Punjab

Ludhiana

CC/14/462

Harbans Singh - Complainant(s)

Versus

Oriental Ins.Co.Ltd - Opp.Party(s)

27 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                 Complaint No: 462 of 01.07.2014

                                                                                                                    Date of Decision: 27.03.2015

                                                                                                                   

Harbans Singh s/o Sh.Surjit Singh, resident of Village Sultanpur, Post Office Behrampur Bet, Tehsil Chamkaur Sahib, Ropar.

……Complainant

Versus 

1. The Oriental Insurance Company Limited, Opp. M.C. Office, Zone-C, Gill Road, Ludhiana, through its Manager.

2. M/s Padam Motors Limited, G.T.Road, Dhandari Kalan, Ludhiana, through its Director/Managing Director.

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                     Sh.Sat Paul Garg, Member

                    Smt.Babita, Member

 

Present:       Sh.G.S.Tara, Advocate for complainant.

                   Sh.Rajneesh Lakhanpal, Advocate for OP1.

                   Sh.Rajeev Abhi, Advocate for OP2. 

 

                   

                        ORDER

 

(R.L.AHUJA, PRESIDENT)

 

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Harbans Singh s/o Sh.Surjit Singh, resident of Village Sultanpur, Post Office Behrampur Bet, Tehsil Chamkaur Sahib, Ropar (herein-after in short to be referred as ‘complainant’) against The Oriental Insurance Company Limited, Opp. M.C. Office, Zone-C, Gill Road, Ludhiana, through its Manager and others (herein-after in short to be referred as ‘OPs’)- directing OP2 to release the vehicle of the complainant and OP1 be directed to pay the claim amount to the OP2 and to pay Rs.1.00 lac as compensation on account of harassment, loss of enjoyment of vehicle and litigation charges to the complainant.

2.                Brief facts of the complaint are that complainant had purchased a Chevrolet Beat Car from OP2  for an amount of Rs.4,60,779/- and availed the insurance policy from OP1 for the said car and paid the premium. The policy was valid till 8.7.13. Unfortunately the said car met with an accident near Bus Stand Village Rania, P.S. Koom Kalan, Tehsil and District Ludhiana on 7.4.13. An FIR was also registered at P.S. Koom Kalan, Ludhiana u/s 279, 337, 304-A, 427 IPC. The car was badly damaged/total damage and the same was brought to the workshop of the OP2 at Dhandari Kalan, Ludhiana and due intimation was also given to OP1 regarding the accident. Claim was lodged with the OP1. Thereafter the complainant approached OPs. But OP1 insisted that they will release claim only when the car is delivered to the complainant and a Pakka bill is given by the OP2, whereas the OP2 is adamant on that they will not issue any bill or demand in writing to the insurance company and will release the vehicle only when the claim amount is directly paid by the OP1 to OP2. Till date, the vehicle of the complainant is standing at the workshop of the OP2. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 appeared through their counsel and filed written statement taking preliminary objections that the complaint is not maintainable in the present form; complaint is pre-mature; the complaint is false and frivolous one; the complainant has not come to this Forum with clean hands and has suppressed material facts from this Forum; complainant is stopped by his act and conduct from filing this complaint. Further submitted that as per the terms and conditions of the insurance policy, the answering OP is to reimburse the expenses incurred by the complainant on the repair of the vehicle, subject to the terms and conditions of the insurance policy. But the complainant has failed to provide the bills regarding the repair of vehicle and the receipt of payment made to repairer i.e. Padam Motors/OP1. The delay is on the part of the complainant and not on the part of the answering OP. Moreover, the Temporary Registration Certificate of the vehicle in question had already expired on the day of alleged accident and the RC was got prepared after the accident. In this regard, a repudiation letter dated 16.9.14 on the basis of non validity of RC at the time of accident was sent to the complainant, but the reply is still awaited. On merits, denying the contents of all other paras of the complaint, OP1 prayed for the dismissal of the complaint.

4.                On notice of the complaint, OP2 appeared through his counsel and filed written statement taking preliminary objections that the present complaint is barred u/s 26 of the Consumer Protection Act; the present complaint is not maintainable since the complainant had sent the damaged car to the workshop of OP2 and job card no.001385 dated 7.5.13 was opened for repair for accidental damages to the car in question bearing no.Pb-12-S-4507. After opening of job card referred above the complainant has called upon OP2 verbally/telephonically not to carry the repairs till further instructions, but later on the complainant after a long gap called upon the OP2 to carry out the repairs/job work against the aforesaid job card. The car was extensively damaged. The car was repaired on 7.12.13 and the complainant was called upon telephonically to take delivery of the car in question after making the payment of the repair charges i.e. the value of the parts and labour charges amounting to Rs.3,63,83/-. After the repair of the said card on 7.12.13 and after raising the invoices dated 26.12.13 worth Rs.3,63,185/- as referred above, the complainant had again called upon the OP on 4.1.14 to carry out certain repairs before he could take the delivery for which a job card no.0093554 dated 4.1.14 was issued to the aforesaid vehicle of the complainant and the car was repaired as advised by the complainant on 11.1.14 and a invoice for Rs.2584/- was raised vide invoice no.006407 dated 11.1.14.The complainant was called upon on 11.1.14 again to take the delivery of the car in question and to pay a sum of Rs.3,65,769/- to OP2, but the complainant had failed to take the delivery of the car by making payment of Rs.3,65,769/- as referred above and as such the car is still lying with the OP2. In addition to the above said amount, since the repaired car is occupying the space of the workshop of the OP2 and as such, the complainant is also liable to pay Rs.250/- per day by way of parking charges from 8.12.13 till date. There is as such, no deficiency in service or negligence on the part of the OP2. The present complaint is not maintainable since complicated question of law and facts is involved which require elaborate evidence both oral and documentary and it is only civil court of competent jurisdiction who can try and decide the present complaint. On merits, admitting the facts mentioned in the preliminary objections and denying all other allegations of the complaint, answering Ops prayed for the dismissal of the complaint against OP2.

5.                In order to prove his case, Ld. counsel for complainant has placed on record affidavit of complainant Sh.Harbans Singh Ex.CA, wherein, the same facts have been reiterated a narrated in the complaint and also placed on record documents Ex.C1 to Ex.C4. On the other hand, Ld. counsel for OP1 has placed on record affidavit of Sh.Parvesh Verma, Divisional Manager, DO-I, Oriental Insurance Co. Ltd. Gill Road, Ludhiana Ex.RA1, wherein, the same facts have been reiterated as narrated in the written statement and also placed on record document Ex.R1/A. Whereas, Ld. counsel for OP2 has placed on record affidavit of Sh.Gagan Brar, Cluster Head, Padam Cars (P) Ltd. VPO Jugiana, main G.T.Road, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and also placed on record documents Ex.R1 to Ex.R6.

6.                We have heard the Ld. counsel for complainant and OP1 and have gone through the written arguments submitted on behalf of OP2 and have also perused the entire record placed on file.

7.                Ld. counsel for complainant has contended that it is proved fact on record that the complainant is the owner of the Chevrolet Beat Car bearing registration no.PB12S4507, which was insured with OP1 for the period 9.7.12 to 8.7.13. It is further proved on record that unfortunately the said car met with an accident on 7.4.15 near Bus stand Village Rania, P.S. Koom Kalan, Tehsil and District Ludhiana and FIR was registered at P.S. Koom Kalan, Ludhiana u/s 279, 337, 304-A, 427 IPC. It is further proved on record that the vehicle was taken to OP2 for repair and claim was lodged with OP1. But neither the OPs settled and paid the claim of the complainant nor OP2 handed over the vehicle to the complainant after repair.

8.                On the other hand, Ld. counsel for OP1 has contended that as per terms and conditions of the policy, OP1 is to reimburse the expenses incurred by complainant on the repair of the vehicle. But till today, complainant has failed to provide the repairing bill regarding repair of vehicle. Moreover, Temporary Registration Certificate of vehicle had already expired on the day of accident. So, there is no deficiency in service on the part of OP1.

9.                Whereas, Ld. counsel for OP2 has filed written arguments, whereby, reiterating the facts taken in the written statement, at the points of arguments submitted that the complainant is not a consumer since service hired is without payment of any consideration as not even a single penny has been paid till date as consideration after sending the car by the complainant for its accidental repair to the workshop of OP. the OP2 Padam Car is not under any duty/obligation to lodge any claim on behalf of complainant with insurance company. The relief sought for is against the insurance company to pay the claim amount to OP2 and as such the complainant admits that he owes a sum of Rs.3,65,769/- to OP2. The entire grievance of the complainant is against insurance company. Two job cards are opened i.e. Ex.R2 and Ex.R5 as per the instruction of the complainant, the car was got repaired as per the instruction of the complainant and is lying repaired, invoice Ex.R3, R4 and R6 are raised for a sum of Rs.3,65,769/- and the complainant can take the delivery of the car after making the payment of Rs.3,65,769/- and the original bill which can be issued only after the receipt of the payment. The complainant is to get his claim passed from Op1 and receive the payment of the claim from OP1 himself and OP2 has nothing to do with the statement or repudiation of the claim of the complainant by OP1. Further it is admitted that on account of submission of Pakka bill the OP1 is not settling the claim. The Pakka bill can be issued by OP2 only on the receipt of the invoice value. The OP2 had incurred the amount of invoice from their own pocket and as such the car of the complainant cannot be released without making the payment of the invoice amounting to Rs.3,65,769/- plus parking charges. Complainant till date has failed to provide the bills regarding the repair of the vehicle and receipt of payment made to the repairer Padam Motors/OP2 and delay is on the part of the complainant and not on the part of OP1. The complainant is bound to pay the bill amount as per Ex.R3, R4 and R6 and can take delivery of the car on payment of bills. There is no deficiency in service on the part of the OP2.

10.              We have considered the rival contentions of Ld. counsel for the parties, oral statement of complainant as well as OP1 and have gone through the written arguments submitted on behalf of OP2 and have also perused the entire record placed on file.

11.              It is undisputed fact that complainant is the owner of vehicle Chevrolet Beat car bearing registration no.PB12S-4507, which was insured with OP1 and the same met with an accident on 7.4.13 near Bus Stand Village Rania, P.S. Koom Kalan, Tehsil and District Ludhiana and FIR was registered at P.S. Koom Kalan, Ludhiana. Vehicle was taken to OP2 for repair and claim was lodged with OP1. The perusal of the written statement of OP1 reveals that there is specific plea of the OP1 that complainant has failed to provide the bills regarding the repair of vehicle and the receipt of payment made to repairer i.e. Padam Motors/OP2. Further Temporary Registration certificate of the vehicle in question had already expired on the day of alleged accident and the RC was got prepared after the accident. In this regard as per repudiation letter dated 16.09.14 on the basis of non validity of RC at the time of accident was sent to the complainant, but the reply is still awaited. The perusal of the evidence of OP1 reveals that OP1 has placed on record only affidavit of Sh.Parvesh Verma, Divisional Manager, DO-I, Oriental Insurance Co. Ltd. and has placed on record only the copy of the insurance policy, but has not placed on record any repudiation letter or any documents on the basis of which, they have repudiated the claim of the complainant. Furthermore OP1 has not placed on record any document, from which, it can be presumed that whether any surveyor was appointed by OP1 to assess the loss of the vehicle of the complainant or not? Whether he submitted his survey report with OP1 or not? Further they have not placed on record any document from which, it can be presumed that on the day of accident, the vehicle was not having the valid RC. So, if the claim of the complainant has been repudiated by the OP1, the same deserve to be quashed. Whereas the claim of the complainant against OP2 is concerned, it is settle principle of law that the complainant is liable to pay repair charges of his vehicle. However, he is at liberty to get adjusted the amount, which he will receive from the insurance company on account of insurance claim towards the bills of repair. But the complainant cannot escape from his liability to pay the repair bills of the vehicle, since the repairer has carried out the necessary repair in the vehicle of the complainant. Furthermore, the OP2 has categorically stated that despite writing numbers of letters, the complainant himself has not taken the delivery of the vehicle by paying repair bill. As such, there is no deficiency in service against the OP2.

12.              Sequel to the above discussion, the present complaint is partly allowed and Ops are directed to re-open the claim of the complainant and assess the loss of the vehicle of the complainant, after appointing the surveyor duly approved by IRDA, if the same has not been appointed earlier. OP1 is further directed to settle and pay the claim of the complainant, as per the terms and conditions of the policy. However the insurance company is at liberty to settle the claim of the complainant on non standard basis, if there is any violation of terms and conditions of the insurance policy. Further OP1 is directed to pay Rs.20,000/-(Twenty thousand only) as compensation and Rs.2000/-(Two thousand only) on account of litigation expenses to the complainant. Further OP2 is directed to hand over the vehicle of the complainant, after duly repairing the same as per the job card, subject to the complainant making the payment of the repair bills. Keeping in view of the peculiar circumstances, no order as to compensation and to cost is passed against the OP2. Order be complied with 30 days of receipt of the copy of the order, which be made available to the parties, free of cost. File be consigned to record room.

 

          (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

          Member                           Member                         President

Announced in Open Forum.

Dated:27.03.2015 

Hardeep Singh