Haryana

Karnal

CC/218/2019

M/s Ocean Industries Limited - Complainant(s)

Versus

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

Rajiv Gupta

04 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 218 of 2019

                                                          Date of instt.24.04.2019

                                                          Date of Decision 04.08.2021

 

M/s Ocean Industries Ltd. ¾ Aashirwad Enclave, Balapur, Dehradun, Uttrakhand-247777, through its M.D. Vijay Jain son of Shri Dhan Singh resident of House no.361, ward no.4, Railway Road, Charkhi Dadri, Bhiwani, Haryana.

                                                 …….Complainant.

                                              Versus

 

1. Reliance General Insurance Company Limited, Unit no.306, 3^rd floor, Palm Court, Building Sector 14, Gurgaon-122001 through its authorized signatory.

2. Berkeley Motors Limited, 117 KM Stone, G.T. Road, Karnal, Haryana 132001 through its Incharge/Branch Manager.

 

                                                                      …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Rajiv Gupta counsel for complainant.

                    Shri Ashok Vohra counsel for OP no.1.

                    OP no.2 exparte.

 

                    (Jaswant Singh President)

ORDER:   

                

                        The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is owner of car bearing registration no.UK07BF-0009 and the said car was used by M.D. of the complainant company for its personal use. The said car was given to OP no.2 for maintenance and service purpose on 14.08.2018 and after completing the service of the said vehicle office of OP no.2 namely Prem Kumar taken the said car for its checking purpose and driver of Vijay Jain also accompanied with him and at that time said car met with an accident and FIR was also got lodged by official of the OP no.2, vide FIR no.277 dated 14.08.2018. Intimation was sent to the OP no.1 with regard to the accident. The car was repaired by OP no.2 and the total cost of repairing the car comes to Rs.3,45,671/-. The Surveyor of the OP no.1 also surveyed the aforesaid car. The claim of the vehicle  submitted with the OP no.1. OP no.1 rejected the claim of the complainant, vide letter dated 27.11.2018 on false ground whereas the driver/engineer of OP no.2 was also having a valid driving licence and the accident was caused by the engineer of OP no.2 and the said engineer was also having valid driving licence and the claim was rejected by OP no.1 on the ground that loss is occurred to the captioned vehicle was under the serving contract with the intimated work shop i.e. OP no.2 whereas the insurance company has no right to reject the said claim of complainant.  OP no.1 wrongly rejected the claim of the complainant of Rs.3,45,671/-. After rejection of the claim, the complainant again approached the OP no.1 with a request to reconsider the claim of complainant but OP no.1 is not interested to reconsider the claim of complainant. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts from this Commission. On merits, it is admitted fact that the car was given for maintenance and service purpose on 14.08.2018 and on the said date, vehicle was under the custody of the dealer at the time of accident. The vehicle was transferred from the complainant (the bailor) to OP no.2 (the bailee) who subsequently has possession of the property at the time of loss. The basic rule is that the bailee is expected to return to its owner the bailed goods when the bailee’s time for possession of them is over and he is presumed liable for losses under contract of bailment. It is further pleaded that after the intimation of the loss OP no.1 has deputed the surveyor and loss assessor who submitted his report in which the insurance liability amounted to Rs.177423/-. It is further pleaded that after receiving the intimation with regard to accident, OP deputed the investigator who investigated the matter and found that there is delay of 22 days in the intimation of the loss to the insurance company. Complainant in his statement provided that at the time of accident car was in the custody of the OP no.2. Thus, on the basis of claim investigation, OP no.1 repudiated the claim on the ground that loss of the vehicle has occurred was under the servicing contract with the intimated workshop i.e. Barkeley Motors Ltd. Hence as per terms and conditions of policy “it excludes the losses under contractual liability” which is general exceptions no.2 of Motor Insurance Policy? The company shall not be liable under this policy in respect of “any claim arising out of contractual liability.” There is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied by the OP no.1 and prayed for dismissal of the complaint.

3.             OP no.2 did not appear and proceeded against exparte, vide order of this Commission dated 14.06.2019.

4.             Complainant tendered into evidence affidavit of Vijay Jain Ex.CW1/A, copy of repudiation letter Ex.C1, copy of FIR Ex.C2, copy of Gate Pass Ex.C3 and Ex.C4, insurance policy Ex.C5, form of registration certificate Ex.C6, copy of driving licence of Prem Kumar Ex.C7 and claim intimation Ex.C8 and closed the evidence on 17.12.2019 by suffering separate statement.

5.             On the other hand, OP no.1 tendered into evidence affidavit of Suryadeep Singh Thakur Ex.OP1/A, affidavit of Shubham Arora Investigator Ex.OP1/B, affidavit of Amarjeet Singh Surveyor and Loss Assessor Ex.OP1/C, copy of FIR Ex.O1, statement of Director Ex.O2, repudiation letter Ex.O3, claim intimation Ex.O4, copy of policy Ex.O5, Survey report Ex.O6, Investigation Report Ex.O7, letter dated 15.09.2018 Ex.O8 and letter dated 26.09.2018 Ex.O9 and closed the evidence on 12.02.2021 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for the complainant while reiterating the contents of complaint, has vehemently argued that on 14.08.2018 complainant brought his vehicle to OP no.2 for its service and after completing the service, official of OP no.2 namely Prem Kumar taken the said car for its checking and at that time said car met with an accident. In this regard FIR no.277 dated 14.08.2018 was got lodged by official of the OP no.2 and an intimation was also given to the OP no.1 on the same day and car was got repaired by OP no.2. The total cost of repairing of car comes to Rs.3,45,671/- and surveyor of the OP no.1 also surveyed the aforesaid car. Complainant submitted the claim with the OP no.1 but OP no.1 did not pay the claim and repudiated the same on the false and frivolous ground and prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP no.1 while reiterating the contents of the written version, has vehemently argued that on receiving the intimation of the loss, OP no.1 had deputed his surveyor and loss assessor who submitted his report in which the insurance liability was amounted to Rs.177423/- and it was also found that there is delay of 22 days in intimating the loss to the insurance company. At the time of accident the car was in the custody of OP no.2, thus, on the basis of claim investigation, OP no.1 repudiated the claim of complainant on the ground that loss of the vehicle has occurred, was under the servicing contract with the intimated workshop i.e. Barkeley Motors Ltd. Hence as per terms and conditions of policy “it excludes the losses under contractual liability” which is general exceptions no.2 of Motor Insurance Policy? The company shall not be liable under this policy in respect of “any claim arising out of contractual liability.” Lastly, he prayed for dismissal of the complaint.

9.             Admittedly, the vehicle in question  met with an accident during the subsistence of the insurance policy. The claim of the complainant had been repudiated by the OP no.1, vide letter 27.11.2018 Ex.OP3/Ex.C1 on the ground that:-

“the loss occurred to the captioned vehicle was under the servicing contract with the intimated workshop i.e. M/s Berkeley Motors Limited.

The motor insurance policy excludes the losses under contractual liability which is the General Exception no.2 of Motor Insurance Policy. The company shall not be liable under this Policy in respect of any claim arising out of any contractual liability.”

10.           The moot question involved in the present complaint is that whether the claim of the complainant falls under “contractual liability” with the garage of Berkeley Motors Limited, G.T. Road Karnal or not ?

11.           Learned counsel for the complainant relied upon the judgment of Hon’ble Supreme Court in Civil Appeal no.2202 of 1969, dated of decision 22.07.1983 case titled as N.R. Srinivasa Lyer Versus New India Assurance Co. Ltd. Madras, in which Hon’ble Supreme Court held that as per Sections 148 and 151 of Contract Act, 1872, a car delivered for repairs by the insurer if destroyed in fire that broke out in workshop of repairer, the insurer is liable for loss of the insured vehicle. Insurer and repairer relationship is that insured is bailer, insurer is bailee/repairer sub bailee. Bailee and sub bailee had to take care of the car as was expected from a prudent man, in that case, insurer is liable for loss to the insured.

12.           Per contra, learned counsel for the OP no.1 relied upon the judgment of Hon’ble Supreme Court of India in Civil Appeal no.8611 of 2019 ( Arising out of S.L.P. (Civil) no.11213 of 2018 decided on 14.11.2019 in case titled as Taj Mahal Hotel Versus United India Insurance Company Ltd. & Ors. wherein it has been held that in a case of theft of a vehicle given for valet parking, the hotel cannot claim exemption from liability by arguing it was due to acts of third parties beyond their control, or that they are protected by an owners risk clause, prior to fulfilling its burden as required under section 151. It is further held that it is by now well established that while a case of a robbery by force is visibly beyond a bailees control, in cases of private stealth, or simple theft where no force or violence is involved, the bailee still has the prima facie burden of explaining that the loss or disappearance of the goods in his custody is not attributable in his neglect or want of care. This is because no one apart from the bailee is in a position to explain the fate of the goods. It is further held that the theft of the car of respondent no.2 was a result of negligence of the appellant-hotel, the exemption clause on the parking tag will not exclude the appellant’s liability. Hence, the argument of appellant-hotel on this count fails. The Hon’ble Supreme Court observed as under:-

i)      The hotel-owner cannot contract out of liability for its negligence or that of its servants in respect of a vehicle of its guest in any circumstances. Once possession of the vehicle is handed to the hotel staff or valet, there is an implied contractual obligation to return the vehicle in a safe condition upon the direction of the owner.

ii)     Even where there is a general or specific exemption clause, there remains a prima-facie burden of proof on the hotel to explain that any loss or damage cause to the vehicles parked was not on account of its negligence or want of care per sections 151 and 152 of the Contract Act. It is only after this burden of proof is discharged that the exemption clause can come into force. The burden of proving that such loss or damage was covered by the exemption clause will also be on the hotel. Hence, the hotel due to want of requisite care towards the car bailed to it. The appeal dismissed.

 

 The citation relied upon by the learned counsel for complainant applicable to the facts of the present case, whereas the citation relied upon by the OP no.1 does not applicable to the facts of the present case. As in the present case the complainant handed over its vehicle to Berkeley Motors Limited, G.T. Road Karnal i.e. OP no.2 for service and after completing the service, the official of the OP no.2 checked the vehicle and at that time the vehicle of the complainant met with an accident.  The relation of M/s Berkeley Motors Limited and Insurance Company are of sub bailee and bailee respectively. Hence bailee i.e. insurer cannot abscord the liability of sub-bailee also. Thus there is no liability on the part of Berkeley Motors Limited as the present case does not fall under the category of “contractual liability.” Hence, plea taken by the OP no.1 regarding the contractual liability has no force.

13.           As per the version of the OP no.1 the complainant intimated the OP no.1 with regard to the accident after delay of 22 days. On the other hand, as per version complainant, he gave the intimation to the police as well as to the OP no.1 on the same day  and police had lodged the FIR Ex.C2 on the same day i.e.14.08.2018. The onus to prove that intimation was given to the OP no.1 after delay of 22 days was lie upon the OP no.1 but the OP no.1 has not placed on record any documentary evidence in order to prove its plea, whereas on the other hand, the complainant has placed on file FIR Ex.C2 dated 14.08.2018, from which it can be presumed that the intimation with regard to the accident was also given on the same day to the OP no.1. Hence, plea taken by the OP no.1 has no force.

14.           Hence, keeping in view the abovesaid discussion, facts and circumstances of the case, we are of the considered view that the act of the OP no.1 amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which otherwise proved genuine.

15.           The next question, which falls for consideration before us is that whether the complainant is entitled for Rs.3,45,671/- as claimed and Rs.1,77,423/- which has been assessed by the surveyor?

16.           As per the survey report dated 05.09.2018 Ex.OP6, the loss has been assessed by the surveyor of the OP as Rs.1,77,423/-but complainant claimed Rs.3,45,671/-. Hence, the report of the surveyor will prevail. In this regard we are relying upon the authority 2(2008) CPJ paged 182 (NC), United India Insurance Co. Vs. Maya, wherein it has been held that a surveyor report should not be dismissed summarily as the surveyor is independent and qualified person under the relevant provision of Insurance Act, 1938. In view of this authority as well as the facts and circumstances of the case, we are of the considered view that the OP no.1 is liable to pay the loss assessed by the surveyor alongwith interest and litigation expenses.

17.           In view of the above discussion, we partly allow the present complaint and direct the OP no.1 to pay Rs.1,77,423/- to the complainant alongwith interest @ 9% per annum from the date of repudiating of the claim till its realization. We further direct the OP no.1 to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:04.08.2021

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)

     Member