BHARAT DIESEL vs Pratap Singh

THIS is an appeal against the order dated 25.11.2002 passed by the District Forum, Hardwar whereby the claim of the petitioner was allowed for refund of sum of Rs. 2,43,000/- along with other reliefs.

THE brief facts of the case are that the complainant Nos. 1 and 2 purchased tractor No. UP 10C/1578 on 18.11.1997 for a sum of Rs. 2,43,000/- and the vehicle was insured with complainant No. 3. THE complainant Nos. 1 and 2 had entrusted the tractor to opposite party M/s. Bharat Diesel for servicing on 6.1.1999. After servicing, the mechanic of the opposite party took a trial of the tractor and parked it in the workshop. When the complainant went to bring back the tractor, it was found that the tractor has been stolen from the workshop. THE tractor was stolen due to the negligence and lack of security by the opposite party. THE complainants have purchased the tractor from the opposite party, therefore, they are entitled to get Rs. 2,43,000/- from the opposite party. Since, the tractor was insured with complainant No. 3, therefore, the Insurance Company has also been impleaded as complainant. The opposite party filed the written statement and alleged that the complainant has filed a false allegation, however, it is admitted that a tractor was purchased by the complainant Nos. 1 and 2 from the agency of the opposite party. It is further admitted that the tractor was sent for servicing in the workshop of the opposite party. It is, however, alleged that after the servicing, the complainant Nos. 1 and 2 approached the opposite party along with one stranger and told that the person accompanying them shall take the tractor. Complainant Nos. 1 and 2 started giving the service charge and the said stranger accompanying the complainant took away the tractor on the instructions of the complainant. The said person did not return and the complainant Nos. 1 and 2 lodged the FIR in Police Station. There is no negligence or deficiency in service from the side of the opposite party. The claim can be lodged only with complainant No. 3 if the tractor has been stolen or the suit should have been filed in the Civil Court. In the affidavit of Shri Ashok Kumar on behalf of the opposite party, it was however, pleaded that the complainant had received a sum of Rs. 1,90,000/- from the complainant No. 3 Insurance Company and complainant Nos. 1 and 2 have got no right to file a complaint. In the FIR, the opposite party has not been named.

Against the pleadings in para No. 3 that the complainant Nos. 1 and 2 were accompanied by one stranger, in the counter affidavit of Shri Ashok Kumar, it has been pleaded that when the complainant had come, he was accompanied with two persons out of whom one was told to be his son by the complainant Pratap Singh and the other person was told to be the resident of the village who had got knowledge of tractor machinery. This fact is a new and strange pleading against the written statement.

THE District Forum, after taking the evidence of the parties found that the case of the complainant is proved, allowed the petition against which order, the present appeal has been filed. The moot question is whether the tractor was stolen by some outsider from the workshop of the appellant or it was taken back by some known persons of the complainant Nos. 1 and 2. The factum of entrusting the tractor to the appellant is admitted. It is said that the person of the complainant himself took away the tractor. When the vehicle is entrusted to the workshop for servicing, a receipt is given likewise if the tractor was taken by the complainant Nos. 1 and 2, there should have been specific receipt of delivery to them. No paper, whatsoever, in this connection has been filed by the appellant. It is specific that there is different pleading at different times. One pleading in the written statement, other in the affidavit and the third in counter affidavit regarding the persons accompanying the complainant. Even, otherwise, no person would dare to lodge FIR if a tractor has not been stolen. The finding recorded by the learned Forum is a finding of facts and there is nothing to interfere against that.

THE plea of letter of subrogation was taken by the appellant and it was again pressed here. THEft was from the workshop of the appellant. THE deficiency in service, negligence, lack of security, if any, is from the side of the appellant and not from the side of the Insurance Company that the Insurance Company should suffer for that. THE claimants have purchased the tractor from the appellant and had not even used it. If he had received a shorter amount than actual price from the Insurance Company that will not defeat the claim of the purchaser. It is said that complainant No. 3 is not a consumer and for that the ruling reported in I (2000) CPJ 7 (SC)=II (2000) SLT 86=AIR 2000 Supreme Court 855, Oberai Forwarding Agency v. New India Assurance Co. Ltd., has been referred. THE learned Forum has also allowed the claim but essentially it is in favour of the claimant Nos. 1 and 2. If it is not so, the order in appeal can be modified. THE compensation has been allowed only in favour of the complainant Nos. 1 and 2. It is only in respect of the price of the vehicle that it has been allowed in favour of all the complainants. THE claimant No. 3 is in the nature of a proforma complainant. THE opposite party further referred the ruling reported in III (2001) CPJ 8 (SC)=IV (2001) SLT 616, Navjyoti Investment and Dealers v. National Insurance Co. Ltd., in which it has been held that Insurance Company cannot be said to be a consumer and complaint by Insurance Company on the ground of letter of subrogation is not maintainable. THE same view has been propounded in the ruling reported in III (2001) CPJ 8 (SC)=V (2001) SLT 189, Savani Roadlines v. Sundaram Textiles Ltd. On the strength of the rulings referred above, it can be said that the complaint by Insurance Company is not maintainable and it can be deemed to have been dismissed to that extent. But the complainant Nos. 1 and 2 have got full rights to recover their total amount from the appellant and if they have received any sum from the Insurance Company, it is a matter between them and the Insurance Company and neither the complainant nor the Insurance Company has to suffer for that. ORDER The appeal is dismissed. However, the order is modified to the extent that the complaint shall be deemed to have been allowed only in favour of the complainant Nos. 1 and 2. Appeal dismissed.