BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.225 of 2014

Date of Instt. 9.7.2014

Date of Decision :12.12.2014

Jasvir Kaur aged about 60 years wife of Sarabjit Singh R/o Kala Manj Kothi, H.No.72, Ward No.2, Tehsil Mukerian District Hoshiarpur (Punjab).

..........Complainant

Versus

1. Future General India Insurance Co.Ltd having its office SCO 5 & 6 3rd Floor Puda Complex Court Road, Jalandhar through its authorized representative.

2. A.B Motors (P) Ltd Opposite Dhanowali R.Crossing, G.T.Road, Jalandhar-Phagwara High Way, Jalandhar through its authorized representative.

3. Ford India Pvt Ltd, Village & Post office-Singaperumal Koil, Tiruvallur, Chennai, Tamil Nadu, 603204, through its authorized representative.

.........Opposite parties

Complaint under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.RK Sawraj Adv., counsel for complainant.

Sh.RK Sharma Adv., counsel for opposite party No.1.

Sh.Sanjiv Sharma Adv., counsel for opposite party No.2.

Sh.Nipun Bajaj Adv., counsel for opposite party No.3.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant is permanent resident of the Kala Manj Kothi, H.No.72, Ward No.2, Tehsil Mukerian District Hoshiarpur (Punjab). The complainant has purchased a Ford Figo 1.19 BSTV Chill Diamond white colour having chassis No.MAJIXXMRJIA878.92, Engine No.AS87892 on 25.12.2013 from its previous owner Amanpreet Singh son of Makhan Singh R/o Village Dhami Pind, Tehsil & District Jalandhar and the same was got transferred in the name of the present complainant. The above said vehicle was got insured from the opposite party No.1. The vehicle in question met with an accident in the month of the December 2013 as the vehicle hit the railing of the road, no injury to third person took place as such no FIR was launched. In-spite the fact that the vehicle hit the railing near the road the air bags did not open as it's the safety feature of the vehicle as promised and claimed by the company i.e opposite party No.3. At the time of the accident the vehicle was driven by Karanvir Singh son of Sarbjit Singh who was holding proper and valid driving license. The vehicle in question was being driven by the driver at very normal speed. Immediately after accident, complainant informed the opposite parties regarding the accident. It is pertinent to mention here that after the accident, when the complainant after complying with all the requisition and requirements of the opposite party to get the claim against the insurance policy as stated above, visited a number of times to the office of the opposite parties No.1 & 2, but the opposite parties No.1 & 2 kept on lingering the matter on the one pretext or the other by leveling unnecessary objections and due to non clearing the insurance claim by the opposite party No.1, the opposite party No.2 has not repaired the vehicle and returned back to the present complainant. The estimate prepared by the service centre opposite party No.2 is much higher than the insurance value of the vehicle as such the same falls in the category of the total loss. On such like averments the complainant has prayed for directing the opposite parties to give the claim of the damaged vehicle against the policy alongwith Rs.2 Lacs as damages for mental tension, harassment etc and further Rs.10,000/- as litigation expenses.

2. Upon notice, the opposite parties appeared and filed their written replies. In its written reply opposite party No.1 pleaded that this forum has no territorial jurisdiction to entertain, try and decide the present complaint against the answering opposite party No.1. The complainant is resident of Hoshiarpur, the accident did not took place with in the jurisdiction of this forum and the insurance policy has been issued by the Mumbai Office of answering opposite party No.1 as such this forum has no territorial jurisdiction to entertain, try and decide the present complaint against the opposite party No.1 and the same is liable to be dismissed. The complainant can not take advantage of her own wrongs. On receipt intimation dated 13.12.2013 of loss dated 10.12.2013, to vehicle in accident, the complainant was asked time and again to fulfill the requirements for processing and settlement of the claim by opposite party No.1 vide letters dated 13.12.2013, 24.12.2013 and 17.1.2014 but of no use. The complainant did not let the repairer/opposite party No.2 to start the repair despite request vide letter dated 17.1.2014. The complainant did not allow the repairer to start repair as the complaint of the complainant against the opposite party No.2 & 3 is that the airbag did not open in the accident (which is a safely feature provided in the vehicle) due to which son of the complainant received injuries in the accident. It was told that the complainant is dealing with the opposite parties No.2 & 3 qua the non opening of the airbag of the vehicle in accident causing injuries to her son and that a legal notice dated 28.1.2014 has also been served upon the opposite parties No.2 & 3 and that the complainant will allow the repairer to start repair only after her grievance qua non opening of the airbag of the vehicle is redressed and the complainant is compensated on that account. As the complainant did not allow the opposite party to start repair, the surveyor and loss assessor Balkaran Singh submitted his independent survey report assessing the loss to the tune of Rs.1,73,342/- with the observation and recommendation that actual loss could be reassessed on dismantling of vehicle for repair. The surveyor further recommended that as the vehicle is lying in as it is stage in the garage and the continuously corrosion/rusting/ deteriorating due to wet weather conditions and as such the aggravated damages and consequential loss of the unattended vehicle shall not be covered as per policy conditions. As it was not possible for the opposite party No.1/Future Generali India Insurance Co.Ltd to keep the file open for indefinite period and as the complainant failed to comply the requirements for processing and settling the claim despite letters and final reminder dated 17.1.2014, the claim of the complainant was filed as "NIL CLAIM" vide letter dated 13.2.2014 and the complainant was informed accordingly. It denied other material averments of the complainant.

3. In its separate written reply opposite party No.2 pleaded that there is no privity of contract between the complainant and opposite parties No.2 since the vehicle is not within warranty period. The interest of replying party is only upto repair charges and spare part charges and that too only after repairs and services but in the instant case, the complainant has not authorized the opposite party No.2 to open and repair the vehicle in question. However in the instant case, the vehicle has been stationed in the workshop of opposite party No.2 without consenting the repairs, hence the complainant is liable to pay Rs.250/- per day from 12.12.2013, the date when the vehicle was brought to service station of opposite party No.2 till the actual lifting of vehicle without repair. Till date the complainant is liable to pay Rs.53,000/- to opposite party No.2. It denied other material averments of the complainant.

4. In its separate written reply, opposite party No.3 pleaded that the car in question is admittedly a second hand car which has traveled a mileage of more than 20,000 Kms as on December 2013, without any problem whatsoever. A copy of the vehicle repair history is annexed. Therefore there can not be any allegation as regards manufacturing defect qua this vehicle and consequently, the answering opposite party is neither a necessary nor a proper party to the instant proceedings and may be discharged from the proceedings herein. The main contention of the complainant is that at the time of the accident, the air bags in the vehicle had not inflated and were defective. It is respectfully submitted that Airbags deployment logics are so designed to deploy them in case of extreme collisions, which includes offset collision with an oncoming vehicle and impact with a stationary obstacle where there is a repid deceleration of the vehicle. In the present case there was no sudden deceleration sensed by the sensors for necessitating the deployment of airbags. Furthermore, side impacts involving poles or trees can cause severe cosmetic damage but may not have enough impact force to activate the airbags. The complainant has chosen to file the present complaint in an act of extreme bad faith and have made a false, capricious and frivolous case knowing the same to be untrue. In the present case, the vehicle was driven in a very rash and negligent manner by the complainant as admittedly the vehicle in question had hit the railing of the road. Therefore, it is abundantly clear that the allegation of the complainant with respect to the vehicle being defective is nothing but an afterthought to cover up the rash and negligent manner in which the vehicle is being driven and used. It is obvious that the complainant is unnecessarily dragging the opposite parties into this quagmire in order to get them to accede to its unlawful demands. It denied other material averments of the complainant.

5. In support of his complaint, complainant has tendered into evidence affidavit Ex.CW1/A along with copies of documents Ex.C1 to Ex.C10 and closed his evidence.

6. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.RA alongwith documents Ex.R1 to Ex.R7 and closed evidence. Further learned counsel for opposite party No.2 has tendered affidavit Ex.RW1/A alongwith documents Ex.R-8 to Ex.R-11 and closed evidence. Further learned counsel for opposite party No.3 has tendered affidavit Ex.OP3/A alongwith documents Ex.OP3/1 to Ex.OP3/4 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties and also gone through the written arguments submitted by opposite party No.2.

8. The complainant has got insured his above said car from opposite party No.1 insurance company. It met with an accident in December 2013. The complainant lodged the claim with insurance company but opposite party insurance company has not decided the claim of the complainant on merits so far. The complainant has only prayed for directing the opposite parties to give her the claim of the damaged vehicle against policy alongwith damages and litigation expenses. From the averments contained in the written reply of opposite party No.1 it is evident that the insurance company has filed the claim of the complainant as No Claim or NIL Claim for failure of the complainant to comply with certain requirements. So in the above circumstances we feel that opposite party No.1 should be given an opportunity to decide the claim of the complainant on merits.

9. Although complainant has not specifically claimed any relief against the opposite parties No.2 and 3 but in the complaint he has mentioned that when he after complying with all requisition and requirements of the opposite parties to get the claim against the insurance policy, visited a number of times to the office of the opposite parties No.1 & 2, but the opposite parties No.1 & 2 kept on lingering the matter on the one pretext or the other by leveling unnecessary objections. Opposite party No.2 is only repairer. According to the own version of the complainant the car falls in the category of total loss. Counsel for the opposite party No.2 contended that complainant has not given consent for repair as such the car has not been repaired. It is not case of the complainant that he has asked the opposite party No.2 to repair the car. In the complaint he has also mentioned that at the time of the accident the airbags did not open. The complainant has purchased old car from its previous owner Amanpreet Singh son of Makhan Singh on 25.12.2013 and on that day the car was out of warranty. It is in the affidavit Ex.OP3/A of Tapos Kumar Moitra of opposite party No.3 that airbags deployment logics are so designed to deploy them in case of extreme collisions, which includes offset collision with an oncoming vehicle and impact with a stationary obstacle where there is a rapid deceleration of the vehicle. It is further in the affidavit that in the present case there was no sudden deceleration sensed by the sensors for necessitating the deployment of airbags. Furthermore, side impacts involving poles or trees can cause severe cosmetic damage but may not have enough impact force to activate the airbags. So opposite party No.3 has explained the reasons for non opening of the airbags. On the other hand the complainant has not examined any expert witness to prove that there was any manufacturing defect in the car in question or airbags did not open due to any defect in it.

10. In view of above discussion, the present complaint is disposed off with the directions to the complainant to submit any further document or information which she may desire to opposite party No.1 insurance company within 15 days from the date of receipt of copy of this order and thereafter opposite party No.1 insurance company shall positively decide the claim of the complainant within 45 days on the basis of document already submitted by her and further on the basis of documents produced by her during trial of the present complaint and also on the basis of documents if any which the complainant may further submit to the opposite party No.1 insurance company within the said period of 15 days. In case the claim of the complainant is not decided within the above said 45 days after expiry of said period of 15 days then insurance company/opposite party No.1 shall to be deemed to have accepted the claim of the complainant in toto. Complaint against opposite parties No.2 and 3 stand dismissed. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

12.12.2014 Member President