Punjab

Sangrur

CC/464/2014

Ajay Kumar - Complainant(s)

Versus

HRBM Nissan - Opp.Party(s)

Shri Jagtar Singh

12 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

                                                               

 

                                                Complaint No.    464

                                                Instituted on:      12.08.2014

                                                Decided on:       12.05.2015

 

 

Ajay Kumar aged 34 years son of Sham Lal, resident of Preet Nagar, Gali No.1, Bhawanigarh, District Sangrur.

                                                        ..Complainant

                                        Versus

1.             HRBM Nissan A unit of HRBM Auto Mobiles Pvt. Ltd. Patiala Road, Village Bhindran, District Sangrur through its authorised signatory.

2.             Nissan Motors India Pvt. Ltd. ASV Ramana Towers, 37-38, Venkatnarayana Road, (Theayaraya Nagar) T. Nagar 600 017 Chennai (India) through its Managing Director.

3.             Bajaj Allianze General Insurance Company Ltd. GE Plaza, Airport Road, Yarwada, Pune, Maharashtra 411 006 through its Managing Director.

                                                        ..Opposite parties

 

 

For the complainant    :       Shri Jagtar Singh, Adv.

For OP No.1&3         :       Shri G.S.Shergill, Advocate.

For OP No.2              :       Shri Yogesh Gupta, Adv.

 

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

 

 

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Ajay Kumar,  complainant (referred to as complainant in short) has preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that he purchased a new car (Sunny XL Nissan) from OP number 1 vide bill dated 8.1.2014 for Rs.8,53,330/-, which was got insured from OP number 3.  It is further averred that the car in question met with an accident on 18.1.2014 while the complainant was coming from Bhawanigarh to Sunam, of which DDR number 18 dated 13.2.2014 was recorded with PS Bhawanigarh.  Thereafter the complainant lodged the claim with the OPs and car was replaced with a new one.  It is further stated that OPs number 1 and 2 replaced with car with a new one as it was total damage case. It is also mentioned in the complaint that the Manager of the OP number 1 Shri Shakti Singh also charged Rs.35000/- from the complainant for replacement of the car.  It is also mentioned in the complaint that at the time of sale of the car, the OPs also assured that in the event of any accident, the driver and other occupants will be safe as OP number 2 has installed a good quality air bag but at the time of accident on 18.1.2014 the air bags did not open, as a result of which the complainant suffered extensive injuries on his person.  It is further stated that OP number 3 has failed to pay the compensation to the complainant towards injuries and other losses. It is further averred that after the accident, the complainant was taken to CHC Bhawanigarh, where he spent an amount of Rs.1,00,000/- on the treatment.  As such, the services of the OPs are said to be deficient and has prayed that the Ops be directed to make the payment of Rs.2,00,000/- in all to the complainant towards the losses and deficiency in service and further claimed compensation and litigation expenses.

 

2.             In reply filed by OP number 1, preliminary objections are taken up on the grounds that the present complaint is the counter blast of the complaint filed by the OPs under section 138 of the Negotiable Instrument Act for the dishonour of the cheque of Rs.1,05,000/- against the complainant, that the complainant has concealed and suppressed the material facts, that the complicated questions of law and facts are involved and that the complainant has failed to set up nexus between the damages claim in the present complaint and the damaged suffered by him.  On merits,  it is admitted that the complainant purchased the car from the OPs vide bill number 54 dated 8.1.2014 and after the accident the vehicle was taken to the workshop of OP and thereafter the intimation was given to OP number 3, who appointed surveyor and the surveyor inspected the vehicle at the workshop and prepared an estimate of Rs.12,04,325/-. Thereafter OP number 3 asked the complainant to submit the requisite documents and the complainant submitted the same with a delay of three months and during that period the vehicle remained parked at the workshop of OP.  It has been denied that the vehicle was replaced with a new one.  After the settlement of claim by OP number 3 on 13.5.2014, the complainant again approached the OP number 3 on 13.5.2014 for purchase of a new car and accordingly the complainant purchased a new Sunny car XL diesel white colour for Rs.8,35,000/- vide bill number 124 dated 13.5.2014. The complainant got financed the said vehicle from HDFC Bank Limited and the bank paid the amount of Rs.5,47,369/- to the OP.  The complainant also sold one Honda City car having model 2003 for an amount of Rs.77,500/- and for the remaining amount, the complainant issued two post dated cheques bearing number 0000003 dated 19.6.2014 for Rs.1,06,500/- and cheque bearing number 000005 dated 3.7.2014 for Rs.1,05,000/-. The complainant also provided the duly signed documents of registered owner for the transfer of the vehicle as the car in question was in name of third person.  It is denied that the manager of the OP charged Rs.35000/- for replacement of the car. The opening of the air bag at the time of accident depends upon the manner of accident.  It is not necessary that in every accident the air bags get opened automatically.  The post dated cheque of Rs.1,05,000/- which was issued by the complainant in discharge of his legal liability has already been dishonoured due to insufficient funds and the Op has already been filed the complaint under section 138 of Negotiable Instrument Act. The OP has also filed the suit for recovery of an amount of Rs.77,500/-.  Any deficiency in service on the part of the OPs has been denied.

 

3.             In reply filed by OP number 2, preliminary objections are taken up that the complaint is false, malicious, vexatious and incorrect, that there is no deficiency in service on the part of OP number 2, that the present complaint is nothing but a desperate attempt to extract money from the OPs under the garb of deficiency and the present complaint clearly shows that the complainant is just trying to arm twist the companies hereto.  On merits, it has been denied that the complainant was subjected to harassment as stated under the complaint.  It is stated further that as per the feedback received from the dealer, it is understood that they charged Rs.9000/- towards parking charges for 90 days and Rs.24087/- towards estimation charges, which is 2% of total estimate of Rs.1204325/- and service tax of Rs.4090/- upon which Rs.2177/- was discounted and a round some of Rs.35000/- was charged.  It is further stated that the complainant has not paid Rs.1,05,000/- to OP number 1 which he promised and issued cheque of HDFC Bank, vide cheque number 000005 dated 3.7.2014 which got dishonoured and the complainant was also reluctant to pay the amount till date for which a separate civil case is filed before the Chief Judicial Magistrate of Sangrur.  It has been denied that the complainant spent an amount of Rs.1,00,000/- on his treatment as no bill to prove the instant point has been placed before this Forum.  

 

4.             In reply filed by OP number 3, preliminary objections are taken up on the grounds that the complaint is false, frivolous, vague and vexatious and has been filed to injure the interest and reputation of the OP and the OP has already settled the claim of the complainant on net on salvage basis and paid the amount of Rs.5,00,000/- in full and final settlement of the claim of the complainant as per the consent given by the complainant, as such nothing is due against the OP, that the complainant has concealed and suppressed the true facts, that the contract of insurance is between the respondent and the complainant is governed by its terms and conditions, that the complaint is devoid of any material particulars and has been filed merely to harass and gain undue advantage.    On merits, it is stated that after getting the information of loss, the complainant was allotted claim number and appointed Er. Rajesh Aggarwal, surveyor and loss assessor for assessing the loss caused to the vehicle of the complainant.  Thereafter on 22.2.2014 the OP number 1 prepared the estimate of Rs.12,04,325/- for the repair of the vehicle and consequently the vehicle was declared to be of total loss. However, the complainant agreed to settle his claim on net of salvage basis for an amount of Rs.5,00,000/- and in this regard complainant given a consent letter in favour of OP.  Thereafter OP number 3 paid the amount of Rs.3,26,579/- to HDFC Bank Limited with whom the vehicle was hypothecated and the remaining amount was to be paid to the complainant.  It is further mentioned that the complainant himself sold the damaged vehicle to one Sikandar Singh son of Harbhajan Singh, resident of village Shadipur Momian, Tehsil Patran for Rs.2,50,000/-.  In this way, the entire claim was paid to the complainant.  It has been denied that the complainant is entitled to get any amount. However, any deficiency in service on the part of the OPs has been denied.

 

5.             The learned counsel for the complainant has produced Ex.C-1 affidavit, Ex.C-2 copy of DDR dated 13.2.2014, Ex.C-3 copy of bill dated 8.1.2014, Ex.C-4 copy of temporary certificate of registration, Ex.C-5 copy of policy dated 8.1.2014, Ex.C-6 copy of pollution certificate, Ex.C-7 copy of bill, Ex.C-8 copy of temporary certificate of registration, Ex.C-9 copy of insurance policy, Ex.C-10 copy of pollution certificate, Ex.C-11 copy of bill , Ex.C-13 copy of legal notice, Ex.C-14 copy of reply of legal notice, Ex.C-15 copy of application, Ex.C-16 newspaper clipping, Ex.C-17 application, Ex.C-18 OPD slip, Ex.C-19 receipt copy, Ex.C-20 and Ex.C-21 are x-rays and closed evidence.

 

6.             We have very carefully perused the pleadings of the parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits dismissal, for these reasons.

 

7.             In the present complaint case, the questions arises for determination before us are as under :-

a)             Whether the complainant purchased the car in question from OP number 1 on 8.1.2014 and further same was got insured from OP number 3.

b)             Whether the car in question was damaged as a total loss in the accident on 18.1.2014.  Whether the OPs number 1 and 2 replaced the car in question with a new one as alleged by the complainant in the complaint.

c)             Whether the OP number 1 charged an amount of Rs.35,000/- from the complainant illegally or not.

d)             Whether the complaint is vague and without any basis.

e)             Whether the complainant suffered any injuries in the accident and whether he spent an amount of Rs.1,00,000/- on his treatment.

                The questions mentioned above are decided as per following:-

 

a).            It is true that the complainant purchased the car in question from opposite party number 1 for Rs.8,53,330/- vide bill dated 8.1.2014, a copy of which on record is Ex.C-3 and the same was got insured from OP number 3, vide policy Ex.C-5 on record.

 

b)             It is an admitted fact of the parties that the car in question met with an accident on 18.1.2014 (just after ten days of its purchase) and the claim was lodged by the complainant with the OP number 3. The complainant has alleged in the complaint that the OPs number 1 and 2 replaced the car with a new one.  But, a bare perusal of the file clearly reveals that there is nothing on record that the OPs number 1 and 2 replaced the car with a new one.  There is no specific reason for the Ops number 1 and 2 to replace the car in question with a new one.  Since the car in question was insured with the OP number 3, it is the OP number 3, who is to make good the loss of the car in question belonging to the complainant, as OP number 3 had charged the premium for the purpose.  It is worth mentioning here that the OP number 3 in its  reply has clearly mentioned that the vehicle in question was a total loss, as such, the complainant agreed to settle his claim on net of salvage basis for an amount of Rs.5,00,000/- and in this regard the complainant gave consent letter in favour of OP number 3. The OP number 3 paid the amount of Rs.3,26,579/- to HDFC Bank Limited, with whom the vehicle was hypothecated and the remaining amount was paid to the complainant.  It is also mentioned in the reply by OP number 3 that the complainant himself sold the damaged vehicle/salvage to one Sikandar Singh son of Harbhajan Singh, resident of Village Shadipur Momian, Tehsil Patran for an amount of Rs.2,50,000/-.  As such, it is clear that the OP number 3 has paid the full amount of the claim to the complainant in full satisfaction.  To support such allegations, the OP number 3 has produced sworn affidavit of Navjeet Singh, which is on record as Ex.OP3/1. Ex.OP3/4 is the copy of consent letter-net of salvage which is duly signed by the complainant Ajay Kumar and the same is also duly attested by Notary.  A bare perusal of it clearly reveals that the complainant agreed to get an amount of Rs.5,00,000/- and it is further written in the consent letter that the complainant has sold the accidental vehicle to Mr. Sikandar Singh son of Harbhajan Singh, VPO Shadipur Momian, Tehsil Patran, Distt. Patiala. Ex.OP3/5 is copy of agreement for sale of damaged vehicle. Ex.OP3/8 is the copy of cheque dated 28.4.2014 for Rs.3,25,579/- issued by OP number 3 in the name of HDFC Bank Loan account number 27061811 and Ex.OP3/9 is the copy of cheque dated 17.4.2014 for Rs.2,50,000/- issued in the name of HDFC Loan Account 27061811 Ajay Kumar.  It clearly shows that the Op number 3 has paid the full claim amount to the complainant and nothing is due towards it.   Moreover, the complainant has not filed any rejoinder denying the above said allegations of the OP number 3 nor has filed any affidavit to the contrary denying the allegations of OP number 3 in its reply as well as affidavit. As such, we are of the considered opinion that the OP number 3 has already settled the claim of the complainant and there is no deficiency in service on the part of OP number 3.

 

c)             It is an admitted fact of OP number 1 that an amount of Rs.35,000/- has been charged from the complainant on account of parking charges as well as estimation charges, as the accidental vehicle  remained parked in the workshop of OP number 1 for three months and further Rs.24087/- i.e. 2% were charged on account of issuance of estimate of the damaged vehicle.  Under the circumstances, we find that OP number 1 has charged only the service charges for the services provided to the complainant and there is nothing wrong in it.  As such, we find that the Op number 1 has charged the amount as per the services provided to the complainant.

 

d)             The complainant has miserably failed to prove his allegations as levelled by him in the complaint against the OPs. The OP number 3 has produced a number of documents showing that the claim of the complainant has already been settled and paid, we find that the complaint is vague and without any basis, which deserves dismissal.

 

e)             The complainant has not produced any medical record  except two x-rays, which are on record as Ex.C-20 and Ex.C-21. Ex.C-18 is the copy of OPD slip dated 19.3.2015. The complainant has not produced on record any medical history of the complainant or any treatment record or the copies of bills of medicines taken by the complainant.  The complainant has produced on record only Ex.C-19 copy of receipt for Rs.200/- showing the charges as ‘MLR copy’.  Under the circumstances, we failed to understand how the complainant has averred in the complaint that he spent an amount of Rs.1,00,000/- on the treatment of the injuries suffered by him in the accident in question.  As such, we are of the considered opinion that the complainant has miserably failed to produce on record any cogent, reliable and trustworthy evidence to show that he spent an amount of Rs.1,00,000/- on the treatment of injuries, if any, sustained by him in the accident.

 

8.             Another contention of the learned counsel for the complainant is that the air bags of the car in question did not open at the time of accident, therefore, the complainant suffered extensive injuries also falls flat, as the complainant has not produced on record any evidence to the effect that the air bags of the car in question were defective or were of inferior quality.  Moreover, the opening of air bags also depends upon the manner of accident, as in the present case, it seems that the vehicle did not suffer pressure at the driver seat, as the complainant has not suffered any injuries in the accident as mentioned above.  As such, we find that this allegation of the complainant also carries no force.

 

9.             In view of our above discussion, we find no merit in the complaint and the same is dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.  A copy of this order be supplied to the parties free of cost. File be consigned to records.

                Pronounced.

                May 12, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                   Member