BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 26th day of August 2017
Filed on : 08-10-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.753/2014
Between
George K. Thomas, : Complainant
S/o. Thomas, Kadalikattil house, (By Adv. George Varghese P.,
Kizhathadiyur P.O., Pala, Kanakkanatt buildings Valavi road,
Kottayam-686 574. z Kochi-18)
And
1. Ford India Pvt. Ltd., : Opposite parties
S.P. Koil Post,
Chengalppattu-603 203, (1st O.P. By Adv. Dominic Antony,
Tamil Nadu State, M/s. Menon and Pai)
rep. by its Managing Director.
2. Kairali Ford, Kerala Cars
Pvt. Ltd., N.H, Bypass, (2nd O.P. By Adv. Binu Mathew,
Palarivattom, Cochin, M/s. Joseph & Kuriyan, 42/2260,
Ernakulam, Pin-682 025. Providence Road, Kochi-682 018)
rep. by its Managing Director.
3. National Insurance Company
Ltd., Middleton Street,
Kolkata, West Bengal-700 071.
4. The Branch Manager,
National Insurance Company
Ltd., Thripunithura Branch Office,
Tripunithura P.O.,
Ernakulam-682 301.
5. Carnation Auto India Pvt. Ltd., (5th O.P.by R.s. Calkura,
Near Hotel B.T.H, Sarovaram, “Srivathsa”, 61/335, Judges
N.H. Bypass, Maradu, Kochi, Avenue, Kaloor, Kochi-17)
Ernjakulam-682 304.
O R D E R
Cherian K. Kuriakose,President.
1. Complainant's case
2. The complainant purchased a Ford Figo car manufactured by the 1st opposite party in the year 2010 on 01-08-2014 the complainant's vehicle broke down in flood in between Kaduthuruthy and Kuravilangad in Kottayam district. The complainant entrusted the car for service to the 2nd opposite party, service agent of the 1st opposite party, on 04-08-2014 as the complainant was informed that the huge amount was required for repairing the vehicle, the complainant thought that the vehicle could be entrusted with the 5th opposite party, a private automotive garage. After a period of 3 weeks the 5th opposite party informed the complainant that they are unable to rectify the problem of the vehicle. Therefore, the complainant took back the vehicle from the 5th opposite party and entrusted the same to the 2nd opposite party again and paid an advance of Rs. 20,000/- towards the expenses of the repair of the vehicle. The 2nd opposite party estimated the repair charges at Rs. 1,20,000/- for servicing the vehicle in good condition. But he was informed that the spare parts have to come from Chennai for carrying out the repairs. The vehicle was insured with the 4th opposite party and therefore the 4th opposite party was informed regarding the accident. However, the 4th opposite party did not conduct any survey of the vehicle, despite there was a comprehensive course. The vehicle was broken down due to the damage caused to the vehicle while it was driven in flood caused by heavy rains. The complainant was not given proper feed back by the 2nd opposite party in time after entrusting the vehicle for repairs. There was a delay in conducting the survey of the vehicle by the insurer/4th opposite party and there was delay in completing the repairs by the 2nd opposite party. The vehicle is still under the custody of the 2nd opposite party, who was liable to reveal the actual damage caused to the vehicle and the actual expenses met for the same. The complainant had suffered a loss of Rs. 22,50,000/- due to the fact that the vehicle was not made available for him to use. The complainant filed this complaint on 7th October 2014 alleging the above said deficiency in service. The complainant therefore prayed for a compensation of Rs. 1,20,000/- from the 4th opposite party/insurance company and Rs. 2,25,000/- towards the loss incurred due to the delay caused by the opposite parties 1 to 4 with costs of the proceedings.
3. Notices were issued to the opposite parties and they appeared pursuant to the same and filed their respective versions.
4. Version of 1st opposit party
There is no averments or allegations made against the 1st opposite party and therefore there is question of deficiency in service from the part of the 1st opposite party. The relationship between the 1st and 2nd opposite parties is on principal to principal basis. The 2nd opposite party authorized service centre of the 1st opposite party had diagnosed engine failure and the complainant was not ready to pay the amount quoted by the 2nd opposite party. The complainant now approached to the 1st opposite party with any complaints. The 1st opposite party is not liable to make any compensation. The complaint against the 1st opposite party is sought to be dismissed
5. Version of the 2nd opposite party
The complaint is not maintainable as the complainant did not approached the Forum with clean hands. The complainant has been using the vehicle for commercial purposes and therefore he is not a consumer. The car was being used by the complainant from 2010 to 2014 without any problem. The complainant drove the vehicle through flooded area on 01-08-2014 on account of which the vehicle stopped in the flood . the service engineers inspected the vehicle on 04-08-2014 when the vehicle was brought to the 2nd opposite party for the 1st time and it was found that the stoppage of the car was due to hydrostatic lock. The water from the flooded area entered into the engine causing serious damage to various parts of the engine. Therefore, the repair charges were on the higher side. Since the complainant felt that the amount estimated by the 2nd opposite party was more, he took the vehicle to the 5th opposite party. However, the 5th op posit party was unable to repair the vehicle and it was therefore brought back to the 2nd opposite party who informed the complainant that the cost of repairs was estimated to be Rs. 1,20,000/-. It was not informed to the complainant that there would be delay in getting the works done as the spare parts have to come from Chennai. Such allegations are denied. The complainant paid Rs. 20,000/- on 11-09-2014 only with the opposite party as an advance of the repair charges. After paying the advance amount the complainant had informed the opposite party that his vehicle was comprehensive insurance vehicle and therefore he would like the repairs to be done with intimation to the insurer and left the vehicle for conducting the survey by the insurer surveyor. The 2nd opposite party was specifically instructed by the complainant not to carry out the repairs on the vehicle unless and until specific instructions are given by him. The 2nd opposite party informed that they could not conduct any repairs without paying at least 50% of the estimated amount. However, the complainant did not make any payment other than the amount of Rs. 20,000/- paid earlier and abandoned the vehicle with the 2nd opposite party. There is no deficiency in service on the part of the opposite party. The exact charges for the repairs could be assessed and calculated only on a through inspection of the vehicle by checking all damages caused due to the misuse of the vehicle. The engine was to be opened for that purpose and the complainant did not authorize the 2nd opposite party to do so. The opposite parties waited for the instructions from the complainant but the complainant did not give any instruction for confirmation to carry out the repair works. The amount of compensation claimed is without any rationale as there was no deficiency in service on the part of the opposite party. The complainant is not entitled for any relief and the complaint is sought to be dismissed.
6. The 3rd and 4th opposite parties filed their version contending inter-alia as follows:
7. The complainant has no cause of action against these opposite parties as there is no deficiency in service. There was no accident as alleged by the complainant. The complainant has no territorial jurisdiction to file this case before this Forum. These opposite parties were not asked to make any survey as alleged. No notice was received by the 3rd and 4th opposite parties from the complainant regarding the alleged accidental damage to the vehicle, until a notice was received from this Forum. The complainant had violated the condition No. 1 of the policy which states that notice shall be given in writing to the insurer immediately upon the occurrence of any accidental loss or damage and in the event of any claim the insured shall give all such information and assistance as required by the company. The conduct of the complainant is in willful breach of the above conditions and hence no claim would lie against the 3rd and 4th opposite parties. The averment that the vehicle broke down due to the flood is denied. Any damage caused to the insured vehicle has to be informed to the insurance company before removing the vehicle from the spot of accident. The complainant did not report the alleged damage to the vehicle when the vehicle was on the spot of accident. The complaint was filed only to take undue advantage and the complaint is liable to be dismissed.
8. The 5th opposite party M/s. Carnation Auto India Pvt. Ltd filed their version stating that the vehicle was brought to the 5th opposite party by the complainant on 06-08-2014 and on thorough inspection it was found that the complaint regarding engine misfiring could only be attended by the authorized dealership and complainant was advised to take the vehicle to the authorized dealership and the consumer had taken the vehicle to the authorized service station. There was no deficiency in service on the part of the 5th opposite party. The complaint is therefore sought to be dismissed against the this opposite party.
9. The evidence in this case consists of the oral evidence of PW1 and Exbts A1 to A5 on the side of the complainant. The opposite parties marked Exbts. B1 to B6 documents. Heard the learned counsel for the complainant and the opposite parties.
10. The following issues were settled for consideration
i. Whether the complainant had proved that there was deficiency in service on the part of any of the opposite parties?
ii. Reliefs and costs
11. Issue No. i. The case of the complainant is that the 2nd opposite party did not repair his vehicle for a long time and there was inordinate delay in repairing the vehicle, despite the fact that he had already paid Rs. 20,000/- towards advance repairing charges. His further case was that the 3rd and 4th opposite parties/insurance company did not process his claim and did not sent any surveyor to assess the loss and damage sustained for the vehicle.
12. The complainant was examined as PW1. He has no case that the vehicle had any manufacturing defects. Therefore, there is no case for the complainant against any manufacturing defects for the vehicle. According to the complainant opposite party 2 demanded the complainant only Rs. 20,000/- and he had paid the amount. Complainant admitted that the vehicle sustained severe damage due to his driving through flooded area. He had already brought the vehicle before the 2nd opposite party and the 2nd opposite party had estimated the expenses for the repairs to the tune of Rs. 1,20,000/-. It is the case of the 2nd opposite party that the complainant did not give instruction to the 2nd opposite party to repair the vehicle anticipating reimbursement from the Insurance company, However, it is brought out in evidence and it is the case of the insurance company that the complainant did not file any claim form before it prior to his approaching this forum for redressal of his alleged grievances against the insurance company. The complainant did not adduce any evidence to prove that he had made a claim form before the 3rd and 4th opposite parties demanding insurance claim. The complainant admitted that the 5th opposite party had opened the engine but they were not liable to repair the engine parts. The 5th opposite party had kept the vehicle 3 weeks for inspection. Complainant during cross-examination admitted that he did not approach the insurance company until he file this complaint. It follows that the complainant had suppressed material facts in the complaint. The complainant has no case that he had given any authorization or work order to start the engine work by the 2nd opposite party. The attempt of the complainant to get the work free of cost. The 2nd opposite party did not provide any service to the complainant as they did not open the engine nor did any repairs on the vehicle. It is true that the 2nd opposite party inspected the vehicle and made a rough estimate of Rs. 1,20,000/- for repairs. If the complainant was not satisfied with the amount of repair charges, nothing prevented by him from taking out the vehicle to get it repairs elsewhere. The 2nd opposite party was not bound to wait for the payment from the Insurance company to repair the vehicle of the complainant. The 2nd opposite party was not provided with the sufficient security to make them believe that the complainant would take back the vehicle after repairs by paying the entire repair charges. If at all there was insurance policy and the insurance company was liable to make the payment, the complainant could only claim the reimbursement of the bill amount paid towards repairs charges. In the absence of any evidence to the contrary we find no deficiency in service on the part of the 2nd opposite party to get the vehicle repaired without getting specific instructions from the complainant for repairs and undertaking that he would pay the amount required for the repairs.
13. During cross-examination PW1 admitted that the vehicle was in running condition and he did not intimate the 3rd and 4th opposite parties regarding any accidental damage caused to the vehicle. The complainant did not intimate the insurance company regarding the brakedown of the vehicle. There was no survey regarding the damages of the vehicle. The complainant has no case that there was no accident for the vehicle . There was no police case or GD entry in the police Station regarding any accident having happened to the vehicle. Complainant admitted that he did not fill up any claim form before the insurance company. Therefore we find that the 3rd and 4th insurance company did not commit any deficiency in service in the facts and circumstances of the case. The 5th opposite party has made only a formal party and the complainant has not made any claim against the 5th opposite party.
14. Issue No. ii. Having found issue number i against the complaint with regard to the deficiency in service in the matter of repairing the vehicle we find that the opposite parties 1 to 6 are not liable to pay any amount by way of compensation to the complainant as claimed for. However, we find that the complainant is entitled to realize Rs. 20,000/- prayed by him to the 2nd opposite party on 11-09-2014 as per receipt number 1270 of the 2nd opposite party, with 12% interest thereon till the date of realization and to return the car to the complainant forthwith.
15. In the result, we direct
i. the 2nd opposite party shall refund Rs. 20,000/- with 12% interest from 11-09-2014 till date of payment to the complainant and
ii. we direct the 2nd opposite party to deliver the vehicle to the complainant in as is were is condition forthwith.
The above said order shall be complied with by the 2nd opposite party within a period of 30 days from the date of receipt of this order.
Pronounced in the open Forum on this the 26th day of August 2017
Sd/-
Cherian K. Kuriakose, President.
Forwarded/By Order, Sd/-
Sheen Jose, Member.
Senior Superintendent. Sd/-
Beena Kumari V.K., Member.
Appendix
Complainant's Exhibits:
Exbt. A1 : Copy of certificate of registration
A2 : Copy of certificate of Insurance of
Private car
A3 : Copy of Driving License
A4 : Copy of receipt dt. 11-09-2014
A5 : Copy of G-mail dt. 28-09-2015
A6 : Copy of customer details
Opposite party's Exhibits :
Exbt. B1 : Copy of dealer sales and service
agreement dt. 07-03-2009
B2 : Copy of repair order dt. 15-09-2014
B3 : Vehicle repair History dt. 14-11-2014
B4 : Ledger Account dt. 01-09-2014
B5 : Copy of General Driving Hints
B6(a) : Private car package policy
Series
B6(b): Certificate of Insurance of Pvt. Car
B6(c): Copy of Private car policy B Package
B6(d): Copy of policy
Deposition:
PW1 : George K. Thomas
Copy of order despatched on :
By Post: By Hand:
