PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant Company is registered under the Companies Act, 1956 and it is engaged in the business of manufacturing of iron & steel.
2) On 21/01/2001 on Mumbai-Ahmedabad Highway near Pancharkjhapad an accident took place between Motor Lorry baring No.M.H.04-C-2374 and Motor Car bearing No.GJE 8756. Motor Car GJE 8756 was coming from Mumbai side and it was being driven by Dr.Kirtikumar Jaswant Bhavsar. Near Pancharkjhapad Motor Lorry No.MH04-C-2374 came from opposite direction in a very rash and negligent manner. Driver of the Motor Lorry lost control and Motor Lorry dashed against the said car. Driver of said car Dr.Kirtikumar J. Bhavsar died on the spot. After the accident petition was filed being No.851/92 in Thane Motor Accident Claim Tribunal and subsequently said petition was transferred to Valsad being No. as 105/04. Aforesaid petition was decided on 31/03/2005. In the said proceeding Opposite Party deposited a sum of Rs.58,21,297/- in the Hon’ble Tribunal of Ahmedabad in pursuance of order dtd.31/03/05. The Complainant herein has also filed appeal before the Hon’ble High Court at Ahmedabad and subsequently made application before the said Court for transposition in the appeal filed by the Insurance Company.
3) One Smt. Smita Bhavsar, who had suffered injury in the said accident had filed petition in the M.A.C.T., Palghar, Dist.Thane being M.A.C. No.1608/01 in which order was passed by the M.A.C.T. on 17/11/04 interalia observing therein that there is negligence on the part of Complainant’s driver to the extent of 50 % and hence, the Hon’ble Tribunal has awarded Rs.45,000/- towards compensation with simple interest @ 6 % p.a. w.e.f.17/11/1994 till payment.
4) It is submitted by the Complainant that attachment order was issued by the Hon’ble M.A.C.T., Palghar and hence, Complainant deposited Rs.75,841/- with the M.A.C.T. on 02/02/2006. The M.A.C.T., Palghar in its judgement dtd.17/11/04 has made observation that there is no liability of the Insurance Co., as vehicle was not insured with the Insurance Company. According to the Complainant, aforesaid observations made by the M.A.C.T., Palghar are erroneous.
5) It is submitted by the Complainant in the appeal preferred by the Insurance Company before the Hon’ble High Court at Ahmedabad on 13/12/05. Ld.Council Mr.K.K. Nair for the appellant Insurance Company submitted before the Hon’ble Court that he does not press objection with regard to vehicle not being insured with the Insurance Company since on verification it was found that vehicle was insured with the appellant. Aforesaid statement was recorded by the Hon’ble Court in its order dtd.13/12/05.
6) According to the Complainant, it is admitted fact that the Motor Lorry was insured with the Insurance Company. While deciding application No.105/2004 the M.A.C.T., Valsad has also observed that vehicle was insured. According to the Complainant, it is admitted fact that 3rd party liability is on Opposite Party as the premium was paid at the relevant time. Since the Complainant has deposited payment with the M.A.C.T., Palghar and being 3rd party liability, the Complainant has called upon Insurance Company vide their letter dtd.04/03/06 to make payment of Rs.75,841/- and further sent the reminders from time to time to the Insurance Company requesting to make payment of the said amount. On 11/08/06 Opposite Party sent letter to the Complainant and thereby asked the Complainant to send copy of the insurance policy of the vehicle to enable them to do the needful. The Complainant sent reply to the said letter stating that adequate documents are on the record with the Opposite Party to substantiate their claim that the vehicle was duly insured.
7) The Complainant sent a notice dtd.07/11/06 to the Opposite Party and thereby called upon Opposite Party to pay an amount of Rs.75,841/- towards reimbursement together with interest @ 12 % p.a. w.e.f.02/02/06. The Opposite Party has not paid the aforesaid amount to the Complainant. As per Complainant that there being the 3rd party liability, the Opposite Party is bound to pay amount of Rs.75,841/- to the Complainant with interest @ 18 % p.a. from 02/02/06. There is privity of contract between the Complainant and Opposite Party. Hence, there is prima facie deficiency in the service of Opposite Party. It is submitted that the Complainant is a consumer within the meaning of the Consumer Protection Act, 1986, as the Complainant had paid premium on the aforesaid policy. It is contented that cause of action to file this complaint arose on 17/11/06 when Opposite Party repudiated the claim of the Complainant for payment/reimbursement of Rs.75,841/-. Therefore, Complainant has filed this complaint and has requested to direct Opposite Party to pay to the Complainant a sum of Rs.75,841/- alongwith interest @ 18 % p.a. till realization of entire amount. The Complainant has also claimed cost of complaint from the Opposite Party.
8) Alongwith the complaint the Complainant has produced number of documents as per list of document and affidavit of D.C. Wagle in support of the complaint.
9) The Opposite Party has filed written version-cum-affidavit and thereby resisted claim of the Complainant contending that the complaint is not maintainable as it is filed against the judgement dtd.17/11/2004 passed by the M.A.C.T., Palghar in Claim Application No.1608/01. It is submitted that being aggrieved by the aforesaid judgement and order of the M.A.C.T., Palghar the Complainant should have preferred an appeal before the Hon’ble Bombay High Court for setting aside aforesaid judgement and award of the M.A.C.T., Palghar. It is submitted that being aggrieved by the judgment and order dtd.17/11/04 of the M.A.C.T., Palghar, the original applicant therein has preferred appeal in the Hon’ble Bombay High Court being First Appeal No.319/2005 which shows that matter is already sub-judice before the Appellate Court. This fact is not mentioned in the complaint. When the appeal is pending before the Hon’ble High Court the remedy available to the Complainant is to file cross appeal for setting aside the judgement and order of the M.A.C.T., Palghar. Therefore, present complaint is frivolous, vexatious and deserves to be dismissed with cost.
10) The Opposite Party has admitted complaint para no.1 & 2. It is submitted on 21/01/91 Dr.Kirtikumar J. Bhavsar and Smt.Smita Bhavsar were driving in a Motor Car No.GJE 8756 and at that time both met with an accident near Pancharkjhapad on Mumbai-Ahmedabad Highway due to the collusion between vehicle Motor Lorry No.MH-04-C-2374 owned by the Complainant with the Car bearing No.GJE 8756. After aforesaid accident Smt.Smita Bhavsar filed an application for compensation before the M.A.C.T., Palghar and her claim application was numbered as M.A.C. No.1608/01. The said claim was decided by the Hon’ble M.A.C.T., Palghar vide its judgement and order dtd.17/11/04. In the said judgement the Hon’ble Tribunal came to the conclusion that the accident was outcome of negligence on the part of driver of both the vehicles involved in the accident and both the drivers were negligence to the extent of 50 % : 50 %. In the aforesaid proceeding inspite of service of the summons, present Complainant did not appear before the M.A.C.T., Palghar. In order to prove whether the Complainant’s vehicle was insured or otherwise, the applicant examined one Vinod Damodar Pandit, office bearer from Mumbai office of RTO. The Opposite Party also examined one Vidya Bharat Mangal, office bearer of the Opposite Party. After going through the record the M.A.C.T. came to the conclusion that Complainant’s vehicle was not insured with the Opposite Party. The Complainant is held responsible to the extent of 50 % of total compensation Rs.90,000/- i.e. Rs.45,000/- with simple interest @ 6 % p.a. It is submitted that appeal preferred by Smt.Smita Nikhil Bhavsar against the order, pending before the Hon’ble High Court. Being aggrieved by the order of dtd.31/03/05 of the M.A.C.T., Valsad, Opposite Party has also preferred appeal in the High Court at Gujarat at Ahmedabad and it is also pending for final disposal.
11) According to the Opposite Party, the Complainant has deposited a sum of Rs.75,841/- as per the orders of the M.A.C.T., Palghar dtd.17/11/04. This Forum is not Appellate Court for reviewing the two different orders two different the M.A.C. Tribunals. The Opposite Party has denied allegations made in the complaint contending that complaint is misleading and deserves to be dismissed. It is further submitted that the Complainant is not a consumer within the definition of consumer under the Consumer Protection Act,1986. There is no cause of action to the complaint and complaint deserves to be dismissed with cost.
12) Alongwith written statement the Opposite Party has produced photo copy of judgement and order dtd.17/11/2004 passed by the MACT, Palghar in Claim Application No.1608/2001, copy of notice issued by the Hon’ble Bombay High Court in First Appeal No.319/2005 alongwith copy of memorandum of appeal.
13) The Complainant has filed written argument. Heard oral submissions of Ld. Advocate, Mr.P. Bhaduri for the Complainant, and Ld.Advocate Mr.J.D.Karanjkar for the Opposite Party. In view of submissions made by both the parties following points arises for our consideration -
Point No.1 : Whether the complaint is maintainable in view of contentions raised by the Opposite Party in their written
statement.?
Findings : No
Point No.2 : Whether the Complainant is entitled to recover Rs.75,841/- with interest and any other relief from the Opposite
Party ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed fact that on 21/01/2001 on Mumbai- Ahmedabad Highway, near Pancharkjhapad an accident took place between Motor Lorry baring No.MH-04-C-2374 and Motor Car bearing No.GJE 8756. Motor Car bearing No.GJE 8756 was coming from Mumbai to Valsad was being driven by Dr.Kirtikumar Jaswant Bhavsar. Near Pancharkjhapad Motor Lorry No.MH-04-C-2374 came from the Opposite direction in a very rash and negligence manner. Motor Lorry driver lost his control, came to wrong side and gave dash to the Motor Car. In the said accident Dr. Kirtikumar J. Bhavsar who was driving the said Motor Car GJE 8756 died on the spot. In the said accident another occupants of the said car Smt. Smita Bhavsar also sustained injuries. The aforesaid accident was reported to the near by police station. After the accident the parent of deceased Dr. Kirtikumar J. Bhavsar, his son and daughter jointly filed Motor Accident Claim before the M.A.C.T., Thane. Subsequently in view of orders of the Hon’ble Supreme Court in Write Petition No.851/92 said petition was transferred from the M.A.C.T., Thane to the M.A.C.T., Valsad and it was re-numbered as the M.A.C.T. No.105/04. The Hon’ble M.A.C.T., Valsad partly allowed petition. Petition against Opposite Party No.3 & 4 was dismissed. Opposite Party No.1 & 2 i.e. present Complainant (Opposite Party No.1) and present Opposite Party (who was joined Opposite Party No.2) were directed to pay jointly and/or severally Rs.30,95,000/- to the said petitioners with interest @ 9%. The M.A.C.T., Valsad in its judgement while discussing issue no.2 as observed that “I am of the opinion that the offending vehicle was insured with the Opposite Party No.2, and accordingly I answer issue no.2 accordingly.”
It is not in dispute that appeal is preferred against aforesaid decision of the M.A.C.T., Valsad before the Hon’ble High Court at Ahmedabad and said appeal is pending.
It appears from the documents produced on record by the Opposite Party that Smt. Smita Nikhil Bhavsar who had suffered injuries at aforesaid accident had filed M.A.C. No.1608/01 before the M.A.C.T., Palghar. The Opposite Party has produced photo copy of the said judgement on record. The correctness of the said photo copy is not disputed by the Complainant. It appears from the judgement that the M.A.C.T., Palghar has observed in its judgement that “it could not be established that Motor Lorry involved in the accident was dully insured with the Opposite Party No.2 (Original Fire and General Insurance Company). The M.A.C.T., Palghar by its order dtd.17/11/04 directed Opposite Party No.1 in the said petition i.e. present Complainant who is owner of offending Motor Lorry to pay Rs.45,000/- to the applicant alongwith simple interest @ 6 % p.a. from the date of claim petition till the date of payment within 30 days from the date of order.
Ld.Advocate for the Opposite Party has submitted that Smt. Smita Bhavsar being aggrieved by the judgement and order of the M.A.C.T., Palghar has preferred an appeal before the Hon’ble High Court being First Appeal No.319/05 and aforesaid appeal is still pending before the Hon’ble High Court. The fact that the aforesaid fact is not disputed by the Complainant, so it is clear from the evidence adduced on record that regarding the same accident one appeal is pending before the Hon’ble High Court at Bombay and another appeal is pending before the Hon’ble High Court, Ahmedabad.
It is submitted on behalf of Complainant that before the Hon’ble High Court, Ahmedabad, and Ld.Advocate for the Insurance Co. has made statement that he does not press objection with regard to vehicle not being insured with the Insurance Company since and verification, it is found that the vehicle was insured with the appellant. It appears that aforesaid statement was recorded by the Hon’ble High Court. The Complainant has produced photo copy of the aforesaid order dtd.13/12/2005 passed by the Hon’ble High Court in First Appeal No.1805/05. It is submitted by the Ld.Advocate for the Opposite Party that the M.A.C.T., Palghar has observed that there is no evidence to prove that Motor Car involved in the accident was dully insured with Opposite Party No.2 – Insurance Company. The M.A.C.T., Palghar has passed award only against the present Complainant M/s.Mukand Ltd. who is owner of Motor Lorry No.MH-04-C-2374. According to the Complainants advocate above said conclusion drawn by the M.A.C.T., Palghar is erroneous. In view of the aforesaid order passed by the M.A.C.T., Palghar, the present M/s.Mukand Ltd. was constrained to pay Rs.75,841/- to the Complainant in the said claim petition. The Complainant has filed this complaint and thereby requested to direct Opposite Party to pay to the Complainant sum of Rs.75,841/- and cost of this proceeding.
Ld.Advocate Mr.Karanjkar has submitted that Complainant has paid aforesaid amount of Rs.75,841/- as per order passed by the M.A.C.T., Palghar. This Forum has not Appellate Authority of the M.A.C.T., Palghar and therefore, this Forum cannot modify the orders passed by the M.A.C.T., Palghar. Petitioner in the said claim petition has already filed an appeal against the M.A.C.T., Palghar and said appeal is still pending before the Hon’ble High Court. It is submitted that in view of the fact that 2 appeals are pending before 2 different High Court, therefore, present complaint is not maintainable before this Forum and deserves to be dismissed with cost.
The Complainant has filed this complaint before this Forum on or about 26/12/06 with a prayer to direct Opposite Party to pay Rs.75,841/- which was paid by the Complainant to the applicant in the M.A.C.T. No.1608/01 in view of order dtd.17/11/04 passed by the M.A.C.T., Palghar. The M.A.C.T., Palghar in its judgement have observed that it is not established that Motor Lorry involved in the accident was dully insured with the Opposite Party No.2 i.e. present Opposite Party and aforesaid decision is under-challenge before the Hon’ble Bombay High Court. On the contrary the M.A.C.T., Valsad has observed that offending mere Lorry was insured with the Oriental Insurance Co. Decision of the M.A.C.T., Valsad is under challenge before Hon’ble High Court, Ahmedabad. The accident in question took place on 21/01/2001. The Complainant has filed this complaint on 16/12/06 on the basis of so called insurance policy issued by Opposite Party No.2. In this proceeding the Complainant has not produced insurance policy of their Motor Lorry, owned by the Opposite Party. The Complainant has not produced any documentary evidence to support its contention that their Motor Lorry is insured with Opposite Party. For the reasons mentioned above, it appears that present complaint is misconceived and in view of decisions of the M.A.C.T., Palghar and the M.A.C.T., Valsad which are under challenge before the Hon’ble High Court, present complaint is not maintainable. Therefore we answer point no.1 accordingly.
Point No.2 :- As discussed above at this stage present complaint is not maintainable before this Forum. Therefore, present Complainant is not entitled to recover Rs.75,841/- from Opposite Party or entitled to any of the relief claimed. Hence, we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.24/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
