Punjab

StateCommission

A/11/1112

Harbans Singh - Complainant(s)

Versus

M/s Kohli Auto Comany - Opp.Party(s)

Munish Goel

24 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1112 OF 2011

 

                                                          Date of Institution: 20.07.2011  

                                                          Date of Decision : 24.04.2015

 

 

Harbans Singh aged about 50 years son of Sh.Amar Singh resident of Village Bhagatpura Tehsil Bassi Pathana, District Fatehgarh Sahib.

 

                                                                                                                                                                   …..Appellant/Complainant        

 

                                      Versus

 

 

1.       M/s Kohli Auto Company, KACS, Complex, Nai Abadi, G.T. Road,       Khanna District Ludhaian through its Prop/Partner.

 

2.       Oriental Insurance Company Ltd., G.T Road, Sirhand through its         Branch Manager.

 

3.       Mohindra & Mohindra Finance Ltd, Choti Baradari, Patiala through       its Branch Manager

 

                                                          …..Respondents/Opposite Parties

 

         

First Appeal against order dated 25.05.2011 passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant              :         Sh. Munish Goel, Advocate.

          For the respondent No.1  :         Sh. Rajesh Gupta, Advocate

          For the respondent No.2  :         Sh. Rajesh Verma, Advocate

          For the respondent No.3  :         None

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging  order dated 25.05.2011 District Consumer Disputes Redressal Forum Fatehgarh Sahib, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he is owner of Three-wheeler (passenger) manufactured by Mohindra & Mohindra bearing registration No.PB-65H-5340 with Engine No.PBJ 0015150 and Chasis No.MAILE2FH85K41753 Model 2008. The complainant purchased it from OP No.1, which was got financed by OP No.3 to the complainant.  The complainant purchased this three-wheeler for earning his livelihood by means of his self-employment. The complainant comprehensively insured it for insured amount of Rs. 1,18,700/- with OP No.2, vide cover note no.508542 with effect from 03.11.2008 to 02.01.2009  by paying premium of Rs.3789/- for cashless insurance. The complainant employed one Ram Singh S/o Ujaggar Singh, as driver of the above said vehicle three-wheeler, who held valid driving licence therefor, issued by DTO Mohali uptil 29.05.2011. The complainant also verified his driving licence from the office of DTO Mohali and also took his driving test to boot. The above-referred three-wheeler unfortunately met with an accident on 19.10.2009, when the driver of the complainant was coming to village Bhagatpura at 8.00 PM about 1 Km from village Bhagatpur,  vehicle was coming from opposite direction at that time and Ram Singh could not see the vehicle due to the lights from the opposite side and was unable to control three-wheeler and it turned towards the footpath, whereby it was badly damaged. The accident took place due to lapse of the opposite side vehicle and DDR No.8 dated 20.10.2009 has been lodged about this accident at Police Post Badali Ala Singh. The matter was reported to OP No.1, who deputed surveyor to assess the loss of the vehicle and to conduct the survey. The surveyor took photographs of the damaged vehicle and assessed the loss thereto to the extent of Rs.85,000/-  The complainant obtained cashless policy from OP No.2 and parked three-wheeler for repair with M/s Kohli Auto Company for repair on 20.10.2009. Since the complainant obtained cashless policy from OP No.2 and complainant was to pay the difference of the total amount spent on the repair and remaining payment would be paid by OP No.1 insurer to OP No.2 authorized service station. The complainant was not able to pay the amount of Rs.25,000/-due to his penury, which was assessed by the surveyor. The complainant has, thus, filed the complaint directing the OPs to pay Rs.2,25,000/- along with interest @ 18% per annum.

3.      Upon notice, OP No.1 M/s Kohli Auto Company filed its separate written reply and contested the complaint by raising preliminary objections that it is not maintainable and merits dismissal. Any deficiency in service was specifically denied by OP No.1 It further pleaded that it had made extensive repair of the vehicle and amount of Rs.66182/- was due from the complainant to OP No.1. A Civil Suit has been pending between the parties for the recovery of the amount due to OP No.1 regarding the repair charges of the vehicle. The complainant lodged false and frivolous complaint against OP No.1.  The jurisdiction of the District Forum to entertain the matter was denied due to complexity of the facts and law involved in the case. The complaint was also contested even on merits by OP No.1. OP No.1 further pleaded in written reply that it categorically stated to complainant that payment would be obtained by OP No.1 directly. It was denied that OP No.1 told the complainant that he is to pay the difference of the total amount spent on the repair and remaining amount would be paid to OP no.1 directly from OP No.2 under cashless policy. OP No.1 controverted the averments of the complaint and prayed for dismissal of the complaint.

4.      OP No.2 Oriental Insurance Company  filed its separate written reply and also contested the complaint of the complainant. It raised preliminary objections that complaint is not maintainable. Any deficiency in service was specifically denied by OP No.2 in this case. It was specifically denied that complainant plied the vehicle to earn his livelihood by means of self-employment. It was further pleaded that complainant plied the vehicle for commercial purposes and he is not a consumer. The complaint was also resisted even on merits and factum of insurance was not disputed  by OP No.2 in this case. It was admitted that the surveyor was appointed by OP No.2 to inspect the vehicle. The surveyor and loss assessor inspected the vehicle at Khanna and assessed the loss  to the tune of Rs.52105/-, as detailed in his report dated 10.01.2010. OP No.2 alleged that complainant purchased the vehicle for commercial purposes and is not a consumer. OP No.2 declined any entitlement to the complainant to any relief and prayed for dismissal of the complaint.

5.      OP No.3 filed its separate written reply and also contested the complaint of the complainant Any deficiency in service was specifically denied by OP No.3 in this case. OP No.2 declined any entitlement to the complainant to any relief and prayed for dismissal of the complaint.

6.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, copy of certificate of registration Ex.C-2, copy of insurance policy Ex.C-3, copy of form Part A of DTO Office Mohali Ex.C-4, copy of FIR Ex.C-5, copy of letter addressed to Manager M/s Kohli Auto Company from Harbans Singh complainant Ex.C-6, postal receipt Ex.C-7, copy of letter addressed to Manager Oriental Insurance Company from complainant Ex.C-9, copy of letter Ex.C-10, postal receipt Ex.C-11,  document of Oriental Insurance Company Ex.C-12, copy of letter to Sh. R.K. Verma Kohli Auto Company from Harbans Singh complainant Ex.C-13, postal receipt Ex.C-14, copy of letter addressed to OP from complainant Ex.C-15, postal receipt Ex.C-16, copy of letter dated 19.4.2010 to complainant Ex.C-17, copy of letter Ex.C-18, postal receipt Ex>C-19, copy of driving licence Ex.C-20, copy of letter to complainant from OP Ex.C-21, copy of tax invoice Ex.C-22. As against it, OPs tendered in evidence affidavit of Narender Singh Kohli Ex.RW-1/A, tax invoice Ex.OP-1, copy of civil suit Ex.OP-1/2, copy of Form A Ex.OP-1/3, copy of partnership deed Ex.OP-1/4,  copy of affidavit of A.K. Sehgal, Sr. Divisional Manager, Oriental Insurance Company Ex.RW-2/A, copy of package policy Ex.R-1, copy of letter to OP from complainant Ex.R-2, copy of motor survey report Ex.R-3, copy of policy document Ex.R-4, copy of letter from OP to complainant Ex.R-5, affidavit of Sudesh Kumar Surveyor Ex.RW-2/C, statement of Anurag Sharma Ex.RW-3/A, statement of account Ex.RW-3/B. On conclusion of evidence and arguments, the District Forum, Fatehgarh Sahib  dismissed  the complaint of the complainant by virtue of order dated 25.05.2011 under challenge in this case. Dissatisfied with the order of the District Forum, Fatehgarh Sahib  the instant appeal has been preferred against the same by the complainant now appellant.

7.      We have heard learned counsel for the parties and none has appeared for respondent no.3 in this appeal at the time of arguments. We have examined the record of the case. Evidence is required to be examined by us on the record to decide the controversy between the parties. The pleadings of the parties are duly considered by us. Similarly, affidavit of complainant Harbans Singh, vide Ex.C-1 has also been scrutinized by us on the record. The complainant has specifically pleaded his version in his affidavit that he purchased the vehicle for earning his livelihood by means of self-employment. There is specific plea as well as evidence contained in affidavit of the complainant to this effect, which remained un-rebutted on the record by the OPs. With the  amendment by virtue of Act No.62, enforced with effect from 15.04.2003, even a person who deals in commercial goods for earning his livelihood by means of self-employment is also a consumer. We hold that complainant is a consumer in this case by virtue of amended definition of Consumer.

8.      The fact that vehicle was insured with OP No.2 is not disputed one in this case. Ex.C-2 is copy of registration certificate of the vehicle, Ex.C-3 is copy of terms and conditions of the insurance cover note, Ex.C-4 is routine permit and Ex.C-5 is copy of DDR No.8 dated 20.10.2009, Ex.C-6 is letter addressed by the complainant to Manager of OP No.1, Ex.C-10 is letter addressed to OP No.2 and Ex.C-11 is postal receipt thereof. Ex.C-12 is intimation to the complainant regarding submission of documents and Ex.C-14 is reminder, Ex.C-15 is letter addressed to OP No.1. Similarly, documents Ex.C-16 to Ex.C-22 have been considered by us on the record. The vehicle was insured with OP No.2 on the date of accident. This point is not in dispute between the parties. Ram Singh driver held valid driving licence till 29.05.2011, vide Ex.C-20 on the record to this effect. The accident took place on 19.10.2009 and Ram Singh was holding valid driving licence on that day. The Surveyor was appointed, who conducted the survey as per the evidence of OP No.2 on the record. The repair bill of the vehicle carried out by OP No.1 is Ex.OP-1 to the extent of Rs.66182/- dated 2.12.2009, Ex.C-22 is photocopy of the same. Ex.RW-1/A is affidavit of Narinder Singh is partner of OP No.1, where he stated that OP No.1 is entitled to recover the amount of Rs.66182/- in this case. OP No.1 is informed the complainant regarding ready delivery of the vehicle and to pay the amount of Rs.66182/-. He further stated that OP No.1 also filed Civil Suit No.36 of 08.02.2011 titled as "M/s Kohli Auto Company Versus… Harbans Singh" for recovery of the amount, which is pending between the parties in the Civil Court. It is categorically averred in the affidavit of Narinder Singh partner of OP No.1 that civil suit has been filed between the parties for recovery of the amount of costs of repair, which is pending before Civil Court. Copy of the plaint is Ex.OP-1/2 on the record to this effect. Ex.OP-1/3 is copy of the registration certificate, Ex.OP-1/4 is copy of the partnership document, Ex.RW-2/A is affidavit of A.K. Sehgal, Sr. Divisional Manager, Oriental Insurance Company /OP No.2 to the effect that complainant purchased the vehicle for commercial purposes. The complainant violated the terms and conditions of the insurance policy, as he plied the vehicle in violation of the routine permit.

9.      On conclusion of above evidence, District Forum dismissed the complaint of the complainant primarily on the ground that complainant was plying the vehicle (three-wheeler) in violation of the route permit conditions in this case. Our attention has been drawn to the route permit Ex.C-4 on the record. From perusal of Ex.C-4, it is clear that route permit was valid till 18.01.2004 and it meant for Mohali area limits. There is no condition contained in Clause 7 that even empty vehicle cannot be taken outside the district/area mentioned unless the vehicle owner applies for it. Clause 7 of the Route Permit mandates that no passenger can be taken in the vehicle outside the limits of Mohali. This  Route Permit does not prohibit taking the vehicle out of the limits of Mohali but the proviso is that no passenger should be taken in it. From perusal of the pleadings and evidence on the record as well as the copy of DDR Ex.C-5, we find that at the time of accident in the evening time at 8.00 pm, the tempo was being taken to Village Bhagatpura from Mohali.  We find that there was no passenger in the tempo at that time. Had it been the case, it would have been pleaded and set out in the DDR Ex.C-5 and even then there is no investigation report by OP No.2 that there were passengers in the vehicle at that time. Consequently, Ex.C-4 Route Permit does not prohibit taking of the vehicle provided there was no passenger in it out of the limits of the Mohali. Matter has also been examined by Hon'ble National Commission in New India Assurance Company Limited  Vs.. Smt. Malti Bhikhabhai Bhoya in Revision Petition No. 3793 of 2007 decided on 16th April 2013. We find that the instant case is liable to be considered as non-standard claim and shall be settled as indicated below :

 

Sr. No.       Description                             Percentage of Settlement

I         Under declaration Deduct 3 years' difference

          Of licensed                                                Premium from the amount

          Carrying                                           of claim or deduct 25% of

          Capacity                                          claim amount, whichever is

                                                                   Higher.

Ii        Overloading of vehicles                 Pay claims not exceeding

          Vehicles beyond licensed             75% of admissible claim.

          Licensed carrying capacity.

 

iii       Any other breach of warranty                 Pay upto 75% of admissible

          of warranty/                  claim.

          Condition of policy including

          Limitation as to use.

 

The case falls under Clause (iii) at the most, it is the breach of policy including limitation as to use  and such claim shall be considered as standard claims i.e. Route Permit. On the basis of the law laid down by Hon'ble National Commission, we find that it is considered that it is breach of the limitation as to use of the route permit; the case is liable to be settled as non-standard basis.

10.    The order of the District Forum to the contrary is not sustainable and merits reversed in this appeal to that extent.

11.    In the light of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum Fatehgarh Sahib dated 25.05.2011 under challenge in this case, we hereby accept the appeal of the complainant present appellant holding him to be entitled to 75% of the admissible claim as per bill of OP No.1, the authorized dealer, which is to the extent of Rs.66182/- on the non-standard basis. We hereby allow the complaint of the complainant now appellant awarding the amount of 75% as non-standard basis out of the total amount of Rs.66182/-.

12.    Arguments in this appeal were heard on 17.04.2015 and the order was reserved. Now the order be communicated to the parties.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                              (HARCHARAN SINGH GURAM)

                                                                            MEMBER

 

April 24  2015.                                                               

(ravi)