DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 303 of 13-07-2010

Decided on : 23 -12-2010

Rajan Garg, S/o Sh. Chiranji Lal Garg, R/o Kothi No. 392, Phase-I, Model Town, Bathinda.

.... Complainant

Versus

1. Cholamandlum MS General Insurance Company Limited, Head Office at Dare House, 2^nd Floor, No. 234, N.S.C. Bose Road, Chennai through its Managing Director.

2. Branch Manager, Cholamandlum MS General Insurance Company Ltd., adjoining wall of Old ICICI Bank Building, opposite Omega Trauma Centre, Near MSD School, Goniana Road, Bathinda.

3. M/s. Chadha Super Cars Pvt. Ltd., Radiant Toyota, near Focal Point, Dabwali Road, Bathinda through its Managing Director

4. Customer Services/General Manager M/s. Chadha Super Cars Pvt. Ltd. Radiant Toyota, Near Focal Point, Dabwali Road, Bathinda.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

For the Complainant : Sh. Ashwani Kumar, counsel for the complainant.

For the Opposite parties : Sh. Vinod Garg, counsel for opposite party Nos. 1 & 2.

Sh. Rakesh Kumar, A.R. of opposite party Nos. 3 & 4.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986, as amended upto date (Here-in-after referred to as 'Act'). The complainant has purchased an Innova Car bearing registration No. PB-03S-0155 from opposite party No. 3. He got insured the said car from opposite party Nos. 1 & 2 vide cover note No. 7951495 valid from 27-06-2010 to 26-06-2011 and paid premium of Rs. 22,844/- to opposite party Nos. 1 & 2. This policy covered 100% losses to the vehicle and its driver. On 30-06-2010, the vehicle of the complainant damaged due to unavoidable circumstances and he parked the vehicle with opposite party Nos. 3 & 4 for repair and the officials of the opposite party Nos. 1 & 2 inspected the vehicle with opposite party No. 3 & 4 on 02-07-2010. In this regard a telephonic message was received by the complainant that his claim was registered and the service No. 480667. The complainant received the vehicle from opposite party Nos. 3 & 4 on 8-7-2010 and paid Rs. 11,634/- vide receipt No. 41 dated 8-7-2010 under protest. The opposite party Nos. 3 & 4 issued bill for Rs. 25,750/- which according to the above said policy was to be paid by opposite party Nos. 1 & 2 as the complainant was entitled to get the said vehicle repaired at their cost but the opposite parties in connivance with each other under compelled circumstances forced the complainant to pay Rs. 11,634/- on the pretext that the said condition was not reflected in the policy. The complainant alleged that it has came to his knowledge that the parties are interlinked with each other for business purposes and cheat the customer. The opposite party Nos. 3 & 4 delivered the vehicle after 6/7 days after the repairs whereas the repair work could have been completed within one or two days. The complainant approached the opposite parties repeatedly and requested them to repair the vehicle without charging any amount but the opposite parties told that although the amount of elite scheme has been charged but the same did not support in their system. After delivery of the vehicle, the complainant requested the opposite party No. 4 to return the damaged and replaced parts but the opposite parties refused to deliver the same. It came to the knowledge of the complainant that damaged parts of the vehicle have been repaired and reinstalled on the vehicle which are still damaged. The complainant approached opposite party No. 4 in this regard but he did not listen to him. He also lodged complaints with the surveyors of opposite party Nos. 1 & 2 and to the opposite parties, but to no effect. Hence, this complaint for issuing directions to the opposite parties to refund Rs. 11,634/- and pay him other additional or alternative relief.

2. The opposite party Nos. 1 & 2 have filed their joint written statement and denied that they are liable to pay 100% losses. The liability of opposite party Nos. 1 & 2 was calculated at Rs. 14,070/- as the option of 75% waiver of depreciation was rarely availed by the insured and as soon as the mistake came to their notice, fresh mail was sent to opposite party No. 3 intimating them about the fresh revised liability at Rs. 21,194/-. The opposite party Nos. 1 & 2 have made the payment of Rs. 21,194/- to opposite party Nos. 2 vide cheque No. 190559 dated 30-07-2010. It was for the opposite party Nos. 2 & 4 to refund the amount charged in excess from the complainant after receipt of mail. The vehicle was of manufacturing year 2008 and the accident has taken placed on 30-06-2010 and accordingly depreciation has been as per terms and conditions of Indian Motor Tariff and from the said depreciation 75% depreciation has been waived as per terms and conditions of the policy. Total cost of parts assessed was Rs. 18,999/- on which 50% depreciation was charged being plastic parts i.e. Rs. 9499/- and 75% of Rs. 9499/- was to be waived and thus depreciation charged was Rs. 2375/- and after charging excess clause of Rs. 1,000/-, the liability came to Rs. 15,624/- and after including labour charges + Taxes thereon of Rs. 5570/-, the opposite party Nos. 1 & 2 were liable to pay Rs. 21,194/- which they have paid to opposite party Nos. 3 & 4. The opposite party Nos. 1 & 2 have also paid Rs. 5,000/- to the complainant vide cheque No. 190274 dated 30-07-2010 on account of daily allowance for five days @ Rs. 1,000/- daily.

3. The opposite party Nos. 3 & 4 filed their joint written statement and took legal objection that this Forum has got no jurisdiction to entertain and adjudicate this complaint as it is of civil nature and for this, they have taken support of the law laid down by the Hon'ble National Commission in First Appeal No. 361 of 2003. There was no pleading or relief sought in the complaint regarding deficiency services and hence this Forum cannot exercise its jurisdiction and in this regard they have relied upon the law laid down by the Hon'ble National Commission and Hon'ble State Commission, Punjab in First appeal No. 361 of 2003, Appeal No. 336 of 1997 and Appeal No. 10 of 1997. It was admitted that complainant paid Rs. 11,634/- to opposite party No. 3 but denied that complainant paid the amount under protest. The invoice was for Rs. 25,750/- whereas complainant was asked to pay only Rs. 11,634/- and balance amount was paid by the opposite party Nos. 1 & 2 under cashless policy. The liability of opposite party no. 3 was limited to the extent of providing the repair facilities upto the limit as directed by opposite party Nos. 1 & 2. When the claim with insurance company was settled then salvage became the property of the Insurance company. The insurance claim of the complainant was settled by the Insurance company after verification of damaged and changed parts. The opposite party Nos. 3 & 4 have pleaded that they have charged the amount which was not disbursed by opposite party Nos. 1 & 2.

4. The parties have led evidence in support of their respective pleadings.

5. We have heard the arguments at length and have gone through the record and perused written submissions submitted by the parties .

6. The evidence led by opposite party No. 3 & 4 vide Ex. R-1 &Ex. R-2 cannot be read as part of evidence as this evidence has been tendered by Sh. Charanveer Singh S/o Sh. Surjit Singh, authorised representative of opposite party Nos. 3 & 4 on 18-11-2009 as an ex employee, in view of the order dated 7^th December, 2010 of the Hon,ble State Commission, Punjab, Chandigarh.

7. The learned counsel for the complainant submitted that complaint is the owner of Innova Car bearing registration No. PB-03S-0155 insured with opposite party Nos. 1 & 2 at the instance of opposite party No. 3 vide cover note No. 7951495 valid from 27-06-2010 to 26-06-2011. The complainant paid premium of Rs. 22,844/- to opposite party Nos. 1 & 2 . The complainant has got his vehicle insured under the Elite policy/scheme. According to this scheme, the car in question was 100% insured as it is a special policy which covers 100% loss to the vehicle as well as to its driver. The said vehicle met with an accident on 20-06-2010. The complainant approached opposite party Nos. 3 & 4 for its repair. The officials of opposite party Nos. 1 & 2 inspected the vehicle on 02-07-2010. The complainant received his repaired vehicle on 8-7-2010 and opposite party Nos. 3 & 4 raised a bill of Rs. 11,634/- which was duly paid by the complainant vide receipt No. 41 dated 8-7-2010 to the opposite party No. 3 under protest. The opposite party Nos. 3 & 4 issued a demand of Rs. 25,750/- for the repair of the vehicle in question, which was to be paid by opposite party Nos. 1 & 2, as the complainant was entitled to get his vehicle repaired free of cost according to the said policy, but under compelled circumstances, he had to pay Rs. 11,634/- to opposite party Nos. 3 & 4. The main contentions of the complainant are that :

   i) That the opposite parties have overcharged for the policy issued to the complainant

   ii) That his vehicle is insured as 100% on which no depreciation is applied.

   iii) The policy was never supplied to him

   Iii) That he demanded labour schedule which was not supplied to him.

   iv) The damaged parts were refitted in the vehicle after repair instead of new parts whereas the opposite parties have charged for the new parts

   vi) The damaged parts which were removed from the vehicle were not handed over to the complainant

8. On the other hand, the learned counsel for opposite party Nos. 1 & 2 denied that policy covers 100% losses to the vehicle and the opposite parties were liable to pay 100% loss to the vehicle. He urged that complainant had opted for 75% waiver depreciation plan. There was also excess clause of Rs. 1,000/-. The complainant opted for Elite policy whereby daily allowance of Rs. 1,000/- per day was allowed. The opposite party Nos. 1 & 2 deputed surveyors to assess the loss and the surveyors conducted survey and assessed the loss to the tune of Rs. 21,194/- after applying depreciation and excess clause as per terms and conditions of the policy whereby 75% waiver on depreciation was allowed. The learned counsel for opposite party Nos. 1 & 2 further submitted that in para No. 7 on merits of their reply, they have admitted that initially due to clerical mistake, 75% waiver of depreciation was not adjusted while calculating the amount payable and liability of opposite party Nos. 1 & 2 was calculated at Rs. 14,070/- as the option of 75% waiver of depreciation was rarely availed by the Insured. As soon as the the mistake came to the notice of opposite party Nos. 1 & 2, fresh mail was sent to opposite party No. 3 intimating them about the fresh revised liability at Rs. 21,194/-. The opposite party Nos. 1 & 2 have made the payment of Rs. 21,194/- to opposite party No. 3 vide cheque No. 190559 dated 30-07-2010. The opposite party Nos. 3 & 4 had to refund the amount charged in excess from the complainant. The manufacturing year of the vehicle was 2008 whereas the accident has taken place on 30-06-2010. Accordingly, depreciation has been charged as per terms and conditions of Indian Motor Tariff and from the said depreciation 75% depreciation has been waived as per terms and conditions of the policy. The total cost of the parts was assessed as Rs. 18,999/- on which 50% depreciation was to be charged being 50% plastic parts i.e. Rs. 9499/- and 75% of Rs. 9499/- was to be waived and thus depreciation charged was Rs. 2375/- and after charging excess clause of Rs. 1,000/-, the liability came to Rs. 15,624/- and after including labour charges + Taxes thereon of Rs. 5570/-, the opposite party Nos. 1 & 2 were liable to pay Rs. 21,194/- which they have paid to opposite party Nos. 3 & 4. The opposite party Nos. 1 & 2 have also paid Rs. 5,000/- to the complainant vide cheque No. 190274 dated 30-07-2010 on account of daily allowance for five days @ Rs. 1,000/- daily. The learned counsel for opposite party Nos. 1 & 2 submitted that letters dated 8-7-2010 and 12-07-2010 written by the complainant to the surveyor show that grievances of the complainant were against opposite party Nos. 3 & 4.

9. Sh. Rakesh Kumar, authorised representative of opposite party Nos. 3 &4 submitted on behalf of them that complainant has not brought true facts in his evidence because after filing the reply by opposite party Nos. 3 & 4 and after receiving the claimed amount from other opposite parties i.e. opposite party Nos. 1 & 2 i.e. Rs. 7124/- vide cheque No. 486630 dated 10-08-2010 out of paid amount of Rs. 11,634/-. Further a sum of Rs. 5,000/- was also paid directly by opposite party Nos. 1& 2 as per information received by opposite party Nos. 3 & 4. The opposite party Nos. 3 & 4 have also challenged Ex. C-13 which is a report of spot inspection and stated that this as gross misuse of provisions of the 'Act'. The spot inspection dated 12-07-2010 tendered in evidence on 19-10-2010 by the complainant is wrong and false and just procured by the complainant while using its influence. The report is vague and far away from the allegation made in the complaint or from the actual facts. He further submitted that during trial of the case, Mr. Charanvir Singh, without authorization and competency appeared before this forum and tendered his own affidavit. Charanvir Singh was not dealing with the repair of the vehicle or with the parts or with the claim etc.,In fact he was acting as service advisor in their business premises. The authorised representative submitted on behalf of opposite party Nos. 3 & 4 that when the Insurance claim is settled by the Insurance Company then salvage becomes the property of the Insurance Company and the Insurance claim of the complainant was settled by the Insurance Company after verification of damaged and changed parts.

10. The complainant has filed this complaint on 13-07-2010 and brought his vehicle alongwith him and requested this Forum to get his vehicle inspected which was parked in the premises of the Forum itself, on the ground that there may be consequential damages to the vehicle in question during the period i.e. 30 days as per provisions of the 'Act', according to which the notices are being served to the opposite parties. To avoid such circumstances, the request of the complainant was accepted by this Forum and Sh. Amarjeet Paul, member of behalf of this Forum and Sh. Sanjay Goyal, an independent person, were appointed for the inspection of the vehicle in question. They inspected the vehicle at 2.30 p.m. and a joint inspection report was filed by them on 13-07-2010. Whenever any disputed article is produced before this Forum while filing the complaint, in routine the same is inspected by the members of this Forum. Since there was a great rush of litigants before this Forum, it was not possible for all the three members of this Forum to leave the Forum and inspect the vehicle in question, so one of the member namely Sh. Amarjeet Paul was requested alongwith one independent person Sh. Sanjay Goyal, an advocate, who was present before this Forum to appear in his case, to inspect the vehicle, so that work of this Forum may not suffer. This spot inspection report was sent to the opposite parties alongwith notices to which they have duly filed reply Later on, at the time of final arguments, the opposite party Nos. 3 & 4 moved an application dated 7-12-2010, on 16-12-2010 before this Forum for considering objection to the test report dated 13-07-2010 and for quashing the order dated 13-07-2010 of this Forum. The order dated 13-07-2010 of this Forum was for admission of the compliant. However, as far as objection regarding test report is concerned, as detailed above, it was carried out at the initial stage for admission of the complaint keeping in view the request of the complainant as was detailed in his complaint that he ran from pillar to post to get his vehicle inspected but the opposite parties paid deaf ear. Moreover, as per provisions of the 'Act', this Forum has no power to review its own order. Thus, application moved by opposite party Nos. 3 & 4 before this Forum on 16-12-2010 stands disposed off alongwith the final complaint without seeking its reply However, the opposite party Nos. 3 & 4 has mentioned in para No. 4 of their written arguments that application dated 16-1-2010 is still pending. No such application dated 16-01-2010 is filed before this Forum as the complaint was filed on 13-07-2010.

11. A perusal of Ex. C-4 shows that policy of the vehicle in question was Elite policy meaning thereby 100% cashless repair for the period from 27-06-2010 to 26-06-2011. The complainant has received the vehicle on 08-07-2010 thereafter he wrote letters dated 08-07-2010 to the surveyors to Sh. Dinesh Goyal & Sh. Atul Gupta, letter dated 12-07-2010 to opposite party No. 2, letter dated 12-07-2010 to opposite party No. 4 Ex. C-8 to Ex. C-11 respectively, mentioning therein that old parts were fitted in his vehicle after repairs instead of new parts and also demanded damaged parts/salvage. But, when no inspection was carried out by the opposite parties, he left with no other alternative to knock the door of this Forum to get his grievances redressed and accordingly he brought the vehicle for inspection before this Forum and also filed complaint.

12. The contention of the complainant is that the opposite parties have overcharged the premium. The complainant has not produced any documentary evidence on file to show that excess premium was charged from him.

    The complainant has alleged that his vehicle was insured under Elite policy i.e. 100% cashless repair in case of damage and as such, the depreciation should not have been applied. This contention of the complainant seems to be true as a perusal of Ex. C-4 shows that there is nothing mentioned regarding depreciation and only Cover Note Ex. C-4 was supplied to the complainant. The policy document containing terms and conditions of the policy was not supplied to the complainant.

    The next contention of the complainant is that he was not supplied with the labour charges schedule as labour charges have been demanded from him on the higher side. After the accident, the opposite parties deputed their surveyor to assess the loss. It was for the surveyor to confirm and allow the labour charges as he is the authorised, competent and technical person to assess what amount is to be charged on account of labour and complainant has not to pay anything directly to the opposite parties when his policy is a cashless policy. Hence, this contention of the complainant is not tenable.

    The complainant has also alleged that policy alongwith terms and conditions was not supplied to him. The policy is contract between the parties and both the parties are bound by them. The opposite parties have not placed on file any evidence that how the policy alongwith the terms and conditions was sent to the complainant. In that case, the contents/terms and conditions of the policy, are not binding on the complainant.

    The main contention of the complainant is that the opposite parties have refitted the old damaged parts after repairs whereas they have charged for the new parts. A perusal of documents placed on file by the complainant shows that he has written many letters to different authorities including the opposite parties, as discussed above, regarding inspection of his vehicle to prove his this contention. The complainant is a professional man and he ran from pillar to post to get justice but when nothing has been done, he finally approached this Forum to seek justice where spot inspection was conducted which reveals as under :-

    “We Amarjit Paul, Member, District Consumer Disputes Redressal Forum, Bathinda, and Sh. Sanjay Goyal, Advocate, being Local Commissioner as appointed by this Hon'ble Forum inspected the vehicle No. PB-03S/0155 which is parked within the premises of the Hon'ble Forum, has observed that right side lock of Front Bumper is broken/damaged and left side front bumper is not fitted properly with nuts and bolts or with any other accessories. The finder sheet of front right side fitted above the wheel is torn one. The left side bumper seems to be old and painted only.”

    The complainant got his vehicle back on 08-07-2010 after repairs and produced before this Forum for inspection on 13-07-2010 and the above said observations of the learned member and an independent person cannot be said to be without any basis because there is only a gap of 3-4 days after repairs and the damaged repaired parts can be seen with naked eye. Moreover, the above said observations are corroborated with the photographs produced on file. Hence, the opposite party Nos. 3 & 4 when did not take any action after repeated requests of the complainant, now at this stage, cannot raise objection that the above said Inspection report be declared as null and void.

    The last contention of the complainant is that the opposite parties have not handed over the damaged/salvage of the parts to him. When the old parts were not removed, there was no question of handing over the salvage to him, even if the parts have been replaced, the salvage becomes the property of the Insurance Company.

13. The opposite parties have also deducted Rs. 1,000/- as excess clause. When no terms and conditions were supplied to the complainant, the opposite party Nos. 1 & 2 are not entitled to deduct Rs. 1,000/- on account of excess clause. The opposite party No. 3 has paid Rs. 7124/- to the complainant during the pendency of the complainant, vide cheque Ex. C-35. The Insurance policy of the vehicle in question was Elite i.e. cashless policy but the opposite parties compelled the complainant to pay the difference amount i.e. depreciation whereas the complainant was entitled to get his vehicle repaired free of charge. Not only this, the opposite party No. 3 even after charging the amount for new parts, refitted the old damaged parts after repairs, which amounts to deficiency in service on the part of the opposite parties.

14. With utmost regard and humility to the authorities submitted by the learned counsel for the opposite parties alongwith written arguments, they are distinguishable on facts.

15. In view of what has been discussed above, this complaint is accepted against all the opposite parties with the following directions :-

    i) The opposite Nos. 1 & 2 are directed to Refund Rs. 1,000/- which they have deducted on account of excess clause and pay Rs. 3,000/- as compensation and cost to the complainant.

    ii) The opposite party Nos. 3 & 4 are directed to replace the following parts with original new branded parts free of costs, as allowed by the surveyor as per Ex. R-6, against which the amount has already been received by opposite party Nos. 3 & 4 from opposite party No. 1 & 2, and get a satisfaction note signed from the complainant in token thereof :-

    a) FR BUMPER

    b) RVM RH

    c) FOG LAMP RH

    iii) The opposite party Nos. 3 & 4 are also directed to pay Rs. 4510/- to the complainant being the difference of amount i.e. Rs. 11,634/- paid by the complainant as depreciation amount to them minus Rs. 7124/- already paid to complainant during pendency of the complaint.

    iv) The opposite party Nos. 3 & 4 are further directed to pay Rs. 5,000/- as compensation and Rs. 3,000/- as cost to the complainant.

    The compliance of this order be made within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record room.

Pronounced

23-12-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member