STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.255 of 2010)

                                                                   Date of Institution: 21.07.2010

                                                                   Date of Decision  : 14.01.2011

Bhagat Ford, A. B. Motors Pvt. Ltd., 19, Industrial Area, Mohali through its authorized representative.

……Appellant.

V e r s u s

1.     Sh. Vinod Kumar Sehdev son of Late Sh. Goverdhan Lal resident of House No.5109/2, Modern Housing Complex, Mani Majra, Chandigarh.

2.     The National Insurance Co. Ltd., SCO No.57, Sector 26, Chandigarh through its Manager.

3.     Mr. Sohal, Surveyor of the National Insurance Co., C/o SCO No.57, Sector 26, Chandigarh.

              ....Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:    Sh. H. S. Bedi, Advocate for the appellant.

                    Sh. K. S. Arya, Advocate for respondent No.1.

                    Sh. Sandeep Suri, Advocate for respondents No.2 and 3.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                 This appeal under Section 15 of Consumer Protection Act, 1986 (hereinafter referred to as the Act) has been filed by OP No.2 against the order dated 31.5.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) allowing the complaint filed by the complainant/respondent and directing the appellant to handover the repaired car back to the complainant without charging any parking charges and also to refund the excess amount to the Insurance Company after adjusting their bill of Rs.1,20,259/- and to pay compensation of Rs.20,000/- to the complainant. The order was to be complied with within 15 days from the date of receipt of certified copy of the order failing which the appellant was to pay interest to the Insurance Company @12% per annum. It was also ordered that if the car was not handed back to the complainant within 15 days, as ordered, the appellant would pay Rs.1,000/- per day to the complainant for each day of delay.

2.                 According to the complainant/respondent, he owned a car bearing Regd. No.CH-03Y-7372, which was insured with the Insurance Company (OP No.1). It met with an accident on 11.5.2008 and was totally damaged regarding which a DDR was lodged by him at Panipat. The intimation about the accident was given to the Insurance Company (OP No.1), they deputed a surveyor but he demanded Rs.25,000/- to recommend that the car was a total loss. The complainant paid him Rs.10,000/- as the initial amount regarding which no receipt was issued. The surveyor, however, did not recommend total loss and asked for an estimate from the appellant who submitted the estimates (Annexures C-3 and C-4), which were forwarded to the Insurance Company. The Insurance Company made a payment of Rs.2,44,260/- to the appellant but even inspite of that the car was not returned to the complainant. He, therefore, prayed for the release of the car and also for Rs.10 Lacs as compensation for mental agony and humiliation along with the  refund of Rs.10,000/- paid by him to the surveyor and also Rs.11,000/- as costs of litigation.

3.                 The Insurance Company (OP No.1) admitted having received an intimation from the complainant about the accident and having deputed a surveyor. It was alleged that the surveyor allowed a sum of Rs.2,54,116.36Ps as assessed loss and after deducting the salvage value, they made the payment of Rs.2,44,620/- to the appellant towards full and final settlement of the claim under the policy.

4.                 The contention of the appellant is that the car was repaired by them and a total bill of Rs.1,20,259/- for the repair was prepared. They claimed to be entitled to Rs.36,000/- as parking charges @Rs.200/- per day from 1.10.2008 to 2.4.2009. It was alleged that the outstanding amount having not been paid by the complainant, the car was, therefore, not returned.

5.                 OP No.3 is the surveyor who was appointed by the Insurance Company and who submitted the estimate of loss. He denied if he ever demanded Rs.25,000/- from the complainant or Rs.10,000/- was paid to him.

6.                 The parties were given opportunity to lead evidence in support of their contentions.

7.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide the impugned order dated 31.5.2010 in the terms as mentioned in the opening para of this order.

8.                 The OP No.2 has challenged the impugned order through this appeal.

9.                 We have heard the arguments of learned counsel for the parties and have perused the record.

10.               The appellant has now produced along with this appeal, a bill dated 30.9.2008 (Annexure A-1), which is of a sum of Rs.3,64,879/-. A copy of this bill was allegedly given to the complainant and he forwarded the same to the Insurance Company vide letter (R-3). This letter has been produced by the Insurance Company having received from the complainant on the basis of which, the payment of Rs.2,44,620/- was made to the appellant. The learned counsel for the complainant had no opportunity of contradicting    these   facts   because   the  same  were  not  brought  to  their

knowledge in the reply filed by the appellant. Even in the memorandum of appeal, there is no request made by the appellant for additional evidence. It appears, the bill has now been prepared by the appellant to justify the receipt of Rs.2,44,620/- and further to extract more amount from the complainant. So far as the letter (R-3) is concerned, it is a photocopy produced by the Insurance Company but it has not been proved to have been written or signed by the complainant. There is no evidence if Annexure R-3 was written or signed by the complainant in the presence of Sh. Vipan Verma, Branch Manager of the Insurance Company who alone submitted his affidavit and had signed the reply on their behalf. Annexure R-3, therefore, cannot be read in evidence.

11.               The contention of the learned counsel for the appellant that in fact the total bill for repair of the car was Rs.3,64,879/-, which was sent to the complainant and the complainant admitted this fact when he wrote a letter (Annexure R-3) to the Insurance Company intimating to them that he had received a final bill of Rs.3,64,879/- cannot be entertained. It was contended by the learned counsel for the appellant that while filing the present complaint, the complainant did not mention this fact and therefore, the appellant also failed to mention the same. A perusal of reply filed by the appellant shows that there is no mention if the total bill of repair of the car prepared by them was Rs.3,64,879/-. They also did not mention if they had received from the Insurance Company Rs.2,44,620/-. In fact, the reply filed by the appellant shows that the total bill of repairs of the car was Rs.1,20,259/-. They have received Rs.2,44,620/- from the Insurance Company, which was far in excess of the amount to which they were entitled. Now new facts are being brought by the appellant and on the basis of these facts, they are trying to challenge the findings recorded by the learned District Forum. It was nowhere their case before the learned District Forum, as is now being built through the memorandum of appeal. The bill, which is now produced by the appellant in appeal, was not produced before the learned District Forum, the appellant could not have expected any other order except the one passed by the learned District Forum. The contention of the appellant in Paras No.12 and 13 of the memorandum of appeal that the learned Ditsrict Forum wrongly came to the conclusion that the entire repair cost was Rs.1,20,259/- or that the findings have been given on conjectures and surmises, cannot be accepted. In fact, when the appellant itself had mentioned that Rs.1,20,259/- is due for the repairs and did not disclose the total amount of the bill was Rs.3,64,879/- nor the copy of the bill was placed on file, we are of the opinion that the learned District Forum had proceeded with the case rightly and there is no illegality or irregularity in the order. The OPs are expected to produce the complete record and to mention the complete facts in their reply before the learned District Forum instead of subsequently producing the same before this Commission in appeal. The bills now produced with the memorandum of appeal, therefore, cannot be read in evidence. Otherwise also, these documents are beyond pleadings and entirely a new case is being set up by the appellant through the memorandum of appeal, which cannot be allowed. Even if the provisions of Code of Civil Procedure or the Evidence Act are not applicable to the proceedings under the Act yet the principles of natural justice would still apply to these proceedings and a party cannot be taken aback by producing such like documents at the Appellate stage and that too without there being any pleadings before the learned District Forum nor any request before this Commission to allow the same as additional evidence. We are, therefore, of the opinion that the bill attached by the appellant along with the memorandum of appeal cannot be read in evidence.

12.               We have gone through the record and the pleadings submitted by the parties before the learned District Forum. The impugned order is perfectly legal and valid. There is no merit in the appeal filed by the appellant. The same is accordingly dismissed with litigation costs of Rs.5,000/-.

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

Pronounced.

14^th January 2011.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.255 of 2010)

Argued by:    Sh. H. S. Bedi, Advocate for the appellant.

                    Sh. K. S. Arya, Advocate for respondent No.1.

                    Sh. Sandeep Suri, Advocate for respondents No.2 and 3.

Dated the 14^th day of January, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been dismissed with litigation costs of Rs.5,000/-.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)    

                MEMBER                                      PRESIDENT