SHAKSHI TRADERS vs National Insurance Co. Ltd.

M/s. Shakshi Traders appeals against the order of the District Forum, Yamunanagar partly allowing the respondent-consumer''s complaint and awarding a compensation of Rs. 1848/- against the appellant with costs of Rs. 500/- only.

ON the respondent-consumer Shri Suresh Chand Jain''s own showing, he had insured his television set against break down etc. vide policy No. 985805 with the National Insurance Company Limited. It was the case that the said T.V was maintained and operated by the respondent-complainant with all diligence and care, but it accidently broke down due to power fluctuation of electricity, resulting in serious damage thereto. Inevitably, the insured lodged a claim with the Insurance Company on the 26th of August, 1992 and they appointed Mr. M.L. Banerjee as a surveyor, who filed his report with the Company. The respondent-complainant not being satisfied with the said report, sought the appointment of another surveyor, which apparently seems to have been declined. Meanwhile, the appellant assessed the loss to the T.V to Rs. 2660/- and repair charge of Rs. 200/- etc. and after executing the same, submitted a bill for Rs. 1848/- plus Rs. 100/- as charges for repair and Rs. 50/- for travelling from time to time. This bill was submitted by the complainant to the respondent-insurers and the salvage was also deposited with the said Company on the 9th of December, 1992. Nevertheless, the claim was not paid and thus compelling the complainant to knock at the door of the District Forum. M/s. National Insurance Company Limited in their written statement took up the specious plea that the damage to the T. V did not fall within the scope of the policy and hence, the District Forum had no jurisdiction. It was pleaded that the insurers had honoured the finding of the surveyor Mr. M.L. Banerjee and asked the complainant to supply the cash memo of the new parts replaced, so that the payment could be made to the complainant. But he produced bills of M/s Rakesh Radio Corporation, Chandni Chowk, Delhi authenticated under his signatures. It was pleaded that on enquiries being made a letter was written to the abovesaid firm, but it had been received unserved with the report that no such firm is in existence at Delhi.

The appellant who was impleaded as opposite party No. 3 before the District Forum in its reply pointed out that he had merely repaired the television set and submitted the labour charges only and had supplied no parts to the complainant. It was also the stand that they were merely Proforma respondents because neither any goods had been purchased from them nor they extended out any services in which any deficiency had been discovered.

IN support of his case, the respondentcomplainant put in an affidavit alleging that the bill of M/s Rakesh Radio Corporation had been supplied to him by the appellants by the parts had also been duly supplied by him. The District Forum accepted the complainant''s affidavit at its face value and came to the conclusion that the appellant-firm had ap parently supplied a bogus bill of M/s. RakeshRadio Corporation and on that score held that the Insurance Company was not liable for the contract and summarily proceeded to saddle the appellant with compensation of Rs. 1848/- plus costs of Rs. 500/- as noticed at the very out-set.

MR. M.S. Guglani, the learned Counsel for the appellant had forcefully contended that the appellants were proforma opposite party in the complaint and not an iota of relief was at all claimed against theme. It was pointed out that the appellants had merely repaired the T.V set and neither sold the same to the consumer nor had the latter hired any services with regard to which any deficiency was even suggested against them by the latter and consequently no consumer dispute arose be twist him and the complainant. It was further argued that the mere postal report with regard to a letter sent to M/s. Rakesh Radio Corporation was insufficient for raising the inference that the bill was bogus and further that the contract bet wist the complainant and his insurers was not in any way abrogated. There is patent merit in the aforesaid submission. A bare reading of the complaint would indicate that the whole claim of the respondent-Suresh Chand was against M/s National Insurance Company Limited and not against the present appellant at all. Even in the ultimate paragraph 5, the express plea was that there was a deficiency in Insurance Services on the part of Opposite Parties Nos. 1 and 2 (the National Insurance Company Limited through its Manager at Jagadhri and a subsidary of the G.I.C of India through its Divisional Manager) and the non-payment of the claim by them had caused mental as well as physical harassment to the complainant. Relief in terms was claimed only against the insurers for a specific sum of Rs. 4400/- only. The aforesaid facts are manifest on the record and Mr. Chander Mehta and Mr.Pardeep Bedi, learned Counsel on behalf of respondent Nos. 1 and 2 could not possibly dispute the same. Once that is so, it is obvious that the appellants are entitled to succeed because the respondent-complainant had himself laid no claim against them. It is elementary that a proforma party cannot be saddled with liability, when even in the pleadings itself neither any case is made out against it nor any relief is claimed from it.

APART from the above, within the confines of the consumer jurisdiction, the matter is even more clear. Liability in this context could have only arisen, if there was either any supply of defective goods or any deficiency in the services hired as regards the present appellant. It is common ground herein that the complainant himself never in the least suggested either of the possibility in the present case no relief within the consumer jurisdiction could thus be planted on the present appellant. It would appear that the District Forum influenced apparently by some doubt about the authenticity of some bills had proceeded to exonerate the insurer and instead saddle the appellant with unwarranted liability.

ON the present record, it is somewhat manifest that the liability of the insurers to the complainant-consumer cannot be washed away by any extraneous consideration. It is not in dispute at all that the T.V was fully insured with M/s National Insurance Company Ltd. and their own surveyor Mr. M.L. Banerjee had duly assessed the loss suffered by the insured and rendered a report with regard thereto. Even when pressed, Mr. Chander Mehta and Mr. Pardeep Bedi could not even remotely pin-point any repudiation of the claim by the insurers on any ground whatsoever till date. This in itself is a patent and glaring deficiency in the insurance services extended out by them. What is more a specious plea was sought to be taken that the loss did not fall within the scope of the policy. Despite being given the fullest latitude, neither of the learned Counsel for the Insurance Company could even remotely indicate as to how the claim was beyond the covered risk. It was indeed the insurance own surveyor Mr. M.L. Banerjee who had found the same fully covered and rendered his report in line with the said finding. Lastly loss occurred more than a year ago and even the claim was admittedly lodged on the 26th of August, 1992. Nevertheless, till the filing of the complaint more than six months thereafter on the 22nd of February, 1993 and virtually 10 months thereafter neither there has been a repudiation nor a settlement of the said claim. There is thus an established deficiency of the insurance services extended out, which indeed had been claimed by the respondent-complainant against them. That liability could not be shifted on to the shoulders of the appellant for some-what tenuous reasons. For the fore-going reasons, this appeal has to be allowed and the order directing the payment of compensation against the appellant is set aside and instead it is directed that the awarded compensation of Rs. 1848/- would be payable by M/s National Insurance Company Ltd. along with interest @18% from the date of the filing of the claim on the 26th of August, 1992 till realisation. The appellant is also entitled to his costs which are assessed at a sum of Rs. 500/- only. The aforesaid amounts shall be tendered to the respondent-consumer and the appellant respectively within one month from the date of this order, failing which compliance would be enforced by the District Forum under Sec. 27 of the Act. Appeal allowed with costs.