ORDER

(Passed on 22/08 /2019)

SHRI.ATUL D.ALSI, PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging partial repudiation of his insurance claim caused by fire to the vehicle and, thereby claiming compensation of Rs.13,33,887/- or replacement of vehicle with interest  and cost of proceeding.

2.      The facts leading to this petition are that the Complainant had bought a vehicle Renault Duster from OP No.2 i.e. dealer of OP No.3 on 15/9/2016 for Rs.9,63,104/- and was registered with RTO vide No.MH 34, AN 6548. It was insured with OP No.1 for the period between 15/9/2016 to 14/9/2017. On 15/9/2016, due to a stone lying on the road, the vehicle dashed against roadside tree and the front portion of the vehicle was completely burnt in that accident. As an outcome of the same, an offence came to be registered with P.S. Warora, Distt.Chandrapur on 14/6/2017. The intimation of the accident  was given to the OP No.1 Insurance Company. The vehicle was then toed to the workshop of OP No.2 on 20/6/2017. The Insurance surveyor inspected the vehicle. The OP No.2 gave an estimate of expenses for the repair amounting to Rs.13,33,887/-. The complainant filed insurance claim alongwith requisite documents and supplied necessary documents to the insurance company as and when called for and even issued demand letter and also legal notice through his Adv.Mr.Dhoke calling upon the OP to honour the insurance claim. The OP No.1 was ready and willing to disburse the insurance claim to the extent of damage sustained due to accident, but it refused to honour the claim for the damages sustained due to fire. This amounts to deficiency in service.  Hence, the complainant has filed this complaint.

3.      The complaint is admitted and notices were served on the OPs. No.1 to 3.

4.    The OP No.1 filed its reply and thereby denied allegations against it but admitted insurance policy of the complainant’s vehicle and also that as per the surveyor’s report OP No.1 had offered insurance claim to the extent of damage sustained due to accident and not due to fire to the engine as well as to the front portion of the vehicle. The complainant has admitted in his complaint that there was manufacturing defect in the engine and there was smoke in engine since the purchase of the vehicle and, therefore, for manufacturing defect, the insurance company is not liable to make good the loss. The insurance company also objected to the limitation of the complaint and also jurisdiction of this Forum. The OP No.1 prayed for  dismissal++++ of the complaint with cost.

5.      The OP No.2 filed its reply and denied allegations against it and submitted that OP No.2 not the manufacturer of vehicle but simply a dealer. Therefore, the OP No.2 is not a necessary party. The OP No. 2 handed over the vehicle to the complainant after servicing in May,2017 to the satisfaction of the complainant and there was no further complaint in respect of the vehicle. The allegation in respect of manufacturing defect in Engine of the vehicle is baseless and there is no evidence of any expert in this respect. The vehicle is lying in the workshop of OP No.2 since 14/6/2017 without any instructions of repair neither it is removed by the complainant from the workshop. Therefore, the complainant is liable to pay demurrage charges @Rs.300/- per day to the OP No.2 till the delivery of the vehicle. The complainant is also liable to pay Rs.5000/- towards inspection of vehicle and issaunce of estimate for its repairs. The OP No.2 has no role in adjudication of insurance claim and as such the petition deserves to be dismissed against OP No.2.   

6.      Counsel for the complainant argued that the accident has accrued at Warora within the jurisdiction of this Forum and the cause of action to the complaint is continuous one. Therefore the petition can not be dismissed on these grounds. The complainant has filed insurance claim with requisite documents, but the OP failed to honour the claim in toto therefore, it amounts to deficiency in service. Therefore the petition may be allowed as prayed. 

7.        Counsel for the OP No.1 argued that the Forum has no territorial jurisdiction and that the complaint is not within limitation. He further argued that the engine of the vehicle was having smoke problem since the date of purchasing as per the job card. Therefore, for the manufacturing defect, the insurance company is not liable to pay compensation. Moreover, the OP No.1 is ready to honour the claim for the damages arising out of the accident and this fact has been already communicated to the complainant by Email. Moreover, the complainant failed to submit the repair bills of the vehicle. Therefore, the claim could not be adjudicated completely. Hence there is no deficiency in service on its part.

8.   The counsel for OP No.2 argued that OP No.2 is the vehicle dealer of Renault Company and not a manufacturer of the vehicle. The vehicle was sold on 15/9/2015 and till 14/6/2017, there was no single complaint about its engine emitting smoke. Therefore, there is no manufacturing defect. On the contrary, the OP No.2 has given estimate for repair of the vehicle to the tune of Rs.13,33,880/- by Email on 15/6/2017, however, the vehicle could not be repaird for want of necessary consent and instructions from the complainant till today. Therefore, the complainant is liable to pay demurrage charges to the OP No.2 till the delivery of the vehicle. There is no role of OP No.2 in adjudication of insurance claim and, therefore, the complaint is liable to be dismissed as against this OP No.2.

9.    We have gone through the complaint, written versions filed by OP No.1 and OP No.2, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                               Finding

1. Whether the complainant is a Consumer ?                                     Yes

2.  Whether the Forum has jurisdiction to entertain the complaint ?    Yes

3. Whether there is deficiency in service on the part of OP

  No.1 ?                                                 Yes

4.Whether there is deficiency in service on the part of OP

  No.2 & 3 ?                                             No

5. What order ?                                                                 As per final order..

As to issue No.1

10.      The O.P.No.1 has admitted the insurance policy in question so

also it is an admitted position that the complainant has purchased the vehicle in question i.e. Renault Duster from OP No.2 i.e. dealer of OP No.3 and, as such, the status of the complainant as consumer of OP Nos.1 to 3 is not disputed and hence the issue is decided accordingly.

As to issue No.2

11.        Admittedly, the accident of the vehicle in question occured within the jurisdiction of Police Station, Warora District Chandrapur. Hence this Forum has territorial jurisdiction to entertain the complaint. Further, as per the Email dated 28/7/2018 the OP No.1 has communicated to the complainant that the claim of the complainant could not be adjudicated completely for want of repair bills and that it has been adjudicated to the extent of accidental impact damages and the damages sustained to the vehicle due to subsequent fire to the engine could not be aproved. This petition has been filed well within 2 years from said communication and as such it is within limitation. Hence we record our finding to the issue No.2 in affirmative.

As to issue No.3

12.    The contention of the OP No.2, who is the authorised dealer and service centre of OP No.3 i.e. Renault company who is the manufacturer of Renault Duster Vehicle, is that there is no problem of smoke emitting from the engine since purchase of the vehicle by the complainant. As per the job card filed on record, problem of engine noice and smoke occured once but was removed completely to the satisfaction of the complainant and thereafter he never complained of any engine problem and hence there is no manufacturing defect in the engine of the vehicle in question. On the contrary, the OP No.1 has not filed any evidence or expert opinion to prove its contention of such manufacturing defect in the engine. To prove the contention is the duty of persons who asserts and when the OP No.1 has come up with a specific plea that the engine of the vehicle in question had a manufacturing defect it was duty bound to put forth cogent evidence in that respect. Manufacturing defect is the irremovable defect in the vehicle, which percists since beginning i.e.purchase of vehicle. However, there is nothing on record except bald averment of OP No.1 that the defect in engine was there since beginning and that it was irremovable. Therefore, this contention of OP No.1 fails measurably.

13.     The basic dispute is in respect of making good the loss sustained to the frontal portion of the vehicle due to fire to the engine which the OP No.1 claims to be non impact damages. As has been observed above, the vehicle had no manufacturing defect in its engine and that the emitting of smoke was not a continuing problem therein. Hence the only logical conclusion can be drawn that the damages sustained by the vehicle due to fire to the engine were also the outcome of impact of accident. As such, the OP No.1 is liable to make good the entire loss sustained to the vehicle in the accident as a whole. Hence non adjudication of entire claim by the OP No.1 amounts to deficiency in service.

14.   Further, coming to the quantum of compensation the complainant is entitled for, it is pertinent to note that though the OP No.2 had estimated the damage caused to the vehicle due to accident at Rs.13,23,887/- i.e. more than the price of vehicle which is Rs.9,63,104/-, after actual inspection it has quantified the same to the extent of Rs.7,17,482/- only as per the invoice filed by the complainant on record at Exh.A-1.  Hence the OP No.1 is liable to pay the I.D. value of the vehicle as insurance claim to the complainant. OP No.1 is not liable to pay demurrage charges @Rs.300/- per day to the OP No.2 from the date of vehicle been brought to OP No.2 for repairs till the OP No.1 removes salvage of the vehicle from the custody of OP No.2. Hence the issue is being answered in affirmative accordingly.  

As to issue No.4

15.      As has been observed above, the vehicle in question had no manufacturing defect and the damages vehicle could not be repaird by OP No.2 for want of necessary instructions from the complainant. The OP No.2 has no role to play in adjudication of insurance claim, and as such, no liability can be fastened on the OP Nos.2 & 3 i.e. the dealer and manufacturer of the vehicle. Hence we record our finding to the issue No.2 in negative.

As to issue No.5

16..       In view of our observations supra, we proceed to pass the following order...

Final order

1. The Complaint is partly allowed.

2. The OP No.1 shall pay to the complainant the I.D. value of the

   vehicle i.e.Rs.7,70,482/-

3. The OP No.1 shall further pay to the complainant compensation of

   Rs.20,000/- for mental and physical agony and cost of proceeding

   of Rs.10,000/-

4. The OP No.1 shall not be liable to pay demurrage charges

   @Rs.300/- per day to the OP No.2 from the date of vehicle has

   been brought to OP No.2 for repairs till the OP No.1 removes

   salvage of the vehicle from the custody of OP No.2.

5. No order is passed against OP Nos.2 & 3.

6. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President