BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAPURTHALA.
Complaint No. 32 of 2020
Date of Instt. 07.07.2020
Date of Decision : 27.11.2024
Pardeep Singh son of Ajit Singh, resident of Near Baba Puran Singh, Gurudwara Sahib, Village Gura, P.O. Bara Pind, District Jalandhar, Punjab.
....Complainant Versus
Kosmo Automobiles, Opposite DPS School, G.T. Road, Jalandhar through its Managing Director/ Proprietor/ General Manager/ Branch Manager.
Kosmo Service Centre of Respondent Number 1, Near Sacred Heart Convent School, G.T. Road, Phagwara.
Hyundai Motors India Ltd. Plot No.5, 2nd & 6th Floor Corporate One Baani Building, Jasola Vihar, New Delhi, Delhi 110025 through its Chairman/ CEO/ General Manager/ Regional Manager/ Branch Manager.
SBI General Insurance Company Ltd., Natraj 101, 201 and 301, Junction of Western Express Highway and Andheri Kurla Road, Andheri East, Mumbai – 400069 through its Chairman/ Managing Director/ CEO.
...Opposite parties
Complaint under section 12 of Consumer Protection Act
Quorum: Before: Sh. Rajesh Bhatia (President)
S. Kanwar Jaswant Singh (Member)
Present: Complainant in person.
Sh. Rajat Chopra counsel for OP No. 1 & 2
Sh. P.S. Hanspal counsel for OP No.3
Sh. Raman Kumar Sharma counsel for OP No.4
Order
S. Kanwar Jaswant Singh (Member)
1. FACTS OF COMPLAINT
The Complainant has preferred this complaint , under section 35 of the consumers protection act, 2019 (in short, “THE ACT”) against the opposite parties, seeking following directions to opposite parties -
i) To pay an amount of Rs. 2,00,000/- as compensation, against the depreciation of value of the car due to negligence, unfair trade practice and deficiency in service for denting and painting of the car of the complainant without his consent and permission only to get exaggerated false claim from the insurance company.
ii) To pay Rs. 1,00,000/- as compensation for mental agony and the harassment faced by the complainant for unfair trade practice, negligence and deficiency in service on the part of the opposite parties.
iii) To impose punitive damages as deem fit by this HON’BLE Commission upon the opposite party number 1 to 3 against negligence ,unfair trade practice and deficiency in service for denting and painting of the car of the complainant without his consent and permission only to get exaggerated false claim from the insurance company by way of cheat and fraud.
iv) To pay the litigation charges of Rs. 22,000/- to the complainant.
v) To pay interest @ 18 % on the amount awarded by this commission to the complainant to its actual realization.
vi) Any other relief which the commission may deem fit for the interest of justice and equity
Brief facts , as set forth in the complainant are that complainant purchased i20 car from the OP no.1 in March, 2016 against full consideration. Complainant had given his above sald car to OP No. 2 for replacement/repair/paint of front and rear bumper on 17/6/2019 only against consideration. Registration number of the said car is PB08DH0557. There were also minor dent and small scratch on the door, fender and boot of the car. At that time one of the representatives of Ops No. 1 & 2 namely Gurcharan Singh asked the complainant whether he also wants to get the repair of the said minor dent and small scratch to which complainant had refused. Complainant had given instruction to the Ops No. 1 and 2 to replace/repair/repaint front and rear bumper only. It is pertinent to mention here that complainant had got cashless insurance from opposite party number 4 through OP No.1. On 26-06-2019 when complainant went to take delivery of his car from the service center of OP No. 2 situated at Phagwara i.e. service center of opposite party number 1, he was shocked to see that OP No. 2 has repaired and repainted all the minor dents and small scratch on the door, fender and boot of his car without the consent and permission of the complainant. Complainant made a strong protest before service manager and the emplovees of OP No.2 that how they have repaired the whole car without his consent. Then one of their employees told that as the claim filed by the complainant for replacement/repair/ repaint of front and rear bumper was very less, that's why they have repaired the whole car. They further told the complainant that they need not to worry as insurance company has to pay the full bill/ whole charges for the full repair and he has to pay only Rs. 1000/- as margin money. Rather complainant should be thankful to them that they have repaired the whole car. But complainant was very upset over the conduct of OP No. 2 and again protested that now after full body repair his car has become repainted and at any point of time when he would have to sell his car it would be considered as an accidental vehicle. After strong protest complainant demanded copy of job card prepared by the OP No.2 at the time when car was handed over to them for repairs but they bluntly refused. On this the behavior of the service manager of the OP No.2 became very rude and he said that they have repaired his car and he should be thankful to them and threatened the complainant to go away from their workshop along with his car otherwise they will charge money from the , complainant as parking fee of his car in their workshop on the daily basis. Under compulsion complainant had paid Rs. 1,000/- as margin money and took his car from the workshop/service center of Ops No. 1 & 2. On 28/6/2019 complainant got contact number of surveyor of OP No. 4 from customer call center. They had given the name of Mr. Gobind Luthra and also his contact number i.e. 91159-92543. Complainant contacted Mr. Luthra on the number given and requested to send him the report and photographs of his car regarding the repairs done by opposite party number 2. Mr. Luthra sent the photos of the damaged car. Complainant had written one complaint to OP No. 3 on its official e-mail ID of customer care on 29/6/2019 regarding the same incident and demanded action against the culprit and also to fulfill the loss suffered by the complainant but no action was taken by OP No. 1 on the complaint filed by the complainant. On 2/7/2019 complainant sent one complaint to to OP No.4 on its official e-mail ID of customer care and apprised them about the malpractice being done by the opposite party number 1 and 2. OP No.4 had given prompt reply to the said mail vide e-mail dated 04-07-2019 and told the complainant that his claim has been rejected by them and further suggested the complainant to contact Mr. Gobind Luthra on his contact number 91159-92543. Mr. Luthra had sent copy of the rejection letter to the complainant. Complainant was shocked to see the said letter that the claim has been repudiated on the grounds of exaggerated claim. Complainant had received one letter from OP No. 2 dated 02-07-2019 that said car/vehicle was reported for accidental repairs in their workshop for insurance claim on 18-06-2019 on the instructions of the complainant and it was sent back at Phagwara branch after repairs on 24-06-2019. The said vehicle is ready for delivery since 24-06-2019. It is requested to please get delivery of the said car soon to avoid daily parking charges Rs.300/-. It is pertinent to mention here that the said letter dated 02-07-2019 was just an afterthought and was actually posted through registered post on 06-07-2019 but the date on letter has been shown as dated 02-07-2019. The said letter was received by the complainant on 08-07-2019. Complainant was surprised to see the conduct of opposite party no. 1 and on the very next date i.e. 09-07-2019 complaint had sent reply to the OP No. 1 exposing their malpractice through registered letter and also through E-mail. OP No. 1 issued one letter/certificate to the complainant regarding accidental repairs carried out by them and also about insurance claim against the said car for amount of Rs. 22680/-. The job card prepared by the OP No. 1 & 2 at the time of giving car for repair for front and rear bumper only was never given to the complainant. Only job card would show what kind of repair has been conducted by the Ops No. 1 & 2. with the consent of the complainant. Complainant has handed over his car to Ops No.1 & 2 for repair of front and rear bumper only but they have replaced/repaired/repainted the whole car without the consent of the complainant just to create false and exaggerated bill of repairs just to get claim from the insurance company i.e. OP No.4 by cheating.
2. DEFENCE OF THE OPPOSITE PARTIES :
Notice of the complaint was given to the opposite parties and accordingly OP1, OP2, OP3 & OP4 appeared through their respective counsels and filed written replies. OPs No. 1 & 2 filed written reply, whereby contested the complaint by taking preliminary objections that present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts, as the complainant is guilty of materially concealing and suppressing material facts and has approached this Hon' ble Commission with unclean hands with the sole intention of deceiving this Hon'ble Commission. It is specifically submitted that the complainant's suppression and concealment is evident from the fact that the complainant came to the answering opposite parties along with his car, which was in accidental condition. The complainant was attended by ASM of the answering opposite parties and the complainant explained the reason for accident, the same was reduced into writing, which was duly checked and counter signed by the complainant after regarding the contents of the same to be true and correct. Later on, as per procedure and as per instructions of the complainant and as explained by the complainant about the accident, intimation was sent to the Insurance Company along with estimate of the loss as per the claim form. Thereafter, Surveyor was deputed by the insurance company and after conducting survey, Surveyor approved most of the things but rejected front door right side and Fender right side with a reason that it seems to be the aggravated loss so it was not allowed, but as per the statement of the complainant he said that the front door right side and Fender right side were damaged on account of accident, thus, in order to maintain the trust of the customer, the answering opposite parties got repaired the fender right side as well as front door of right side under goodwill and have not charged anything from the complainant. The answering opposite parties got necessary repairs done under goodwill without charging anything from the complainant in-spite of that the complainant has filed false and frivolous complaint in order to harass, humiliate and to exert pressure upon the answering opposite parties to extract illegal money from them. The vehicle of the complainant was received by the answering opposite parties in an accidental condition. Complainant has failed to disclose all the facts before this Hon'ble Commission which if disclosed would have indicated that there is no cause of action in favour of the complainant against the answering opposite party. The true facts are that the vehicle of the complainant was received by the answering opposite parties in an accidental condition and on the request of the complainant for repairing his accidentalvehicle after getting insurance claim, the vehicle of the complainant was received by the concerned official of answering opposite parties. The complainant was attended by ASM of the answering opposite parties. Later on, as per procedure and as per instructions of the complainant and as explained by the complainant about the accident, intimation was sent to the Insurance Company along with estimate of the loss as per the claim form. Thereafter, the Surveyor, so appointed by insurance company, approved most of the loss but rejected front door right side and Fender right side on the pretext that "it seems to be the aggravated loss so it was not allowed". The answering opposite parties in order to maintain the trust as well as good relationship with its customers, got repaired the fender right side as well as front door of right side under goodwill, being bonafide service provider and have not charged anything from the complainant, so there is no negligence on the part of answering opposite parties, hence the complaint filed by the complainant is false and frivolous and has been filed in order to exert pressure upon the answering opposite parties to extract illegal money. The claim of the complainant is false and frivolous, moreover, this Hon'ble Commission is having no jurisdiction to entertain this complaint. On merits, the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
3. OP No.3 appeared through counsel and filed written reply by taking preliminary objections that complainant has no locus-stand to file the present complaint against HMIL (OP No. 3) as complainant has failed to prove by any document on record that any cause of action arose to the complainant to file the present complaint against HMIL Complainant is not a consumer of HMIL (OP No. 3) under the definition of consumer as defined under Consumer Protection Act, 1986 for the matter in dispute i.e. accidental repairs. Present complaint is not maintainable against HMIL. Complaint filed by the complainant and averments made therein against the HMIL (OP No. 3) are false, frivolous and vexatious and thus the present complaint is liable to be dismissed U/S 26 of Consumer Protection Act qua OP No. 3. The present complaint is liable to be dismissed for concealment and misrepresentation of material facts as complainant has filed the present complaint by suppressing the material facts and by misleading the facts before the Hon'ble Forum just to get an undue advantage and undue relief to which, complainant should not be allowed to. Complainant has concealed the material fact that it has been clearly stated in Warranty policy that accidental repairs are not covered under the warranty policy. Complainant has further concealed the material fact that his car is out of warranty. Thus, the present complaint is liable to be dismissed. It is submitted that liability of HMIL being the manufacturer of the Hyundai Cars extends and is limited to its performance and warranty obligations only that also strictly as per warranty policy. Thus, from this fact it is clear that the accidental repairs are not covered under the warranty policy and thus the present complaint is not maintainable against HMIL. Complainant has failed to demonstrate that the HMIL had promised or assured services, which was nut fulfilled by it or HMIL (OP No. 3) was deficient in providing any services or has indulged in any unfair trade practice under the provisions of Consumer Protection Act, 1986. No money from the sale consideration of the car or for accidental repair was paid to HMIL (OP No. 3). The complaint has himself stated that he had paid the charges to OP No. 1 & 2 only. Thus, from this, it is clear that HMIL was not party to such transaction/ understanding. No cause of action has arisen to complainant to file the present complaint against HMIL. The Hon'ble Forum has no territorial jurisdiction to try the present complaint. On merits, the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
4. OP No.4 appeared through counsel and filed their written reply by taking preliminary objections that the present complaint is not maintainable against the answering opposite party No.4 SBI General Insurance Co. Ltd. as no relief has been claimed against the answering opposite party No. 4 SBI General Insurance Co. Ltd., as such the complaint against the answering opposite party No. 4 is liable to be dismissed. The present complaint is bad for mis-joinder of necessary parties. The answering opposite party No. 4 SBI General Insurance Co. Ltd. is not a necessary part, but has been impleaded as Opposite Party No. 4 without any cause of action accruing to the complainant against the answering opposite party No. 4, as such the complaint is liable to be dismissed on this score only. Complainant has no locus stand to file the present complaint against the answering opposite party No. 4. The dispute, if any is between the complainant and the opposite parties No. 1 to 3, as such the complaint against the answering opposite party No. 4 is liable to be dismissed. On merits, it is submitted that the repair of the car in question by the Ops No. 1 & 2 is a matter of record. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.
5. Rejoinder not filed.
6. EVIDENCE OF THE PARTIES :-
I) To prove his claim, counsel for complainant has tendered an affidavit of the complainant Ex. CA as evidence along with documents Ex.C-1 to Ex.C- 10.
II) The Counsel for the opposite party OP1 & OP2 on the other hand have tendered an affidavit Ex.OP1 & OP2 as evidence along with documents Ex. OP1 & OP2 /1 to OP1 & OP2/ 5 in support of his contention.
iii) The Counsel for the OP-3 submitted affidavit Ex.Op-3/A along with documents Ex.OP3/1 to Ex.OP3/2 to strengthen his case.
Iv ) The Counsel for the OP-4 submitted affidavit Ex.Op-4/A along with documents Ex.OP4/1 to to strengthen his case.
7. CONTENTIONS OF THE PARTIES :-
To begin with, it will be pertinent to mention in this complaint that the OP-1 is Kosmo Automobiles GT Road Jalandhar, OP-2 is Kosmo Service Centre GT Road Phagwara Distt. Kapurthala owned by OP1, OP3 is Hyundai Motor India Ltd ( HMIL) New Delhi and OP4 is SBI General Insurance Company Ltd Mumbai. Hereinafter, for the sake of brevity the parties will be referred accordingly.
We have heard the learned counsel for the parties and gone through the case file carefully.We have also perused the written arguments submitted by all the parties . Now let us examine their contentions in the present dispute one by one.
a) Complainant :-
Ld Counsel for complainant submitted that he had purchased i 20 car having registration no. PB-08 DH 0557 from the OP1 in March 2016 against full consideration . The complainant had cashless insurance of the said vehicle from the OP4 through opposite party no. 1. The complainant further submitted that the car was handed over to OP2 on 17/6/19 to get the front and rear bumper of his car repaired/ replaced/re-painted only against consideration. Counsel for the complainant reiterated that there were also minor dent and small scratches on the front right door, front right fender and boot of the car, but representative of the opposite party no.2, Sh.Gurcharan Singh who took over the car for repair was clearly told that only the front and rear bumpers of the said car was to be repaired/ replaced/ re-painted and no other parts of the said car was to be touched upon.
Learned counsel for the complainant vehemently contended that, OP2 has repaired, all the minor dents and small scratches on the front right door, front right fender , boot of the car and also have re-painted the whole body of the car without any instructions from the complainant. When the complainant strongly protested before the service manger against the repair/repainting of the forbidden parts, he was told that he need not to worry about charges, as insurance company OP4 has to pay the full bill / whole charges for the total repair and he has to pay only Rs.1000/- as margin money. Ld. counsel for the complainant further contended that due to full body replacing/repairing/repainting by the OP2, the value of the complainant car has highly been depreciated. After strong protest ,when complainant demanded copy of JOB CARD prepared by OP2 at the time of handing over of car to them for repairs, which would show the kind of repair instructed by the complainant to the OP2, but the same was refused and was never shown to complainant. Under compulsion complainant paid Rs.1000/- as margin money and took the car from OP2 on 28.6.19. The matter was brought to the notice of the Hyundai Motors India Ltd OP3 through its official e-mail ID on 29.6.19,but no action was taken by OP3. Complainant also reported the such conduct of the OP2 to the SBI General Insurance Co., which is OP4 on its official e-mail ID. OP4 had given prompt reply to the said mail and intimated the complainant that exaggerated claim has been rejected by them and further suggested to contact Mr. Gobinda Luthra, SURVEYOR, in this regard. Complainant contacted the Surveyor , Mr.Gobinda luthra regarding the same , who sent photos of damaged car and photos of repair done by OP2.
Learned Counsel for the Complainant vehemently contended that the whole car was replaced/repaired/repainted by OP2, instead of front and rear bumper as instructed by the complainant. This has been done by OP2 just to exaggerate the repair bill of the said car. Due to this act of the OP1 & OP2 the re-sale value of the car has gone down. Learned counsel further argued that there is grave deficiency in service and unfair trade practice on the part of the opposite parties, thus complainant is entitled to all the reliefs as prayed for.
b) OPPOSITE PARTIES NO. 1 & 2 -
Learned Counsel for the opposite party no.1 and 2 have jointly submitted that Complainant had brought the car No. PB08DH0557 in accidental condition in the Kosmo service center at Phagwara Distt Kapurthala (Which is owned by OP1) on 17.6.19. The complainant explained the reason for accident and the same was reduced into writing duly signed by the complainant. It was argued that this fact has been concealed by the complainant in his complaint. Accordingly the intimation was given to the insurance company along with estimate of the loss as per the claim form, there after Surveyor was deputed by the Insurance Company (OP4) who conducted the survey and approved most of the things but rejected repairing /repainting of front door right side and fender right side with the reason that “it seems to be exaggerated loss, so it was not allowed. However, in order to maintain the trust of the customer , the answering opposite parties got the front door right side and the fender right side repaired under goodwill and nothing had been charged from the complainant for this job except clause charges of Rs 1,000. Opposite party no.2 further contended that accidental car was repaired /repainted only as per the instructions of the complainant, and the charges for the same was to be borne by the insurer viz OP4. Learned Counsel for the opposite parties strongly argued that as the accident occurred near Banga Distt. SBS Nagar and vehicle of the complainant was also got repaired at Jalandhar, so this Hon’ble commission has no jurisdiction to try and decide present complainant. Therefore, it is prayed that complaint may kindly be dismissed with heavy cost.
OPPOSITE PARTY NO. 3 –
Learned Counsel for the opposite party no.3 which is HYUNDAI MOTORS INDIA LTD (HMIL) submitted that, complainant is not a consumer of the HMLI (OP3) for the matter in dispute of accidental repair of the car. It is further argued that complainant in para no. 2 of the complaint has himself stated that he had reported his vehicle for replacement/repair/repainting of front and rear bumper of the said car on 17.6.2019 to OP No.2 which is a service cente of OP No.1 at Phagwara. Counsel for OP No.3 vehemently contended that being manufacturer of Hyundai Cars, liability of OP No.3 (HMIL) extends and is limited to its performance and warranty obligations only having no coverage of accidental repair , theft, flooding or fire. Also ,no cause of action has arisen to the complainant to file present complaint against HMIL (OP3) as accidental repairs are not covered under HMIL Warranty Policy (Ex.-OP3/1)
Learned counsel for OP3 further argued that as per agreement (Ex.-3/2) HYUNDAI MOTORS INDIA LTD operates with OP1 and OP2 on Principal To Principal Basis and not on Principal to Agent basis meaning thereby that error/omission if any at the retailing or servicing of the car by the dealer is the sole responsibility of the concerned dealer. So, from all these facts it is clear that HMIL has been unnecessarily made party to the present complaint. It is pertinent to mention here that when the cars are purchased by dealers from HMIL against payment and thereafter sold to customers under retails invoice the title of Hyundai Vehicle passes on to the concerned dealer, the moment it is put on the common carrier. The foregoing has been laid in precedents in ,
1. M/S Hero Honda Ltd V/S K.B.Murleedharan, NCDRC,
2. Vijay Trader V/S Bajaj Auto Ltd , SC
3. Maruti Udyog Ltd V/S Nagender Parsad Sinha & Anr , NCDRC
4. Indian oil Corporation V/S Consumer Protection Council ,kerla & Anr. SC
Ld. Counsel for the party further argued that the present dispute is strictly inter se the complainant , OP1, OP2 and Op4 only, and also this Hon’ble Commission has no jurisdiction to try the present complainant as the principal office of the OP3 is situated beyond the territorial jurisdiction of this Commission. In view of the aforesaid facts ,it is therefore respectfully prayed that this Hon’ble Commission may graciously be pleased to dismiss the complaint qua HMIL.
d) OPPOSITE PARTY NO. 4 :- Learned counsel for the opposite party no.4 submitted that the dispute is between the complainant, OP1, OP2 & OP3 and there is no any cause of action saccrued to the complainant due to OP4. It was further argued by the opposite party no.4 that being the insurance company, OP4 has insured the car only. The dispute involved is regarding replacing / repairing/ re-painting of the car, which is the job of the OP1 & OP2 only. Learned counsel for the OP4 vehemently contended that complainant has clearly mentioned in the contents of the para no. 12 of the complaint that grievance is only against OP1 & OP2 due unfair trade practices and deficiency in services. It was contended by the Learned Counsel for the OP4 that complainant was informed vide e-mail dated 4.7.19 by the customer care of the opposite party no.4 in response to his e-mail dated 2.7.19, that the claim team has identified the damage to front door right side and fender was done by the dealer to inflate the insurance claim. But the inflated claim for the same was rejected by the company side and the balance genuine claim was paid to dealer under cashless insurance policy. Also no relief has been sought against the answering opposite party no.4, as such complainant is not maintainable against OP4 ,and is liable to be dismissed with exemplary cost.
8. CONSIDERATION OF CONTENTION :-
We have given our thoughtful consideration to the respective contentions of all the parties.
First of all , we would like to decide preliminary objection raised by opposite parties No.1, No.2 & 3 that this Hon’able Commission has no jurisdiction to entertain the present complainant as accident of the car took place at Banga, District SBS Nagar, and accidental car was repaired at Jalandhar and also as per clause 14 of the invoice of OP1, all disputes are subjected to exclusive jurisdiction of court in Jalandhar. In this regard, it is relevant to mention here that car of the complainant has been replaced/repaired/repainted by the OP No.2 ( Kosmo Service Centre Phagwara), which is owned by the OP No.1 (Kosmo Automobiles Jalandhar). Complainant has impleaded Kosmo Service centre Phagwara as OP No.2 in the array of opposite Parties and its address given in the complaint is “Kosmo Service Centre, near Sacred heart Convent School, GT Road Phagwara Distt. Kapurthala. Now let us see this contention of the the OP1 & Op2 with reference to the provision in the consumers Protection Act 2019, Sec 34(2)(c),
‘’(2) A Complaint shall be instituted in a District Commission within local limits of whose jurisdiction -
(c) the cause of action , wholly or in part , arises.
Although, as per claim form (Ex.OP 1,2/1) the accident occurred near Banga, Distt.SBS Nagar, but the cause of action in the present complaint arose at Kosmo Service Centre Phagwara, Distt. Kapurthala (OP2), where OP No.2 repaired/replaced/ re-painted the whole of the car of the complainant at its own , against the clear cut instructions of of the complainant to replace/repair/re-paint the front and rear bumper of the car only. A simple assertion in the reply of the opposite parties is not sufficient to prove that this commission has no jurisdiction to entertain the present complaint , when the opposite parties it self have admitted in para No.2 of the written reply on merit that car was received by OP2 for its replace/repair/repaint, which is a Kosmo service centre at Phagwara, Distt. Kapurthala. Now since Phagwara is a sub-Division of District Kapurthala, where cause of action has arisen as earlier mentioned , therefore section 34 (2),(c) of CPA 2019 empowers the complainant to file the present complaint in this commission under territorial jurisdiction. Thus this Commission has full jurisdiction to entertain the present complaint. Accordingly, the above said objection/contention of the opposite parties is rejected and the complaint is held to be within territorial jurisdiction of this commission.
Now coming to the merit of the case, admittedly, the car of the complainant bearing No. PB08DH0557 was replaced/repaired/repainted by the opposite party No.2 (KOSMO SERVICE CENTRE,) at Phagwara Distt . Kapurthala against cashless insurance policy of the vehicle. Main dispute involved in this complaint is that the OP2 was instructed to replace/repair/repaint the front and rear bumper of the said car only by the complainant, where as OP2 has repaired/replaced/re-painted the front right side door and front right side fender in addition to above said work without any instructions from the complainant .So the Complainant has rightly argued, that due to this act of the opposite party no.2 the re-sale value of his car has considerably gone down. The Complainant repeatedly demanded the copy of the job order prepared by the Opposite Party No.2 at the time of handing over of the car for repair , so as to know the details of the jobs instructed to be done by the OP2. Although OP2 has admitted in the para No.4 of the written reply on merit, that copy of job card has never been refused by him, but at the same time it has not been produced on record. Rather the OP1 & OP2 have admitted in para no. 4 of the written reply on merit that they have repaired/replaced/ repainted the additional parts of the said car just to maintain the trust as well as good relationship with its customers, without charging any thing from the complainant. When the claim of the entire repair/repainting work done was submitted to the insurance company (OP4), the insurance claim for the additional job done by the opposite party no.2 was rejected by the insurance company on the ground of being exaggerated claim and the balance genuine claim was paid by the insurance company (OP4) to the dealer (OP1). Now at this stage question arises ,whether the opposite party no.2 repaired/replaced/repainted the front right side door and front right side fender of the said car at its own or at the instance of the complainant. The most befitting answer to this question lies in the mail of the insurance company (OP4) sent to the complainant on 4 July, 2019 (Ex.-C8), in a response to his mail dated 2,July ,2019 (Ex.-C7). The content of the said mail of the Insurance Company OP4 is reproduced below,
SUB - 1003649771 Complaint regarding false claim send by Cosmo Hyundi Service Centre
“ Our claim team has identified that the damages to fender and front door (right hand side) was done by the dealer and claim for same was rejected from our end.” Kindly get in touch with Mr. Gobinda Luthra in regards to your addressed query”
These facts brought out by the OP4 have not been rebutted by the OP1 & OP2 at any stage of proceeding . So it is clear from above that the insurance claim has been exaggerated by the OP1 & OP2 for which it deserve to be deprecated, by imposing punitive damages upon them. The OP1 & OP2 also have failed to place on the record the copy of the Job Order prepared on the instructions of the complainant before the start of the repair work of the said car. Further OP2 has also admitted in para no. 4 of the written reply on merit that repair of the fender and front door right side was done by the OP2 with out any charges from the complainant, in order to maintain trust and good relationship with the customers. However OP1 & OP2 have also not placed on record the copy of the dealer policy under which such a free repair is offered to the present complainant as well as list of other beneficiaries to whom same policy has also been extended. Even though it is contended by OP1 &OP2 that they have replaced/painted the front right side door and fender of the said car at the behest of the complainant, yet there is no cogent material on the file to substantiate the said contention. On the other hand complainant has placed on record various convincing evidences to prove his case. Therefor deficiency in service and unfair trade practice stand proved against OP1 &OP2, which has caused undue harassment to the complainant and depreciation in value of the car, which is required to be compensated.
OP3 (Hyundai Motors India Ltd) has successfully proved that it is not involved in the present complaint as the dispute is exclusively regarding accidental repair of the car and OP3 (HMIL) being manufacturer of the Hyundai Cars has its liability limited to the performance and warranty obligations only. The complainant is neither a consumer of OP3 nor any cause of action has arisen against the (OP3). OP3 has rightly relied upon the Judgment of Hon’ble Supreme Court and National Commission to support its averment that HMIL (OP3) operates with all its dealers on PRINCIPAL TO PRINCIPAL basis and NOT on PRINCIPAL TO AGENT BASIS meaning thereby that error/omission if any at the retailing or servicing end will be the sole responsibility of concerned dealer instead of OP3. As such, no deficiency or unfair trade practice has been proved against the HMIL (OP3), therefore there is no order against OP3.
The complainant has not sought any relief from the OP4 (SBI Genl.Insu.Co) as no cause of action has been arisen to the complainant against the OP4. The dispute involved is inter se complainant and OP1,OP2 & Op3. Also the Insurance Company OP4 has already paid the genuine insurance claim to the dealer OP1 well in time after deducting the exaggerated claim , so there is no deficiency on the part of the OP4. Accordingly , there is no order against OP4 as such.
The sum and substance of the above discussion is, that OP1 & OP2 have miserably failed to prove their contentions ,whereas averments of the complainant have full force to substantiate factum of deficiency in service and unfair trade practice committed by the OP1 & OP2.
Accordingly, taking all the facts and circumstances into consideration, the complaint is partly allowed and following direction are issued to the OP1 & OP2 :-
to pay Rs. 40,000/- as compensation against the depreciation value of the car due to deficiency and unfair trade practice .
to pay Rs. 20,000/- as compensation for mental agony, harassment and punitive damages
to pay Rs.10,000/- as compensation on account of litigation expenses
The compliance of the this order shall be made by the opposite parties within 45 days of the receipt of the certified copy of the order. Copies of order be supplied to parties free of cost as per rule. File be completed, indexed and consigned to record room.
Dated
27/11/2024 S. Kanwar Jaswant Singh Rajesh Bhatia
Member President
