Paltu Ram vs UNITED INDIA INSURANCE CO. LTD

REVISION petition no. 2191 of 2013 has been filed challenging the judgment dated 19.01.2011 coupled with the order dated 07.10.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula ( ''the State Commission '') in appeal no. 1987 of 2004.

THE brief facts of the case as per the petitioner/ complainant are that the petitioner had purchased a new brand Swaraj Mazda from M/s Swaraj Mazda Ltd., Pune for a sum of Rs.5,13,216/- on 28.03.2001, the body and chasis of the Swaraj Mazda was prepared by Khan Brothers and Body Repairing Kapashera Delhi for a sum of Rs.70,000/-. The above said vehicle was got financed from M/s Interstate Finance Ltd.,/ City Corporation Finance India, Delhi. The above said vehicle bearing Engine no. S/CBN 044677, Chasiss no NBW EL 4GN 0052027 was fully insured by the respondent against a value of Rs.5,50,000/- vide cover note no. 216354 dated 30.03.2001. It was a comprehensive insurance policy. On purchasing the above said vehicle, the petitioner entered into an agreement with M/s Speedage Express Cargo a division of ARC India Ltd. On 01.04.2011 and attached the vehicle in question bearing registration no. HR 55 - 8007 with effect from 01.04.2001 to 31.03.2003. The above said vehicle met with an accident on 07/08.03.2002 in the area of PS Niwari District Ghaziabad and FIR no. 57/ 2002 dated 08.03.2002 was lodged in PS Niwari District, Ghaziabad (UP). The above said vehicle no. HR 55 - 8007 was damaged and the loss of damage was assessed as total loss. Just after the accident, information was sent to the respondent who appointed its Surveyor - Shri Darshan Singh Arora who inspected the vehicle on 11/12/03/2002 at Modi Nagar, District Ghaziabad and again Shri K R Arora, Surveyor has also assessed the loss of damage of vehicle at the instance of the respondent. Both the surveyors have assessed total loss of the vehicle.

HOWEVER , the respondent has delayed the payment of the total loss to the tune of Rs.5,50,000/-. The application in respect of the payment of loss was also given on 04.04.2002 and again verbally so many times, but the respondent has not paid any heed towards the request of the petitioner rather delayed the matter on one pretext or the other and has not settled the claim of petitioner till today.

THE petitioner also informed the respondent about the contract/ agreement with M/ Speedage Express Cargo and the respondent had full knowledge about the finance of the vehicle in question, but the respondent intentionally, illegally and with ulterior motive without any reasons had not settled the claim/ losses to the vehicle and has not paid any penny to the petitioner or the financier till today. The respondent/ opposite party stated in their reply before the District Forum that the petitioner, as per his admission in his complaint, has already filed a claim petition before the Motor Accident Claim Tribunal, Gurgaon for recovery in respect of damages to his Swaraj Mazda bearing no. HR 55 - 8007 in the very accident for which the present complaint is filed. Therefore, the present complaint is not legally maintainable. The petitioner cannot file two petitions simultaneously for the recovery of damages arising out of one accident. Therefore, the present complaint is liable to be dismissed with costs.

THE complaint is pre-mature. The claim of the petitioner had already been got surveyed and assessed. Vide letter dated 21.08.2002 was informed that the surveyor had assessed the loss on total loss basis to the tune of Rs.3,85,000/- subject to the terms and conditions of the policy. However, the final settlement is still pending because the petitioner has not supplied the spot survey report of Mr Darshan Singh Arora, from who he had got the vehicle inspected allegedly at the spot (which is an essential document to the exact reasons of the damages) in spite of various reminders and lastly, especially was called upon vide registered letter dated 09.04.2003 to supply the same. But till to date, the petitioner has not supplied the required spot survey report and rather has filed the present complaint, unnecessarily, without having any cause of action for the same.

SOON after the receipt of information about the damages to the insured Swaraj Mazda bearing registration no. HR 55 - 8007 registered on 05.04.2001 in an accident which allegedly took place on 08.03.2002, K R Arora and Co, Government approved Surveyors and Loss Assessors and Valuers was appointed to assess the loss. The surveyor had contacted and discussed the loss and manner of assessment with the petitioner in the process of assessment of the loss. The market was also surveyor in order to know the market value of Swaraj Mazda, bearing registration no. HR 55 - 8007, registered on 05.04.2001 on the date of loss i.e., 08.03.202 from the dealers who deals in sales/ purchase of these types of vehicles in the open markets. The market value of the said Swaraj Mazda was found to be Rs.3,85,000/- in the open market on the date of loss i.e., 08.03.2002. It is submitted that as per the insurance policy ''s terms and conditions, the market value or the insured ''s estimated value of the vehicle whichever is less is payable. In these circumstances, subject to the terms and conditions of the insurance policy, the loss was assessed to the tune of Rs.3,85,000/- less excess clause of Rs.1,500/- and return of the damage vehicle to the Co. and transfer of registration in the name of the Co. by the surveyor. This was informed to the petitioner. However, report of spot survey got conducted by the petitioner through Darshan Singh Arora was not supplied in spite of various reminders in spite of registered letter dated 09.04.2003 as stated above. Therefore, the final settlement is still pending due to delay on the part of the petitioner. But the petitioner instead of complying with the requirement, has unnecessarily, filed the present complaint. The respondent is still ready to settle the claim subject to the terms and condition of the insurance policy on the receipt of the spot survey report, referred above, and the other usual requirements. Thus, the respondent is in the process of processing the claim and the same is pending for completion of the legal and mandatory formalities on the part of the petitioner. For this reason also, the complaint is not maintainable and is liable to be dismissed at this every stage. The District Consumer Disputes Redressal Forum, Gurgaon ( ''the District Forum '') after considering all the facts and circumstances of the case ordered that "after deducting 10% of the insured amount, the respondent is directed to pay Rs.4,95,000/- to the petitioner along with interest at the rate of 9% per annum which is to be calculated after three months of the accident till the date of payment subject to the terms and conditions of the company. The compliance of this order be made within one month after the receipt of the copy of this order. No costs ".

AGGRIEVED by the order of the District Forum, the respondent filed an appeal before the State Commission. The State Commission came to the conclusion that ''the undisputed facts are that the new vehicle was purchased for Rs.5,13,216/- on 28.03.2001 got insured the vehicle for Rs.5,50,000/- and charged the premium. The IDV could not be more than the cost of the new vehicle. Vehicle having met with an accident on 07/08.03.2002 was also not disputed. How and on what basis the surveyor assessed the loss of Rs.3,85,000/- is not coming forth. The vehicle being less than one year old, the depreciation could only be to the extent of 10% of the cost of the vehicle.

THEREFORE , we feel it appropriate to modify the award by deducting 10% of the value being depreciated value of vehicle which comes to Rs.5,13,216/- - Rs.51,321/- = Rs.4,61,895/- along with 6% interest. With this modification this appeal stands disposed of ". The respondent filed a miscellaneous application seeking modification in the operative part of the order that was passed on 19.01.2011. The State Commission vide its order dated 07.10.2011 modified the order stating that ''the appellant has sought modification that in the operative part of the order though the amount to be paid to the complainant has been quantified, however, by inadvertence, it has not been mentioned that this shall be on transfer of the vehicle and return of salvage. Though in the order, it has been mentioned that this shall be subject to terms and conditions of the company, however the modification is sought is only in the shape of clarification. Application for modification is allowed. In the operative part after the end of the paragraph the following shall be added "that the payment of amount shall be upon return of salvage and transfer of vehicle in favour of insurance company ". Hence, this present revision petition. The main grounds for the revision petition as given by the petitioner are as under:

THE State Commission has not examined the contract of insurance between the parties. The State Commission although notices the purchase price of the vehicle as Rs.5,13,216/- however failed to consider the amount spent by the petitioner on making the vehicle as road worthy. It was Rs.70,000/- which was spent by the petitioner to make the vehicle road worthy. The coverage accordingly was obtained by the petitioner for Rs.5,50,000/-. The total value although on the date of insurance was Rs.5,70,000/-. The State Commission has wrongly taken the value of insured vehicle as Rs.5,13,261/- instead of Rs.5,50,000/-. The depreciation or deduction of 10% was required to be made from Rs.5,50,000/- and not from Rs.5,13,216/- as ordered by the State Commission. · The State Commission committed grave error by reducing the interest from 9% to 6%. There is no infirmity in the interest of 9% as awarded by the District Forum.

THE State Commission again committed grave error by modifying the order on 07.10.2011 without giving petitioner any notice of the same. The State Commission failed to take into consideration that the vehicle was registered in 2001 and the estimated life of the vehicle was 10 years. The State Commission failed to take into consideration the fact that on the date i.e., 07.10.2011 when the directions was passed to get the vehicle transferred it was not possible for the petitioner to get the vehicle transferred as the life of the vehicle has already expired. There is no provision in the motor vehicle Rules which could have allowed the transfer of the vehicle in favour of the respondent on the said ate. Moreover, the vehicle which was total loss on the date of accident in 2002 has totally become wreck and without any recognition. It was not possible for the petitioner to assemble the said salvage as such the State Commission has committed further error by directing return of the salvage which was not in existence on the date of passing of its order. It was totally over looked that the vehicle was total loss. Along with revision petition the petitioner has filed an application for condonation of delay of 859 days. However, as per the office report there is a delay of 476 days. The reasons given for the delay are as follows: The petitioner although deputed a counsel for defending his case before the State Commission however no information about the status of the case was ever given to the petitioner. The petitioner was way back informed that the appeal has been admitted and it shall come up in due course. The petitioner never received any notice of appearance thereafter. The petitioner in March 2013 when made enquiries about the case was apprised of the fact that the appeal has been decided way back. The petitioner thereafter obtained the copies of the orders. Since the petitioner only in March 2013 came to know about the disposal of the appeal as such the delay has occurred. The petitioner also faced difficulty in getting all the documents which were required for preferring the revision. Sometime was also lost in getting the documents collected. We have heard the learned counsel for the petitioner and have also carefully gone through the records.

IT is seen from the application that no specific dates have been given regarding the exact date and the manner in which the knowledge had come to the petitioner. No date has also been given regarding when in March 2013 the petitioner came to know about the disposal of the appeal. Though the petitioner has blamed his advocate for the delay in defending his case before the State Commission, at the time of filing of the application, he had made no complaint regarding deficiency of service with regard to the counsel either with the Bar Council or any Consumer Court. It was only during the hearing of the case in the National Forum, that a complaint was filed with the Bar Council of Chandigarh on 31st July 2013.

IN Banshi vs Lakshmi Narain - 1993 (1) RLR 68, it was held that reason for delay was sought to be explained on the ground that the Counsel did not inform the appellant in time, was not accepted since it was primarily the duty of the party himself to have gone to lawyer ''s office and enquired about the case, especially when the case was regarding deposit of arrears of rent. The statue also prescribes a time bound programme regarding the deposit to be made. In Jaswant Singh vs Assistant Registrar, Co-operative Societies - 200 (3) Punj, L R 83, it was observed that cause of delay was that the counsel of the appellant in the lower Court had told them that there was no need of their coming to Court and they would be informed of the result, as and when the decision comes, was held to be a story which cannot be believed.

IN Bhandari Dass vs Sushila, 1997 (2) Raj LW 845, it was held that accusing the lawyer that he did not inform the client about the progress of the case nor did he send any letter, was disbelieved while rejecting an application to condone delay. With regard to limitation it is well settled that ''sufficient cause '' for condoning the delay in each case is a question of fact. The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has held that: "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras ".

IN Balwant Singh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: "The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] ".

In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: "We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. "

THE petitioner has failed to adequately explain the day to day delay or give ''sufficient cause '' for condoning the delay of 476 days. In view of the above, the revision petition is dismissed being time barred by limitation with cost of Rs.10,000/- (Rupees ten thousand only).

PETITIONER is directed to deposit the cost by way of demand draft in the name of ''Consumer Legal Aid Account '' of this Commission within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.