Punjab

Fatehgarh Sahib

CC/107/2014

Ms Gian Steel rolling mills - Complainant(s)

Versus

The OIC LTD - Opp.Party(s)

Sh SR Sharma

29 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                                                              Consumer Complaint No.107 of 2014

                                                                                                                      Date of institution: 06.08.2014                                                                                                                                                  Date of decision  :   29.05.2015

M/s Gian Steel Rolling Mills, (P) Ltd. Mandi Gobindgarh, G.T.Road, Sirhind Side Mandi Gobindgarh through its Director Sh. Mohinder Gupta.

……..Complainant

Versus

 

1. The Oriental Insurance Co. Ltd. 5,6,7, E Block Calibre Market, Rajpura thorough its Senior Divisional Manager.
2. The Oriental Insurance Co. Ltd. Branch Mandi Gobindgarh, through its Branch Manager.

…..Opposite Parties

Complaint Under Sections 12 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                                                 Smt. Veena Chahal, Member                                                            Sh. Amar Bhushan Aggarwal, Member

         

Present :   Sh.S.R.Sharma Adv. Cl. for the complainant                                                     Sh. D.P.S.Anand, Adv. Cl. for the OPs.

 

ORDER

By Sh. Ajit Pal Singh Rajput, President.

                 Complainant, M/s Gian Steel Rolling Mills, (P) Ltd. Mandi Gobindgarh, G.T.Road, Sirhind Side Mandi Gobindgarh through its Director Sh. Mohinder Gupta, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.              The complainant is the owner of one I-20 car bearing registration No. PB-48D-4773 and got insured the same with OPs vide policy No.233603/31/2013/4275, which was valid from 12.08.2012 to 11.08.2013.  Unfortunately, on 10.07.2013 the car in question met with an accident at Chandigarh as a stray dog came suddenly in front of the car and while saving the dog, the said car struck with the round about chowk. The DDR No.20 was lodged in this regard on 11.07.2013 in the police station Sector-11, Chandigarh.  The information regarding the accident was also given to the OP No.2 verbally on 11.07.2013 and on the instructions of OP No.2 the car was sent for repair to M/s Sewakunj Motors  Pvt. Ltd. G.T.Road, Khanna.  The complainant also lodged the claim with the OPs and submitted the claim form along with all the relevant documents as demanded by the OPs  for carrying out the necessary investigations.  It is further stated that Sh. Arjun Gupta son of Sh. Mohinder Gupta Director of complainant company, had taken the car to Chandigarh where accident took place and while informing his father, he stated out of fear that he was driving the car at the time of accident and taking this version of Mr. Arjun Gupta as correct, the claim form was submitted by stating that the car was driven by Mr. Arjun Gupta at the time of accident and the driving license of  Mr. Arjun Gupta and Registration Certificate of the car were also submitted to the OPs. It is further submitted that during investigation this fact came to the knowledge that at the time of accident one Manpreet was on the wheel of the car and this fact was also mentioned in the DDR No.20 lodged on 1107.2013. Therefore, there is no question of concealing the said fact that Mr. Manpreet was driving the car as he is also holding a valid driving license. But the OPs have repudiated the claim on the ground of concealment that at the time of accident Mr. Manpreet was on the wheels instead of Mr. Arjun Gupta.  The OPs malafidely and intentionally repudiated the claim on flimsy grounds, whereas the fact remains that Mr. Manpreet is holding a valid driving license and, as such, there is no ground of repudiating the claim. The repudiation of the claim amounts to deficiency in service on the part of the OPs. Hence, this complaint for giving directions to the OPs to pay the claim amount of Rs. 3,11,807/-, which was spent by the complainant for repair of the car and to pay Rs.1,80,000/-, on account of mental torture and agony being caused due to repudiation of the claim.

3.              The complaint is contested by the opposite parties, who filed joint written reply. In reply to the complaint the opposite parties took preliminary objections that the complaint is not maintainable as the complainant does not fall under the definition of consumer and moreover  complicated question of law and facts are involved. On merits they admitted that the car bearing No. PB- 48D-4773 was insured with OPs for Rs. 4.30 lacs for the said period and the DDR No.20 dated 11.07.2013 was lodged with police Station, Sector-11, Chandigarh.  The OPs stated that the complainant has filed the claim of accident of insured car, which was damaged on 10.07.2013 in an accident and disclosed that at the time of accident Mr. Arjun Gupta was driving the car.  On receipt of the claim the OPs had deputed Sh. K.S.Chandok Investigator, Patiala to investigate the matter, who in his report dated 30.01.2014 found that one Manpreet Singh was driving the car at the time of accident instead of Arjun Gupta and he further found that the car met with accident after 2:25 hours dated 11.07.2013 instead of 11:30 PM dated 10.07.2013 as reported in the claim form, therefore, the complainant concealed the correct facts in order to cash the claim.  Sh. G.S.Riar approved Surveyor and Loss Assessor of the IRDA Mohali was appointed to assess the loss, who assessed the loss to the tune of Rs.1,90,712.43/-. The claim of the complainant has been repudiated on the ground that the insured has concealed the material facts of the accident and to try to get the claim by use of unfair means by misrepresenting the correct facts and by changing the driver of the car at the time of alleged accident. The claim has been rightly repudiated as per terms and conditions of the policy and under the provision of the Motor Vehicle Act. Hence, there is no deficiency in service on the part of the OPs. After denying the other averments made in the complaint, they prayed for dismissal of the complaint.

4.              In order to prove the case, the complainant tendered affidavit  of Mahinder Gupta as Ex.C-1, copy of resolution Ex. C-2, copy of DDR Ex. C-3, copy of  DL of Arjun Gupta Ex. C-4, copy of verification report of D.L. Ex. C-5,  copy of verification report of DL given by Kalra Associates Ex. C-6, copy of verification report of the vehicle given by DTO, Fatehgarh Sahib Ex. C-7, copy of verification report given by Kalra Associates Ex.C-8, copy of  estimate performa given by Sewakunj Motors Pvt. Ltd. Ex. C-9, copy of invoice Ex. C-10, copy of payment receipt Ex. C-11, copy of letter written by OPs Ex. C-12, copy of DL of Manpreet Ex. C-13, copy of claim form as Ex. C-14, copy of repudiation letter Ex. C-15, copy of legal notice Ex. C-16, copy of policy schedule Ex. C-17, copy of final survey report Ex. C-18 and closed the evidence. In rebuttal the opposite parties tendered affidavit of Sh. A.K. Sehgal Ex. OP-1, affidavit of K.S.Chandok Ex. OP-2, affidavit of Sh. G.S.Rayar Ex. OP-3, copy of DDR Ex. OP1/1, copy of investigation report with annexure Ex. OP1/2, copy of claim form Ex. OP1/3, copy of insurance policy Ex. OP1/4, copy of survey report Ex. OP1/5, copy of letter dated 03.02.2014 Ex. OP-4 and  closed the evidence.

5.              At the time of arguments the ld. counsel for the opposite parties has made a submission that before deciding the present complaint on merits, the preliminary objections raised by him be decided first. The ld. counsel has submitted that the present complaint is not maintainable in view of the judgment of the Hon’ble National Commission in the case of General Motors India Pvt.Ltd Vs G.S.Fertilizers (P) Ltd, F.A No.723 of 2006 & F.A.No.736 of 2006,decided on 07/02/2013. Wherein it has been observed by Hon’ble National Commission in Para no.6;

“Since the vehicle had been purchased by a private limited company i.e Respondent-Complainant for use of its Managing Director, it was obvious for a ‘commercial purpose’ and not for the purpose of earning livelihood by self-employment. Respondent-Complainant, therefore, did not fall within the purview of the definition of ‘consumer’ under Section 2(1)(d)(ii) of the Consumer Protection Act,1986 and complaint was not maintainable.”

In Para no.9, Hon’ble National Commission has observed;

“We agree with Appellants contention that this clearly amounts to its purchase for a ‘commercial purpose’ since the Managing Director of a private limited Company would obviously not use this vehicle for self-employment to earn his livelihood but for purpose as a perk of his office.”

7.                On the other hand, the ld. counsel for the complainant has objected to the same and has submitted that the present complaint is maintainable in view of the case law in a case titled as Ashish Vishwakarma Vs. National Insurance Co. Ltd. & Ors in 2012(3)CLT page 453(NC) and in a case titled as M/s Shital International Vs. United India Insurance Company Ltd. In 2012(I) CLT page 326(Punjab). The ld. counsel has argued that the present complaint deserves to be adjudicated upon on merits only as the OPs have committed deficiency of service and the complainant is a consumer as per Section 2(i)(d)(ii) of the Act.

8.                We have carefully gone through the submissions made and the case law cited by the ld. counsel for the parties on the point of maintainability of the present complaint. We are of the opinion that the judgment cited by the ld. counsel for the OPs is the latest one having similar facts and the ones cited by the ld. counsel for the complainant is not applicable to the facts of the case.

9.                Since the present complaint is not maintainable before this Forum, in view of the judgment of Hon’ble National Commission in the case of General Motors India Pvt.Ltd Vs G.S.Fertilizers (P) Ltd, F.A No.723 of 2006 & F.A.No.736 of 2006, decided on 07/02/2013, in our view there is no need to go into the merits of the present case.

10.               Accordingly, the present complaint is disposed of with liberty to the complainant to approach the appropriate court of law as the present complaint is not maintainable before this Forum and the complainant is held entitled to the benefit of the observations of the Supreme Court in case  Laxmi Engineering Works Vs. P.S.G. Industrial Institute II (1995) CPJ 1 (SC) : 1995 3 SCC 583, the time spent for pursuing the complaint before this Forum be excluded for the purpose of limitation. All the original and necessary documents placed on record before this Forum be also returned to the complainant.

11.               Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

    Pronounced

    Dated:29.05.2015

                                                                 (A.P.S.Rajput)                                                                                            President

 

                                                              (Veena Chahal)                                                                                              Member

 

                                                   (A. B. Aggarwal)                                                                                               Member