Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 83.
Instituted on : 07.02.2017.
Decided on : 21.02.2019.
Dharmender, age 36 years, son of Sh. Jai Parkash, Resident of 299, Makrauli Kalan, Tehsil & District Rohtak.
………..Complainant.
Vs.
1. National Insurance Company Ltd., Divisional Office No. XV,
National Insurance Building 8, India Exchange Place, Kolkata-
700001 through its Divisional Manager, Divisional Office, Outer
Quilla Road, Rohtak.
2. MAGMA Fincorp Limited, Ist Floor, Naraina Complex, Civil Road,
Rohtak through its Manager/Authorized person.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER.
Present: Sh. Devender Hooda, Advocate for the complainant.
Sh. D.S. Chauhan, Advocate for OP No. 1.
Sh. Gulshan Chawla, Advocate for OP No. 2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant had purchased a Backhor Leader JCB Machine bearing Registration No. HR-38M-4371 having Model 2006 and the said vehicle was duly insured by the OP No. 2 vide policy No.119500002385 TP Policy No.6700018425 which is valid for the period from 18.07.2011 to 17.07.2012. On 23.01.2012, the said vehicle fell in Alaknanda river in the district of Rudra Prayag in state of Uttrakhand alongwith helper. The said vehicle drowned in the river water completely and could not be seen. It is further alleged that the complainant informed the opposite party regarding the incident and OP appointed the surveyor and furnished all the required documents for settlement of the claim, but the OPs adopted the delay tactics for the reasons best known to them. On 26.02.2013, the complainant served a legal notice to the OPs, but any heed was not paid. The complainant filed the case before the Permanent Lok Adalat, Rohtak on 08.05.2013 which was decided on 02.03.2016 with direction to the complainant to file the case in appropriate Court and the complainant has filed the present complaint. That the act of opposite parties of not paying the alleged claim amount is illegal and there is deficiency in service on the part of OPs. As such, it is prayed that OPs may kindly be directed to pay Rs.10,74,450/- towards the loss of insured vehicle, Rs.50,000/- as compensation alongwith interest @ 18% per annum w.e.f. 23.01.2012 till its actual realization to the complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No. 1 in its reply submitted that the vehicle of the complainant fell down in Alaknanda river on 23.01.2012 and complainant has filed present complaint on 07.02.2017 i.e. after more than 5 years, hence, the complaint is time barred. It is further submitted that the JCB machine in question was insured from NIC Co. Ltd. Kolkata & financed through Magma Fincorp Ltd., being financer of JCB machine Kolkata. Hence this Forum has no jurisdiction to try and entertain the present complaint. That complainant filed a complaint before the Chairman, Public Utility Services, Rohtak and this court has given finding that since the question of law and facts are disputed in this case, therefore, we remain ourselves from deciding or adjudicating the intricate questions of law and facts mentioned in this case, because factum of policies is in dispute and fact of place of insurance and its office is involved in this case and such finding is binding on the District Consumer Disputes Redressal Forum, Rohtak. So this Forum has got no jurisdiction to entertain the present complaint and as such prayed for dismissal of the complaint qua the OP No. 1.
3. Opposite party No. 2 in its reply submitted that the complainant has entered into a hypothecation-cum-loan agreement, and thus OP financed an amount of Rs.6,78,000/-, which was to be returned by the complainant in 21 installments alongwith interest, subject to the terms and conditions. It is pertinent to mention here that after giving the settlement amount to the OP company, NOC of the vehicle in question has been issued by the OP company on dated 01.03.2013 and which was got collected by the complainant himself from the office of the OP company. All the other contents of the complaint were stated to be wrong and denied and OP prayed for dismissal of complaint qua the OP No. 2.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C15, document Ex.C16 in additional evidence and has closed his evidence on dated 12.02.2019. Ld. counsel for the OP No. 1 has tendered affidavit Ex.RW1/A and document Ex.R1/1 and has closed his evidence on dated 15.10.2018. Ld. Counsel for OP No. 2 has tendered affidavit Ex.RW2/A and documents Ex.RW2/1 to Ex.RW2/4 and has closed his evidence on dated 07.06.2018.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. The first contention of the opposite party No.1 is that complainant has filed the present complaint on 07.02.2017 i.e. after more than 5 years which is highly time barred. In this regard it is observed that in the present case the DDR No.18 dated 23.01.2012 was got registered in P.S.Rudraprayag, District Rudra Prayag in the state of Uttarakhand. The complainant filed the complaint before the Chairman Utility Services Rohtak on dated 08.05.2013 vide petition no.62/13 and the same was disposed of on 02.03.2016 with direction to the parties to knock the doors of Appropriate Court for redressal of their grievances if they so desired. After that complainant filed the present complaint before this Forum on 07.02.2017. After considering all the facts, we have observed that the complaint is not time barred. Hence the law cited by ld. counsel for the opposite party on this ground i.e. 2015(3)CLT 77 titled as Sanjay Singh Vs. Baby Chandna & Others, (2009)5 Supreme Court Cases 121 titled as State bank of India Vs. B.S.Agriculture Industries(I) are not fully applicable on the facts and circumstances of the case.
7. The other plea taken by the opposite party is that the complainant was using the vehicle for commercial purpose. Regarding this fact, respondent No.1 has not placed on file any record that the complainant was having so many JCB machines which he was plying for his business purpose. The complainant was plying only one machine bearing Registration no.HR38M-4371 for his livelihood by means of self employment. The law cited by ld. counsel for the opposite party in IV(2009)ACC855 of Hon’ble Punjab & Hry. High Court titled as Ram Mehar Vs. Bimla & Ors. and 2017(4)CLT142 titled as Shahid Ali Vs. Rohit Sanghi and others are not applicable on the facts and circumstances of the case as in the present complaint, it is not proved that the JCB machine used by the complainant was intended to generate profit for his business purpose”. Hence the alleged plea is turned down.
8. The next contention of the opposite party no.1 is that there is no concern of respondent No.1 with the respondent No.2 Magma Fincorp Ltd. The perusal of the documents placed on record by all the parties shows that the vehicle was financed by the Magma Fincorp Ltd., and he is doing his business on the first Floor Naraina complex, Civil Road, Rohtak and his branch is at Karnal and head office at Kolkata which is proved from the letter Ex.C1. On the bottom of the alleged letter, the address of the servicing branch is mentioned as 1st Floor, Narayana Complex, Civil Road, Rohtak-124001. Meaning thereby the vehicle was financed through Magma Fincorp Ltd., 1st Floor, Narayana Complex, Civil Road, Rohtak. In the present complaint the perusal of the insurance policy shows that the vehicle was insured through Kolkata National Insurance Company Ltd., National Insurance Building, 8, India Exchange Place, 1st Floor, Kolkata-700001. After perusal of this policy and other documents we have observed that the complainant who can finance his vehicle from Rohtak or from Karnal will not approach for the insurance of his vehicle from Kolkata Main office. Meaning thereby there is a tie-up from the finance company Rohtak with the National Insurance Co. Kolkata. Here it cannot be stated that the serving branch of the National insurance Co. is Kolkata. In fact, the whole business regarding the finance or insurance was done at Rohtak and the payment was also made to the insurance company or the letters regarding loss and other dialogues regarding the loss of vehicle or some other applications were also moved before the branch office at Rohtak. As per Ex.C9, the application was addressed by the complainant to the incharge of the Magma Fincorp Co. Karnal and the copy was also sent to the branch office, Civil Road, Rohtak. In this way, it is well proved that both the OPs i.e. Insurance Company and finance company are doing their business at Rohtak through their respective agents. Moreover Ex.C9, Ex.C10 and Ex.C11 are the letters written by the complainant regarding the loss of the vehicle. The officials of respondent No.1 also objected that they have no concern with the respondent no.2 but the respondent No.1 has not placed on record any document to prove that the payment regarding the insurance was received directly from the complainant but the same was paid by the respondent no.2 to the respondent no.1. Through the above mentioned documents it is also proved that the present Forum has jurisdiction to try and entertain the present complaint. Perusal of the documents shows that the vehicle was fell down in Alakhnanda River and this fact is also proved from the copy of police report Ex.C6. Regarding this fact the complainant has placed on record document Ex.C14 the order of the Hon’ble Court of Sh.V.P.S.Hooda, Commissioner under the Employee’s Compensation Act 1923, Rohtak . Through this order the Commission has granted an amount of Rs.549875/- as compensation to the legal heirs of deceased Tej Ram, who was working as helper on the JCB machine. The complainant has also placed on record investigation report which is Ex.C6. Through this report it is well proved that the vehicle was drowned in the Alakhnanda river and the police officials have not recovered the machine till date. Meaning thereby, it is not possible to recover the machine from the river and in this way, the complaint is entitle for the claim from the opposite party as per the policy. It is also observed that the opposite party has not placed on record any document to prove that the vehicle is recovered or can be recovered in future. They have merely placed on record an affidavit Ex.RW1/A. In fact, the surveyor was appointed by the opposite party and the fee was paid by the complainant which is proved as per Ex.C16. Hence it is proved that the surveyor was appointed and a report was also prepared by Sh. Atul K.Shinghal and the same has not been placed on record by the opposite party. The Spot survey was also done by Sh. R.K.Saraswat on dated 09.09/2012 and the payment was also made by the insurance company. This report has also not been placed on record by the opposite party. Both the reports have been hidden by the respondent no.1 and the respondent no.1 has not come before the Forum with Clean hand.
9. In view of the facts and circumstances of the case we come to the conclusion that the complainant is entitled for the claim as per IDV of the vehicle. As per the document Ex.RW2/4, the whole finance amount has already been paid by the complainant to the respondent no.2. Hence the complainant is entitled for the claim amount. Accordingly the complaint is allowed with direction to the opposite party No.1 to pay the IDV of the vehicle i.e. Rs.1074450/- less excess clause amounting to Rs.53723/-(as per policy Ex.C12, 5% of claim) i.e. to pay Rs.1020727/-(Rupees ten lac twenty thousand seven hundred and twenty seven only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 07.02.2017 till its realization, to pay Rs.26088/-(Twenty six thousand and eighty eight only) on account of fee of surveyor which was paid by the complainant and also to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and litigation expenses to the complainant within one month from the date of decision.
10. 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:
21.02.2019. ................................................
Nagender Singh Kadian, President
..........................................
Ved Pal Hooda, Member.
……………………………….
Saroj Bala Bohra, Member.
