Punjab

Rupnagar

CC/15/56

Kulwant Singh - Complainant(s)

Versus

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

Sh.Lachhmi Singh chadel Adv.

04 Dec 2015

ORDER

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Kulwant Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986  (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-

i)       To pay Rs.2,90,000/- towards loss of rent of the truck in question,

 

ii)      To pay an amount of Rs.1,07,200/- paid to the Bank towards installments,

 

iii)     To Rs.50,000/- as compensation for the mental as well as physical harassment caused to him,

 

iv)     To pay Rs.30,000/- as the costs of the present proceedings,

 

v)      To pay interest on the above said amounts @ 12% P.A. w.e.f. the date of accident till realization,

 

vi)     To grant any other relief, which this Forum may deem fit, in the interest of justice.

 

 

2.                 In brief, the case of the complainant is that he is the owner of tipper bearing No.PB-65-X-3301 and by running the same on rent, he is earning his livelihood by means of self employment. Except that he is doing no other work. He has got the said tipper insured from the O.P. No.1 through its agent i.e. the O.P. No.4 vide policy No.12140431140110000635 for the period from 31.7.2014 to 30.7.2015. At the time of issuance of Insurance Policy the officials of the O.P No.1 & the O.P. No. 4 had told him that the said policy was a cash less policy and in case of any claim, he would not have to pay any amount and that the amount of claim would be paid by the O.P. No.1 directly to the agency from where the vehicle would be got repaired. However, the tipper in question met with an accident on 27.1.2015 at about 11.00 AM at TDI City at Landran, District Mohali. He informed about the same to the O.P. No.1, who deputed Er. G.S. Riar, as surveyor, for conducting the spot inspection. The said surveyor inspected the tipper at the spot & prepared report and on his instructions, the tipper was removed & taken to Pasco Motors i.e. the O.P. No.2, on 28.1.2015.  The above said surveyor had told him that the O.P. No.2 is on the panel of the O.P. No.1 and he need not to pay any amount to it for repair of the said tipper. Accordingly, he requested the O.P. No.3 to start the repair work as the said tipper was the only source for earning his livelihood. He also told  the O.P. No.3 that he had taken a cashless policy of the said tipper and at the time of its inception, it was told that O.P. No.2 would not charge anything from him, but inspite of that the O.P. No.3 refused to start the repair work and asked him firstly to deposit Rs.30,000/-. As such, he approached the officials of the O.P. No.1 and requested them to direct the officials of the Pasco Motors to start the repair work of the tipper. The officials of the O.P. No. 1 put off the matter on one pretext or the other and in this way, passed about 10 days and even thereafter, refused to entertain his genuine request. Under the said conditions, he had to deposit Rs.30,000/- with the Pasco Motors. He was further forced to pay Rs.30,000/-, which was paid vide cheque No.468856 dated 4.2.2015.  Pasco Motors completed the repair work on 13.3.2013, but did not deliver the tipper to him, and asked him, first to clear the repair bill. He again approached the officials of the O.P. No. 1, but they refused to listen him and forced to pay the repair bill to the O.P. No.2. The Pasco Motors had delivered him the tipper only on 2.4.2015. He had to pay the above said amount of Rs.1,60,000/- to Pasco Motors from his own pocket, inspite of the fact that the insurance policy in question was a cash less policy. It is further stated that he runs the tipper in question on rent and used to charge rent of Rs.10,000/- per day. Due to starting of repair work of the tipper late by 10 days and thereafter, non-delivery of the same for about 19 days, he has suffered a loss of Rs.2,90,000/- for the said total 29 days. He had purchased the tipper after taking loan from HDFC Bank, as such, he has to pay Rs.53,600/- as installment of the truck every month. On account of non-plying of the tipper for about two months, he had paid Rs.1,07,200/- towards installments of loan to the Bank from his own pocket. It is stated that there is deficiency in service on the part of all the O.Ps. Hence, this complaint.

 

3.                 On being put to notice, the O.P. No.1 filed written version taking preliminary objections; that the complainant has no cause of action and no locus standi to file the instant complaint against the answering O.P.; that it is not maintainable against the answering O.P.; that this Forum has no jurisdiction to entertain & try the same; that there is no deficiency in service on the part of the answering O.P. and that the complaint has not been verified as per the law, as such, the same is liable to be dismissed on this score alone. On merits, it is admitted that the complainant is owner of the tipper bearing No.PB-65-X-3301; that the said tipper was insured with the O.P. No.1; that it met with an accident and on receipt of intimation about the same, a surveyor was deputed by it and that the tipper was taken to Pasco Motors for its repair. It is stated that the period for repairing the tipper was to be decided by the Pasco Motors and the answering O.P. was nothing to do in that respect. It was to make  payment of the amount to the repairer,  as per the terms & conditions of the policy and accordingly, it had made payment of Rs.2,77,309/- to the O.P. No.2, after completing the formalities, within a reasonable time and the balance amount was to be paid by the insured. It is further stated that the answering O.P. is not responsible for the alleged delay caused in repair of the tipper and that as per the terms and conditions of the policy, it is not its liability to pay any consequential damages. It is further stated it is the responsibility of the complainant to make payment of the installments of the loan amount, for which the answeriung O.P. is not responsible in any manner. It is stated that in the instant case, the date of loss was 27.1.2015 and the surveyor was deputed on 31.1.2015 and the final report was received by Branch office, Ropar, on 16.3.2015. The load carried was not defined in the load challan submitted by the complainant, as such, the answering O.P. deputed Sh. Shingara Singh, an independent surveyor, on 20.3.2015, who submitted his report on 25.3.2015 to the effect that the sand loaded in the vehicle was over loaded by 14% at the time of occurrence of loss. Thereafter, the file was sent to the Divisional Office, duly recommended, on 27.3.2015, which was received back on 1.4.2015 and on the same date mail was sent to the repairer i.e. M/s Pasco Motors to release the vehicle on cashless basis after completing necessary formalities and the payment on non standard basis for Rs.2,77,309/- was paid by the answering O.P. to Pasco Motors. Hence, there is no deficiency in service on the part of the answering O.P. and the complaint filed against it, being without any merit, be dismissed with costs.

 

4.                The  O.Ps.  No.  2 to 4 filed a separate written version taking preliminary objections; that the complaint is not maintainable as the complainant does not fall within the definition of ‘consumer’ as envisaged in Section 2(1)(d) of the Act because he had purchased the tipper in question purely for commercial purpose as he is running the business of transport and is not using the same for self-employment or for earning his livelihood, as such, the present complaint is not maintainable before this Forum. On merits, it is stated that the complainant had used the tipper negligently by overloading the same. Moreover, he was not driving the same himself, at the time of accident. He had employed drivers and cleaners for driving, maintenance and operation of the said tipper, as such he does not come under the definition of ‘consumer’ as per the Act. It is denied that the O.P. No. 4 is the agent of the insurance company. It is stated that the complainant and the O.P.No. 1 are bound by the terms and conditions of the insurance policy in question and the answering O.Ps have no role whatsoever, to play, in  connection with the said policy. The insurer and the insured are to comply with the terms & conditions of a cashless policy and in case of any breach of its terms & conditions, the owner of the vehicle had to pay the repair and maintenance bills to the O.P.No. 1. The tipper in question was parked in the premises of the O.P. No. 1 by the complainant of own, with his free & sweet will. On 28.01.2015, he was told to produce the relevant valid papers of the tipper in question i.e . RC, route permit and the copy of DDR/FIR lodged with the Police Station, where the accident took place and he promised to produce the same within 2 days, but he did do so. After two days, he came to the office of the O.P. No. 1 and provided the documents, which were incomplete. Accordingly, the O.P. No. 1 told him that without valid & relevant papers, the claim would not be passed by the insurance company, therefore, he should either provide the valid & relevant papers or deposit Rs.30,000/- so that repair work of the tipper could be started. He showed his inability to provide the relevant papers and requested the O.P. No. 1 to start the repair work, saying that he would deposit Rs.30,000/- on or before 5.2.2015. On 4.2.2015, he deposited Rs.30,000/- with his free & sweet will, without any undue influence or pressure, as he had proper knowledge that the insurance company would not pass the claim as he was not having relevant & valid documents, at the time of accident. The repair work was completed on 12.3.2015 and the complainant was informed to take its delivery after making payment of the repair bill As the insurance company had refused to make payment of the amount of Rs.160000/-, the complainant had paid the said amount of Rs.160000/- on 2.4.2015 and took delivery of the tipper in question. He was duty bound to make payment for the work done by the answering O.Ps. He himself was negligent in making payment of the said amount for a period of 20 days. Further the answering O.Ps. are not liable for default in making payment of the installments of the loan amount to the bank in respect of the said tipper because it is the complainant who was to honour the commitment made by him with the bank at the time of taking the said loan. There is no deficiency in service on the part of the answering O.Ps. and they have been unnecessarily dragged into this litigation, as such, the complaint be dismissed with costs being without any merit.

 

5.                On being called upon to do so, the learned counsel for the complainant tendered his affidavit as Ex. C1, photocopies of documents Ex.C2 to Ex.C8 and close the evidence. On the other hand, the learned counsel for the O.P. No. 1 tendered affidavit of Sh. Rakesh Chopra, Branch Manager, Ex.OP11, photocopies of document Ex.OP1 to OP10, Ex. OP12, whereas the learned counsel for the O.P. No.2 tendered affidavit of Sh. Amit Arora, General Manager, Ex. OP2/1, photocopies of documents Ex. OP2/2 to OP2/4 and closed their respective evidence.  

 

6.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

7.                At the outset, the learned counsel for the O.Ps. No. 2 to 4 raised the objection that the complainant does not fall within the definition of ‘consumer’ as he is running a business of transport and had purchased the vehicle in question for plying it for commercial purpose. To ply the said tipper, he had employed a driver and a cleaner. At the time of accident, he himself was not driving the tipper in question; rather it was being driven by his employed driver. To this effect the learned counsel for the complainant submitted that from the very beginning the stand of the complainant is that he is the owner of the tipper in question and is plying it on rent for earning his livelihood by means of self-employment and except that he is doing no other work, therefore, he is a consumer and the objection raised by the counsel for the O.Ps. No. 2 to 4 is without any force.

                   In order to prove this fact that the complainant is running a business of transport and had purchased the tipper in question for commercial purpose, no document has been produced on record by the O.Ps. No.  2 to 4. Thus, in the absence of any documentary evidence, we do not find any force in the objection raised by the said O.Ps., hence, rejected.

 

8.                Now coming to the merits of the case, the learned counsel for the complainant submitted that the complainant took his accidental tipper for its repair to Pasco Motors i.e. O.P. No.2, and told to its Works Manager i.e. the O.P. No. 3 that the tipper in question was duly insured under cash less policy, but he refused to start the repair work and asked him first to deposit a sum of Rs.30,000/-  for the said purpose. Thereafter, he approached official of the insurance company and requested to ask the official(s) of the Pasco Motors for doing the repair work without charging any amount from him, but the insurance company, inspite of lingering on the matter, for a period of 10 days, did nothing. As such, he had to deposit a sum of Rs.30,000/- with the O.P. No. 2. Thereafter, he was also forced to pay another sum of Rs.30,000/-, which was paid by him on 4.2.2015. Nodoubt, the Pasco Motors did the repairs work on 13.3.2015, but refused to deliver him the tipper until he clears the repair bill. As such, he was forced to pay in total a sum of Rs.1,60,000/- from his own pocket and it was thereafter, that the O.P. No. 2 delivered the tipper in question to him on 2.4.2015 i.e. with a delay of 29 days. Since the complainant was plying the said tipper on rent and used to earn a sum of Rs.10,000/- as rent per day, as such, he suffered a loss of Rs.21,90,00/-.  Not only this, he had to pay a sum of Rs.1,07,200/- from his own pocket to the bank towards installments of loan. The O.Ps. are, thus, liable to compensate him, for the loss suffered by him due to delay caused in repair of the tipper. Not only this, they are also liable to pay compensation on account of mental agony & physical harassment suffered by him alongwith litigation expenses.

 

9.                The learned counsel for the insurance company i.e. O.P. No.1 submitted that on receipt of intimation regarding the loss, on 27.1.2015, a surveyor was duly appointed on 31.1.2015, whose report dated 13.3.2015 (Ex.OP9) was received by the Ropar branch office, on 16.3.2015. The said surveyor assessed the loss for a sum of Rs.3,83,746.38, but in Note (e) appended to the said report, it has been mentioned that the spot surveyor had mentioned that the vehicle was loaded with 25 tons of sand, whereas it should not be as the gross weight of the vehicle is 25 tons. Since the load carried was not defined in the load challan submitted by the insured/complainant, therefore, in order to know the actual loaded weight of the vehicle in question, at the relevant time, another independent surveyor, namely, Sh. Shingara Singh was deputed, on 20.3.2015, who submitted his report on 25.3.2015, on the basis of GR No.2881 dated 26.1.2015(Ex.OP-10) issued in the name of the complainant regarding the vehicle in question, according to which, weight of the load was 450 cft, which came to be 16128 Kgs. The learned counsel further submitted that in the R.C. (Mark-‘A’) of the vehicle in question, Gross Weight of the said vehicle has been mentioned as 25000 kgs and unladen weight has been mentioned as 10780 kgs. As such, the total load carrying capacity of the said vehicle was 14220 kgs., whereas it was carrying load of 16128 Kgs. It means, it was overloaded by 1908 Kgs. i.e. by 14%.  After receipt of above said report dated 25.3.2015 of Sh. Shingara Singh, on 27.3.2015, the file was sent to the Divisional office, which was received back on 1.4.2015, after sanctioning of an amount of Rs.2,77,309/- on non-standard basis and on the same day, mail was sent to the repairer i.e. Pasco Motors to release the vehicle on cashless basis after completing formalities and the payment on non-standard basis for an amount of Rs.2,77,309/- was paid to the Pasco Motors, as per terms & conditions of the policy. Therefore, for the aforesaid reasons, the delay in repair is not attributable to the O.P. No.1 and as such, it cannot be held deficient in rendering service, in any manner. Even as per terms & conditions of the policy, it is also not liable to indemnify the insured for the consequential damages, as claimed by him. Consequently, the complaint qua it is liable to be dismissed with cost. 

 

10.              The learned counsel for the O.Ps. No. 2 to 4 submitted that the complainant had brought the tipper in question, on 28.1.2015, and told that he was having a cashless policy qua said tipper and asked to repair the same on cash less basis. It was told to him that in order to avail benefit under the policy on cashless basis, he should produce the relevant valid papers, but he provided incomplete papers that too after a period of 4 days. Then he was told that without valid & relevant papers the insurance company will not pass the claim, as such, he was asked either to provide complete papers or to deposit Rs.30,000/-, but he had shown his inability to provide the complete papers and requested to start the repair work and promised to deposit the sum of Rs.30,000/- on or before 5.2.2015 and on 4.2.2015, he deposited the said amount. After repairing the said vehicle a bill (Ex.OP2/3) was raised to the tune of Rs.4,33,188 and approval for payment of the claim amount in the sum of Rs.2,77,309/-  was  received through email(Ex. OP-5) from the insurance company. After receipt of payment of Rs.1,60,000/- from the complainant, delivery of the vehicle was given to him on 2.4.2015. A sum of Rs.2,77,309/- was received from the insurance company on 19.7.2015 vide payment voucher, Ex. OP-1. From the aforesaid facts, it is apparent that the complainant himself was responsible for the delay occurred in repairing the vehicle and he cannot blame the Pasco Motors for the same. There being no deficiency in service on the part of the O.Ps. No. 2 to 4, the complaint filed qua them is liable to be dismissed with costs.

 

11.              The question that arises for determination is as to whether the O.Ps. were responsible for the alleged delay of 29 days in repair of the vehicle in question?

                    From the perusal of report dated 13.3.2015(Ex. OP-9), submitted by Er. G.S. Riar, surveyor & Loss Assessor, it is evident that he has assessed the loss to the tune of Rs.3,83,746.38. However, in clause No. (e) under the heading note, he has mentioned that the vehicle was loaded with 25 tons of sand whereas it should not be as the gross weight of the vehicle is 25 tons. From the copy of RC (Mark-A) of the vehicle in question, it is evident that gross weight and unladen weight of the said vehicle mentioned therein is 25000 kgs. & 10780 Kgs. respectively, as such, its sanctioned loading capacity was 14220 kgs. only. As per GR No.2881 Ex. C2/OP-10, the sand loaded in the said vehicle was 450 cft, which on calculation came to 16128 kgs. as calculated by Er. Shingara Singh, vide Ex.OP2. Thus, it is proved on record that the vehicle in question was overloaded by 1908 kgs. i.e. by 13.41% and the O.P. No.1, after considering the reports submitted by the surveyors had sanctioned an amount of Rs.2,77,309/- on non-standard basis as per clause No.9 of the guidelines dated 3^rd January, 2013 (Ex.OP-7) regarding sanctioning of claim in case of overloaded vehicle beyond licensed carrying capacity. Nodoubt, the policy in question taken by the complainant from the O.P. No.1 was a cashless policy, but the said facility was to be provided as per the terms & conditions of the policy. It may be stated that the load carried in the vehicle in question was not defined in the load challan and the surveyor in his report (Ex. OP9) in clause No. (e) under the heading note, has clearly mentioned that the vehicle was loaded with 25 tons of sand whereas it should not be, as the gross weight of the vehicle was 25 tons, therefore, the O.P. No.1 had to get the actual loaded weight assessed and the load carried in the vehicle in question was found to be more than the sanctioned capacity. On knowing this fact, the O.P. No.1 assessed the claim amount as per terms & conditions of the policy, and intimated the O.P. No. 2 to repair the vehicle in question, accordingly, the O.P. No.2 repaired and handed over the same to the complainant. The above said process took time of 29 days, in repair of the vehicle, and none of the O.Ps. can be held responsible for the same, as none of them caused delay in repair, purposely, as alleged by the complainant.

 

12.              In view of the aforesaid discussion, we do not find any merit in the complaint and consequently, dismiss the same, with no order as to costs.

 

13.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated: 04.12.2015                                                PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.