STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.09.2018
Date of final hearing: 12.08.2024
Date of pronouncement: 11.10.2024
First Appeal No.1037 of 2018
IN THE MATTER OF:-
- Assistant Manager, Customer Relations Malik Toyota (HS01A) Hisar, Haryana, India (M) +91-9996788855.
- Manager, Malik Toyota Automobiles Pvt. Ltd, 14.5 Mile Stone, NH-65, Chandigarh Road Hisar-125001. …..Appellants
Versus
Jindal Coating Pvt. Ltd. 1 KM Stone Ladwa Road, V.P.O. Satrod Khurd, Hisar through authorized person Ambrish Jindal, R/o H. No.89, UE-II,Hisar Haryana, (M) No.+91-9416040089 aged 41 years.
…..Respondent
Toyota India Head Office Toyota Automobiles Company Ltd., Sana Plaza, 21/14/A, MG Road, Banglore-560001.
…..Performa Respondent
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued by:- Mr. Vivek Aggarwal, counsel for appellants.
None for respondent.
None for performa respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal No.1037 of 2018 has been invited to the legality of order dated 06.08.2018 passed by learned District Consumer Disputes Redressal Forum-Hisar (In short “District Consumer Commission”) in complaint case No.318 of 2017 vide which complainant’s complaint has been allowed.
2. Complainant/respondent herein is owner of vehicle viz: Fortuner, Model KUN61RNKMSYX bearing No.HR-20Z-4370 which was insured by Bharti AXA General Insurance Company Limited vide policy No.FPV/11429478/HI/II/001486. This vehicle suffered damage in minor accident resulted on 02.08.2017. Complainant visited Malik Automotive Pvt. Ltd.-Hisar for repair of vehicle. Its Manager demanded Rs.50,000/- advance payment for repair of vehicle and for purchase of parts, without providing estimate of repairs or parts and insisted on payment of Rs.50,000/-, in case complainant want to get the vehicle repaired from workshop. Complainant called at customer care of Toyota Company and explained the matter to its executive that: employee of Malik Automotive has/had demanded Rs.50,000/- as advance against repair and parts. Customer Care Executive explained that there is no provision to take advance payment for repair in their policy. Complainant also explained about rough behaviour of Malik Automotive Pvt. Ltd. and on this; customer care executive lodged complaint against Malik Automotive Pvt. Ltd.-Hisar vide complaint No.TCN0817187872 and assured to take strict action. On 05.08.2017, response was received on complaint dated 02.08.2017 through email and that response said a simple sorry with request to complainant to get his vehicle repaired from same workshop without paying advance of Rs.50,000/-. On 10.08.2017, he reached Toyota workshop for repair of his vehicle. At that time vehicle’s Bumper was slightly cracked and was in good condition with some other outer parts of vehicle. He asked Manager to replace all damaged parts including Bumper with new, and he (complainant) will pay full amount for new parts, but do not damage old part/bumper etc. and those be return to him (complainant) in same position. He delivered the vehicle to workshop for repair. On same day, he reached at Malik Automotive for taking delivery of his vehicle after its repair; Manager of Malik Automotive Pvt. Ltd-Hisar issued bill of Rs.95,005/- for repair of vehicle and he paid said amount vide cheque No.001116 at HDFC Bank. He took delivery of vehicle and demanded its old parts/Bumper, but Manager denied to return the same. As per text of complaint; complainant’s grievance is that OPs have not returned old parts/bumper despite his demand. As per plea; officials of OPs has/had accepted their fault and expressed to compensate him, but there is no result. He issued legal notice dated 14.08.2017. On these allegations; complaint has been filed for seeking direction against OPs to return parts/bumper etc. or refund cost of Rs.95,005/- of parts along with interest @18% p.a. and also to pay him compensation of Rs.5,00,000/- due to mental as well as physical agony so suffered by him.
3. In response, OPs raised contest. OP No. 1 (Assistant Manager, Customer Relations Malik Toyota-Hisar) besides pleading usual preliminary objections regarding complaint being vague, false, frivolous and vexatious; not true; not maintainable and there being no cause of action; non-impleading of necessary parties; locus standi; etc. and also by denying all allegations in complaint has asserted that best service was provided to complainant.
4. OP No.2 in its separately filed written version has denied that its Manager demanded Rs.50,000/- as advance payment for purpose of repair and for purchase of parts and for preparing estimate. Other pleas have also been denied. It has been denied that bumper of vehicle was in good condition. It is pleaded that salvage of damaged parts is property of insurer under indemnity and subrogation and after replacement; complainant has no right upon salvage of damaged parts. Best service was provided to complainant. It is denied that persons mentioned in compliant have accepted their fault and expressed to compensate complainant. Accordingly, dismissal of complaint has been prayed.
5. OP No.3 in its separate defence has alleged that vehicle was purchased in firm’s name viz: M/s Jindal Coating Pvt. Ltd. and to that extent; complainant is not a consumer because vehicle was purchased for commercial purpose. Vehicle was checked and got repaired by complainant from OPs No.1 & 2 and he made payment to them, therefore as per plea, no case is made out against OP No.3. There is no deficiency in service on the part of OP No. 3. Other allegations were denied by pleading that vehicle was out of warranty as it was an accidental case to which job was done on 02.08.2017 and no liability can be fastened against OP No.3. It is pleaded that Bhati AXA GIS is necessary and proper party and complainant must implead said insurer.
6. Parties to this lis led evidence, oral as well as documentary.
7. On analyzing the same; learned District Consumer Commission-Hisar has allowed the complaint vide order dated 06.08.2018 (impugned herein) and directed OPs No. 1 & 2 to return old parts/Bumper in question or to refund cost which has been assessed at Rs.20,000/- including compensation etc. Feeling aggrieved; OPs No. 1 & 2 has preferred this appeal.
8. Learned counsel for appellants has been heard at length. Nobody has appeared in this appeal on behalf of respondent/complainant since 26.03.2021. With able assistance of learned counsel for appellants; record too has been perused.
9. Learned counsel for appellants has urged that impugned order passed by learned District Consumer Commission is grossly illegal on all fronts; be it be legal or factual. No financial liability of Rs.20,000/- can be fastened upon appellants as the damaged vehicle was repaired on charging complainant since it was out of warranty. It is urged that complainant has no right to claim damaged parts of subject vehicle. It is urged that complainant has concealed the material facts. He has filed two claims before Bharti AXA Gen. Ins. Company. His Fortuner car was inspected on 08.08.2017 by surveyor in the premises of appellants and he (complainant) had received Rs.90,707/- from said insurer against payment of Rs.95,005/- to appellants. It is urged that very conveniently complainant has concealed this fact in his complaint and also intentionally not impleaded Bharti AXA GIS as party so that truth should not come out.
10. This Commission is of the view that this appeal must succeed. There is specific plea taken by respondent No. 3 in its written statement that Bharti AXA GIC is necessary party. In the present appeal; Annexure A-1 has been appended which is of the name and style “Motor Repair Assessment cum Processing Sheet” prepared by Bharti AXA Gen. Ins. Co. Ltd. This document reflects that subject vehicle was inspected on 08.08.2017 and it also recites that insurance policy is valid from 30.11.2016 to 29.11.2017 and date of loss is/was 01.08.2017. From this document, it is fairly deciphered that in all Rs.90,707/- has been received by complainant which include amount of Rs.1,120/- as TDS @ 2% also. Exactly, this plea has been taken by appellants in para 4 of its memorandum of appeal.
11. It is very hard to swallow that complainant was not in knowledge of this fact of having received amount from insurer. Obviously, when the vehicle was insured and loss to vehicle had occurred during currency of insurance, then complainant must have/had lodged appropriate claim before insurer to claim loss. As a matter of fact complainant had successfully claimed the amount from insurer. There is no averment at all in the phraseology of entire body of complaint on this count, for the reason best known to complainant. Naturally, insurer was not impleaded as party in the complaint with a mischievous intention that real truth should not come out. This attempt on the part of complainant is not appreciable at all. Having concealed material fact in complaint, despite having specific knowledge of same, the complainant must suffer the consequences. It is well settled legal adage that any party in the lis must bring true and correct facts in pleadings and must not conceal and suppress any material facts which has, nevertheless an important bearing on merits of controversy. Courts of Law, over the centuries have frowned upon the litigants who tend to approach or attempt to reach at temple of justice with tainted hands. Such litigants are not entitled to any equitable relief and their projected cause must be thrown overboard.
12. This Commission holds that complainant namely Jindal Coating Pvt. Ltd., which is an entrepreneur, is guilty of concealing and suppressing material fact from court of having received claim amount from insurance company and deliberately attempting to perpetuate their act of concealment by not impleading insurer (Bharti AXA Gen. Insurance Co. Ltd.) in the complaint, so that its (complainant’s) clandestine act of receiving claim amount from insurer should remain sheltered and covered. Alas! The complainant forgot even to realize that arms of law are lengthy enough to catch any wrongdoer with no exception to it (complainant). More so, complainant-Jindal Coating Pvt. Ltd. who has duly authorized Sh. Ambrish Jindal and said duly authorized person (Sh. Ambrish Jindal) has signed power of attorney, has, in its wisdom, chosen not to appear during proceedings of this appeal, despite that complainant’s counsel Sh. Puneet Bansal had appeared thrice on 01.02.2019, 06.05.2019 and 11.02.2020. Hence after 11.02.2020, Sh. Puneet Bansal-Advocate has not appeared at all. Why not, a material fact has/had been pleaded in complaint by complainant (Jindal Coating Pvt. Ltd.) which was express and specific to its knowledge? Why such material fact has come from the mouth of appellants? Vicious and Venomous attempt has been made by complainant-an entrepreneur (Jindal Coating Pvt. Ltd.) to secure double monetary benefit for itself, by not impleading insurer as a party in complaint and also by not disclosing real fact of having already received claim amount (Rs.90,707/-) from said insurer. Surprisingly, complainant has succeeded in its attempt as order dated 06.08.2018 (now impugned herein) has been passed in its favour by learned District Consumer Commission who was not apprised with actual and real facts so specific to its (complainant’s) knowledge. This contaminated act of complainant-Jindal Coating Pvt. Ltd. (an entrepreneur) is ex-facie visible and as such complainant is not entitled to any relief.
13. As a sequel to above discussion; this Commission has arrived at an inescapable conclusion that this appeal must succeed. It is accordingly allowed. Impugned order 06.08.2018 passed by learned District Consumer commission-Hisar in complaint No. 318 of 2017 titled as Jindal Coating Pvt. Ltd. Vs. Assistant Manager, Customer Relations Malik Toyota Hisar and others is hereby set aside. As a legal corollary so flowing; compliant so filed by complainant is dismissed with cost. In view of observation of this Commission that complainant is held being guilty of suppressing and concealing material facts, as detailed hereinbefore, it is burdened with cost of Rs.30,000/- (Rupees Thirty Thousand Only). This cost amount of Rs.30,000/- must be deposited by complainant- Jindal Coating Pvt. Ltd. with District Legal Service Authority at Hisar within 45 days from today (11.10.2024) and receipt in this regard must be placed in record of complaint and complainant is accordingly directed. In case, there is default on the part of complainant-Jindal Coating Pvt. Ltd. to comply with this direction within stipulated time of 45 days then appellants herein would be at liberty to enforce this order by filing appropriate petition/application before learned District Consumer Commission-Hisar and in that eventuality; the entire cost of that litigation (if it is filed at the behest of appellants herein) would be borne by complainant and in addition thereto; the cost amount of Rs.30,000/- would also carry interest @9% p.a. from passing of this order till its actual realization.
14. Statutory amount of Rs.10,000/- deposited by appellants at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 11th October, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
