Punjab

Nawanshahr

CC/94/2016

Balbir Singh - Complainant(s)

Versus

M/S Cargo Motors - Opp.Party(s)

Gurdial Singh

15 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR.

                  

                     Consumer Complaint No.  94 of 14.10.2016

                      Date of Decision             :   15.05.2017

 

 

Balbir Singh son of Karnail Singh resident of Village Bharta Khurd, Tehsil Nawanshahr, District SBS Nagar.                                                                                                                           ….Complainant

Versus

1.       M/s Cargo Motors Pvt. Ltd. Chandigarh Road, Nawanshahr, District SBS Nagar through its Branch Manager.

2.       The New India Assurance Company Limited, Head Office, The New India Assurance Building, 87, M.G. Road, Fort Mumbai – 400 001, through its Chairman – cum – Managing Director.

3.       The New India Assurance Company Limited, Branch Office Chandigarh Road, Nawanshahr through its Branch Manager. 

                                                                    ….Opposite Parties

                   Complaint under Section 12 of the Consumer Protection Act, 1986

ARGUED BY:

For complainant            :         Sh.Gurdial Singh, Advocate

For OP-1                        :         Sh.Avtar Manmohanjit Singh, Advocate

For OP No.2                  :         Ex parte

For OP No.3                  :         Sh.S.S. Kundra, Advocate

 

QUORUM:

S.KARNAIL SINGH, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 ORDER

S.KARNAIL SINGH, PRESIDENT

1. The present complaint has been presented by Balbir Singh wherein it is alleged that complainant is owner of truck bearing registration No.PB-32-L-9349.  The complainant is engaged in the transport business for earning his livelihood and that of his family. That on 16.10.2014, the truck bearing registration No.PB-32-L-9349 being plied empty from Delhi to Jaipur and was driven by Pritpal Singh, the driver employed by the complainant on the said truck who was holding a valid and effective driving license valid from 29.07.2015 upto 24.01.2017 as verified by District Transport Officer, SBS Nagar.  When the truck of complainant reached within the limits of town Rewari in the State of Haryana, a trailer was going ahead of the truck.  The driver of the trailer abruptly applied brakes and the trailer suddenly came to halt, as a consequence of which the truck bearing No.PB32-L-9349 driven by Pritpal Singh its driver at the moderate speed dashed on the rear side of the trailer got damaged extensively and was rendered totally unworthy of being plied on the road.  The truck in question  bearing registration No.PB-32-L-9349 was comprehensively insured with New India Assurance Company Limited through the OP Cargo Motors Pvt. Limited Nawanshahr.  Due intimation of the accident was immediately given to the OP who directed the complainant to take the ill-fated truck to Delhi for necessary repairs after paying towing charges from Rewari to Delhi.  However, M/s Cargo Motors Delhi, told the complainant that they had no password and the complainant was to pay cash for repairs and the OP was intimated about the same.  The OP told the complainant to bring the ill-fated truck in question to Nawanshahr and accordingly the truck in question was towed to Nawanshahr by paying the towing charges of Rs.26,200/- to M/s Anshu Cranes Delhi and truck in question was entered in the workshop of OP-1.  The New India Assurance Company Limited deputed its investigator and surveyor who prepared and submitted the estimate of the damage caused to the truck in question, investigation report and survey report etc.  The loss assessment report was submitted by surveyor M/s Arun Kumar and Company, Jalandhar.  As per norms, the damages vehicle i.e. truck registration No.PB32L-9349 owned by complainant was to be repaired within 10 days from the date of its arrival in the workshop of the OP-1.  However, OP-insurance company kept the truck in question for over a period of one month and in this way the truck of the complainant remained idol and out of the road for 20 days.  In normal course of events, a heavy vehicle such as truck as in the case of complainant earns atleast Rs.3,000/- a day and computed at the said rate, the complainant is entitled for Rs.60,000/- from OP.  The complainant is also entitled to a sum of Rs.34,500/- on account of crane charge for towing  the truck in question from Rewari to Delhi and then from Delhi to premises of OP-1 at Nawanshahr. The OP illegally made deduction of Rs.73,900/- towards depreciation charges instead of Rs.39,685/- which was the actual amount to be deducted on account of depreciation and in this way the OP received an amount of Rs.32,715/- in excess from complainant and complainant is entitled to refund the said amount.  Thus, in aggregate the complainant is entitled to recover Rs.1,27,215/- from the OP alongwith interest @12% per annum from the date of filing of the complaint till realization. Despite repeated request and visits to the OP-insurance company, the OPs have failed to pay Rs.1,27,215/- to the complainant, for which they have legally bound to pay to the complainant alongwith interest @12% per annum and as such necessity arose to file the present complaint with the prayer that complaint of the complainant may be accepted and OPs be directed to pay Rs.1,27,215/- with interest @12% per annum from the date of filing of this complaint till realization and further OPs be directed to pay Rs.50,000/- on account of compensation for deficiency in consumer services and costs of litigation expenses. 
2. Notice of the complaint was given to the OPs.  Despite service OP-2 failed to appear and ultimately OP-2 was proceeded against exparte. OP No.1 filed written reply to the complaint and contested the same by taking preliminary objections that complaint in the present form is not maintainable and then complaint is not being covered under the provisions of Consumer Protection Act and further alleged that complainant is estopped by his own act and conduct and further submitted that replying OP is neither deficient in service nor is guilty of any unfair trade practice.  The present complaint has been filed to harass the OP and further alleged that complaint is not maintainable as it is beyond warranty and vehicle is being used for commercial purpose, hence the complaint is covered under the Consumer Protection Act.  On merits, it is admitted the vehicle stands in the name of complainant.  It is also admitted that vehicle in question was brought to workshop of replying OP on 22.10.2014 and further alleged that every accidental vehicle takes its own time for repairs, the same depends upon the damages of the vehicle as such allegations of complainant that insurance company had kept the truck for more than one month is not acceptable.  The other allegations made in the complaint are categorically denied and lastly prayed for dismissal of the complaint.
3. OP No.3 filed its separate written reply and contested the complaint and took almost similar objections that has been taken by OP No.1.  On merits, it is admitted that vehicle stand in the name of complainant and the vehicle is being used for commercial purposes.  The vehicle was brought to workshop of the OP No.1 on 22.10.2014.  The other averments made in the complaint are denied and lastly prayed the complaint may be dismissed.      
4. In order to prove the claim of complainant, counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A alongwith photocopies of documents Ex.C-1 to Ex.C-45 and closed the evidence.
5. Similarly, counsel for OP No.1 has tendered into evidence affidavit of Sh.I.D. Sharma, Ex.OP1/A, affidavit of Sh.Jugal Kishore Ex.OP1/B alongwith photocopies of documents Ex.OP1/1 to Ex.OP1/6 and closed the evidence.  The counsel for OP-3 has also tendered into evidence affidavit of Sh.Ashok Kumar, Divisional Manager Ex.RW1/A and final survey report of surveyor Arun Kumar Ex.RW1/B and re-inspection survey report of Arun Kumar Ex.RW1/C and closed the evidence.
6. We have heard the learned counsel for respective parties and also gone through complaint file alongwith documents very carefully.
7. The main assertion of the complainant is that the accidental truck of complainant is required to retain for repair purpose upto maximum 10 days from the date of its arrival to OP No.1 but as the OP No.1 has retained the truck of complainant for a period of one month and in this way caused of loss suffered by the complainant in daily of Rs.3,000/- for 20 days and it comes to Rs.60,000/-.  Apart from that further allegation of the complainant is that the OP has deducted excess depreciation charges and as such the complainant is entitled to recover Rs.1,27,215/- including Rs.60,000/- and further he is also entitled for compensation of Rs.50,000/-.
8. We think that the allegations of the complainant in regard to deduction of excess depreciation charges is not establish in any manner. So for the concern of retaining the accidental vehicle of the complainant for a period of one month and as such the complainant has claimed for loss for 20 days and he suffered loss of Rs.3,000/- per day.  But we  agreed with the submission of OP that retention of the vehicle in the workshop depends upon damages caused to the vehicle and there is no any government/insurance company guidelines or rules that accidental vehicle is only to retain for 10 days, and for that purpose complainant is required to place on the record any government guidelines or government rules if any, but nothing has been placed on file.  Thus the allegation of the complainant is not sustainable. 
9. Apart from above, there is an other lacuna in this case, which is highlighted by the counsel for the OP that the truck is being plied by the complainant for commercial purpose.  In order to ascertain the above assertion of the counsel for OP, we find that complainant himself stated in the complaint that the truck is being driven by his driver Pritpal Singh who was engaged as employee for driving the truck in question.  If the complainant has taken the benefit of the Section 2(d) (explanation) of Consumer Protection Act, then he has to refer that he is running the truck exclusively for the purpose of earning his livelihood by means of self employment, then it can be considered that truck is not plied for commercial purpose, but the said plea has not been taken by the complainant, rather the complainant himself stated that he engaged driver for truck in question, then it is clear cut case that vehicle of complainant is for commercial purpose.         
10. In view of above discussion, the complaint of complainant is not maintainable and same is dismissed with no order as to costs.
11. Complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be sent to the parties, as permissible, under the rules.

Dated 15.05.2017                                                         

 

 

(Kanwaljeet Singh)                (Karnail Singh)

Member                                  President