ORDER
(Passed this on-05th December, 2016)
Shri Shekhar P. Muley, President.
01. This is a complaint of unfair trade practice and deficiency in service against three different Opposite Parties.
02. Facts of the case in short are that the complainant purchased a vehicle of Mahindra Company, bearing registration number MH-31- CP-6905 from the O.P.-3, the dealer. On 16.5.2010 the vehicle met with an accident in Karnataka State and was damaged. The O.P.-1 is an authorised repair center of Mahindra Company. On 17.05.2011 the vehicle was taken to the O.P.-1 for repairs. The complainant had taken insurance policy of the vehicle from the O.P.-2, an Insurance Company, under which cashless service was provided. The complainant submitted claim form to the O.P.-1 and 2 for repair. On 15.01.2011 a surveyor came and inspected the vehicle and gave estimate/assessment of repair expenses to the complainant and O.P.-1 on 20.01.2011. On 18.06.2010 the complainant told the O.P.-1 that repair expenses would be paid by the O.P.-2. Accordingly, the O.P.-1 sent expenses estimate to the O.P.-2. Thereafter the complainant several times asked the O.P.-1 about repair of his vehicle and he was being told that since necessary materials/ parts were not available delay was being caused for repairs. Since the vehicle was lying there without repairs, he asked the O.P.-1 to return the vehicle as it was to him. On 16.11.2011 he received a letter from the O.P.-1 that it did not receive any intimation for repairs or receive any expenses hence he should pay Rs.150/- per day for parking charges to the O.P.-1. The complainant sent letters to the O.P.-1 and Mahindra Company asking them to repair his vehicle immediately, but to no avail. Hence, he has claimed direction to the O.P.-1 to repair his vehicle immediately and to the O.P.-2 to pay repair expenses to the O.P.-1. He has also claimed compensation and cost from the O.P’s.
03. The O.P.-1 filed its written version and admitted that the vehicle was brought to its garage on 17.05.2010 for repairs and its estimate was also given. It is further stated that it was the duty of the complainant to pay for the repairs. The O.P.-1 is not concerned with the O.P.-2 and till date the O.P.-2 has not given any confirmation that it will pay repair expenses nor the complainant has paid any amount. Therefore repair work could not be undertaken. The O.P.-1 is entitled to demurrage charges @ Rs.150/- per day from the complainant since 17.05.2010. It is further stated that the vehicle was parked in the service station of the O.P.-1 in Karnataka, therefore this forum has no territorial jurisdiction to decide the complaint. There being no deficiency in service, no cause of action arose against it, hence prayed for dismissal of the complaint.
04. The O.P.-2 in its reply stated that as per record the complainant is the owner of the car and it had met with an accident at Singur in Karnataka. It is admitted that the car was insured by it, but the policy was not cashless policy. Upon intimation, the surveyor had visited the garage on 17.05.2010. The complainant was several times asked to supply necessary documents, but he did not supply. Ultimately, the claim was closed as NO CLAIM. The claim was not repudiated. The surveyor has assessed the loss to the tune of Rs.1,45,455/-. The complainant has claimed exorbitant amount on assumption, which cannot be granted. Hence, it is prayed to dismiss the complaint.
05. The O.P.-3 in its reply, except admitting the complainant being the owner of the said car, has denied every averment for want of knowledge. In
fact, there is no specific allegations made against the O.P.-3, hence, it is prayed for dismissal of the complaint.
06. We have heard the argument advanced by the counsels for the parties. Perused documents, affidavit and rejoinder. We record our findings and reasons as under.
FINDINGS AND REASONS
07. At the outset, we would like to settle one issue regarding territorial jurisdiction of this forum to decide the complaint. The O.P.-1 is said to be an authorised Service Station of Mahindra & Mahindra Company. Since it is situated at Bellari in Karnataka State, an issue regarding territorial jurisdiction of this forum is raised. Section 11(2) of the Consumer Protection Act provides that a complaint can be instituted in a Forum within the local limits of whose jurisdiction the O.P. or each of the O.P’s, where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Sub-sec (2) (b) provides that where there are more than one O.P., either the permission of the Forum is given or non residing O.P. acquiesce in such institution. In the present case other two O.P’s are within the limits of the forum. The complainant has taken permission of the forum to institute the complaint in this forum. Therefore the objection regarding jurisdiction has no merits and therefore rejected.
08. The complainant has stated that he had taken cashless policy under which each and every repair expenses were taken care of by the O.P.-2. But the O.P.-2 has categorically denied it. We have perused the insurance policy from which it is not possible to infer whether it was cashless or not. That apart, according to the O.P.-2 the complainant despite reminders failed to supply papers for reimbursement of expenses and therefore the claim was closed as No Claim. The counsel for the O.P.-2 brought to our notice copies of letters and reminders to the complainant. The complainant has denied having received any letter. The O.P.-2 has produced copies of acknowledgments thereof. But there is no seal of the Post Office on any of the acknowledgments. Therefore we are unable to accept their authenticity. Consequently, we are not inclined to accept that the O.P.-2 had asked for papers but those were not provided.
09. Admittedly, the survey of the car was done and report was also submitted. As per the report final assessment was Rs.-1,48,455/-. When the assessment was done why it was not communicated to the complainant and to the O.P.-1 is not understood. The O.P.-1 has stated that he did not receive any communication from the O.P.-2 regarding payment of expenses. There was no difficulty for the O.P.-1 to start repairs if he was assured of the payment by the O.P.-2 and the complainant. If the policy was not cashless, then whatever expenses were payable under the policy should have been released by the O.P.-2. The O.P.-1 has estimated the expenses to the tune of Rs.-4,36,082.75/- which much more than the assessment done by the surveyor. The complainant has not made any grievance regarding assessment. Therefore we do not say that it is a wrong assessment. The difference amount will have to be borne by the complainant besides demurrage charges. Because the O.P.-1
cannot be held guilty of deficiency in service unless he is paid. His anxiety is not unwarranted, if he repairs the car without guarantee of payment of expenses.
10. Thus considering the facts, we hold that the O.P.-2 by not assuring of reimbursement to the complainant made deficiency in service. The O.P.-3 is unnecessarily made a party. He has nothing to do with the grievance of the complainant. In the result we pass the following order.
ORDER
- The complaint is partly allowed against the
O.P, No.-1 and 2.
(02) O.P.No.-2 is directed to release amount of Rs.-1,45,455/- (In words Rs. One Lac, Forty Five Thousand & Four Hindered Fifty Five only) towards repairs expenses to the O.P.No.-1 and balance amount of the repairs expenses be paid by the Complainant to the O.P.No.-1.
(03) On receipt of payment, the O.P. No.-1 shall repair the vehicle of Complainant and after repair hand it over to the Complainant.
(04) The O.P.No.-2 is further directed to pay compensation of Rs.-10,000/- (In words Ten Thousand only) for mental & physical harassment and litigation cost of Rs.-3000/- (In words Three Thousand only) to the Complainant.
(05) O.P.No.-1 & 2 shall complied the order within 45 days from the date of receipt of the order.
(06) The complaint is dismissed against O.P.No.-3.
(07) Copy of the order be given free of cost to the Complainant and O.P.s’
