CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 512/2008
Ms. Supriya
D/o Shri Vishnu Grover,
R/o B-1A/1-B, Janakpuri,
New Delhi-110058 ……Complainant
Versus
1. M/s ICICI Lombard,
S-13, 1st & 2nd Floor, Green Park Extn.,
Uphar Cinema Complex,
New Delhi-110016
Also at:
Mini Market, Janakpuri,
New Delhi-110058
2. M/s Tata Motors
Passenger Car Business Unit
Unit No. 305, 3rd Floor, Tower-B,
South City, NH-8,
Gurgaon-122001
3. M/s A One Motors
A-19, Mohan Coop. Industrial Estate,
Mathura Road,
New Delhi 110044 Opposite Parties
Date of Institution 14.08. 08 Date of Order 29.08. 15
Coram
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainant is that on 30.01.2007 she had purchased a Tata Xeta Car (manufactured by OP No.2) bearing registration No.DL3CAX0916 from OP No.3 which was got insured from OP No.1 for a sum of Rs.2,80,799 and the same was carrying warranty for a period of 18 months from the date of its purchase. On 23.11.2007 the car was parked in the parking lot of the Amity University s sprawling campus at Sector 125 Noida and at about 17.30 hrs. when the driver of the car, namely Sh. Kishan Lal, tried to start the car, it was suddenly engulfed in fire. The security functions at the Amity University Campus are looked after by well experienced Ex service officers and men and, therefore, within minutes the fire was brought under control by the security and administration personnel and construction labour with the help of fire extinguishers, water and sand/soil. The accident was immediately reported to the In charge, Police Post, Okhla Barage, Noida and she informed OP No.1 & OP No.3. OP No.1 assigned the claim of the vehicle bearing No.MOT00641503 in the evening of 23.11.2007 and the vehicle was left at the accident site for inspection by the Police and OPs. On 24.11.2007 OP No.3 arranged for towing the vehicle from Noida to their workshop at Mathura Road for which an amount of Rs.1200 was paid by him. Previously also on 05.09.2007 the car had all of a sudden stopped responding and had become completely immobile/dead. Thereafter, the vehicle was towed to the workshop of OP No.3 at Mathura Road, New Delhi where it was kept for two days. She was informed by OP No.3 that the battery of the car had stopped working and the same had been replaced by them. It is stated as follows
10. That the Complainant had apprised the Respondents of the above circumstances and clearly told them right on the day of delivery of the vehicle to them that this particular car will not be accepted in any repaired condition whatsoever; and that the car must be replaced, as it seems to suffer from some serious intrinsic defect(s), which is evident from its grave malfunctioning on two occasions in less than ten months of its operation.
She had sent number of letters dated 28.11.07 04.12.07 27.12.07 16.01.08 31.01.08 09.2.08. She had received only an email from the OP No.2 stating therein that they have not observed any manufacturing defect in the car. She also sent letters to the OP No.1 to expedite settlement of her claim but they have not replied till date. She sent a legal notice dated 05.03.2008 to all the OPs calling upon them to expedite the settlement of the claim through delivery of a new car alongwith update interest at the rate10 per annum. The OP No.3 sent a notice dated 07.03.08 through their lawyer for a payment of Rs.15000 which was received by her on 20.03.08. She sent her reply to the notice of OP No.3 mentioning full facts of the case. On 07.04.08 Complainant sent a letter to the OPs requesting them to take appropriate action for replacement of their defective product. She also sent a letter to the Grievance Redressal Manager of OP No.1 on 05.06.08 and she met the officers. One Mr. Harinder Prasad and Siddhartha Kansal, Area Managers Customer Service of OP No.1 called her in her office on 04.08.08 at 11:00 a.m. and stated that they will look into the matter and finalize the claim but till date no response has been received from them. Complainant has prayed as under
- Direct the OPs to pay Rs.280799 towards insured value of the car and Rs.1200 as towing charges alongwith interest.
- Direct the OPs to pay a sum of Rs.1 lakh for the gross negligene inaction and unethical attitude of OPs which caused harassment, humiliation, mental shock agony and hardship in the absence of the car from November 2007 onwards and still being borne by the Complainant and her family without any cause, reason or default on her part.
- Direct the OPs to pay Rs.3100 as litigation charges incurred by the Complainant due to the unjust and unethical attitude of OPs.
OP No.1 in its written statement has stated that the Complainant has already sought indulgence of the Insurance Ombudsman in complaint No.G1182 ICICI Lombard 08 against the OP No.1. The policy being the cashless policy the claim amount arising as a result of the repair of insured vehicle is being paid directly to the authorized service centre conducting such repair but in the present case Complainant was requested number of times to get the insured vehicle repaired in the authorized service centre but she chose not to do so on the pretext of pressing claim as total loss. They sent a letter to her to tender her consent towards repair of the insured vehicle despite the terms of the policy towards non entertainment of the claim in case of manufacturing defect also with respect to loss caused to the mechanical or electrical malfunctioning but they entertained the claim of the Complainant. However, she herself failed to give the required consent towards repair of the insured vehicle. OP No.1 has requested to dismiss the complaint with an exemplary cost.
OP No.2 in its written statement has stated that Complainant has not filed any documentary proof in support that the vehicle had any manufacturing defect. No expert evidence has been adduced by her to establish any manufacturing defect in the vehicle. OP No.2 has stated that she called the OP No.3 to tow away the car to their workshop for repairs and the same was done on the expenses of the Complainant. The vehicle of the Complainant was duly rectified/repaired by the OP No.3 free of cost for those services which were covered under warranty. There was no delay in any manner on the part of OP No.2. It was the responsibility of the OP No.1 to take a decision as to the genuineness of the claim of the Complainant as the vehicle was insured with the OP No.1. Complainant is trying to make out a case in order to get sympathy of this Forum by placing distorted/twisted facts in order to defame the reputation of OP No.2 which has achieved innumerable accolades. OP No2. has prayed for dismissal of the complaint.
OP No.3 in its written statement has stated that the vehicles are offered for sale by OP No.2 once they pass the necessary quality control and thoroughly checked. Complainant had inspected the said vehicle and had taken it for a test drive and after being fully satisfied with the performance and functioning of the vehicle she had purchased the same. OP No.2 also informed the Complainant that there was not any malfunctioning defects in the said vehicle. The Complainant did not show any interest to repair the vehicle and did not show interest to pursue the claim before the OP No.1. OP No.3 towed the vehicle of the Complainant as per the call for repairing but till date OP No.3 did not receive a call information verbal written instruction for repair the vehicle lying with them. OP No.3 sent a notice through Advocate for payment of Rs.15,000 as parking charges of the Complainant s vehicle till 15th March, 2008. OP No.3 has prayed that the complaint be dismissed with heavy cost.
In rejoinder to written statement of OP No.1 it is inter alia stated as under
3. That in keeping with the duties of every good citizen to eliminate/curtail national loss all out efforts were honestly made to save the vehicle from certainsure total loss to the extent possible. We could succeed in brining down the damage from total loss to about Rs.1.2 lakhs as assessed by the Assessor of Opposite Party No.1. Instead of appreciating and applauding our genuine concern it is outright unethical to doubt the integrityintention of the Complainant.
In rejoinder to reply of OP No.2 it is inter-alia stated as under
2. That the Complainant has placed all the material facts along with documentary evidence in support thereof before this Hon ble Court. The fact that this car was malfunctioned twice in less than 10 months is a matter on record with the OP No 2 andor their agentsrepresentative (OP No.3). The vehicle having itself proved to be defective and life threatening, no other proof is warranted from the Complainant.
It is entirely for the manufacturers and or the insurers to diagnose the actual cause of the malaise the car suffers from. Apart from furnishing full facts and circumstances of the accident a consumer is ill equipped to help them in this regard. The consumer however needs to be protected from a life threatening equipment/article howsoever prominent and reputed the manufacturers/insurers thereof may be. It is quite immaterial for the customer to decipher the cause of the serious accident that could also have turned fatal. The fact remains that there is a clear threat to their life irrespective of the cause. Whether the malfunction resulted from an intrinsic defect incompatibility of various components parts, a manufacturing or mechanical or electrical failure can be determined by them only, as they only have the requisite equipment and vast financial resources at their command which incidentally also enable encourage and prompt them to fritter away a comparatively small negligible fraction thereof on hiring the reputed and powerful legal pundits, to contestfight a legal battle with hapless ill equipped clients, and try to confuse the courts with their verbose jargon and jugglery, if not for any thing else than only to unduly delay the outcome/decision as far as possible and attain sadistic pleasure from harassing the customer(s) seeking legal remedy. No prudent person having very limited resources will ever barge into contesting such an obviously weak indefensible case as actually done by the OPs This is also appears to be the underlying objective of forming consumer forums where the consumers can themselves present their case without engaging a lawyer as is being done by the Complainant
Complainant has filed her affidavit in evidence while affidavit of Ms. Pooja Sharma, Manager Legal affidavit of Sh. M.S. Pradeep Sr. Manager (Law) and affidavit of Sh. J. S. Harit, Assistant Manager Legal have been filed in evidence on behalf of the OP No.1 2 & 3 respectively.
Written arguments have been filed on behalf of the parties.
We have also heard arguments on behalf of the Complainant and OP No. 1 & 2 and have also gone through the file very carefully.
We straightway come to the question, whether refusal of insured amount to the Complainant as a case of total loss to the vehicle in question by the OP No.1 was justified and, if so, whether the Complainant is not entitled to any relief ?
Admittedly, the Complainant had purchased a Tata Xeta Car from OP No.3 on 30.01.2007 which was insured by OP No.1 for a sum of Rs.280799 and the same was carrying warranty period of 18 months. On 05.09.2007 the vehicle had gone out of order. OP No.3 replaced its battery. On 23.11.2007 the car was parked in the parking of Amity University Campus, at Sector 125 Noida. At about 17:30 hours when the driver tried to start the car it was engulfed in fire. The fire was controlled within a short time with the help of fire-fighting equipments which were already installed near the site by the Amity University Campus authorities. She informed the OP No.1. The OP No.1s Surveyor submitted the report dated 08.08.08 copy annexure C 1. The OP No.1 vide letter dated 11.08.08 (annexure C9 informed the Complainant that the vehicle was inspected by independent surveyor at the workshop of OP No.3. As per the assessment the aggregate of revival of the vehicle to the pre accident condition stood at approx. Rs 116836 only and the claim could not be settled on total loss basis and requested the Complainant to provide consent to repair the vehicle as soon as possible so as to enable them to process the claim.
OP No.1 sent a letter to her to tender her consent towards repair of the insured vehicle as per the terms of the policy but she did not got repaired her vehicle through the authorized service centre. The said vehicle is still lying with the OP No.3. The OP No.1 sent a notice through advocate for payment of Rs.15000 as parking charges. The Complainant has neither made the payment to the OP No.3 nor taken the vehicle lying with them. The OP No.1 was ready to make the payment of Rs.116836 as per independent surveyor’s report provided the vehicle should be repaired by the authorized service centre but the Complainant was adamant to press for a claim of the insured amount of Rs2 80799 as a total loss.
Fire took place in the car of the Complainant after about 11 months from the date of its purchase. Therefore, it cannot be said that there was any manufacturing defect in the car. There might be more than one reasons for the occurrence of the fire in the car. However, simply because on one occasion the battery of the car had to be replaced and on the second occasion it got fire by itself does not indicate that there was any manufacturing defect in the car. We are not oblivious or unmindful of the fact that incident of fire was horrible one. Any mishappening could have taken place had the car been plying and the driver or some person sitting in it. However we also know that the cases are not decided on the basis of sentiments and they have to be decided on merits. In the present case as per surveyors report this was not a case of total loss and the car could be restored to its pre- fire condition by making repairs of the parts by spending Rs.116836 which the OP No.1 was ready to pay to the Complainant provided the Complainant got the vehicle repaired from its Authorized Service Centre. OPs thus did not commit any deficiency of service.
We hold that the Complainant has failed to prove any deficiency in service or unfair trade practice on the part of OPs. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 29/08/15
(NAINA BAKSHI) (N.K. GOEL)
MEMBER PRESIDENT
