Date of filing: 19.11.2016 Date of Order : 18.7.2018
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
WEDNESDAY THE 18th DAY OF JULY, 2018
CONSUMER COMPLAINT No. 83 / 2016
Chinthakunta Nalgava Subba Reddy,
S/o C. Pedda Subbi Reddy, aged about 57 years,
R/at D.No. 1/3, T.O. Palli Village,
Chapadu Mandal, YSR (Kadapa) District ….Complainant.
Vs.
1. Hyundai Motor India Limited, Rep. by its
Managing Director, Vaishnavi Cynosure,
Unit 4G and 4H, 4th floor, #1-72/3/19 to 49/VC/4G & 4H,
Survey No. 18, Opp. Telecom Nagar, Gachibowli,
Hyderabad, Telangana, India.
2. MDH Motors Pvt., Ltd., Rep. by its
Managing Director, Survey No. 588/A-IB, NH-18,
Chennai-Hyderabad By-pass, Ukkayapalli Village,
Patha Kadapa Post, Kadapa city, YSR district – 516002.
3. Cholamandalam MS General Insurance company Ltd.,
Rep. by its General Manager, Registered and Head Office,
2nd floor, Dare House, 2 NSC Bose Road,
Chennai – 600 001. ….. Opposite parties.
This complaint coming for final hearing on 10-7-2018 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri P. Ramprasad Reddy, for O.P.1 and Sri V. Srinivasa Rao, Advocate for O.P.2 and Sri G.S. Murthy, Advocate for O.P.3 and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Sri V.C. Gunnaiah, President),
1. The complainant filed this complaint under section 12 of Consumer Protection Act, 1986 (for short herein after called as C.P. Act) to direct the opposite parties to pay Rs. 76,441/- towards repair expenses of vehicle bearing No. KA 03 MW : 7788 with interest at 24% p.a. to pay Rs. 75,000/- as compensation for keeping the vehicle in idle condition for 57 days without repairing the same with interest at 24% p.a, to pay Rs. 50,000/- towards mental agony and to pay Rs. 5,000/- towards costs of the complaint.
2. The brief averments of the complaint are as follows:-
The complainant purchased Elite i20 car of the O.P.1 company through O.P.2 on 16.10.2015 and got registered the same as KA 03 MW : 7788 and he insured the said vehicle with O.P.3 insurance company with policy No. 3362/01073692/000/00 which is a comprehensive policy covers for one year from 16.10.2015. O.P.1 has provided one year warranty to the said car, O.P.2 is the authorized servicing center of O.P.1. while so on 3.9.2016 early hours complainant’s son by name Veeranjaneya Reddy was coming from Bangalore to Proddatur via Kadiri. After travelling for about 200 kms the vehicle suddenly stopped at Battrapalli village on Kadiri – Pulivendula main road and since the car was not moving ahead and he was not sure what was wrong. He called O.P.1 help line number and opposite parties personnel reached the spot at 4.00 p.m and examined the vehicle and decided to take the car to O.P.2 service center at Kadapa and reached around 11.00 p.m in the night. The car was examined on 06.9.2016 by service engineer and on seeing the vehicle he decided it is an accident and gear box was damaged and suggested for insurance claim. When the complainant’s son contacted to O.P.3 customer care service and raised a claim insurance surveyor examined the vehicle. A month later they communicated report stating that it is not an accidental claim so the claim was rejected as no external damage traces on the vehicle. The complainant informed the same to O.P.2 they did not take any action. He also approached O.P.1 customer care, they also not considered as no manufacturing defect to the vehicle. Having no option the complainant paid Rs. 30,000/- on 24.10.2016 to O.P.2 and also paid another Rs. 46,441/- on 31.10.2016 towards repair charges. Thus total he paid Rs. 76,441/- for repair charges of the vehicle. O.Ps 1 & 2 have misleaded the complainant and made him to make insurance claim with O.P.3 and O.P.3 repudiated the claim as no accident. Therefore, due to gross negligence and responsibilities by the opposite parties the complainant suffered mental and physical strain, hence they are liable to refund the amount of Rs. 76,441/- collected from complainant as defect in the gear box arise within warranty period. Hence, the complaint for the above relief’s.
3. Opposite parties 1 to 3 filed separate written versions.
4. O.P.1 who is the manufacturer of complainant’s car denied the allegations regarding negligence on his part regarding manufacturing defect causing mental, physical strain etc., and called upon the complainant to prove all of them.
5. It is further averred the relationship between dealer / service center is one of the principal to principal basis and not as principal and agent. Hence, he is not to be held liable for the acts and omissions of dealer / service center, as O.P.2 is neither his agent nor as employee. This opposite party denied parawise allegations mentioned in the complaint. He further contents on enquiry this opposite party came to know that the vehicle was reported for repairs on 06.9.2016 and the gear box of the said vehicle was found damaged and the complainant was apprised of the same. The complainant lodged claim with the insurance company treating his case as one of accident. Hence, this O.P. is not liable for repairing of service center of the car. The durability of the car parts depends upon the driving habits of the customer, maintenance of the car, condition of the road, terrain and weather in which the vehicle frequently driven. The damage was caused to the vehicle due to the negligence of owner is not covered under warranty. This O.P. is not liable for any act or omission on the part of O.P.2. Since the complainant had already treated his claim to be an accident and the same has already been submitted to the insurance company and it cannot be allowed to allege manufacturing defects. Present complaint is concocted to gain undue profits on the expenses of O.P.1. This O.P.1 is not liable to pay any amount as claimed by the complainant. Hence, the complaint is liable to be dismissed.
6. O.P.2 filed written version denying the allegations regarding his carelessness, negligence and liability to pay as claimed by the complainant and called upon complainant to prove the same.
7. It is further averred on 06.9.2016 complainant’s vehicle was examined by service manager on seeing that it was informed that it is an accident and gear box was damaged and suggested for insurance claim. On opening the gearbox it is found every running part completely damaged and the gear box was abnormally cracked. After dismantling the gear box was run for a while without lubricant and hence gear box was ceased completely. The damage occurred to the gear box is not because of any manufacturing or material defect but it is because of purely misuse of the car and badly hitting to the gearbox from its bottom side and driver without observing the lubricant leakage from gear box. Thus the gear box was completely damaged. The photograph of the gear box shows the same. The complainant paid the amount of Rs. 76,441/- for replacement of gear box and complainant took his car with his satisfaction. Thus there is no deficiency in service on the part of this O.P. This O.P. is no way concerned damage caused to the gear box of car and no cause of action against him. Hence, the complaint is liable to be dismissed as the complainant is not entitled for any reliefs against him.
8. O.P.3 insurance company filed counter denying the allegations against him in respect of deficiency in service negligence on his part and called upon the complainant to prove all the allegations. It is further submitted the surveyor who inspected the vehicle given reports stating that there was no accident by external means on the gear box and that as per terms and conditions of the policy claim is not maintainable and the same was informed to the complainant. The mail sent by the complainant shows that there is no accident by external means hence, the claim is not tenable. So the same was informed to the complainant finally on 31.10.2016. As per terms and conditions of the insurance policy this O.P. shall not be liable to make any payment in respect of consequential loss, depreciation, tear and wear, mechanical or electrical breakdown, failures or breakages nor for damage caused by overloading or strain of the insured vehicle nor loss or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time. Since the damage caused to the car is not due to accident by external means, this O.P. is not liable to indemnify the loss to the complainant which may incur by him. There is no cause of action to file this complaint. Hence, the complaint is liable to be dismissed with costs.
9. No oral evidence has been placed by the parties. But complainant filed his affidavit and got marked Ex. A1 to A9 and O.P.1 filed affidavit and got marked Ex. B1, O.P.2 got marked Ex. B2 and O.P.3 marked Ex. B3 to B6 documents. No written arguments are filed by the parties.
10. Heard arguments on both sides and perused the material placed on record and the documentary evidence of Exs.A1 to A9 and Exs. B1 to B6.
11. On the above pleadings the following points are settled for determination.
- Whether is there any deficiency of service on the part of opposite parties as pleaded by the complainant?
- Whether the complainant is entitled for the reliefs sought for against Opposite parties as prayed for?
- To what relief ?
12. Point Nos. i and ii: These two points are connected to each other, hence, they are discussed together for the sake of convenience and better understanding.
13. Learned counsel for the complainant contents that the gear box was damaged is admitted by opposite parties.Through not the vehicle has no external damage but still gear box was damaged and complainant incurred Rs. 76,441/- towards repair expenses and the amount has to be reimbursed by the opposite parties as there is warranty to the car for one year and insurance coverage. Hence, all the opposite parties are liable to pay the amounts as claimed by the complainant.
14. Per contra opposite parties 1 to 3 argued in similar lines of their pleas mentioned in their written versions. O.P.1 contended that there is no allegation by the complainant that there are any manufacturing defects of the vehicle and for negligent driving of the vehicle by owner of the car does not amount to manufacturing defect of gear box and warranty does not cover the same. Hence, O.P1 is not liable to pay amounts to the complainant. O.P.2 contended that he immediately attended the vehicle and found that gear box was damaged from inside hitting of the surface and as it was not manufacturing defect and charged for the parts and replaced the gear box. Hence, no liability to him to pay the amounts.
15. O.P.3 contended that the complainant failed to prove that there was any external damage or accident to the car of complainant and covers the terms and conditions of the policy to claim the normal tear and wear of the damaged parts. So it is only due to negligent maintenance of complainant the gear box damaged and does not cover insurance policy terms and conditions and no negligence on his part. Hence, the complainant is not entitled for any reliefs against O.P.3.
16. There is no dispute in this case that the complainant purchased car bearing No. KA 03 MW : 7788 manufactured by O.P.1 from O.P.2 on 16.10.2015 and it has one year warranty from that date and insurance coverage from O.P.3 for one year period. According to the complainant allegations para – 2 the car was suddenly stopped on 03.9.2016 when it travelled around 200 Kms. from Bangalore to Proddatur on the way and when it was checked by service engineer of O.P.2, it was found that the gear box was completely damaged. There is no whisper by the complainant that there was any manufacturing defect or accident or external damage to the vehicle or to the gearbox anywhere in the complaint of the complainant. So it cannot be believed that the vehicle of complainant was met with an accident and sustained damage to gear box or there was any manufacturing defect to the gear box of complainant car, as it has been already ran over 8000 Kms. No doubt there was warranty for one year to the said car given by O.P.1 but the same does not apply in this case as there was no manufacturing defect to the gear box proved by the complainant. Causing damage to the parts of car much less gear box from inside due to negligence of maintenance of car or driving of the same by owner are not covered under warranty and they cannot be said to be manufacturing defect in the vehicle. So in this case O.P.1 is not liable to pay the amounts claimed against him by the complainant as per Ex. B1 warranty policy. Hence, complaint against O.P.1 is liable to be dismissed as no negligence on his part and no manufacturing defect of the gear box by O.P.1 Company.
17. Coming to the liability of O.P.2 though O.P.2 is authorized service center cum dealer of O.P.1 on intimation of the stopping of the car of complainant in the middle of journey, he attended and found that the gear box was damaged from inside due to hit of hard surface from inside. Through he termed it was accident but since no external damage was caused to the vehicle, it cannot be construed as accident by hitting. If at all any accident had occurred there would have been some external damage to the vehicle but no such damage was caused to the complainant’s vehicle. So the damage to the gear box from inside and causing damage to the parts does not amount to accident. Since O.P.2 had attended the repair works of damage to gear box and replaced the parts he charged total amount of Rs. 76,441/- towards costs of the replaced gear box. There is no either negligence or deficiency in service on the part of O.P.2, hence O.P.2 is not liable to pay any amounts to the complainant as sought for hence complaint is liable to be dismissed against him.
18. With regard to the liability of O.P.3 as already noted, he issued Ex. B3 policy to the complainant’s vehicle and it covers one year insurance from 16.10.2015. A perusal of Ex. A3 terms and conditions clearly goes to show that O.P.3 shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages etc., In this case there is no accident by external means to cover the insurance policy issued under Ex. A2 to cause damage to the gear box of complainant. As per O.P.2 service manager finding that gear box was damaged from inside and no external damage to the vehicle. So it can be concluded no accident took place to the vehicle on 3.9.2016 and no damage was caused to the gear box of the vehicle. But it appears the gear box was completely damaged due to not proper maintenance of the vehicle by owner or driver of the vehicle and also not proper driving of the vehicle by its driver. Therefore, O.P.3 rightly repudiated the claim by issuing Ex. B4 on 31.10.2016. Since the gear box was not damaged due to any accident and it was damaged only due to carelessness and not proper maintenance of the vehicle by complainant and not proper driving of the vehicle by the vehicle driver that the gearbox was damaged a normal course and not due to accident. Hence, O.P.3 is not liable to indemnify the expenses incurred by complainant for replacement of gear box and also not liable to pay any amount claimed against him and no negligence on his part in repudiating the claim of complainant. Hence, the complaint against O.P.3 is also liable to be dismissed.
19. After going through the entire material placed on record and considering the submissions made by the learned counsel for parties we hold that there is no deficiency in service on the part of the O.Ps.1 to 3 or negligence or carelessness on their part and complainant is not entitled for any reliefs against them and complaint is liable to be dismissed. Accordingly, points 1 & 2 are answered against the complainant.
20. Point No. iii:- In the result, the complaint is dismissed, but in the circumstances no costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 18th day of July, 2018.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined
For complainant : NIL For opposite party : Nil
Exhibits marked on behalf of the Complainant :-
Ex: A1 P/c of registration certificate pertaining to the vehicle bearing No.KA-03-MW-7788.
Ex: A2 P/c of insurance policy bearing no.3362/01073692/000/00.
Ex: A3 P/c of Receipt vocher dt.24-10-2016 issued by 2nd opposite party forRs.30,000/-
Ex: A4 Original cash invoice dt. 31-10-2016 issued by 2nd opposite party for Rs.76,441/-
Ex: A5 P/c of receipt voucher dt 31-10-2016 issued by 2nd opposite party for Rs.46,441.
Ex: A6 P/c of Hard copies of E-Mail correspondence made by the complainant’s son through his mail id st and 2nd opposite parties mail id Ex: A7 P/c of Hard copies of E-Mail correspondence made by the complainant’s son This is mail id rd opposite parties mail id Com.
Ex: A8 copy of original repudiation letter dt.31-10-2016 issued by the 3rd opposite party to the complainant.
Ex: A9 P/copy of letter dt 07-11-2016 issued by the 1st opposite party to the complainant.
Exhibits marked on behalf of the Opposite party No. 1:
Ex:B1 P/c of Hyundai warranty policy.
Exhibits marked on behalf of the Opposite party No.2 : -
Ex:B2 Copy of Gear Box Photos (10 no’s) & letter through E-Mail..
Exhibits marked on behalf of the Opposite party No. 3: -
Ex:B3 P/c of policy copy.
Ex:B4 P/c of Repudiation letter dt.31-10-2016.
Ex:B5 P/c of Motor Insurance Clasim Form.
Ex:B6 P/c of Surveyour Report.
MEMBER PRESIDENT
Copy to
1) Sri G. Trivikram Singh, Advocate for complainant.
2) Sri P. Ram Prasad Reddy, Advocate for O.P.1.
3) Sri V. Srinivas, Advocate for O.P.2.
4) Sri G.S. Murthy, Advocate for O.P.3.
B.V.P
