STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 08.12.2017
Date of final hearing: 12.05.2023
Date of pronouncement: 12.07.2023
First Appeal No.1492 of 2017
In the matter of :-
M/s Modern Automobiles, Metropolis Mall, Opposite Vidyut Nagar, Delhi Road, Hisar through T.R. Bhatia, G.M. …..Appellant
Versus
- Mangat Ram son of Sh. Jug Lal, resident of Village Balu Bidhan Patti Tehsil Kalayat, District Kaithal.
- The New India Assurance Company Limited, Divisional Office, 182-183, Red Square Market, Hisar through its Divisional Manager.
- IndusInd Bank Limited, Opposite main Bus Stand, Narwana, District Jind through its Branch Manager. ...Respondents
Argued by:- Sh. Nikhil Sehrawat, counsel for appellant.
Sh. Ripu Daman Boora proxy counsel for Sh. Pardeep Kumar Rapria, counsel for respondent No.1.
Ms. Vandana Malhotra, counsel for respondent No.2.
Sh. Mrigank Sharma, counsel for respondent No.3.
Date of Institution: 06.02.2018
Date of final hearing: 12.05.2023
Date of pronouncement: 12.07.2023
First Appeal No.156 of 2018
In the matter of :-
M/s New India Assurance Company Limited, Divisional Office, 182-183, Red Square Market, Hisar through its Divisional Manager.
…..Appellant
- Mangat Ram son of Sh. Jug Lal, aged 61 years, resident of Village Balu Bidhan Patti Tehsil Kalayat, District Kaithal.
- Modern Automobiles, Metropolis Mall, Opposite Vidyut Nagar, Delhi Road, Hisar through Manager.
- IndusInd Bank Limited, opposite Main Bus Stand, Narwana, District Jind through its Branch Manager. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Ms. Vandana Malhotra, counsel for appellant.
Sh. Ripu Daman Boora proxy counsel for Sh. Pardeep Kumar Rapria, counsel for respondent No.1.
Sh. Nikhil Sehrawat, counsel for respondent No.2.
Sh. Mrigank Sharma, counsel for respondent No.3.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
By this order, above mentioned two cross appeals are being disposed off. In both appeals legality of order dated 25.10.2017 passed by District Consumer Disputes Rederssal Forum-Hisar (In short “District Commission”) in complaint No. 398 of 2016 has been questioned.
2. In First Appeal No. 156 of 2018 filed by Insurance Company; there is delay of 62 days in filing the appeal for the reason, mentioned in the application for seeking condonation of delay; this period of delay is condoned.
3. Factual matrix is that: Mangat Ram purchased Maruti Baleno car from Modern Automobiles through CSD depot, bearing chassis No. MA3EWB62SGD173489, Engine No. D13A2822833 for Rs.7,40,221/- vide invoice dated 20.05.2016. He availed loan facility of Rs.5,50,000/- from Indusind Bank Ltd. for this purpose. Vehicle was insured with New India Assurance Co. Ltd. vide policy dated 09.05.2016 for Rs.7,06,276/-. Premium amount was paid and car was delivered on 20.05.2016. On 18.06.2016, car met with an accident and was badly damaged. Intimation was given to Modern Automobiles and to Insurer. Complainant was asked to take car at the workshop of Modern Automobiles and he took it there on same day. Insurer appointed surveyor and loss assessor to inspect the car in question. He took signatures of complainant on blank papers and printed forms. Manager of Modern Automobiles and surveyor of insurance company asked complainant, to first get the vehicle registered with registering authority in his name and only thereafter his claim will be considered. Complainant got the vehicle registered and paid Rs.62,840/-. Registration No. HR-83-5115 was allotted to car. Complainant submitted all documents with dealer and insurer. They considered the case as of total loss and asked him to get the registration certificate cancelled and submit the documents vide letter dated 16.08.2016. Officials of Modern Automobiles and officials of insurer stated that: after submission of documents, claim of complainant will be sanctioned for Rs.7,06,726/- and he will have no concern, whatsoever with car in question which will remain parked in workshop of Modern Automobiles. Insurer issued letter dated 24.08.2016 in the name of Registering Authority Kalayat requesting to cancel the registration certificate of car and send cancelation report to enable them to sanction the claim. Complainant got cancelled registration certificate vide order No. 6451 dated 06.12.2016 and thereafter moved application dated 07.12.2016 along with order dated 06.12.2016, to insurer, to pay insured amount of car in question. Insurer asked complainant on telephone to send copy of bank passbook and complainant submitted the same vide application dated 16.12.2016. Insurer, instead of sanctioning the claim of complainant for Rs.7,06,726/-, send amount of Rs.5,90,726/- to Indusind Bank Ltd. to deposit the same in loan account of complainant. Insurer has not sanctioned balance amount of Rs.1,16,000/-. Modern Automobiles has illegal sent letter dated 05.12.2016 thereby asking complainant to collect the vehicle from workshop, otherwise they will charge parking charges. Complainant sent reply to above letter through regd. post on 14.12.2016 explaining all facts. It is pleaded that claim of complainant has been sanctioned on total damage basis on lower side by insurer, so he has no concern with the vehicle and is not liable to collect it from workshop of Modern Automobiles. The matter, if any, is between Modern Automobiles and New India Assurance Co. Ltd. Indusind Bank Ltd. sanctioned loan of Rs.5,50,000/-, Complainant had already deposited Rs.45,000/- with it in three installments of Rs.15,000/- each. Indusind Bank Ltd. further received Rs.5,90,726/- from Insurance Company. Indusind Bank is liable to refund excess amount to complainant with 18% interest p.a. Modern Automobiles and insurance company have caused loss of Rs.1,16,000/- on account of insured sum and Rs.62,840/- on account of registration charges. Complainant is legally entitled to receive this amount with 18% interest p.a. He has suffered harassment, mental agony, physical pain, financial loss due to deficiency in service, hence is entitled to compensation to the tune of Rs.2,00,000/-.
4. Modern Automobiles, in its defence, has pleaded that complaint is false; complainant has not come with clean hands. Vehicle (HR-83-5115) was badly damaged; repairs were not required and complainant was requested in person, and by registered post dated 12.10.2016, 25.10.2016 & 05.12.2016 to lift his un-repairable badly damaged vehicle. False allegation of deficiency in service is mysterious, just to extract undue advantage and to run away from depositing parking charges for unlawful parked vehicle since June, 2016.
5. Insurance Company, in its separate reply, besides raising usual preliminary objections, has pleaded that it had sanctioned the claim and made payment of Rs.5,90,726/- to Indusind Bank in respect of complainant’s claim as per report submitted by its surveyor and terms and conditions of insurance policy. It has never considered the claim, as total loss and never assured complainant to sanction the claim for Rs.7,06,726/-. There is no deficiency in its service.
6. Indusind Bank ltd. in its defence has asserted that complainant availed finance facility from it for purchase of vehicle make Maruti Baleno Petrol bearing No. HR-83-5115 vide loan agreement dated 20.05.2016. Bank received claim amount of Rs.5,90,726/- on 23.12.2016 from insurance company towards claim amount and same was adjusted in loan account of complainant. After adjustment; bank closed complainant’s loan account. After adjustment, an amount of Rs.28,112/- is excessive amount which is lying in loan account of complainant and bank is always ready to refund to complainant and for which bank has intimated to complainant but he has never visited its office for refund.
7. Parties to this lis led evidence; oral as well documentary.
8. On critically analyzing the same, learned District Consumer Commission-Hisar vide order dated 25.10.2017 has allowed the complaint and directed Modern Automobile and Insurance Company to pay Rs.1,16,000/- to complainant with 9% interest p.a. from the date of filing of complaint (29.12.2016) till payment. Complainant was also awarded Rs.5,000/- for harassment and mental agony.
9. Aforesaid order (25.10.2017) has been questioned separately by Modern Automobiles (OP No.1 in complaint) as well as by The New India Assurance Company Ltd. (OP No. 2 in compliant) through two separate appeals, detailed above.
10. I have heard learned counsel appearing for parties in both appeals.
11. On behalf of appellant (Modern Automobiles) it is urged that impugned order dated 25.10.2017 is illegal. Vehicle No. HR-83-5115 had met with accident. It is lying parked in its premises. After selling the vehicle to complainant, appellant (Modern Automobiles) has no direct control over it. It has not repaired the damaged vehicle being beyond repairable condition. Hence, as per contention, illegal direction has been issued by learned District Consumer Commission to it, to refund the amount of Rs.1,16,000/- with interest.
12. On behalf of appellant (The New India Assurance Company Ltd.) it is urged that insurer has already paid the amount of Rs.5,90,726/- to financer as per its surveyor report. This amount does not include the value of net wreckage to the tune of Rs.1,15,000/-. Complainant has given his express consent to retain the value of wreckage through his affidavit dated 22.07.2016 and this aspect has not been considered by learned District Consumer Commission. Consequently it is urged that no direction can be issued to insurer to refund the amount of Rs.1,16,000/- with interest to complainant.
13. On behalf of complainant it is urged that impugned order dated 25.10.2017 is legally justifiable. Complainant is entitled to refund of Rs.1,1,6000/- with interest from respondent No. 1 and 2 and he has been rightly awarded this amount.
14. On behalf of Indusind Bank it is urged that it has already received Rs.5,90,726/- from insurer with respect to vehicle No. HR-83-5115 which was financed by it and this amount has already been adjusted in the loan account of complainant, which now stands closed.
15. Admittedly, Maruti Baleno Vehicle bearing No. HR-83-5115 was financed by complainant from Indusind Bank, vide loan account dated 20.05.2016 and Rs.5,50,000/- was financed. Admittedly, the vehicle met with an accident and it is beyond repairable, lying parked in the premises of Modern Automobiles Ltd. Admittedly, on the basis of surveyor’s report dated 22.07.2016, the loss of vehicle was assessed to the tune of Rs.7,05,726/-. Expected value of damaged vehicle’s wreckage is Rs.1,15,000/-. Net liability of insurer, as per surveyor’s report dated 22.07.2016 (Ex.R-3) was Rs.5,90,726/- and this amount has been released in favour of financer Indusind Bank and bank has adjusted this amount in the loan account of complainant.
16. In view of above admitted facts, the question now arises is, as to whether complainant can still be awarded compensation of Rs.1,1,6000/- with interest @ 18% p.a. Answer to this poser is in Negative. Reason is obvious. Complainant has submitted his consent letter dated 22.07.2016. It is already in the record of learned District Consumer Commission as Ex.R-1. Phraseology of integral part (para No. 2 & 3) of this consent letter (Ex.R-1) reads as under:-
“2.That I am owner of Maruti Baleno Alpha bearing registration No. HR99YH(T)-4357 (HR83-5115) which is insured from the New India Assurance Co. Ltd. Vide policy No. 31260031160303977201 having validity 09.05.2016 to 08.05.2017. That my above stated vehicle met with an accident on dated 18.06.2016 and I want to claim the amount from the Insurance Company.
3. That I accept the payment of Rs. 5,90,726/- (Five Lac Ninety Thousand Seven Hundred Twenty Six Only) as full and final settlement against “Net of Salvage” without RC in the Claim of above said vehicle after retaining the salvage. This consent is given by me after clearly understanding the mode of settlement of claim/ I also confirm that I shall not raise any dispute/issue against settlement of this claim.”
In view of above, it is deciphered that enormous legal consequences flow from above consent letter. Once, complainant has accepted payment of Rs.5,90,726/- which has been paid by the insurance company, directly to the financer i.e. Indusind Bank and complainant having also consented to retain salvage/wreckage of damaged vehicle, which as per surveyor’s report dated 22.07.2016 is of the value of Rs.1,15,000/-, then he cannot be compensated with an amount of Rs.1,16,000/- with 9% interest. Surveyor’s Report Ex.R-3 dated 22.07.2016 is comprehensive and explicit in itself. There are absolutely no reasons before this Commission to have a departure from the same. In opinion of this Commission, consent letter Ex.R-1 dated 22.07.2016 of complainant-Mangat Ram has formed a formidable and acceptable base in order to non-suit the complainant. Admittedly, the damaged vehicle is lying parked in the premises of Modern Automobiles. Complainant can collect the wreckage/salvage of the vehicle, being its owner. Learned District Consumer Commission-Hisar has not considered and discussed the consequences of these documents (consent letter dated 22.07.2016 of complainant (Ex.R-1), Surveyor’s report dated 22.07.2016 (Ex.R-3)) at all in its order dated 25.10.2017 and consequently order dated 25.10.2017 being erroneous, is not legally sustainable. It is accordingly set aside. Looking at the text of the complaint it is visible that complainant has not mention a word in its entire body about his consent letter dated 22.07.2016 Ex.R-1. It cannot be taken that complainant was not aware and had no knowledge about his consent letter dated 22.07.2016. Hence, he is guilty of active concealment of material facts. Consequently, he is not entitled to any relief, even on principle of equity. He deserves to be non-suited. He cannot be allowed to make any fortune.
17. Consequently, both appeals are allowed. Impugned order dated 25.10.2017 is set aside and complaint filed by complainant-Mangat Ram is dismissed. Before parting, it is again observed that complainant is at liberty to collect wreckage/salvage of vehicle HR-83-5115 (now cancelled), from the premises of Modern Automobiles.
18. Statutory amount of Rs.25,000/- deposited by appellants in both appeals at the time of filing of appeals be refunded to them, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
19. Application(s) pending, if any in both appeals stand disposed of in terms of the aforesaid judgment.
20. Original copy of this judgment be attached with First Appeal No. 1492 of 2017 and certified copy thereof be attached with First Appeal No. 156 of 2018.
21. 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.
22. Files of both appeals be consigned to record room.
Date of pronouncement: 12th July, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
