Punjab

Ludhiana

CC/15/598

Maya Devi - Complainant(s)

Versus

Dada Motors - Opp.Party(s)

A.K.Guri Adv.

09 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 598 of 06.10.2015

Date of Decision          :   09.01.2017

 

Maya Devi aged 52 years wife of Shri Charan Singh, resident of House No.263-A, Village Meharban, Ludhiana.

….. Complainant

Versus 

1.Dada Motors (Mahindra & Mahindra), Savitri Complex, Dholewal Chowk, G.T.Road, Ludhiana through its Managing Director.

2.Bharti Axa General Insurance Company Limited, Ist Floor, Ferns Icon, Survey No.28, Doddanekundi, Bangalore-560037 through its Managing Director.

3.Bharti Axa General Insurance Company Limited, Unit No.6 & 7, 3^rd Floor, Kunal Tower, Mall Road, Ludhiana, through its Manager.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.A.K.Giri, Advocate

For OP1                         :         Sh.Vikas Gupta, Advocate

For OP2 and OP3          :         Name already deleted vide orders dated

27.04.2016.

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn of unnecessary details, the case of the complainant is that she purchased new Mahindra Scorpio –MAH001 bearing registration No.PB-10-ER-1354 having engine No.MWE4C12886 and chassis No.MA1TH2MWNE2C32079 on 2.4.2014 from OP1 on assurances of the latter that the vehicle is of high quality and will be defect free. OP1 gave warranty of one year regarding the said vehicle in all respect. OP1 assured the complainant that in case of any defect in any part of the vehicle, the same will be replaced free of cost. It was also assured by OP1 that if any major defect surfaced in the vehicle later on, then complete vehicle will be replaced by OP1. This vehicle was used for about two and half months after purchase. However, on 23.6.2014, the front mirror of the vehicle was found broken. When the complainant approached OP1 along with the vehicle, then employees of OP1 after verifying and checking the vehicle, called upon the complainant to deposit Rs.21,000/- with the cashier of the company and accordingly, she deposited the same. At that time, employee of OP1 directed the complainant to take delivery of the vehicle within 3-4 days, but when the complainant again approached for having delivery of the vehicle, then employees of OP1 did not furnish any satisfactory reply. Rather, they started harassing the complainant on one pretext or the other. Complainant claims to have approached OP1 and its officials time and again, but they claimed that they will charge Rs.2 lac from the complainant and only thereafter, they will deliver the vehicle. After hearing     these words, complainant returned back home and disclosed the same to her family members. Thereafter, complainant along with her husband again approached OP1 and its officials, but they started demanding Rs.5 lac without disclosing reason for such demand. Complainant requested OP1 and its employees for disclosing the reason of such demand, but they did not clarify anything. Thereafter, the complainant approached OP2 and OP3 because the vehicle was fully insured with them vide policy No.33189607. On disclosure of the problem by the complainant to OP2 and OP3, they did not give any satisfactory reply. Under compelling circumstances, complainant has to approach OP1 again and they assured to sort out the problem after discussing with OP2 and OP3 within a short span. Thereafter, the complainant approached Ops many times by claiming that she has suffered a lot due to defective vehicle. By pleading deficiency in service on the part of Ops and by claiming that the vehicle in question has not been delivered by the Ops to the complainant, prayer made for directing the Ops to replace the vehicle with a new one and even pay compensation of Rs.2 lack for adoption of unfair trade practice. Legal expenses of tune of Rs.11,000/- even claimed. Complaint was filed after serving the legal notice dated 27.10.2014.

 2.               In written statement filed by Op1, it is pleaded interalia as if the complaint is not maintainable because cause of action does not accrue against the Op1; complainant has not approached this Forum with clean hands because she suppressed the material facts; complainant is not a consumer because she used the vehicle for commercial activities for earning profits and no wrong has been committed by OP1 and the complaint alleged to be filed for abusing the process of law. Rather,it is claimed that controversy is between the complainant and OP2 and OP3 only, but dragging of OP1 is unnecessary. Vehicle covered a  distance of 7798 Kms as on 24.6.2014, which itself speaks about the extensive use of the same after purchase on 2.4.2014. Complainant tried to make the complaint on warranty of the vehicle, despite the fact that the vehicle met with an accident. In fact, complainant brought her vehicle on 24.6.2014 for accidental repairs by towing the same with other vehicle. OP1 was requested to repair the vehicle under the insurance cover. However, OP1 informed the complainant that she will have to deposit the necessary documents like that of driving license, registration certificate, insurance cover note etc because an insurance claim has to be lodged with the insurer. Complainant disclosed that she is not having the requisite documents and will provide the same in short period. Thereafter, the complainant handed over the license of the driver of the vehicle on 2.7.2014. The estimate of the repair was prepared by OP1 and copy of the same was delivered to the complainant on 3.7.2014. Even claim intimation was given to Bharti Axa vide claim No.F046537. Complainant herself signed on the claim form.                   After that insurance company appointed Mr.Simarpal Singh as surveyor, who inspected the vehicle on 4.7.2014. That surveyor directed OP1 not to repair the accidental vehicle without getting the required documents from the complainant. Complainant visited OP1 on 7.7.2014 and submitted some other documents. As per directions of the surveyor, Op1 had not started the repair work. Later on 18.7.2014, the complainant requested OP1 to start the repair of the car on non cashless basis because she failed to arrange the required documents. Complainant further declared that she will be fully responsible for the consequences accrued due to non submission of the documents. Rs.19,000/- were deposited as advance by the complainant with OP1 on 19.8.2014. Surveyor gave chassis approval only on 24.7.2014. Other parts of the vehicle were ordered on 25.7.2014 and thereafter, repair of the vehicle was started and the same was repaired. Total repair bill of the vehicle was of Rs.2,48,914/-, but insurer approved Rs.1,95,556/-. Remaining amount of Rs.53,358/- was depreciation amount, which was to be paid by the complainant. After deducting advance deposited amount of Rs.19,000/-, balance total payable amount by the complainant is Rs.34,358/-. After repair of the vehicle, when mechanic of the Op1 tried to start the engine, then he found the engine of the car seized. That fact was intimated to the complainant and to the insurance company. Insurance company declined to pay the repair charges of the engine because the same accrued due to negligence of the complainant as the complainant kept on driving the vehicle after accident, despite leakage of the engine oil. That leakage of the engine oil caused seizure of the vehicle and as such, said damage was not covered by the insurance. After refusal by the insurance company to pay the repair charges of engine, Op1 asked the complainant as to whether she wants to get the vehicle repaired on payment and thereafter, the husband   of the complainant Sh.Charan Singh by visiting the premises of OP1 submitted approval for engine repair. OP1 requested the husband of the complainant to deposit the advance amount for repair of the engine, but no advance amount was deposited till date by the complainant or her husband and that is why, the vehicle lying parked in the premises of OP1. There is no deficiency in service on the part of OP1. Complainant purchased the vehicle after having the test drive and satisfying herself about the features and qualities of the vehicle. Vehicle was of best quality is a fact borne from the coverage of 7798 Kms without any fault. Warranty of the vehicle applies only with respect to the mechanical fault. However, engine of the vehicle of the complainant was damaged due to negligence of the complainant because she kept on driving the same after the accident without checking of the leakage of the engine oil. Warranty of the vehicle is to be provided by the manufacturer, but the complainant failed to implead the manufacturer as a necessary party. Admittedly, the complainant used the vehicle for 2 ½ months. Story regarding deposit of Rs.21,000/- at asking of employees of OP1 alleged to be concocted one. Photographs of the vehicle clearly shows that the vehicle was badly damaged in course of accident, due to which, the same could not even        be repaired within 3-4 days. The vehicle is not in driving condition owing to fault of    the complainant and as such, question of sufferance of physical and mental agony does not arise. Each and every other averment of the complaint denied.

3.                Complaint against OP2 and OP3 was dismissed by way of deleting the names after hearing arguments on application filed in that respect vide orders of 27.4.2016.

4.                Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C6 and thereafter, she along with her counsel closed the evidence.

5.                On the other hand, Sh.Inder Mohan Pal Singh, Law Officer of OP1 tendered in evidence his affidavit Ex.RA along with documents Ex.R1 to Ex.R14 and then closed the evidence.

6.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

7.                It is vehemently contended by counsel for the complainant that the vehicle in question was purchased by the complainant from OP1 on assurance of replacement of the defective parts or of vehicle itself, but those defects when pointed out, have not been removed and as such, there is deficiency in service on the part of OP1. Besides, it is contended that loss of amount of Rs.16 lac occurred, due to damage to the vehicle in question because the same retained by OP1 illegally and as such, OP1 should be made liable to bear this loss. The vehicle in question is lying with OP1 since from 23.6.2014 and as such, it is contended that during this period of parking of the vehicle, damage to the vehicle in question is caused. However, no document produced on record to show that any assurance was given by OP1 to the complainant for replacement of the vehicle with new one or for repair of the same free of costs. Warranty for replacement to be provided by the manufacturer is the submission of counsel for OP1 and the same certainly has force. Manufacturer i.e. Mahindra & Mahindra Company has not been impleaded as party and as such, virtually prayer for replacement of the vehicle in question with new one put forth without impleading the necessary party.

8.                 No report of expert produced to show that                                       there is any manufacturing defect in the vehicle. Even request for getting the vehicle examined from the expert has not been submitted and as such, certainly submissions advanced by counsel for the OP1 has force that manufacturing defect in the vehicle in question is not proved at all. As manufacturing defect in the vehicle in question not proved and as such, certainly the complainant not entitled for replacement of the vehicle with new one, particularly when photographs Ex.R3 to Ex.R8 proves the claim of OP1 that the vehicle was brought to the premises of OP1 after the same met with an accident. These photographs Ex.R3 to Ex.R8 reflects as if the vehicle met with an accident. That fact further stand fortified by writing Ex.R12 submitted by the complainant with OP1 on 18.7.2014. Through Ex.R12, complainant claimed that the vehicle in question bearing registration No.PB-10-ER-1354 met with an accident on 24.6.2014 and that is why the same was brought for repair to the premises of Dada Motors(Op1). Through this Ex.R12 itself, the complainant acknowledged as if some of the documents could not be submitted and that is why, she wants the vehicle to be repaired on non cashless basis. Further, through Ex.R12, complainant acknowledged her liability that may accrue due to non submission of complete documents. So, this Ex.R12 enough to establish as if the accidental vehicle in question brought by the complainant to the premises of OP1 for repair.

9.                It is the claim of the complainant that on 23.6.2014, she found front mirror of the vehicle in question lying broken and that is why, Op1 was approached. If the front mirror was found broken, then the same itself is not a manufacturing defect because breakage took place on account of accident of the vehicle as revealed by the contents of Ex.R12. Reference of this consent letter dated 18.7.2014( Ex.R12) even made in repair order Ex.R9. Even reference of “pending document word” made in Ex.R9 and as such, the documentary evidence produced by the OP1 itself establishes that the complainant failed to submit the requisite documents and that is why, repair of the vehicle on cashless basis started in view of the consent given by her through letter Ex.R12. Even in Ex.R9, it is mentioned that engine work started after discussion with the customer and as such, work of the repair of the engine was started by OP1 after obtaining consent of the complainant through Ex.R12 and not before that. As the complainant herself  called upon OP1 to start the repair work on cashless basis by giving writing Ex.R12 and as such, now the complainant is estopped by her act and conduct from claiming that she is not liable to pay the repair charges to OP1.

10.              Perusal of Ex.R11 reveals that final insurer liability on cashless basis was approved for worth of Rs.1,95,556/-, but the facts regarding submission of insurance claim not pleaded and as such, complaint filed by suppressing the material facts in that respect. As and when there is concealment of material facts, then party not entitled to relief on equitable considerations.

11.              At page no.4 of the complaint, it is mentioned that complainant time and again approached OP1 but its officials demanded Rs.2 lac. The dates of these visits or the dates of demand of this amount is not mentioned in the complaint or in the affidavit of complainant and as such, allegations in this respect remains vague. Likewise, the dates of visits by the complainant along with her husband to OP1, when demand of Rs.5 lac alleged to be put forth not mentioned at page no.5 of complaint or anywhere in the complaint and as such, allegations in this respect also remains vague. At page no.5 of complaint, it is mentioned that when the complainant approached OP2 and OP3 for disclosing her problem, then they did not give any satisfactory reply and thereafter, complainant approached them many times again. Dates of such approach not specified at all and as such, allegations in that respect also remain vague. However, document Ex.R11 thereto establish that request for cashless was finally approved for an amount of Rs.1,95,556/-. Receipt Ex.R13 shows that amount of Rs.19000/- was deposited by the complainant with OP1 as advance for repair of the vehicle in question. No receipt produced to show the deposit of Rs.21,000/- by the complainant with Ops or any of them as claimed repeatedly in the complaint and as such, allegations of deposit of Rs.21,000/- by the complainant with OP1 has not been substantiated by any evidence. Rather, plea taken in the written statement qua deposit of Rs.19000/- as advance for repair by the complainant with OP1 is substantiated by receipt Ex.R13=Ex.C2. If receipt for accepted advance amount of Rs.19000/- could have been issued by OP1, then certainly it would have  issued receipt after acceptance of alleged amount of Rs.21000/- also. Non production of receipt of Rs.21000/- by the complainant shows that plea taken regarding deposit of Rs.21000/- is false and that is why receipt Ex.C2 qua deposit of Rs.19000/- alone is produced by the complainant. In view of vagueness of allegations and falsity of plea and suppression of material facts qua passage of insurance claim, certainly complainant is not entitled to any relief as prayed for through this complaint, even though reply to notice Ex.C1 may not have been sent by Ops or the complainant may have suffered alleged loss of Rs.16 lac due to retention of vehicle by OP1. It is so because after submission of request for repair on cashless basis, complainant bound to pay the repair charges to OP1 and OP1 has lien over the vehicle till the amount is paid.

11.              No expert opinion brought on record for proving the manufacturing defect and as such, allegation of manufacturing defect certainly is not proved. Photographs Ex.R3 to Ex.R8 produced on record to show that the vehicle in question met with an accident and as such, after acceptance of claim from the insurance company, complainant estopped from claiming that OP1 not entitled for repair charges. Non disclosure of accidental particulars is also fatal to the case of the complainant.

12.              As a sequel of the above discussion, complaint dismissed, but with the observations that the complainant will be entitled to have the vehicle in question from OP1 after payment of due repair charges. No order as to compensation and litigation expenses is passed. Copies of order be supplied to the parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:09.01.2017

Gurpreet Sharma.