Haryana

Ambala

CC/213/2014

MANOJ KUMAR - Complainant(s)

Versus

KANAV MOTORS - Opp.Party(s)

ANKUSH GUPTA

11 Sep 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                                  Complaint No. 213 of 2014

                                                                  Date of instt:  11.08.2014.

                                                                  Date of decision: 11.09.2017.                                                

Manoj Kumar s/o Jabber Singh r/o VPO Shahzadpur Tehsil Naraiangarh District Ambala.                                                ...Complainant.

Versus

1. Kanav Motors Private Limited Ambala- Jagadhri Road, village Tepla, Ambala Cantt-133001.
2. Ford  India Pvt. Ltd, 3^rd Floor Building 10 C, DLF Cyber City, DLF Phase II, Gurgaon 122002
3. The New India Assurance Company Limited service to be affected through Divisional Manager, 106, The Mall, Ambala Cantt.

                                                                             …Opposite parties.

Complaint under section 12 of

BEFORE:  SH. DINA NATH ARORA, PRESIDENT.      

                SH. PUSHPENDER KUMAR, MEMBER

                        MS. ANAMIKA GUPTA, MEMBER                    

Present: -    Sh.Ankush Gupta, Adv. for complainant.

                   Sh.Keshav Sharma, Adv. for OP No.1.

                   Sh.Nikhlesh Bhagi, Adv. for OP No.3.

                   OP No.2 exparte.

ORDER:

                   Brief facts of the present complaint are that the complainant had purchased a Ford Figo Car bearing Engine No.CE20086 and Chesis No.MAJ1XXMRJ1CE20086 (registration No.HR04E-0569 from OP No.2 in the year 2012 and the said car was having two years manufacturing guarantee. He got the said vehicle insured with Op No.3 vide cover note No.LDH/2012 No.913085 for the period 22.10.2013 to 21.10.2014. On 27.06.2014, vehicle of the complainant met with an accident. Thereafter the vehicle was delivered to OP No.1 and its engineer asked the complainant that chamber of the vehicle had got damaged and it requires replacement. The complainant agreed to get the vehicle repaired and signed the requisite papers as demanded by OP No.1. Thereafter, the complainant visited Op No.1 for delivery of the vehicle then it was intimated to him about seizing of engine and he would have to deposit the expenses of engine repair/replacement. Since the vehicle was insured with Op No.3, therefore, the complainant did not pay the expenses and contacted the OP No.2 through email but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service as the faulty car of the complainant was not be repaired, therefore, the complainant has to suffer mental agony and harassment. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C8.

2.                Upon notice, OPs appeared through counsel and filed their separate replies. OP No.1 in its reply has submitted that it is not a consumer dispute because the complainant has already taken the repaired vehicle after making the payment thereof. There is no deficiency in service on the part of OP Nos. 1 & 2 as the vehicle was repaired as per the directions of Op No.3. The vehicle was properly attended by Sh.Ravi Gupta, surveyor and thereafter it was delivered to the complainant after his entire satisfaction but OP No.3 did not pass the claim for engine problem. Other allegations made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

3.                          OP No.2 in its reply has submitted that the present complaint has been filed with ulterior motive as the complainant does not fall within the ambit of consumer. The present complaint is bad on account of non-joinder and mis-joinder of necessary parties. It has been submitted that the vehicle in dispute has crossed over 41000 KMs without any complaints of manufacturing defect. In the first accident took place in the year 2013, damages to front bumper, radiator and above all the Power Train Control Module (PCM) were caused. The PCM is an automotive component, an electronic control unit used in motor vehicles and is brain of the engine control system and the same should be replaced as and when it is diagnosed to be damaged/ defective. Since the PCM of the vehicle was damaged and when the complainant was asked for its replacement then he refused. The vehicle of the complainant met with an accident in June, 2014, therefore, repair of the same including the work to the engine was efficiently carried out. The complainant has been negligent and reckless in handling the vehicle. The present complaint has been filed by concealing the material facts and there was no privity of contract between the complainant and OP No.2. From the vehicle repair history it is clear that the chamber has never been damaged or replaced and the vehicle was being used extensively over thousands of kilometers without any manufacturing defect. Other allegations made in the complaint have been controverted and prayer for dismissal of the same has been made.

4.                OP No.3 in its reply has submitted that the complainant is etopped from filing the present complaint. After the accident, the complainant had lodged the claim with Karnal Branch of OP No.3. The surveyor appointed by the branch of OP No.3 had inspected the vehicle on 24.06.2014 and in his report dated 15.09.2014 he had assessed the loss to the tune of Rs.23273/- subject to terms and conditions of the insurance policy and depositing the salvage.  The claim to the tune of Rs.22520/- was sanctioned and communicated to the complainant on providing of bank details but the complainant did not provide the same despite issuance of many letters, therefore, the claim of the complainant was closed duly communicated to the complainant vide letter dated 12.01.2015. The estimate for a sum of Rs.75,915/- was not correct as the surveyor had assessed the loss as per requirement and genuine repair of the vehicle. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence Op No.3 has tendered affidavits Annexure RW3/A and Annexure RW3/B besides documents Annexure R3/1 to Annexure R3/26 however, OP No.1 did not lead any evidence and prayed for treating the written statement filed by it as its evidence vide statement dated 10.04.2017.  No evidence has been led by OP No.2 and it was proceeded exparte vide order dated 10.04.2017.

5.                          We have gone through the case file with the assistance of the counsel for the parties.  It is not disputed that the accident had occurred during the subsistence of the policy and the vehicle has been got repaired from OP No.1 and the OP No.1 has firstly given estimate to the tune of Rs.11388/- but the vehicle could not be got rectified and another estimate to the tune of Rs.75915/- was also prepared. The surveyor had inspected the vehicle and assessed the claim to the tune of Rs.22520/- on 15.09.2014 subject to terms and conditions of the policy and depositing of salvage after deduction but the complainant failed to fulfill the formalities required for  the payment of claim, therefore, the insurance company has closed the claim of the complainant vide letter dated 12.01.2015. There is no deficiency on the part of the insurance company. As per version of the complainant, total bill to the tune of Rs.41480/- (Annexure C1) was given to the service centre and payment was made by the complainant under protest and made the endorsement that he is paying the above said amount under protest because he had filed a complaint before consumer Court against the OPs by reserving his right as he has filed a complaint under Consumer Protection Act against the company and insurance company (Annexure C2). In this document it has also been mentioned that after accident customer run the car, so engine assay damage internally. This subject cause due to internal damage. The fault lies on the part of the dealer, the allegations alleged by the dealer was false and when the vehicle was delivered through machine (crane) to the dealer/company stated the vehicle in question is parked the vehicle in the premises of the company. The company itself in the fault.

6.                          It is not disputed that the complainant has paid the amount of Rs.41480/- to the dealer from his own pocket despite the fact that the policy so purchased for the vehicle in question was cashless policy. Indisputably, the insurance policy so purchased by the complainant was a cashless policy in which the complainant was not to pay the expenses, for damage or repair to the vehicle, otherwise the word “cashless” loss its sanctity. It is a matter of common knowledge that cashless policy carries extra premium. If despite payment extra premium, the complainant has still to run around to seek compensation, not only that the consumer’s faith in the insurer would be shaken but it would also frustrate the purpose of having cashless policy.  The complainant has paid Rs.41480/- (Annexure C1) to the service centre qua repairing of the vehicle in question but the insurance company has only sanctioned the claim to the tune of Rs.22520/- despite the fact that the surveyor in his final report Annexure R3/5 has assessed the net loss to the tune of Rs.23273/-. It is not understandable as to why the insurance company/surveyor have sanctioned/ assessed the loss lesser than the amount paid by the complainant to the service centre on account of repair charges of the vehicle which shows that the insurance company is bent upon to frustrate the purpose of cashless policy because consequential loss being a result of the initial damage to the car was to be treated as one loss and it should not be separated from the first part of loss, therefore, the dealer cannot be held liable for the loss.  On this point reliance can be taken from case law titled as M/s Tata AIG General Insurance Company Vs. Ranbir Singh 2016 (3) CLT 218  wherein Hon’ble State Commission, Haryana has held that Insurance Claim- Cashless insurance- Due to heavy water on road, car stopped and water entered into the engine of car- Car was got repaired from authorized dealer and payments made to authorized dealer vide payee accounts cheques- Appellants-insurer has paid the charges for change of oil, oil filter etc. and has denied the remaining charges by stating that the rest was on account of consequential loss, which is not covered under the policy- However, there are no allegations that the consequential loss was on account of any negligence on the part of the complainant- Held, consequential loss being as a result of the initial damage to the car has to be treated as one loss; it cannot be separated from the first part of loss- It is established that the appellant/insurance company is liable to indemnify the complainant with respect to the damage of his insured car. The present case is squarely covered by the law laid down by the Hon’ble State Commission in the above said judgment. The OP No.3 in its reply has admitted that claim to the tune of Rs.22520/- has been sanctioned but the insurance company failed to make the payment either to the complainant or to the service centre which tantamount to deficiency in service on the part of insurance company qua not paying either the sanctioned amount or the amount spent by the complainant for the repairing of his vehicle despite the fact that it was a cashless policy. The insurance company is not suppose to get only premium but it also liable to act fairly without taking the benefits of the weaknesses of the assured and it is also liable to indemnify all the responsibilities for which the premium has been received.  In the present case it is clear that the OP No.3/ insurance company has not acted fairly, therefore, it cannot shirk from its liability under indemnification qua the loss for which it had received premium. Hence, it would be appropriate if we direct the insurance company to pay the complainant to the tune of Rs.41480/- alongwith interest @ 9 % per annum from the date of making the payment to the dealer by the complainant on 06.09.2014 (Annexure C2) till its realization. It is ordered accordingly. The present complaint is partly allowed against OP No.3-insurance company with costs which is assessed as Rs.3,000/-.  Complaint against OP Nos. 1 & 2 stands dismissed. Order be complied within one month from the date of receiving of the copy of this order. Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

 

Announced on: 11.09.2017                                               Sd/-

                                                                                (D.N. ARORA)

                                                                                     PRESIDENT

 

                                                           

                                                                                       Sd/-

                                                                             (PUSHPENDER KUMAR)

                                                                                     MEMBER

 

 

                                                                                                Sd/-

                                                                           (ANAMIKA GUPTA)

                                                                                     MEMBER