DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.28/2011
Mr. Subhash Sharma
D-131, Krishna Park, Khan Pur,
New Delhi-110026
….Complainant
Versus
1. ICICI Lombard General Insurance Co. Ltd.
S-13, 2nd Floor, Green Park Extn.
Near Upahar Cinema, New Delhi-110016
2. The General Manager,
Vipul Motors Pvt Ltd. (Authorized Dealer Maruti Suzuki (1) Ltd)
Plot No.1-A, 19/6, Mile Stone, Main Mathura Road,
Faridabad-121006, Haryana
….Opposite Party
Date of Institution : 21.01.2011
Date of Order : 14.12.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. Facts of the case as pleaded by the complainant are that complainant purchased a new vehicle on 03.06.2010, which met with an accident on 08.06.2010. The vehicle was taken to the workshop of Vipul Motors Pvt Ltd. (hereinafter referred to as OP-2). Complainant was told that OP-2 will issue the job card after inspection and completing all the formalities with ICICI Lombard General Insurance Company Ltd. (hereinafter referred to as OP-1).
2. It is stated that the complainant received a call from OP-2 and upon reaching there, a job card was issued to the complainant along with estimated repair cost. The representative of OP-2 informed the complainant that approval from OP-1 will take another 15 days and thereafter they will start repairing the vehicle in question. It is stated that almost after 04 months also the vehicle of the complainant was not repaired. Complainant received a letter dated 07.10.2010 from OP-2, whereby the complainant was informed that OP-1 has sanctioned the repair of block assy and asked for approval .
3. It is stated that block assy is in the Engine whereas the engine of the vehicle was not damaged in the said accident. The same does not find mention in the job card issued by OP-2. Hence complainant vehemently objected to opening of the engine of the vehicle. It is stated that OP-2 had opened the engine on it’s own without the knowledge of the complainant. Upon enquiry from OP-1 and subsequent letters from OPs, it was proved that no sanction had been given by OP-1 to open up the engine of the vehicle. It is stated that such an act of OP-2 shows malafide intention and mishandling of the vehicle in question at their workshop. Complainant sent a legal notice dated 07.12.2010 to OPs and demanded for replacement of vehicle in question.
4. No positive response was received from the OPs therefore alleging deficiency in service complainant prays for directions to OP to replace the vehicle; to pay compensation of Rs.2,00,000/- towards mental agony, harassment; to pay Rs.25,000/- towards litigation and other expenses.
5. OP-1 resisted the complaint stating inter alia that the complaint is not maintainable with regard to OP-1 as in the entire complaint, the complainant has alleged deficiency against only OP-2 delineating as to how OP-2 caused inordinate delay in repairing the insured vehicle and how the vehicle was mishandled during repairs.
6. It is next stated that only specific reference to OP-1 was made in para 1 of the complaint wherein it was stated by the complainant that OP-2 has represented to him that OP-1 had sanctioned repairs for the Block Assy of the vehicle. OP-1 states that complainant has himself clarified that after enquiring from OP-1 it was clear that no such sanction for repair of Block Assy was ever made by OP-1 to OP-2. The same was further corroborated by the letters dated 13.11.2010, 26.11.2010 and 28.03.2011 sent by OP-1 to the complainant. It is stated that since the complainant himself acquiesced to the fact that no such approval was ever given by OP-1 to OP-2, hence there lies no cause of action against OP-1.
7. It is stated that OP-1 immediately after getting the intimation of the accident appointed a surveyor who inspected the vehicle and made unbiased preliminary surveyor report. It is next stated that the complainant’s claim is not that of total loss and the vehicle can be repaired in the service centre as per the terms and conditions of the policy. It is submitted that OP-1 is ready to settle the claim as per the terms and conditions of the policy but in the present complaint as the entire cause of action has arisen against OP-2 hence, present complaint be dismissed qua OP-1.
8. OP-2 filed its written version stating inter alia that the complainant’s vehicle was toed on 16.06.2010 to the workshop of OP-2 as the same was received in damaged condition due to an accident. Since body of the vehicle was damaged therefore the vehicle was inspected to the extent of damage to the body and estimate of Rs.40,000/- was prepared. Surveyor of OP-1 was informed and he inspected the vehicle and as the insurance company refused to provide cashless facility, complainant directed OP-2 to repair his vehicle.
9. It is stated that vehicle was repaired on 30.06.2010. After repair of the said vehicle, when OP-2 tried to start the vehicle then some sound in the engine was noticed thereafter the surveyor was called and he permitted opening of the engine. When the engine was opened it was found that one rode was bent. Surveyor allowed to change the said component but the complainant was adamant to change the engine of the vehicle/block assembly. It is stated that the said demand of the complainant was declined by insurance company(OP-1).
10. It is next stated that the vehicle in dispute was repaired and the complainant was informed on 09.08.2010 and 07.10.2010 but he refused to pick up the said vehicle and insisted on getting the vehicle replaced. Complainant was also informed to remove the vehicle from the parking of OP-2 otherwise complainant would have to pay Rs.100/- per day as parking charges and the same have not been paid till date.
11. OP-2 submits that engine of the body suffered damage and the same is clear from the statement given by the complainant to OP in the claim form wherein complainant has stated that the said vehicle hit the footpath from the bottom . This shows that the engine was damaged due to collision of bottom part of the vehicle with footpath.
12. Evidence by way of affidavit has been filed on behalf of all the parties. Written arguments are filed on behalf of complainant and OP-1. Complainant did not wish to argue the matter. Considering the fact that the matter pertained to year 2011 it was reserved on the basis of written arguments. Material placed on record is perused.
13. It is complainant’s case that OP-2 on the pretext of repairs, opened up the engine of his new vehicle without his knowledge and consent. Therefore the complainant has prayed to replace the vehicle in question.
14. On perusal of the claim form filed by the complainant, it is noticed that while giving the brief description of the accident complainant has stated that -
“complainant turned the steering wheel of the car to save the motorcyclist resultantly the car became unbalanced and struck against the footpath. The vehicle after touching the footpath from the bottom turned/toppled but nobody was injured”
15. The statement made by the complainant in the claim form and also the initial estimate provided by OP-2 vide estimate dated 17.06.2010 prove the fact that Strut Assy costing Rs 1400/- was to be replaced which could not have been replaced without opening the engine. Therefore, Complainant’s contention that the engine of the vehicle was not damaged and it was not to be repaired, is rejected. It is noticed that complainant’s vehicle kept lying in the workshop of OP-2 without any instructions for repair from the complainant for almost 3 months hence delay in repairing the vehicle cannot be attributed to OPs.
16. In view of the settled law that an equipment or machinery cannot be ordered to be replaced if it can be repaired , complainant’s vehicle cannot be replaced.
17. It is observed that the independent surveyor has assessed the total loss of the damage at Rs.64,234/-. There is no reason not to accept the report of the surveyor, hence OP-1 is directed to pay Rs.64,234/- towards the cost of repair within 03 months from the date of order failing which OP-1 shall pay Rs.64,234/- @6% p.a till realisation.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
