JYOTHI SHETTY vs NEW INDIA ASSURANCE CO. LTD.

WE could not have come across a better case of harassment of an insured at the hands of an Insurance Company than the case on hand. In the instant case, the Insured has been made to run from pillar to post to receive lawful compensation in respect of her car, which met with an accident on 28.4.1994. Even after a lapse of 12 years the insured is yet to get the fruits of her efforts.

FOR the sake of convenience, the parties in this order are referred to according to their position in the complaint filed before the District FORum. This appeal is by the complainant challenging the Order of the District Forum having not satisfied with the Order passed by the District Forum.

The complainant had filed the complaint before the District Forum seeking for a direction to the opposite parties (for short, "O.Ps.") to pay Rs. 2,38,000 being the assured sum; Rs. 15,000 towards conveyance allowance; Rs. 10,000 towards compensation for inconvenience and mental agony and reimbursement of Rs. 25,000 paid as interest to the financier.

THE facts in this case are as follows : THE complainant had purchased a brand new Ambassador Car bearing Registration No. KA-3/N 456 on 23.3.1994 for a consideration of Rs. 2,52,314. THE said car met with an accident near Channapatna on 28.4.1994. Immediately after the accident, the complainant intimated the fact of accident to the O.Ps. and the vehicle was taken on 30.4.2004 to the Automobile Service Centre, Bangalore, by spending a sum of Rs. 3,000. THE Automobile Service Centre estimated the amount to be spent at Rs. 1,24,175 to get the vehicle repaired. From 30.4.1994 to 19.5.1994 the vehicle was with the Automobile Service Centre, since no action was taken by O.P. 1 to get the vehicle repaired. On 19.5.1994, O.P. 2 who is the Branch Manager of O.P. 1 Company assuring the complainant that he would get the compensation on ''total loss basis'' got removed the car from Automobile Service Centre to M/s. Bharath Auto Garage. THE vehicle was with Bharat Auto Garage from 19.5.1994 to 11.11.1994. In the meanwhile, O.P. 2 took Rs. 5,000 each on three occasions on 24.8.1994, 16.9.1994 and 7.10.1994 from the complainant promising that he would get the compensation on total loss basis. THE said amounts were paid by the complainant by cheques drawn in the name of O.P. 2. THEreafter, on 27.5.1994 one Mr. S.M. Babu Lal conducted survey of the vehicle when the vehicle was with Bharat Auto Garage and gave a report on 8.8.1994, i.e., after a lapse of three months, assessing the loss at Rs. 35,405. Bharat Auto Garage had estimated the cost to be incurred at Rs. 1,01,565 to get the vehicle repaired. Even Bharat Auto Garage did not make any attempt to get the vehicle repaired. THEreafter, when the complainant came to know that O.P. 2 in collusion with Bharat Auto Garage had removed many parts of the vehicle made a complaint to the Regional Manager of O.P. 1 against O.P. 2. Ultimately, the car was delivered back to Automobile Service Centre on 11.11.1994. Automobile Service Centre made an inventory under Exhibit ''C-5'' showing the missing parts. But no attempts were made by Automobile Service Centre to get the vehicle repaired. After the receipt of the complaint made by the complainant alleging the collusion between O.P. 2 and Bharat Auto Garage O.P. 1 appointed one Mr. B.K. Jagadish Kumar, as Surveyor to assess the loss on 13.12.1994. THE said Jagadish Kumar in turn submitted a Report. By that time, the vehicle was with India Garage. India Garage normally will not allow an outsider to inspect their vehicles. Since in India Garage also the vehicle was not repaired, the complainant was compelled to lift the vehicle at the request of M/s. India Garage to Vinayaka Automobile Works on 17.12.1994. THE vehicle was with Vinayaka Automobile Works from 17.12.1994 till January, 2004. THEreafter, the complainant being fed up with the lethargic attitude of the O.Ps. gave a complaint to the Regional Manager of O.P. 1 on 19.1.1995. THE Regional Manager summoned O.P. 2 for discussion. THE further case of the complainant is that O.P. 2 did not act on his promise to replace the missing parts, the complainant wrote one more letter to the Branch Manager with a copy to the Regional Manager of O.P. 1. On that representation also no action was taken. THErefore, the complainant wrote a letter to the Chairman of O.P. 1 on 2.3.1995. On the direction of the Chairman, a meeting was called by the Regional Manager. In the said meeting it was decided that the vehicle was not in a roadworthy condition. THE repair said to have been done by M/s. Bharath Auto Garage was of no consequence as it did not restore the vehicle to roadworthy condition. THEreafter, O.P. 2 having come to know the above facts got issued a Legal Notice to M/s. Bharat Auto Garage on 18.10.1996 claiming repair charges of Rs. 48,961.75. THEn one Mr. M.A. Hussain was appointed as a Surveyor on 13.4.1995 and he in turn submitted a report stating that the expenses involved are Rs. 16,111 towards the repairs and replacements without even considering the estimation made by M/s. Automobile Service Centre. Because of the lethargic attitude on the part of O.P. 1 and also because of the fraud played by O.P. 2, the complainant had no other go except to file a complaint alleging "Deficiency in Service" on the part of the O.Ps. before the District Forum. O.P. 1 no doubt has filed its version before the District Forum. But the District Forum did not accept the said version filed by O.P. 1 on the ground that it was belated. Both the parties adduced voluminous evidence in support of their case before the District Forum and also produced several documents which were all marked as Exhibits.

THE District Forum after considering the case of both the parties has held that the receipt of Rs. 15,000 by O.P. 2 from the complainant is outside the perviewof the jurisdiction of the District Forum and has directed O.P. 1 to pay Rs. 41,000 to the complainant as compensation with interest at 8% per annum with effect from 11.8.1995 till the date of payment and has also awarded a cost of Rs. 1,000 in favour of the complainant. The points that arise for consideration in this appeal are : (1) Whether the District Forum is justified in not awarding the compensation as claimed by the complainant in his complaint? (2) Whether the District Forum is justified in not directing O.P. 2 to pay a sum of Rs. 15,000 said to have been collected by him from the complainant holding that it falls outside the jurisdiction of the District Forum? (3) To what relief the complainant is entitled in this appeal.

Point No. 1 : Admittedly the complainant purchased the vehicle on 23.3.1994. The vehicle met with an accident on 28.4.1994, i.e., about one month five days from the date of the purchase. The total consideration paid for the purchase of the car was Rs. 2,52,314. It is not in dispute that the complainant immediately reported the fact of the accident to O.P. 1 on 30.4.1994. It is also not in dispute that the car was lifted to Automobile Service Centre on 30.4.1994. It is also not in dipute that the Automobile Service Centre estimated the loss at Rs. 1,12,175. A copy of the estimate is produced as Annexure ''C-4'' . One Mr. Babu Lal who was appointed as Surveyor to assess the loss conducted the survey and assessed the loss at Rs. 35,405, i.e., after a lapse of three months. In the meanwhile , O.P. 2 who is the Branch Manager had collected Rs. 15,000 from the complainant under three cheques issued in his name. According to the complainant, O.P. 2 has collected the said amount promising that he would get compensation paid on total loss basis. But, ultimately, compensation has not been paid on total loss basis. As Automobile Service Centre did not attend to the repairs, on the advice of O.P. 2 the vehicle was shifted from Automobile Service Centre to Bharat Auto Garage. In Bharat Auto Garage it was found that many parts of the vehicle were removed. The complainant suspected that O.P. 2 and Bharat Auto Garage colluded with each other and they removed many parts of the vehicle. No doubt this fact is denied by O.P. 2. But the fact remains that some parts were missing from the car. Ultimately the car was shifted from Bharat Auto Garage to India Garage. When the vehicle was in India Garage, O.P. 1 appointed another Surveyor by name Mr. B.K. Jagadish Kumar on 13.12.1994. It appears Jagadish Kumar also gave a report. But, ultimately, even in India Garage also, no repair work was done and, therefore, the vehicle was shifted to Vinayaka Automobile Works on 17.12.1994. Since then the vehicle is lying in Vinayaka Automobile Works. According to the complainant all this is because of the intervention and the promise made by O.P. 2. It is not known why O.P. 2 came into picture. It is also not known what was the reason for him to collect Rs. 15,000 from the complainant under three cheques on different dates. The said cheques were admittedly drawn in the name of O.P. 2. The defence taken by O.P. 2 is that the said amount was paid to Bharat Auto Garage. When the amount was to be paid to Bharat Auto Garage, there was no need for O.P. 2 to get cheques in his name. If at all the amount was to be paid to Bharat Auto Garage, the cheques should have been drawn in the name of Auto Garage. From these facts it is seen that O.P. 2 has illegally collected Rs. 15,000 from the complainant with a promise to see that compensation will be paid to him on total loss basis. Otherwise there was no need for O.P. 2 to interfere in this affair personally and insist the complainant to issue three cheques in his favour. We are told that on the complaint of the complainant to the Regional Manager, disciplinary proceedings were initiated as against O.P. 2 and ultimately the disciplinary proceedings ended in exonerating O.P. 2. It is not known how in the disciplinary proceedings O.P. 2 has been exonerated of the charges. It is a well settled law that even if a delinquent employee is held to be not guilty of the charges by the Inquiry Officer, there is no bar for the Disciplinary Authority to disagree with the findings of the Inquiry Officer and to come to his own conclusion after notice to the delinquent. After all, the object of conducting disciplinary proceedings is to find out the truth. In the case on hand, the fraud played by O.P. 2 is visible to naked eyes. If a culprit is let off it will give a wong signal to other employees. In the instant case, the fact of exoneration of O.P. 2 in the inquiry will not in any way help O.P. 2 because O.P. 2 being an employee of O.P. 1 Company ought not to have received the cheques from the complainant in his favour. The complainant has produced the statement of Bank Account to show that the said cheques were encashed by O.P. 2. The explanation given by O.P. 2 is that though the cheques were in his name the cheques were encashed by the owner of Bharat Auto Garage and, therefore, no motive can be attributed to him. This "cock and bull story" put forth by O.P. 2 cannot be accepted. The very fact that the cheques were drawn in the name of O.P. 2 and also that the cheques were got encashed by O.P. 2 clearly shows that the conduct of O.P. 2 is not straight as there was no reason for him to interfere in this affair. If really O.P. 2 is honest and prompt in the discharge of his duties, he should have acted on the Surveyor''s Report and offered compensation on the basis of the Surveyor''s Report. But for the fact that O.P. 2 promised the complainant that he would see that compensation will be paid to him on total loss basis, there was no need for the complainant to issue the cheques in favour of O.P. 2. Ultimately, the vehicle was shifted from one garage to another at the instance of O.P.2 and this has resulted in depriving the complainant to get lawful compensation for the damage caused to the vehicle. At the instance of the Chairman of O.P. 1 Company, a meeting was convened by the Regional Manager and in the meeting held on 23.3.1995 it was decided that the vehicle was not in a roadworthy condition. Prior to that one B.K. Jagadish Kumar was appointed as a Surveyor to assess the loss. Ultimately, one Mr. M.A. Hussain was appointed as a Surveyor to assess the loss. There was no reason for O.P. 1 to appoint Surveyors one after the other. All these delaying tactics must have been played at the instance of O.P. 2. The complainant had purchased the car by borrowing money. She was deprived of making use of the car because of the inaction on the part of the O.Ps. in not taking immediate steps to get the vehicle surveyed and in not paying compensation. Hence, we answer point No. 1 in the negative. Point No. 2 :

THE District Forum has not passed any order as against O.P. 2 on the ground that it falls outside the purview and the jurisdiction of the District Forum. O.P. 2 is an officer of O.P. 1. THEre was no need for O.P. 2 to personally intervene in the affairs. THE facts of the case and the documents produced in the instant case speak of the fact that O.P. 2 has unnecessarily intervened in the affairs and has illegally collected Rs. 15,000 from the complainant promising him to get him compensation on the total loss basis. THE fraud played by O.P. 2 is writ large. THE District Forum has overlooked the fact that the Consumer Protection Act, 1986 has been enacted to provide for the protection of the interests of the consumers. THE receipt of Rs. 15,000 by O.P. 2 from the complainant, he being an officer of the Insurance Company, amounts to "Deficiency in Service" as he did not provide service as expected from an Officer. THErefore, the District Forum committed an error in holding that the issue falls outside the jurisdiction of the District Forum. Hence, we are of the view that the District Forum ought to have directed O.P. 2 to refund the amount of Rs. 15,000 to the complainant with interest and also to pay compensation because of the harassment caused to the complainant. Hence, point No. 2 is also answered in the negative. Point No. 3 :

THE vehicle was purchased by the complainant in the year 1994. Till today the vehicle is with Vinayaka Automobile Works. At this distance of time, there is no point in directing the complainant to lift the vehicle, since even according to Vinayaka Automobile Works the vehicle cannot be moved without effecting repairs. In all probability every part of the vekicle must have got rusted. THErefore, this is a fit case to direct O.P. 1 to pay compensation on total loss basis at a sum of Rs. 2,22,314 which was the market value of the vehicle as on the date of issuance of the Insurance Policy. Accordingly, we pass the following order in modification of the Order of the District Forum as follows : (1) O.P. 1 is directed to pay Rs. 2,22,314 to the complainant with interest at 6% per annum from the date of the accident, i.e., 28.4.1994 till realization; (2) O.P. 2 is directed to refund a sum of Rs. 15,000 to the complainant with interest at 12% per annum from 7.10.1994, which is the last date of payment under the cheques till realization; (3) O.P. 2 is also directed to pay Rs. 10,000 to the complainant as compensation towards mental agony and hardship caused to the complainant; (4) O.P. 1 is directed to pay a sum of Rs. 5,000 to the complainant towards the costs of these proceedings.

Ordered accordingly.