Jharkhand

Bokaro

CC/88/2019

Harendra Kumar Mishra - Complainant(s)

Versus

Poorva Motors Private Limited - Opp.Party(s)

Anjani Kumari

07 May 2022

ORDER

District Consumer Commission, Bokaro.

Case No. 88/2019

 Date of Filing-14-05-2019

 Date of Order-07-05-2022

Harendra Kumar Mishra S/o Late Yogendra Mishra,

R/o Plot No. 269, Co-Operative Colony, Bokaro Steel City.

                                      Vr.

1. Poorva Motors Private Limited N-1, City Centre,

    Sector-4, Bokaro Steel City, 827004

2. Future General India Insurance Co. Ltd. 2^nd Floor,

     Gayatri Enclave, 6^th Avenue Road, Bistupur,

     Jamshedpur-831001

Present:-

          Shri Jai Prakash Narayan Pandey, President

          Smt. Baby Kumari, Member

                                                -Order-

1. Complainant has filed this case with prayer for direction to O.Ps. for payment of Rs. 1,29,565/- on account of expense incurred in repair of the vehicle, Rs. 68008/- on account of expense incurred in treatment of wife of the complainant, Rs. 11500/- as expense of bringing the damaged vehicle to the workshop of O.P. No.1 at Bokaro and Rs. 1,60,000/- as damage due to delay in repair of the vehicle with 18% quarterly compound interest  from date of accident till payment of said amount  on account of professional loss to the complainant and to pay Rs. 50,000/- & Rs. 25,000/- as compensation and litigation cost respectively to him.
2. Complainant’s case in brief is that he purchased Duster Car on 06.11.2015 from Dhanbad, which was insured with O.P. No.2 Future General India Insurance Co. Ltd. (here in after referred as Insurance Co.) which was initially valid from 06.11.2015 to 05.011.2016 and renewed for the period from 06.11.2016  to 05.11.2017 later on it was renewed for the period from 06.11.2017 to 05.11.2018 for Rs. 10,222,952/- on payment of insurance premium and said vehicle is having registration No. JH-10-AW-8021. Complainant himself is a doctor by profession and having driving license issued on 29.12.1993  valid till 26.08.2019.  It is further case of the complainant that on 02.01.2018 while complainant along with his wife was returning from his native place situated in the District Arrah of Bihar by said car which was being driven by the complainant himself but due to rash and negligent driving of one motorcyclist complainant tried to save him during which his car dashed with a tree and badly damaged in which wife of complainant Uma Mishra sustained serious injuries and this occurrence occurred at about 12:50 P.M. Further case is that immediately information regarding accident was given to O.P. No.2 Insurance Co. and O.P. No.1 Poorva Motors, Bokaro  through cell phone. On getting information regarding accident O.P. No.2 assured that they will lift the vehicle from the place of accident and they suggested to get the wife of the complainant be treated leaving the tension of vehicle. Thereafter, complainant brought his wife through other vehicle to local health centre, where wife of complainant was treated and information to the local police was also given, thereafter, wife of complainant was shifted to K.M. Memorial Hospital, Chas on 02.01.2018 (wrongly mentioned 02.11.2018) at about 08.:00P.M. in which she remained under treatment till 08.01.2018 (wrongly mentioned 08.11.2018) at 06.02P.M. during which complainant paid Rs. 68,008/- to the hospital as treatment cost. Further case is that officials of the insurance co. inquired the matter from various sources including the complainant and they informed that the damaged vehicle has already been brought to the garage of O.P. No.1 on 06.01.2018 where complainant was called to put his signatures on some papers, accordingly papers were signed by the complainant who paid Rs. 8500/- as transportation charge to O.P. No.1 without its receipt. Further case is that O.P. No.1 issued tax invoice on 11.07.2018 for Rs. 7,90,689/- related to repairing cost of the vehicle amongst which Rs. 6,84,124/- was paid, then on demand rest of the amount Rs. 1,06565/- was paid through cheque dt. 12.07.2018  by the complainant with objection and apart from it Rs. 23,000/- was received which has been indorsed by hand on Pro Forma Invoice without any signature and on query no satisfactory reply was given. Further case is that as per insurance rule if any passenger of the vehicle sustains injury during accident then insurance co. bears its treatment cost, hence, O.P. No.2 is liable to pay the treatment cost of the wife of the complainant. Further case is that as per statement of the officials of the insurance co. there was total loss to the vehicle due to severe  damage caused during accident, hence insurance co. was liable to replace the vehicle because there was more than 70% claim but it has not been done. Further case is that insurance co. has not given claim of the music system saying that it has been stolen away from the place of accident, contrary to it information to the insurance co. was given immediately after the accident, hence after getting information it was responsibility of the insurance co. to guard the vehicle but due to laches on the part of insurance co. complainant has paid Rs. 1,29,565/- for the same. Further case is that after the accident assurance was given for supply of new vehicle hence repair work was done slowly during which on receipt of payment of the music system vehicle was handed over on 12.07.2018 and due to that very delay complainant suffered professional loss to the tune of Rs. 1,60,000/- and also suffered mental agony, hence this case has been filed with above mentioned prayer.
3.   O.P. No.1 Poorva Motors Pvt. Ltd. has filed W.S. mentioning therein that he is a service provider and providing service on receipt/promise of payment either by the owner of the vehicle or its manufacturer or insurer, hence there is no liability of this O.P. who has not retained the vehicle intentionally on receipt of its full payment on 11.07.2018. Further reply is that since repair cost was related to Rs. 8,00,000/- estimate hence without work order it was not possible to start work, rather there was considerable delay in issuance of work order  by the insurance co. reasons best known to the complainant and insurance co. Further reply is that the insurance co. was not agreed to pay the cost of music system which was a costly affair involving around the cost of Rs. 1,10,000/- because the music system was missing from the vehicle and its wiring was badly damaged. On 11.07.2018 complainant verbally agreed to pay the cost of new music system etc. Hence it was installed and thereafter, complainant received the vehicle on full satisfaction. Further reply is that so far time consumed in repair work is concerned it was due to non availability of some spare parts, expert engineers/technicians and work load of the workshop at the relevant time, hence this O.P. is not liable for delay or any act on his part.
4.  O.P. No.2 has filed W.S. in which there is no denial of the contents of para 1,2 of the complaint petition, however there is denial of contents of para  3, 4,5,6,7,8,9,10,11,12,13,&14 of the complaint petition.  Further reply is that there was rash and negligent driving of the complainant hence it should be considered to a greater extent. Further reply is that it is duty of the complainant to take care of his vehicle but under connivance with the O.P. No.2 he moved the vehicle from Barachatti to Bokaro inspite of availability of authorized service station at Gaya but complainant in order to make false claim, prepared forged bill in connivance with O.P. No.2. Further reply is that from the treatment papers of the wife of the complainant it will show that she was suffering with physical problem due to improper functioning of her kidney and no where  it is mentioned that she was treated for the problem occurred due to alleged road traffic accident, however, insurance policy is not covering such expenses, rather for such compensation claim before the Court of District Judge is maintainable which is not maintainable before this Commission. Further reply is that the Surveyor Mr. Ajay Kumar Lal submitted report and on that very basis payment of Rs. 6,84,171/- after deduction of compulsory policy excess of Rs. 1000/- has been made to the complainant and at that very time complainant had not raised any objection, rather he signed the paper of satisfaction/discharge voucher after going through its contents. Further reply is that Zero Depreciation policy will apply in the case of theft only and not for replacement of all type of damaged motor parts.  Further reply is that since in the job record it is specifically mentioned that ‘ Music System is not present in the vehicle’ hence this O.P. has rightly refused to pay the claim regarding Music System. Further reply is that as per contract there is arbitration clause hence this Commission is having no jurisdiction to entertain the present case. Further reply is that claim of the complainant has been validly considered by this O.P. as per Surveyor’s assessment report and contrary to it there is no evidence by the complainant hence case is not maintainable and this Commission is having no jurisdiction to entertain it. Further it is reply that the statements made in para 16 of complaint petition regarding amount Rs. 4,44,073/- as compensation etc is more excessive, exorbitant and exaggerated. Therefore, it is prayed to dismiss the case.
5.    On the basis of pleadings of the parties following points are being framed for decision in this case:-

1. Whether complainant is entitled to get reimbursement of the cost Rs. 1,06,565/- as fitting of new Music System and Rs. 23,000/- as additional charge from the O.Ps. ?
2.  Whether complainant is entitled to get reimbursed the cost of the treatment of his wife to the  tune of Rs. 68008/- from the O.Ps.?
3. Whether O.P. No.1 is liable in the case in respect to prayer made by the complainant for payment of compensation etc. ?
4. Whether complainant is entitled to get relief as claimed from the O.Ps. ?

6       On the basis of pleadings of the parties   it is apparent that following facts have been either admitted or not denied by the O.Ps. :-

           i) That complainant is the owner of Duster Car having registration No. JH-10-AW-8021 which was purchased on 06.11.2015.

           ii). That complainant got the said vehicle insured with O.P. No.2 Insurance co. time to time which was lastly renewed in the year 2017 valid from 06.11.2017 to 05.11.2018.

          iii) That I.D.V. of the last insurance of said vehicle was Rs. 10,22,952/-.

         iV) That said vehicle met with an accident on 02.01.2018 and at that very time it was being driven by the complainant himself.

         V) That due to that very accident said vehicle was badly damaged for which information to all concerned including both the O.Ps. was given in time by the complainant.

        vi) That after that very accident wife of the complainant was shifted to the Local Hospital for her treatment on same day of the accident and thereafter she was shifted to K.M. Memorial Hospital, Chas  where she was admitted for her treatment and after some days she was discharged.

       vii) That after accident vehicle concerned was not in a position to run hence it was brought to Bokaro in the workshop of O.P. No.1 for its repair by toeing it.

       viii) That when vehicle was brought to workshop at Bokaro then it was noticed that Music System from that very vehicle was found missing.

       ix) That Vehicle was repaired by the O.P. No.1 to the satisfaction of the complainant and it was handed over to the complainant on 12.07.2018.

      x) That part claim of the complainant in respect to repair of the vehicle to the tune of Rs. 6,84,171/- has been made by the O.P. No.2 on 12.07.2018 after Surveyor’s report.

    xi) That cost of the fitting of new music system with its wiring has not been paid till date by the O.P. No.2.

   xii) That part of the claim of the complainant is not in dispute.

7.   In support of its case complainant has produced following papers :-

 a. Photo copy of  the registration certificate of the vehicle Annxure-1

b. Photo copy of  the policy bond of the vehicle Annxure-2.

c. Photo copy of  the money receipt dt. 04.11.2017 for Rs. 32,974/-   

                                                                                    Annxure-3

d. Photo copy of  the Driving License  of the complainant Annxure-4

e. Photo copy of  the prescription related to treatment of wife of the

complainant at PHC Barachatti on 02.01.2018 Annxure-5

f. Photo copy of  the application given to the local P.S. regarding occurrence  of the vehicle Annxure-6

g. Photo copy of  the discharge slip and medical papers with receipt related to treatment etc of wife of complainant at K.M. Memorial Hospital                                            Annxure-7 series

h. Photo copy of job card of the vehicle concerned with policy bond  Annexure 8 series

i. Photo copy of the receipt dt. 12.07.2018 with photo copy of cheque, tax  invoice etc.                                              Annexure-9 series

8 On other hand O.P. No.2 has also filed the photo copies of the papers which have already been filed by the complainant, however, later on photo copies of Satisfaction/discharge voucher dt. 12.07.2018, estimate dt. 17.01.2018, Surveyor’s report dt. 20.02.2018, supplementary estimate dt. 13.06.2018, supplementary surveyor’s report dt. 11.07.2018 etc have been filed in support of his defense.

9      On the other hand O.P. No.1 has produced photo copy of the Job record, insurance policy, estimate dt. 17.01.2018 and satisfaction note dt. 12.07.2018 only.

10     Point No. C:- It is admitted fact that O.P. No.1 Poorva Motors Pvt. Ltd. is a service provider firm which is providing service on payment basis. It has been brought on record that vehicle concerned was brought on 05.01.2018 to the workshop of the O.P. No.1.  There is no evidence on record to show that inspite of receipt of full payment of the repair work O.P. No.1 has detained the vehicle and has not given its delivery to the complainant. Annexure 9/12 is photo copy of the satisfaction note dt. 12.07.2018 through which complainant has confirmed his satisfaction regarding the repair work of the vehicle concerned. In this way the vehicle concerned was handed over to the complainant by the O.P. No.1 on 12.07.2018. Annexure 9/10 and 9/11 are photo copy of tax invoice which are showing that grand total of repair charge was Rs. 790689/- and it was not fully paid prior to 12.07.2018. Annexure 9/1 is photo copy of the cheque dt. 12.07.2018 issued by the complainant in the name of O.P. No.1 for Rs. 1,06,565/- and Annexure 9 is the photo copy of money receipt dt. 12.07.2018 in respect to payment received Rs. 1,06,565/- to the O.P. No.1. It is admitted fact that the insurance Co. i.e. O.P.No.2 has only paid Rs. 6,84,124/- to the O.P.No.1 on 12.07.2018. Therefore, it is apparent that there was no full payment of the repair cost to the O.P. No.1 prior to 12.07.2018. Hence O.P. No.1 cannot be held responsible for detention of the vehicle concerned.  Another allegation is that Rs. 23000/- was paid by the complainant to the O.P. No.1 about which staff of the O.P. No.1 has made endorsement in his hand writing hence this amount is liable to be reimbursed by O.P. No.1 to the complainant.

11   During course of argument Learned Counsel for the complainant failed to show any chit of paper regarding receipt of said amount of Rs. 23000/- except one endorsement at Annexure 9/11. Complainant has failed to show that against which item said Rs. 23000/- has been paid on which date and for which purpose. It is also important to note here that O.P. No.1 is in habit to issue receipts just after receipt of the payment but there is no receipts in respect to said Rupees 23000/-. On this aspect there is no believable legal evidence on record to show that actually said payment has been made and for what purpose it was made. In this way this point number-C is being decided against the complainant and in favour of O.P. No.1.

  12          Point No.  A, B & D:- Since all these points are interlinked  with each other hence they are being taken up together for decision. These points are A:- Whether complainant is entitled to get reimbursement of the cost Rs. 1,06,565/- as fitting of new Music System and Rs. 23,000/- as additional charge from the O.Ps.? B:- Whether complainant is entitled to get reimbursement of the cost of the treatment of his wife to the  tune of Rs. 68008/- from the O.Ps.? D:- Whether complainant is entitled to get relief as claimed from the O.Ps. ?

13    It is important to note here that Future General India Insurance Co. Ltd. is O.P. No.2 in this case and O.P. No.1 is Poorva Motors Pvt. Ltd. Therefore, we have to adjudge the case of the parties accordingly. It is admitted fact that vide Annexure 9 series (Tax Invoice) total bill for repair of the vehicle concerned was raised to the tune of Rs. 7,90,689/- but Insurance co. has paid only Rs. 6,84,124/- and rest of the amount of repair cost Rs. 1,06,565/- was paid by the complainant directly to O.P. No.1 on 12.07.2018. In this way major portion of the repair cost of the vehicle concerned has already been admitted and paid by O.P. No.2 to O.P. No.1 through the complainant. Therefore, there is no dispute regarding validity period of the Insurance policy, coverage of the claim by Insurance policy and the damage of the vehicle concerned on the alleged date as well as its repair by O.P.No.1 and genuinity of the claim.

14    Only dispute is  that the O.P. No.2 has not paid the amount Rs. 1,06,565/- about which it is said that it was the cost of the Music System and its wiring, which was  found  missing from the vehicle concerned at the time of bringing the vehicle to the workshop of the O.P. No.1 on 05.01.2018. Annexure-8 is photo copy of job record dt. 05.01.2018 in which it has been clearly mentioned that music system is missing from the vehicle. O.P. No.2 has filed copy of documents amongst which he has filed two surveyor’s reports dt. 20.02.2018 and 11.07.2018. On careful perusal of the surveyor’s reports it appears that in the first report estimated value of the repair cost was Rs. 6,23,246/- and in the supplementary report dt. 11.07.2018 Surveyor has assessed net loss Rs. 6,84,171/-. On careful perusal of the surveyor’s reports as submitted by the O.P. No.2 it appears that surveyor has not noticed about missing of the music system because no where it has been mentioned in his first or second report. It is very much surprising that vehicle was received in the workshop on 05.01.2018 then it was noticed by the staff of the workshop that music system is missing from the vehicle but surveyor has ignored it or he has not noticed it. Surveyor report is not disclosing the fact that on which basis he has ignored the missing of the music system from the vehicle concerned and under which authority he has surveyed the partial portion of the vehicle or has not surveyed the complete vehicle. Therefore, survey report is not complete and it is disclosing only partial damage. If the surveyor would have taken care then definitely he would have noticed the missing of music system and damage of its wiring but it has not been done. There is no dispute that the insurance policy is not covering the theft of the vehicle or its parts.

15    At this place we would like to extract relevant portion of para 5,7 and para 12 wrongly numbered as para 7 of the W.S. of O.P. No.2 Insurance Co.  which are as follow:-

                           Para 5- “That, with regard to the statements made in para 4 and 7, it is submitted that it is duty of the complainant to take care of his vehicle but complainant in connivance with the O.P. No.2 move the vehicle from Barachatti to Bokaro although the authorized service station of the Renault is situated at Gaya, but the complainant in order to make false claim, prepare the forged bill in connivance with O.P.No.2”.

                           Para-7 (V) “with claim regarding music system, it is submitted that in the vehicle condition report form/job record it is specifically mentioned that ‘music system is not present in the vehicle’ hence present O.P. has rightly refused to pay the claim regarding music system”.

                           Para-12 Wrongly numbered para-7-“ That, in regard to the statements made in para 16 of complaint petition, it is submitted that the amount Rs. 4,44,073/- claimed by the complainant is more excessive, exorbitant and exaggerated”.

16    On perusal of above mentioned reply of this O.P. No.2 ( Insurance Co.) it is apparent that he has admitting the fact that music system was missing from the vehicle concerned and this O.P. has brought the vehicle from Barachatti to Bokaro under connivance of the complainant. Further it is disclosing that the claim made by the complainant is excessive exorbitant and exaggerated. In other words claim is genuine to the some extant. Therefore, this O.P. No.2 Insurance Co. cannot deny its liability. It is also apparent that the facts mentioned in the W.S. by this O.P.No.2 are contradicting the surveyor’s  reports in respect to missing of music system from the vehicle concerned.

17    Hence in light of above discussion we are of the opinion that claim of the complainant to the tune of Rs. 1,06,565/- in respect to rest of the repair amount is genuine and liable to be recovered from O.P. No.2.

18    So far,  claim related to reimbursement of the treatment cost of the wife of complainant to the tune of Rs. 68008/- is concerned, on this aspects we are of the opinion that it is not being covered under the present policy because policy under consideration was not covering the unnamed passenger and it was not the mediclaim policy. So far, the cost of treatment of the wife of complainant is concerned it is beyond the scope of the policy under consideration and beyond the jurisdiction of this Commission specially in the facts of present case.

19    So far, the claim in respect to expenses incurred in bringing the damaged vehicle to Bokaro and hiring of the private vehicle by the complainant is concerned it is also not admissible under the policy concerned, hence on this aspect also claim is not acceptable and contrary to it. Learned Counsel for the complainant failed to convince the Commission that under which provision of the policy it is being covered.

20    Complainant has also prayed for order of payment against the O.Ps. for Rs. 1,60,000/- on account of monitory loss to him. On this aspect there is no evidence to show/prove  that  what profession was being done by the complainant and what was his daily and monthly income which has been effected due to that very accident. There is no any evidence that the complainant was sole owner of the vehicle concerned and in absence of that very vehicle his profession suffered to what extent. There is no evidence regarding daily income of the complainant which was effected due to latches on the part  of the O.Ps. In this way this prayer is also not acceptable for want of evidence.

21    In light of above discussion we are of the opinion that the complainant is entitled to get relief as prayed to the some extent and some of his reliefs are not acceptable either for want of evidence or it is not being covered by the alleged Insurance policy or for which this Commission is having no jurisdiction to entertain it. Accordingly,  points number B & C are being decided against the complainant and point number A & D are being decided in favour of the complainant as discussed above.

22    No doubt inspite of genuine claim related to payment of Rs. 1,06,565/- complainant has been harassed either due to latches on the part of surveyor or latches by the Insurance co. hence he is entitled to get compensation for the physical and mental harassment and also for legal expense.

23   Thus we find and hold that the claim of the complainant is liable to be accepted in the manner indicated here in below:-

O.P. No.2 (Insurance Co.)is directed to pay Rs. 1,06,565/- ( Rs. one lac six thousand five hundred sixty five) only (the cost related to repair and fitting of the music system) to the complainant within 60 days from today otherwise they will pay interest @ 10% per annum from 14.05.2019 (the date of filing of the case). Further they are directed to pay Rs. 25,000/- as compensation related to various type of harassment and Rs. 15,000/- as litigation cost within 60 days from today.