Punjab

Ludhiana

CC/20/67

Baljit Singh - Complainant(s)

Versus

M/s Mercury Car Retail Pvt.Ltd. - Opp.Party(s)

Indrpreet Singh Adv.

30 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  67 dated 17.02.2020.                               Date of decision: 30.08.2024. 

 

Baljit Singh aged 32 years son of Sh. Kuldeep Singh, at present resident of House No.2223, Phase-II, Near G.K. Dairy, Golden Avenue, Hambran Road, Ludhiana.                                                                                                                                                                                             ..…Complainant

                                                Versus

1. M/s. Mercury Car Rental Private Limited, The Oberoi, Dr. Zakir Hussain Marg, New Delhi, through its Directors/Partners/Authorized person.
2. Reliance Genera Insurance Company Limited, having its Branch Office at Reliance General Insurance, SCO-147, Sector-9-C, Madhya Marg, Chandigarh.                                                                                                                                                          …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Inderpreet Singh Tara, Advocate.

For OP1                         :         Exparte.

For OP2                         :         Sh. G.S. Kalyan, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that on 27.08.2019, the complainant purchased one used car Corolla Altis having registration No.DL-1N-7738 from OP1 for Rs.5,05,000/-. The car was delivery to him on 27.08.2019 at Delhi and a renewal of Authorization Certificate was supplied to him having validity till 07.01.2020. The complainant stated that he brought the car at Ludhiana where the car caught fire on 31.08.2019. OP1 was informed immediately as the same was yet not transferred in his name from OP1 however the process was initiated. The car was insured with OP2 vide a valid insurance policy. A DDR No.27 dated 02.09.2019 was lodged with P.S. Division No.5, Ludhiana and a fire incident was also reported with Fire Brigade Office. The complainant further stated that the car was delivered to him on27.08.2019 ant it caught fire on 31.08.2019 and at that time the same in the name of OP1. The complainant approached OP1 who assured to file claim with insurance company with proper assistance. The complainant followed all the instructions of OP2 but OP2 repudiated the claim on the grounds that the claim was lodged by OP1 and at the time of lodging the claim, they had already sold the vehicle to the complainant. According to the complainant, the repudiation of the OPs are trying to refuse the claim on technical grounds which amounts to deficiency in service and unfair trade practice due to which he has suffered monetary loss as well as mental harassment. In the end, the complainant has prayed for issuing directions to the OPs to pay an amount of Rs.5,05,000/- along with compensation of Rs.2,00,000/-.

2.                Initially, presence of Sh. G.S. Kalyan, Advocate was being recorded on behalf of both OPs but later on it came to notice that Sh. G.S. Kalyan, Advocate has represented only OP2 and even filed written statement along with affidavit and documents on behalf of OP2 only. However, vide order dated 13.03.2024, OP1 was proceeded against exparte presuming the due service of notice upon OP1.  

3.                OP2 filed written statement and assailed the complaint by taking preliminary submissions as well as objections on the grounds of maintainability; lack of jurisdiction; the complaint is premature; the complainant has not approached with clean hands; concealment of material facts etc. OP2 stated that the complainant has not approached their Grievance Cell and thereafter, if aggrieved then to the Insurance Ombudsman, having territorial jurisdiction to try and entertain the dispute in question. Even the complainant has not lodged any claim at any point of time. OP2 further stated that however, on receipt of claim intimation, it immediately deputed Probe Services, 41, Golden Avenue, Phase-I, Jalandhar for spot survey and investigation who submitted investigation report dated 05.09.2019. Further after scrutinizing the documents submitted by the complainant, the OPs again deputed M/s. Probe Services to investigate who submitted his report dated 30.11.2019, the operative part of which is reproduced as under:-

“Discrepancy observed”: Yes, Insured Sold the vehicle to Current user. During first visit user hide the actual facts. Also reported Driver Anil is not an Actual Driver.

Further incident also reported in Newspaper and also found on social media.

Referral Ground 1 and findings: Misrepresentation of facts found in the claim, insured sold the vehicle to user who reports himself as friend of Insured's firm owner. However, later stage admit the facts.

Referral Ground 1 and findings: Driver change also found in the claim. Earlier reported that Anil is paid driver to insured's firm and was driving the vehicle at the time of incident.

On 31-08-2019, Current owner left from home to Gurudwara Shri Nanaksar, Ferozepur Road, Ludhiana. Just before the Gurudwara Sahib when reached near Gate No.2 of university then its star smoke coming out from bonnet side of Car DL-IN-7738. When he stopped the car to Check, it caught fire.

Misrepresentation of facts found in the claim, insured sold the vehicle to user who reports himself as friend of insured's firm owner. However, later stage admit the facts.

Driver change also found in the claim. Earlier reported that Anil is paid driver to insured's firm and was driving the vehicle at the time of incident.”

                   OP2 further stated that its officials after scrutinizing the claim, repudiated the claim of the complainant vide letter dated 20.01.2020, the operative part of which is reproduced as under:-

"On careful perusal of the said documents and the investigations in the matter, it was observed that during claim intimation the driver details provided were of Anil Rana whereas during investigation it ws confirmed that Baljeet was driving the vehicle. As the information pertaining to the driver is misrepresented, it is a violation of policy terms and conditions. In this regards we refer to policy condition no.1.

Condition no.1 Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require.

Further it was observed that the said vehicle is purchased and used by Baljeet Singh. As you have sold your vehicle, you do not hold any insurable interest.”

 

                   On merits, OP2 reiterated the crux of averments made in the preliminary submission and objections. OP2 also submitted that there has been misrepresentation of fact (driver change), non-insurable interest and no locus standi to the complainant, as the claim has not been lodged by the complainant. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Annexure-C1 is the copy of statement of account  of the complainant w.e.f. 25.08.2019 to 31.08.2019, Annexure-C2 is the copy of RC, Annexure-C3 is the copy of renewal of authorization certificate, Annexure-C4 is the copy of DDR No.27 of 2019, Annexure-C5 is the copy of fire call report dated 09.09.2019, Annexure-C6 is the copy of certificate of fitness, Annexure-C7 is the copy of insurance policy, Annexure-C8 is the copy of repudiation letter dated 20.01.2020 and closed the evidence.

4.                On the other hand, the counsel for OP2 tendered affidavit  Ex. RA of Sh. Suryadeep Thakur, Manager (Legal) of OP2 along with documents i.e. Ex. R1 is the copy of survey report, Ex. R2 is the copy of DDR No.27 dated 02.09.2019, Ex. R3 is the cop of driving  license of Anil Kumar, Ex. R4 is the cop of Aadhar Card of Anil Kumar, Ex. R5 is the copy of Motor Claim Form, Ex. R6, Ex. R26 is the copy of policy schedule, Ex. R7 is the copy of renewal of authorization certificate, Ex. R8 is the copy of certificate of fitness, Ex. R9 is the copy of RC, Ex. R10 is the copy of tax invoice of Ozone Care, Ex. R11 is the copy of investigation report dated 18.09.2019 of Ozone Care, Ex. R12 is the copy of letter dated 19.09.2019 of Ozone Care, Ex. R13 is the copy of vehicle registration status, Ex. R14 is the copy of tax invoice of Probe Services, Ex. R15 is the copy of investigation report dated 05.09.2019 of Probe Services, Ex. R16 to Ex. R23 are the copies of photographs of the vehicle, Ex.R24 is the copy of tax invoice of Probe Services, Ex. R25 is the copy of investigation report dated 30.11.2019 of Probe Services and closed the evidence.                   

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavit and documents produced on record by both the parties.                 

6.                The complainant claimed to have purchased one used car bearing registration No.DL-1N-7738 on payment of Rs.5,05,000/-  and brought the car at Ludhiana. The car remained in the name of its registered owner i.e. OP1 and it was yet to be transferred and registered in the name of the complainant. Unfortunately, on 31.08.2019, the car caught fire for which a DDR No.27 dated 02.09.2019 (Ex. C4) was lodged at P.S. Division No.5, Ludhiana. The DDR was authored by one Anil Kumar claiming himself to be the driver and employee of OP1. It is apposite to mention that the complainant did not lodge the claim being the subsequent purchaser but got the claim registered through OP1. On the receipt of the claim, Ozone Care, Investigator was appointed to investigate the matter who vide its investigation report Ex. R11 made the following opinions and findings:-

                   “Opinion and Findings: As required by you, we are of the opinion

Nature & Cause: Accident occurred on 01.09.2019 and DDR was registered on the statement of Mr. Anil Kumar wherein he stated that he is paid driver on the car bearing number DL1N 7738 which is registered in the name of M/s. Mercury Car Rental Pvt. Ltd. He stated that on date 31/08/2019 he was going towards Firozepur from Bharat Nagar chowk. When he reached near Gurudwara Nanaksar at around 8:15 pm then engine of the above said car caught fire and start burning. After that people gathered there and tried to control the fire but failed. They called fire brigade. After some time fire brigade came there and control the fire but car got mostly burnt. No one got injured in the accident.

Non Insurance Interest: Not Found.”

7.                The first and foremost question that arises for consideration is that whether the complainant has any locus standi or cause of action to file the present complaint?

8.                Although the complainant claims himself to be the purchaser of the vehicle and claimed to have initiated the transfer of ownership before the competent Registering Authority but the complainant did not produce or prove any document which prima facie establishes the purchase of the vehicle by the complainant from OP1. Further neither any application form or any receipt of prescribed fees for transfer of ownership was placed on record by the complainant.  On the other hand, OP1 represented itself the owner during the settlement process. Rather the complainant himself admitted that  he did not lodge any claim being subsequent purchaser and rather allowed OP1 to lodge the claim which lead to misrepresentation of material facts. It is not the case of the complainant that he was incharge and in complete control of the vehicle being its purchaser and is entitled to be reimbursed.

9.                Section 2(7) of the Consumer Protection Act, 2019 provides:-

       “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Explanation. -For the purposes of this clause, -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

                   Although statutory definition of “Consumer” is wide and is having efficacious coverage but each case has to be determined on the basis of peculiar facts and circumstances. A bare reading of this section postulates that a Consumer must hire or avail service for consideration which could be paid or promise or partly paid or partly promised etc. So the complainant is not a consumer of OP2 insurance company and as such, he has no locus standi and cause of action to file the present complaint.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:30.08.2024.

Gobind Ram.