Haryana

Karnal

CC/78/2019

Satish Kumar - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Rishi Chalia

02 Dec 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                         Complaint No. 78 of 2019

                                                          Date of instt.12.02.2019

                                                          Date of Decision 02.12.2021

 

Satish Kumar, aged 57 years, son of Shri Dwarka Dass resident of House no.3262, Old Anaj Mandi, Nissing, District Karnal. Adhaar no.583646812113.

 

                                                 …….Complainant.

                                              Versus

 

1.     The New India Assurance Company Limited, G.T. Road, Karnal through its Divisional Manager. (Insurer of the car no.HR-05-AH-2568)

 

2.     M/s Bhatia Motors, ITI Chowk, Karnal through its partner Shri Rajesh Bhatia.

 

                                                                      …..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 Rishi Chalia, counsel for complainant.

                   Shri Parveen Daryal, 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 got insured his car bearing registration no.HR-05-AH-2568 with the OP no.1, vide policy no.35360931170100001794, valid from 04.02.2018 to 03.02.2019. The policy was a comprehensive/package policy and it was insured for Rs.3,28,500/- as IDV of the said vehicle. On 16.03.2018 the complainant brought his car to the Bhatia Motors, ITI Chowk, Karnal i.e. OP no.2 for its service. The owner of the workshop told to the complainant to take back said car tomorrow i.e. on 18.03.2018. In the early morning of 18.03.2018 the 32 vehicles alongwith the car of complainant stood in the workshop have totally burnt due to heavy electric shock of the high voltage wire.  In this accident the car alongwith other vehicles got burnt/damaged extensively and in this regard  matter was reported to the police of Police Post Model Town Karnal, vide DDR no.12 dated 18.03.2018. The said vehicle is a total loss and beyond its repair. Fire Brigade came there and they put off the fire. The complainant intimated the OP no.1 in this regard and submitted all the relevant documents. A surveyor was appointed by the OP no.1, who inspected the vehicle and also obtained all the relevant documents from the complainant. The officials of the OP no.1 assured the complainant that claim of the vehicle will be settled as early as possible but thereafter started lingering the matter on one pretext or the other and till date the claim of the complainant has not been released. Thereafter, complainant visited the office of OP no.1 so many times and requested to release the genuine claim of the complainant but OP no.1 flatly refused to accede the request of complainant and lastly repudiated the claim of the complainant on the false and frivolous grounds. In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.

2.             On notice, OP no.1 appeared and filed its written version, raising preliminary objections with regard to locus standi; maintainability; estoppal and concealment of true and material facts. On merits, it is pleaded that the claim of the complainant was rightly repudiated, vide letter dated 17.10.2018 as same was not covered under the terms and conditions of the policy. Vehicle in question had been given by the insured to Bhatia Motors for accidental repair. It means Bhatia Motors and insured are deemed to have entered into a contract and therefore the garage owner shall become liable for any such loss whilst the vehicle was in the custody at the time of occurrence of the said fire. The motor insurance policy does not cover the liability of garage owner. The owner of the vehicle has a right to recover damage if any contributed by garage owner or his employees whilst the vehicle is lying or used tested by garage workers. As per Motor Insurance Policy, insurance company shall not be liable in respect of any claim arising out of contractual liability as per general exclusion claim no.2. Thus, claim of the complainant has rightly been repudiated. Hence there is no deficiency in service on the part of the OP no.1. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Despite notice, OP no.2 did not appear and proceeded against exparte, vide order dated 02.04.2019.

4.             Parties then led their respective evidence.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A, repudiation letter Ex.C1, insurance policy Ex.C2, copy of Registration Certificate Ex.C3, report of fire brigade Ex.C4,  copy of DDR Ex.C5 and closed the evidence on 14.01.2020 by suffering separate statement.

6.             On the other hand, OP no.1 tendered into evidence affidavit of A.K.Bhola Sr. Divisional Manager as Ex.OP1/A, copy of investigation report Ex.OP1, investigation report dated 04.09.2018 Ex.OP2, repudiation letter dated 17.10.2018 Ex.OP3, copy of policy Ex.OP4, copy of terms and conditions of the policy Ex.OP5 and closed the evidence on 13.10.2021 by suffering separate statement.

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

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant got insured his vehicle bearing registration no.HR-05-AH-2568 with the OP no.1. On 16.03.2018 complainant brought his vehicle to OP no.2 for its service. On 18.03.2018 the thirty two vehicles alongwith the vehicle of complainant stood in the workshop of OP no.2 have totally burnt due to heavy electric shock of high voltage wire. The complainant informed the OP no.1 and surveyor of the OP no.1 had come and inspected the vehicle and found the vehicle, as total loss. Complainant completed all the formalities and submitted the required documents with the OP no.1 but OP no.1 did not pay the claim and repudiated the same.

9.             Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued  that 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.” The garage owner becomes legally liable due to the fact that he has taken vehicle as, good interest, for repair work. Even a vehicle parked in a garage over night will also cause the liability of garage owner. The motor insurance policy does not cover liability of garage owner and owner of the vehicle as a right to recover damages if any contributed by the garage owner or its employees which was lying in garage or used, tested by garage workers so loss is not payable due to gross violation of term and conditions of the policy.

10.           The claim of the complainant was repudiated by OP no.1, vide letter Ex.C1/Ex.OP3, on the ground that vehicle in question was lying in Bhatia Motors Karnal where fire caught in workshop due to electric shock. The motor insurance policy excludes the losses under contractual liability which is the general condition/exclusion no.2 of Motor Insurance policy i.e “The company shall not be liable under this policy in respect of any claim arising out of any contractual liability.”

11.           The moot question involved in the present complaint is that whether the claim of the complainant falls under “contractual liability” with the garage owner of M/s Bhatia Motors, or not ?

12.           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.

13.           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 authority relied upon by the learned counsel for complainant is applicable to the facts of the present case, whereas the authority relied upon by the OP no.1 does not applicable to the facts of the present case. As in the present case the complainant parked its vehicle in the garage for repairing with M/s Bhatia Motors and at that time, nothing was charged by the M/s Bhatia Motors from the complainant. Moreover, during the course of investigation, Bhatia Motors was not found negligent at any point of time.  The happening of fire was beyond the control of M/s Bhatia Motors. Furthermore, the relation of M/s Bhatia Motors 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 M/s Bhatia Motors, as the present case does not fall under the category of “contractual liability.”

14.           Admittedly, vehicle in question caught fire during the subsistence of the insurance policy. It is also admitted in that incident, thirty two (32) vehicles had been burnt. A DDR Ex.C5 was got lodged by the owner of the workshop on the same day. The insurance company, on intimation having been given to them, appointed a surveyor and also an investigator to carry out survey/investigation in the matter. During the spot survey and investigation, it was found that the vehicle in question was totally burnt.

15.           The surveyor/investigator of the OP no.1 also came to the conclusion that on 18.03.2018 at about 3.00 a.m. due to short circuit fire had taken place in Bhatia Motors Karnal and 32 vehicles had burnt.

16.           The police investigated the matter and came to the conclusion that the said incident was occurred all of sudden and there was no fault of anyone. From the fire brigade report Ex.C4 it has also been proved that due to fire many vehicles had burnt.

17.           Keeping in view the ratio of the law laid down in the abovesaid  authorities and the facts and circumstances of the present complaint, 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 one.

18.           As per the insurance policy Ex.C2/Ex.OP4, the Insured Declared Value (IDV) of the vehicle in question was Rs.3,28,500/- Thus, complainant is entitled for the same alongwith compensation for harassment and litigation expenses.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.3,28,500/- (three lakhs twenty eight thousand five hundred only) i.e. Insured Declared Value (IDV) of the vehicle to the complainant with interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP no.1 to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expense  This order shall be complied within 45 days from the receipt of copy of this order. Complainant is also directed to get transfer the RC of the vehicle in question in the name of concerned insurance company. The parties concerned be communicated the order accordingly, and the file be consigned to the record room, after due compliance.

Dated:02.12.2021

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

(Vineet Kaushik)       

                           Member