Before the District Consumer Dispute Redressal Commission [Central District] - VIII,
5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.66 /03.03.2017
Mohit Garg son of Shri Sunil Garg
R/o 5/46 Patel Gali, Vishwash Nagar,
Shahdara ,Delhi - 110022 …Complainant
Versus
OP1- National Insurance Company Limited
through its Divisional Manager, Divisional Office-03,
Jeevan Vikas (2nd floor),30-31 Asaf Ali Road,
New Delhi -110002
OP2 - M/s Rajendra Honda,
A-17, DSIIDC Industrial Complex
G.T. Road Jhilmil, Delhi -110095 ...Opposite Party
Date of filing: 03.03.2017
Date of Order: 02.02.2024
Coram:
Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties)- The complainant has grievances of deficiency of services and unfair trade practice against the OPs that he got insured his Activa DL13S 6010 (briefly 'the vehicle') from OP1, it was stolen and police report was lodged; the vehicle was recovered by the police and it was got repaired from OP2 an authorised service station of OP1 but the valid claim for theft loss of parts etc was not reimbursed by the OP1. The vehicle is lying with OP2.. Because of it the complaint is filed for claim amount of Rs 18,000/- (being Rs. 14,300/- for repairs as per bills + Rs. 3,700/- for battery and wiring charges advised separately by OP2).
1.2. The OP1 opposed the complaint that there is no deficiency of services or unfair trade practice since the complainant is at fault and he failed to furnish the repair bills to OP1 till date, although the surveyor Sh. Sarvesh Garg was appointed, who furnished his report dated 30.01.2017. The complainant concealed the material fact that he had compounded the offence with accused Mohit in Lok Adalat in respect police case got registered. The complaint is premature and it is not maintainable.
The OP2 also opposed the complaint, that it does not contain any specific allegations against OP2, since it had repaired the vehicle properly and perfectly. The battery charges and wirings was advised to be outside the scope insurance cover by OP1.
2.1. (Case of complainant) –The complainant took insurance policy no. 350300/31/166200000944 for sum insured/IDV of Rs. 18,000/- (hereinafter referred 'as policy') from OP1 in respect of the vehicle. The policy was valid from 15.05.2016 to 14.05.2017. But on 12.09.2016, the vehicle was stolen since it was parked in front of house of the complainant, for which formal FIR no. 026943 u/s 379 IPC was registered on 13.9.2016 in police station Farsh Bazaar, Delhi. The OP1 was informed of theft episode on 16.09.2016, its nominee collected all the documents on 23.09.2016. The police also recovered the vehicle and the vehicle was delivered to the complainant on 10.12.2016 under the direction of concerned court, this was also informed to OP1 by letter dated 14.12.2016 with request to appoint surveyor and also apprised name of authorized service station for appropriate repairs.
2.2. The OP1 failed to appoint surveyor or to inform such service station, therefore, the complainant was constraint to write legal notice dated 24.12.2016 to OP1 with request to return the keys of the vehicle to get its repaired.
Thence, on receipt of telephonic instructions and advices of OP1, the complainant took the vehicle to service centre/OP2, who prepared the estimates on 28.12.2016 and advised the complainant to await for inspection by the surveyor, OP2 also asked complainant on telephone to hand over copy of RC and keys of the vehicle for appropriate repairs. The complainant requested OP1 by letter dated 16.01.2017 for approval of repairs so that OP2 may start the repairs. However, in the meantime OP1 sent its reply dated 09.01.2017 to the legal notice, which was received by complainant on 13.01.2017, that original insurance policy, service book and both keys of the vehicle were delivered to the insured through surveyor.
2.3 It was last week of January 2017, when OP2 informed the complainant on telephone that repaired vehicle is ready for delivery, it may be taken by depositing bill amount besides production of copy of insurance policy, DL and original gate pass, thus complainant visited workshop of OP2 on 01.02.2017 and collected repairs bills of Rs. 14,300/-. On 08.02.2017 the complainant again visited workshop of OP2 to take delivery of the vehicle and contacted its Manager to verify repairs, but he found that neither the battery of the vehicle was fitted nor wiring was done, in its absence it was not possible to drive the vehicle, since battery was removed and wiring was cut by the culprit/thief. The Manager of workshop of OP2 explained that battery is not available in the stock and wiring was left inadvertently, besides asking additional cost of Rs. 3,700/- for installing the battery and completing wiring. The complainant contacted the surveyor immediately on phone, who told that final report has already been submitted to OP1 and nothing can be done at this stage.
2.4 Both the OPs are guilty of deficiency of services besides adopting unfair trade practice, since the vehicle was not properly repaired and complainant was caused harassment. That is why this complaint for direction to OP1 to pay Rs. 14,300/- + Rs. 3,700/- =Rs. 18,000/- for complete repairs besides direction to OP1 to carry out complete repairs and submit additional bill to OP1 and deliver the vehicle to the complainant in proper working condition, besides compensation, cost and other appropriate reliefs.
2.5 The complaint is accompanied with copies of- insurance policy, FIR no. 026943, letter dated 16.09.2016, acknowledgement dated 16.09.2016 (of receipt of documents by OP1's Luminary Professional Services Pvt Ltd), order dated 10.12.2016 by Plea Bargaining Judge, Lok Adalat of compounding of the offence, letter dated 14.12.2016 being request for appoint of surveyor and name of service station, legal notice dated 24.12.2016, estimates dated 26.12.216 (by Rajindra Honda), letter dated 16.01.2016, reply dated 09.01.2017 and retail invoice dated 22.01.2017 by Rajindra Motors.
3.1 (Case of OP1)- The complaint is opposed that there is no iota of evidence by the complainant to show negligence or deficiency of services against the OP1. The complaint is premature, since as per report dated 30.01.2017 of surveyor Sh. Sarvesh Garg, the complainant failed to provide bills of repair till the date of preparation of report and vehicle is still lying at the workshop till the preparation of report. Moreover, as per surveyor report dated 30.01.2017, the insured failed to provide recovery memo, on this sole ground the complaint is liable to be dismissed for want of cause of action.
3.2. The complainant has concealed material fact and complaint is liable to be dismissed u/s 26 of Consumer Protection Act 1986 with hefty penalty, since the complainant compounded the offence u/s 379/411 IPC with accused Mohit in FIR no. 26943/2016 P.S. Farsh Bazar in the Lok Adalat; the complainant must have taken big compensation and accused must have colluded to file the present complaint. Therefore, the complainant was already stand compensated with the amount received from the accused in that case.
3.3. The complaint is trying to make fortune by making claim in the complaint despite the allegations are false and misleading, the complainant failed and neglected to explain as to on what basis cost of repairs are payable after compounded the criminal offence with accused Mohit. It was delayed FIR. The complaint is liable to be dismissed.
3.4. The reply is accompanied with copy of Resolution dated 16.05.1989 author of written statement, surveyor report dated 30.01.2017, reminders of documents, order dated 10.12.2016 by Judge, Lok Adalat, Delhi, theft investigation report dated 28.09.2016 by Luminary Professional Service Pvt. Ltd. with copy of insurance cover.
4.1. (Case of OP2)- The OP2 also opposed the complaint by way of preliminary objections and rely on merits but group of paragraphs have been reply together; in nutshell there are no allegation/grievances against OP2 with regard to services of repairs. Moreover, the OP1 had appointed a surveyor to inspect the vehicle and OP1 clearly refused/instructed that battery and wiring of the vehicle is not to be covered under the insurance policy, this fact was apprised by OP2 to the complainant. Moreover, the cost of battery and wiring of the vehicle was of Rs. 3,700/-, which the complainant had agreed to pay and after this confirmation the battery and wiring was installed in the said vehicle.
4.2 The OP2 denies other allegations in the complaint that on the advises of OP2 the complainant visited the workshop to take the delivery of vehicle with battery and wiring or that battery was not available in the shop or wiring was left inadvertently. Consequently, the complaint is liable to be dismissed. The OP2 annexed estimate dated 28.12.2016 with the complaint.
5.1 (Replication of complainant) –The complainant filed composite replication to the written statement of OP1 and to the written statement of OP2 and on plain reading thereof, the complainant reaffirms the contents of complaint as correct.
In response to OP1’s allegations, the complainant explains that it is a valid and competent complaint. There is no concealment of any fact since the order of Lok Adalat is placed with the complaint, otherwise, the OP1 is making derogatory remarks against the complainant for which he reserves right for appropriate motion in respect of derogatory allegation. It is not a case/complaint to extort money but of a valid insurance claim. The OP1 is liable to pay valid claim covered under the policy.
5.2. The complainant also explains that written statement of the OP2 is contrary to other information available, since the surveyor had allowed Rs. 1200/- as meter assay against estimate loss of Rs. 3,000/- and also allowed Rs. 2,000/- against estimate loss of Rs. 3000/- for battery in the said report, which falsify the written statement of OP2 as if surveyor refused battery and wiring repairs. The complaint is correct.
5.1.(Evidence)-The complainant Sh. Mohit Garg filed his affidavit of evidence, which is on the pattern of complaint with documents.
5.2. OP1 led evidence by filing affidavit of Shri Sh. Raghunath Pawar, AR of OP1 coupled with documents.
It is relevant to mention that the written statement and affidavit of evidence are authored by Sh. Raghunath Pawar, AR of OP1. However, the affidavit of evidence is reproduction of entire written statement of OP1, as para-wise reply to the complaint, whereas the evidence ought to be positive and assertive and not in the form of para-wise reply or preliminary objection etc to the complaint since evidence is not pleading. The written statement narrated in 'third person [pronoun]' has been converted into 'first person [pronoun]' by reproducing it in the affidavit of evidence just for own convenience of OP1 but it is against cannon of rule of evidence.
4.3. OP2 led evidence by filing affidavit of Shri L. K. Thakur, Senior Manager, coupled with copy of estimates dated 28.12.2016.
6.1 (Final hearing)- The complainant and the OPs have filed their written submissions, which is blend of pleadings and evidence, the facts in issue and relevant facts have already been referred in the case of parties, it does not require to reproduce them again.
6.2. The parties were given opportunity to make oral submissions, therefore, Sh. C. B. Garg, Advocate for complainant contended that it is apparent on the face of record that episode of theft had happened, the vehicle was got repaired at the authorized service centre of OP2 and it was within the currency of insurance period and IDV. The complainant deserves the amount claimed, since the valid claim was declined by OP1. The vehicle is still lying with OP2 but it was not released for want of payment by the OP1. The complainant is also entitled for other relief claimed also. The compound of offence does not exonerate the OPs from their legal obligations.
6.3. Shri Shivan Pahal, Advocate for OP1, reiterates the circumstances already narrated in the case of OP1 while emphasizing that there was compounding of the offence by the complainant with the accused, it was because of of receipt of huge amount and compensation and this does not entitle the complainant for any relief. There is no cause of action against OP, since complaint is pre-mature as complaint himself failed to provide the record, especially recovery memo and invoice bills to process the claim. There is no deficiency of services or unfair trade practice on the part of OP1.
6.4. Ms. Sweta Singh, Advocate for OP2 also opposed the complaint that there is no specific allegation against the OP2, as it had rendered all the services required for the repairing of the vehicle and the OP2 is bound by contractual rights and obligations that once repairs have been done, it is entitled for its valid repair charges etc. There is nothing in the evidence of complainant to suggest unfair trade practice or deficiency of services against OP2.
7.1 (Findings)-The contentions of both the sides are considered, keeping in view the pleadings, evidence of the parties and the written arguments, which are blend of pleading and evidence of the parties.
7.2. By taking into account stock of all the material on record, there are some undisputed facts but others are disputed plea of the parties as well as other circumstances inherent in documents or otherwise, the same are considered, assessed and then on the basis thereof, the following conclusions are drawn:-
(i) There is no dispute in respect of the vehicle was insured with the OP1 and during the currency of the insurance period, the vehicle was stolen and FIR was registered besides OP1 was informed of theft, who appointed its surveyor/investigator, who tendered his report dated 28.9.2016. The vehicle was recovered by the police during investigation. The vehicle was taken to OP2 for repairs, there was missing of its battery and other wiring repairs were warranted. The OP1 further appointed its surveyor, who furnished his report dated 30.01.2017, on the basis of estimates dated 28.12.2016 of repairs issued by OP2.
In criminal case registered, the accused was Mohit and this complainant was informant to police, the offence was compounded before the Judge, Lok Adalat and the offence was compounded. These sailent facts and features are mentioned by the complainant, there is no concealment of any such fact.
(ii) The complaint has proved the FIR and as per column no.6 of the FIR, the police records that there is 'no delay' in lodging the FIR. The plea of OP1 in this regard does not sustain.
(iii) There are two reports of surveyor, firstly it is theft investigation report dated 28.09.2016 by Shri Brijesh Kumar and other is survey report dated 30.01.2017 by Shri Sarvesh Garg; both of them have been proved by the OP1. The matter was compounded between the complainant and Mohit on 10.12.2016 u/s 320 CrPC, it is after first investigation report dated 28.09.2016 but before second surveyor report dated 30.01.2017.
(iv) In the investigation report dated 28.09.2016, the surveyor/investigator reported about receipt of all documents and original keys vis-à-vis report also mentions that the vehicle was not recovered by verifying the facts from the authorities, besides the vehicle was properly locked prior to episode of theft. It also opined that circumstances of theft of vehicle seems genuine.
In the surveyor report dated 30.01.2017 the surveyor had assessed the loss by considering estimates dated 28.12.2016 furnished, which also includes battery and CDI etc., he had also taken the photographs of subject vehicle. However, this second report also mentions that he was not provided copies of bills of repairs as well as recovery memo of the vehicle recovered by the police.
(v) The circumstances are speaking themselves on various points. Firstly, the police investigated the theft case u/ss 379/411 IPC, it is offence of cognizable nature. There is no provision in the Code of Criminal Procedure 1973 to provide papers of investigation (including recovery memo) to the complainant except of provision of Section 207 CrPC for providing the copies to accused after filing of the charge-sheet in the court. Therefore, OP1’s plea to decline the claim on this ground for want of providing the recovery memo. Otherwise, the surveyor Shri Sarvesh Garg was carrying inquiry, he could have contacted the police authorities for appropriate information, if so relevant. The previous surveyor Shri Brijesh Kumar had visited office of R.T.A. and police, then what prevented Mr. Sarvesh Garg, from verifying the aspect, if he was keen to ascertain them.
Similarly, so far estimate is concerned, the surveyor had visited the service station and also took the photographs. In addition, the OP1 in its letter dated 09.01.2017 wrote to complainant that claim will be settled on receipt report of surveyor. Further, the complaint also wrote request letter dated 16.1.2017 to OP1 to approve the estimates for repairs etc. The OP1's record and plea in written statement are contradictory and inconsistent.
(vi) The complainant has proved that he was provided copy of repairs bill on 01.02.2017 by OP2 and bill was of 22.1.2017. The surveyor's report is of 30.01.2017. When copy of bill was given to complainant on 1.2.2017, then how OP1 could be provided copy of bill prior to report dated 30.1.2017. There was no reasons given by this surveyor for not verifying the things, when he could verify other materials from the services station vis a vis the complainant had also requested in writing on 16.01.2017 for appropriate approvals of earlier estimates of 28.12.2016 for repairs. Otherwise, the surveyor had already estimates dated 28.12.2016 , the same was considered by surveyor in his report and then damages were assessed. The plea of OP1 in this regard does not sustain.
(vii) One more important facts emerges, which confirms that OP1 had instructed the OP2 about exclusion of battery and wiring work. This is established from the copy of retail bill dated 22.01.2017, wherein batter charges and wiring work are not mentioned. It is same OP2, who had the estimate dated 28.12.2016 by including battery and wiring work but excluded these items from retail bill dated 22.01.2017.
Otherwise, the surveyor had rendered report on the basis of estimates of 28.12.2016 (which also includes batter, wiring etc) but without considering the retail invoice dt. 22.01.2017 of Rs.14,300/- issued by OP2 (OP2 is authorised service centre of OP1), which was prior to his report dated 30.01.2017. This bill does not show items battery and wiring charges.
(viii) The OP1 has also filed two letters/reminders that complainant was asked to furnish the record, however, the photocopies of the letters do not prove mode of service or its service upon the complainant seeking documentary record.
(ix) By taking the evidence of both sides, it is crystal clear that under the instructions of OP1, the vehicle was taken to OP2, who repaired it against bill of Rs. 14,300/- and OP2 has also explained that bill for battery and wiring was Rs. 3,700/- separately and total bill is of Rs. 18,000/-. There is no proof of any clause in insurance policy to exclude battery and wiring, nor it appearing so, because these two items were considered by surveyor in his report by considering previous estimate of 28.12.2016.
To that extent, the complainant has proved the case of his valid claim of
Rs. 14,300/- on the basis of retail invoice against OP1 but the claim lodged was not reimbursed. Since the OP2 also corroborates the plea of complainant that battery and wiring charges are Rs.3.700/-, the vehicle is yet to be delivered to the complainant. The OP2 has not proved any record of wiring and battery number, or bill that battery and writing were actually installed or fitted into the vehicle, therefore, claim of complainant for battery and wiring of Rs.3,700/- is also a valid claim. It amounts to deficiency of services.
(xi) The OP1 has another counter serious objection that complainant is not entitled for any amount of repairs or compensation because of compounding of offence before Plea Bargaining Judge, Lok Adalat, Delhi, besides the complainant stand compensated enough but the complainant opposed it.
The proceedings before Plea Bargaining Judge, Lok Adalat, Delhi took place under sec, 320 of the Code of Criminal Procedure 1973 r/w sec. 379 and u/s 411 IPC, which are compoundable offences by the victim/complainant and the accused but the permission of Court. The permission was granted by the Court, however, in that proceedings dated 10.12.2016 there is nothing that the complainant was paid any compensation or amount in lieu of compounding of the offence, therefore, OP1’s plea that any huge amount was received by the complainant is not only contrary to record but fig of imaginations of OP1. It is never the case of OP1 that it was present through its officers in that proceedings before the Lok Adalat. It was a State case. As per proceedings dated 10.12.2016, Assistant Public Prosecutor was present for State and accused Mohit was produced from Judicial Custody; he was defended by Legal Aid Counsel at the expense of State. Had there been compound of offence in lieu of money compensation, it would have been mentioned in the proceedings. It is neither permissible nor fair on the part of OP1 to add unacceptable material, which is not existing and not part of judicial proceedings.
Moreover, there is also no observation by the Plea Bargaining Judge, Delhi that compounding of offence was out of collusion. There is also no evidence by the OP1 that this complaint is also out of collusion, since the complainant had lodged the theft report and it result into registration of offence followed by arrest of accused, who was in judicial custody when finally it was decided.
(xi) When law provides compounding of offence with the permission of competent court, which was also materialized in the proceedings dated 10.12.2016 then OP1 cannot derive any benefit there-from nor there is proof of contract between the parties, that in suppression of provisions of Cr.P.C.1973, the insured cannot compound the offence, if so happens to him. The compounding of offence is within the scheme of law.
(xii) The complaint was filed against the insurer/OP1 as well as against the authorized service centre/OP2, however, the OP2 has specifically asserted that there were clear instructions by the OP1’s surveyor that battery and wiring is not covered. The OP2 in its retail invoice has not mentioned items of battery and wiring, it means OP1 has prevailed upon OP2 from back-door. There is nothing by OP1 to counter this allegation. Although, the surveyor report dated 30.01.2017 mentions about battery and CDI charges which were considered while estimating the damages (on the basis of estimates dated 28.12.2016) but this report does not mention above retail invoice of 22.01.2017. Could it be believed that OP2 had not informed OP1 about the retails bill of 22.1.2017 to be raised when OP2 was acting upon the instructions of OP1? The circumstances do not suggest so.
(xiii) The OP to still having possession of the repaired vehicle, OP2 is constraint to release the vehicle on the receipt of repair charges.
(xiv) The plea of OP1 [that complainant has already received huge compensation from accused in criminal case, and it is already received, that is why OP1 is not liable] reinstate that compensation/reimbursement of bills etc. is made out in favour of complainant. This plea of OP1, in fact further strengthens the case of complainant that he deserves the reimbursement of valid claim, which is not exceeding sum insured/IDV of Rs.18,000/-
7.3 The analysis and conclusions drawn above, clearly establish the case of complainant of deficiency of services and unfair trade practice on the part of OPs. The complainant is held entitled for claim amount of Rs.18,000/- (i.e. Rs.14,300/- + Rs.7,300/-) in lieu of repairs and equipments/battery, wiring, payable by OP1 to the complainant, subject to other directions hereinafter.
7.4. The complainant has claimed compensation and costs (without quantifying them) from the OPs besides delivery of vehicle from OP2. The compensation should be commensurate to situation. Since main grievances are against OP1 and the complainant was constraint to file complaint for want of settlement of claim and even to approve the estimate in time, which result into halt of the vehicle in the authorised service station, the complainant was deprived of use of vehicle under that situation, therefore, compensation of Rs.6,000/- and costs of Rs.3,000/- is allowed in favour of complainant and against OP1. The complainant is also held entitled for delivery of vehicle from OP2, duly equipped with battery and wiring.
8.1. In view of above, the complaint is allowed in favour of complainant and against the OP1 by directing the OP1 to pay a sum of Rs. 18,000/- along-with damages of
Rs.6,000/- in lieu of harassment and cost of Rs. 3,000/-, payable within 45 days from the date of this order. In case the OP1 does not pay the amount within stipulated period, then there will be interest at the rate of 8%pa from the date of complainant till realisation of amount. It is subject to the further directions.
Since, vehicle is with OP2, who is authorised service station of OP1, the OP2 is directed to handover the vehicle/Activa duly equipped with proper battery and wiring, without taking any extra charge from the complainant within 20 days from the date of this Order. Consequently, the OP1 will pay the aforementioned amount Rs.18,000/- to OP2 in compliance of this Order. In case, the OP1 does not tender the amount to OP2, then interest will be payable to the OP2 besides the OP2 will have liberty to get the Order executed against OP1. The OP1 may also deposit the amount by way of pay order/demand draft in the name of OP1 [after confirming of handing over the vehicle to the complainant by OP2] in the Registry of this Commission or otherwise in the name of this Commission to be dealt appropriately.
8.2. The amount of compensation and costs will be payable by OP1 to the complainant, within that stipulated period or may be deposited with this Commission in form of pay order or demand draft.
9. Announced on this 2nd day of February 2024 [माघ 13, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliance, besides to upload on the website of this Commission.
