Punjab

Rupnagar

CC/15/72

Dashmesh Earth Movers & Contractors - Complainant(s)

Versus

Pasco Motors & Another - Opp.Party(s)

Sh. Aminderpreet Singh Bawa, Adv.

20 Apr 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. : 72 of 24.07.2015

                               Date of decision                 : 20.04.2016

 

 

Dashmesh Earth Movers and Contractors, Village Khairabad, P.O. Phool Khurad, Tehsil & District Rupnagar through its Director Ravi Sher Singh Longia.    

                                                                                      ......Complainant

                                             Versus

1.       Pasco Motors, National Highway No. 21, Village Khabran, Opposite Solkhian Gurudwara, Rupnagar, through its General Manager. 

2.       IFFCO Tokio Insurance General Co. Ltd, Plot No. 2B and C 4^th floor, Sector 28 A Madhya Marg, Chandigarh, through its Executive Officer, working at Pasco Motors.  

 

                                                                                   ....Opposite Parties

 

                                        Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. A.P.S. Bawa, Advocate, counsel for the complainant

Sh. S.K. Vashishat, Advocate, counsel for Opposite Party No.1

Sh. Amit Gupta, Advocate, counsel for Opposite Party No.2.   

 

 

 

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

 

                   M/s Dashmesh Earth Movers and Contractor through its Director Ravi Sher Singh Longia has filed this complaint, under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-

i)       To admit his claim to his satisfaction in regard to both the vehicles,    

 

ii)      To make due payment of the loss of income/ vehicle hire costs,

iii)     To pay Rs.4000/- per day in total a sum of Rs.1,60,000/-

iv)     To pay Rs.1,00,000/- on account of mental agony, physical harassment and financial loss to the complainant 

 

 

2.                          In brief, the case of the complainant is that he purchased two trucks tipper bearing No.PB-12-T-7110 and PB-12-T-5010 from the O.P. No.1 in the year 2014. At the time of its purchase, same were got insured from O.P. No.2 through its employee Tarun Kumar, who used/was sitting in the office of PASCO Motors for the purpose of doing insurance of the new vehicles purchased by the customer from the O.P. No.1. It is further stated that the vehicles bearing No. PB-12-T-7110 was insured by the O.P. No.2, vide policy No.94000981/94000981/2, which was issued for the period from 31.1.2014 to 31.1.2015 midnight. Similarly PB-12-T-5010 was insured by the O.P. No.2 vide policy No, 94000972/94000972/2 for the period from 31.1.2014 to 31.1.2015. At the time of issuance of the said policies, it was told by the employee of the O.P No.2 that the O.P. No.2 has introduced a policy, if the vehicle meets with an accident or it broke down then the loss of the income of the said vehicle would be borne by the company and if the insured, hires other vehicle during the break down of the insured vehicle then the insurance company would pay Rs.2500/- per day without bill and Rs.4000/- per day for the maximum period of 19 days with submission of bills. The vehicle bearing No. PB-12-T-7110  broke down on 07.01.2015 and was parked in the workshop of O.P. No.1 for its repair and the said vehicle was with the O.P. No.1 from 7.1.2015 to 28.1.2015 for about for 21 days. The complainant hired another vehicle for completion of the pending work and as per condition he submitted the concerned bills for hiring of another vehicle to the O.P. No.2. Similarly the other vehicle bearing No. PB-12-T-5010 also broke down on 12.3.2014 and same was parked in the workshop of O.P. No.1 for its repair, which was kept there for the period from 3.12.2014 to 31.1.2.2014 for about 28 days. Even this time also, he hired another vehicle for completion of pending work and submitted the concerned bills with the O.P. No.2. It was the duty of the O.P. No.2 to pay for the loss of the income of the vehicle or to pay the rent of the hired vehicle to the complainant as per terms and conditions of the policy within one month. He approached and requested the O.Ps. time and again to make the payment of the amount as per the policies but they lingered on the matter on one pretext or the other ultimately and refused to admit the claim of the complainant and informed him through email that insured is not eligible for LOI as the claim was for rear dead axle only which could have been replaced in two days only. On 7.4.12015 the complainant served a legal notice upon the O.Ps., but no reply has been filed by both the O.Ps. Hence, this complaint.

  

3.                 On being put to notice, the O.P. No.1 has filed written version in the shape of affidavit of Sh. Amit Arora, General Manager, M/s Pasco Motors by taking preliminary objections; that the present complaint is not maintainable as the complainant does not fall within the definition of the consumer as envisaged in Section 2(1) (d) of the Consumer Protection Act, 1986; that the complainant had purchased of the Tipper having registration Nos.PB-12-T-7110 and PB-12-T-5010 for commercial purpose as the complainant is running the business of transportation of sand and earth; that the said tippers were not driven for earning livelihood by means of self employment; that the vehicles in question were purchased by the contract business establishment and the same were driven by the driver, therefore, the complainant is not consumer and the complaint does not fall within the purview of Consumer Protection Act, 1986 and the complaint is liable to be dismissed. On merits, the O.P. No.1 has stated that the complainant had parked the vehicle having registration No.PB-12-T-7110 on 7.1.2015 and same was delivered on 28.1.2015 after its repair to the satisfaction of the complainant and the complainant has put his signatures in this respect on the satisfaction sheet. The complainant had parked another vehicle having registration No. PB-12-T-5010 on 03.12.2014 and the same was delivered after its repair to him on 25.12.2014. It is further stated that the original spare parts were not easily available in the market and the order had to be place with TATA Motors and it took 25 days to receive the spares parts from the TATA Motors. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof, it being without any merit.

4.                The learned counsel for the O.P. No.2 has also filed written version by taking preliminary objections that the complainant is a legal entity and has no authority to file the present complaint; that this Forum has no jurisdiction to entertain the present complaint as the complainant has raised the issue against Branch of Insurance Company situated at Chandigarh; that the answering insurance company has not been properly sued as the name is not correctly mentioned; that the complainant had obtained the insurance policy No.86608775 covering the vehicle (PB012T-7110)  w.e.f. from 31.1.2014 to 30.1.2015; that the complainant intimated to the answering insurance company on 09.01.2015 regarding the breakdown of the said vehicle. After receiving the intimation the competent authority deputed M/s Pee Kay & Co., IRDA approved, Surveyor & Loss Assessor to assess the loss, who assessed the loss for a sum of Rs. 92,000/-  and all the liabilities arising out of the accident dated 06.01.2015 (directly or indirectly) were settled fully and finally by the complainant for a sum of Rs.92,000/-. As per the settlement, a sum of Rs.92,000/- was paid to O.P. No.1 towards full and final settlement and complete discharge of O.P. no.2. That nothing more is liable to be paid and the complainant is estopped by his act and conduct from claiming any further sum against the said loss; that the complainant has obtained the insurance policy No.86608854 covering the vehicle (PB-12-T-5010) w.e.f. 31.1.2014 to 30.1.2015 as per the terms and conditions of the policy; that the said vehicle broke down on 0312.2014 and complainant intimated the insurance company about the same on 08.12.2014. After receiving the intimation to the competent authority deputed M/s Pee Kay & Co., IRDA approved, Surveyor & Loss Assessor to assess the loss, , who assessed the loss for a sum of Rs. 93,190/-  and all the liabilities arising out of the accident dated 03.12.2014 (directly or indirectly) were settled fully and finally by the complainant. As per the settlement, a sum of Rs.93,190/- was paid to O.P. No.1 towards full and final settlement and complete discharge of O.P. no.2. On merits, it is stated that the complainant obtained the insurance policy No.86608775 covering the vehicle (PB-12-T-7110) w.e.f. 31.1.2014 to 30.1.2015 as per the terms and conditions of the policy and policy No.86608854 covering the vehicle (PB-12-T-5010) w.e.f. 31.1.2014 to 30.1.2015 as per the terms and conditions of the policy. It is further stated that both the vehicles were repaired by the M/s Pasco Motors. The Surveyor has assessed the loss and all the liabilities arising out of the accident dated 3.12.2014  & 6.1.2015 (directly or indirectly) were settled fully and finally and as per the settlement, the O.P. No.1 was paid the settlement amount agreed towards fully and final settlement and complete discharge of O.P. No.2., in both the claims. Moreover, the said demand also does not fall within the terms and conditions of the policy and the O.P. No.2 was not liable to pay the same. Moreover, the said demand falls within the exclusion clause as the vehicles could have been repaired within the period of 48 hours. It is further stated that the vehicles in question were held up in the workshop due to non availability of spare parts.  Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, it being without any merit.

5.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1, Original receipt Ex.C2 and photocopies of documents Ex. C3 to Ex. C12, and closed the evidence. On the other hand, the learned counsel for the O.P. No.1 tendered affidavit of Sh. Amit Arora, General Manager of M/s Pasco Motors Ex.OP1/1 and photocopies of documents Ex.OP1/2 to Ex.OP1/4 and close the evidence. The learned counsel for the O.P. No.2 has also tendered affidavit of Sh. Sanket Gupta, Vice President of Iffco Tokio General Insurance Ex.OP2/A, affidavit pf Sh. Parvinder Kumar, Surveyor Ex.OP2/B and photocopies of documents Ex.OP2/C to Ex.OP2/J and close the evidence.  

 

6.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

7.                In the complaint, the complainant has mentioned that the Tipper having registration No.PB-12-T-7110, was insured by the O.P. No.2 vide a policy No. 94000981/94000981/2 and the another Tipper having registration No. PB- 12-T-5010 vide policy No. 94000972/94000972/2, where as the O.P. No.2 in written version has mentioned that the Tipper having registration No. PB-12-T-7110 was insured vide policy No.86608775 and Tipper having registration No. PB-12-T-5010 was insured vide policy No.86608854. However, from the Goods Carriage policy cum Certificate Ex.C3 & Ex.C4, it is evident that the Tipper having registration No.PB-12-T-5010 was insured vide policy No.94000972/94000972/2 and Tipper having registration No. PB-12-T-7110 was insured vide policy No.94000981/94000981/2.

8.                At the outset, the learned counsel for the O.P. No. 1 has raised the objection that since the complainant is running the business of transport of sand & earth and the tippers in question were purchased by it purely for commercial purpose and not for earning livelihood by means of self employment, therefore, it is not consumer as envisaged in the Act and the complaint is liable to be dismissed on this ground alone. The learned counsel for the complainant submitted that the complainant had got insured the tippers in question through the insurance policies in question only for the purpose of indemnification of the loss, if any occurring, during the validity period of the said insurance policies, and not for earning any profit, as such, the complainant is consumer and the complaint is maintainable before this Forum.

        This compliant has been filed by Sh. Ravi Sher Singh Longia being the Director of Dasmesh Earth Movers and Contractor. Thus, it is clear that the complainant is a company and not an individual, therefore, it cannot be said that the tippers in question were purchased for earning livelihood by means of self employment. Thus, the complaint filed against O.P No.1.is liable to be dismissed. However, complaint is maintainable against O.P. No.2 with whom the said tippers in question were insured,  as in the case of—‘Harsolia Motors vs. National Insurance Co. Ltd.’ 2005 (I) CPJ 27 (NC) the Hon’ble National Commission, has held that the contract of insurance is a contract of indemnity and therefore, question of any commercial activity does not arise. Even otherwise, the insured who takes the insurance policy, does not trade or carry on commercial activity with regard to the insurance policy taken by it. The policy is only for indemnification of the loss suffered and it is not intended to generate profit.

9.                     Now coming to the merits of the case qua the O.P. No.1, the learned counsel for the complainant submitted that since the O.P. No.1 has delivered the vehicle bearing No. 7110 after its repair with a delay of 21 days and another vehicle bearing No. 5110 after its repair with a delay of 28 days. Thus, the O.P. No.1 is deficient in providing services. On the contrary, the learned counsel for the O.P. No. 1 submitted that in both the tippers rear dead axle got defective which could have replaced within two days but due to non availability of the original rear dead axle in the market, same could not be replaced within two days, as the original rear axle was not available in the market and it had to be arranged from the manufacturer i.e. TATA Motors Horwraha West Bengal and it took 25 days time to receive the same from the date of placing of the order. Hence, the delay caused in repair of the vehicles was not intentional, but beyond the control of the O.P. No.1. As such, the O.P. No.1 cannot be said to be deficient in any manner and the complaint filed qua it is liable to be dismissed. Since, the delay in repairing the vehicle was not intentional, but was due to non availability of the spare parts required to be replaced. Therefore, the O.P. No.1 cannot be said to be deficient in providing services, as such, the complaint qua it is liable to be dismissed on merits also.

 

10.              Even the learned counsel for the O.P. No. 2 has also raised objection that this Forum has no territorial jurisdiction to adjudicate upon the matter, as the complainant has filed the instant complaint against the Chandigarh Branch office of the insurance company. To this effect, the learned counsel for the complainant submitted that the complainant had purchased the tippers in question from the Pasco Motors, Ropar and the same were got insured there & then through the executive officer of the insurance company, who used to sit in the premises of Pasco Motors, Ropar. Even on the policy documents, Ex. C3 & Ex. C4, the name of dealer i.e. Pasco Motors, Ropar finds mentioned. Thus, it stands proved that the insurance policies in question were got issued at Ropar. As such, this Forum has jurisdiction to entertain & decide the instant complaint.

                       Admittedly, the tippers in question were purchased from Pasco Motors, Ropar and the same were got insured with the IFFCO Tokyo General Insurance Company. In the policy certificates Ex. C3 to C5, the name of the dealer has been mentioned as Pasco Motors, Ropar. It is of common knowledge that, as & when a new vehicle is purchased, then it is mandatory to get the said vehicle insured before it can be plied on the road. Therefore, we have no reason to disbelieve the version of the complainant that the tippers in question were got insured at Ropar through the executive officer of the O.P. No. 2. Thus, it is proved that the O.P. No. 2 is running its business at Ropar. As such, the cause of action to file the instant complaint arose to the complainant within the territorial jurisdiction of this Forum and the objection raised by the learned counsel for the O.P. No.2 is not tenable, hence, rejected.

11.              Now coming to the merits of the case qua O.P. No.2, the learned counsel for the complainant submitted that as per terms and conditions of the insurance policy the complainant was entitled to get a sum of Rs.4000/- per day for 19 days as rent for the vehicle which he hired during the period when his both the tippers were with the repairer. As such, he is entitled to get total amount of Rs.1,60,000/- from the O.P. No.2 but it refused to pay the same, which amounts to deficiency in service on its part.  The learned counsel for the O.P. No. 2 submitted that both the vehicles in question could have been repaired by replacing the rear dead axle, merely in two days, therefore, as per terms & conditions of the policies, the O.P. No. 2 is not liable to pay any hire charges as claimed by the complainant. Even otherwise, the loss as assessed by the surveyor in respect of both the vehicles, has already been settled and the amounts have also been received by the complainant as full & final settlement of the claims vide Claim Discharge-cum-Satisfaction Vouchers, Ex. OP2/C & Ex. OP2/I, as such, the complainant had no occasion to file the instant complaint and the same be dismissed with costs.

12.              Admittedly, the tippers in question were insured with the O.P. No.2 and during the validity period of the insurance policies, the said tippers broke down on different dates. It is also admitted fact that there was delay in repair of the said tippers may be for the reason of non availability of spare parts.  As per terms and conditions of the policy, which is annexed along with the photocopy of the insurance policy Ex.OP2/D,   if the insured hires other vehicle during the breakdown of the insured vehicle, then insurance company would pay Rs.2500/- or 1% of the IDV (Insured Declared Value), whichever is lower for the goods carrying vehicle having weight upto 25000 Kg and Rs.4000 or 1% of the IDV whichever is lower having weight beyond 25000 Kg. However, it is not out of place to mention here that the complainant had received the claim amount in full and final settlement of the claim in respect of both the tippers and executed a discharge cum satisfaction vouchers, Ex/OP2/C and Ex.OP2/1 respectively.  In the said vouchers, which are duly signed on behalf of the complainant, it is categorically mentioned that the same have been issued in full & final settlement of all the claims, present or future, arising directly/indirectly in respect of said loss/accident. It is not the case of the complainant that there was mis-representation/fraud/ coercion on the part of the insurance company, which induced him to settle the claim  therefore, the instant complaint filed by it claiming further amount is without any merit. Once the complainant had already received the claim amount in full & final settlement of the claim in respect of both the tippers and executed a discharge voucher of full and final settlement then the insurance company is not liable to pay any amount as demanded by the complainant. In the case of United India Insurance Vs Ajmer Singh Cotton & General Mills,  II (1999) CPJ 10 (SC),  the Hon’ble Apex Court has held that the insured is estopped from making any further claim from the insurer after accepting the insurance claim amount in full and final settlement of all the claims by executing the discharge voucher willingly and voluntarily without any protest or objections. The Hon’ble National Commission, in the case of EPGGRO Papers Moulds Limited Vs New India Insurance Company  I (2016) CPJ 404 (NC) has held that matter finally stands settled between the parties and Commission has no power to interfere with that settlement.  

13.              In view of the aforesaid discussion, we dismiss the complaint against the O.Ps. with no order as to costs.

14.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file indexed & consigned to the Record Room.

ANNOUNCED                                                                       (NEENA SANDHU)

Dated .20.04.2016                                                PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.