STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Complaint Case No.37 of 2008)

                                                                   Date of Institution: 23.12.2008

                                                                   Date of Decision  : 18.11.2010

M/s Maharishi Markanda Screening Plant, Village Manakpur, Tehsil Naraingarh, Distt. Ambala through its Partner Sh. Kulwant Singh son of Sh. Dharam Singh resident of Vill. Dhandharu, P.O. Khatauli, Tehsil & Distt. Panchkula.

……Complainant

V e r s u s

1.      The Iffco Tokio General Insurance Co. Ltd., Plot No.2, B&C, 4^th Floor, Sector 28A, Madhya Marg, Chandigarh through its Branch Manager.

2.      M/s Krishna Automobiles, (Authorised Dealer of JCB India Ltd.), 125, Industrial Area, Phase-1, Chandigarh 160002. through its Prop./Manager.

3.      JCB India Limited, Plant No.23/7, Mathura Road, Ballabgarh – 121004 through its Managing Director.

              ....Opposite Parties.

BEFORE:            MRS. NEENA SANDHU, MEMBER

                        S. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. Neeraj Sharma, Advocate for the complainant.

                        Sh. P. M. Goyal, Advocate for OP No.1.

                        Sh. K. C. Sood, Agent on behalf of OP No.2.

                        Sh. Gautam Bhardwaj, Advocate proxy for

                        Sh. Anand Kumar, Advocate for OP No.3.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     The complainant, which is a firm had got its J.C.B Machine insured from OP No.1 through OP No.2 vide Cover Note/Policy valid from 28-7-2006 to 27-7-2007(Annexures C-8 and    C-8/A) on the assurance that OP No.2 is having tie-up with OP No.1 and the facility of cashless would be provided to the complainant and that in case of any damage to the machine, the payment will be made to OP No.2 by OP No.1 directly as per assessment of damages. As per the complainant on 10-6-2007, when Sh. Gurmail Singh, Driver was coming back to Naraingarh by driving the said J.C.B. machine after completing the work at Link Road within the area of Shila, Distt. Sirmaur(H.P.) a cow suddenly came in front of the vehicle and in order to save the cow, the J.C.B. machine over turned and fell in a ditch. Due intimation of the accident was given to OP No.1. It is averred that a spot inspection/survey was conducted by Sh. Dinesh Kumar Gupta, Surveyor of the Insurance Company. According to the complainant an amount of Rs.17,000/- was spent in taking out the machine from the ditch. It is further averred that on account of the loss to the vehicle the complainant also could not make payment of any installment of loan, for which it has to pay extra amount for the default in regular payments. As per the complainant on account of non-repair of the vehicle on cashless basis by OP No.2 and further non-clearance of payment by OP No.1 it has been deprived of the use of the machine and could not earn any amount since the day of damages to the machine. Thus the complainant has alleged deficiency in service on the part of OPs. A DDR was also got registered by the complainant copy of which is Annexure C-15. It is alleged that despite numeral visits to the offices of OP No.1 and 2 for getting the claim nothing was done. Ultimately the complainant served the legal notice dated 25-12-2007 upon the OPs which was duly replied by OP No.1 vide letter dated 3-1-2008 intimating that the claim of the complainant has been rejected. Alleging deficiency in service on the part of OPs the complainant filed the present complaint seeking direction to the OPs to refund the amount paid by it alongwith interest @18% per annum, Rs.12 Lacs towards repair as cost of J.C.B. machine, Rs.11,000/- as litigation cost , Rs.7 Lacs plus interest for loss of income since the date of accident, Rs.50,000/- per day again for loss of income due to non-use of the machine, Rs.4 Lacs as compensation for mental harassment and agony. The complainant has also claimed the relief on account of non-payment of the installments of loan taken by the bank.

2.                       OP No.1 in its reply has taken a preliminary objection that the complaint is barred by pecuniary jurisdiction as the dispute pertains to Rs.12 Lacs, which the complainant has swelled over to Rs.20 Lacs. On merits, it is admitted that the vehicle was insured for the period 28.7.2006 to 27.7.2007 but the same was subject to the terms and conditions of the insurance policy. It is stated that an amount of Rs.23,219/- was charged as premium as per the schedule (Annexure R-1/1). As per OP No.1, the vehicle in question was being used for digging soil at the spot of the accident and the same fell from the hill when it was on work and as such, the accident was a result of over turning arising out the operation of the J.C.B. machine. As per IMT 47, it is stated that insurance company has no liability if the loss or damage is as a result of overturning out of the operation of the tool. It is next pleaded that Sh. Dinesh Kumar, surveyor in his report dated 28.7.2007 (Annexure R-1/2) assessed the total loss to the tune of Rs.9,06,037.73Ps keeping in view the terms and conditions of the insurance policy. As per this OP, from the report of subsequent investigator in the name and style of Royal Associates dated 28.9.2007 (Annexure R-1/3), it came to light that the vehicle was being driven by Ravinder Singh and not by Gurmail, as alleged by the complainant and this Ravinder Singh was not in possession of a valid and effective driving licence at the time of accident. Pleading no deficiency in service on its part and the repudiation of claim based on the reports of the two surveyors, this OP has prayed for dismissal of the complaint with costs.

3.                     OP No.2 in its separate reply has stated that it has no tie up with OP No.1 for cashless facility and the decision in such cases is initially taken by the insurance company and then conveyed in writing to the repair agency. It is stated that neither OP No.1 ever intimated OP No.2 to start the repairs on cashless basis nor the complainant passed on the instructions to carry out the repairs. It is next stated that no commitment of charging Rs.2,000/- less on account of insurance premium was made by OP No.2. As per this OP, it would have taken action for repairs only after “GO AHEAD” signal was given either by OP No.1 for cashless or by the complainant itself. The averment of receiving any legal notice has been denied by OP No.2. As regards the delay in dealing with the matter, it is stated that the assessment of the damage was handed over to the complainant on 13.7.2007 i.e. within almost three days of the receipt of machine in the workshop. Denying rest of the allegations and pleading no deficiency in service on its part, OP No.2 also prayed for dismissal of the complaint with costs.

4.                     In its reply, OP No.3 has submitted that it is manufacturing J.C.B machines and providing sale and after sale service to the products manufactured by it. It is admitted that the complainant purchased the vehicle in question from OP No.3 and it has been providing service to the complainant as per service schedule. As per this OP also, since no instructions were received from any end by the repairer i.e. OP No.2, the repairs could not be undertaken. Denying all the allegations made against it in the complaint and pleading no deficiency in service on its part, this OP has also prayed for dismissal of the complaint with costs.

5.                     Both the parties adduced evidence in support of their contentions.

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

7.                     The contention of the OP No.1 is that in fact the JCB machine was driven by Ravinder Singh and not by Gurmail Singh. Their contention further is that Ravinder Singh was not holding a valid driving licence and therefore, the complainant was not entitled to any compensation. We do not find any merit in this argument. In fact earlier, there had been proceedings under Section 163A of the Motor Vehicles Act, 1988 before the learned M.A.C.T, Panchkula. A claim petition was filed by Ravinder Singh in which Gurmail Singh, the present complainant and the OP No.1 were parties. The OP No.1 filed the written statement but no such ground was taken therein if the JCB machine was being driven by Ravinder Singh. Ravinder Singh appeared in that case as a witness and submitted his affidavit, copy of which is Annexure C-24, in which he has mentioned that the JCB machine was being driven by Gurmail Singh. He was cross examined on behalf of OP No.1 but no such suggestion was given if the JCB machine was being driven by him and not by Gurmail Singh. Gurmail Singh, complainant also appeared as a witness in that claim petition and Annexure C-25 is the copy of the affidavit submitted by him in which also, he owned that he was the driver of JCB machine and the accident took place when he was driving the same. His cross examination also shows that no such suggestion was given to him if he was not driving the JCB machine and if it was being driven by Ravinder Singh. An independent witness namely Kulwant Singh also appeared before the Tribunal, in which also, he supported the same story and no cross examination was conducted to prove that the machine was being driven by Ravinder Singh. The learned M.A.C.T allowed the complaint vide Annexure C-27 holding Issue No.2 having been proved by the claimants that the JCB machine met with an accident when it was being driven by Gurmail Singh. It, therefore, cannot be said if Ravinder Singh was driving the machine and not Gurmail Singh.

8.                     The OPs have not produced any evidence to prove that the JCB machine was being driven by Ravinder Singh. This ground was taken by the OP No.1 in view of the investigation alleged to have been conducted by Royal Associates, the surveyors and investigators. They claimed to have recorded the statements of Gurmail Singh, Rattan Singh and Ranjana Devi but none of those persons were produced in the witness box to prove if any such statements were made by them before the investigator. The statements recorded by the investigator are, therefore, not admissible in evidence and on its basis, no such conclusion, as drawn by the investigator, can be reached at. On the other hand, the complainant has produced the affidavit of Kulwant Singh and the copy of the affidavit (Annexure C-28) of Gurmail Singh who belie the contention of the OP. We are, therefore, of the opinion that it was Gurmail Singh and not Ravinder Singh who was driving the JCB machine at the time of accident. Needless to mention that Gurmail Singh carries a valid driving licence (Annexure C-14) to drive this vehicle.

9.                     The learned counsel for the OP No.1 defended the repudiation on the ground that the JCB machine was in operation at the time when the accident took place and in view of IMT-47, they are not liable to pay compensation if the accident occurs at the time when the excavation work is being done with the machine. The learned counsel for the complainant has assailed this contention on several grounds. According to him, Annexure C-8 is the Insurance Cover Note in which it is mentioned at Column No.6 that limitation to use are mentioned overleaf. When we see the column related to ‘Limitation to use’, we do not find any such condition that the policy is governed by IMT Endst No.47. However, Annexure C-8/A shows that it was subject to IMT Endst. Nos.16 and 28. There is no mention of IMT Endst. No.47 on the policy and therefore, this limitation cannot be introduced subsequently by the OP to avoid their liability to pay the claim.

10.                   The next argument of learned counsel for the complainant is that though the complainant was never told about the limitation mentioned above, yet it is proved that the JCB machine was not in operation at the time when the accident took place. In support of his contention, the learned counsel referred to Para No.9 of the complaint in which it is mentioned that Gurmail Singh, driver was coming back to Naraingarh by driving the said JCB machine after completing work at Link Road, within the area of Shila Bagh, Distt. Sirmaur and it had hardly covered a distance of about 1 K.M on the metalled road when a cow suddenly appeared on the road in front of the machine, that the driver diverted his vehicle to avoid the accident but it overturned and fell in a ditch due to which it was badly damaged. Sh. Kulwant Singh has filed his affidavit support this version. The copies of affidavits (Annexures C-24, C-25 and C-26) of Ravinder Singh, Gurmail Singh and Kulwant Singh respectively submitted before the learned M.A.C.T, Panchkula, as referred to above, also supported this case. There is then the judgment (Annexure C-27) of the learned M.A.C.T in which also, this contention was accepted. Sh. Dinesh Kumar, Surveyor/Loss Assessor appointed by the OP No.1 examined the damaged vehicle at the spot. The place of accident is mentioned in Clause 6(b) of the report dated 28.7.2007 as “Shilabagh (Rajgarh Sinj Road)”. It is, however, not understood as to how Royal Associates in their report dated 29.9.2007 concluded that the machine was working/digging soil and fell from the hill or that it was not being driven back as stated by the Insurer. The OPs did not produce any evidence before this Fora to support this contention. In view of these facts also, IMT-47 even if it was provided in the policy, would not be applicable in the present case.

11.                   Sh. Dinesh Kuamr, Surveyor submitted his report (Annexure R-1/2) to the effect that after making deductions, the complainant was entitled to a compensation of Rs.9,06,038/-. The complainant has demanded Rs.12 Lacs but we are of the opinion that he is liable to pay for the deprecation and the report submitted by the surveyor should be accepted.

12.                   Since there is no deficiency in service on the part of OPs No.2 and 3, s they have been joined unnecessarily, the complaint against them is dismissed.

13.                   In view of the above discussion, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OP No.1 is, therefore, directed to pay to the complainant a sum of Rs.9,06,038/- along with interest @9% per annum since 29.8.2007 (i.e. one month after the report Annexure R-1/2 of the surveyor) till the amount is actually paid to the complainant. The OP No.1 shall also pay Rs.10,000/- as costs of litigation. If the compensation amount is not paid within 30 days from the date of receipt of copy of the order, OP No.1 would be liable to pay the same along with penal interest @18% per annum w.e.f. the filing of the complaint i.e. 6.10.2009 till the amount is actually paid.

13.                   Copies of this order be sent to the parties free of charge.

Pronounced.

18^th November 2010.

Sd/-

 [NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Complaint Case No.37 of 2008)

Argued by:          Sh. Neeraj Sharma, Advocate for the complainant.

                        Sh. P. M. Goyal, Advocate for OP No.1.

                        Sh. K. C. Sood, Agent on behalf of OP No.2.

                        Sh. Gautam Bhardwaj, Advocate proxy for

                        Sh. Anand Kumar, Advocate for OP No.3.

Dated the 18^th day of November, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this complaint has been allowed.

(JAGROOP SINGH MAHAL)                                      (NEENA SAHDHU)

                MEMBER                                                                MEMBER

STATE COMMISSION

 (Complaint Case No.37 of 2008)

PRESENT:          Sh. Neeraj Sharma, Advocate for the complainant.

                        Sh. P. M. Goyal, Advocate for OP No.1.

                        Sh. K. C. Sood, Agent on behalf of OP No.2.

                        Sh. Gautam Bhardwaj, Advocate proxy for

                        Sh. Anand Kumar, Advocate for OP No.3.

Dated the 15^th day of November, 2010.

ORDER

                        The complainant has moved the present application bearing M.A. No.141 of 2009 for placing on record additional evidence in the form of documents (Annexures C-18 to C-28) as mentioned in Para No.6 of the application. An affidavit of Sh. Kulwant Singh has also been filed by the complainant in support of the application.

                        We have heard the learned counsel for the parties.

                        We find that the documents sought to be placed on record would be material for the just decision of the case. We, therefore, allow the application. The documents marked Annexures C-18 to C-28) are taken on record.

                        The learned counsel for the OPs were given opportunity to rebut the evidence now produced by the complainant. Their contention is that since these documents are the copies of the record and evidence alleged to have been produced before the learned M.A.C.T., Panchkula, they do not want to lead any other evidence in rebuttal.

                    Arguments heard. The case is reserved for orders.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER