Adv. For the Complainant: - Sri A.K.Mishra and Others
Adv. For O.P :- Dibyarupa Dash and Others
Date of filing of the Case :- 06.07.2020
Date of Order :- 27.10.2020
JUDGMENT
Sri A.K.Purohit, President
1. The case of the complainant is that, the complainant had purchased a Nissan Terrano vehicle from the O.P. No. 2 in the month of March 2017 which was delivered by the O.P.2 at the door step of the complainant at Balangir. The said vehicle was registered vide Regd. No. OD 02 AL 2603. The said vehicle of the complainant met with an accident in the month of January 2019. To this a surveyor was deputed by the O.P.1 and after due inspection by the surveyor the vehicle was shifted to the workshop of the O.P. 2 for repairing and till date it is in the workshop. The vehicle was insured with the O.P. 1 as per the arrangement made by the O.P. 2 vide policy No. 3001/HI-10706004/00/000. The complainant alleges that as per the policy condition the complainant is not liable to pay the repairing cost but the O.P.2 is demanding repairing charges and the complainant has already paid Rs. 1,20,000/- towards repairing of the vehicle but the O.P. 2 is not releasing the vehicle demanding more charges for which the complainant is debarred from using the vehicle and has sustain financial loss of Rs. 2,00000/- in making payment of depreciation value of the vehicle. Hence the complaint.
2. Although notice has been served on the O.P. No. 1 neither he appears nor has filed his version and hence he was set experte vide order dated 7.9.20. This act of the O.P. 1 shows that he has admitted the case of the complainant.
3. The O.P. 2 contested the case by filing his written version. Besides preliminary objection the O.P.2 submitted that, after receiving approval from the O.P.1 the O.P.2 started repairing of the vehicle and found some faults in the engine of the vehicle and repairing of the same was denied by the O.P.1 which was intimated to the complainant on dated 7.2.20 by the O.P.2 and in response to the same the complainant deposited Rs. 1,20,000/- towards repairing charges as well as cost of spare parts for engine work. The O.P. 2 has already completed the repairing works but the complainant has not yet paid the balance amount of Rs. 5,66,185/- as such the vehicle has not been released. The O.P.2 denied all other allegations of the complainant and claims dismissal of the case.
4. Since the case is ready for final disposal the interim application has not been heard separately and heard along with merits of the case.
5. In support of her case the complainant has filed copy of registration certificate of his vehicle and copy of letter of O.P.1 relating to policy condition. In support of his case the O.p.2 has filed the copy of tax invoice issued by him in repairing the vehicle.
6. Heard both the parties. The learned advocate for the complainant submitted that since the insurance policy is a cashless one and as per the terms and conditions of the policy the complainant is not liable to pay cash and the repairing charges has to be reimbursed by the service center from the insurance company and hence demanding repairing charges by the O.P.2 is illegal. On the other hand the learned advocate for the O.P.2 submitted that the repairing of the engine of the vehicle is not covered with the insurance policy and hence the complainant is liable to pay the repairing cost and hence there is no deficiency in service on the part of the O.P.2.
7. In his written version the O.P.2 has challenged the territorial jurisdiction of this Forum and hence it is necessary to decide the jurisdiction before going in to the merits of the case. Purchase of the vehicle from the O.P.2 has not been denied and in para 3 of the written version the O.P.2 has admitted that the vehicle has been delivered at the door step of the complainant. Therefore the vehicle has been delivered at Balangir and hence part of cause of action arose at Balangir. Accordingly this Forum has territorial jurisdiction to decide the case.
8. Coming to the merits of the case, the contention of O.P.2 that, repairing of the engine of the vehicle is excluded from the policy conditions cannot be accepted for the reason that the insurance company shall indemnify the loss caused to the vehicle due to accident and the O.P.2 has not produce any evidence either by way of affidavit or otherwise to prove that the repairing of the engine of the vehicle is excluded from the policy condition.
9. Accident of the vehicle has not been denied. Cashless insurance of the vehicle has also not been denied. The letter of the insurance company addressed to the complainant available on record reads as follows, “We thank you for choosing your Motor Insurance from ICICI Lombard General Insurance Company Ltd. ( the INSURER ). Your motor insurance policy from the insurer will be generated through Marsh India Insurance Brokers Pvt. Ltd. (MIBPL ) We are committed in bringing to you a satisfying experience for all your Motor Insurance requirements. Keeping your convenience in mind we have arranged to fulfill all your motor insurance needs at your nearest Nissan Authorized dealerships. xxx” This shows that the O.P. 2 is within the network of the insurance company for cashless policy. Therefore the complainant is not liable to pay for the repairing of the accidental vehicle and the O.P.2 is under obligation to reimbursed the charges from the insurance company. The demand of repairing charges from the complainant and detaining the vehicle in the workshop for more than one year amounts to unfair practice.
10. The vehicle of the complainant was duly insured by the time of accident and the insurance company is under obligation to indemnify the loss caused to the vehicle. The authorized service center coming under the network of cashless insurance has the right to reimbursed the repairing charges from the insurance company. In this case demand of charges from the complainant by the O.P.2 and detaining the vehicle till date amounts to deficiency in service on the part of O.P.2. There is no evidence available on record to show that the O.P.No.1 has denied to indemnify the loss and hence there is no deficiency on his part.
11. Due to the aforesaid act of the O.P.2 the complainant is debarred from using the vehicle and sustain financial loss. In her complaint petition- the complainant mentioned his financial loss for an amount of Rs. 2,00000/- and without any reason she had already paid Rs. 1,20,000/- to the O.P.2 which has not been specifically denied by the O.P.2 and hence the complainant is entitled to compensation.
12. Under the aforesaid discussion and material available on record it is concluded that the complainant has successfully proved its case. Hence ordered:-
ORDER
The O.P.No.2 is directed to hand over the vehicle bearing Regd. No. OD-02-AL-2603 to the complainant in a running conditions immediately after receipt of this order and to refund Rs. 1,20,000/- (One Lakh twenty thousands ) to the complainant along with interest @ 9% PA from 9.3.20 to till payment. The O.P.No.2 is further directed to pay Rs. 2,00000/- (Two Lakhs) to the complainant towards compensation and cost within 30 days from the date of receipt of this order.
Accordingly the case as well as the interim application is disposed of.
Order pronounced in the open Forum to-day the 27th day of October’ 2020.
Sd/- Sd/-
(S.Rath) (A.K.Purohit)
MEMBER. PRESIDENT
