BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 29^thDAY OF NOVEMBER 2024

SMT. SUMA ANILKUMAR, MEMBER

1.The complaint filed under section 35 of the Consumer Protection Act 2019, complainant seeking direction towards OPs for the following reliefs.

1. Direct the OP no.1 and 2 to pay full claim amount of Rs.13,20,000/- for value of Vehicle along with bank rate of interest and Rs.1,25,000/- for loss of personal belongings along with bank rate of interest and to pay the damages of Rs.5,00,000/- as compensation to the complainant for the suffering and mental agony.
2.  
2. Direct the OP no.3 and 4 to replace the Vehicle as per Warranty, in the event if it is fo8nd that the damage was due to manufacturing defect along with damages as claimed above.
3. Pass appropriate order that this Hon’ble Court deems fit under facts and circumstances, including order of costs, in the interest of justice and equity.

2. Brief facts of this case are as follows:-

The complainant submits that he purchased a vehicle Hyundai New I20 bearing Chasi No.MALBK514LNM119171 and Engine No.D4FANM48068 from OP No.3i.e, Hyundai Motors India Ltd. on 21.01.2022for an amount of  Rs.10,68,599/- along with RTO registration charges of Rs.2,04,246/-, total amount of Rs.12,72,845,registered as bearing registration No.KA-53-MJ-1879.The Complainant submits that the OP No.3, at the time of purchase issued a service booklet containing warranty policy to complainant in which it is stated as follows:

“Warranty Period: this warranty for Hyundai vehicle shall exist for a period of 36 months / 1,00,000 kilometers from the date of delivery which so ever is earlier to the first purchaser.”

3. Along with the purchase of said vehicle, it was insured with OP No.1 for, bundled-Private Car Policy for a tenure of 1 year Own damage along with 3 years Third Party Damage, under Policy No.3001/238437417/00/000. The said policy was in force from 01.02.2022 till 31.01.2023 for Own damage and from 01.02.2022 till 31.01.2025 for third party.

4. While making the payment to the OP No.2 and 3, the complainant sought for loan amount in HDFC bank for Rs.3,00,000/- The said loan was sanctioned to the Complainant for tenure of 60 months. The complainant has paid installment amount of Rs.6,083/- regularly from March, 2022 and is still paying installment amount regularly.

5. The above policy for own damage was renewed by the complainant on 30.01.2023 under policy No. 3001/O/278481047/00/000. The said policy was / is in force from 01.02.2023 to 31.01.2024.The aforesaid policy was renewed with the addon of Zero Depreciation, Return to Invoice and Loss of personal belongings, Consumables Items and road side assistance. Further, as per the terms of policy, the vehicle is covered with loss or damage due to fire, explosion, self ignition or lightening etc.

6. On 15.02.2023, at about 11:00 p.m, the complainant had parked the I-20 vehicle in front of his house. On 16.02.2023 around 3.30. A.M., the complainant heard the sound of vehicle’s window bursting and found that car was on fire.The day of incident, he had kept his office cell phone (Model-Apple I-Phone 11 Pro), which is worth Rs.1,25,000/- inside the vehicle and due to fire, the said cell phone was destroyed along with car.

7. The complainant was not aware of reasons for such fire, on 16.02.2023, he lodged a complaint to jurisdictional police, stating the aforesaid incident. The police Sub-Inspector, Yelahanka registered a case in GSC No. PO1356230600122 on 16.02.2023 and on same day between 9 a.m. to 10 a.m. they conducted Spot Mahazar.

8. The car was towed on the day of incident to the service center of OP no.4. The OP No.4 conducted inspection of the Vehicle and gave a repair estimate along with Insurance Claim Form of OP No.1. The incident was intimated to OP No.1 and 2 on telephone through their Toll Free Number on 16.02.2023 and upon receiving information, officials of OP NO.1 and 2, conducted vehicle inspection on 24/02/2023 and on the same day received signed Claim Form from Complainant. Even after receipt of claim form, the OPs No.1 and 2 have  not taken any positive steps to honour the conditions of the policy to pay the amount.

9. The OP No.4, through email dated 07.04.2023 intimated that there is no manufacturing defect in vehicle which could cause fire.  OP No3 issued similar email on 11.04.2023 and intimated that there is no manufacturing defect in vehicle which could cause fire. OP No.3 and 4 in their emails have referred to alleged inspection, which neither was intimated nor was copy of the said inspection report furnished by the complainant. The emails of the OP No.3 and 4, was intimated to OP no.1 and 2, and the complainant requested to honour the terms of policy by providing claim amount for the total, loss of vehicle and loss of personal belongings. The Complainant received letter dated 31.05.2023 from OP No.1 and 2 and was shocked to know that, they have denied that payment of claim amount without any evidence and on erroneous/vague reasoning.

10. The said vehicle was insured, premium was paid, the policy was/is in force and in terms of policy the OPs are bound to pay compensation to complainant for all the loss which he sustained on account of fire.Complainant issued legal notice dated 15.06.2023 to OPs No.1 and 2, to pay full claim amount of Rs.13,20,000/- for value of Vehicle along with Rs.1,25,000/- for loss of personal belongings and also to pay compensation amount of Rs.1,00,000/-. The OPs No.1 and 2 failed to reply.

11. The complainant further issued legal notices dated 22.06.2023 to OPs No.3 and 4 them to furnish Inspection Reports and other details in Reports within 15 days from the date of receipt of the notice, failing which it is deemed that the fire is caused due to manufacturing defect and the OPs No.3 and 4 are liable to replace the car as per warranty. The OPs no.3 and 4 though received notices on 26.06.2023 and 28.06.2023 respectively, failed to reply.It is submitted that after lapse of notice period, the OP no.4 sent reply notice dated 26.07.2023 by wrongly mentioning the date on notice as 03.07.2023 and along with the delayed reply notice has not produced any documents that was requested. Left with no choice, the complainant had to file complaint and hence their complaint by the complainant.

12. On issue of notice to OPs, OP 1, 2 & 4 files their version. OP3 fail to appear before this commission. Hence placed Ex-parte.

13. The OP No.1 and 2 admits having insured the Vehicle bearing Reg. No KA-53-MJ-1879 vide policy No.3001/O/278481047/00/000 valid from 01.02.2023 till 31.01.2024 and the liability of this OP is limited to the terms and condition of the policy of insurance and also as per the provisions of the Motor Vehicles Act.They have received an Own Damage claim from the complainant, wherein it was stated that on 15.02.2023 at about 11PM.The complainant had parked the Insured vehicle and on 16.02.2023 at about 3:30 AM the complainant heard the sound of Vehicle window and found that the car was on fire, in this regard the complainant has submitted an Own Damage claim and requested the complainant to submit all the relevant documents and necessary information regarding how the damage occurred to the Insured Vehicle. Accordingly, the complainant has submitted claim form and produced the documents and this OP has duly registered the claim vide claim no. MOT13284182. Immediately after registration of claim OP 1 & 2 have appointed the Surveyor to assess the vehicle.

14. It is further submitted that after perusal of all the claim documents it was found that the cause of the damage to the vehicle was due to electrical failure which does not fall under the purview of Insurance. As per the exclusions of the policy wherein the consequential loss, depreciation, wear and tear, mechanical or electrical breakdown are not covered and the claim of the complainant was repudiated on the aforesaid ground has rightly repudiated the claim vide their communication dated 31.03.2023, on the following grounds;

Policy Exclusion: The Damage to the vehicle is due to Electrical Failure which does not fall under the purview of insurance. As per the exclusions for the policy wherein the consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for the damage caused due to the overloading or strain of the insured vehicle nor for the loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.

15. It is further submitted that the OP 1 & 2 have acted as per the Policy Terms and Conditions, and as per the documents submitted by the complainant. It is clear that the cause of damage to the Insured vehicle was due to the electrical breakdown which is not covered under the purview of the policy and also the said cause to the damages are exclusions under the policy terms and conditions, hence OP 1 & 2 have adhered to the policy conditions and there is no deficiency of service as alleged by the complainant and this complaint is liable to be dismissed. The complainant has failed to set up a nexus between the reliefs claimed in the present application.The complainant has no ad judicable grievance against this OP Insurance Company and the Complainant has failed to prove any cause of action or prima facie in the complaint against the respondent insurance company and therefore, failed to set up any case for any reliefs as such, the complaint filed by the complainant may be dismissed with cost.

16. In the version of OP4, OP4 submits that it does not have any information about the allegation, information about the loan and other financial aspects of the complainant. Further submits that, on one occasion that complainant herein approached OP4, herein and informed that “On 15/02/2023 at about 11:00 P.M.The complainant had parked his car in front of his house, and on 16/02/2023 at about 3:30 A.M, he heard the sound of his vehicle’s window bursting, and found that car was on fire”. This information was given by the complainant to OP4, apart from this, the OP 4 does not have any sought of information. The OP4 submits that does not have information about the items and other objects kept in the car and that the complainant has not produced any sought of bills or relevant documents supporting his claim. The OP4 have visited complainant’s place on 22/02/2023 and took the vehicle pictures to provide estimation and have generated repair order No. “R202302412” with odometer reading of 21,539 kms,vide dated 24/02/2023. The OP4 does not have any information about the allegation that the complainant had informed the incident to OP1 and 2 through telephone through their free Number on 16/02/2023 and upon receiving information officials of OP 1 and 2 conducted vehicle inspection on 24/05/2023 and on the same day received signed claim form from the complainant.

17. On 07/03/2023 the complainant called OP4 and informed that the vehicle has been put in two post ramp for the investigation survey purpose and subsequently complainant brought the alleged vehicle in towing condition to body shop of OP4 on 08/03/2023 for investigation and OP4 dismantled the vehicle (in front of the complainant and the surveyor who has been appointed by OP 1 and 2 herein,) battery, ECM starter motor, fuse junction box, alternator, and battery positive wiring and vehicle right around photos taken, this entire information is well within the knowledge of the complainant and with mala-fide intention, the complainant is making baseless allegations.

18. On 09/03/2023 Thermal investigation was done from Hyundai Motor India Limited (HMIL) and this information is also known to the complainant, after 20 -25 days, the OP got the Thermal Investigation report from HMIL which was later sent to the complainant, OP1 and OP2. On 27/04/2023 the south zone Service Manager of OP3 had arranged meeting in HMIL Regional office Bangalore with complainant and clearly informed that there is no manufacturing defect in the vehicle. The said vehicle was parked in an open parking space on road side on 15/02/2023 at about 11:00 PM, the alleged car got fire at about 3:30 AM, i.e, vehicle got fire after the lapse of 4 ½ hours of parking. The thorough inspection for the cause of fire, there was no manufacturing defect found in it.No symptoms of short circuit observed in affected area. The car caught fire after 4 ^1/2 hours of parking. The vehicle electrical system goes to sleep after 2 hours of complete shutdown of vehicle, hence chance of self- ignition due to electrical short circuit are very minimal. It is relevant to note that, the alleged car was parked on the road side inan open area in a residential colony and it is easily accessible to any 3rd person / miscreant and it is suspected that the incident might have happened due to some malicious act or some external factors, as there is no manufacturing defectsconfirmed in the vehicle that can cause fire in it. Complainant has failed to prove any manufacturing defect and also has failed to provide expert evidence / opinion to prove the same, which is essential under section 13 (1) (c) of Consumer Protection Act.

19. The alleged car was purchased on 03/02/2022 and the car caught with fire on 16/02/2023 (i.e, after the lapse of nearly 1 year 13 days).On the date of fire, the car had travelled a distance of 21,539 kms, which amounts to 1,795km per month and an average of 59.08km per day, this shows that the vehicle was in running condition and was used on regular basis by the complainant. This establishes that there was no manufacturing defect in the car. The OP4 further submits that after the due delivery from the first free services, once again on 18/07/2022, the said vehicle had second free service, i.e, at the odometer reading 10,057 km.It is to be noted that there is no complaint against the vehicle in any manner during the service. On the 3^rd free service the vehicle had travelled another distance of 10,682 km within the span of 177 days i.e, 60.3km per day. The OP4 is of high repute and holds ISO 9001-2001 certification that acknowledges uncompromised quality of service. OP4 are reputed dealers of world renowned car manufacturers “Hyundai Motors India Limited”, they manufacture luxury high end cars. After a lot of research and engineering innovations are empowered with highlyeducated sales team. The OP are the dealers of the manufacturers in Karnataka Region and they do not have any scope for compromising on quality standards. They are employed with best customer friendly executives, mechanics and technicians who are highly skilled, qualified and well trained. The OP has a good reputation in the market “as a Best Service Provider”. There is no chance to misguide or misrepresent the customers by their staff or executive at any point of time. The prayer of the complaint is wrong, vexatious, frivolous and false and hence denied on the grounds as submitted. The OP is not liable to pay any sort of compensation as prayed in the complaint. Hence to be dismissed.

20. The complainant filed affidavit evidence, certificate of 65 (b) of EA with CD, with 3 photos and 39 documents marked as Ex.P.1 to Ex.P.39. OP No. 1 and 2 fail to file their affidavit evidence. OP.4 file their affidavit evidence with 1 document marked as Ex.R.1. Complainant files written arguments. OP.1 and 2 files their written arguments. Heard complainant counsel.

21. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

22. Our answers to the above points are as follows:-

                        Point No.1:-Affirmative.

                        Point No.2:- Partly Affirmative.

                        Point No.3:- As per the final order.

REASONS

23. Point No.1 and 2: These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

24. On perusal of the documents submitted by the complainant, it is true that the complainant has purchased Hyundai i20 car bear chassis No.MALBK514LNM119171, engine No.D4FANM48068 on 21/01/2022 for total amount of Rs.12,72,845/-, registration No.KA53MJ1879.It is also true that the complainant has taken a policy from OP1 and 2, holding policy No.3001/238437417/00/000 for a period from 01/02/2022 to 31/01/2023 for own damage and from 01/02/2022 till 31/01/2025 for 3^rd party. On perusal of Ex.P.6, we also observe that the complainant has taken a loan of Rs.3,00,000/- from HDFC Bank for tenure of 60 months, with an EMI of Rs.6,083/- which is paid regularly by the complainant. Ex.P.7 is the copy of the policy taken by the complainant from OP.1 and OP.2, which is being renewed for a period 01/02/2023 to 31/01/2024 for a vehicle IDV of Rs.11,00,000/- with a premium amount of Rs.28,999/- dated 30/01/2023. Ex.P.8 is the FIR copy of complaint filed by the complainant with YelahankaNew Town Police Station dated:16/02/2023. Ex.P.9 is the Mahazar copy issued by the Yelahanka Police Station. Ex.P.11 is the copy of the claim made by the complainant to OP.1 and OP.2. Ex.P.12 and P.13 are the reports issued by OP.3 and OP.4 which clearly states that the vehicle has been thoroughly inspected and the alleged cause of fire is not due to any manufacturing defect in the vehicle,no symptom of short circuit is observed in the affected area. Hence no manufacturing defect is observed in the vehicle which would cause fire in it. Ex.P.14 is the copy of the reply of OP.1 and OP.2 regarding in the claim of the complainant. wherein the OPs has rejected the claim of the complainant, On observing Ex.P.35 to P.37 which are the photos of the burnt car,it is true that the car is totally burnt with unrepairable conditions and also it is observed that the car has been parked outside the house of the complainant.

25. OP.1 and OP.2 file 6 documents in their contention. OP.1 and OP.2 in their affidavit evidence, have taken contention that the rejection to the saidclaim of the complainant is made by OP.1 and OP.2. The OP.1 and 2 reject the claim stating that the cause of the fire was due to electrical failure which doesn’t fall under the purview of the insurance, as per the exclusions of the policy, wherein consequential loss, depression, wear and tear, mechanical or electrical breakdown are not covered and the same is been communicated to the complainant on 31/03/2023.

“Policy Exclusion: The damage to the vehicle is due to Electrical Failure which does not fall under the purview of insurance. As per the exclusions of the policy wherein the consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for the damage caused due to the overloading or strain of the insured vehicle nor for the loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time.”

26. On perusal of the documents submitted by the OP.1 and OP.2, Ex.R.3 which is the investigation report submitted by the OP.1 and OP.2. Ex.R.4 is the survey report issued by the insurance surveyors and loss assessorsPvt. Ltd (Lumiere) dated:07/03/2023, which states that the total assessed value is Rs.14,98,626/-.

27. On observing the above documents, we see that it is true that the complainant has purchased vehicle from OP. 3 and OP.4 and the same has been insured with OP.1 and OP.2. It is also true that the car was parked outside the house of the complainant and has caught fire when parked and has totally burnt. OP.1 and OP.2 admit to the fact that the complainant has taken the insurance policy from them and also submit a report which shows the damage and loss of Rs.14,98,626/- and also repudiate the said claim of the complainant stating that it doesn’t cover under the terms of the policy. We observe that in the policy, the basic covers are accidents, theft, fire, calamities, in which the cover of fire states that

“We take care of loss or damage due to fire explosion, self-ignition or lightening.”

28. This shows that the insurance is covered under fire.OP.3 and OP.4 submit repair estimation of the car dated 23/02/2023 of a total amount of Rs.18,12,407.63, part amount Rs.16,03,171.21 and labour amountof Rs.2,09,236.42/- in Ex.P.10. OP.3 and OP.4 submit through email to the complainant that there is no manufacturing defect in the carand the car has not caught fire due to any manufacturing defect or any short circuit is observed in affected area.

29. Hence on perusal and observations of the documents submitted by the complainant and OPs, we come to the conclusion that the complainant has taken an insurance policy from OP.1 and OP.2 for his car and the insurance is covered as per the policy terms, copy submitted by OP.1 and OP.2. Therefore OP.1 and OP.2 are liable to pay the full claim amount Rs.11,00,000/- as per the policy and the compensation of Rs.1,00,000/- for deficiency in service and unfair trade practice with litigation cost of Rs.10,000/-.

30. Point No.3: In view of the discussion referred above, we proceed to pass the following:-

:ORDER:

1. The complaint filed under section 35 of consumer protection act 2019, is partly affirmative.
2. OP.3 and OP.4 are dismissed with no cost.
3. OP.1 and OP.2 are liable to pay the IDV amount of Rs.11,00,000/- with interest of 8% per annum from 16/02/2022 till realization.
4. OP.1 and OP.2 are liable to pay compensation of Rs.1,00,000/- and Rs.10,000/- towards litigation cost.
5. OP.1 and OP.2 are directed to pay the entire amount within 45 days from the date of order failing which shall pay an interest of 10% per annum from the date of such default till realization.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties with no cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 29^THday of NOVEMBER 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;