Haryana

Karnal

CC/18/2017

Rajesh Kumar Dahiya - Complainant(s)

Versus

Maruti India Ltd - Opp.Party(s)

Narender Sharma

13 Apr 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                      Complaint No.18 of 2017

                                                      Date of instt. 13.01.2017

                                                      Date of decision 13.04.2018

 

Rajesh Kumar Dahiya son of Shri Om Parkash, resident of House no.1637, Shanti Nagar Karnal.                                                                                                                                                                                                                                                  …….Complainant.      

                                                Versus              

 

1. Maruti India Ltd. situated at Gurgaon, through its G.M.

2. M/s Karnal Motors Pvt. Ltd. 71/3 milestone, NH-1, Karnal.

3. The New India Assurance Co.Ltd. 1215,12^th Floor, Naurang House, 21, Kasturba Gandhi Marg, New Delhi, Branch office at Old G.T. Road Opp.Bus Stand Karnal, through its Divisional Manager. (vide policy no.98000031160104359248 valid from 04.09.2016 to 03.09.2017.

 

                                                                    ..…..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act.          

 

Before    Sh. Jagmal Singh……President.

      Sh. Anil Sharma………Member

               

 

 Present   Shri Narender Sharma Advocate for complainant.

                  Shri Vishal Kundi Advocate for OP no.2.

                   Shri Ravinder Chaudhary Advocate for OP no.3.

                   OP no.1 given up.

 

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant is owner of a Maruti Swift Desire bearing registration no.HR-45-B-3162, which was insured with OP no.3, vide policy no.98000031160104359248 valid from 04.09.2016 to 03.09.2017. On 6.11.2016 at about 8.00 a.m. the said vehicle met with an accident in the area of Shahabad Markanda due to heavy fog. The complainant took his vehicle to the OP no.2 and informed the surveyor of OP no.3 and surveyor of OP no.3 took the photographs of the damaged vehicle and also make estimate report. The OP no.2 started repair of the vehicle and after repairing the vehicle the OP no.2 charged Rs.25,300/-from the complainant. After receiving his vehicle when the complainant drive his vehicle then he found some problems in its machinery as the vehicle not run properly and also found the defect in the E.C.M. of the vehicle. Thereafter, complainant again approached the OP no.2 and made a request to repair the vehicle of the complainant and also remove the effect in ECM. Then official of OP no.2 told that the said problem could be removed when the said part would be changed. Complainant told him to change the said part but the official of OP no.2 told that the cost of said E.C.M is Rs.25000/- and complainant is liable to pay the same if got changed the said part then complainant again told that it is the responsibility of OP no.3 i.e. insurer of the vehicle but OP no.2 did not listen to him. Thereafter, complainant approached the OP no.3 and requested to pay the cost of E.C.M but OP no.3 also refused to do so. Then complainant served a legal notice dated 13.12.2016 to the OPs in that regard, but to no effect. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs. OP no.1 given up by the complainant being unnecessary party vide his statement dated 22.02.2017.

3.             OP no.2 appeared and filed its written statement raising preliminary objections with regard to maintainability; cause of action and locus standi; complainant is estopped by his own act and conduct and complainant has not come before this Forum with clean hands and concealed the true and material facts. The true facts are that the complainant is using the vehicle as taxi. The vehicle of the complainant has been plied for more than 176961 kilometers till date and met with accident earlier as well. The complainant has also concealed that the actual cost of repairs for the damaged caused in this accident was Rs.84087/- and he only paid Rs.25300/-. This amount relates to necessary clause and depreciation charges of the items replaced. Remaining amount of the bill was paid by the OP no.3.  He also concealed that the remaining amount was paid by the OP no.3 to OP no.2. It is pertinent to mention here that this payment was made by OP no.3 to OP no.2 after the surveyor has assessed the verified the loss. Infact, when the complainant approached the OP no.2 with the complaint of some problem in the vehicle on 21.11.2016, it was diagnosed that the ECM required replacement. The complainant was duly informed about the cost of the same but he himself refused to get the same replaced on payment basis. It is further submitted that the vehicle was in perfect condition at the time of delivery to the complainant. Further the complainant is neither qualified nor experienced to diagnose a complex piece of electronic equipment such as the ECM. It is specifically denied that the ECM was damaged in this accident. Had it been so it would have been allowed to be replaced by the surveyor. Moreover, if the complainant knew that this part has been damaged in accident he should have insisted on its replacement with the surveyor at the time of the insurance claim. Hence there was no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP no.3 filed its separate written statement raising preliminary objections with regard to cause of action; maintainability; complainant has not come within the definition of consumer and concealment of true and material facts. The true facts are that there is no such defect in the ECM was reported in the estimate or job card, nor the surveyor reported the alleged damaged to ECM in the accident. It is further submitted that the claim of the complainant has been duly processed by OP by way of appointment of Shri A.P. Chawla, Technical Consultant, Surveyor and Loss Assessor, who had submitted the detailed report dated 21.11.2016 and assessed the net loss to the tune of Rs.57,900/- (subject to the condition) and the said amount of Rs.57,900/- was paid to the OP no.2 being repairer of the vehicle in question. Hence there was no deficiency in service on the part of the OP no.3 and prayed for dismissal of the complaint.

 5.            Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C7 and closed the evidence on 12.09.2017.

6.             On the other hand, OP no.2 tendered into evidence affidavit of Rajinder Gupta Ex.OP2/A and document Ex.OP2/B. OP no.3 tendered into evidence affidavit of Anil Kumar Bhola Sr. Divisional Manager Ex.OP3/A and documents Ex.OP3/B and Ex.OP3/C and closed the evidence on 12.01.2018 and 6.3.2018 respectively.

7.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             From the pleadings of the parties, it is clear that there is no dispute that the complainant is owner of the car no.HR-45-B-3162 which was insured with OP no.3, vide policy no. 98000031160104359248 valid from 04.09.2016 to 03.09.2017. It is also not disputed that on 6.11.2016 the said car met with an accident and the car was taken by towing to OP no.2. Information about the accident was given to OP no.3. The surveyor Shri A.K. Chawla was appointed by OP no.3, who conducted the survey of the vehicle and assessed the loss to the tune of Rs.57900/- and the said amount of Rs.57900/- was paid to OP no.2 by OP no.3.

9.             According to the complainant, the OP no.2 charged Rs.25300/- from the complainant. The complainant further alleged that when the complainant drove the vehicle after receiving the same from OP no.2, he found some problem in its machinery. Thereafter, the complainant again approached the OP no.2 to repair the vehicle properly and same are the defect of ECM. Thereupon, OP no.2 told that the problem of ECM require replacement and the cost of the same was Rs.25,000/- and complainant is liable to pay the same. The complainant said that the same was damaged in accident, so it was the liability of OP no.3, being insurer. Thereafter, complainant visited to OP no.3 for the same but OP no.3 refused to do so.

10.            According to OP no.3, no such defect in the ECM was reported in the estimate nor the surveyor reported the alleged damage to ECM, so there was no damage to ECM in the said accident.

11.            It is pertinent to mention here that OP no.3 produced in his evidence copy of the surveyor report Ex.OP3/C. The report is final survey report and is dated 21.11.2016, which means the final survey was conducted on 21.11.2016. When the final survey was conducted by the surveyor on 21.11.2016, then it is clear that the vehicle was handed over to the complainant on 21.11.2016. It is further pertinent to mention here that OP no.2 admitted para no.5 of the preliminary objection of his reply that when the complainant approached him(OP no.2) with some problem in the vehicle on 21.11.2016, it was diagnosed that ECM require replacement. From these facts, it has become crystal clear that when the vehicle was received by the complainant on 21.11.2016 after repair, at the same time i.e. on the same day when complainant drive the vehicle he found some problem in the vehicle and again took the vehicle to OP no.2, where problem was diagnosed in ECM. These facts clearly indicate that the problem of ECM was already there which might be damaged in the accident. The said problem of ECM was neither notice by the surveyor nor notice by OP no.2. Moreover, when the problem was diagnosed on same day when the vehicle was delivered to the complainant, then it was the duty of the OP no.2 to brought the same to the notice of the surveyor of OP no.3. And further OP no.2 was duty bound to told that the same was damaged in the accident in question but could not be notice either by OP no.2 or by the surveyor of OP no.3 when there was lapses on the part of surveyor also, then for the lapses of its surveyor, the OP no.3 cannot escape from its liability. In these circumstances, we are of the considered view that the ECM of the vehicle of the complainant was damaged in the accident in question and the OP no.2 and OP no.3 both are deficient in providing service to the complainant.

12.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs no.2 and 3 to replace the ECM of the vehicle of the complainant free of costs. We further direct the OPs no.2 and 3 to pay Rs.5500/- as compensation for harassment, mental agony and litigation expenses. Both OPs are jointly and severally liable. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 13.04.2018

                                                                       

                                                                       President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

                        (Anil Sharma)

                            Member