CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)x
New Delhi – 110 016
Case No. 08/2007
SMT. ALKA MISHRA
THROUGH HER HUSBAND SH. R.K. MISHRA
T-86 J FIRST FLOOR, SARAI KALE KHAN,
NEW DELHI
………. COMPLAINANT
Vs.
- MARKETING TIMES AUTOMATES PVT.LTD.
A-1, CHIRAG ENCLAVE, NEW DELHI-110048
- MARUTI UDDHYOD LTD, 6th FLOOR, HANSALAYA BUILDING, 15, BARAKHAMBH ROAD, NEW DELHI-110001
- NATIONAL INSURANCE CO. LTD.
DIVISION NO.10, FLAT NO. 101-106,
N-1, BMC HOUSE, CANNAUGHT PLACE,
NEW DELHI-110001
…………..RESPONDENTS
Date of Order: 05/01/2018
O R D E R
Ritu Garodia-Member
The complaint purchased a Maruti Omni (LPG Van Cargo) which was duly insured by OP3. Some parts of the said vehicle was stolen on 17/08/2006. FIR was registered and the vehicle was handed over to OP1 for repair.
It is alleged that the husband of complainant was forced to sign on insurance claim papers by OP1 which kept on extending time for repair as a part named “speed governor” was not available. The complaint was intimated on 23/11/2006 about the acceptance of insurance claim. The complainant was asked to pay Rs. 6,500/- towards balance payments. It is alleged that the amount of 6500/- was paid to OP1 on 24/11/2006 and blank stamp papers were signed by the husband of the complainant. A gate pass was issued to the complainant who was informed that vehicle will be released after ten days. The insurance cover on the vehicle had also elapsed on 6/09/2006.
Subsequently, on 5/12/2006 the complainant received an intimation from a neighbour that the vehicle was damaged and parked at Sarita Vihar Police Station. On investigation, it was found that the vehicle was being driven by one Noor Alam who was a staff member of OP1 when it was hit by a truck. A FIR dated 25/11/2006 was registered in police station Sarita Vihar on behalf of Noor Alam. The complainant has also requested OP 3, insurance company not to release the claim amount to OP 1. The complainant prays for compensation.
OP1 in its reply has stated that, the husband of complainant had left the vehicle on 18/08/2006 for replacement of stolen part along with a copy of FIR. The vehicle was covered under insurance. Cashless facility is usually not provided by the insurance in cases of theft. It was emphasised that the vehicle would only be delivered after payment of full amount. After repair was completed, it is imputed that OP1 made several calls to the complainant, but she did not take the delivery of the vehicle. It was only on 14/11/2006, the complainant was available and was handed over a bill of Rs.41,262/-. A telephonic instruction was given by OP3 insurance company for cashless facility. The payment of Rs. 6,500/- was made by the husband of the complainant on 24/11/2006, towards remaining charges and a gate pass given to him.
It is alleged that, the husband of the complainant took possession of vehicle on 24/11/2006 but it could not start due to lack of patrol. It is imputed that the vehicle was completely operational on that day.
It is imputed that, subsequently, the husband of the complainant approached OP on 25/11/2006. It is alleged that the complainant explained that the vehicle was giving problem while running on LPG and another job card bearing no. 23614 was issued with the remark “starting problem”. It was advised by OP to fill the LPG cylinder in the said vehicle and a driver named Noor Mohamad was sent with husband of complainant to nearby LPG filling station. A temporary gate pass was made on 25/11/2006 which is alleged to be signed by the husband of complainant.
It is further stated that, a call was received by OP informing that the vehicle had met with the accident. The officials of OP rushed to the spot where they were informed by the husband of the complainant that he was doing the needful.
On 9/01/2007, OP1 received an intimation from OP3 insurance company that complainant has requested the insurance company to stop the payment to be made to OP1 service centre. A police complaint for the outstanding dues of Rs. 35,412/- was lodged on 10/01/2007. OP1 has filed job sheet dated 18/08/2006, invoice dated 31/10/2006, invoice dated 25/11/2006 and complaint dated 10/01/2007.
OP2 who is a manufacturer prays for discharge as there was no transaction between OP2 and the complainant. There was no consideration paid to OP2 for the service provided by the OP1.
OP3 has admitted the theft of some parts of the vehicle in dispute on 17/8/2006. The insurance company is willing to pay the claims either to the complainant or service station.
We have gone through the case file. The first contention raised on behalf of OP1 is that complainant is not a consumer as vehicle has been purchased for commercial purposes. It is significant to note that complainant has specifically stated that she is a small business woman and has purchased the vehicle for the purpose of earning her livelihood. Hence complainant is a consumer. It is admitted by all parties that the complainant is the owner of Maruti Omni having Registration DL1LG 1854 which was duly insured by OP vide policy no 9307999 for a period from 7/09/2005 to 6/9/2006 for IDV of Rs. 1,77,959/-. It is also admitted that some parts of said vehicle were stolen on 17/8/2006 and it was handed over for repair to OP1. FIR was duly registered. It is undisputed that OP3 was willing to release the claim to OP1 and complainant paid Rs. 6,500/- to OP1 for remaining repair on 24/11/2006. The insurance cover elapsed on 6/9/2006 while the vehicle was still in possession of OP1.
It is undisputed that vehicle had an accident on 25/11/2006. The only issue for consideration before us is who was in possession of vehicle at the time of accident. FIR dated 25/11/2006 clearly states that it was lodged by Noor Alam. It is stated by Noor Alam in FIR “that he is working as a driver for OP1 and had taken the vehicle to gas station for refilling when the said vehicle was hit by EICHER CANTER bearing no. HR38L 5569. The said FIR nowhere mention that husband of complainant was accompanying Noor Alam when the accident happened. OP1 story that vehicle was released to complainant and a temporary gate pass was issued on 25/11/2017 is not supported by any evidence. Even the job sheet issued by OP1 dated 25/11/2006 shows delivery date/time as 26/11/2006 at 17:00. No delivery was given to complainant on 25/11/2006.
From the factual matrix of the case, it becomes abundantly clear that OP1 was in possession of vehicle. As per version contained in OP1’s reply, the complainant has taken possession of car with Noor Alam, an employee, accompanying him whereas in FIR lodged by Noor Alam, complainant’s name is not even mentioned. There is a clear contradiction. It is highly improbable that vehicle which was to be delivered on 26/11/2006 was given to complainant on 25/11/2006. It appears that it is concocted story built up by OP1 to escape its liability. It is obvious that OP1 failed to take due care of vehicle which was entrusted to them. Hon’ble High Court Delhi in New India Assurance v/s Delhi Development Authority AIR 1991 Delhi 298 has observed “essence of bailment is possession. The possession of the truck was handed over to the defendants when the truck was parked in the Parking Centre of the defendants.
We find OP-1 guilty of gross negligence and direct it to pay Rs 1,77,000/- as compensation with 9% interest from date of filing till payment. We also award Rs.5,000/- as litigations costs.
OP-3 will release the amount due in respect of theft of parts in favour of OP1. Once the amount is paid to complainant by OP1, OP1 shall be deemed to be the owner of the vehicle in question bearing registration no DL-1LG-1854 and will get the same registered in his name.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (A.S YADAV)
MEMBER PRESIDENT
