Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 22
Instituted on : 15.01.2018
Decided on : 29.02.2024.
Jai Bhagwan, age-38 yrs. s/o Shri Raj Singh, R/o Village and Post Office Majra (Dubaldhan), Tehsil-Beri, Jhajjar-174202.
………..Complainant.
Vs.
- M/s Assem Autos Pvt. Ltd., Delhi Bye Pass Road, Opp. 2nd Entrance, Sector-1, Rohtak through its Manager.
- NCR Motors India Pvt. Ltd., Atul Kataria Chowk, Old Delhi-Gurugram Road, Gurugram-122001(Haryana), Through its Manager.
- Renault India Pvt. Ltd. (HO), ASV Ramana Towers #37-38, 4th Floor, Venkatanarayana Road, T. Nagar Chennai-600017, through its MD/Manager.
- Sales & Marketing Head, Renult India Pvt. Ltd., Plot No. 11, 3rd Floor, Institutional Area, Sector-32, Gurugram 122002.
- Corporate & Registered Office, SBI General Insurance Company Ltd., ‘Natraj’, 101, 201 & 301, Junction of Western Express Highway & Andheri Kurla Road, Andheri (East), Mumbai-400069.
…….Respondents/Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER
Present: Sh. Digvijay Jakhar, Advocate for the complainant.
Sh.Ashok Sehgal, Advocate for the opposite party No.1.
None for opposite party No.2.
Sh.Bhupesh Sharma, Advocate for Opposite party No. 3 & 4.
Sh.Gulshan Chawla, Advocate for Opposite party No.5.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per the complainant are that he purchased a Renault KWID RXT Car alongwith its accessories bearing Engine No.E006746, Chassis No. MEEBBA04FA306145, for Rs.351631/- on dated 09.11.2015. The Registration No.HR77A5364 was allotted and along with the invoice warranty documents and insurance policy of SBI General Insurance Company Ltd. baring no. 3488869 were delivered by respondent no.1. On 20.02.2016 when the complainant was going from his house with his family to Mahendergarh and on his way, the car jumped due to a high breaker and the car became unbalanced and it got damaged from the bottom and it also collided with another vehicle coming from its side. Due to this, it got badly damaged. The complainant informed the respondents at their toll free number about the said incident and the respondents told the complainant that they would arrange crane/vehicle for toeing the car to the nearest Renault authorized showroom in the next 2-3 days as there was agitation in Haryana due to Jat Reservation at that time. After that respondents brought the said vehicle to NCR Autos, Gurgaon for repairs, i.e. the respondent no.2. The respondent no.2 found crack in the oil chamber of the new vehicle leading to oil leakage and the break down and told the complainant that it will cost around Rs.10,000/-. Oil chamber was found to be a plastic product and so was the fuel tank which is fragile and there remains always a danger in driving such vehicles in rural areas. It is a blunder on the part of the manufacturer i.e. respondent nos. 3 and 4 of said vehicle to affix plastic Fuel tank and oil container chamber. The respondent no.2 later on told the complainant that the engine of the vehicle was found to be seized and it became apparent that the vehicle had some manufacturing defect since inception. The respondent no.2 lodged the claim on 25.02.2016, and respondent no.5 generated the claim no. 242654 for further proceedings. Respondent no.2 charged Rs.71,319/- for repair of the vehicle which were paid by HDFC card. The complainant sent various e-mails to the opposite parties requesting them to replacement the engine free of cost being under warranty and also for the replacement of plastic chambers into metallic chambers for fuel and oil but the same was denied on 22.03.2016. The act of opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to replace the defective vehicle against new one, to pay Rs.71,319/- against the repair amount with interest @ 12% p.a. from the date of accident to till refund, to pay Rs.25000/- as compensation on account of harassment & deficiency in service and Rs.11000/- as litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No.1 in its reply has submitted that there was no malfunctioning in the car and no complaint was ever made by the complainant to the opposite party. If the complainant has suffered damage to his car in an accident, then the claim, if any is payable by the insurance company. After selling the car, the opposite party has no concern with the same. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
3. Opposite party no.2 in its reply has submitted that it is denied to the extent that the respondent no.2 told the complainant that the overall expenses for repair of the said vehicle comes to Rs.85000/-. It is further submitted that complainant purchased the car from M/s Aseem Autos Pvt. Ltd. And he is liable for warranty granted for replacement if any. Opposite party is only a service provider for this accidental car and there is no deficiency in service on the part of opposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.3 & 4 in their reply has submitted that the vehicle in question was towed down to work premises of the dealer-opposite party no.2 on 25th February, 2016 and the dealer issued the initial repair estimate in the sum of 85,000/-.The insurer of the car was further intimated & surveyor deputed to examine the damage & proposed repair. The surveyor after inspecting the subjected vehicle/damages & scrutiny of claim documents has assessed the loss and has submitted his final survey report with his assessment of Rs.7669/- as the full & final amount towards the claim subject to submission of pending documents mentioned below:
1. Repair Invoice, 2 Re-inspection 3. Cancel Cheque 4. Satisfaction Voucher
Surveyor has verified the details mentioned in the claim inspection sheet/claim form and has tallied with the actual damages to the vehicle and found that the damage to oil sump & sealant & RH rear door (repairing) were consistent & corroborating with the cause of loss, he has also stated under remarks that the additional parts claimed towards repairs of the vehicle are not payable as the same damages are due to usage and cranking of the engine without lubricants which has led to aggravation of the loss hence damages caused due to aggravation of loss have been excluded from the scope of assessment and has assessed accordingly. It is also submitted that the engine seizure was the immediate consequence of continued use notwithstanding oil seepage, the damage accordingly was the not result of any defect in subject vehicle; likewise, the claim about deficiency in service on the part of opposite party herein singly or jointly with others is misconceived, the claim about oil- chamber assembly [also referred to as oil sump] having suffered damage based upon nature of material used in manufacture thereof is devoid of substance, so is the claim about fuel tank being fragile & vulnerable to fire. It is further submitted that the (accidental) damage was not the result of manufacturing defect &/or covered under warranty. The (accidental) repair was undertaken post complainant's consent post rejection of his claim by the insurer. Based hereupon, it is denied that complainant is entitled to refund of cost of repair. All the other contents of the complaint were stated to be wrong and denied and opposite party No.3 & 4 prayed for dismissal of complaint with cost.
5. Opposite party No.5 in its reply has submitted that present complaint is hit by rule of Res Judicata. That the complainant prior to the complaint in question filed earlier complaint bearing no. 264 dated 12-05-2016, which was withdrawn on the statement of counsel for the complainant stating that due to technical defect, he does not want to proceed with the present complaint and as such wants to withdrawn the same. That it will be pertinent to mention here that no change has been made by the complainant in the present complaint. Hence the present complaint being filed without any changes is hit by rule of Res Judicata. On merits, it is further submitted that the contents regarding vehicle in question being insured with the answering respondent vide policy No.3488869 for the IDV of Rs.3,30,724/- for the policy period 08-11-2015 to 07-11-2016 is correct and is subject to the terms and conditions. On the receipt of the claim intimation, answering respondent, without any delay appointed an Independent IRDA licence surveyor for survey and got assessment of the loss. That the independent surveyor Mr. Kishor Kumar Chhabra, inspected the vehicle at M/s. MCR Motors Pvt. Ltd. on 26.02.2016, in regard to the claim lodged by the complainant on 25.02.2016, and who submitted his detailed report, showing the liability of answering respondent to an amount of Rs.7669/-. The said amount was assessed as full and final liability of the insurance company, subject to the submission of repair invoice, re-inspection, cancelled cheques and satisfaction voucher. As per the surveyor report, after dismantling of the oil sump, worn out aluminium particles in the oil sump were observed and it was further observed by the surveyor that, there is aggravation of the loss i.e. engine seizure and engine oil marked gone to rear side floor and cross member, which indicates that vehicle used/run after the accident, rather it was toed after hitting of the vehicle from the bottom. Hence the damage cause to the aggravation of the loss has been excluded from the scope of assessment and independent surveyor assessed an amount of Rs.7669/-. That the insured had failed to take reasonable steps to safeguard the vehicle. Hence the claim of the complainant was not paid, as per the policy condition No. 4. No act and act conduct on the part of respondent is illegal, null, void and there does not arise any question of deficiency in service. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.
6. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C39 and closed his evidence on 05.04.2021. Ld. Counsel for opposite party No.1 made a statement that reply already filed on behalf of opposite party No.1 be read in evidence and closed his evidence on 14.12.2020. Opposite party No.2 failed to conclude its evidence despite availing sufficient opportunities. Hence the evidence of opposite party No.2 was closed by the Court order dated 05.01.2022. Ld. counsel for the opposite party No.3 & 4 in his evidence has tendered affidavit Ex.RW3/A, documents Ex.OP3/A to Ex.OP3/H and closed his evidence on 04.10.2021. Ld. counsel for the opposite party No.5 in his evidence has tendered affidavit Ex.RW5/1 & Ex.Rw5/2, documents Ex.R5/1 to Ex.R5/6 and closed his evidence on 23.06.2021.
7. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
8. Through this complaint, the complainant has sought relief against the respondents and demanded a sum of Rs.71319/- against the repair charges spent by him and also demanded a sum of Rs.25000/- on account of mental agony & harassment and Rs.11000/- as litigation expenses. We have minutely perused the documents placed on record by both the parties. As per the complainant himself when he was going with his family from his house to Mahendergarh, his car jumped over the high breaker and due to this impact became imbalanced and got damaged from the bottom and also collided with an another vehicle coming from its side. His vehicle was badly damaged and complainant reported the matter to the insurance company. The insurance company appointed the surveyor Sh.Krishan Kumar and he submitted his report on 17.03.2016 and assessed the liability towards the vehicle as Rs.7669/-. He also gave some remarks in his report Ex.R5/2, which are as under:
i). This is depreciation waiver policy and so depreciation amount is not deducted in the assessment. This is for the information of insurer office.
ii). At the time of survey, it was observed that there is aggravation of loss i.e. engine seizure and engine oil marks rear side floor and cross member, which indicates that vehicle is used/run after accident, but insured is adamant that he did not use the vehicle after accident and towed the vehicle.
iii) There is a gap of six days in date of accident and towing slop, on questioning insured replied that due to Jat Agitation this delay occurred.
iv) After survey repairer submitted supplementary estimate of engine assy the same is hereby attached and during inspection after dismantling of the oil sump it was observed that worn out aluminium particles in the oil sump
After observing the above mentioned remarks, we came into the conclusion that a depreciation waiver policy was issued by the insurance company and the claim of the complainant regarding engine has been wrongly denied by the surveyor without any technical grounds. It has been specifically stated in this report that the complainant has submitted before the surveyor that he towed the vehicle from the place of accident to the workshop. It was also admitted by the surveyor that subsequent bills were also supplied by the complainant to the surveyor as well as to the insurance company so as per our opinion the complainant is entitled for the bill of Rs.71319/- spent by him on the repair of the vehicle. All the documents are within the possession of the insurance company. Hence the letter Ex.R5/4 is illegally issued by the opposite party No.5 and opposite party No.5 is liable to pay the alleged amount to the complainant.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.5 to pay Rs.71319/-(Rupees seventy one thousand three hundred and nineteen only) alongiwth interest @ 9% p.a. from the date of filing the present complaint i.e. 15.01.2018 till its realisation and also to pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to give the cancelled cheque to the opposite party no.5 within 15 days and thereafter opposite party No.5 shall pay the alleged awarded amount within one month to the complainant.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
29.02.2024.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
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Vijender Singh, Member.
