ORDER

               (Passed this on-23rd   December, 2016)

Shri Shekhar P. Muley, President.

01.   This is a complaint against Hyundai Manufacturing company, its local Dealer and Reliance Insurance company regarding non repairs of the vehicle of the complainant.

02.   Facts in short are that the Opposite Party No.-2 is a manufacturing company of Hyundai cars and O.P. No.-1 is its local Dealer. The O.P. No.-3 is a Reliance insurance company. The complainant is the owner of EON model car manufactured by the O.P.-2, which was purchased from the O.P.-1 on 20.1.2012. It was insured with the O.P.-3 for the period from 18.01.2012 to 17.01.2013. It was a comprehensive policy with Own Damage Claim. On 16.06.2012 there was a slight accident to the car, in which the coolent pipe and radiator of the car got damaged. The coolent was completely drained out causing stoppage of the engine. The O.P.-1 was immediately informed. The car was towed to the workshop of the O.P.-1 on 18.06.2012. The O.P.-3 was then informed. The O.P.-1 assured him of repairs since the car was in warranty period and insured. In July 2012 the O.P.-1 informed the complainant about completion of repairs and asked him to pay the extra expenses, which were in addition to the expenses allowed by the O.P.-3, and take back his car.

03.   When the complainant inspected the car he noticed that the O.P.-1 had carried out only minor repairs and the engine was not opened, which was totally damaged. When he asked, he was told that the O.P.-1 did not intimate the O.P.-3 about repairs of the engine and therefore the engine was not repaired. He was further told that if the engine was to be repaired he would have to pay additional sum of Rs.30,000/-. Since the engine repairs was covered under the policy, the demand of additional amount was not only unwarranted, but illegal also amounting to deficiency in service. It is alleged that all the O.P.’s acted in connivance with each other to earn more profits. The complainant therefore issued a notice to all the O.P.’s and asked them to repairs his car for which he was even ready to pay the additional amount. The car was lying in the workshop of the O.P. -1 since  long and thereby loss of Rs.2,000/- per day is being caused to him. He has therefore claimed Rs.2000/-per day compensation from 18.06.2012 to 28.09.2012, total Rs.2,04,000/- along with Rs. 1 lakh for mental and physical agony and Rs.10,000/- litigation cost with 12% interest.

04.   All the O.P.’s contested the matter by filing their written versions. The O.P.-1 has denied that the car met with an accident and sustained damages. But it is admitted that the O.P.-1 was informed about stalling of the car. Since the workshop had closed and next day was Sunday, the car was towed to the workshop on 18.06.2012. The complainant placed repair order and requested certain specific repairs. Since the car was under comprehensive policy and the complainant wanted to avail cashless indemnification from the O.P.-3, the O.P.-1 informed the O.P.-3 as regards the damages. He was informed that under the policy he would get cost of new fiber parts to the extent of 55%, metal @15% and there would be compulsory excess of Rs.1,200/- by the insurance company. In terms of the contract between the O.P.-3 and the complainant, the O.P.-3 informed the O.P.-1 not to open the car or to start repair in its absence and without conducting final survey. A Surveyor, Sameer Agrey was appointed and after his survey of the car, he directed the O.P.-1 to carry out the repairs only to the extent of 19 items as listed in the reply, excluding the engine. Since the complainant desired to get his car repaired under insurance, the O.P.-1 informed him that all the repairs would be done in accordance with directions of the O.P.-3 and expenses of repairs disallowed by the            O.P.-3 would have to be borne by him. The complainant directed the O.P.-1 to carry out repairs as approved by the O.P.-3. The O.P.-1 accordingly carried out repairs as per the job card. Since no amount was taken as advance from the complainant nor paid by the O.P.-3, a Credit Invoice was drawn and demand of Rs.26,138/- was raised. The O.P.-1 was to receive Rs.21,800/-from the O.P.-3 and                so  difference  amount  was  demanded  from  the

complainant. The Surveyor made final survey of the repaired car in presence of the complainant.

05.   The job was done to full satisfaction of the complainant and the O.P.-3. It is denied that after repairs it was found that the engine was not starting. It is also denied that the O.P.-3 was not informed by somebody from the O.P.-1 about defects in the engine and its repairs. When it was found that even after repairs the engine was not starting, the car was put to G- Scan. It was found that all sensors were properly working, but there was mechanical problem/ overheating. The O.P.-3 was informed. Again a Surveyor and Loss Assessor visited the workshop in presence of the complainant. They told the O.P.-1 that the damage to the engine was a consequential damage and was not covered under the policy. The complainant was also told that if he desired to get said damage repaired, he alone would have to bear expenses and it would not be indemnified. The complainant then asked the O.P.-1 to give him estimate. Accordingly supplementary estimate of Rs.27,311.35/- was prepared and copy was sent to the O.P.-3 for approval and to the complainant. But neither of them responded, therefore said repairs were not carried out and the car remained in the workshop of the O.P.-1 as the complainant did not give permission for repairs. Thus denying deficiency in service and other allegations, it is prayed to dismiss the complaint.

06.   The O.P. -2  has stated that it operates with all its dealers on Principal to Principal basis. So any omission or errors in servicing of vehicles is the sole responsibility of the concerned dealer. The liability of the O.P.-2 is limited to the warranty. The alleged dispute of partial settlement of claim is between the complainant and the O.P.-3 and the O.P.-2 being the manufacturer of the car has nothing to do with the dispute. Damages or repairs due to accident are not covered under the warranty. It is denied that it acted in connivance with the O.P.-1 and 3 to earn profits. Denying deficiency in service or unfair trade practise on its part, it is prayed to dismiss the complaint.

07.   The O.P.-3 has stated that it has processed the claim after due verification and has paid the claim admissible under the policy. Hence there is no deficiency in its service. The complainant did not raise any objection after settlement of his claim nor did file further claim. It is further stated that after repairs of the car, it was not starting and so the Surveyor was again summoned. On his inspection of the car he noticed that in the estimate submitted to the O.P.-3 there was no mention of damage to the engine. Besides the engine was not damaged because of any accident, but due to failure to take proper care and maintenance of the car by the complainant and it was used without sufficient coolent. Consequently, due to excessive heat the engine got damaged, which comes under consequential loss and therefore not payable under the policy. The Surveyor surveyed the car and assessed the loss and estimated it at Rs.21,920/- as per the guidelines of the O.P.-3 company. The complainant wants to extract money for such damage to his car which did not occur due to an accident. The complaint is about deficiency in service of the O.P.-1 and 2 only. The  O.P.-3 is not liable for their deficiency. The complaint is not tenable against it and hence, prayed for its dismissal.

08.   We have heard the counsels for the complainant and for all the O.P.’s at length. Also perused documents, affidavit evidence and rejoinder. Upon consideration of the same, we record our findings and reasons as under.

FINDINGS  AND  REASONS

09.   Admittedly, the dispute pertains to the damaged engine which has not been repaired by the O.P.-1. The O.P.-1 has admitted that after carrying out repairs of the car allowed by the O.P.-3, the engine of the said car did not start and for its repairs additional estimate of Rs. 27,311/- was given. So the question before us is, whether this additional amount is to be borne by the complainant or it is to be indemnified by the O.P.-3 under the policy. The O.P.-1  or 2 is not under any obligation to repair the engine without being assured of the payment of repair expenses. The O.P.-3 has tried to make out some grounds to justify its refusal to pay addtional amount on the engine repairs. Foremost is the denial of any kind of accident for the damage to the engine, and secondly, the claim once has been settled, subsequent claim for repairs of the engine is not allowed.

10.   If we look at the averments made in the complaint pertaining to the accident, it is bit surprising to note that the mishap caused such a massive damage to the car. It is stated that a minor accident occurred to the car because a dog had suddenly come in front of the car. Nothing more is elaborated on the alleged accident. But the damage caused to the car was bit extensive. In the complaint, damage to its radiator and coolent pipe only is mentioned, but if the Repair Order is seen it shows damages to front bumper, Air intail grill, radiator, condensor, fuel tank, fuel pipe, torsion axel, floor, etc. We fail to comprehend how a minor accident could cause such major damages to various parts of the car. The complainant appears to have suppressed real facts regarding cause of damages to his car. Further it is stated that the engine stopped because the coolent was completely drained. Referring to this averments in the complaint, Ld. counsel for the O.P.-3 argued that it was the cause for damage to the engine and it being a consequential loss to the engine, such loss cannot be indemnified under the terms of the policy. Ld. counsel for the complainant submitted that admittedly the car was towed from the spot and towing was necessitated because the engine was not starting. He further submitted, it was for the O.P.-1 to inform about what damages were there in the car since a layman cannot tell about mechanical failure. It is, thus contended by him that the O.P.’s 1 and 3, in connivance with each other, purposely did not repair the engine and after the claim was settled for other repairs, additional expenses are being demanded for engine repairs from the complainant, which is an unfair trade practice. In this regard, the O.P.-1 has averred it was the duty of the surveyor and Loss Assessor of the O.P.-3 to ascertain all defects and damages sustained by the car.

11.   If the averments in the complaint are perused, it can be said that the complainant had come to know just after the accident that the engine had stopped because coolent had been drained. When it was in his knowledge that the car engine was not starting before it was towed to the workshop, he could also have brought this fact to the notice of the O.P.-1. Besides, it is nowhere mentioned that the engine was damaged in that accident. Here one more thing to be noted is that the O.P.-1 has stated in its job card about necessity of opening the engine as the car was not starting. Its estimate was also given. None of the job card or repair card bears date, but as per the complainant soon after repairs it was noticed that the engine was not starting. We are surprised that the surveyor who had surveyed the car did not state anything about the engine, when undisputedly the car was unable to start. It is contended by Ld. Counsel for the O.P.-3 that damage to the engine was consequential loss or damage due to leakage of coolent and therefore such loss is not covered under the policy. As a matter of fact, there is no positive evidence on this aspect. The surveyor who surveyed the car has not been examined, who was best witness to throw light on this point.

12.   Ld. Counsel for the complainant relied on a judgment in United India Insurance Co. Ltd. v/s Smt. Seema Bhargav I (2004) CPJ 393 ( Chhatt.) wherein the vehicle was dashed against a stone and its oil chamber was damaged. The insurer alleged it was a consequential loss to engine. Holding that consequential loss not proved, insurer was held liable. We have also noted that the assessment made by the surveyor was not based on full inspection of the car since inspection for the purpose of assessing internal damage to the car could not be made. We do not understand why the surveyor did not find it necessary to dismantle the engine to inspect any internal damage, when he was again sent for reinspection.

13.   Ld counsel in his submission, further pointed out that since the car was just lying at the workshop of the O.P.-1 and losing its value, the complainant had filed an interim application for direction to the O.P.-1 to immediately repair the car and the complainant without prejudice to his rights, was ready to pay Rs.30,000/- as demanded illegally by the O.P.-1. The forum after hearing Ld counsels passed order directing the complainant to deposit requisite amount with the O.P.-1 and thereafter the O.P.-1 shall repair the engine and deliver the car to the complainant. The complainant therefore prepared demand draft in favour of the O.P.-1 and applied to repair his car by letter dt/ 5.7.2013. However, the O.P.-1 asked the complainant to sign on a paper containing some terms and conditions before repairs could be undertaken. Without signing the paper the O.P.-1 refused to accept the D.D. and application. Ld counsel for the complainant submitted that such an attitude of the O.P.-1 was in sheer disregard to the forum order as there was no question of signing terms and conditions of the O.P.-1. In reply. Ld counsel for the O.P.-1 submitted that irrespective of the forum order, the terms and conditions are in line of the company circular and instructions which need to be signed by the complainant before carrying out repairs. He further submitted since the O.P.-3 was not going to indemnify the complainant for additional repairs, the complainant was to sign the terms and conditions to safe guard the interest of the O.P.-1 and 2. It is also alleged that the D.D. was neither deposited with the forum nor given to the O.P.-1. Besides, the forum did not restrain it from asking him to sign the terms and conditions before repairs. We have perused the terms and conditions.  There is nothing which could have adversely affected the interest of the complainant had he signed on that paper. Whatever may be the reason, the fact is that the car was not repaired after all even after the direction of the forum. Since the complainant did not seek any action against the O.P.-1 for non compliance of the order, we do not, at this stage, wish to take any action in this regard. 

14.   Ld counsel for the O.P.-3 in his submission stated that the complainant has already received the claim. Now he cannot again make another claim for other repairs. This argument, no doubt, is correct, but we cannot ignore the fact that its own surveyor failed to see the damage to the engine. As a matter of fact, it is contended that damage to the engine was consequential and therefore such loss is not covered under the policy. We have already said damage to the engine was consequential or not is not proved. Because the engine was not opened to find out what exactly was the problem. On the contrary, it appears to have been presumed, due to leakage of coolent the engine got damaged. We, however unable to endorse such view.

15.   Hence, we are of the opinion that there was definitely deficiency in service of the O.P.-3. The O.P.-2 being a manufacturing company is not liable. The O.P.-1 also cannot be held liable as it was not expected to carry out repairs without being paid. However, on payment, it will have to repair the engine. The complainant has claimed per day compensation of Rs.2000/- from 18/6/2012 till repairs of the car is done. In our opinion this is rather exorbitant demand. The forum is not for making the consumer unduly enriched. The complainant, no doubt, could not use the car. But he is not a businessman or was using the car for earning profits. Therefore we do not see how he has been affected financial for non user of the car. He is entitled to compensation for harassment. We therefore,  allow

the complaint against the O.P.-1 and 2 and pass the following order.

ORDER

(1)    The complaint is partly allowed against O.P.-1 and 2.

(2)    The O.P.-1 shall repair the engine of the car and repairs expenses shall be indemnified by the O.P.-2 on receipt of     bills.

(3)    The O.P.-2 is further directed to pay compensation of Rs.-15,000/- (In words Rs.Fifteen Thousand only) for mental and physical harassment and litigation cost Rs.2000/- (In words Rs.Two Thousand only)  to the complainant.

(04)  O.P.No.-1 & 2 shall complied the order within   30 days from the date of receipt of the order.

(05)   The complaint is dismissed against O.P.No.-3.

(06) Copy of the order be given free of cost to the Complainant and all Opposite Parties.