STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.09.2018
Date of final hearing: 16.09.2024
Date of pronouncement: 29.11.2024
First Appeal No.1036 of 2018
IN THE MATTER OF:-
Prime Automobiles Pvt. Ltd., office at Hassanpur Chowk, Main Mathura Road, Hodal, Tehsil Hodal through Sh. Sonu Sharma S/o Sh. Kishan Chand Sharma R/o MCF-192/24, Mujesar, Faridabad, SPA of the appellant. ....Appellant
Versus
- Deepak Jain S/o Sh. Daya Chand Jain, R/o Ward No.8, Punahana, District Mewat.
- ICICI Lombard General Insurance Company Ltd., through its Branch office at 2nd Floor, Krishna Towers, BP-55, Neelam Bata Road, NIT Faridabad-121001.
…..Respondents
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member
Argued by:- Mr. Madhur Singh, counsel for appellant.
Mr. Vaibhav Parashar, counsel for respondent No.1.
Mr. Rajneesh Malhotra, counsel for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this Appeal No.1036 of 2018 filed by appellant has been invited to legality of order dated 06.07.2018 passed by learned District Consumer Disputes Redressal Forum-Palwal (In short “District Consumer Commission”) in complaint case No.76 of 2017, vide which complainant’s complaint has been allowed.
2. Factual matrix: Complainant- owner of Mahindra Bolero pickup vehicle No.HR-74A-9366, having purchased it on 09.12.2015 from OP No.1 (Prime Automobiles Pvt. Limited) at Hassanpur Chowk, Palwal, got it insured with OP No.3 (ICICI Lombard General Insurance Company Ltd.). On 09.03.2016 at about 6.00 A.M. subject vehicle had met with accident. Intimation of it was immediately given to OP No.3/insurer. Front portion of vehicle was badly damaged. OP No.1/dealer demanded Rs.3,000/- for towing it at its authorized workshop at Hodal and demanded amount was paid by complainant. OP No.1 told him (complainant) that authorized surveyor of OP No.3/insurer will come and after his report and approval; repair work will be done and completed within one month (by 10.04.2016). Complainant after one week met officials of OP No.1 and was told that surveyor of OP No.3/insurer has/had surveyed subject vehicle and claim No.moto5377647 has/had been issued, but damaged vehicle will be sent to main workshop due to non-availability of body spare parts and it will be repaired within one month. Complainant visited and requested to OPs, for number of times, but vehicle has/had not been delivered to him. As per plea; OPs did not repair it till 17.04.2017 i.e. date of filing of complaint. It is alleged that due to misguidance, negligence and indulging in unfair trade practices, OPs have harassed him, caused mental agony to him and he is entitled to claim damages of Rs.50,000/-. On these allegations, complaint has been filed for issuance of direction to OPs to pay him Rs.3,50,000/- on account of loss of income at the rate of 30,000/- p.m.; to pay him damages of Rs.50,000/- on account of short and deficient intentional services rendered by OPs and causing him mental tension, agony and harassment; to pay him Rs.5,00,000/- price/cost of vehicle in question which is laying in workshop since 10.03.2016 till today and to pay him litigation expenses of Rs.20,000/-.
3. OP No. 1/dealer at Hodal, District Palwal raised contest. In its defense; OP No.1/appellant/dealer has pleaded that: forum has no jurisdiction; there arises no cause of action; OP has no workshop at Hodal. Complainant is not a consumer and has not come with clean hands. As per plea; subject vehicle was brought at its workshop at Faridabad and not at Hodal. It is denied that OP No. 1 has demanded Rs.3000/- for crane charges and complainant paid that amount after which OP No. 1 brought the vehicle from spot to its authorized workshop at Hodal. It is denied that OP No. 1 told complainant that within one or two days surveyor of OP No. 3 will come and after surveyor’s approval the repairing work will be completed within one month and vehicle will be handed over to complainant. Report of accident was forwarded to OP No.3/insurer and as per repair order dated 10.03.2016, it was fully repaired; bill of Rs.2,64,600/- dated 31.07.2016 was generated. Complainant and insurance company were informed and complainant was asked to take the delivery of vehicle after tie-up with insurance company and pay bill of question to it (OP No. 1) after adjustment of insurance amount. Neither complainant nor insurance company approached OP No. 1 and no one paid the bill raised regarding repair of vehicle, till date and vehicle is still lying in the workshop of OP No.1. Complainant is avoiding his liability deliberately and intentionally. Other pleas of complaint, including allegation of deficiency in service and unfair trade practice on the part of OP No.1, were denied and its dismissal has been prayed.
4. None appeared on behalf of opposite party No.2, which was none else, but another office of OP No. 1 at Faridabad. It was proceeded against ex-parte vide learned District Consumer Commission’s order dated 29.05.2017.
5. OP No. 3/insurer also raised contest. In its separate defense; it is pleaded that complainant has violated terms and conditions of Insurance Policy by not supplying requisite documents/information to it so as to process the claim and hence claim was treated as “withdrawn and closed” under letter of intimation dated 11.05.2016. It is pleaded that subject vehicle was insured vide policy valid from 09.12.2015 to 08.12.2016 against insured declared value of Rs.5,92,280/- for premium of Rs.24,782/-. Insurer has also denied other pleas of complaint and prayed for its dismissal.
6. Complainant as well as OPs No. 1 & 3 to this lis led their respective evidence, oral as well as documentary.
7. On analyzing the same; learned District Consumer Commission-Palwal has allowed the complaint vide impugned order dated 06.07.2018 and directed that: OPs No.1 & 2 (both dealers) will return repaired vehicle in question to complainant within one week by all means from receipt of copy of order, otherwise they will have to bear penalty of Rs.500/- per day for delayed period. Complainant will get adjusted, out of total repaired amount of Rs.2,64,600/- only Rs.2,00,000/- (he will not pay for labour charges of Rs.33,870/- and other taxes as mentioned in repair bill), amount of Rs.2,00,000/- of repair will be adjusted from loss suffered by complainant of his livelihood @ Rs.15,000/- per month for 28 months (Rs.4,20,000/- i.e. Rs.15000 x 28) and compensation of Rs.30,000/-. Thus, total amount has been evaluated by learned District Consumer Commission at Rs.4,50,000/-. Out of the total amount of Rs.4,50,000/-; Rs.2,00,000/- will be adjusted by OP No.1 & 2 (dealers) on account of repair of subject vehicle and balance of Rs.2,50,000/- will be paid to complainant, which is pertaining to loss of his livelihood, as well as compensation of Rs.30,000/- due to suffering of mental agony and harassment. This amount is to be calculated from 09.03.2016 to 06.07.2018. OP No.3/insurer has been directed to pay Rs.1,89,000/- qua damaged vehicle to complainant as agreed and admitted as per their own Surveyor’s report. Litigation expenses has also been evaluated at Rs.11,000 /- to be borne jointly and severally by OPs No.1 & 2/dealers. OP No.3/insurer has also been directed to pay Rs.5,500/- along with Rs.10,000/- compensation for mental agony and harassment to complainant. All these directions have been commanded upon to be complied by OPs within 45 days from receipt of copy of impugned order dated 06.07.2018, failing which, it has been directed that Rs.50,000/- will be paid by OPs No.1 & 2/dealers and Rs.10,000/- will be paid by OP No.3/insurer as compensation in addition to above mentioned awarded amounts, except handing over the vehicle which will be handed over to complainant by OPs No.1 & 2/dealers within 7 days from receipt of copy of order without getting a single penny from him and adjusting the amount as mentioned.
8. Feeling aggrieved; OP No.1/dealer has filed this appeal. We have heard learned counsel for parties and with their able assistance we have perused record of learned District Consumer Commission.
9. Learned counsel for appellant/OP No.1 has urged that it has repair upon damaged vehicle was carried out and bill for repair amounting Rs.2,64,000/- has/had been generated. It is urged that complainant will have to bear entire amount of said bill. Compensation awarded to complainant regarding loss of income does not carry any fundamental base. In any case, amount assessed by surveyor of insurer to the tune of Rs.1,89,000/- will have to be paid to dealer only, against cost of bill, as subject vehicle was insured by OP No. 3. This amount cannot be ordered to be paid to complainant. It is urged that there is no deficiency in service of OP No. 1, once it has repaired the subject vehicle and complainant has/had faulted in taking its delivery.
10. Per contra, learned counsel appearing for respondent No.1/complainant has supported the impugned order by urging that the learned District Consumer Commission has critically analyzed the controversy and no interference is tenable.
11. Learned counsel for insurer/respondent No.2 has urged that its surveyor has assessed the loss of damage at Rs.1,89,000/- and it is ready and willing to pay this amount to the dealer who carried out repairs. Further it is urged that insurer has rightly closed the insured’s claim for want of supply of requisite documents.
12. This Commission has analyzed these submissions and has arrived at conclusion that impugned order dated 06.07.2018 passed by learned District Consumer Commission-Palwal carries illegality. Reasons in this regard are obvious. Admittedly, OP No. 3/insurer has insured subject vehicle from 09.12.2015 to 08.12.2016 against IDV of Rs.5,92,280/- on receiving premium of Rs.24,782/-. Damage to the subject vehicle has/had been resulted in an accident of 09.03.2016. The accident has/had resulted during currency of insurance policy. This being so; liability of insurer qua damage caused to the insured vehicle is inherent from policy itself and more so there is no denial from insurer in its written version so far as this aspect is concerned.
13. It is apparent from perusal of impugned order that surveyor of insurer has assessed loss of damage upon vehicle at Rs.1,89,000/-. This aspect has also been conceded by the learned counsel for insurer/respondent No.2 during course of arguments in this appeal by expressing that insurer is ready and willing to part with this amount. Obviously, insurer has to pay this amount to the dealer/appellant who has/had carried repairs upon damaged vehicle. Learned District Consumer Commission-Palwal has erred in law while observing in impugned order that this amount be paid to complainant. Finding of learned District Consumer Commission in impugned order dated 06.07.2018 to this effect, cannot be allowed to hold its light of day, anymore and same is hereby set aside. Accordingly, it is observed that from total repair bill amounting to Rs.2,64,600/-; Rs.1,89,000/- will be paid by the insurer and balance amount would be paid by the insured/complainant.
14. Matter does not end here. Learned District Consumer Commission has awarded compensation of Rs.4,20,000/- to complainant towards loss of his livelihood computing @ Rs.15,000/- per month for 28 months and further compensation of Rs.30,000/- on account of mental agony and harassment. No evidence has been led by complainant as to nature of his avocation. Even there is no plea to this context, anywhere in entire body of his complaint. Bald assertion in the prayer clause of complaint to pay him compensation of Rs.3,50,000/- on account of loss of income @ Rs.30,000/- per month will not suffice at all in legal parlance and cannot be accepted as it sans details regarding plea and admissible evidence to substantiate the plea. This finding of learned District Consumer Commission in impugned order dated 06.07.2018 while awarding Rs.4,20,000/- to complainant towards loss of his livelihood is also erroneous and hereby set aside.
15. Amount awarded to complainant towards litigation expenses of Rs.11,000/- is justified and observation of learned District Consumer Commission-Palwal to this effect is upheld and maintained. Said amount is to be paid by OPs No. 1 & 2. Allied findings of awarding Rs.5500/- and Rs.10,000/- to complainant by OP No. 3 along with entire findings in totality so recorded by learned District Consumer Commission-Palwal in impugned order, consequent to default in compliance of its order dated 06.07.2018, are nullified as the same has no rational base for the reason that: the fault lies with complainant for not making payment of amount due from him and taking delivery of repaired vehicle thereafter from appellant. More so, a specific plea has been taken by appellant in written statement in this regard, which could not be controverted by complainant through any rejoinder.
16. With above observations, this appeal is partly accepted.
17. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
18. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 29th November, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
