Chandigarh

DF-I

CC/229/2018

Kuldeep Sharma - Complainant(s)

Versus

General Manager Reliance General Insurance Company - Opp.Party(s)

Vimal Kumar Gupta Adv.

31 Aug 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/229/2018
Date of Institution	:	22/05/2018
Date of Decision	:	31/08/2020

 

Kuldeep Sharma aged about 54 years son of Shri Ram Saran Sharma, resident of H.No.1132/4, Guru Arjun Dev Nagar, District Yamuna Nagar.

… Complainant

V E R S U S

General Manager, Reliance General Insurance Company, 145/146, 2^nd Floor, Madhya Marg, Sector 9-C, Chandigarh

… Opposite Party

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Sh. Arjun Dhingra, Vice Counsel for Sh. Vimal Kumar Gupta, Counsel for complainant
	:	Sh. Inderjit Singh, Counsel for OP

Per Rattan Singh Thakur, President

1.      The long and short of the allegations  made in the consumer complaint are, complainant happens to be the owner of a truck bearing registration No.HR-58-7565 which was insured with the OP w.e.f. 23.11.2011 to 22.11.2012 on payment of premium of Rs.19,676/-. On 2.6.2012 the complainant gave the said truck for cabin repair to Kamal Body Builders, Delhi. However, on 12.6.2012, a fire broke out in the shop of aforesaid Kamal Body Builders due to electricity short circuit in which the truck in question was gutted and was fully damaged. To this effect, DDR No.3-A was got recorded by one Subhash s/o Shri Matu Ram who was employed as a chowkidar.  Maintained, as per DDR there were three trucks out of which one happened to be the present one.  The complainant informed the OP company to reimburse the claim and its surveyor had assessed the loss to the tune of Rs.17,70,220/-, however the truck was insured for a sum of Rs.9,50,000/- only. The claim was repudiated without assigning any reason due to which the complainant had to suffer mental and physical harassment. Earlier the complainant filed a consumer complaint before the learned District Forum, Yamuna Nagar, but, the same was withdrawn vide order dated 13.7.2017 with liberty to file fresh. Hence, the present consumer complaint for directing the OP to release the amount of Rs.17,50,000/- i.e. Rs.9,50,000/- in respect of the truck in question; Rs.3,00,000/- on account of monetary loss @ Rs.1,000/- per day from the date of damage of truck and Rs.5,00,000/- on account of mental agony.
2.     OP contested the consumer complaint, filed its written reply and, inter alia, raised preliminary objections of the consumer complaint being defective for want of non arraying of the necessary party i.e. the financier namely M/s Magma Fincorp Ltd. It is the case, there was bailment of the truck in question with M/s Kamal Body Builders where fire broke out and there is a general exception in the policy that OP company shall not be liable to pay any claim arising out of the contractual liability and reference was also made to Sections 151, 160 and 161 of the Indian Contract Act, 1872. Averred, liability, if any, was of the bailee i.e. M/s Kamal Body Builders. Claimed IDV of the vehicle was Rs.9,50,000/- only with a compulsory deductible of Rs.2,000/- and, therefore, the claim could not be preferred exceeding Rs.9,48,000/-. Maintained, the complainant has not produced NOC and RC cancellation certificate. On these lines, the cause is sought to be defended.
3.     Replication was filed and averments made in the consumer complaint were reiterated.
4.     Parties led evidence by way of affidavits and documents.
5.     We have heard the learned counsel for the parties and gone through the record of the case. After scanning of record, our findings are as under:-
6.     Per pleadings of the parties, admittedly the truck was insured with the OP for the relevant period i.e. 12.6.2012 when it was gutted in fire.  The payment of premium on the material date is admitted one. The sole ground for repudiation of the claim is, at the time when fire broke out and the truck was totally damaged, it was in possession of M/s Kamal Body Builders, Delhi, therefore, there existed a contract of bailment inter se complainant and M/s Kamal Body Builders and as per Section 151, 160 & 161 of the Indian Contract Act, the bailee i.e. Kamal Body Builders was bound to take as much care of the goods bailed to it as a man of ordinary prudence would under similar circumstances take care of his own goods of the same bulk, quality and value as the goods bailed and it was the duty of the bailee to return the goods to the complainant and the insurance provided by the OP to the complainant has explained in case of contractual liability the insurance company was not liable to pay the claim.  This was the only ground referred apart from other technical objections. To this effect our attention was drawn to a case titled as Reliance General Insurance Company Ltd. Vs. Sharwan Chhajer, 2016 (4) CPJ 64 (NC) and the relevant paragraph No.5 thereof is reproduced below :-

“5.  Clause No.2 of the 'General Exceptions' contained in the insurance policy on which the petitioner relies, reads as under:

"The company shall not be liable under this Policy in respect of

1........

2. any claim arising out of any contractual liability".

        The contention of the learned counsel for the petitioner company is that since the vehicle was stolen while in the custody of the workshop it was the workshop which was liable to pay to the complainant for the loss of the vehicle since there was a contract of Bailment between him and the workshop.  In support of her contention, she relies upon the decision of the Hon'ble Delhi High Court in The New India Assurance Co. Ltd. & Anr. Vs. The Delhi Development Authority & Ors. AIR 1991 Delhi 298 and the decision of this Commission in Mahesh Enterprises Vs. Arun Kumar Gumber & Ors. 2001 CPJ 1 (NC).

 

7.     In such like situations, under paragraph No.7, the Hon’ble National Commission had held, the Insurance Company shall reimburse the claim to the complainant and it will be open to the Insurance Company to take such action as may be open to it in law against the workshop from where the car of the complainant was stolen. Therefore, the objection taken by the OP is devoid of force as per the precedent of the Hon’ble National Commission.
8.     Now we shall take up the other technical objections taken, the truck was financed with M/s Magma Fincorp Ltd. and it was hypothecated with the said financier and it had not given any no objection to process the claim in favour of the complainant. However, the said financier has not been arrayed as a party in the present consumer complaint by the complainant. Not only this, even in the replication furnished, it is not the case, no such loan was raised from the said financier or the loan account stood closed. 
9.     The complainant states it is not necessary to make the said financier as a party. We are in total disagreement with this plea as the truck was hypothecated with the said financier and it had a claim over the same till its loan account was closed by the complainant. The said financier is neither arrayed as a party nor its NOC produced on record. Basically the financial institution was the owner as it had raised the loan to the complainant against the truck in question and it is a sort of mortgage from where the amount of loan was to be recovered/satisfied. Therefore, a conditional order can only be passed in favour of the complainant.
10.     Another objection taken is M/s Kamal Body Builders not arrayed as a party. We have already referred to the judgment of the Hon’ble National Commission in Reliance General Insurance Company Ltd. Vs. Sharwan Chhajer (supra) that after reimbursing the complainant, the insurance company can sue the said builder/repairer for the recovery of the amount, if so permissive under law.
11.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-

1. to immediately pay the amount of Rs.9,48,000/- to the complainant after submission of certificate of cancellation of the RC and NOC from the financier by him.
2. to pay an amount of Rs.20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

12.     This order be complied with by the OP within thirty days from the date of submission of aforesaid documents by the complainant with it, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above. It is further clarified, the execution of this order would only be maintainable if the proof of cancellation of the RC is submitted by the complainant alongwith NOC from the financier stating it has no objection in case the amount is released to him or that the loan account stood closed. 
13.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
31/08/2020	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President