C.P.Act 1986 hence the complaint should be dismissed on the ground and this Forum does not have jurisdiction to try and entertain this matter. Finally O.P.No.1 and 2 prayed to dismiss the complaint with exemplary cost. (Exh.13).
4 On verifying all the records and hearing argument of complainant and gone through the report of CHARTER HOUSE DETECTIVE SERVICES and W.S. and written notes of argument of O.P.No.1 and 2 the following points arise for our consideration and our findings are given below :-.
Issues Findings
1 Whether the complainant is consumer within purview Yes
of C.P.Act 1986 ?.
2 Whether there is deficiency in services on the part of the O.P. ? Yes
3 Whether this Forum has jurisdiction to entertain and decide complaint ? Yes
4 Whether TML should be made necessary party ? No
5 Accidental Vehicle involved in commercial Purpose ? Not Proved
6 What Order ? As per final order
REASONS
5 Complainant has purchased an insurance policy from O.P.No.1 & 2 by paying Rs.11,780/- for the period of 9-1-2007 to 8-1-2008 Midnight for own damage and also for third party liability. Total value of vehicle Rs.2,90,010/-. Complainant has paid the cost of policy for any own damages to his vehicle hence he is consumer under Section 2 (d) (ii) fo C.P.Act 1986.
6 Complainant has paid Rs.11,780/- by cheque at Amgaon. This amount was collected by O.P.No.1 &2 from Janta Sahkari Co-operative Bank Amgaon Branch which is under jurisdiction of the Forum. Moreover the cause of action arise at Amgaon District- Gondia. The accident of vehicle took place at village Gortha, Tahsil-Amgaon, District – Gondia. The accident place is 4 km. Way from Amgaon falls under the jurisdiction of Amgaon Police Station. Amgaon Police Station has registered crime against driver of Metador Ashok Mankar under various Section of I.P.C. In this accident apart from damages of complainant’s vehicle two persons were died and claim case under M.A.C.T. lying at Gondia Court. Section 11 (2) (C) states that –
“The cause of action, wholly or in part, arise.”
Hence due to cause of action arise at Gondia District, so this Forum has territorial jurisdiction to decide this complaint.
7 O.P.No.1 &2 submitted that Tata Motors Ltd. Should be made party in this complaint. TML has only financed the complainant to purchase the vehicle. As TML is only financer, he can recover his amount from complainant or from his guarantor by filing civil suit or by any other means as per law. Hence it is not necessary to make TML as one of the party.
8 O.P.No.1 &2 repudiated the claim of complainant on ground that this vehicle was used for commercial purpose. O.P.No.1 &2 filed one report of ‘Charter House Detective Services”.
In the report of this agency there is no record about who has investigated this matter. This report was only on the basis of documents from Police and news paper cutting . This report was not submitted on affidavit. On page 2 in last column it was mentioned that –
Driver’s Statement :- At the time of investigation the insured vehicle driver Mr.Badal was not available for enquiry. It is clear from the record that driver Mr.Badal was died on the spot of accident. This shows the weakness of the detective report.
9 There was one statement of Dilip S/o Machhindranath Mohbe who was traveling in the accidental vehicle. Only one unreadable zerox copy was filed without affidavit. In this report he states that his father has hired one vehicle from Sai Transport for visiting Shegaon-Shirdi etc. But this vehicle at the time of return journey faced a break down at Bhandara. This vehicle was repaired. Then at Gondia the clutches of vehicle was not working. So they changed the vehicle, At the time of argument complainant submit that due to failure of vehicle at Gondia, Mohbe family wanted to reach up to Amgaon. So they had given a message to his friend ‘Badal Agrawal’ to bring his vehicle at Gondia and help him to reach to Amgaon. Late Badal Agrawal was friend of Mohbe family, so he had helped them in their critical position. And he has helped Mohbe family without recovering any amount from them. There is no record that any payment was done by Mohbe family or any assurance of payment to be paid at Amgaon. Hence they are treated as ‘Gratuitous’ passengers. And to give lift to Gratuitous passengers can’t be said the use of commercial purpose. As per case law below :-
10 We are guided by the Case Law cited III (2006) CPJ 254 of Himachal Pradesh State Consumer Dispute Redressal Commission SHIMLA
Oriental Insurance Co.Ltd. & others (Appellants)
Vs.
Sohan Singh (Respondent)
Their Lordship has dismissed the appeal. In this appeal, and case law were referred, decided by S.C. and N.C.
(1) Angdu Ram Vs.United Indian Insurance Co.Ltd.Appeal No.155 of 2002
(2) Ashok Gangadhar Maratha Vs. Oriental Insurance Co.Ltd.
III (1999) CPJ- 5 (SC)- VII (1999) SLT 317 AIR 1999 SC 3181
(3) United India Insurance Co.Vs. Jaya Rajendrakumar Nanda I (2004) C.P.J.-25 (N.C.)
(4) Prabhakar Transporters Vs. National Insurance Co.Ltd.
III (2003) CPJ-125 (NC)-2004 (I) JRC (310) (N.C.)
(5) National Insurance Co.Ltd. Vs. Baljeet Kaur & others
1 (2004) ACC 259 (SC)- 1(2004) SLT269-F (2004) CLT257 (SC)
It was held that :-
“We will first take up plea regarding gratuitous passengers being carried and thus appellant being not liable for payment of any compensation when a reference is made to the cover note, it shows that the premium was charged by the appellant to cover the risk in respect of one driver, one cleaner and four labourers in addition to the third party property damages. In these circumstances unless it was shown that by carrying gratuitous passenger violation was such a nature which was fundamental in its’s character. Appellant can not escape it’s liability. If the submission of Mr. Bhasin is taken to it’s logical end, it will be defeated the purpose of beneficial legislation like Consumer Protection Act. When labourers were carried premium have been charged by the appellant qua them,if it is bound to indemnity the owner, but qua the socalled gratuitous passenger appellant want to be exonerated. Another reason to negative this plea of Mr.Bhasin is that it is not the case of his client that gratuitously carried passengers in the vehicle at the time of accident was the sole, absolute as well as the only cause of accident. Accordingly plea argued by Mr.Bhasin in this behalf is hereby rejected “.
In the light of above case law we are inclined to hold that the accidental Tata Sumo Jeep was not used for commercial purpose by the complainant.
11 The perusal of the documents produced on record by the parties makes it crystal clear that the O.P.No.1 &2 have repudiated the claim of the complainant on flimsy grounds of use of the vehicle for commercial purposes. However, the O.P. have failed to substantiate their claim. As such we are inclined to hold that the O.P. are guilty of deficiency in services and hence we answer the point in affirmative.
12 There is no any record or submission about the appointment of surveyor to assess the loss of vehicle. Safeway Motors is the authorized service centre of Tata Motors. He has given the estimate for about 5 lakhs repairing charges. But complainant has for the time being, got repaired for Rs.2,90,646/- complainant has done the insurance of his vehicle for Rs.2,90,010/- only. So he will be liable for claim up to this amount only. Though he has expensed some more amount . O.P.No.1 and 2 has opportunity before repairing to pay only this much amount to complainant and can take over the possession of this vehicle after clearing the loan amount. But O.P. failed to do this,
13 Hence O.P. is liable to pay the insurance amount to complainant and also interest from the date of repudiation of claim till realization with interest and also the cost of complaint with mental and physical torture. So we proceed to pass following order :- ORDER
1 Complaint is allowed.
2 O.P.No.1 and 2 directed to pay Rs.2,90,010/- as claim of accidental TaTa Sumo Vehicle No. MH-35/M-168 within one month from the date of this order.
3 O.P.No.1 and 2 are also directed to pay interest @12% per annum on above amount from 1-2-2008 till payment.
4 O.P.No.1 and 2 have also to pay Rs.5000/- as the cost of complaint case and damages of mental and physical torture.
