COMPLAINT FILED ON : 19/02/2015

     DISPOSED ON: 15/09/2015

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA

PRESENT :-     SRI. T.N. SREENIVASAIAH      PRESIDENT                                      B.A., LL.B.,

                        SRI.H.RAMASWAMY,               MEMBER

                                         B.Com., LL.B.,(Spl.)

SMT.G.E.SOWBHAGYALAKSHMI,       

                                         B.A., LL.B.,                   MEMBER

SRI. T.N. SREENIVASAIAH. PRESIDENT.

ORDER

The complainant has filed a complaint U/s 12 of C.P. Act 1986 against the OP for a direction to pay Rs.3,80,632/- towards parking charges, watch and ward charges with interest and other reliefs as the Hon'ble Forum deems fit to grant.

2.     The brief facts of the case of the complainant is that, he was running a lorry bearing No.KA-11 7860, which was mounted with Rig Unit and the same was insured with the OP for the period from 08.10.2003 to 07.10.2014.  The said lorry met with fire accident on 06.10.2004 at about 10-20 PM and became scrap at Iddalanagenahalli in Hiriyur Taluk.  After the survey conducted by the surveyors of the OP company the vehicle was shifted to Mandimutt Oil Industries at Challakere.  The complainant filed a complaint No.92/2005 before this Forum against the OP claiming IDV on total loss and after recording the evidence and after hearing the arguments, this Forum passed an order on 31.01.2006 awarding Rs.15.00 lakhs with interest at 9% p.a from 06.05.2005 on the said amount, Rs.5,000/- towards mental agony and cost of  Rs.1,000/- and the complainant to hand over the burnt rig unit i.e., salvage damaged vehicle to the OP.  In order to obey the above order, complainant got issued notice to OP by registered post with acknowledgement due on 06.02.2006 informing that, he will shift the vehicle from Challakere to the premises of OP in between 13.02.2006 to 19.02.2006.  Since there was no response from the OP to the said notice, complainant shifted the said lorry to the premises of the OP on 16.02.2006 at about 10-30 AM and requested to receive the same but, OP refused to receive the same on the pretext that, there was no accommodation for parking the salvage damaged vehicle and assured that, they will pay parking, watch and ward charges till date if, the complainant was to make arrangement for parking the same.  As there was no other way, complainant took back the vehicle from Davanagere to the premises of the Mandimutt Oil Industries, Challakere by paying shifting charges of Rs.25,000/-.  The OP took possession of the vehicle only on 11.08.2014.  The vehicle was parked with the premises of Mandimutt Oil Industries, Challakere for the period from 26.10.2004 to 10.08.2014.  The complainant has paid Rs.1,76,000/- towards parking charges and Rs.1,76,000/- towards watch and ward charges for the above said period.  The above said amount ought to have paid by the OP but, the same has been paid by the complainant.  It is further submitted that, after passing the order by this Forum, OP preferred an Appeal No.653/2006 before the Hon'ble State Commission and the same was dismissed on 27.09.2006.  Again the OP preferred Revision Petition No.442/2007 before the Hon'ble National Commission and the same was also dismissed.  After dismissal of the appeal and the Revision Petition, the complainant got issued legal notice on 09.12.2014 through registered post calling upon to pay Rs.3,52,000/- together with interest at 18% p.a from 16.08.2014.  But, the OP neither paid the said sum nor gave any response.   Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

        3. On service of notice, OP has appeared through Sri. B.M. Ravichandra, Advocate and filed written version stating that, the complainant has not approached this Forum with clean hands.  It is submitted that the OP has issued vehicle policy to the Bore well lorry bearing Reg. No.KA-11 7860 for the period from 07.10.2003 to 07.10.2004 which covers own damage for an amount of Rs.15,00,000/- in the name of complainant and the same was met with an accident on 06.10.2004 and damaged.  Complainant approached the OP for payment of the claim but, the OP repudiated the same.  After repudiating the claim, complainant filed a complaint No.92/2005 before this Forum and after hearing the parties, this Forum allowed the said complaint awarding Rs.15,00,000/- with  interest at 9% p.a and to give the vehicle to the OP insurance company.  After passing the order, OP preferred an appeal No.653/2006 before the Hon''ble State Commission and the said appeal was dismissed on 27.09.2006.  After dismissal of the appeal by the Hon'ble State Commission, OP preferred Revision Petition No.442/2007 before the Hon'ble National Commission and the same was also dismissed on 04.03.2014.  It is further submitted that, this Forum or Hon'ble State Commission or the Hon'ble National Commission never ordered to bear the parking, watch and ward charges to the complainant and the OP is not liable to pay such charges as per the policy terms and conditions.  It is denied that, the OP assured that they will pay parking, watch and ward charges.  OP has got liberty to challenge the order passed by the District Forum and also by the Hon'ble State Commission before the Hon'ble National Commission and if the salvage damaged vehicle has been received from the complainant, it means it would be shown that the OP insurance company admitted the order of the District Forum.  For that, until and unless the OP gets final order from the Higher Authority, it cannot take the salvage of the damaged vehicle.  It is further submitted that, the OP is not liable to pay any sum to the complainant as there is no provision in MV Act or in policy terms and conditions to bear the parking, watch and ward charges.  In view of the above stated facts, OP has rightly repudiated the claim and etc., and prayed for dismissal of the complaint.

4. Complainant himself examined as PW-1 by filing affidavit evidence and one B. Sathish Mandimutt, partner of Mandimutt Corporation as PW-2 by filing affidavit evidence and  Ex.A-1 to Ex.A-12 documents are marked. 

        5. OP has examined one Sri. D. Parthasarathy, Divisional Manager (Legal), as DW-1 by filing affidavit evidence and no documents have been marked and also filed Written Arguments.

        6.     Arguments heard.

7. Now the Points that arise for our consideration for the decision of the complaint are that:

1. Whether the complainant has proved deficiency of Service of OPs ? if yes, whether the complainant is

entitled for the reliefas sought for ?

2. What order ?

        8. Our findings on the above points are as follows:

        Point No.1:- Partly Affirmative.

        Point No.2:- As per the final order.

                                        ::REASONS::

10. Point No. 1:- It is not in dispute that, complainant was running a lorry bearing No.KA-11 7860, which was mounted with Rig Unit and the same was insured with the OP for the period from 08.10.2003 to 07.10.2014.  The said lorry met with fire accident on 06.10.2004 at about 10-20 PM and became scrap at Iddalanagenahalli in Hiriyur Taluk.  After conducting the survey by the surveyor of the OP company, the vehicle was shifted to Mandimutt Oil Industries at Challakere.  The complainant filed a complaint No.92/2005 before this Forum against the OP claiming IDV on total loss and after recording the evidence and after hearing the arguments passed an order on 31.01.2006 awarding Rs.15.00 lakhs with interest at 9% p.a from 06.05.2005 in the said amount, Rs.5,000/- towards mental agony with cost of  Rs.1,000/- and the complainant to hand over the burnt rig unit i.e., salvage damaged vehicle to the OP.  In order to obey the above order, complainant got issued notice to OP by registered post with acknowledgement due on 06.02.2006 informing that, he will shift the vehicle from Challakere to the premises of OP in between 13.02.2006 to 19.02.2006.  Since there was no response from the OP to the said notice, complainant shifted the said lorry to the premises of the OP on 16.02.2006 at about 10-30 AM and requested to receive the same but, OP refused to receive the same on the pretext that, there was no accommodation for parking the salvage vehicle and assured that, they will pay parking, watch and ward charges till date if, the complainant was to make arrangement for parking the same.  As there was no other way, complainant took back the vehicle from Davanagere to the premises of the Mandimutt Oil Industries, Challakere by paying shifting charges of Rs.25,000/-.  The OP took possession of the salvage vehicle only on 11.08.2014 and the vehicle was parked with the premises of Mandimutt Oil Industries, Challakere for the period from 26.10.2004 to 10.08.2014.  The complainant has paid Rs.1,76,000/- towards parking charges and Rs.1,76,000/- towards watch and ward charges for the above said period.  The above said amount ought to have paid by the OP but, the same has been paid by the complainant.  It is further submitted that, the OP preferred an Appeal No.653/2006 before the Hon'ble State Commission and the same was dismissed on 27.09.2006.  Again the OP preferred Revision Petition No.442/2007 before the Hon'ble National Commission and the same was also dismissed.  After dismissal of the appeal and the Revision Petition the complainant got issued legal notice on 09.12.2014 through registered post calling upon to pay Rs.3,53,000/- together with interest at 18% p.a from 16.08.2014.  But, the OP neither paid the said sum nor gave any response.   Hence, there is a deficiency of service on the part of OP so, he sustained financial loss and mental agony and etc., and prayed for allow the complaint.

  11.        So, as on the date of accident, insurance policy was in force.  It is the main contentions of the complainant that, on 06.10.2004 at about 10-20 PM the said vehicle met with fire accident and became scrap.  After the said incident, the complainant filed a complaint before the District Forum and the District Forum allowed the same.  OP preferred an appeal before the Hon'ble State Commission and the said appeal was dismissed.  Again preferred Revision Petition before the Hon'ble National Commission and the same also dismissed confirming the order passed by this Forum.  In order to comply with the above order of this Forum, complainant got issued notice to OP by registered post with acknowledgement due on 06.02.2006 informing that, he will shift the vehicle from Challakere to the premises of OP in between 13.02.2006 to 19.02.2006.  But, there was no response from the OP to the said notice.   Complainant shifted the said lorry to the premises of the OP on 16.02.2006 at about 10-30 AM and requested to receive the same but, OP refused to receive the same on the pretext that, there was no accommodation for parking the salvage vehicle and assured that, they will pay parking, watch and ward charges till date if, the complainant was to make arrangement for parking the same.  As there was no other way, complainant took back the vehicle from Davanagere to the premises of the Mandimutt Oil Industries, Challakere by paying shifting charges of Rs.25,000/-.  So, there was a deficiency of service on the part of OP and thereby he sustained financial loss and mental agony so, this complaint has been filed. 

       12.  In support of his contentions,  complainant has relied on his affidavit evidence in which he has reiterated the contents of complaint.  Complainant has also riled on documents like copy of judgment passed by this Forum in Complaint No.92/2005,  the same was marked as Ex.A-1, Copy of Notice dated 06.02.2006 marked as Ex.A-2, Postal acknowledgement and postal receipts are marked as Ex. A-3, Certified copy of the affidavit of complainant dated 11.08.2014 is marked as Ex.A-4, Memo of OP dated 11.08.2014 marked as Ex.A-5, Certified copy of order sheet in complaint No.92/2005 is marked as Ex.A-6, Copy of legal notice dated 09.12.2014 is marked as Ex.A-7, RPAD Receipt is marked as Ex.A-8, Letter by the Postal Department to the Advocate for the complainant with regard to the delivery of registered letters marked as Ex.A-9, Ledger Accounts issued by the Mandimutt Corporation is marked as Ex.A-10 and Ex.A-11, Acknowledgement for receipt of money by M/s Mandimutt Corporation as Ex.A-12.

13.  On the other hand, it is admitted by the OP that, complainant is the owner of said vehicle and it was duly insured with the OP and policy was in force as on the date of accident.  After passing the order from this Forum in Complaint No.92/2005, OP preferred an appeal No.653/2006 before the Hon''ble State Commission and the said appeal was dismissed on 27.09.2006.  After dismissal of the appeal by the Hon'ble State Commission, OP preferred Revision Petition No.442/2007 before the Hon'ble National Commission and the same was also dismissed on 04.03.2014.  It is further submitted that, this Forum or Hon'ble State Commission or the Hon'ble National Commission never ordered to bear the parking, watch and ward charges to the complainant and the OP is not liable to pay such charges as per the policy terms and conditions.  It is denied that, the OP assured that they will pay parking, watch and ward charges.  OP has got liberty to challenge the order passed by the District Forum and also by the Hon'ble State Commission before the Hon'ble National Commission and if the salvage damaged vehicle has been received from the complainant, it means it would be shown that the OP insurance company admitted the order of the District Forum.  For that, until the unless the OP gets final order from the Higher Authority, it cannot take the salvage of the damaged vehicle.  It is further submitted that, the OP is not liable to pay any sum to the complainant as there is no provision in MV Act or in policy terms and conditions to bear the parking, watch and ward charges and so, OP has rightly repudiated the claim and complaint itself is not maintainable etc., and prayed for dismissal of the complaint.

       14.  On the basis of the above said affidavit and documentary evidences, Advocate for the complainant has argued that, admittedly complainant is the owner of the said vehicle which was duly insured with the OP and in order to comply with the order passed by this Forum, complainant got issued notice to OP by registered post with acknowledgement due on 06.02.2006 informing that, he will shift the vehicle from Challakere to the premises of OP in between 13.02.2006 to 19.02.2006.  As there was no response from the OP to the said notice, complainant shifted the said lorry to the premises of the OP on 16.02.2006 at about 10-30 AM and requested to receive the same but, OP refused to receive the same on the pretext that, there was no accommodation for parking the salvage vehicle and assured that, they will pay parking, watch and ward charges till date if, the complainant was to make arrangement for parking the same.  As there was no other way, complainant took back the vehicle from Davanagere to the premises of the Mandimutt Oil Industries, Challakere by paying shifting charges of Rs.25,000/-.  The OP took possession of the salvage vehicle only on 11.08.2014 and the vehicle was parked with the premises of Mandimutt Oil Industries, Challakere for the period from 26.10.2004 to 10.08.2014.  The complainant has paid Rs.1,76,000/- towards parking charges and Rs.1,76,000/- towards watch and ward charges for the above said period.  The above said amount ought to have paid by the OP but, the same has been paid by the complainant and refused to receive the vehicle for parking thereby OP has committed deficiency of service and complainant is entitled for the relief etc., and prayed for allow the complaint.

15.  On the other hand, Advocate for the OP has resisted the said contentions stating that, OP has got liberty to challenge the order passed by the District Forum and also by the Hon'ble State Commission before the Hon'ble National Commission and if the salvage damaged vehicle has been received from the complainant, it means it would be shown that the OP insurance company admitted the order of the District Forum.  For that, until the unless the OP gets final order from the Higher Authority, it cannot take the salvage of the damaged vehicle.  It is further submitted that, the OP is not liable to pay any sum to the complainant as there is no provision in MV Act or in policy terms and conditions to bear the parking, watch and ward charges and prayed for dismissal of the complaint.    

  16.       On hearing the rival contentions of both the sides and on perusal of the documents produced by the parties, it seems that, after passing the order by this Forum, OP has got every right to prefer an appeal before the Honble State Commission and Hon'ble National Commission, unless and until, the final order obtain from the higher authorities, the OP is not liable to receive the salvage damaged vehicle to keep the same in its custody.  After passing the order by this Forum, the OP has preferred an appeal before the Hon'ble State Commission, the same was disposed on 27.09.2006.  Against that order, the OP preferred Revision Petition before the Hon'ble National Commission and the Revision Petition filed before the Hon'ble National Commission was disposed on 28.03.2014 confirming the order passed by this Forum.  When there is an appeal and the revision pending before the Hon'ble State Commission and the Hon'ble National Commission, complainant is not entitled to claim parking, watching and warding charges from the OP and he is entitled to receive the same after disposal of the Revision Petition by the Hon'ble National Commission, the complainant is entitled to receive parking, watching and ward charges.  In fact in this complaint, the complainant has claimed parking charges from 26.10.2004, which is not entitled by the complainant.  OP has taken the vehicle to its custody only on 18.11.2014.  After passing of the order in the Revision Petition by the Hon'ble National Commission, the complainant is entitled to receive the parking, watching and warding charges.    Considering the facts and circumstances of the case and on perusal of the documents, it is just and proper to allow the complaint in part filed by the complainant.  Accordingly, this Point No.1 is partly held as affirmative to the complainant.

17.  Point No.2:- For the foregoing reasons, we pass the following:

ORDER

        The complaint filed by the complainant u/Sec. 12 of the C.P. Act, 1986 is partly allowed.  The OP is directed to pay Rs.25,000/- to the complainant along with interest at the rate of 9% p.a from the date of complaint till realization. 

Further the complainant is also entitled for Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of the proceedings. 

Further, the OP is directed to pay the above amount to the complainant within 60 days from the date of this order. 

        (This order is made with the consent of Members after the correction of the draft on 15/09/2015 and it is pronounced in the open Court after our signatures.)         

MEMBER                   MEMBER                      PRESIDENT

-:ANNEXURES:-

Complainant by filing affidavit evidence taken as PW-1.

Witness examined on behalf of complainant:

B. Sathish Mandimutt, Partner of Mandimutt Corporation by filing affidavit evidence taken as PW-2.

On behalf of OP Sri. D. Parthasarathy, Divisional Manager of OP by filing affidavit evidence taken as DW-1:

Witnesses examined on behalf of OP:

-Nil-

Documents marked on behalf of complainant:

Documents marked on behalf of Opponent:

-Nil-

MEMBER                   MEMBER                      PRESIDENT

Rhr.