Cases and Materials on Consumer Law

 

CMCL 105 STATE COMMISSION CONSUMER PROTECTION UTTARANCHAL, DEHRA DUN

HON'BLE JUSTICE K.D. SHAHI, PRESIDENT SURENDRA KUMAR, MEMBER & MS. LUXMI SINGH, MEMBER The New India Assurance Co. Ltd. -Appellant Versus M/s Hotel Aketa (P) Ltd. -Respondent Appeal No. 102/2005 Decided on 22.6.2005

Consumer Fora-Maintainability of complaint-Plea that remedy of arbitration is available-Held-Arbitration proceedings are no bar to consumer disputes and therefore the complaint shall be before consumer fora- Act is an additional remedy. [Para-5]

Insurance-Claim for compensation-Allowed by forum-Validity of- Appreciation of evidence-Building and accessories are insured-Damaged due to earth quake-Articles insured on the same amount for last so many years-Claimed amount on the basis of Govt. approved civil engineer's re-port-Work done completed on own cost after inviting tenders and paid amount established-Invited insurance on every stage but none respond- Insurance assessed a meager amount and deposited before fora-Consid-eration of-Held-Report of civil engineer is more authentic and reliable- Found no infirmity in the impugned order-Appeal has got no force-Dis-missed accordingly. [Para-6 to 8]

Case Referred :

1.          2003 (II) CPC 539, General Manager, Telecom BSNL Vs. Krishnan

2.           1986-2002 Consumer 5677 (NS), M/s National Insurance Co. Ltd. Vs. M/s Agarwal Watch House

 

Counsel :

Advocate for Appellant : Sh. Manoj Kohli

Advocate for Respondent : Sh. Vinod Kumar Singhal

JUDGMENT

Delivered by Sri Surendra Kumar, Senior Member- This is an appeal against the order dated 17.02.2005 passed by the District Forum, Dehra Dun whereby the complaint of the complainant was allowed and the appellant was directed to pay a sum of Rs.3,19,533/- to the complainant after adjusting Rs.58,467/- from Rs.3,78,000/

- along with interest @9% from 17.08.1999 till the date of payment and further to pay interest on Rs.58,467/- from 17.08.1999 to 11.08.2002. The complainant was also allowed costs of Rs.3,000/-.

1.      The brief facts of the case are that the complainant M/s Hotel Aketa (P) Ltd. got their building along with the elevator and cooling tower etc. insured with the opposite party vide policy No. C.N.068877 dated 16.03.1999. It is alleged that the building of the hotel, elevator and cooling tower were damaged due to earthquake on 29.03.1999, which was informed to the opposite party on 30.03.1999. It is al­leged that a detailed estimate of loss and damages was submitted to the insurance company after getting the same approved by a Govt. Approved Valuer Lt. Col. S.K. Makan vide his report dated 02.04.1999. The estimate regarding damage of eleva­tor was also submitted to the opposite party vide letter dated 06.04.1999 which was given by Otis Elevator Co. India Ltd., New Delhi for Rs.49,800/-. The complainant submitted the claim of Rs.3,89,800/- to the opposite party on 16.04.1999. Surveyor Sh. B.B. Garg was appointed. The complainant vide its letter dated 24.04.1999 asked for appointment of another Surveyor and Assessor who has got full knowledge of technicalities of civil engineering and construction of building. The complainant also informed the opposite party that it is inviting tenders through local newspaper re­garding all this damage and also said that if the opposite party is interested in get­ting the work done, it has got no objection in that. Thereafter the complainant in­vited tenders through Doon Darpan Newspaper on 30.04.1999 and a copy of this newspaper was submitted to the insurance company on 04.05.1999. The advertise­ment of the complainant was published in the newspaper on 30.04.1999 and in re­sponse to the said advertisement, it received a tender of M/s Otis Elevator Co. Ltd., Dehra Dun of Rs.49,800/- regarding repairs of elevator and it also received four ten­ders regarding the repairs of building. Regarding repairing of building, the tender of Sh. K.A. Siddiqui was lowest and therefore the complainant allotted the work of re­pairs of building to them. The complainant vide its letters dated 20.05.1999 & 21.05.1999 informed the opposite party and also its surveyor that the work of re­pairs shall start from 22.05.1999 and vide its letter dated 27.07.1999 informed the opposite party that the repair work has finished. The complainant received a letter from the insurance company on 21.09.1999 that his claim has been allowed for Rs.58,467/- only. The complainant also sent a notice to the opposite party. There is deficiency in the services of the opposite party and therefore the complainant filed the complaint before the Learned Forum.

2.     The opposite party, insurance company filed written statement and alleged

 

that the estimate given by the complainant is on the higher side. Sh. B.B. Garg, sur­veyor has got full knowledge regarding damages in the hotel of the complainant. The claim of the complainant has rightly been settled for Rs.58,467/-. The insurance com­pany is not liable to pay Rs.3,78,800/- to the complainant. The complainant has not completed the formalities regarding payment of Rs.58,467/-. A sum of Rs.58,467/-was proposed to the complainant on 09.09.1999 but the complainant did not sign the discharge voucher. The notice of the complainant was duly replied. The claim has rightly been assessed. The complaint is not maintainable. If there is dispute re­garding amount of damages, that can be decided through Arbitration. The Forum has got no jurisdiction to hear the complaint.

1.      The Learned Forum after taking the evidence of the parties and hearing them allowed the complaint, against which order the present appeal has been filed.

2.       We have heard the Learned Counsel for the parties and gone through the records. The insurance is admitted. The complainant submitted the claim for Rs.3,78,800/- to the insurance company but the insurance company allowed only claim of Rs.58,467/-. The insurance company deposited the amount of Rs.58,467/-before the Learned Forum on 12.08.2002. The insurance company alleged that the dispute between the parties is regarding quantum and that should be decided only through arbitration. The remedy provided under the Consumer Protection Act is an additional remedy. It is settled principle of law that arbitration proceedings are no bar to consumer disputes and therefore the complaint shall lie before the Consumer Fora. It has been definitely held in the case of Udaipur Cement Works Vs. Punjab Water Supply and Sewerage Board reported in 1999 (I) CPJ 67 (NC), that mere existence of an arbitration clause should not come in the way of an aggrieved party from seeking legitimate relief under the Consumer Protection Act which is special piece of Legislation to protect the interests of the consumers notwithstanding the other laws in force. The same view has been given by the Kerala High Court in a full bench case reported in 2003 (II) CPC 539, General Manager, Telecom BSNL Vs. Krishnan, wherein it has been held that existence of alternative remedy is no bar to a consumer case. The opposite party in para 25 of its written statement alleged that the loss sus­tained by the complainant was duly assessed to a sum of Rs.58,467.26/-, which was duly offered to the complainant on 09.09.1999. The complainant has not submitted the discharge vouchers duly signed by him. Sh. Suresh Duseja in para 7 of his affi­davit dated 07.09.2000 said that it is not admitted that the complainant paid a sum of Rs.1,70,000/- to Sh. K.A. Siddiqui on 16.07.1999. It is also not admitted that he had paid a sum of Rs.1,58,000/- to him on 17.03.2000 in respect of the repair work carried out by him in the said building. In para 9 of his affidavit he has alleged that it is not mentioned whether the amount was paid in cash or through cheque. The letter dated 17.04.1999 of surveyor Sh. B.B. Garg has been filed in which he has specifically written to the complainant that "please intimate me too whilst the repairs jobs of building will be got carried out by you, so as to enable me to have the de­tailed inspection of the same". In his survey report dated 16.08.1999 he has admit­ted the damage to the building due to earthquake in the night of 28th and 29th March 1999. At page 2 of his report, he has disclosed that the property was insured for Rs.70.00 lacs from 16.03.1999 to 15.03.2000. The Learned Counsel for the appel­lant advanced the argument that there is a clause of under insurance in the policy

 

but there is no such mention in the policy. Even otherwise it was informed by the Learned Counsel for the complainant that for several years the insurance was being done on similar valuation but never such an objection was raised, therefore for this reason there cannot be proportionate deduction in compensation. The complainant filed the affidavit of Sh. Satya Prakash Goyal, tender dated 07.05.1999 and other papers before the Learned Forum. The complainant also filed the report of Lt. Col.

S.K. Madan dated 02.04.1999 in which he assessed the damages of Rs.3,39,000/-.The complainant also filed the documents pertaining to payment made to Sh. A.K. Siddiqui and Form No. 16A, by which he has paid Income Tax to the Income Tax Department. The contractor shall not like to be punished by Income Tax Authorities by not showing this amount in the return only to benefit the complainant.

1.      There is also a letter dated 27.07.1999 in which the complainant has specifi­cally mentioned to the opposite party that the entire scope of repair work to be car­ried out at our unit has been long completed. Please recall the visit of our repre­sentative to your kind self whereupon you had assured to send your surveyor to com­plete all other formalities to settle the claim. More than 45 days have passed since without any further action from your end. It is requested of you to kindly explain the delay & also take steps for quick disposal of claim amount. The payment made to the contractor is established by evidence available on record being filed by the com­plainant. At every stage the complainant has invited the insurance company to par­ticipate in the proceedings to avoid any controversy of false claim, but the insurance company itself did not co-operate.

2.        In our view the report of Lt. Col. S.K. Makan who is an Ex-Superintending Engineer MES and Chartered Engineer is more authentic and reliable in evidence than the report of Sh. B.B. Garg who is an Automobile Engineer and not a Civil Engineer. The complainant was fair enough in requesting the insurance company to appoint any other surveyor of its choice who may be conversant with civil engineer­ing but the appellant did not hear. Sri Makan has clearly mentioned in his report that the repairs to the damage caused to the building shall cost Rs.3,39,000/-. The complainant has filed enough evidence in support of his claim to show that he is bonafidely and honestly entitled to the amount as claimed by him.

3.The Learned Counsel for the appellant referred the ruling reported in 19862002 Consumer 5677 (NS), M/s National Insurance Co. Ltd. Vs. M/s Agarwal Watch House. In this ruling the Hon'ble National Commission allowed 25% deduction as per clause of under insurance. We have already said above that there is no such clause in the policy in this case. Therefore this ruling shall not apply to the facts of the present case. Even otherwise merely by allegations, under insurance cannot be proved. There is no positive evidence of the appellant except the report of Sri B.B. Garg, whose report is not reliable as discussed above.

4.    The net result is that we do not find any infirmity in the order passed by the Learned Forum. This appeal has got no force and is liable to be dismissed.

 

ORDER

The appeal is hereby dismissed. Costs easy.

CMCL 109 STATE COMMISSION CONSUMER PROTECTION UTTARANCHAL, DEHRA DUN

HON'BLE JUSTICE K.D. SHAHI, PRESIDENT SURENDRA KUMAR, MEMBER Sh. Saurabh Trikha -Appellant Versus Counsel for I.C.S.E. and others -Respondents Appeal No. 15/2005 Decided on 21.4.2005

Consumer Protection Act, 1986-Section 15-Education-Claim for compensation regarding delayed issuing marks sheet after revaluation- Dismissed by forum-Legality of-Held-While carrying out function of conducting examination, evaluating answer papers and publishing the results of candidates, the University does not performs any service for consideration and a candidate who appeared for the exam cannot be regarded as a person who had hired or availed services of University for consideration- The complainant was not therefore a consumer and is not entitled to seek any relief under the Act 1986-Complaint dismissed-No merit-Dismissed appeal. [Para-7]

Case Referred :

1.                   III (2003) CPJ 164 (NC), Parveen Rani Vs. Punjab School Education Board

2.                   II (2003) CPJ 7 (NC), Alex J. Rebello Vs. Vice Chancellor, Bangalore University

3.                  I (1994) CPJ 146 (NC), Registrar University of Bombay Vs. Mumbai Grahak Panchayat Bombay

 

Counsel :

Advocate for Appellant : Sh. S.M. Joshi Advocate for Respondent No.1 : Sh. Ambrish Kumar Sharma Advocate for Respondent No.2 : Sh. Manoj Kohli

JUDGMENT

Delivered by Sri Surendra Kumar, Senior Member- This is an appeal against the order dated 07.12.2004 passed by the District Forum, Dehra Dun whereby the complaint of the complainant was dismissed.

1.The brief facts of the case are that the complainant was the student of oppo­site party No.2. He appeared in the examination of Class 12th conduced by oppo­site party No.1 in the year 1999-2000. The complainant deposited the entire tuition and examination fee with the opposite party No.2. He was expecting good marks

and was hopeful of securing high percentage. He was desirous of taking admissions in some of the prestigious colleges of the country. It is alleged that the opposite party No.1 declared the result of Class 12th on 23.05.2000 and received the mark sheet on 27.05.2000. It is alleged that on receipt of the mark sheet the complainant was shocked to note that he has been awarded 49% marks in Commerce. The complain­ant was not satisfied with the marks and he applied for revaluation and deposited a sum of Rs.400/-. It is said that the opposite party No.1 took a long time to carry out revaluation and a fresh mark sheet was issued to the complainant awarding 97% marks in Commerce. The revised mark sheet was received by the complainant on 07.08.2000. It is further alleged that due to delay in receipt of the revalued mark sheet the complainant was unable to apply for admissions in various prestigious in­stitutions of the country, as the last date for admission was July 2000. It is said that the complainant had filed the form for Company Secretary examination in the month of March - April 2000 and applicant securing 55% marks in Economics, Commerce and Accounts in Class 12th can send their mark sheet by June 2000. It is alleged that this is deficiency in service on the part of the opposite party No.1 and therefore he claimed a compensation of Rs.4,75,000/- along with interest @18% p.a. It is al­leged that the complainant was studying in opposite party No.2 and hence it has been made party but no relief has been claimed against the opposite party No.2

2.     The opposite party No.1 filed written statement and alleged that the complain­ant is not a consumer, therefore the complaint is not maintainable and the Forum has got no jurisdiction to try the complaint. The Educational Institutions who conducts examination, checks answer sheets and declares result are not covered under the Con­sumer Protection Act. However it is admitted that the complainant appeared in the examination of Class 12th in 1999-2000. It is alleged that the result was declared on 20.05.2000 and immediately the mark sheets of the students were sent to their schools. It is also admitted that the complainant has been awarded 49% marks in Commerce, but it is alleged that that was due to error of computer. It is said that the opposite party No.1 has sent pass certificate to the school, in which the complainant was given Grade - 1 in Commerce. It is said that the new mark sheet was issued to the com­plainant within 3 days of receipt of old mark sheet from the complainant. The revalua­tion was not found necessary. There is no deficiency in their service.

3.    The opposite party No.2 filed written statement and reiterated the facts of the written statement of opposite party No.1.

4.    After taking the evidence of the parties and hearing them the Learned Forum dismissed the complaint, against which order the present appeal has been filed.

We have heard the Learned Counsel for the parties and gone through the records. It is alleged that the complainant appeared in the examination of Class 12th in the year 1999-2000 in the school of opposite party No.2 which was conducted by opposite party No.1, the result of which was issued by the opposite party No.1 on 23.05.2000. The complainant got 49% marks in Commerce, which was shown in his mark sheet. Thereafter he applied for revaluation and then he was allotted 97% marks and since he received the revised mark sheet about 07.08.2000 and therefore he could not get admission in prestigious institutions of the country because the last date for admission was June 2000 and he also could not appear in Company Secretary ex­

amination. Before the Learned Forum number of rulings were referred by both the parties and the Learned Forum after discussing all those rulings, has held that only imparting of education is covered under the Consumer Protection Act.

The Learned Counsel for the opposite party referred the ruling reported in III (2003) CPJ 164 (NC), Parveen Rani Vs. Punjab School Education Board & Anr. In this ruling mark sheet and certificate of class 12th was delayed. The complainant failed to show the loss sustained. It was held by the Hon'ble National Commission that the services of University / Board are not hired for consideration and the candidate ap­pearing for examination is not consumer. He further referred the ruling reported in II (2003) CPJ 7 (NC), Alex J. Rebello Vs. Vice Chancellor, Bangalore University and Ors. In this ruling the declaration of result was delayed. It was held that the University is not performing any service while conducting examination, evaluating question pa­pers and publishing results. The candidate appearing in exams is not a consumer. In the ruling reported in I (1994) CPJ 146 (NC), Registrar University of Bombay Vs. Mumbai Grahak Panchayat Bombay, it has been held :

"We are clearly of the view that in carrying out its function of conducting the exami­nation, evaluating answer papers and publishing the results of candidates the Univer­sity was not performing any service for consideration and a candidate who appeared for the examination cannot be regarded as a person who had hired or availed of the service of the University for consideration. The complainant was not therefore, a con­sumer entitled to seek any relief under the Consumer Protection Act. "

5.  In view of the fact that the complainant is not a consumer, the Learned Fo­rum was perfectly justified in dismissing the complaint. This appeal has got no force and is liable to be dismissed.

 

ORDER

The appeal is hereby dismissed. Cost shall be easy.

CMCL 111 NATIONAL CONSUMER DISPUTES REDRESSAI COMMISSION NEW DELHI

HON'BLE MR. JUSTICE K.S.GUPTA, PRESIDING MEMBER

Uttaranchal Forest Hospital Trust*

 

-Petitioners

 

Versus

 

Smt. Raisan

 

-Respondent

 

Revision Petition No. 3369 of 2003 Decided on 26.9.2005

Medical Negligence-Claim-Allowed by Forum and upheld by Com-mission-Validity of-Appreciation of evidence-Two reports of biopsy-

*(From The Order Dated 7.11.2003 in Appeal No.27/2003 of the  State Commission, Uttaranchal. Dehradun)

Suggesting cancer in left breast-Operation conducted-Claimed for deficiency in service-Consideration of-Held-Presence of polymorphic as recorded in report was suggestive of cancer-No ground to hold the doctor was negligent or deficient in treating patient-Order is unsustainable- Set aside-Allowed appeal. [Para-9]

Counsel :

Shri Rajiv Kumar, Advocate With Dr. Naveen Sharma for Petitioner

Shri Abdul Mateen, Advocate with Shri J.S. Mehra, Advocate for Respondent

ORDER

JUSTICE K.S.GUPTA, MEMBER : This revision is directed against the order dated 7.11.2003 of Consumer Disputes Redressal Commission Uttranchal, Dehradun dismissing appeal against the order dated 16.10.2001 of a District Forum whereby petitioner/opposite part No.3 alongwith Dr. Rajiv Kumar Sethiya. opposite party No.2 was directed to pay Rs.50,000/- as compensation, Rs. 12.000/- incurred on treatment and cost to the respondent/complainant.

1.  . Facts giving rise to this revision, in brief, are these. Dr. Rajiv Kumar Sethiya, opposite party No.2 was employed as a surgeon with the petitioner trust. On 11.10.1996 the respondent visited the hospital run by the trust as outdoor patient and was examined by opposite party No.2. Opposite party No.2 advised the respond­ent to have test report from a pathologist if the lump in her left breast was cancerous or not. On 12.10.1996 the respondent again visited the OPD with F.N.A.C. report given by Dr. R.C. Pandey, opposite party No. 1. This report testified that respondent had cancer in her left breast. Coupled with clinical finding the opposite party No.2 removed the lump of the responded on 17.10.1996. Mass of the breast removed dur­ing operation was handed over to the respondent for further biopsy report from a pathologist with a view to chart the course of further treatment after operation as removal of lump by surgery itself was not sufficient. It was alleged that thereafter the respondent got the biopsy done from Mehrotra Pathology, Lucknow and the report given by that laboratory suggested that there was no evidence of malignant change. So, alleging negligence and deficiency in service, the respondent filed complaint which was contested by the petitioner and opposite party Nos. 1&2 by filing separate writ­ten versions. District Forum allowed the complaint against the petitioner and oppo­site party No.2 in the manner noticed above exonerating opposite party No.l, pa­thologist. Appeal against District Forum's order filed by the petitioner trust was dis­missed by the State Commission.

2. Submission advanced by Shri Rajiv Kumar for petitioner was that it was not necessary for opposite party No.2 to have got another F.N.A.C. and/or biopsy of the respondent done in view of F.N.A.C. report dated 11.10.1996 of opposite party No.1 and the clinical finding which revealed hard consistency of breast lump and fixity to the breast tissue and adhered overlying skin with lump which were very much in fa­vour of the respondent having breast cancer. He further submitted that both the fora below acted erroneously in placing reliance on the report dated 23.10.1996.of Mehrotra Pathology. Lucknow as Dr. R.M.L. Mehrotra was not examined as a wit­

 

ness despite the order dated 28.6.2001 of the District Forum. Attention was also drawn by him to the extract from Short Practice of Surgery' by Baeily & Love (22nd edition). Discussion under the heading when the diagnosis of carcinoma is in doubt in this book which is material is reproduced below :

"There will always be cases where the clinician cannot be sure whether a par­ticular lump in the breast is an area of mammary dysplasia a benign tumour or an early carcinoma. If there is doubt on either clinical, cytological or radiological examination it is essential to obtain a tissue diagnosis. This is often possible by needle biopsy. In the advent of a negative result, open biopsy of the mass is nec­essary".

1. Copy of the order sheet of the District Forum dated 28.6.2001 is at page 11 while that of 2.7.2001 at page 10. Copy of yet another order sheet of the District Forum dated 14.8.2001 is at page 9. Order dated 28.6.2001 would show that re­spondent was directed to deposit Rs. 1,500 towards traveling and stay expenses of Dr. R.M.L. Mehrotra as his statement was deemed necessary for deciding the com­plaint. Order dated 2.7.2001 would indicate that an application was filed by the re-spondent's counsel that Dr. Mehrotra will be paid the necessary expenses on the date his statement is recorded. On that date summon also was ordered to be issued to Dr. Mehrotra for 23.7.2001. It seems that Dr. Mehrotra sent a letter dated 12.7.2001 to the District Forum expressing his inability to undertake journey from Lucknow to Nainital on the ground of his having diabetes, hypertension and osteo-arthritis in both the knee joints. In the letter request was made to appoint a Local Commission to record his statement at Lucknow. Order of the District Forum dated 14.8.2001 no­tices the filing of application on behalf of respondent that due to weak financial po­sition she is unable to bear the expenses of Local Commissioner to record statement of Dr. Mehrotra. Considering that inability, the District Forum passed the order that complaint will he disposed of on merit on the basis of available evidence. Aforesaid report dated 23.10.1996 was, thus, not supported either by the statement and/or affidavit of said Dr. R.M.L. Mehrotra nor the petitioner and opposite party No.2 had the occasion to challenge the veracity of the conclusion reached in that report. I am. therefore, in agreement with the counsel of petitioner that the said report ought not to have been considered by either of the two fora below in deciding the complaint.

2.   Report dated 11.10.1996 of opposite party No. 1 which finds mention in the affidavits filed by way of evidence of opposite party Nos. 1&2 reads thus :

 

"scanty amount of blood tinged fluid aspirated from the small mobile growth in the left breast. Two smears prepared.

H & E stained smears show :

Clusters of large epithelial cells with overlapping nuclei. Many of the nuclei are dark stained and pleomorphic.

Impression :- Duct carcinoma of the breast should be considered".

         The State Commission was of the view that this report was suggestive and not conclusive of the respondent suffering from breast cancer and OP No.2, thus, should have got another F.N.A.C. and/or biopsy for presence of cancer in left breast

                of respondent done. Similar was the contention advanced by Shri Abdul Matin for respondent. As may be seen from written version and affidavit filed by way of evi­dence by OP No.2 the diagnosis of OP NO.2 in regard to respondent having breast cancer was not solely based on the said report dated 11.10.1996 but also on his clinical finding of the respondent having hard consistency of breast lump and fixity to the breast tissue and adhered overlying skin with lump which were very much in favor of cancer. Presence of pleomorphic as recorded in the said report was sugges­tive of cancer. Considering the said clinical finding, report and extract from Short Practice of Surgery reproduced above, it was not incumbent for OP No.2 to have another F.N.A.C. and/or biopsy of the respondent done. OP No.2 who performed surgery for removal of the effected lump on 17.10.1996, thus, cannot be said to be negligent or deficient in treating the respondent as erroneously held by the fora be­low. Order passed by District forum as affirmed by State Commission, therefore, de­serve to be set aside being not legally sustainable.

2.    Resultantly while allowing appeal, orders dated 16.10.2001 and 7.11.2003 are set aside and complaint dismissed. No order as to cost.

 

CMCL 114

STATE COMMISSION CONSUMER PROTECTION

UTTARANCHAL, DEHRA DUN

HON'BLE SURENDRA KUMAR, ACTING PRESIDENT MS. LUXMI SINGH, MEMBER

New India Assurance Co. Ltd.

 

-Appellant

 

Versus

 

Sh. Narendra Singh Bhandari

 

-Respondent

 

Appeal No. 599/2004

Sh. Narendra Singh Bhandari -Appellant

Versus

New India Assurance Co. Ltd. -Respondent

Appeal No. 20/2005

Decided on 17.5.2005

Vehicle Insurance-Claim for compensation-Allowed by forum according to consent letter-Legality of-Contention that salvage was not transferred to the insurance company hence no payment was made and also consent letter is binding only on the complainant-Justification of-Held-Scope of- Consent letter resulted settlement between both the parties and binding upon both the parties-If there is any settlement between the parties and no amount paid shows clear deficiency in service and therefore complainant is entitled for recovery of whole insurance amount-Modified the order. [Para-6 to 9]


 

 

Case Referred :

1.                2003 (1) UC 514, New India Assurance Co. Ltd. Vs. Sh. Chand Arora

2.                    III (2004) CPJ 16 (NC), United India Insurance Co. Vs. M/s Saurabh Resorts Pvt. Ltd.

3.                  II (2000) CPJ 1 (SC), Ghaziabad Development Authority Vs. Union of India

4.              2003 (2) CPC Page 1 (NC), Satelec Power Electronics Vs. HRDC

5.             2003 (6) CLD (SCDRC - Delhi) Page 201, Rajpal Mahana Vs. National Insurance Co. Ltd.

 

Counsel :

Advocate for New India Assurance Co. Ltd. : Sh. Rahul Sharma

Advocate for Sh. Narendra Singh Bhandari : Sh. Shardul Negi

JUDGMENT

Delivered by Sri Surendra Kumar, Acting President- These two connected appeals arise out of order dated 27.10.2004 passed by the District Forum, Uttarkashi whereby the complaint of the complainant was allowed for recovery of Rs.1,20,000/

- against the insurance company along with interest @9% from 19.07.2002 till the date of actual payment. The insurance company was further directed to pay a com­pensation of Rs.30,000/- to the complainant. The insurance company was also di­rected to take the salvage of the accidented vehicle from the complainant within 15 days of the order and the complainant was directed to co-operate in the transfer of salvage and in its documents to the insurance company.

1.   The insurance company has filed Appeal No. 599 / 2004, New India Assur­ance Co. Ltd. Vs. Sh. Narendra Singh Bhandari for setting aside the order while the complainant has filed Appeal No. 20 / 2005, Sh. Narendra Singh Bhandari Vs. New India Assurance Co. Ltd. for enhancement of compensation amount. In both the appeals, common question of law and facts are involved, therefore both the appeals are disposed off by a common judgment.

        The brief facts of the case are that Sh. Narendra Singh Bhandari (hereinafter called the complainant) is the owner of Ambassador Car No. UP07-H-5183 and he got his vehicle insured with the insurance company (hereinafter called the opposite party) vide policy No.31-8254 for the period from 26.06.2002 to 25.06.2003 for Rs.1,90,000/- and he paid the premium. It met with an accident on 06.07.2002 near Village Dharali. Information was given to the insurance company on 07.07.2002. The insurance company sent its surveyor who surveyed the spot. The insurance company told the complainant to bring the vehicle from the spot to Dehra Dun and there the surveyor will complete the formalities regarding the claim. It is alleged that on 09th and 10.07.2002 the complainant took labourers at the spot and brought the vehicle out from the ditch to the road and brought the vehicle to Dehra Dun workshop in a truck, in which he spent a sum of Rs.7,000/- & 7,500/- respectively. It is further al­leged that when the surveyor of the insurance company did not reach Dehra Dun, then the complainant had to park his vehicle in Akhtar Motors Workshop at Dehra

                Dun on a monthly rent of Rs.1,200/- and the vehicle is still standing in the rented room. On 13.07.2002 the surveyor came to the workshop and he found the vehicle totally damaged and after all the formalities, assured for payment of insurance amount within one month but the amount was not paid. The complainant had to pay tax of Rs.4,372/- to the R.T.O. without any earning. The complainant has suffered a loss of Rs.15,000/- per month and he also had to pay Rs.1,200/- per month as rent of the workshop. The complainant sent a notice on 17.01.2003 to the insurance company through his Advocate, which was not replied and the insurance company did not pay the insured amount. Therefore he filed the complaint.

2.   The insurance company filed written statement and admitted the insurance, receipt of information about accident, appointment of surveyor for investigation and receipt of notice. It is said that what the complainant has done without the consent of the insurance company, he himself is responsible for that and without its consent the complainant took his vehicle to Dehra Dun and parked it in workshop, for which he is himself responsible. It is further alleged that the last survey was done by Sh.

 

B.B. Garg, Mechanical & Automobile Engineer, which made the survey and submit­ted its report to the insurance company. It is said that the surveyor assessed the loss for Rs.1,20,000/-, which included labour charges also. The value of salvage was as­sessed as Rs.50,000/-. During survey, the complainant has submitted his consent let­ter dated 19.07.2002 for this amount but the vehicle was not transferred in favour of the insurance company therefore the consent amount could not be paid. There is no deficiency in service of the opposite party and the complaint is liable to be dismissed.

1.       The parties filed their affidavits and other relevant documents in support of their allegations. The Learned Forum after taking the evidence of the parties and hearing them allowed the complaint as above, against which order both the present appeals have been filed.

2.            We have heard the Learned Counsels for the parties and gone through the records. There has been delay in filing both the appeals but the Learned Counsel for the parties stated that the delay in filing the appeals be condoned and the matter be heard on merits. Therefore we condoned the delay and heard the parties on merits. It is admitted fact that the complainant is the owner of the vehicle. The insurance of the vehicle, accident, its survey by surveyor at the spot and at Dehra Dun is further admitted. The insurance company has further admitted that the information regard­ing the accident was immediately received by it. The insurance company has also admitted that the surveyor found the vehicle totally damaged. It is evident from the consent letter dated 19.07.2002 that the complainant has given his consent for Rs.1,20,000/-, including Rs.50,000/- for salvage. It is further evident from the record that when even after obtaining the consent from the complainant on 19.07.2002, the insurance company did not make the payment, then the complainant filed the complaint before the Learned Forum on 21.03.2003. It is therefore clear that in spite of completing all the formalities by the complainant, the insurance company did not make the payment, therefore this is definitely deficiency in service of the insurance company.

            Now coming to the quantum of compensation, the insurance company has relied upon the consent letter of the complainant and has stated that it is liable only

                to pay Rs.1,20,000/- and the complainant is entitled only to this amount. The con­sent was obtained on 19.07.2002. The complaint was filed on 21.03.2003. When the consent was obtained on 19.07.2002 for Rs.1,20,000/-, there was no justifica­tion for the insurance company to delay the payment of the consent amount. It should have immediately paid the amount to the complainant without any delay. It is fan­tastic to say that the consent letter is not binding on us but is binding on the com­plainant. The consent has been arrived at between the parties. It is fully binding on both the parties. If the insurance company did not make the payment of the con­sent, later on it cannot say that the complainant is entitled only to the amount of consent and he cannot claim more amount than the amount of contest. In this con­text the Learned Counsel for the complainant referred judgment of this Commission reported in 2003 (1) UC 514, New India Assurance Co. Ltd. Vs. Sh. Chand Arora, in which it was held that if there is any settlement between the parties but the pay­ment has not been made, the complainant is entitled to file a complaint for recovery of the whole insured amount. The Learned Counsel for the insurance company re­ferred the ruling reported in III (2004) CPJ 16 (NC), United India Insurance Co. Vs. M/s Saurabh Resorts Pvt. Ltd., in which it has been held that the insurance com­pany was not guilty of any delay in settling the claim and it was held that the com­plainant is entitled only to market value of car at the time of accident estimated in report. In this particular case, the insurance company has obtained consent from the complainant. It is not open to the insurance company after taking the consent, to delay the payment to the complainant.

3.       The survey report dated 08.08.2002 has been filed. The vehicle was admit­tedly insured for Rs.1,90,000/-. It was 1998 model. At page 4 of his report, the sur­veyor has mentioned that the insured besides the estimate concerned of M/s Nafis Dentor, Dehra Dun, amounting to over Rs. 2.30 lacs and later on in which support he had submitted to the Estimate/Quotation No. 0017 dated 22.07.2002 of the Au­thorized Dealer M/s Dee Dee Motors Pvt. Ltd., Dehra Dun, amounting to Rs.2,39,343/

 

- has demanded to the total loss of the vehicle. The position of the case was ex­plained to the Divisional Manager Sh. Neeraj Sharma and thereafter the matter re­garding the assessment of loss was thoroughly discussed too with the insured. Of course by keeping in view the prevailing market trend and other relevant factors, the approximate liability of the insurers on different modes of assessments viz. 'Total Loss Basis', 'Repair Basis' and 'Net of Salvage Basis' are being furnished hereunder for under kind perusal. The vehicle was insured for Rs.1,90,000/-. It was 1998 model and the pre-accident condition of the vehicle was good. Taking into consideration, all the facts and circumstances of the case, we are of the view that the complainant was entitled to a compensation of Rs.1,50,000/-. Therefore the appeal of the com­plainant is to be allowed to the extent that the complainant should get a sum of Rs.1,50,000/- in stead of Rs.1,20,000/-.

Now coming to the appeal of the insurance company, the insurance company has argued that the Learned Forum has allowed interest as well as compensation, both should not have been awarded together.  We also agree to this contention. It is settled principle as held in the rulings reported in II (2000) CPJ 1 (SC), Ghaziabad Development Authority Vs. Union of India, 2003 (2) CPC Page 1 (NC), Satelec Power Electronics Vs. HRDC and 2003 (6) CLD (SCDRC - Delhi) Page 201, Rajpal Mahana Vs. National Insurance Co. Ltd. that the complainant cannot get interest as well as compensation for mental torture and agony. Therefore the order of payment of com­pensation of Rs.30,000/- is to be set aside. Both the appeals are to be decided in the light of observation made above and the order under appeals is to be modified ac­cordingly.

ORDER

1.             Appeal No. 599/2004, New India Assurance Co. Ltd. Vs. Narendra Singh Bhandari is hereby partly allowed and partly dismissed. The order regarding pay­ment of separate compensation of Rs.30,000/- for mental torture & agony is hereby quashed.

2.          Appeal No. 20 / 2005, Narendra Singh Bhandari Vs. New India Assurance Co. Ltd. is hereby allowed to the extent that the complainant shall get a sum of Rs.1,50,000/- instead of Rs.1,20,000/-.

3.            Rest part of the order passed by the Learned Forum shall remain intact. Cost of both the appeals shall be easy.

 

CMCL 118 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

HON'BLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO,

MEMBER

Milk Specialties Ltd.*

 

-Petitioner

 

Versus

 

Rajiv Singh

 

-Respondent

 

Revision Petition No. 1467 of 2005

 

 

Decided on 21.10.2005

 

 

Consumer Protection Act, 1986-Section 2(1)(d)-"Commercial Pur-pose"-Bar under-Held-"Commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. [Para-3]

Counsel :

 

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