R.S. Sharma, President:
1. This appeal is directed against order dated 30.01.2013 passed by District Consumer Disputes Redressal Forum, Surguja, Ambikapur (C.G.) (henceforth District Forum") in Complaint Case No.26/2009. By the impugned order, learned District Forum, has partly allowed the complaint of the respondent No.1 (complainant) and directed the appellant (O.P.No.1) to pay a sum of Rs.2,95,188.00/- to the respondent No.1 (complainant) along with interest @ 6% p.a. from the date of filing of the complaint till date of payment. The District Forum, has further directed the appellant (O.P.No.1) to pay a sum of Rs.5,000/- as compensation for physical and mental agony and inconvenience suffered by the respondent No.2 (complainant) and to pay a sum of Rs.2,000/- as cost of litigation.
2. It is not in dispute that a Bolaro vehicle having registration No.C.G.15-B-2973, was purchased by the respondent No.1 (complainant) ant and was insured with appellant (O.P. No.1) Insurance Company for a period between 01.06.2007 to 31.05.2008 and thereafter with respondent No.4 (O.P.No.4 Insurance Company) for a period between 01.06.2008 to 31.05.2009. The case of the respondent No.1 (complainant) before District Forum was that the said vehicle was purchased by him with the help of finance provided by Magma Finance Limited and on 29.04.2008, had suffered a road accident, while it was on its way from Village Donhat to District Gadhwa. The incident was reported with Police Station Chandora. Police seized the damaged vehicle and later on the vehicle was obtained on supurdnama by the complainant from Police Station, Chandora on 05.06.2008 and was taken to service station after towing the same with some other vehicle and was brought to New Ranchi Engineering Denting, Painting and Welding Garage at Kharasia Naka, Ambikapur for repairing. The owner of the service centre estimated the cost of repairing and the estimate was handed over to the respondent No.1 (complainant). Respondent No.1 (complainant) informed appellant (O.P.No.1) regarding the incident and also to Branch Manager, Magma Fincorp Limited. Then, a Surveyor was appointed by the appellant (O.P.No.1) Insurance Company to conduct survey of the damaged vehicle. Later on, as period of insurance was going to expire, therefore, the same was got insured from respondent No.4 (O.P.No.4) National Insurance Company Limited, for a period between 01.06.2008 to 31.05.2009 by O.P.Nos.2 and 3. When the vehicle was under repair at Service Station, then on 06.06.2008, it was informed on phone by the owner of the Service Station, that on account of incident of fire in the Garage, the insured vehicle has totally destroyed. That incident was reported to Police Station, Ambikapur and a claim was preferred with respondent No.4 (O.P.No.4) National Insurance Company Limited. Information was also given to the appellant (O.P.No.1) Oriental Insurance Company Limited. Thereafter complainant had requested both the Insurance Companies for payment of compensation on account of damages in road accident and thereafter on account of incident of fire, but both the Insurance Companies have not paid any amount, so the consumer complaint was filed by the complainant before District Forum
3. Appellant (O.P.No.1) The Oriental Insurance Company Limited resisted the complaint on the ground that the vehicle in question had not suffered any road accident and the estimate, which was supplied by the complainant and has been brought on record in the consumer complaint was prepared after the damages to the vehicle in the incident of fire, therefore, O.P.No.1 was not having any responsibility of paying any compensation to the complainant. It has also been averred that registration, permit, fitness, road tax etc. and driving licence of the driver were not provided by the complainant to the appellant (O.P.No.1) Insurance Company and driver of the vehicle was also not having valid driving licence and, thus, the vehicle was being driven in violation of provisions of the Motor Vehicles Act, 1988, so also the Insurance Company was not liable to pay any compensation to the respondent No.1 (complainant).
4. Respondent No.4 (O.P.No.4) The National Insurance Company Limited in the separate reply has also denied its liability and averred that the vehicle in question was already in damaged condition and was not roadworthy. This information was deliberately concealed by the complainant from the O.P.No.4/Insurance Company and on the basis of false information, insurance cover was obtained, thus, the insurance policy was void ab-initio and no benefits can be granted to the complainant on the basis of such insurance policy.
5. The financer, in separate reply has also denied its liability and averred that upto 07.03.2008 Rs.4,45,333/- were due against the complainant, for which demands were made and it was responsibility of the complainant to pay amount of finance and to run the vehicle, as vehicle was obtained on Hire Purchase Agreement, but the complainant failed to pay the amount of finance. Thus, the financer has not committed any deficiency in service and so, complaint is not maintainable against the financer.
6. Earlier learned District Forum, after having considered the material placed before it by the parties, vide order dated 11.04.2011 partly allowed the complaint of the respondent No.1/complainant and directed the appellant (O.P.No.1) to pay a sum of Rs.2,95,188.00 towards compensation in respect of the vehicle bearing registration No.C.G. 15-B-2973 along with interest @ 6% p.a. from the date of filing of the complaint i.e. 11.02.2009 till date of payment. The District Forum, further directed the appellant (O.P.No.1) to pay a sum of Rs.5,000/- as compensation for physical and mental agony and Rs.1,000/- as cost of litigation.
7. The complainant and O.P.No.1 have filed appeal Nos.286/2011 and 285/2011 respectively against the order of the District Forum dated 11.04.2011 before this Commission. This Commission allowed both the appeals, set aside the order of the District Forum and remanded back the case to the District Forum. Para 13 of order of this Commission reads thus :-
"13. In view of aforesaid, both appeals succeed and are allowed. The impugned order recorded by the District Forum is set aside and the case is remanded back to District Forum, with a direction to take on record all those documents, which have been filed before us during the course of hearing of this appeal and then to provide one more opportunity to each party for filing other relevant documents or material including affidavits and thereafter to decide the matter afresh on merits. Office of this Commission is directed to send all those documents to District Forum, which have been filed by different parties during the course of hearing of these appeals, along with applications under Order 41 Rule 27 CPC, to the District Forum with record of the case. Parties are directed to appear before District Forum on 11.06.2012. No order as to the cost of both these appeals.
8. Learned District Forum, again after having considered the material placed before it by the parties, allowed the complaint in part and awarded compensation to the respondent No.1 (complainant), as mentioned in para 1 of this order.
9. Shri P.K. Paul, learned counsel appearing for the appellant (O.P.No.1) (Insurance Company) argued that the impugned order, passed by the learned District Forum, is contrary to law and is liable to be set aside. He further argued that according to the respondent No.1 (complainant) the vehicle in question met with an accident on 29.04.2008 and thereafter the vehicle was burnt in intervening night 5 and 6-06-2008. He further argued that the respondent No.1 (complainant) could not submit estimate regarding the loss occurred in the accident and without obtaining inspection report. The respondent No.1 (complainant) took the vehicle in garage where the vehicle in question was burnt and damaged. The vehicle in question was insured with the appellant (O.P.No.1) (The Oriental Insurance Company Limited) for the period from 01.06.2007 to 31.05.2008. The insurance policy was expired on 31.05.2008, thereafter, without intimating the appellant (O.P.No.1) obtained policy from the respondent No.4 (O.P.No.4) (The National Insurance Company Limited) and had suppressed the material fact. He further argued that the respondent No.1 (complainant) had obtained insurance policy from the respondent No.4 (O.P.No.4) (The National Insurance Company Limited) on false grounds. Had the respondent No.1 (complainant) got estimate from the repairer for repairing charges before burning of the vehicle, he could have submitted claim before the Insurance Company or intimated the Insurance Company, but the respondent No.1 (complainant) with mala fide intention obtained insurance policy from respondent No.4 (O.P.No.4) (The National Insurance Company Limited). Therefore, the appellant (O.P.No.1) (The Oriental Insurance Company Ltd.) is not liable to indemnify the respondent No.1 (complainant) and learned District Forum has wrongly fastened the liability to pay compensation on the appellant (O.P.No.1) and exonerated the respondent No.4 (O.P.No.4), therefore, the impugned order passed by the learned District Forum, is not sustainable in the eye of law and is liable to be set aside.
10. Shri R.K. Bhawnani, Shri Manoj Prasad and Shri Rakesh Puri, learned counsel appearing for the respondent Nos.1, 2, 3 and 5 respectively, have supported the impugned order.
11. Shri Manoj Prasad, learned counsel appearing for the respondent No.4 (O.P.No.4) (The National Insurance Company Ltd.) argued that the respondent No.1 (complainant) did not inform the Insurance Company regarding the accident of the vehicle and he obtained insurance policy from the respondent No.4 (O.P.No.4) after suppressing the material fact, therefore, if any damage was caused to the respondent No.1 (complainant), the respondent No.4 (O.P.No.4), is not liable to indemnify the respondent No.1 (complainant) and learned District Forum, has rightly exonerated the respondent No.4 (O.P.No.4) from the liability of paying compensation to the respondent No.1 (complainant).
12. We have heard learned counsels for both the parties and have also perused the record of the District Forum.
13. The respondent No.1 (complainant) filed documents. Document Annexure A-1 is Motor Vehicle Insurance Cover Note, document Annexure A-2 is Certificate of Registration of vehicle bearing registration No.C.G.15-B-2973, document Annexure A-3 is copy of driving licence, document Annexure A-4 is First Information Report (Under Section 154 Cr. P.C.) etc., document A-5 is application moved under Section 457 Cr. P.C. before the Judicial Magistrate First Class, Pratappur, District Surguja by the respondent No.1 (complainant) on 19.05.2008, document Annexure A-6 is letter dated 21.05.2008 sent by The Oriental Insurance Company Limited to the respondent No.1 (complainant), document 7 and are insurance and finance cover note etc., document Annexure “ A-9 is letter dated 20.06.2008 sent by The Oriental Insurance Company Limited to the respondent No.1 (complainant), document Annexure A-10 is intimated regarding the incident sent by Manoj Dubey to the Police Station, Sadar, Ambikapur, document Annexure A-11 is letter dated 30.07.2008 sent by The Oriental Insurance Company Limited to the respondent No.1 (complainant), document Annexure A-12 is details regarding the parts of the vehicle replaced by New Ranchi Engg. and Denting Works, Ambikapur, document Annexure 13 is letter dated 19.08.2008 sent by Magma Fincorp Ltd. to the respondent No.1 (complainant), document Annexure A-14 is statement of account, document Annexure 15 is Top Sheet, document Annexure A-16 is letter dated 27.08.2008 sent by The Oriental Insurance Co. Ltd. to the respondent No.1 (complainant), document Annexure A-17 is letter dated 15.09.2008 sent by the Oriental Insurance Co. Ltd. to the respondent No.1 (complainant), document Annexure A-18 and 19 are receipts of courier service, document Annexure A-20 is letter dated 11.11.2008 sent by Magma Fincorp Limited to the respondent No.1 (complainant),document A-21 is email sent by R. Jagdish Rao, document Annexure A-22 is letter dated 12.12.2008 sent by Magma Fincorp Ltd. to Mr. Partha Sarthi Ghosh and others, document Annexure A-23 is letter dated 25.12.2008 sent by Nilratan Jaiswal to the OPs on behalf of the respondent No.1 (complainant), document Annexure A-24 are receipts of courier service, document Annexure A-25 is reply dated 29.12.2008 sent by Shri M.L. Yadav on behalf of Magma Leasing Ltd. and others to Shri Nilratan Jaiswal, Advocate, document Annexure A-26 is letter dated01.01.2009 sent by Magma Fincorp Ltd. to the respondent No.1 (complainant), document Annexure A-27 is letter dated 01.01.2009 sent by Magma Fincorp Ltd. to Tulak Raj Devi and order sheet dated 27.05.2008 recorded in Miscellaneous Criminal Case No.59/2008, which was pending before Mr. M.K. Raj, Judicial Magistrate First Class Wadrafnagar Camp Court, Pratappur, memo dated 27.05.2008 and certified copy of Supurdnama, document Annexure A-28 is agreement letter, document Annexure A-29 is particulars recorded by Police Station, Ambikapur, District Surguja (C.G.), nuksani panchnama.
14. The O.P. Nos.2, 3 and 5 have also filed documents. Document D1(1) is Notarial Certificate, document D-1(2) and 1(3) is Power of Attorney, document D-2(1) to D-2(3) is statement of account, document D-3(1) to D-3(6) is Hire Purchase Finance Agreement.
15. The O.P.No.4 has also filed documents. Document D-1(1) to 1(4) is letter dated June 23, 2009 sent by National Insurance Co. Ltd. to the respondent No.2 (complainant), document D-2 is letter dated July 08, 2009 sent by National Insurance Company Limited to the respondent No.1 (complainant), document D-3 is letter dated June 23, 2009 sent by National Insurance Company Limited to the respondent No.1 (complainant), document D-4 (1) is letter dated April 21, 2009 sent to the respondent No.1 (complainant), document D-5 is Private and Confidential Motor Final Survey Report dated 16.07.2007 of Shri Harjeet Singh, Insurance Surveyor and Loss Assessor, document D-6 is Private and Confidential Motor (Final) Survey Report dated 17.10.2008 of Shri Prakash Jain, document D-7 is affidavit of Shri K.C. Eappen, Sr. Divisional Manager, The Oriental Insurance Company Limited, Divisional Office, Korba (C.G.).
16. Learned District Forum, in paragraph No.32 of the impugned order that the O.P. No.4 is not responsible to indemnify the loss caused to the complainant regarding the incident dated 5 and 6-06-2008 and the complainant is not entitled to recover compensation from the O.P.No.4 as prayed in the complaint. The District Forum, has further observed that the O.P.No.1 is responsible for payment of compensation of Rs.2,95,188/- to the complainant for the incident happened on 29.04.2008 and the District Forum has exonerated the O.P.No.4 as well as O.P.Nos.2, 3 and 5 from the liability of paying compensation to the complainant.
17. From bare perusal of the record, it appears that the respondent No.1 (complainant) did not file any estimate or bill regarding the incident dated 29.04.2008. The respondent No.1 (complainant) filed estimate of New Ranchi New Ranchi Engineering Denting, Painting and Welding Garage at Kharasia Naka, Ambikapur for a sum of Rs.3,93,584/-. In the said estimate, the date is mentioned as 19.08.2008. It appears that the said estimate was obtained by the respondent No.1 (complainant) on 19.08.2008. It also appears that the estimate was obtained by the respondent No.1 (complainant) after the occurrence of incident of fire which indicates that the respondent No.1 (complainant) could not submit estimate before the Insurance Company regarding the incident dated 29.04.2008.
18. On 05.06.2008, when the vehicle in question was burn at that time, the vehicle in question was insured with respondent No.4 (O.P.No.4) The National Insurance Company Limited but learned District Forum, has exonerated the respondent No.4 (O.P.No.4) from the liability of paying compensation to the respondent No.1 (complainant) and the liability was fastened upon the appellant (O.P.No.1) (The Oriental Insurance Company Limited) only.
19. Looking to the above facts and circumstances of the case, it is just and proper to remand the matter back to the District Forum for fresh adjudication.
20. Therefore, the appeal filed by the appellant (O.P.No.1) (The Oriental Insurance Company Limited) is allowed, the impugned order dated 30.01.2013 passed by the District Forum is set aside and the case is remanded back to the District Forum with a direction to hear both the parties regarding the liability of the Insurance Company in respect of the incidents took place on 29.04.2008 and 05.06.2008. The District Forum is further directed to decide whether the respondent No.1 (complainant) has filed documents regarding the assessment of loss in the accident and thereafter giving opportunity to both the parties decided the matter afresh on its own merits. Parties are directed to appear before the District Forum on 16.06.2014. Record of the District Forum be sent henceforth to the District Forum.