Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 233.
Instituted on : 30.05.2018
Decided on : 30.11.2023
Dayanand age 58 years, s/o Sh. Lal Chand R/o VPO Sisana Tehsil KharkhodaDistt. Sonepat.
………..Complainant.
Vs.
- National Insurance Company Ltd., Outer Quilla Road, RohtakThrough Divisional Manager.
- Srishti Hyundai Opp. New Power House, JindBy Pass Road, Rohtak.
- H.D.F.C. Bank Limited, Branch Model town, Rohtak through branch Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER
Present: Sh.LalitKauahik, Advocate for complainant.
Sh.A.S.Malik, Advocate for opposite party No.1.
Sh.Naveen Chaudhary, Advocate for opposite party No.2.
Sh. Rajesh Sharma Advocate for opposite party No.3.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that on 16.02.2017 he had purchased a car bearing registration no.HR69C-4471 from the opposite party no.1 and the said vehicle was financed by opposite party no.3. Complainant insured the said vehicle with the opposite party no.2 vide comprehensive insurance policy certificate no.39010231166300026843 w.e.f. 16.02.2017 to 15.02.2018. On 17.02.2017 the said vehicle met with an accident and at that time Sh. Ashis s/o Dalbir was driving the vehicle. He was having a valid and effective driving license to drive the said car. Complainant sent his damaged vehicle to the authorized service center i.e. opposite party no.2. At that time, the officials of opposite party No.2 demanded the driving license from the son of complainant and he gave the copy of his DL to them whereas Ashish was driving the vehicle at the time of accident. The survey was done by the deputed surveyor. After two months, the vehicle was repaired by the opposite party no.2 and they handed over the vehicle to the complainant. About three months ago, when the vehicle was sent to the opposite party no.2 for repair/services and when the complainant wanted to take the delivery of the vehicle, the opposite party no.2 refused to deliver the vehicle to the complainant and told that the claim of the vehicle of previous damages had been declined. So the repairing cost was not received by the opposite party no.2 from the opposite party no.1. Complainant requested the opposite party no.2 to hand over the vehicle to him but the officials of opposite party no.2 forcibly kept the vehicle with them. Complainant requested the opposite party no.1 to pay the claim amount but the opposite party no.1 flatly refused for the same. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite party No.1 may kindly be directed to pay the claim against damages alongwith interest @ 12% p.a. from the date of accident till its realization to the complainant and opposite party No.2 may be directed to release the vehicle of complainant and hand over it to the complainant in perfect good running condition. Opposite party No.1 & 2 may kindly be further directed to pay Rs.2 lac on account of loss of income for delaying the payment and also to pay Rs.100000/- for mental pain, agony, harassment and litigation charges to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No.1 in its reply has submitted that opposite party no.1 has requested the complainant through letters dated 04.09.2017, 30.10.2017 and 13.12.2017 to furnish the requisite documents i.e. R/C, payment receipts, FIR route permit, fitness, DL of Sh. Bhopinder Singh, spot report if any etc. But the complainant did not produce the same. On merits, it is submitted that in claim form and intimation letter it is clearly shown that Bhopinder Singh was driving the said vehicle at the time of alleged loss. It is denied that said Ashish was driver on said vehicle at the time of loss. The claim of the complainant has rightly been settled as ‘No Claim’. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
3. Opposite party No.2 in its reply has submitted that the vehicle was insured with the respondent no.1 so the claim was intimated to the respondent no.1 by the complainant. Opposite party No.1 deputed Mr. Sunil Vashist Surveyor who inspected and conducted the survey of the aforesaid vehicle and after that the job work of the vehicle was started with the consent of the complainant & surveyor of the respondent no.1.The aforesaid vehicle was repaired and invoice no.B201702936 dated 06.04.2017 FOR Rs.323636/- was generated by the opposite party no.2 in respect of the aforesaid vehicle and the same was communicated to the complainant & respondent no.1 upon which final survey was also got conducted by the surveyor. Since then, the vehicle is ready for delivery but the opposite party neither received delivery order of the aforesaid vehicle from the respondent no.1 nor payment of aforesaid invoice from the respondent no.1 or complainant. The aforesaid vehicle is lying with the opposite party due to which the opposite party is suffering huge inconvenience apart from the monetary losses and harassment. Thus it is the opposite party no.2 who is actual sufferer at the hands of the complainant and respondent no.1. The complainant is at liberty to take the delivery of the said car by making the payment of Rs.323626/- but by filing the present complaint, he wants to take the delivery of car without making any payment. There is no negligence on the part of opposite party No.2 and dismissal of complaint has been sought.
4. Opposite party No.3 in its reply has submitted that one Smt. Sushila d/o Sh. Raghuvir along with the complainant (co-applicant) applied for a financial loan for purchasing a vehicle. As per the statement of account at present an amount of Rs.1,31,392/- is overdue towards the installments up to 1/2/2019 and the borrowers are liable to pay the aforesaid amount along with bouncing charges and other charges like late payment charges and in this manner total overdue amount of installments comes to Rs.1,62,500/- as on 1/2/2019. In addition to this the complainant is under obligation to pay the amount of future installments in time which become due on 7th of every month up to 7/2/2022. The complainant had committed a default and he is liable to pay the defaulted amount along with interest and charges as per the terms and conditions of the loan agreement. Further due to default in the loan account the answering respondent has every right to recall the whole loan amount of the loan taken by Smt. Sushila along with the co-applicant Dayanand (Complainant) and the complainant and Smt. Sushila are liable to pay an amount of Rs.4,83,306/- to the respondent as on 01/02/2019 as per the foreclosure statement. The aforesaid liability is only up to 01/02/2019 and further it will be enhanced by passage of time to higher side. The borrowers are liable to pay the amount of installment regularly as per the terms and conditions of theofopposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
5. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.C1W/A, Ex.CW2/A, documents Ex.C1 to Ex.C16 & Ex.C16/A to Ex.C41 and closed his evidence on 16.10.2019.On the other hand, Ld. counsel for opposite party no. 1 has tendered affidavit Ex. R1, documents Ex.R2 to Ex.R10 and closed his evidence on 03.02.2020. Ld. Counsel for opposite party no. 2 has tendered affidavit Ex. RW2/A and closed his evidence on 16.12.2020. Ld. Counsel for the opposite party No.3 2has tendered affidavit Ex.RW3/A, documents Ex.R3/1 to Ex.R3/10 and closed his evidence on 23.12.2020.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case claim of the complainant has been repudiated by the opposite party No.1 on the ground of non-submission of document and in its reply opposite party No.1 has submitted that : “Bhopinder Singh was driving the taxi at the relevant time of accident as intimated by the insured in claim intimation letter and claim form. The driving license is valid for motorcycle, LMV(NT) and car only, whereas the said vehicle was used and registered as commercial vehicle”. Hence from the alleged reply it is observed that the D.L. of Bhopinder Singh was already provided to the opposite party No.1 so he came to the conclusionthat D.L. of Bhopinder Singh was not valid. We have also observed that as per affidavit Ex.R8 placed on record by opposite party no.1 itself, Sh. Ashish s/o Dalbir was driving the above said Car Grand-i10 at the time of accident. As per copy of D.L. Ex.C41 of Ashish, he is entitled to drive M.C with Gear, LMV-NT-Car-Transport only. Hence he was authorized to drive the alleged vehicle at the time of accident. Moreover, if it is presumed that the vehicle was being driven by Bhopinder and his D.L. was formotorcycle, LMV(NT) and car only, in this regard, we have placed reliance upon the judgment dated 03.07.2017 of Hon’ble Apex Court in MukundDewangan versus oriental insurance company limited whereby Hon’ble Supreme Court has held as under:-
(ii) A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ‘unladen weight’ of which does not exceed 7500 kg. and holder of a driving licence to drive class of “light motor vehicle” as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or road-roller, the “unladen weight” of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. In the present case also, as per copy of R.C.Ex.C5 the unladen weight of vehicle is 953 kgs, which is less than 7500kgs. Hence Bhopinder Singh as well as Ashish were also entitled to drive the vehicle in question. Hence the repudiation of the claim by the opposite party no.1 is illegal and amounts to deficiency in service.
8. It is also on record that the vehicle in question was repaired by the opposite party no.2 and invoice no.B201702936 dated 06.04.2017 for Rs.323636/- was generated by the opposite party no.2 and intimated to the complainant as well as opposite party No.1. But after repair, the vehicle could not be handed over to the complainant as the claim was not paid by the opposite party No.1. From the documents placed on record, it is proved that the claim has been wrongly repudiated by the opposite party no.1. As such opposite party No.1 is liable to pay the claim amount to the repairer alongwith interest as it was the prime duty of the opposite party to pay the claim amount to the repairer. Moreover the vehicle in question is standing idle with the opposite party No.2 since the year 2017 and the same will not have been in running condition as the battery and tyres of the vehicle will not have been in working condition. Hence the opposite party No.1 is also liable to pay a compensation of Rs.50000/- to the opposite party no.1 for bringing the car back to its running condition.
9. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party no.1 to pay the claim amount of Rs.323636/-(Rupees three lac twenty three thousand six hundred and thirty six only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 30.05.2018 to till its realization and Rs.50000/- on account of bringing the car to it running/roadworthy condition to the opposite party No.2. Opposite party No.1 is further directed to pay a sum of Rs.100000/-(Rupees one lac only) as compensation on account of harassment and financial loss suffered by the complainant due to deficiency in service on the part of opposite party no.1 and also to pay Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Opposite party no.1 is directed to comply the alleged order within one month from the date of decision, failing which opposite party no.1 shall be liable to pay interest @ 9% p.a. on Rs.100000/-(Rupees one lac only) from the date of order to till its realization to the complainant.
10. However, opposite party No.2 is directed that after receiving the alleged amount from the opposite party no.1, opposite party no.2 will hand over the vehicle in question in perfect good running condition(after replacement of its tyres and battery etc. with new one)to the complainant within 15 days.
11. Copy of this order be supplied to both the parties free of costs.File be consigned to the record room after due compliance.
Announced in open court:
30.11.2023.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member.
