Punjab

Ludhiana

CC/15/92

Balljinder Kaur - Complainant(s)

Versus

Mandeep Singh Prop of M/s G.D.Auto Mobiles - Opp.Party(s)

R.S.Mand

20 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

 

Consumer Complaint No. 92 of 12.02.2015

Date of Decision          :   20.02.2017

 

Baljinder Kaur aged about 50 years wife of Gurjit Singh resident of VPO Shaheed Kartar Singh Nagar Sarabha, Tehsil & District Ludhiana.

….. Complainant

Versus 

1.Mandeep Singh, Proprietor of M/s. G.D.Auto Mobiles, Pakhowal Road, Jodha, District Ludhiana.

2.National Insurance Company, Second Floor, SCO 38, Feroze Gandhi Market, Ludhiana, Punjab-141001.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.R.S.Mand, Advocate

For OP1                         :         Ex-parte

For OP2                         :         Complaint already dismissed as withdrawn 

vide order dated 18.4.2016.

 

PER G.K DHIR, PRESIDENT

 

1.                          Son of complainant namely Sh.Sukhwinder Singh expired on 5.5.2012 in a road accident. That Sukhwinder Singh was owner of one Motor cycle make Bajaj Platina bearing registration No.PB-10-DL-7914. After death of Sukhwinder Singh, OP1 kept RC and other documents of the motor cycle in his possession by claiming that those are required for giving claim to the complainant. Despite that claim has not been given to the complainant till date, and nor those documents returned back. Op1 misappropriated the claim regarding the said motor cycle after receiving the same from OP2. OP1 demanded sum of Rs.10,000/- from the complainant in illegal manner and in case, the amount not paid, then he threatened not       to return the motor cycle to the complainant. By pleading deficiency in service and adoption of unfair trade practice on the part of Ops, claim for damages of Rs.50,000/- and compensation of Rs.25,000/- on account of deficient service       put forth.

2.                In written statement filed by Op1, it is claimed that allegations levelled in the complaint are false; complaint filed for abusing the process of law; no cause of action has accrued to the complainant against OP1. Rather, it is claimed that the complainant has not paid the amount of repair bill till today. Insurance company paid Rs.9250/- to OP1, but rest of the repair bill amount to be paid by the complainant. Despite repeated calls to the complainant to pay the amount, she has not done so, but filed this false complaint. When complainant got the motor cycle of her son from the police station, then she herself suffered statement for claiming that no document was found from the motor cycle and nor any money was found therefrom. It is claimed that the complainant is not having any original documents with her and that is why only photostat copy of RC and driving license was given to Op1 for getting the claim amount from the insurance company. Each and every other averment of the complaint denied by claiming that there is no deficiency in service on the part of OP1.

3.                In separate written statement filed by OP2, it is claimed that the complaint barred in view of Section 26 of the Consumer Protection Act. Sh.Sukhwinder Singh, son of complainant obtained insurance policy bearing No.404502/31/11/6200005678 for the period from 2.1.2012 to 1.1.2013 of Bajaj Platina Motor Cycle bearing registration No.PB-10-DL-7914 from OP2. As      said Sukhwinder Singh met with an accident and died and as such, the said motor cycle was taken into possession by the police of P.S.Jodhan. The claimant has got the motor cycle from the police station on 9.8.2012. Intimation dated 23.11.2012 duly signed by Sukhwinder Singh, the owner of the motor cycle, was submitted to OP2 for intimating as if he met with an accident on 15.11.2012. After receipt of this intimation, Op2 appointed Sh.Kuldip Kumar, surveyor/loss assessor. That surveyor visited OP1 and took the photos of the damaged motor cycle and its spare parts. Loss of the motor cycle assessed at Rs.9250/-. Op1 repaired the motor cycle. After receipt of final(cashless) report dated 26.12.2012 from the appointed surveyor, OP2 paid a sum of Rs.9250/- on 22.3.2013 to OP1. After this payment, nothing is due against OP2 and as such, present complaint alleged to be false and frivolous one. Claimant in her statement recorded to the police claimed that death of Sukhwinder Singh took place on 5.5.2012 in the accident, but the claim intimation dated 23.11.2012 has been signed by Sukhwinder Singh. So, those signatures on the claim intimation of Sukhwinder Singh were after his death. Even claim form has been signed by Sukhwinder Singh, the owner of the motor cycle. Claimant has not filed the death certificate of Sukhwinder Singh. Assessed loss amount of Rs.9250/- by the surveyor has already been paid to the repairer i.e. OP1 and as such, liability of OP2 is not there at all. Each and every other averment of the complaint denied.

4.                Complaint to prove her case tendered in evidence her affidavit Ex.CW along with documents Ex.C1 to Ex.C5 and even tendered affidavits Ex.CB of Sh.Amar Singh and Ex.CC of Sh.Tarsem Singh and thereafter, complainant closed the evidence.

5.                On the other hand, Sh.Mandeep Singh, Proprietor of OP1 tendered in evidence his affidavit Ex.RO/1 along with documents Ex.R1/1 to Ex.R3/1 and then closed the evidence.

6.                Sh.M.S.Jassal, Advocate for OP2 tendered in evidence affidavit Ex.RA2 of Sh.Bikkar Singh, Branch Manager along with documents Ex.R1 to Ex.R36 and then closed the evidence.

7.                Thereafter, counsel for the complainant suffered statement on 18.4.2016 for withdrawing the complaint against OP2 by claiming that the complaint will be proceeded against OP1 only. In view of that recorded statement of 18.4.2016 of complainant and her counsel Sh.R.S.Mand, Advocate, complaint against OP2 was dismissed as withdrawn.

8.                Thereafter, when the case was fixed for arguments, OP1 failed to  turn up on 19.12.2016, 17.01.2017 and 31.01.2017 and as such, OP1 was proceeded against ex-parte vide order dated 31.1.2017.

9.                Written arguments not submitted by the complainant. Oral arguments alone addressed and those were heard. Records gone through minutely. 

10.              Complainant in the complaint as well as in the application Ex.C1 filed with S.S.P.Jagraon claimed that death of her son Sukhwinder Singh took place on 5.5.2012 in a road accident. Claim intimation form Ex.R2 dated 23.11.2012 bears the signature of Sukhwinder Singh and as such, it is obvious that virtually claim intimation form even concocted because if death of Sukhwinder Singh took place on 5.5.2012, then how he could have put his signature on claim intimation form Ex.R2 of 23.11.2012. So this shows that the complainant possessing capacity to maneouver or concoct story.

11.              Through application Ex.C1, complaint was filed against OP1 to the effect that he has not returned back the motor cycle in question to the complainant. However, copy of statement Ex.C2=Ex.R2/1 of complainant recorded by police establishes that the said motor cycle was taken into possession by the police, but the same was got back by the complainant on 9.8.2012 from the police. On footnote of Ex.C2=Ex.R2/1, it is mentioned that no document was there in the motor cycle and nor there was any money therein, but the key of the motor cycle is already lost. This documentary evidence available on record establishes that the original documents of the motor cycle consisting of RC or driving license were not there in the motor cycle, when the possession of the same got by the complainant from the police. Only after getting the motor cycle in possession by the complainant from the police, she would have given the motor cycle for repair to OP1 and not before that. As the documents were not available in the motor cycle and as such, question of handing over the original RC or driving license by complainant to OP1 does not arise. So story in this respect virtually has been concocted by the complainant through complaint as well as through application Ex.C3 filed with S.H.O. Police Station, Jodhan, Ludhiana. Photostat copy of RC Ex.C4 and that of insurance policy Ex.C5 produced on record.

12.              Another grievance of the complainant is that OP1 after having documents of RC etc., has not returned the same and has mis-appropriated the claim amount got from the OP2. Affidavits Ex.CB and Ex.CC of witnesses tendered in evidence in that respect not believable at all, particularly when RC and other documents not found in the motor cycle at the time, when the possession of the same got by the complainant from the police as referred above. Rather, these documents were never handed over by the complainant to OP1 and that is why the complainant has not produced the copy of any job sheet.

13.              OP1 Mandeep Singh, proprietor has produced on record invoice Ex.R1/1 for proving that on account of repair of the motor cycle in question, an amount of Rs.14,423/- was chargeable by him. Further, copy of statement of account of OP1 Ex.R3/1 produced on record to establish that amount of Rs.9250/- received by OP1 from the insurance company on 25.3.2013. This amount of Rs.9250/- was received by OP1 from OP2 in view of the awarded claim amount by OP2 in respect of the accidental loss to the motor cycle in question. Claim intimation Ex.R2 was submitted under signature of Sukhwinder Singh (despite the fact that he was deceased on the date of submission of intimation dated 23.11.2012). Claim form Ex.R3 under signature of Sukhwinder Singh was submitted and bill Ex.R4=Ex.R1/1 was received by the insurer i.e. OP2 from OP1 as estimate of the repairs of the motor cycle in question. Ex.R5 is bill of repair showing that Rs.14,423/- in fact is required. Survey report Ex.R6 of Sh.Kuldip Kumar, surveyor/Loss Assessor there on record to show that net payable insured amount was assessed at Rs.9250/-. Photostat copies of photographs of the accidental motor cycle in question produced on record as Ex.R7 to Ex.R35. After this report of surveyor, amount of Rs.9250/- was passed for payment and disbursement of the same in account of OP1 took place through voucher Ex.R36. In view of this documentary evidence available on record, it is obvious that though OP1 was to charge Rs.14,423/- for repair of the motor cycle in question, but from the insurer, he got Rs.9250/- alone. Being so, complainant liable to pay the balance outstanding amount of the repair, but that amount has not been paid, despite demand by OP1 and as such, in view of complaint being filed with concocted version, complainant not entitled to any relief. Rather, OP1 being repairer has lien over the motor cycle in question for getting the balance amount of Rs.5173/-. So relief of return of the motor cycle in question cannot be granted in favour of the complainant unless payment of the balance amount of Rs.5173/- is made by the complainant to OP1. Return of the documents cannot be ordered because those are not proved to be handed over by the complainant to OP1. So, no deficiency in service on the part of OP1 is there. Complaint against OP2 has already been dismissed as withdrawn by the counsel for the complainant by suffering statement on 18.4.2016.

14.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                      (G.K.Dhir)

                       Member                                                President

Announced in Open Forum

Dated:20.02.2017.

Gurpreet Sharma.