Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 163/dated 04.06.2015
Peter George
Flat No. 6154, F-6, Alok Vihar-2, Sector-50,
Gautam Budh Nagar, Noida, Uttar Pradesh-20301 …Complainant
Versus
OP1- M/s Shri Ram General Insurance Company Ltd.
1001, LGF, Naiwalan, Arya Samaj Road, Karol Bagh,
New Delhi-110005 (through its Manager)
OP2- Managing Director
M/s Shriram General Insurance Co. Ltd.
E-8, EPIP RIICO Industrial Area, Sitapura,
Jaipur, Rajasthan -302022
OP3- Auto Restoration
C-132, Sector-10, Noida …Opposite Party
Date of filing 04.06.2015
Date of Order: 13.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to dispute of parties) - The complainant/Insured has grievances of deficiency in services and unfair trade practice against Insurer/OP1 & OP2 that the insured's vehicle bearing registration no. UP16AD5673, Tata Motors-Safari Strome EX Car (hereinafter referred as 'the vehicle') was burnt, when stationed at parking bay at Service Centre of OP3 but OPs/Insurer failed to settle the valid claim of damages happened to the vehicle in such episode of fire. But the claim was rejected by OPs on flimsy grounds. That is why complaint for appropriate directions to the OP1 & OP2 to pay repairs charges/damages of Rs. 1,65,000/- under insurance cover; compensation of Rs.1,00,000/- on account of harassment, extreme stress and agony faced by complainant for want of reimbursement of claim, costs of Rs.2,000/- besides other relief.
1.2. The complaint is opposed by the OPs that there was no deficiency of services or unfair trade practice on their part but the complaint was filed without cause of action and to extract amount from the OPs. A surveyor was appointed by OP1 & OP2; the surveyor furnished his report and in view of the same that there was contract of bailment between the complainant as a bailer and the service centre/OP3 as a bailee, the vehicle was burnt under the custody of bailee M/s Auto Restoration, therefore, the OP1 & OP2 have no liability on any count.
1.3 OP3 has also furnished its reply to give the glimpses of receipt of vehicle and it was parked outside the building of service centre, there was sudden smoke noticed coming from the closed bonnet of the car in the parking area. It has also no liability.
1.4. Initially the complaint was filed against OP1 & OP2, however, the complainant filed an application to implead the name of OP3, being service centre, therefore, the request was allowed by order dated 04.05.2016 and the OP3 was impleaded. The OP3 was also sent/served notice with copy of complaint and thence it has filed reply.
2.1. (Case of complainant) –The complainant is consumer/insured since it took insurance policy bearing no. 101026/31/15/008112 w.e.f. 05.09.2014 to 04.09.2015 in respect of his vehicle from the OP1/Insurer (being a branch office and OP2 its registered office) by paying huge premium of Rs. 22,026/- against sum insured of Rs. 6,12,000/-.
2.2. On 23.09.2014, the complainant gave his vehicle/car for service to OP3 but due to short circuit, the vehicle was burnt/damaged. The complainant approached OP1 and informed the incident. OP1 appointed a surveyor Mr. Pradeep Kumar Saxena, who conducted the investigation. The complainant lodged his claim no. 10000/31/15/C/027745 with the OPs. The complainant has been pursuing OP1 & OP2 to ascertain the status of claim but he was always advised that his claim is under process.
The complainant received a letter no. GIC/claims/14-15 from OP1 showing rejection of his claim on the ground “contract of bailment” with an advice to contact the service centre for indemnification of losses. It shocked the complainant and on which he filed his grievances to the Executive of OPs, he was just given assurances but no result.
2.3 There are deficiency of services on the part of OP1 & OP2 as not only he suffered undue hardship & mental frustration for losses happened but also for want of considering the grievances of the complainant to settle his valid claim. They are negligent and irresponsible. There is deficiency of services and unfair trade practice on their part. The complainant also wrote letter dated 03.04.2015 to the OPs by mentioning all details of his grievances with a hope that there will be positive response but he was disappointed. That is why the present complaint for relief being claim.
The complaint is accompanied with various documents of repudiation letter dated 05.01.2014 (correct date is 05.01.2015), letter issued by OP3 in the name of OP1 and OP2 that the vehicle was parked outside the workshop when sudden smoke notice under closed bonnet and complainant’s letter dated 03.04.2015.
3.1 (Case of OP1 & OP2)-There is joint reply on behalf of OP1 & OP2, however, the reply does not bear signature of any of the officers or authorized person of OP1 & OP2. But it is bearing signature by the Counsel for complainant.
[Commission's observation - The requirement of pleading or reply is that it should be signed by the parties and counsel, if any. There is non-compliance of this requirement of law. However, it is an old case and it was being proceeded with, therefore, in order to adjudicate the rights of the parties, the reply is being considered to avoid other round of litigation].
3.2.1 The complainant was issued insurance policy in respect of the subject vehicle but the parties are bound strictly by the terms and conditions thereof.
The complaint is without any merit and without cause of action. The complainant came to the Consumer Forum without clean hands and there is also misrepresentation on behalf of complainant, therefore, the claim is false and motivated to extract the money, it is liable to be dismissed. The OPs had appointed a surveyor immediately on receipt of information and it was revealed that the vehicle was handed over to M/s Auto Restoration for regular service on 23.09.2014, consequently, there was contract of bailment between the complainant/bailer and the service centre/bailee, the vehicle was burnt during custody/bailment of the vehicle with the service centre, therefore, it becomes responsibility of the said service centre/bailee, the complainant was advised too accordingly.
3.2.2. Since the vehicle was in the custody of service centre, there was operating contract of bailment at the time of theft incident for repairs and as per the terms of policy and its wording, during such repairs, the vehicle was at the insured on risk (the OPs rely upon Jagdish Prasad vs ICICI Lombard Ltd. (II 2013 CJP 578 NC) that the vehicle was unattended and unlocked with ignition key in the vehicle, it was held gross negligence on the part of that complainant and violation of policy terms and conditions) [Commission Observation- The facts of the complaint are no of theft but of vehicle was burnt]. Moreover, it was gross negligence on the part of repairer resulted into fire incident and loss caused to the vehicle, for which OPs are not liable and that is why the claim was repudiated in view of the survey report, which was communicated to the complainant by registered letter dated 05.01.2014 (i.e. 05.01.2015). Accordingly, the claim was closed as 'Nil claim' and complainant is trying to misguide the present Commission, no claim is made as per conditions of the policy.
Since, there is no deficiency of services or unfair trade practices to be covered under the Consumer Protection Act, 1986 and complainant is not entitled for any amount being claimed under different heads vis-à-vis the complainant suffered losses due to fault and gross negligence on the part of repairer M/s Auto Restoration (i.e. now OP3); the OPs cannot be held liable for those negligence and fault of others. The complaint is liable to be dismissed.
The OPs' reply refers insurance policy and registered letter dated 05.01.2014 (i.e. 05.01.2015) in support of plea.
3.3. (Case of OP3)- The OP3 had filed typed reply dated 26.09.2016, by sending it by post on 22.10.2016 with covering letter and another manually written telegraphic reply filed on 02.12. 2016 by explaining the circumstances, besides a letter was written to the OP1 and OP2 that the vehicle was parked on the parking bay outside the workshop premises, there was sudden smoke noticed coming out from the closed bonnet of the car in the parking area. The fire was extinguished, subsequently the customer was informed. The damage was due to short circuit and fire, the complainant was advised to make claim for damages from the insurance company. The registered owner decided to shift the vehicle to authorized TATA Motor Dealer at Sector-63, Noida. The vehicle was inspected by the surveyor, however, the OP3 is not aware about the repairs and other events inter-se between the complainant and insurer.
4. During the pending of complaint, the complainant had filed an application to direct OP1 and OP2 to file surveyor report and subsequently after notice on this application the OP1 and OP2, they came with their own application to file surveyor report and other documents, the surveyor report & those documents were taken on record by order dated 06.07.2018 and consequently applications were disposed off. The documents are comprising surveyor’s bill dated 31.01.2015, surveyor’s report dated 24.09.2014, bearing receipt acknowledgement by OP1 and OP2 on 27.09.2014, claim form, letter issued by OP3 to the OP1 and OP2, claim intimation slip and claim closure sheet.
5.1. (Evidence)- Complainant Peter George led his evidence by way detailed affidavit with the support of documents filed with the complaint. The affidavit is on the lines of complaint.
5.2. The OP1 & OP2 led their evidence by filing detailed affidavit of its Legal Officer Shri Rama Raman and it is compact affidavit by reproducing contents of their joint reply. It is further mentioned in para 6 of the affidavit that surveyor submitted his report dated 31.01.2015 with the OPs on 14.02.2015 and as per terms and conditions of policy read with surveyor report dated 31.01.2015, no claim is made out. It is also introduced in para 11 of affidavit that the disputed facts can be decided by civil court exclusively, this plea was not taken in the reply.
5.3 There is no evidence let by and on behalf of OP3.
6.1 (Final hearing)- The complainant and OP1 and OP2 filed their respective written arguments followed by oral submissions by Sh. Sunil Kumar, Advocate for complainant and Sh. Rajan Mishra, Advocate for OP.
6.2. The written arguments of the parties are on the pattern of their pleadings and evidence. However, the OP1 and OP2 also contended that “the insured shall take all reasonable steps to safeguard the vehicle from loss of damage and or to maintain it in efficient condition”. OP1 & OP2 have primarily relied upon the case law to fortify their contentions, the same are as follows:-
(i) Prahlad Sharma Vs. ICICI Lombard General Ins. Co. Ltd. reported as II (2012) CPJ 498 (NC), there are disputed question of fact and law, therefore, the Consumer Forum has no jurisdiction to decide the dispute, since it needs to be strictly prove before the Civil Court.
(ii) Bombay Brazzerie Vs. Mulchand Aganual, I (2003) CPJ 4 (NC), in a contract of bailment, the bailee is liable to compensate the bailer since bailment occurs when owner of the car transfers the possession, care and its control to another person for limited time for a special purposes.
(iii) Mysore Dasara Exhibition Authority Vs. S.B. Manikya Raju & Anr. [II (2006) CJP 173 (NC)] the car was parked in authorized parking area but it was stolen and consequently by virtue of contract of bailment the In-charge of such parking was held liable for the losses suffered by the customer.
(iv) United India Insurance Vs. M/s Harchand Rai Chandan Lal, JT 2004(8) SC 8 held the terms and conditions of the policy are to be followed strictly.
(v) Vikram Greentech India Ltd. & Anr. Vs. New India Assurance Co. Ltd. 2009 5 SCC 599 the insured cannot claim anything more than what is covered by the policy.
(vi) Sikka Papers Ltd. Vs. National Insurance Co. Ltd. & Ors. reported as (2009) 7 SCC 777 the surveyor’s report is not the last word but then there must be legitimate reasons for departing from such report.
7..1 (Findings)- The contentions of both the sides are considered keeping in view totality of circumstances of pleadings, evidence, written argument, statutory provisions of law of the Consumer Protection Act 1986 and Indian Contract Act 1872.
7.2. The OP1 and OP2 took objections in affidavit of evidence that the Consumer Fora lacks the jurisdiction on subject matter to adjudicate the issue but the same are opposed by the complainant.
However, on plain look at the record, the OP1 and OP2 have not demonstrated as to which question of fact and law is complicated in nature, which needs thorough examination of parties or witnesses to be determined by the Civil Court. Both the sides have filed their documentary record. Initially, the surveyor report was not filed by the OP1 and OP2 with their reply, consequently the complainant had filed the application and then the OP1 and OP2 came up with their own application to file the surveyor report and other documents, the documents were taken on the record. There is sufficient material and the same is crystal clear, therefore, the issue can be determined by the present Consumer Commission/Forum by way of summary procedure. The OP1 & OP2 took objection at later stage as an after-thought that too in affidavit of evidence, which was not proper since evidence is always lead from pleading and there was no such objection in the reply of OP1 and OP2. Accordingly, it is held that this Commission has jurisdiction to decide the dispute.
7.3. After taking into account the stock of all material, the following conclusions are drawn:-
(i) There is no dispute that the vehicle was insured with the OP1 and OP2 and episode of damage to the vehicle happened during the validity of insurance policy when the vehicle was in a stationary condition.
(ii) The OP1 and OP2 are taking plea of theft incident, even the same plea was reiterated in the evidence. However, it is never a case of theft incident but burnt the vehicle partly.
(iii) The OP1 and OP2 took the plea that surveyor’s report was of 31.01.2015 which was submitted by him with OPs on 14.02.2015 that because of contract of bailment between the complainant as bailor and the service station/ OP3 as bailee, there is no liability of OP1 and OP.
Whereas as per additional document furnished the surveyor report is of 24.09.2014 and it was received by OPs under acknowledgement under its seal of 27.09.2014. The surveyor’s fee bill is of 31.01.2015 and it was separately received and acknowledged on 14.02.2015 in the office of OP1 and OP2. The OP1 and OP2 had wrongly narrated date of surveyor's report and its receipt in para 6 of the affidavit of evidence.
(iv) The OP1 and OP2 have also denied in their reply for its liability for burnt of vehicle. As per surveyor’s report, it has given detail of loss, which reads as “ As per stated in claim form that vehicle was parked on road near auto Restoration workshop, suddenly vehicle was burnt from engine compartment.” There is no other observation or finding by the surveyor that the incident or loss reported was of other reasons than informed by the complainant.
(v) The OP3 in its reply as well as letter to OP1 and OP2 explains that sudden smoke was noticed from the closed bonnet of car in the parking area and it was due to shock circuit and fire.
There is no other evidence on behalf of OP1 and OP2 that there was incident or negligence of OP3 in that happening under the bonnet or the vehicle was not parked on the parking bay outside the workshop premises.
(vi) The OP1 & OP2 have blamed OP3 for faults and gross negligence, thus it was duty of OP1 & OP2 to prove these facts. Neither OPs have proved it nor there is any evidence of external cause of fire, when smoke was noticed coming out from closed bonnet of vehicle.
(vii) The OP1 and OP2 took the plea of contract of bailment. The contract of bailment is governed by provisions of Section 148 to 171 of the Indian Contract Act, 1872, which inherent rights and obligations inter-se the bailor and the bailee.
However, OP1 and OP2 could not prove the moment there was sudden smoke noticed from the closed bonnet of vehicle, there was fault of OP3 or breach of any obligation by OP3, which may exonerate the Insurer/OPs from its obligations under the insurance policy.
(viii) In view of above sub-clauses (i) to (vii) it does not prove the plea of OP1 and OP2.
The OP1 & OP2 are also taking shelter of surveyor's report as if it has opined about contract of bailment, but there is nothing such opinion of contract of bailment in the surveyor's report dated 27.09.2014.
(viii) In the repudiation letter dated 05.01.2014 (i.e. 05.01.2015) the exclusive plea of OP1 and OP2 is that “in a bailment of mutual benefit, the bailee must take reasonable care of the bailed property and the letter also reiterates about the bailment, however, OP1 and OP2 could not establish that appropriate care of the vehicle was missing or existence of negligence. The surveyor report's is also clear the smoke/fire was coming from inside/engine under closed bonnet of the vehicle and it was not from external fire to blame OP3.
(ix) the complainant has proved that there was pro-forma invoice of Rs. 1,65,000/- for parts & repairs of the burned vehicle. The OPs also filed detailed report of surveyor of assessment of claim taking into account depreciation component etc. in terms of the conditions of the policy. The total assessment was of Rs.1,82,820/- out of which depreciation of Rs.57,310/- was reduced, the amount came to Rs.1,25,510/- and addition of Rs.4,625/- for paint material etc.. There were other additions of Rs.25,725/-less reduction clause of Rs.2,000/-. The net amount assessed by surveyor was of Rs.1,53,860/-. However, denial of such valid claim amounts of deficiency of services on the part of OP1 and OP2.
7.4 Therefore, in view of the above, it is held that circumstances and evidence proved the case of complainant of repairs of vehicle due to burnt incident of vehicle and complainant had suffered amount of Rs.1,53,860/- for repairs, and complainant is held entitled for such claim amount of Rs.1,53,860/- (which is within the IDV of sum assured amount limit), so it is allowed in favour of complainant and against OP.
7.5 The complainant has claimed compensation of Rs.1,00,000/- in lieu of sufferings, inconvenience, extreme stress, mental agony and hardship, while pursuing to OPs for settlement of claim of losses but it was rejected by OP1 & OP2. The complainant had also sent letter dated 03.04.2015 to them with a hope that his valid claim will be settled, otherwise complainant will be constraint to file appropriate legal action but he was disappointed for want of settlement of claim. Considering totality of the circumstances, the compensation of Rs.20,000/- is quantified in his favour and against the OP1 & OP2. The complainant was constraint to file the complaint to seek claim, he claimed cost of Rs.2,,000/- and the same is also allowed in his favour and against OP1 & OP2. But, no order against OP3.
7.6 The complainant is also seeking other appropriate reliefs. What it could be? Whether punitive damages or else? Whether it would be fit case to award punitive damages?.
What punitive damages means and what is its purpose? The punitive damages (or in other words exemplary damages) are assessed and awarded in order to pinch respondent for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. This damage is also imposed to reform defaulting party as well as to deter others from indulging in such wrongs. To say, a faulting party shall add to its experience to avoid its repeat. The punitive damages are generally given in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials.
It is appropriate to refer the evidence and other material on record. It is manifest on the face of record that there were deficiency of services on the part of OP1 & OP2. These OPs with-held the surveyor's report but on the application of complainant (in October 2015), the record was produced by OPs with their own application (of September 2017). The OPs pleaded that claim was rejected in view of surveyor's report about contract of bailment, but there is not a iota of reference of contract of bailment in that report. Moreover, in para 6 of affidavit (dated 8.4.2017) of evidence, OPs took plea that surveyor's report is 31.1.2015 and it was received by them on 14.2.2015 from surveyor. Whereas, the surveyor's report was received by OPs long back on 24.09.014 under its seal. Moreover, the repudiation letter is of 05.01.2015, does it mean letter was issued prior to receipt of surveyor's report (if it is to be believed that it was received by OPs on 24.2.2015, then it would nullify the stand of OPs)?. OPs have also introduced plea of theft loss in the defence. The plea of jurisdiction on subject matter was introduced in affidavit of evidence. These features and circumstances are speaking themselves that OP1 & OP2 were taking the plea to avoid the legal obligations to pay the amount and OPs have also gone to aforementioned extent. Thus, it is fit case to award punitive damages and the same are quantified as nominal amount of Rs.10,000/- in favour of complainant and against OP, keeping in view all circumstances and a caution for OP1 and OP2 to remain deter from further such attempts.
8.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1 and OP2 to pay Rs.1,53,860/- for reimburse of repair bills, compensation of Rs.20,000/-, punitive damages of Rs.10,000/-and costs of Rs.2,000/-. OP1 & OP2 are also directed to pay the amount within 45 days from the date of receipt of this order. In case amount is not paid within 45 days from the date of receipt of order, then rate of interest will be 6% pa on amount of Rs.1,53,860/-.
8.2. The complaint against OP3 is dismissed.
9. Announced on this 13th November, 2023 [कार्तिक 22, साका 1945]
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President
