Date of Filing      : 09.12.2016

                                                                                                                 Date of Disposal: 13.09.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                                  .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                            ..… MEMBER-I

                 THIRU.P.MURUGAN,B.Com.                                                                                      ....MEMBER-II

CC. No.53/2016

THIS TUESDAY, THE 13th DAY OF SEPTEMBER 2022

 

Mrs.Shoba Sukumaran,

W/o.Sukumaran,

No.225, Defence Officers Colony, 

Chennai-32.                                                                                      ……Complainant.

                                                                            //Vs//

1.The General Manager,

   Mahindra First choice service Limited,

   117, Poonamallee High Road,

   Nerkundram, Chennai -107.

 

2.The General Manager,

   Mahindra first choice services limited,

   SsBU building, corporate office,

   Kandaveli East, Mumbai-400 101.

 

3.The Manager, 

   New India Assurance Company Limited,

   O.D.HUB, Pattula’s Road,

   Chennai 600 002.                                                                      …..opposite parties. 

 

Counsel for the complainant                                                  :   Mr.R.K.Sethuraaman, Advocate.

Counsel for the opposite parties 1 & 2                                 : M/sM.Arunachalam, Advocate.

Counsel for the 3rd opposite party                                        : Mr.R.Bharanivel Raaj, Advocate. 

                         

This complaint is coming before us on various dates and finally on 25.08.2022 in the presence of  Mr.R.K.Sethuraaman, Advocate counsel for the complainant and M/s. M.Arunachalam, Advocate counsel for the opposite parties 1 & 2 and Mr.R.Bharanivel Raaj, Advocate counsel for the 3rd opposite party and upon perusing the documents and evidences produced by both parties this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties 1 & 2 along with a prayer to pay a sum of Rs.1,50,000/- towards  repairing charges and Rs.1,00,000/- as compensation for the mental agony caused along with cost of the proceedings.

Sum and substance of the complaint:-

 

The complainant who was the owner of the car Maruti Swift Dzire bearing Registration No.TN-09-BE-7794 submitted that during the month of December 2015 the said vehicle had got damaged in the flood due to heavy flow of water inside the complainant’s house and that the same was entrusted with the 1st opposite party to carry out repairs.  The staff of the 1st opposite party informed the complainant after inspecting the vehicle that an amount of Rs.80,000/- would be the repair cost and insisted the complainant to pay Rs.40,000/- as an advance which was paid by the complainant vide invoice No.228826 dated 28.04.2016.  It was informed that the revised total cost of repairs has to be paid by her to them and later the total amount from the insurance company under own damages claim would be credited to her account directly further assured that they would take entire responsibility of getting the maximum amount from the insurance company.  The vehicle was repaired and delivered to her on 13.05.2016 and the 1st opposite party raised two invoices dated 31.12.2015 No.7011202637 for Rs.31,929/- and another invoice dated 30.05.2016 No.8033409975 for Rs.1,30,553/- totalling an amount of Rs.1,70,482/- and the complainant was forced to make the payment of Rs.1,30,482/- after deducting the advance amount of Rs.40,000/-.  It was promised that they would immediately process the insurance claim viz New India Assurance Company Limited and get the amount credited in her account within a short period.  Believing their words the complainant paid the balance amount of Rs.1,30,482/- by way of cash when the vehicle was delivered to her. The 1st opposite party assured that they had submitted both the invoices to the insurance company and had initiated the process of settling the claim but the complainant received only a sum of Rs.58,439/- from the insurance company under O.D. claim as the 1st opposite party failed to submit the invoice dated 31.12.2015 for Rs.31,929/- and the towing charges of Rs.9,000/-.  When the complainant contacted the insurer it was informed that the 1st opposite party had replaced the parts only with old ones and no new spares were used and hence the insurance company rejected most of the bill amount and settled the claim only for Rs.58,439/- against the invoice amount of Rs.1,38,553/-.  Thus it is learnt that the 1st opposite party has replaced only substandard old spare parts and also failed to submit the invoice amount of Rs.31,929/- for processing the said claim.  When the complainant questioned the 1st opposite party about the substandard old spare parts used they gave evasive replies.  Even for the O.D. claim from the insurance company they assured to get maximum amount after submitting another invoice which they failed to do so. Thus alleging deficiency in service on the part of the opposite parties the present complaint has been filed for the reliefs as mentioned below; 

To direct the opposite party 1 to 3 to pay the sum of Rs.1,50,000/- towards damages for the deficiency in service in both for repairs and also for getting O.D. claim.

To direct the 1st and 2nd opposite party to pay a sum of Rs.1,00,000/- as compensation towards the mental agony and financial hardship caused to her.

To direct the opposite parties to pay the cost of the petition.

Defence of the opposite parties 1 & 2:

The opposite parties 1&2 filed written version disputing the complaint allegations stating that the complainant has not added the insurance company as a party to the proceedings.  Further it is submitted that at the first instance itself, it was informed to her about the non-availability of Towing facility and that she would be required to pay extra charges in order to avail to third party towing facility.  Further they also submitted that the representative did a preliminary inspection and suggested only a tentative repair cost to the complainant for getting it repair.  Further they also highlighted the fact that it is due to the insurance company, New India Insurance Company Limited’s policy, for the subject vehicle of this complaint, it rejected the cash less insurance claim for repair done at non dealership policy.  Thereafter the complainant was informed to pay a sum of Rs.40,000/- as initial advance amount and the insurance claim was only between the complainant and the insurance company and thus the opposite parties only assist the insurance company to process of claim between the customer and the insurance company. Thus it was submitted that at initial stage itself it was communicated to the complainant that the insurance policy availed by the complainant for the car in issue does not recognize the opposite parties as their authorized dealer. It was submitted that the actual cost involving repair work was much more than what was estimated and this aspect was informed to the complainant and only after receiving the consent, the 1st opposite party started the work and the entire amount has been paid to them.  It was submitted by the opposite parties that they have submitted both the invoices to the insurance company dated 30.12.2015 and 30.05.2016 but it was informed to them by the insurance company that due to number of insurance claims lying with them, the bill dated 31.12.2015 for an amount of Rs.31,929/- was misplaced.  But those bills were never asked to be re-submitted by the opposite parties to the insurance company.  The settlement of the insurance claim was not due to sub-standard parts used as alleged by the complainant but only as per terms of flood claim.  The opposite parties denied the allegation that the opposite parties replaced only those parts which were in total lost condition and the purpose of getting a vehicle in good running conditions which was duly acknowledge by the complainant. The complainant does not have any grievances with regard to service of the other vehicle that was serviced by the opposite parties and even in that vehicle the complainant did not get the entire claim of the repairing work from the insurance company.  This act clearly goes to prove that the complainant was well within the knowledge of the reimbursement that might come from the insurance company as per the term of insurance policy between them.   The notice sent by the complainant was duly replied which aspect was not mentioned by the complainant.  Thus it was submitted that there is no deficiency in service on their part, the opposite parties 1 & 2 sought for dismissal of the complaint.

Defence of the 3rd opposite party:

The opposite party 3 who was impleaded successfully vide CMP.No.94/2017 had filed written version stating that there is no negligence or deficiency in service on their part and their main defence was that there was no allegation against the 3rd opposite party in the complaint.  It was submitted by them that whenever invoice was submitted to them they had considered the same and the amount had been paid to the complainant.  It was submitted that they were no way connected to the invoices submitted to the complainant by the 1st opposite party. It was only the 1st opposite party who had replaced the damaged parts and hence the 3rd opposite party rejected most of the bill amount and settled only Rs.58,439/- against the invoice amount of Rs.1,38,553/-.  Thus submitting that there was no deficiency in service committed by them, sought for the dismissal of the complaint as there was no cause of action against them.

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A7 were marked.  On the side of opposite parties 1 & 2 proof affidavit was filed and documents Ex.B1 and Ex.B14 were marked. On the side of 3rd opposite party proof affidavit was filed but no document was filed. 

 Points for consideration:-

Whether the allegation of deficiency in service made against the opposite parties 1 to 3 by the complainant has been successfully proved by her by admissible pleadings and evidence?

If so to what relief the complainant is entitled?

Point No.1

On the side of the complainant following documents were filed in support of his allegations; 

Retail/Tax Invoice issued by the 1st opposite party dated 31.12.2015 was marked as Ex.A1;

Retail/Tax Invoice issued by the 1st opposite party dated 30.05.2016 was marked as Ex.A2;

Insurance policy was marked as Ex.A3;

Legal notice issued by the complainant to the opposite parties dated 16.08.2016 was marked as Ex.A4;

Acknowledgement cards for proof of notice were marked as Ex.A5 & Ex.A6; 

Authorization letter dated 13.03.2019 was marked as Ex.A7;

On the side of opposite parties 1 & 2 the following documents were filed in support of their defence;

Vehicle Diagnosis Report dated 09.12.2015 was marked as Ex.B1;

Copy of repair order dated 09.12.2015 was marked as Ex.B2;

Copy of repair order dated 21.01.2016 was marked as Ex.B3;

Retail/Tax Invoice dated 31.12.2015 was marked as Ex.B4;

Copy of Retail/Tax Invoice dated 30.05.2016 was marked as Ex.B5;

Copy of vehicle Diagnosis Report was marked as Ex.B6;

Copy of repair order dated 09.12.2015 was marked as Ex.B7;

Proforma Invoice dated 21.12.2015 was marked as Ex.B8;

Tax Invoice dated 23.12.2015 was marked as Ex.B9;

Legal notice sent by the complainant to the 1st opposite party dated 16.08.2016 was marked as Ex.B10;

Reply notice to the complainant’s counsel to the 1st opposite party dated 12.09.2016 was marked as Ex.B11;

Reply to the complainant by the 2nd opposite party dated 20.09.2016 was marked as Ex.B12;

Rejoinder notice issued by the complainant’s counsel to the 2nd opposite party dated 11.10.2016 was marked as Ex.B13;

Rejoinder to the reply issued by the 2nd opposite party to the complainant’s counsel dated 11.11.2016 was marked as Ex.B14;

Heard the oral arguments adduced by both the parties and perused the written argument filed by them.

To avoid repetition this commission discussed only the necessary averments essential for the adjudication of the dispute. It is the case of the complainant that the opposite parties 1 & 2 failed to submit one of the invoices dated 31.12.2015 for Rs.31,929/- and  also it is their case that the opposite parties 1 & 2 during services/repairs of the vehicle has used only substandard old spare parts and thus had committed deficiency in service resulting in rejection of the insurance claim.  However, the crux of the defence put forth by the opposite parties 1 & 2 was that they had done repair properly as per the standard process and also they submitted both the invoices to the insurance company in time but as the insurance company had misplaced one of the invoices as there were number of insurance claims lying with them.  They never wanted the opposite parties 1 & 2 to re-submit the invoices and submitted that there is no deficiency in service on their part.  It is also their case that it is for the complainant to follow the submission of invoices with the insurance company.  The defence put forth by the insurance company was that they were not liable for any processing of the invoices and they also made a submission that as the 1st opposite party had serviced the vehicle with only substandard and old spare parts they could not honour all the bills submitted to them.

On perusal of the pleadings and evidence submitted by the parties to the complaint this commission is of the view that the deficiency in service was committed only by the opposite parties 1 and 2 for the following reasons;

Though it is submitted by the opposite parties 1 & 2 that they have produced both the invoices before the insurance company and that only the insurance company had lost one invoice, no evidence was submitted by them in proof of the submission of the invoices;

It is never admitted by the insurance company that one of the invoices submitted to them was lost and hence the submission made by the opposite parties 1 & 2 that they were informed by the insurance company that they had lost one of the invoices is a speculative statement;

The complainant cannot be made responsible to find out whether both the invoices were submitted by the opposite parties 1 & 2 and to follow the same to see that both the invoices are honoured as it is admitted by the opposite parties 1 & 2 that they have submitted the invoice to the insurance company.  Hence the complainant has nothing to do with the submission of the invoices to the insurance company and processing the claim;

Admittedly as per the written version of the 3rd opposite party they have settled the invoice dated 30.05.2016 for Rs.1,38,553/- and there is no allegation against the other invoice dated 31.12.2015 and hence it is clear that the other invoice dated 31.12.2015 was not submitted to the insurance company by the opposite parties 1 & 2;

Though it was the allegation of the complainant that the opposite parties 1 & 2 had used sub-standard materials for repairing the vehicle, no effort was taken by the complainant to inspect the vehicle by the technical person and to avail a report.  In such circumstances considering the facts we are of the view that it is the opposite parties 1 & 2 who had failed to submit the invoice dated 31.12.2015 for Rs.31,929/- and hence they should be made liable to pay the amount to the complainant. Thus we hold that the complainant had successfully proved that the opposite parties 1 & 2 had committed deficiency in service.  Thus we answer the point accordingly in favour of the complainant.

Point No.2:

With regard to the relief to be granted to the complainant as we have held above that it is only the opposite parties 1 & 2 who have committed deficiency in service we direct the opposite parties 1 & 2 to pay the invoice amount of Rs.31,929/- to the complainant.  Further we also award Rs.10,000/- as compensation for the deficiency in service committed by the opposite parties 1 & 2 which caused huge mental agony and hardship to the complainant.  Thus we answer the point accordingly.

In the result, the complaint is dismissed against the 3rd opposite party and partly allowed against the opposite parties 1 & 2 directing them

a) To pay the invoice amount of Rs.31,929/- (Rupees thirty one thousand nine hundred twenty nine only) within six weeks from the date of receipt of copy of this order; 

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

d) Amount in clause (a) to be paid within six weeks from the date of receipt of copy of this order failing which an interest of 6% will be levied on the said amount from the date of complaint till realization. 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 13th day of September 2022.

 

   -Sd-                                                    -Sd-                                                   -Sd-

        MEMBER-II                                     MEMBER-I                                  PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 31.12.2015 Retail/Tax Invoice. Xerox

Ex.A2 30.05.2016 Retail/Tax Invoice. Xerox

Ex.A3 ............. Insurance Policy. Xerox

Ex.A4 16.08.2016 Legal notice issued by the complainant to the 1st opposite party. Xerox

Ex.A5 ............ Acknowledgement card. Xerox

Ex.A6 ............ Acknowledgement card. Xerox

Ex.A7 13.03.2019 Authorization letter. Xerox

 

 

List of documents filed by the opposite parties 1 & 2:-

 

Ex.B1 09.12.2015 Copy of vehicle diagnosis report in respect of vehicle bearing No.TN.09BE7794. Xerox

Ex.B2 09.12.2015 Copy of Repair Order –TN09BE7794. Xerox

Ex.B3 21.01.2016 Copy of Repair Order-TN.09BE7794. Xerox

Ex.B4 31.12.2015 Copy of Tax Invoice - TN.09BE7794 Xerox

Ex.B5 30.05.2016 Copy of Tax Invoice - TN.09BE7794 Xerox

Ex.B6 …………… Copy of vehicle diagnosis report in respect of vehicle bearing No.TN 10 K 6959. Xerox

Ex.B7 09.12.2015 Copy of Repair Order TN 10 K 6959 Xerox

Ex.B8 21.12.2015 Copy of Profoma Invoice- TN 10 K 6959 Xerox

Ex.B9 23.12.2015 Copy of Tax Invoice - TN 10 K 6959 Xerox

Ex.B10 16.08.2016 Copy of legal notice sent by the complainant. Xerox

Ex.B11 12.09.2016 Reply notice to the complainant’s counsel. Xerox

Ex.B12 20.09.2016 Reply to the complainant. Xerox

Ex.B13 11.10.2016 Rejoinder notice. Xerox

Ex.B14 11.11.2016 Rejoinder to the reply dated 12.09.2016. Xerox

 

 

List of documents filed by the 3rd opposite party:- 

 

Nil

 

 

       -Sd-                                                    -Sd-                                                    -Sd-

MEMBER-II                                        MEMBER-I                                        PRESIDENT