Haryana

Yamunanagar

CC/184/2014

Rakesh Kumar Jain S/o Dwarka Dass jain - Complainant(s)

Versus

Mohan Vehicals Pvt.Ltd. - Opp.Party(s)

Rajiv Chawla

04 Sep 2017

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR

​

                                                                        Complaint No. 184 of 2014.

Date of institution: 02.04.2014.

Date of decision: 04.09.2017.

 

  Rakesh Kumar Jain S/o Dwaraka Dass Jain, aged 59 years, resident of House No.129-B/R, Model Town, Yamuna Nagar.

                                                                                                                                  

                                                                                                                        …Complainant

                   

                                   Versus

 

1. Mohan Vehicles Pvt. Ltd. 13/40 KM Stone, Tepla Auto Hub Ambala Jagadhri Highway, Ambala Haryana.

 

2. United India Insurance Company Opp. Rampura Colony, Jagadhri Road, Yamuna Nagar.

 

3. The Managing Director, M/s Lahori Nissan Pvt. Limited Showroom National Highway Bye Pass Jammu.

 

4. Nissan India Corporate Office ASV, Ramanna Towers, 37-38 Vankatnarayana  Road, T- Nagar Chennai.

 

5. Hover Automotive India Pvt. Ltd, Grande Palladium Vth Floor, B wing 175, CST Road, Kalina, Santacruz (east) Mumbai.  

   

                       ….Respondents.

         

BEFORE    SH. SATPAL, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER.          

 

Present:       Shri Rajiv Chawla, Advocate, counsel for complainant.   

                   Smt. Seema Sehgal, Advocate, counsel for OP No. 1.

                   Shri Rajiv Gupta, Advocate for OP No.2

                   None for OP  No.3

                   Shri Subhash Chand, Advocate for OP No.4

                   Shri Sumit Gupta, Advocate for OP No.5.

                  

ORDER     (SATPAL PRESIDENT)

 

1.                Complainant Rakesh Kumar Jain has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date.(hereinafter  the respondents shall be referred as OPs).

2.                Brief facts of the complaint, as alleged by the complainant, are that the complainant had purchased a Nissan Sunny Car for his personal use from OP No.1 on 16.06.2012 for a sum of Rs.8,21,898/- vide bill No. MVPL./0085 Dated 16.06.2012 which was got insured from OP No.2 at Yamuna Nagar which was renewed time to time. The OP No.3 is authorized service centre of OP No.4 and 5 from where the car in question had been got repaired by the complainant. Within a period of 4 months, the Air Conditioning system of the car stopped working and service engineer of OP No.l stated that there was a problem in the AC Console and the same will be changed within a period of 10-15 days but the same has been changed after one month. Due to delay in replacement of the defective part, complainant could not use his car in normal way and suffered great mental agony. The complainant was going to a family trip along with his family members to Jammu where they met with an accident near Jammu on 21.04.2013 and his car was badly hit on its right side and bumper was damaged in that accident and information regarding the accident was intimated to Op No.2 immediately who advised that the OP No.3 is the authorized service centre of OP No.4 and 5 and he can get his car repaired from OP No.3. The complainant approached the OP No.2 for repairing the above said car who sent his surveyor Mr. Charanjit Singh to assess the loss in the car and Rs.3500/- had been charged by him from the son of the complainant. On the report submitted by the surveyor, OP No.3 prepared accidental job estimate and engineer of OP No.3 assured that the car will be delivered within 10-15 day’s time after receipt of spare parts which were not available with them at that time. OP No.3 kept the car of the complainant for one month in his workshop and the same had been handed over to the complainant on 24.05.2013. The complainant was astonished to see the bill raised by the OP No.3 which was totally against the accidental job estimate prepared by the surveyor on the basis of which OP No.3 had done work in the car in question. OP No.3 had charged highly excessive amount from the complainant i.e. Rs.20,450/- for painting charges and Rs.3700/- for denting and right hand side repair charges and Rs.4300/- removal fitment charges which were covered under the terms and conditions of the policy of Op no.3. Immediately thereafter, complainant approached OP No.2,4 and 5 regarding his grievance and complained against the OP No.3 about the excessive amount charges from him. The complainant communicated to OP No.2 to 5 telephonically and through various e-mail but no action has been taken to resolve the grievance of the complainant. Till date, the complainant has not been refunded the excess amount charged by OP No.3 which is clear cut violation of terms and conditions of the policy of OP No.2. OP No.2 deliberately and intentionally settled the claim amount on lesser side and made only Rs.38,112/- on 12.11.2013 towards the claim lodged by complainant after 7 months from the date of accident which is quite arbitrary and against the terms and conditions of the policy. In this way OP No.2 is also negligent in providing proper services to the complainant. It was further surprising for the complainant that instead of resolving the grievance , OP No.3 had sent false and fabricated accidental job estimate dated 20.05.2012 to the complainant which was received by him on 18.02.2014 and as per supplementary accidental job estimate, OP No.3 raised a bill of Rs.8800/- towards right hand front door repair, denting painting charges and mud flab charges which is absolutely wrong and illegal. Hence, this complaint, wherein it has been prayed that OPs may be directed to refund the excess amount charged by the OP No.3 and to pay compensation as well as litigation expenses.

3.                Upon notice, OP No.1 appeared and filed its written statement taking some preliminary objections such as complainant has no locus standi to file the present complaint; complainant has not come to the Court with clean hands and has concealed the true and material facts from this Forum; complainant does not come under the definition of consumer and on merit rest contents of the complaint were denied being wrong and incorrect and lastly prayed for dismissal of the complaint qua the OP No.1.

4.                OP No.2 appeared and filed its written statement taking some preliminary objections such as complaint is not maintainable, there is no negligence in service on the part of the OP company. It is alleged that an intimation regarding the accident of the car was received on 21.04.2013 and on the receipt of the said intimation the answering OP company immediately deputed Surveyor for assessment of loss. The said surveyor after taking into account the relevant damages, assessed the loss to the tune of the Rs.35,564/- on repair basis subject to the terms and conditions of the company vide his record dated 15.06.2013 and thereafter, the claim in question was further processed and approved for a sum of Rs.35,122/- plus Rs.2,990/- on account of surveyor fee and as such total amount of Rs.38,112/- was paid to the complainant as per terms and conditions of the policy. It is further contended that the complainant is having some problem and complained against the OP No.1,3 to 5 and the answering OP company has nothing to do with the same and on merit the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of the complaint.

5.                OP No.3 appeared and filed its written statement taking some preliminary objections such as this Forum has no jurisdiction to entertain the instant complaint against the answering OP as no part of any cause of action against the OP has accrued within the jurisdiction of this Forum. The present complaint filed by the complainant under Central Consumer Protection Act is not maintainable against the answering OP, the unit of the answering OP is carrying on its business in Jammu and Kashmir State is amenable to the provisions of J & K Consumer Protection Act and as such the complaint may kindly be dismissed on this score alone. Further, the complaint is bad for mis-joinder of the necessary parties i.e. M/s Lahori Nissan Pvt. Ltd. which is a necessary party for the decision of the complaint. This Forum has also got no territorial jurisdiction to entertain and try the present complaint because the office of the answering OP is situated at Jammu. On merit it is stated that the accidental vehicle bearing No.HR02-AA-4588 was brought to the workshop of M/s Lahori Nissan Pvt. Ltd. on 21.04.2013 and the surveyor appointed by the OP No.2 made inspection of the damaged vehicle and the estimate of damages were prepared by the answering OP and submitted to the complainant for further submission to the surveyor and after receiving spare parts from the OP No.4, the vehicle of the complainant was repaired to the satisfaction of the complainant and vehicle was handed over to the complainant after receiving an amount of Rs.54,000/-. The complainant made the payment without any protest and received the possession on 24.05.2013. Hence, there is no deficiency on the part of the answering OP and prayed for dismissal of the complaint.

6.                OP No.4 appeared and filed its written statement taking some preliminary objections alleging that the legal relationship between the OP no.4 and OP no.1 and 3 is of principal to principal basis. The relationship between the OP No.4 and OP No.1 and 3 is defined in Article 22-1 (General Provisions) of the Dealership Agreement. It is alleged that the complainant has falsely tried to implicate the answering OP when they have no role to play as neither there has been a defect in the vehicle nor any kind of deficiency on the part of the answering OP. On merit the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of the complaint with cost etc.

7.                OP No.5 appeared and filed their written statement taking some preliminary objections alleging that the answering OP was the authorized exclusive distributor and the National Sales Company (NSC) in India for all the Nissan Products manufactured by Nissan Motors India Pvt. Ltd. The relationship between the OP No.4 and the OP 5 began in 2008 initially as service provider and from July 01, 2012 as Nissan National Sales Company and was unilaterally terminated by the OP No.4 on February 14, 2014. Since then, OP No.5 is not an authorized distributor of the OP No.4 and on merit the contents of the complaint were controverted and reiterated the stand taken in the preliminary objection and lastly prayed for dismissal of the complaint.

8.                In support of his case, the complainant tendered into evidence his affidavit as Annexure CW/A and documents as Annexure C1 to C18 and closed the evidence.

9.                On the other hand, learned counsel for the OP No.1 tendered into evidence affidavit of Shri Rohit Khanna as Annexure RW1/A and closed the evidence on behalf of OP No.1.

10.              Learned counsel for the OP No.2 tendered into evidence affidavit of Shri Ajay Sareen as Annexure R2/A, another affidavit of Shri Charanjit Singh, Surveyor and Loss Assessor as Annexure R2/B and documents as Annexure R2/1 to R2/3 and closed the evidence on behalf of OP No.2.

11.              OP No.3 failed to adduce any evidence and the evidence of the OP No.3 is closed by Court order vide order dated 04.05.2017.

12.              Learned counsel for OP No.4 tendered into evidence affidavit of Manager (Legal) as Annexure R4/A and closed the evidence on behalf of OP No.4.

13.              Learned counsel for OP No.5 tendered into evidence affidavit of Mr. Ventateswaran TR  as Annexure RW5/A and documents as Annexure R5/1 and closed the evidence on behalf of OP No.5.

14.              We have heard the learned counsel for parties and have gone through the pleadings as well as documents placed on file very minutely and carefully. 

15.              The counsel for the complainant argued that the complainant had purchased a Nissan Sunny Car from OP No.1 on 16.06.2012 which was duly insured with OP No.2 and after four months of its purchase, the AC system of the car stopped working and complainant had made a complaint to the OP No.1 but the OP No.1 had replaced the AC after a period of one month due to which the complainant suffered a lot. The counsel for the complainant further argued that when the complainant, along with his family, was going to Jammu, the car in question met with an accident. The complainant informed the insurance company- OP No.2 immediately who advised that OP No.3 is the authorized service station of OP No.4 and 5 and he can get his car repaired from OP No.3. The complainant handed over the damaged car to the OP No.3 for its repair. Surveyor of the OP no.2 got the survey of the car and prepared the estimate but the OP No.3 had charged highly excessive amount from the complainant i.e. Rs.20,450/- for painting charges and Rs.3700/- for denting and Rs.4300/- for removal of fitment charges which were covered under the policy of OP No.2. It is urged that OP No.2 illegally and deliberately made lesser payment of Rs.38,112/- instead of total amount and prayed for directing the OP no.3 to refund the excessive amount along with compensation. The counsel for the complainant referred the case law titled as “Arun Kumar Rudhra Paul Vs. National insurance Co. ltd. (Jan.) 2009, CPJ P-25 Trepura State Consumer Disputes Redressal Commission (Agarthala), wherein it has been held that : -

Consumer Protection Act, 1986- Section 15- Insurance – Motor accident claim- assessment of loss- Estimated cost of repairs cannot be basis for documentary evidence- Surveyor reason given for not accepting amount actually paid as repairing charges- Complainant held entitled to actual repairing charges on basis of money receipts issued by workshop – Loss assessed by the Surveyor towards spare parts upheld – Insurer directed to pay Rs.46726/- against 34800 awarded by Forum. Appeal disposed of.       

 

Learned counsel for the complainant also referred the case law titled as “New India Assurance Company Vs. Subash Kumar (NC), (Mar.) 2010, P-138 wherein it has been held that :

Consumer Protection Act, 1986- Section 21(b) – Insurance – Settlement of claim – Vehicle damaged in accident- Loss assessed on repair basis- Settlement of claim on total loss directed by the State Commission- Hence, appeal – Contention, vehicle parked unattended in violation of policy, not acceptable – person taking insurance not expected to keep security man to safeguard the vehicle – Two contradictory versions produced regarding possibility of repair of vehicle – Surveyors report has considerable evidential value, cannot be ignored, unless discredited by producing contrary evidence- Settlement of claim on repair basis directed as per surveyor’s report.

(ii)     Insurance – Assessment of loss- Depreciation – Accident took place within few days of purchase of vehicle – 50% deduction on rubber parts unjustified- Deducted amount added in total assessment made by surveyor. Result: RP partly allowed.    

 

Learned counsel for the complainant also referred the case law titled as  Super Seeds Private Limited Vs. Oriental Insurance Company Limited and others, 2009(1) CLT, 232(UT) Chandigarh, Associated Road Carriers Ltd. Vs. Kamlender Kashyap and other, (Mar.) 2008 404 (NC) on the point of territorial jurisdiction.  

                   On the other hand learned counsel for the OP No.1 argued that there is no manufacturing defect in the vehicle in question and as and when any complaint was lodged by the complainant the same was promptly attended to the satisfaction of the complainant and he has filed this complaint just to harass the OP No.1 and prayed for dismissal of the complaint.

16.              The learned counsel for the OP No.2 argued that on receiving of the intimation regarding accident, immediately surveyor was appointed and estimate for repair was given to the OP No.3 and after processing the case an amount of Rs.38,112/- as assessed by the surveyor was transferred in the account of the complainant on 12.11.2013. The counsel of the OP No.2 has also referred the case law titled as “Biplab Manumbdar Vs. Divisional Manager, United India Insurance Company reported in 2015 (3) CLT P-434 wherein it has been held that:-

 The surveyor report is an important document and cannot be brushed aside easily without valid justification and prayed for dismissal of the complaint.

 

17.              The version of the OP No.3 is that this Forum have got no territorial jurisdiction to entertain and try the complaint as the vehicle in question met with an accident at Jammu and the same was repaired at Jammu and also delivered to the complainant at Jammu and as such this forum got no territorial jurisdiction to entertain and try the present complaint. The bill was raised by the OP No.3 as per actual costs incurred in repair of the vehicle and replacement of spare parts. The OP no.3 submitted that they have not charged any excessive  amount from the complainant and they have only charged as per bill and prayed for dismissal of the complaint.

18.              The counsel for the OP No.4 argued that the legal relationship between the OP no.4 and OP no.1 and 3 is of principal to principal basis. The relationship between the OP No.4 and OP No.1 and 3 is defined in Article 22-1 (General Provisions) of the Dealership  Agreement. The counsel for the OP No.4 further argued that there is no manufacturing defect in vehicle in question and as such there is no deficiency on the part of the OP No.4 and prayed for dismissal of the complaint.

19.              The counsel for the OP No.5 argued that OP was the authorized exclusive distributor and the National Sales Company in India for all the Nissan Products manufactured by Nissan Motors India Pvt. Ltd. The relationship between the OP No.4 and the OP 5 began in 2008 initially as service provider and from July 01, 2012 as Nissan National Sales Company and was unilaterally terminated by the OP No.4 on February 14, 2014. Since then OP No.5 is neither an authorized distributor nor a service provider of the OP No.4 and lastly prayed for dismissal of the complaint.

20.              After hearing the learned counsel for the parties, the foremost question which arises before us for consideration is whether there is any deficiency on the part of the Ops or not?

21.              The first grievance of the complainant is that he had purchased the car in question on 16.06.2012 and after four month of purchase of the said vehicle, the Air Conditioner of the Car became defective and the OP No.1 replaced the same after one month of its defect and as such the complainant suffered a lot. We have gone through the complaint. The complainant has no where mentioned in his pleadings that there was any manufacturing defect in his car. As and when the complainant made the complaint regarding defective Air Conditioner, the same was replaced by the OP No.1 Company. Moreover, there is no document on the file that the car in question was having manufacturing defect. In these circumstances, there is no deficiency in service on the part of OP No.1,4 and 5. The second grievance of the complainant is that the OP no.2 has settled his claim to the tune of Rs.38,112/- whereas he had spent Rs.54,396/- on repair of the vehicle.     

22.              We have gone through the Surveyor Report (Annexure R2/2) wherein the Surveyor has assessed labour charges to the tune of Rs.23,039.25/-, cost of parts allowed to the tune of Rs.20781.78/- total amount Rs.43,821.03/-, thereafter Surveyor deducted Rs.1,000/- as per less policy clause, less depreciation @ 5% on metal parts, 50% on rubber/plastic parts and allowed Rs.35,122/- on account of damages. The complainant in his pleadings has not specifically challenged the authenticity of the Surveyor report. The complainant has totally failed to adduce any cogent evidence to controvert the report of Surveyor. The Surveyor report is an important document and cannot be brushed aside easily without valid justification whereas it is settled law that credence should be given to the surveyor report in the absence of any ambiguity or contradiction in the report. Beside this, the complainant has received the claim amount without any protest and no letter /objection has been raised before the insurance company. In these circumstances, we are of the considered view that the OP No.2 has rightly assessed the claim of the complainant and as such there is no deficiency in service on the part of the OP No.2.

23.              The third grievance of the complainant is that the OP No.3 has charged the excessive amount from the complainant for repair of the vehicle. From the perusal of the bills (Annexure C-3), the OP no.3 has specifically mentioned the rate of parts as well as labour charges. From the perusal of the aforesaid documents it cannot be said that the OP No.3 had charged excessive amount from the complainant. Beside this, the complainant has not explained that on what parts/labour charges, the OP No.3 had charged excessive amount. The authorities (Supra) tendered by the counsel for the complainant are not disputed but not helpful in the present case, whereas the authority (supra) tendered by the counsel for the OP No.2 is fully applicable to the facts of the present case. In these circumstances the complainant has failed to prove any deficiency on the part of the OPs.  

24.              Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court.                

Dated: 04.09.2017        

 

                                                                    (SATPAL)

                                                                    PRESIDENT

                                                              D.C.D.R.F.YAMUNA NAGAR

                                                             AT JAGADHRI

 

 

 (VEENA RANI SHEOKAND)                  (S.C.SHARMA)

  MEMBER                                                   MEMBER