Punjab

StateCommission

A/12/21

Manjit Singh - Complainant(s)

Versus

NIC Ltd. - Opp.Party(s)

Gopal Singh Nahel

22 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.21 of 2012

 

 

                                                          Date of Institution: 06.01.2012  

                                                          Date of Decision : 22.04.2015

 

Manjit Singh son of Late Jaswant Singh Babbar, resident of Trimmu Road, Near Babbar, Hospital, Gurdaspur.

 

                                                          …..Appellant/Complainant

         

                                      Versus

 

1.       The Manager, National Insurance Company Ltd. Div., No.10, Flat        No.101-106, N-1, BMC House, Connaught Place, New Delhi   110001

 

2.       The Branch Manager, National Insurance Company Ltd., Near Bus      Stand, Pathankot.

 

3.       The Manager, Vehiclades Pvt. Ltd., (authorized Maruti Dealer)   Outlet, Village Babri, Tehsil & District Gurdaspur.

 

4.       The Manager Pathankot Vehicleades Pvt. Ltd., Authorized Dealers      for Maruti Udyog Limited, Behind A.B College Pathankot.

 

 

                                                          ….Respondent/Opposite parties

 

         

First Appeal against order dated 17.10.2011 passed by the District Consumer Disputes Redressal Forum, Gurdaspur

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                        :         Sh.S.K.Mahajan, Advocate

          For the respondent Nos.1 & 2    :         Sh.P.S Bedi, Advocate

          For the respondent No.3 and 4   :         Ex-parte.

 

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

 

          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 17.10.2011 of District Consumer Disputes Redressal Forum Gurdaspur, accepting the complaint of the complainant partly and directing the OPs now respondents in this appeal to pay the amount of Rs. 3,18,118,67 as costs of repair of the vehicle to the complainant with interest @ 9% p.a. 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 complainant purchased Maruti Swift VDI Car, bearing temporary registration no.HP-38-B-4833 and now bearing registration no.PB06-L-0190 on 01.01.2010, being driven by Jaswant Singh deceased, the father of the complainant, when it met with an accident on 24.01.2010 and it was fully insured at the time of the accident with the National Insurance Company, vide policy no.76886628 dated 06.01.2010. The complainant approached the OPs many times to release the insurance claim of the car, but to no effect. Legal notice dated 15.09.2010 was served upon the OPs, but it carried no effect on them. The complainant has prayed that since the car met with an accident and it was damaged completely therein and hence the total loss of Rs.4,81,553/- be awarded to the complainant along with interest @ 18% per annum, besides compensation of Rs.50,000/- for his mental harassment.

3.      Upon notice, OP No.1 and 2 appeared and filed written reply raising preliminary objections that complaint is not maintainable. Any deficiency in service on the part of the OPs or any unfair trade practice by them was totally denied in the written reply. The complaint is alleged to be without any cause of action. It was further stated that after the accident, the vehicle was brought up for repair to OP. The complainant never visited to take delivery of the vehicle. It was a case of repair of the vehicle only and not a case of  total loss of the vehicle. The OPs are liable to recover rental @ 100 per day from the complainant on account of parking charges with effect from 01.02.2011 and it was also duly notified to complainant. On merits, the version in the complaint was admitted with regard to the fact of insurance of the car in question with OPs. It was further averred that complainant has no locus standi and cause of action to file the complaint. M/s M.L Mehta was deputed a surveyor, who conducted the survey report and found the car to be repairable one. The complainant misrepresented the true facts and by presenting false documents to Licensing Authority at Gurdaspur got the vehicle registered. The sale letter of the vehicle was for Himachal Pradesh and sale letter issued by the dealer for registration of the vehicle is in Himachal Pradesh only. The OPs denied the loss to the vehicle to be a case of total loss. The OP No.1 and 2 prayed for the dismissal of the complaint.

4.      OP No.3 and 4 filed the separate written reply and raised preliminary objections that complaint is not maintainable and any deficiency in service was totally denied therein. It was further pleaded on merits that complainant never visited the OPs to take the delivery of the car. The car has been completely repaired and has been lying for ready delivery at the workshop of OP No.3. OP No.3 further prayed that they are entitled to recover the rental @ 100/- per day for parking charges with effect from 01.02.2011 from the complainant. OP No.3 and 4 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence the affidavit  of Manjit Singh Ex.C-1, postal receipts Ex.C-3 to Ex.C-5, copy of legal notice Ex.C-2 dated 15.09.2010, copy of reply to notice Ex.C-6, copy of Certificate-cum-policy Schedule Ex.C-7, copy of FIR Ex.C-8, copy of certificate of registration Ex.C-9, copy of letter dated 10.06.2010 Ex.C-10, copy of job card Ex.C-11, copy of estimate of Alliance Auto Service Ex.C-12, copy of driving licnece Ex.C-13, affidavit of Manjit Singh Ex.CW-1/A, copy of CD Conversation Ex.C-14, C.D Ex.C-15, photographs Mark X and Mark Y. As against it, OP No.1 and 2 tendered in evidence affidavit of Ramesh Malhotra, Senior Divisional Manager , National Insurance Company Ex.R-1, affidavit of M.L Mehta of M/s M.L Mehta & Company Automobiles Ex.R-2, copy of Motor Claim Form Ex.R-3, copy of Preliminary Spot Survey Report Ex.R-4, Ex.R-5 to Ex.R-10 are photographs, Motor Survey Report Final Ex.R-12, photographs Ex.R-13 to Ex.R-18, copy of document of insurance company Ex.R-19, copy of legal notice Ex.R-20, copy of receipt Ex.R-21, copy of letter dated 24.05.2011, copy of postal receipt Ex.R-23, copy of reply to notice  dated 15.09.2010 Ex.R-24, copy of Certificate Cum Policy Schedule Ex.R-26. OP No.3 tendered in evidence copy of invoice Ex.R-1/A, copy of body repair bill Ex.R-2/A, affidavit of Janak Raj, Incharge Pathankot Vehicleads Pvt. Ltd Ex.RW-3,  affidavit of Parveen Manager Ex.RW-X,  copy of letter dated 1 Jun 2011 Mark A, copy of legal notice dated 24 Sep 2010 Mark B, copy of letter dated 24 March 2011 Mark C.  On conclusion of evidence and arguments, the District Forum, Gurdaspur partly accepted the complaint of the complainant and awarded the amount of Rs.3,18,118.67 as cost of the repair to the complainant along with interest @ 9% per annum till actual payment besides Rs.5000/- as compensation for mental harassment. Dissatisfied with this order of District Forum, Gurdaspur dated 17.10.2011, the instant appeal has been preferred against the same by the complainant.

6.      We have heard learned counsel for the parties at considerable length and have also examined the record of the case, whereas, OP No.3 and 4 are exparte in this appeal. The evidence is required to be examined carefully by us on the record to determine the controversy raging between the parties in this case. The complainant now appellant has filed the instant appeal for the enhancement of compensation in this case. The complainant now appellant has sought the recovery of the amount on the basis of the insured declared value of the vehicle, being the case of total loss of the vehicle. On the other hand, the stand of the OPs is that as per the report of the surveyor, the vehicle is repairable one and compensation has been awarded to the complainant on the basis of the cost of the repairs of the vehicle only. The matter can be unraveled with the aid of evidence on the record.  Ex.C-1 is affidavit of the complainant Manjit Singh on the record. He has stated in his affidavit on oath that he is a doctor by profession and owned the above car, it met with an accident on 24.01.2010 and was totally damaged therein. It was insured with Ops, vide policy no.76886628 dated 06.01.2010. He further stated that OPs have not given him insured declared value of the vehicle, despite the fact that it was a case of total loss. Complainant served a legal notice Ex.C-2 upon the OPs  and postal receipts are Ex.C-3 to Ex.C-5 thereof and reply of legal notice is Ex.C-6  sent by OPs. The copy of certificate cum policy schedule is Ex.C-7, copy of FIR is Ex.C-8 and copy of registration certificate is Ex.C-9 on the record. This fact is not disputed that M/s M.L Mehta and Company was deputed as Surveyor in this case, vide letter is Ex.C-10 by the OPs. The dispute between the parties boils down to this point that as to whether the loss to the vehicle was a case of total loss or it was repairable loss thereto. The entire controversy is restricted to this point between the parties in this case on the record. Rest of the documents are not in dispute in this case. The factum of accident is also not disputed herein and fact of insurance of the vehicle with National Insurance Company is also not disputed one.  Similarly, the fact that the complainant is owner of the vehicle, vide Ex.C-9 is not a disputed one.

7.      The sheet-anchor of the case of the OPs is that on receiving of intimation of the loss of the vehicle, M/s M.L Mehta was deputed as surveyor to assess the loss and his survey report is Ex.R-12 on the record. We have examined the report of the surveyor in this case. He has found in his report that the Insured Declared Value of the vehicle is of Rs.4,38,152.23 and cost of the repair is Rs.3,18,118,67. The surveyor submitted report Ex.R-12 on the record in this case. Undoubtedly, report of the surveyor carries weightage, but it is not conclusive in nature. Report of the surveyor can be rebutted by the contending parties by leading contrary evidence on the record. We have to determine this point in this case whether it was a case of total loss of the vehicle or it was partial loss to the vehicle, which was quite repairable one. The OPs relied upon the report of the surveyor Ex.R-12 on the record to contend that it was a case of loss on repair basis only as the vehicle could have been repaired. The photographs of the vehicle Ex.R-13 to Ex.R-18 have been examined by us on the record. From perusal of photographs of the vehicle, which are the documents of the OPs, we find that the vehicle appears to be totally smashed from the engine side of the vehicle. The complainant stoutly relied upon the photographs and job card Ex.C-11 of Pathankot Vehicleades Pvt.Ltd. Ex.C-11 Job Card pertains to body repair as per estimate Ex.C-12 are the quotation/estimate of Alliance Auto Service, Maruti Authorized Dealer. From perusal of Ex.C-12 the quotation/estimate, we find that it is recorded in it that the estimate thereof has been made to be 5,60,653/- of this vehicle for damage. Now conflict between the parties is whether the complainant is entitled to the insured declared value of the vehicle  or the cost of repair only. From the estimate report is Ex.C-12  of Maruti Dealer of Alliance Auto Service as well as the report of the surveyor Ex.R-12 on the record, we find that the report of the surveyor stands rebutted by the document of estimate of loss Ex.C-12 to the vehicle on the record. In Ex.C-12, different repairs parts have been included in it and total cost of the vehicle has been estimated as Rs.5,60,653/-. The insured declared value of the vehicle as per certificate of the insurance Ex.R-19 is Rs.4,81,534/- . The estimate issued by Alliance Auto Service of the damage to the car exceeds the insured declared value of the vehicle. The report of the surveyor is not conclusive or gospel truth and it can be rebutted by other contrary evidence on the record. We find that many parts in the estimate in Ex.C-12 of the vehicle have been omitted in the report of the surveyor without any valid reason. Consequently, we find substance in the case of the complainant that the car is a case of total loss, when the damage to the vehicle exceeds 75%, then it has to be considered as a case of total loss under the Insurance Regulatory Authority Instructions. The District Forum has not appreciated this controversy in the proper perspective and overlooked the estimate report Ex.C-12 on the record, which preponderates the report of the surveyor in this case. Consequently, we find it to be a case to be a total loss of the vehicle and complainant is, thus, entitled to the amount of the insured declared value of the vehicle of Rs.4,81,534/-.

8.      As a result of our above discussion, we accept the appeal of the appellant and enhance the amount of the compensation payable to the complainant to Rs.4,81,534/- on the basis of the insured declared value of the vehicle, being  a case of total loss to the vehicle, along with interest @ 9% p.a from the date of filing the complaint till its actual payment. The amount of compensation for mental harassment is kept intact in this appeal by us. The appeal of the appellant is accepted to the extent as recorded above.

9.       Arguments in this appeal were heard on 16.04.2015 and the order was reserved. Now the order be communicated to the parties.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                            MEMBER

 

         

                                                           (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

April 22    2015.                                                             

(ravi)