Tamil Nadu

North Chennai

243/2013

B.Ramalingam,S/o.Balakrishnan, - Complainant(s)

Versus

Gurudev Motors Pvt Ltd,Super A3&A4 Guindy Industrial Estate, - Opp.Party(s)

M/s.M.Dhamodharan

31 Jul 2017

ORDER

 

                                                            Complaint presented on:  23.12.2013

                                                                Order pronounced on:  31.07.2017

 

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

       2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,            PRESIDENT

                    THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

MONDAY THE 31^th DAY OF JULY 2017

C.C.NO.243/2013

 

B.Ramalingam,

S/o. Balakrishnan,

No.5 Ambedkar Nagar,

First Cross St., Kolathur,

Chennai – 600 099.

                                                                                    ….. Complainant

 

..Vs..

1.Swami Dhas Nadar, Service Manager,

Gurudev Motors Pvt. Ltd.,

Super A3 & A4 Guindy,

Industrial Estate,

Guindy,

Chennai – 600 032.

 

2. The Manager,

Bajaj Allianz General Insurance

Company Limited,

Old No.276 & 277 New No.497 & 498,

Poonamallee High Road,

Isana Kattima Building,

Chennai – 600 106.

 

.....Opposite Parties

Date of complaint                                    : 24.12.2013

Counsel for Complainant                         : M.Dhamodharan & R.Subramaniam

                                                                   Anisree Sangavi   

Counsel for 1^st Opposite Party                   : M/s. BFS Legal,

                                                                      Mr.P.V.Balasubramaniam,

                                                                      D.Ferdinand, K.M.Aasim Shehzad,

                                                                      Fanny Rajan                                                  

 

Counsel for 2^nd Opposite Party                        : M.B.Gopalan, N.Vijayaraghavan &

                                                                      M.B.Raghavan 

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the Opposite Parties to pay a compensation of Rs.5,00,000/- to rectify the repairs in the vehicle  and also for mental agony with cost of the Complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant purchased a Skoda Fabia Car bearing registration No.TN 05 AM 5744 from the 1^st Opposite Party on 05.03.2012. The car was insured with the 2^nd Opposite Party for the period 01.03.2013 to 28.02.2014. On 28.07.2013 the Complainant went to Thirukoilur in Villupuram District and on his way at a village called Andarayanallur at about 9.30 a.m , there was thumping sound and a stone object hitting under the chassis of the vehicle on the road, immediately, the Complainant stopped the vehicle to ascertain the cause for the sound. Then, he          informed the 1^st Opposite Party. The 1^st Opposite Party immediately took action and taken the car to the work shop at Guindy, Chennai. The 1^st Opposite Party also informed the Complainant that he could claim the cost of repair charges of Rs.2,92,004.38/- on 20.08.2013 from the 2^nd Opposite Party. The Complainant also informed the accident to the 2^nd Opposite Party immediate to the occurrence.

          2. The 2^nd Opposite Party did not consider the claim made by the Complainant. However, he sent a letter dated 13.09.2013 that the company surveyor assessed and worked out to a sum of Rs.10,439/- only. The 2^nd Opposite Party also sent a letter dated 27.11.2013, stating that the damage to the engine internal parts are consequence nature and mechanical breakdown failure is not covered under the purview of the policy.   Neither the 2^nd Opposite Party nor the 1^st Opposite Party informed the Complainant about the arrival of the surveyor. Without the knowledge and consent of the Complainant they removed the oil sump and dismantled the engine is negligence and deficiency on their part. Hence the Complainant filed this Complaint to direct the Opposite Parties to pay a compensation of Rs.5,00,000/- to rectify the repairs  and also for mental agony with cost of the Complaint.

3. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

           The 1^st Opposite Party is the distributor of Skoda Cars. The present Complaint has been filed for the vehicle purchased for commercial purpose, as admitted by the Complainant in the Complaint and therefore no Complaint would lies against the provision of the Consumer Protection Act. The Complainant has preferred this vexatious Complaint with the sole intention of causing hardship and to gain unlawfully out of the same. Hence the above facts prove that the Complainant had used the car only for the purpose of business and not for his personal use. Therefore the Complainant has no locus standi to file the Complaint as the car is purchased by him for carrying out his business.

4. The Complainant is the owner of a Skoda Fabia car registered as TN 05 AM 5744 and the said car was purchased from the 1^st Opposite Party Company on 05.03.2012. The 1^st Opposite Party states that it has been recognized in the market as leading distributors of automobiles and therefore has a strong and a long standing reputation for customer satisfaction. The Complainant had towed the car to the 1^st Opposite Party’s workshop on 29.07.2013 and when the car was brought in, the Complainant had informed that the some stone had hit the bottom of the car and the oil had started leaking. The 1^st Opposite Party states that as pointed out by the Complainant himself, the car was damaged by the hitting of the stone and as the damages was due to an external factor; the repairs would be covered by the Insurance Company only. The 1^st Opposite Party had prepared the Job Card No.16732 dated 29.07.2013 and handed over the same to the Complainant. Further, the Complainant had informed that he was inclined to claim insurance benefits from the 2^nd Opposite Party and accordingly the claim form was submitted on 31.07.2013 to the 2^nd Opposite Party.

          5. The surveyor of the 2^nd Opposite Party had examined the vehicle and thereafter, upon the approval of the Insurance Company and after informing the Complainant; the engine was dismantled and further examination was conducted upon the car. After thorough examination of the car; it had prepared the Estimation No.97 dated 20.08.2013 for a sum of Rs.2,92,004.38/- and forwarded the same to the Complainant and the 2^nd Opposite Party. However, the 2^nd Opposite Party had provided approval. Therefore, the 1^st Opposite Party personnel had contacted the Complainant over the phone and informed him about the same and requested him for the approval to proceed with the service jobs. But, the Complainant was not ready to provide his approval and had demanded further time, so that he could talk to his insurance company and revert back about the approval. Despite several reminder calls, there was no approval from the Complainant and therefore, e-mails dated 17.09.2013 and 17.10.2013 were send to the Complainant. Though the Complainant was well aware that the 1^st Opposite Party was not in a position to commence the repair work until the receipt of the approval, no approval was provided by the Complainant. In the meantime, the 1^st Opposite Party had received a letter dated 23.10.2013 from the Complainant making frivolous and unreasonable allegations. The first Opposite Party states that it had sent a reply to the same on 08.11.2013 reiterating the facts and requesting for the Complainant’s approval to proceed with the repairs. No affirmative, reply from the Complainant or promise to pay the charges by the Complainant, the 1^st Opposite Party is unable to complete the repair in the car and it is lying ideal in the 1^st Opposite Party’s workshop occupying space for which the Complainant would be liable to pay parking penalty, as intimated to the Complainant in the reply Letter dated 08.11.2013. Further, the 1^st Opposite Party is ready and willing to proceed with the repair works if the Complainant provides his approval for the estimate amount and promises to pay the same at the time of delivery.  Hence this Opposite Party has not committed any deficiency in service and prays to dismiss the Complaint with cost.

6. WRITTEN VERSION OF THE 2^nd OPPOSITE PARTY IN BRIEF:

          The car TN 05 AM 5744 belonging to the Complainant was insured with them under a package policy. The policy coveres damage due to accidental external means. However, there is no coverage for “consequential loss, depreciation, wear and tear, mechanical and electrical breakdown failure or breakages”.

          7. The claim for damage due to hitting of stone on 24.07.2013. This Opposite Party appointed surveyor who inspected the vehicle and found that there was damage to the oil sump underneath the engine which had suffered damage in the impact. There was no damage due to external means to any other part of the engine. It was found that the vehicle was driven despite leakage of oil which resulted in damage to internal parts of the engine. The surveyor had assessed physical damage caused due to the impact of stone on the engine which was the damage to the oil sump based on which this Opposite Party offered settlement of Rs.10,439/-. The internal damage to the engine caused by driving without oil is not attributable to any “accident by external visible and violent means” and was easily avoidable after  damage to the oil sump. Such internal damage was not due to any insured peril and on the other hand stood excluded by clause 2(a) referred to above. The Complainant’s car is sophisticated modern vehicle with all safety precautions and warning. In the event of leakage of oil, there would be indicators visible clearly to the driver much before the complete draining of the oil, with adequate opportunity to stop and avoid any damage whatsoever to the engine. However, use of the vehicle even after the leakage has resulted in the damage to the extent as suffered by Complainant’s vehicle. Therefore, the Opposite Party’s offer of Rs.10,439/- is therefore fair and reasonable settlement as per terms of the policy, considering the circumstances and nature of damage. This Opposite Party has not committed any unfair trade practice and deficiency in deciding the claim and therefore the Complaint against this Opposite Party is liable to be dismissed with costs.

 

 

8. POINTS FOR CONSIDERATION:

          1.Whether the Complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

 9. POINT NO:1

          Admittedly the Complainant purchased Skoda Fabia Car from the 1^st Opposite Party. The Complainant pleaded in his Complaint that “If the 2^nd Opposite Party would have been settled the claim in time the Complainant could have used his vehicle for his daily trade due to the Opposite Parties negligence and unfair trade practice he could not taken back his vehicle in time from the 1^st Opposite Party carriage both because of their delay in settle this matter by the Opposite Parties he lost his daily business and he has to incur unnecessary expenditure towards private taxi”.  The 1^st Opposite Party  contended that the relying on the  above pleading of the Complainant, he had purchased the vehicle only for commercial purpose as admitted by him and therefore he cannot be considered as a Consumer and he has no locus standi to file this Complaint.

          10. The above statement of the pleading of the Complainant no way leads to the conclusion that the Complainant carrying on any business. All he stated is that he lost his daily business and daily trade is only his day today activities and not any business. Further he had stated that because he had not taken delivery of the vehicle he had unnecessarily spent towards engaging private taxi for his day today work. There is no evidence on behalf of the Opposite Parties that what kind of profitable business is being carried on by the Complainant. Therefore, the Opposite Parties have not established that the Complainant carrying on by using his car for profitable business and further the pleading of the Complainant is no way leads to the conclusion that he is carrying on business and therefore we hold that the Complainant is a Consumer and the Complaint filed by him is very well maintainable in this Forum.

 11. POINT NO :2

          The admitted facts are that the Complainant purchased a Skoda Fabia Car bearing registration No.TN 05 AM 5744 from the 1^st Opposite Party/ dealer on 05.03.2012  and the said car was insured with the 2^nd Opposite Party  under Ex.B3 insurance policy for the period  01.03.2013 to 28.02.2014  and  on 28.07.2013 the Complainant went to Thirukoilur  in Villupuram District and on his way at a village called Andarayanallur at about 9.30 a.m , there was sound due to  a stone object hitting under the chassis of the vehicle on the road, immediately, the Complainant stopped the vehicle to ascertain the cause for the sound and then he informed the 1^st Opposite Party and  they  immediately took action and taken the car to the work shop at Guindy, Chennai and the 1^st Opposite Party also informed the Complainant that the cost of repair charges of Rs.2,92,004.38/- on 20.08.2013 and he can claim the said charges form the 2^nd Opposite Party and the Complainant also informed the 2^nd Opposite Party immediate to the occurrence and the Complainant made claim under Ex.B4 and the  2^nd Opposite Party appointed a surveyor and the surveyor, surveyed the car and  assessed  the claim only for a sum of Rs.10,439/ and based on that the 2^nd Opposite Party  rejected the claim made by the Complainant.

          12. The Complainant alleged deficiencies against the Opposite Parties are that

1. The 1^st Opposite Party without the consent of the Complainant had dismantled the engine and permitted the surveyor is deficiency.
2. The 2^nd Opposite Party rejected the claim made by the Complainant is deficiency.

13. Immediate to the accident the Complainant stopped the vehicle after the car was hit on a stone on the road and he also saw that there was a leakage of oil in the bottom of the car. Then the car was shifted to the 1^st Opposite Party service centre. The 1^st Opposite Party specifically pleaded in his written version that “as pointed out by the Complainant himself, the car was damaged by the hitting of the stone and as the damage was due to an external factor, the repairs would be covered by the insurance company”. In the above statement the 1^st Opposite Party himself admitted that the damage was due to hitting of the stone and to rectify such damage insurance company liable to pay the amount.  

14. Further, the 1^st Opposite Party is the repairer of the vehicle engine etc and hence he is competent person to speak about the damage was caused due to hitting of the stone or consequential damage due to leakage of oil. The 1^st Opposite Party clearly stated in the written version that damage was due to an external factor. Therefore, we hold that the Complainant proved that the damage in the vehicle only due to hitting of the stone and not as alleged by the 2^nd Opposite Party that the Complainant drove the vehicle after accident and after draining of the entire oil and caused consequential damage in the engine.  Since, the damage is only due to the accident and not a consequential one the report of the surveyor Ex.B5 is not accepted. To support the surveyor report no evidence is available. Hence, the surveyor report is rejected and further held that the damage in the Complainant vehicle was only due to the accident.

15. The 1^st Opposite Party/service provider sent Ex.B1 and Ex.B2 mails to the Complainant seeking consent of him to repair the vehicle. The 1^st Opposite Party gave Ex.A5 estimate for a sum of Rs.2,92,004.38/-   to repair the vehicle. Based on   the Complainant made claim and the said claim was rejected by the 2^nd Opposite Party that the leakage of engine oil, which results in starvation of engine oil and leads to seizure of engine and inner components.  We held above that the due to accident only the damage  in the engine was caused and therefore the 2^nd Opposite Party has committed deficiency in rejecting the claim made by the Complainant.

16. However, the 1^st Opposite Party is a repairer and due to leakage of oil to find out the actual cause of damage, he has to say only after dismantling the engine. Therefore, the consent of the Complainant has not obtained to dismantle the engine is not deficiency on the part of the 1^st Opposite Party. Finally, it is held that the 2^nd Opposite Party had committed deficiency in service in rejecting the claim made by the Complainant and the 1^st Opposite Party had not committed any deficiency in service.

17. POINT NO:2

           The Complainant prayed to award a sum of Rs.5,00,000/- towards damages and also to rectify the repairs in the vehicle.  The estimate for repair given by the 1^st Opposite Party is a for a sum of Rs.2,92,004.38/- and for such amount rounded   to Rs.2,92,004/- the Complainant is entitled.  Due to rejection of the claim made by the 2^nd Opposite Party, the Complainant suffered with mental agony is accepted. The claim was rejected in the year 2013. Considering the length of the time from the date of rejection, and the vehicle also was not repaired and used by the Complainant, it would be appropriate to order a sum of Rs.1,00,000/-  towards compensation for mental agony payable by him to the Complainant besides a sum of Rs.5,000/- towards litigation expenses. The Complaint in respect of the 1^st Opposite Party is liable to be dismissed.

          In the result the Complaint is partly allowed. The  2^nd Opposite Party is ordered to pay a sum of  Rs.2,92,004/- (Rupees two lakhs ninety two thousand   and four only) to the 1^st Opposite Party for repairing the vehicle of the Complainant and on receipt of the same, the 1^st Opposite Party shall repair and handover the vehicle  within a period of one month and the 2^nd Opposite Party further ordered  to pay  a sum of Rs. 1,00,000/- (Rupees one lakh only) towards compensation for mental agony to the Complainant  besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses. The complaint in respect of the 1^st Opposite Party is dismissed.

The above amount shall be paid to them within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31^st day of July 2017.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 23.10.2013                   Notice to Gurudev Motors Pvt. Ltd., Guindy,

                                                    Chennai

Ex.A2 dated 23.10.2013                   Notice Skoda Auto India Ltd., Thana

Ex.A3 dated 28.07.2013                   Motor Insurance Claim Form

Ex.A4 dated 07.11.2013                   Reply from skoda Head Quarters, Czech Republic

Ex.A5 dated 20.08.2013                   Approximate Estimate of repairs

Ex.A6 dated 08.11.2013                   Reply from Gurudev Motors Pvt. Ltd.,

Ex.A7 dated 23.10.2013                   Notice to the Insurance Regulatory Development

                                                    Authority, Hydrabad

 

Ex.A8 dated 12.10.2013         &       Reply from skoda

                   10.11.2013

 

18.11.2013 & 17.10.2013                 Reply from skoda

08.11.2013

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

Ex.B1 dated 17.10.2013                   E-mail by the 1^st Opposite Party

 

Ex.B2 dated 08.11.2013                   E-mail & letter by the 1^st Opposite Party to the

                                                   Complainant

 

Ex.B3 dated  NIL                    Insurance Policy with terms and conditions

 

Ex.B4 dated NIL                     Claim Form

 

Ex.B5 dated 22.03.2014                   Draft Survey Report

 

 

                                     

MEMBER – I                                                                PRESIDENT