Haryana

Gurgaon

CC/110/2009

Mala Geol - Complainant(s)

Versus

1. Silvertone Motors Pvt. Ltd - Opp.Party(s)

11 Feb 2015

ORDER

 

DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM, GURGAON-122001.

                                                                                                                      Consumer Complaint No.110 of 2009                                                                                                                                                             Date of Institution: 05.02.2009                                                                                                                                                           Date of Decision: 11.02.2015

Mala Geol w/o Rupinder Goel R/o 311 Greater Kailash, Part-I, New Delhi.

                                                                                        ……Complainant.

 

                                                Versus

 

1. Silvertone Motors Pvt. Ltd (Skoda Authorized Dealer) 34/3, near Rajiv Chowk, Delhi Jaipur Road, NH-8, Gurgaon.

 

2. M/s ICICI Lombard General Insurance Co. Ltd, Delhi Birla Towers, 8^th Floor, 25, Barakhama Road, New Delhi, GPO, New Delhi-110001.

 

 

3. M/s Skoda Auto India, Plot No.A-1/1, Shendra, Five Star Industrial Area, MIDC, Tehsil & District Aurangabad through its Director.

 

                                                                                       ….Opposite parties.

                                               

Complaint under Sections 12 & 14 of Consumer Protection Act,1986                                                                 

 

BEFORE:     SH.RAGHVINDER SINGH BAHMANI, PRESIDENT.

                     SMT JYOTI SIWACH, MEMBER.

 

Present:        Sh.Satyavir Sharma, Adv for the complainant.

                    Sh.Sumit Anand, Adv for OP-1

                    Sh.Subhash Grover, Adv for OP-2

                    Sh.P.K.Jha, Adv for OP-3.

 

ORDER       R.S.BAHMANI, PRESIDENT.    

 

              The complainant alleged that she is owner of Skoda Car No.DL-3CAJ-8406 manufactured by OP-3 from its authorized dealer OP-1 and produced Retail Invoice No. SMPL/8914 dated 04.09.2006 for a sum of Rs.11,19,015/- in the name of complainant Mala Goel (C-1). The above said vehicle was duly insured with OP-2 vide Policy No. 3001/502255997/01/000 for the period 24.08.2007 to 23.08.2008 with IDV of Rs.8,90,970/- (C-2). 3^rd paid service of the vehicle was got done from OP-1 on 11.12.2007.  The complainant further alleged that however, her Car has been snatched by some robbers on 04.06.2008 and consequently, FIR No.217/2008 u/s 392 IPC was registered in P.S. Sadar, Gurgaon. Later on the Car was recovered on 18.06.2008, however, in an accidental condition by the police, which was taken on Superdari from the learned trial Court on 20.06.2008. The vehicle was handed over to OP-1 for repair by preparing estimate. The employees of OP-1, however, has confirmed her that the engine was in perfect working condition. The Insurance Company appointed a Surveyor who conducted the survey on 20.06.2008 at the time of handing over the Car to OP-1 who filed its report dated 11.08.2008 after about two months. OP, however, informed the complainant that no estimate was prepared on inspection of the Car. After necessary repair, she has paid a sum of Rs.3,49,567/- to OP-1 vide Invoice No.1/00000  dated 08.10.2008 against Job No.0000040 (C3-A) and Rs.7137/- vide Invoice No1/00000 dated 08.10.2008 against Job No.0000041 (C-3) i.e. total 3,57,495/-. However, OP-1 has taken this amount wrongly and illegally as they have not taken any approval from the complainant for repair. The vehicle, however, was delivered to the complainant on 08.10.2008 i.e. after 3 months and 18 months. She has also to bear even towing charges of Rs.15,000/-. At the time of test drive along with the employees of OP-1 it was found that the work has not been done satisfactorily. Infact, they have replaced the defective parts with duplicate and old parts in the vehicle due to which it again started giving problems to her. Her vehicle was again handed over to another authorized dealer of Skoda i.e. M/s Giriraj Auto (though is not a party to this complaint). The complainant further alleged that OP 2-Insurance Company, however, failed to reimburse the amount borne by her for its repair and thus, OP-1 and OP-2 are deficient in providing services to the complainant. They have caused great harassment and mental agony to the complainant since long. The complainant even suffered great monetary loss for hiring the vehicle for a long period for want of her vehicle. The Car, however, is not working properly and consequently, it was again handed over to M/s Giriraj Motors after six months waiting repairs. They have again another estimate of Rs.1,50,000/-. The Insurance Company OP-2, however, paid only a sum of Rs.2,55,663/- on 12.11.2008. The complainant, thus, claimed reimbursement of the entire amount borne by her from OP-2 Insurance Company. She also claimed Rs. 3 Lacs from OP-1 as old/substandard/defective parts have been replaced in the vehicle. She also claimed compensation for harassment and mental agony for about 3 months 18 days for about Rs.1,60,000/- she also claimed litigation expenses of Rs.10,000/-. The complaint is supported with an affidavit of the complainant.

2.                OP-1 in its written reply while denying the claim of the complainant has taken the objections that the complainant has no cause of action to file the present complaint against the answering OP as she has never approached the answering OP regarding functioning of the Car  after repair and delivery of the Car to her on 08.01.2008 to her. Infact, the complainant has filed the present complaint with malafide to extract money from the answering OP. The complainant has got serviced her vehicle from another authorized dealer on her own without any complaint to the answering OP nor produced any Job Car to show for what purpose the vehicle has been handed over for repair, thus, she has not come to the Forum with clean hands and suppressed the material facts and thus, the complaint is liable to be dismissed. The answering OP has provided complete service to the satisfaction of the complainant which she has even appreciated at the time of delivery of the Car to her on 08.10.2008. Infact, the vehicle was brought in an accidental condition with badly damaged external accessories and the work performed by the answering OP was mainly related to external accessories which was totally damaged. Thus, there is no question of replacement of old and defective parts as alleged by the complainant in her Car which can be observed as per Bills issued by the answering OP dated 08.10.2008. However, as claimed by the complainant some work of external repair cannot be done second time as claimed by her. The vehicle was repaired by the answering OP within three weeks but it was the complainant and the second OP i.e. Insurance Company who delayed the delivery of the vehicle. It is the answering OP who has to bear extra burden for its parking space for keeping it for three and half months unnecessarily. Thus, the complainant has not come to the Forum with clean hands and suppressed the material facts. The complainant has paid Rs.3, 56,704/- and not Rs.3,57,495/- against two Invoices No.1 000004 & Invoice No. 1000005 on account of cost of the items replaced by it. The Job Card is Ann (R-1/3 colly) along with detailed Invoice dated 08.10.2008. It is further alleged that complainant has agreed with terms and conditions of the repair as mentioned in the Job Card. She has been visiting the workshop in between and gave necessary consent to perform the work required on the said vehicle from time to time and gave approval for its repair. It is denied that the Car was delivered to the complainant after payment of Rs.4 Lacs i.e. Rs.3,57,495/- + Rs.15,000/- as towing charges as alleged but have paid only Rs.3,56,704/-. Thus, the complainant has no cause of action to file the present complaint against the answering OP nor they are deficient in providing services to the complainant. Her complaint is false, frivolous and liable to be dismissed with costs.

3                 OP-2 Insurance Company in its written reply while denying the claim of the complainant has taken objections that the complaint is not maintainable in the present form. The complainant has not come to the Forum with clean hands and suppressed the material facts from it. The complainant infact has not provided any claim number assigned to her at the time of alleged information to the answering OP nor has given any details of survey conducted by their surveyor as alleged. Infact, she failed to give any intimation to the Insurance Company regarding accident and conducting of survey. The complainant has not made any specific allegation against the answering OP and thus, there is no deficiency of service on the part of answering OP. The allegations of the complainant are against OP-1. It is further admitted that admittedly the answering OP has made the payment of Rs.2,55,663/- to the complainant on 12.11.2008. Thus, neither there is any cause of action against the answering OP nor they are deficient in providing services to the complainant.

4                 OP-3 the manufacturer of the vehicle in dispute has denied the claim of the complainant on the ground that the complainant has no cause of action against the answering OP as it is not a case of manufacturing defect of the vehicle but it is a dispute between the complainant and the service provider their dealer OP-1 with whom they have relationship on principal to principal basis and have nothing to do with the claim of the complainant against them. The complainant has also not claimed any relief against the answering OP though has claimed only against OP-1 and the Insurance Company OP-2. Hence, the complaint is not maintainable.

5                 We have heard the parties and appraised the material on record carefully. After going through the documents on record we are of the considered opinion that complainant has purchased Skoda Car No.DL-3CAJ-8406 vide Invoice No. SMPL/8914 dated 04.09.2006  for a sum of Rs.11,19,015/-(C-1) and it was duly insured with the OP-2 vide 3001/502255997/01/000 for the period 24.08.2007 to 23.08.2008 with IDV of Rs.8,90,970/- (C-2). However, the vehicle was robbed allegedly on 04.06.2008 on the basis of which FIR No.217/2008 u/s 392 IPC was registered in P.S. Sadar, Gurgaon though no copy of FIR or any other document to prove it produced on record. The complainant further alleged that vehicle  however, was recovered by the Police during investigation on 18.06.2008 which she has obtained  on Superdari from the learned trial Court on 20.06.2008 and was found in a severe damaged condition. No document regarding taking of the vehicle on Superdari produced. The vehicle was, however,  admittedly taken to OP-1 the authorized workshop of OP-3 the manufacturer on 20.06.2008 where its accidental Job Card No.1297 dated 20.06.2008 was prepared and vide Bill dated 08.10.2008 (C-3A and C-3) it was repaired for a sum of Rs.3,49,567/- + Rs.7,137/- i.e. total Rs.3,56,704/-. The complainant, however, has alleged that at the time of its driving she was not satisfied with the repair work done by OP-1 and that it has repaired the vehicle by replacing with duplicate/defective old parts. However, OP-1 has vehemently contested this allegation of the complainant that as per their Retail Invoice dated 08.10.2008 mostly external repair work of the badly damaged part of the vehicle have been repaired by them while the engine was in perfect condition and thus, there is no question of replacement of any part with old or duplicate one nor any cogent evidence was produced to prove her claim as it is duly supported with Invoice Bills dated 08.10.2008 (C-3 & C-3A). The complainant, however, has alleged that she has taken the vehicle to another authorized dealer i.e. Giriraj Motors for its repair for carrying out necessary job work but no documentary proof regarding any repair work done by it has been produced to prove her claim though OP-1 has denied it for want of any documentary proof while OP-2 Insurance Company has also not explained it specifically though they have admitted that they have reimbursed a sum of Rs.2,55,663/- to the complainant on 12.11.2008 which the complainant failed to challenge specifically. OP-3 is the manufacturer and there is no specific allegation against the manufacturer as there was no manufacturing defect in the accidental vehicle. The repair was done by OP-1 the authorized dealer of the manufacturer OP-3 and they have relationship on principal to principal basis and thus, the complainant has no cause of action against OP-3 the manufacturer. The complainant has not sought any relief even against OP-3  but has claimed vaguely regarding delay in delivery of the Car by OP-1 as it has kept it for 3 months and 18 days which, however, have been explained by OP-1 by alleging that the vehicle was ready within three weeks but it is the complainant and the Insurance Company who have taken this long period for survey of the vehicle and settlement of their claim and only on payment to OP-1 Workshop the vehicle was released which has merit as admittedly the payment was made on 08.10.2008 (C-3 & C-3A) and the complainant has not produced any evidence to rebut the claim of the OP-1. Thus, there is no deficiency of service on the part of OP-1 for want of any cogent evidence. Similarly, there is no specific allegation   for non settlement of her claim by them as it is admitted that they have paid her a sum of Rs.2,55,663/- on 12.11.2008 without explaining out of which Bill either of OP-1 or of the alleged Giriraj Motors it has been paid by OP-2. Even the complainant without impleading Giriraj Motors as a party to the complaint has alleged vaguely that they have given a new estimate of Rs.1,50,000/- which she has also been claiming through this complaint by vaguely alleging to reimburse whole of the amount paid by her without explaining to whom it was paid which means as per documents on record she has only paid to OP-1 Rs.3,57,495/- out of which she has probably received Rs.2,55,663/- but has never challenged specifically by producing any survey report or estimate of repair thereof to settle her claim. She even failed to disclose  her claim number filed by her with OP-2. Infact, she has been vaguely making allegations against OP-1 and 2 what to talk about OP-3 the manufacturer without impleading another necessary party M/s Giriraj Motors who has allegedly claimed Bill of Rs.1,50,000/- for repair. There are, however, some documents on file of OP-2 qua Giriraj Motors Pvt. Ltd  dated 07.02.2009 regarding assessment on the basis of Proforma Invoice and also copy of Satisfaction Letter/Discharge Voucher  of ICICI Lombard General Insurance Co. Ltd qua vehicle No.DL-3CAJ-8406 of Mala Goel and after inspection of her vehicle repaired by M/s Giriraj Motors Pvt. Ltd she has confirmed that it has been repaired to her utmost satisfaction and claimed a sum of Rs.1,62,130/- by paying it directly to them  and have accepted the settlement in full and final and discharged all liabilities arising out of this claim upon ICICI Lombard General Insurance Co. Ltd duly signed by the complainant which also clinches the matter which means her claim against M/s Giriraj Motors which is not a party to the complaint has already been satisfied by the Insurance Company and the complainant has concealed this very fact form this Forum. Similarly, she has also given satisfaction note dated 13.02.2009 which is also on the file.

6                 Consequently, in view of the facts and circumstances discussed above the complainant failed to prove any claim against the OPs or even deficiency of service in any manner.

7                 It is also material to note that OP-3 even by filing Misc. Application supported with Vehicle Information belongs to Transport Office of Sheikh Sarai, Delhi proved that the vehicle in dispute is owned by Babita  Singh R/o 29 Block C-1, Raju Park, Khanpur, New Delhi-110000 i.e. vehicle bearing Regd. No.DL-3-CAJ-8406 which means the complainant has already sold the vehicle to Babita Singh during pendency of the present complaint  and thus, it is alleged that complainant is not a consumer u/s 2(1)(d) of Consumer Protection Act, 1986 and thus, the present complaint is not maintainable and liable to be dismissed. In this regard reliance can be placed on Tata Motors Ltd Vs Hazoor Maharaj Baba Des Rajji Chela Baba in R.P.No.2562 of 2012 decided on 25.09.2013 wherein it was held by the Hon’ble National Commission

“that we find that as complainant did not remain consumer after sale of vehicle and he has sold the vehicle without permission of District Forum and has suppressed this fact and has not approached the courts with clean hands, complaint is liable to be dismissed and revision petition is to be allowed.”

8                 Consequently, in view of the law laid down by the Hon’ble National Commission the complainant is not a ‘consumer’ and thus, the complaint is not maintainable before this Forum, hence, it is dismissed.

Copy of this order be sent to the parties free of costs.

 

Pronounced in open court.                           

Dated: 11.02.2015.

                                                                                               President,

                                                                             District Consumer Disputes

                                                                                                                                                                 Redressal Forum, Gurgaon

                 (Jyoti Siwach)

                       Member