Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased vehicle of Ashok Leyland bearing name/ Logo of A.L.Dost (Transport Vehicle) bearing No.PB-29R-7340 which was purchased by him from Opposite Party No.3 through Opposite Party No.1. Further alleges that the vehicle in question is insured with Opposite Party No.4 vide policy No.401603/31/16/6300000307) for the period 30.05.2016 to midnight of 29.05.2017 for a sum of Rs.4,50,000/-, copy of policy is placed on record as Ex.C1. In the month of February, 2017 the vehicle of the complainant met with an accident as it hit with a tree and in this regard, the claim was lodged under the policy. After completion of all the documentation and other conditions/ formalities regarding the repair of damaged vehicle of the complainant, the damaged vehicle was repaired from the workshop of Opposite Party No.3. It is necessary to make emphasis on this f act that some of the amount out of the total claim was deposited by the complainant as per the terms and conditions of the policy as the policy in question was cashless. After repair of the damaged vehicle, the vehicle was running in the hands of the complainant regularly, but in the month of November, 2017 due to some problem in said vehicle of the complainant, when he approached again to Opposite Party No.1 , the officials of Opposite Party No.1 impound the vehicle of the complainant illegally and without any rhyme and reason, telling that claim of the vehicle is still pending and hence, they can not deliver the possession of the vehicle and since then, the vehicle is impound in the workshop of Opposite Party No.1 as the officials of Opposite Party No.1 have no right to do so as the claim of the said vehicle has already been settled. Due to non delivery of the insured vehicle, the complainant is suffering huge loss as the said vehicle is the only earning source of the complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Necessary action may please be taken against the Opposite Parties to deliver back the possession of the vehicle in question and also to pay Rs.80,000/- to the complainant on account of mental tension, torture and financial loss.
2. Opposite Parties No.1 to 3 appeared through counsel and contested the complaint by filing the written version on the ground that the complaint of the complainant is not maintainable; that the complainant has got no locus standi to file the present complaint; that the complainant has concealed the material facts from this District Consumer Commission. In fact, the complainant got his vehicle repaired from the answering Opposite Parties and a bill of Rs.2,39,121/- is still outstanding towards the complainant. However, total amount of Rs.2,84,121/- was outstanding towards the complainant and he paid Rs.30,000/- in cash on 02.03.2017 and also paid Rs.15,000/- through cheque on 03.03.2017 and thereafter, he did not pay even a single penny to the answering Opposite Parties. However, when earlier the vehicle of the complainant was repaired, he had assured that the insurance company has approved his claim and will pay the said amount to the answering Opposite Parties, but lateron said claim of the complainant was rejected and nobody paid the outstanding bill to the answering Opposite Parties pending since 24.02.2017. When on 21.11.2017 the complainant again brought his truck to the workshop of the answering Opposite Parties for further repair, then the answering Opposite Parties asked the complainant about the earlier outstanding bill and kept the vehicle of the complainant and asked to take the vehicle till making the outstanding bill. As such, the answering Opposite Parties never rendered any deficiency in service. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. Opposite Party No.4 appeared through counsel and filed separate written reply taking preliminary objections on the ground that this District Consumer Commission has no jurisdiction to hear the complaint as the vehicle in question is commercial one (transport vehicle) and does not cover under the definition of the consumer defined under Consumer Protection Act and even in number of decision of Apex Court, the same has been held that commercial vehicle does not come under the jurisdiction of Consumer Commission and thus the present complaint is liable to be dismissed on this ground alone. The complainant has not come with clean hands and has not disclosed the true facts. Actual facts are that the complainant has taken the private carrier insurance policy of his transport vehicle in question from the answering Opposite Parties to use the said vehicle for carrying of Bread Cates of supplier company named as M/s.Mrs.Bectors Cremica Enterprises Limited on hire/ freight basis whereas the complainant was arranged private carriers policy but used the vehicle as public carrier which amounts to breach of terms and condition of limitation as to use of vehicle in this respect. Accordingly, as per the terms and conditions of the policy and under the provisions of Indian Contract Act, the claim in question has been repudiated after giving numerous opportunities to the complainant to give reply about use of his vehicle for public carriers instead of private carriers. Furthermore, the claim of the complainant was duly entertained, surveyed and investigated, but due to breach of the terms and conditions of the policy, the claim was repudiated vide letter dated 28.06.2017. On merits, Opposite Party No.4 took almost same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C2 to Ex.C6 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 to 3 tendered into evidence affidavit of Sh.Kulwant Singh MD Ex.OPs1 to 3/1 alongwith copies of documents Ex.OPs1 to 3/2 to Ex.OPs1 to 3/3 and closed their evidence. Similarly, Opposite Party No.4 tendered the affidavit of Kamaljit Singh, Ex.OP4/1 alongwith copies of documents Ex.OP4/2 to Ex.OP4/23 and closed the evidence on behalf of the Opposite Parties.
6. We have heard the ld.counsel for the parties and also perused the written arguments filed by the complainant and gone through the documents placed on record. Not only this, ld.counsel for Opposite Parties No.1 to 3 also made statement on 07.02.2019 before this District Commission that his written reply may be read as written arguments alongwith referred documents
7. During the course of arguments, ld.counsel for the parties have mainly reiterated the facts as narrated in the complaint as well as in written reply respectively.
8. Ld.counsel for the complainant has mainly contended that that first of all, the written reply filed by the Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Further contended that the Complainant had purchased the vehicle bearing registration No. PB 29 R-7340 from Opposite Party No.3 through its Branch Office i.e. Opposite Party No.1 having Registration date: 15.07.2016, copy of the RC of the vehicle in question is placed on record as Ex.C5. Ld.counsel for the Complainant further contended that the office of Insurance Company Opposite Party No.4 is set up in the workshop of Opposite Parties No.1 to 3 and the officials of Opposite Party No.4 by sitting in the office of Opposite Parties No.1 to 3 do the work of insurance of the vehicles. As such, at the time of purchase of the vehicle of the Complainant, the same was duly insured for IDV ofRs.4,50,000/- by Opposite Party No. 4 by sitting in their office situated in the premises of Opposite Parties No. 1 to 3, for the period valid w.e.f. 30.05.2016 upto 29.05.2017 against the premium of Rs.11,507/- vide policy copy of which is Ex.C1 and Ex.C2, which is duly stamped by Grover Motors Pvt.Ltd. Ludhiana Code-1761 which proves that all the Opposite Parties are hand in gloves with each other for selling the new vehicles and issuing the insurance policies. Ld.counsel for the Complainant further contended that at the time of selling the vehicle, the Opposite Parties No.1 to 3 assured that in case of any eventuality, they will at their own charge the payment from Opposite Party No.4 since the policy is cashless policy. So, on the assurance of Opposite Parties No.1 to 3, the Complainant purchased the policy in question bearing No.401603/31/16/6300000307 from Opposite Party No.4 having their office in the premises of Opposite Parties No.1 to 3. Further contended that the insured vehicle of the Complainant met with an accident and the Complainant immediately brought the vehicle in the workshop of Opposite Parties No. 1 to 3 which was duly repaired. After repairing the vehicle, the Opposite Parties No.1 to 3 charged Rs.45,000/- i.e. Rs.30,000/- in cash and Rs.15,000/- vide cheque from the Complainant and released the vehicle telling that the remaining amount they will charge from the Opposite Party No. 4 under the insurance. But when the Complainant again brought the vehicle in the workshop of Opposite Parties No.1 to 3 for some minor repair, then the officials of the Opposite Parties No.1 to 3 retained the vehicle of the complainant and told to pay the remaining amount otherwise they will not release the vehicle in question which is totally against the law of land. Since the vehicle in question met with an accident within the policy period, the Opposite Parties No.1 to 3 as assured, have to reimburse the remaining amount from Opposite Party No.4 at their own as they all are hand in gloves with each other. The Complainant made so many requests to the Opposite Parties No.1 to 3, but they refused to release the vehicle in question which is the only source of the income of the Complainant and due to no release of the vehicle in question, the Complainant is suffering a lot and contended that there is deficiency in service on the part of the Opposite Parties.
9. On the other hand, ld.counsel for the Opposite Parties repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that the complainant got his vehicle repaired from Opposite Parties No.1 to 3 and a bill of Rs.2,39,121/- is still outstanding towards the complainant. It is admitted that total amount of Rs.2,84,121/- was outstanding towards the complainant and he paid Rs.30,000/- in cash on 02.03.2017 and also paid Rs.15,000/- through cheque on 03.03.2017 and thereafter, the Complainant did not pay any amount to Opposite Parties No.1 to 3. It is also admitted that when earlier the vehicle of the complainant was repaired, he had assured that the insurance company has approved his claim and will pay the said amount to the answering Opposite Parties, but lateron said claim of the complainant was rejected and nobody paid the outstanding bill to the answering Opposite Parties pending since 24.02.2017. When on 21.11.2017 the complainant again brought his truck to the workshop of the answering Opposite Parties for further repair, then the answering Opposite Parties asked the complainant about the earlier outstanding bill and kept the vehicle of the complainant and asked to take the vehicle till making the outstanding bill. As such, the answering Opposite Parties never rendered any deficiency in service.
10. Similarly, ld.counsel for Opposite Party No. 4 also contended that admittedly the complainant has taken the private carrier insurance policy of his transport vehicle in question from Opposite Party No. 4 to use the said vehicle for carrying of Bread Cates of supplier company named as M/s.Mrs.Bectors Cremica Enterprises Limited on hire/ freight basis whereas the complainant was arranged private carriers policy but used the vehicle as public carrier which amounts to breach of terms and condition of limitation as to use of vehicle in this respect. Accordingly, as per the terms and conditions of the policy and under the provisions of Indian Contract Act, the claim in question has been repudiated after giving numerous opportunities to the complainant to give reply about use of his vehicle for public carriers instead of private carriers. Furthermore, the claim of the complainant was duly entertained, surveyed and investigated, but due to breach of the terms and conditions of the policy, the claim was repudiated vide letter dated 28.06.2017.
11. First of all, as argued by the ld.counsel for the Complainant, perusal of the file shows that the written versions filed on behalf of all the Opposite Parties have not been filed by an authorized person. Therefore, the written versions so filed are not maintainable. Opposite Parties are limited Companies and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Parties. He has relied upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, it was held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognised under law and ultimately, it was held that the plaint was not instituted by an authorised person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
12. For the sake of arguments, if it is admitted that the written version filed by the Opposite Parties is legal. Now come to the merit of the case. It is not the denial of the case of the parties that Complainant had purchased the vehicle bearing registration No. PB 29 R-7340 from Opposite Party No.3 through its Branch Office i.e. Opposite Party No.1 having Registration date: 15.07.2016, copy of the RC of the vehicle in question is placed on record as Ex.C5. It is nowhere denied by the Opposite Parties that the office of Insurance Company Opposite Party No.4 is set up in the workshop of Opposite Parties No.1 to 3 and the officials of Opposite Party No.4 by sitting in the office of Opposite Parties No.1 to 3 do the work of insurance of the vehicles. It is also not denied that at the time of purchase of the vehicle of the Complainant, the same was duly insured for IDV ofRs.4,50,000/-by Opposite Party No. 4 by sitting in their office situated in the premises of Opposite Parties No. 1 to 3, for the period valid w.e.f. 30.05.2016 upto 29.05.2017 against the premium of Rs.11,507/- vide policy copy of which is Ex.C1 and Ex.C2, which is duly stamped by Grover Motors Pvt.Ltd. Ludhiana Code-1761 which proves that all the Opposite Parties are hand in gloves with each other for selling the new vehicles and issuing the insurance policies. The case of the Complainant is that at the time of selling the vehicle, the Opposite Parties No.1 to 3 assured that in case of any eventuality, they will at their own charge the payment from Opposite Party No.4 since the policy is cashless policy. So, on the assurance of Opposite Parties No.1 to 3, the Complainant purchased the policy in question bearing No.401603/31/16/6300000307 from Opposite Party No.4 having their office in the premises of Opposite Parties No.1 to 3. Further contended that the insured vehicle of the Complainant met with an accident and the Complainant immediately brought the vehicle in the workshop of Opposite Parties No. 1 to 3 which was duly repaired. After repairing the vehicle, the Opposite Parties No.1 to 3 charged Rs.45,000/- i.e. Rs.30,000/- in cash and Rs.15,000/- vide cheque from the Complainant and released the vehicle telling that the remaining amount they will charge from the Opposite Party No. 4 under the insurance. But when the Complainant again brought the vehicle in the workshop of Opposite Parties No.1 to 3 for some minor repair, then the officials of the Opposite Parties No.1 to 3 retained the vehicle of the complainant and told to pay the remaining amount otherwise they will not release the vehicle in question which is totally against the law of land. Since the vehicle in question met with an accident within the policy period, the Opposite Parties No.1 to 3 as assured, have to reimburse the remaining amount from Opposite Party No.4 at their own as they all are hand in gloves with each other. The Complainant made so many requests to the Opposite Parties No.1 to 3, but they refused to release the vehicle in question.
13. On the other hand, the only contention of the Opposite Party No. 4 is that it is not disputed that the vehicle in question was insured with them for an IDV of Rs.4,50,000/- but the claim of the Complainant was repudiated only on the ground that the complainant has taken the private carrier insurance policy of his transport vehicle in question from Opposite Party No. 4 to use the said vehicle for carrying of Bread Cates of supplier company named as M/s.Mrs.Bectors Cremica Enterprises Limited on hire/ freight basis whereas the complainant was arranged private carriers policy but used the vehicle as public carrier which amounts to breach of terms and condition of limitation as to use of vehicle in this respect. Accordingly, as per the terms and conditions of the policy and under the provisions of Indian Contract Act, the claim in question has been repudiated after giving numerous opportunities to the complainant to give reply about use of his vehicle for public carriers instead of private carriers. However, learned counsel argued that since the Complainant has initially paid the amount of Rs.45,000/- to Opposite Parties No.1 to 3 and get released the vehicle, but when the Complainant again brought the vehicle second time for its repair, then the Opposite Parties No.1 to 3 retained the vehicle, but as per the law of land, the lien of the Opposite Parties No.1 to 3 upon the insured vehicle was immediately & at the time of course of transaction only if they release the vehicle once by charging Rs.45,000/- from the Complainant then they can not retain the vehicle time and again without any reasonable cause under one lien. Even if for arguments sake it is admitted that the complainant has breached the terms and conditions of the policy in question, even then the Insurance Company ought to have settled the claim of the complainant on “non standard basis” even if some of the conditions of the insurance policy are not adhered by the insured. Learned counsel in support of his above contention has relied upon the case titled National Insurance Company Limited versus Kamal Singhal IV (2010)CPJ297 (NC) wherein the Hon'ble National Consumer Disputes Redressal Commission, New Delhi relying upon various decisions of the National Consumer Disputes Redressal Commission in the matter of (1) National Insurance Company Ltd. v. J. P. Leasing & Finance Pvt. Ltd. (RP No. 643/2005), (2) Punjab Chemical Agency v. National Insurance Company Ltd. (RP No. 2097/2009), (3) New India Assurance Co. Ltd. v. Bahrati Rajiv Bankar, (RP) No. 3294/2009) and (4) National Insurance Company Ltd. v. Jeetmal, (RP No.3366/2009) and also judgment of the Hon'ble Apex Court in the matter of Insurance Company Versus Nitin Khandewal IV (2008) CPJ 1(SC), wherein Hon'ble Apex Court held in the matter of theft of a vehicle, breach of condition of the policy was not germane and also held further that : “the appellant Insurance Company is liable to indemnify the owner of the vehicle when the insurer has obtained comprehensive policy to the loss caused to the insurer”. The Hon'ble Supreme Court has further held that; “even assuming that there was a breach of policy, the appellant Insurance Company ought to have settled the claim on “non-standard basis.” Hon'ble Apex Court in back drop of these features, in these cases, allowed 70% of the claim of the claimant on the “non-standard basis”. This view was again reiterated by the Hon'ble Apex Court in the matter of Amalendu Sahoo versus Oriental Insurance Company Limited. II(2010) CPJ 9(SC)=II (2010)SLT 672. Hon'ble National Commission in the case National Insurance Company Limited versus Kamal Singhal referred to above relying upon the law laid down by the Hon'ble Supreme Court has held that;
“there being a long line of decisions on this score, we have no option but to uphold the finding of Fora below with modification that the claim be settled on 'non-standard' basis”, in terms of the guidelines issued by the Insurance Company. In case petitioner company fails to carry out the direction contained therein, the amount payable on 'non-standard' basis, shall carry interest @ 6% p.a from the date of expiry of six weeks till the date of actual payment”.
- It is not disputed that the IDV of the vehicle as per the insurance policy is Rs.4,50,000/- and as per the supra judgement of Hon’ble Supreme Court of India, the insurance company can indemnity the claim of the Complainant upto the extent of 70% of IDV on ‘non standard basis’ which comes to Rs. 3,15,000/-. However, as per the admitted facts, that due to non payment of remaining bill amount Rs.2,39,121/- the vehicle of the Complainant has been retained by the Opposite Parties No.1 to 3 in their workshop.
- Hence, keeping in view the aforesaid facts and circumstances of the case, we allow the Complaint of the Complainant against Opposite Parties No.1 to 3 and direct Opposite Parties No.1 to 3 to release the vehicle of the Complainant in working condition without charging any amount. However, the Opposite Parties No.1 to 3 are at liberty to charge the repair charges of the vehicle in question from Opposite Party No. 4 under the policy, in accordance with law as stated above. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. The compliance of this order be made by Opposite Parties No.1 to 3 within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
16. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Faridkot and furthermore due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 28.09.2021.
(Mohinder Singh Brar) (Amrinder Singh Sidhu)
Member President
