Date of Filling:      04.12.2013

                                                                                                                       Date of Disposal:  04.06.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CONSUMER COMPLAINT No.63/2013

Dated this Monday the 04^th day of June 2018

R.Padmaraj,

S/o.S.Rajendran

No.72, Santhi Nagar,

S.M.Nagar Post, Avadi,

Chennai 600 062.                                                          …. Complainant.

//Verses//

1.Chennai Ford,

   No.10/1, 3^rd Main Road,

   Ambattur Industrial Estate,

   Ambattur, Chennai -600058.

2.Ford India Limited,

   NH.45, S.P.Koil Post,

   Maraimalai Nagar,

   Chengalpattu - 603 204.

3.Bajaj Alliance Insurance,

    NewNo.497&498, 5^th Floor,

    Poonamalle High Road,

    Isana Kattima Building,

    Chennai -600 106                                          ………..Opposite parties.

This complaint is coming upon before us finally on 28.05.2018 in the presence of M/s.Pradeep Jayaraman, Counsel for the complainant and Ms/.N.C.Ravichandran, Counsel for the 1^st Opposite party and 2^nd Opposite party remained Exparte for non appearance and M/s.A.Lathamaheswari, Counsel for the 3^rd Opposite party and upon hearing arguments, having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY THE S.PANDIAN, PRESIDENT.

1.This complaint is filed by the complainant U/S 12 of the Consumer Protection Act, 1986 against the Opposite parties for claiming of Rs.1,90,000/- in total towards damage caused to  the car Rs.25,000/- for alternate transport facility and of Rs.10,00,000/- towards compensation  for causing mental agony and, sufferings due to the deficiency of service with interest and the cost of proceedings.

2.The brief averments of the complaint as follows:-

On or about 27.03.2013 the complainant left his car with the 1^st Opposite party herein for service with the following complaints:

a) Turbo Oil Leak

b) Fan Motor need to check/sometime not working,

c)  Coolent leak need to check;

d) Vehicle starting problem&Air lock need to check;

e) Bonnet lock need to check.

That on or about 28.03.2013, he received a call from the 1^st opposite party that the total estimate for the service is about Rs.20,000/- approximately, for which the complainant gave his approval.  Subsequently, on or about 29.03.2013 the complainant received a call from the 1^st opposite party again stating that the total estimate for the vehicle service would be around Rs.90,000/- approximately inclusive of labor and service tax as there is some malfunction in the engine electrical wiring kit and that it needs to be replaced.

3. The complainant informed the service advisor (Murali), working with the 1^st Opposite party, that he is heavy financial problem not to proceed with the service and he would come and take the vehicle in the next day.

4. When he visited 1^st opposite party’s service centre on 30.03.2013 he was shocked to see a kind of white spotted layer all over his vehicle. After enquiry, it came to light that during service, on or about 29.03.2013, his vehicle had caught fire due to the negligence of the 1^st opposite party and the 1^st opposite party had used fire extinguisher to stop the fire from spreading further.

5. Due to the above mentioned fire accident, all the wiring kit in engine and dash board were completely damaged.  Apart from the damages mentioned above, heavy damages were also caused to the vehicle’s engine.

6. That due to gross negligence on part of 1^st opposite party any severe damages were caused to complainant’s vehicle and its engine wirings because of fire and the complainant had to incur a loss of more than Rs.90,000/- to replace the parts damaged in fire.

7. Then on 09.04.2013 admitting their fault, the 1^st Opposite party applied with their shed Insurance (Claim No.OC-14-1501-4095-00000002) with 3^rd respondent (insurer of 1^st Respondent) under the insurance policy of 1^st opposite party.  However, on or about 19.04.2013 the insurance claim was rejected by 3^rd opposite party as proper clarification regarding cause of fire was not provided by 1^st opposite part in the claim form submitted to 3^rd opposite party.

8. Even after receipt of the insurance rejection letter by 1^st opposite party seeking clarification for the cause of fire, the 1^st opposite party did not even bother to respond to 3^rd opposite party, which shows that the 1^st opposite party is desperately trying to hide his fault and pass the buck and burden on the customer.

9. The 3^rd opposite party instead of properly investigating the cause of fire and covering the insurance claim, the 3^rd opposite party blatantly rejected the insurance claim without taking any active step to even ascertaining the actual fact and circumstances of the incident that took place on or about 29.03.2013 if at all there was an electrical short circuit during the vehicle service, the electrical fuse should have tripped and damage to vehicle’s wiring kit should have been avoided.  Had the 2^nd opposite party provided proper electrical fuse tripper according to industry standard, the whole incident could have been avoided.

10. The 2^nd opposite party, by completely stopping the availability of genuine spares in the open market, has artificially increased the price of Ford’s spares exorbitantly to promote his own selfish business interest and the interest of his authorized centers.

11. The delivery of the vehicle delayed by more than 3months by 1^st and 3^rd opposite parties and financial burden was caused on complainant for no fault on his part.  Apart from paying for their negligence, the complainant had to additionally spent more than Rs25,000/- for seeking alternative transport facility for him and his family members by renting cabs.

12. The complainant sent a demand notice to 1^st to 3^rd opposite parties herein on 26.04.2013to 05.07.2017 for Rs.11,85,000/- and the same was received by them. The 2^nd opposite party replied to the legal notice for them and on behalf of the 1^st opposite party, narrating the whole incident haphazardly without any proper reference to the dates and events.  Interestingly, the 2^nd opposite party himself admits that the vehicle caught fire while in the custody of the 1^st opposite party that too after it was duly attended by the mechanics working with the 1^st opposite party. Hence the opposite parties have accepted their deficiency of service rendered to the complainant.  Hence this complainant.

The contention of written version of the 1^st Opposite party is briefly

follows:-

13. The 1^st opposite party denies each and every averments made by the complainant as false.  It is denied that the vehicle got fire due to negligence of this opposite party.  It is a false statement.  It is denied that due to fire wiring kit in Engine and dash board were completely damaged.   It is denied that the complainant incurred loss of more than 90,000/- to replace the parts damaged in fire.  Contents found in para 11.

14. The vehicle came on 5.1.2013 for service and it was properly done according to the complainant fullest satisfaction.  Second time on 27.03.2013, the complainant vehicle was towed by another vehicle.  A Tata Indica vehicle towed the complainant vehicle to the workshop.  It was not in working condition.

15. It is submitted that in the repair order dated 27.03.2013 the complainant signed stating on completion of the above work,” I have taken trial of my vehicle and satisfied with work done” the opposite party is not liable to pay any compensation to the complainant.  The complainant has not come to the court with clean hands.

16. In order to help the complainant, the opposite party1, claimed workshop Insurance for the vehicle.  The complainant vehicle was handled by unauthorized mechanics outside and the wiring was tampered.  Due to this the wiring short circuited and smoke came from the car, it was stopped immediately by using fire extinguisher to stop the fire.  No fire accident took place as stated by the complainant it is only a short circuit due to electrical problem done by unauthorized persons.  As per the workshop Insurance claimed by the opposite party, the Insurance could not be covered since the complainant’s vehicle was not insured and already Quotation was given for replacement of the defective wiring which was cause of short circuit.  As per the policy and Government law it is a mandatory for a vehicle to have minimum 3^rd party Insurance.  The customer vehicle should have been insured at the time of accident.  The claim was rejected by the 3^rd opposite party stating the above facts.  As per the document No.8, second clause namely “The existing policy of the vehicle with Future Generali India had expired on 08.12.2012”.  Hence this complaint is liable to be dismissed.

The contention of written version of the 3^rd opposite party is briefly as

 follows:-

17. The allegations in the complaint are hereby denied except those that are specifically admitted herein the complaint is not maintainable either in law or on facts and is liable to be dismissed.

18. That the complainant does not come under the purview of section 2 of the Consumer Protection Act 1986 since there does not exist any privity of contract between this opposite party and the complainant and also states that this opposite party is not a consumer hence the complainant has no locus standi to seek any relief against this opposite party hence the complaint deserves to be dismissed in limini.

19. The averment in para 13 levelled against this opposite that this opposite party blatantly rejected the insurance claim without taking any active step to even ascertaining the actual fact and circumstances of the incident that took place on or about 9.03.2013 is baseless and invented to just rope in this opposite party to the proceedings for which the averment in para 11 &12 of the complainant itself would prove the ulterior motive of the complainant.

20. This opposite party submits that the claim of the 1^st was rightly repudiated with reasons as follows:

A)    As per the Job card complaint and diagnostic instruction that there is an electrical malfunction/Failure to be corrected.

B)    The existing policy of the vehicle with Future General India had expired on 08.12.2012

C)    There is no external impact/damages found in the vehicle and the damages to engine inner components.

Further request you Op3 registered to clarify the cause of fire and also pre-existing policy was expired.  Stating the aforesaid reasons repudiation letter dated 19.04.2013 was served on the 1^st opposite party and the same was acknowledged by the 1^st opposite party herein.  Hence the complainant preferred including that opposite party is only as abuse of the Consumer Protection Act as no cause of action arisen against this opposite party.

21. Hence it is prayed that this Complaint is liable to be dismissed against this Opposite party with exemplary costs.

22. Inspite of sufficient opportunities given to the Op2 and receipt of notice which was sent through this Forum, the Op2 has not chosen to appear before this Forum to rebut the allegation putforth against herein. Hence Op2 was set –Exparte.  In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and ExA1toExA12 were marked.  While so, on the side of opposite parties the proof affidavit is filed and ExB1 to Ex.B3 were marked on their side.

23. At this juncture, the point for consideration before this Forum is:-

1.     Whether there is any deficiency of service on the part of the opposite

Parties 1to 3 as alleged in the complaint?

2.     To what other reliefs, the complainant is entitled to?

24. written arguments have been filed  and oral arguments adduced on the side of complainant and the 1&3^rd opposite parties.

25.Point No:1:-

According to the averments of the complaint is that   only due to the gross negligence  of the opposite parties 1&2, the complainant’s vehicle caught fire when the said vehicle  was left before the opposite party1 for certain repairs and service  and thereby causing more damages to the complainant’s vehicle and also causing mental agony and loss of money towards alternate transport facility  and therefore the opposite parties 1&2 are liable to pay necessary compensation and cost of proceedings. On the other hand, the opposite party1 has completely denied the allegation made in the complaint and stated that only because of the short circuit of the wire in the vehicle had caught fire but not as alleged and it is not true that of the wire due to the negligence of the opposite party1.  It is further stated that as per the repair order dated 27.03.2013 the said vehicle was repaired and taken back by the complainant on satisfaction with work done.  Therefore, the opposite parties 1&2 are not liable to pay any compensation.  While being so, the opposite party 3 contended that the Op3 is not at all a necessary party in this complaint and in fact no cause of action arrays against him and further stated that the repudiation of the insurance claim by the opposite party 1 is perfectly correct since the insurance policy expired on 08.12.2012.

26. At the outset, the foremost duty of this Forum is to decide whether the complaint has proved the allegations made in the complaint against the opposite parties through proper and acceptable evidence.  First of all, on careful perusal of the proof affidavit filed by the complainant as his evidence, it is seen that the vehicle bearing the registration No. TN.20- AD-3180 was handed over to the opposite party1 for service on 27.03.2013.  The registration certificate of the said vehicle is marked as Ex.A1.  The interactive reception check sheet issued by the opposite party1 dated 27.03.2013 and repair order issued by the opposite party1 before the fire accident is dated 29.03.2013 are marked as Ex.A2&A3 respectively.  The revised estimation and repair order dated 29.03.2013 issued by opposite party1 after fire accident are marked as Ex.A4&A5 respectively. The complaint informed through the service adviser Mr.Murali not to the proceed with the service. Then, on 30.03.2013 when the complainant visited the opposite party1’s service centre and on enquiry it came into light that during the service was carried on 29.03.2013, the said vehicle caught fire due to the negligence of the opposite party1 and thereby the wiring kit in engine  is completely damaged and on further perusal of the evidence it is stated that on 09.04.2013 admitting their mistake, the opposite party1, applied had for insurance claim with shed insurance to the opposite party3 and same was rejected by opposite party3 on 19.04.2018.  The second revised estimation generated after the fire accident dated 8.04.2013 is marked as Ex.A6 and the insurance rejection claim letter by opposite party-3 dated19.04.2013 is marked as Ex.A7. 

27.It is further stated that because of the negligence of the opposite parties 1&2 only the complainant compelled to pay huge amount nearly of Rs.19,000/- in excess for repairing the vehicle and thereby caused mental agony and financial loss. The receipt of the cash paid by the complainant dated 15.06.2013 and invoice issued by the opposite party dated 21.06.2013 are marked as Ex.A8&Ex.A9 respectfully.  The cab hire bill is marked as Ex.A12 towards the alternate transport facility.  Therefore the complainant issued demand notice dated 24.06.2013 to the opposite parties is marked as Ex.A10 and reply notice of opposite party-2 is marked as Ex.A11.

28. Such being so, on going through the evidence of the opposite party 1, it is seen that it is completely denied by the opposite party 1 about fire accident due to the negligence of the opposite party1 during service as alleged the complainant and infact, it is only due to the short circuit of the wiring in the electrical problems.  It is further stated that as per the repair order dated 27.03.2013 the complainant has taken back the vehicle on satisfaction with work done by the opposite party and repair order marked Ex.A3 and therefore they are not at all liable to pay any compensation.

29.  If it is so, on seeing the evidence of the opposite party 3, it is learnt that, the opposite party is not at all a necessary policy to the complaint and opposite party-3 has rightly repudiated the policy claim of the opposite party 1 for the reasons that the insurance police had expired on 08.12.2013 itself.  The package cover of the insurance policy is marked as Ex.B1 and the duplicate copy of the dealer’s package is marked as Ex.B2 and therefore the opposite party 3 is no way liable.

30. At this juncture, on careful perusal of the rival submission’s putforth on either side, it is very clear that the vehicle TN-20 - AD-3180 was produced by the complainant on 27.03.2013 to the opposite party-1’s service centre for service and in connection with, the opposite party1 issued Ex.A2&A3 are all not disputed.  Similarly, after repair of the said vehicle, on payment of cost Rs.85,786/- as per Ex.A9 and cash receipt issued by the opposite party 1 Ex.A8 are not all denied are  Further it is learnt that as per Ex.B3 the  said vehicle was taken back by the complainant after repair  through Ex.B3  which is theadmitted fact.

31. At the outset, the only contention raised by the complainant is that at the time of leaving the vehicle, to opposite party1 for service as per Ex.A2&Ex.A3.  the estimation cost was given by the opposite party  only to the tune of Rs.74,822/- and thereafter by means of Ex.A4 and Ex.A6 the estimation given of Rs.85,786/- and thereby cost cost difference arose only due to the gross negligence of opposite party, the said vehicle caught fire during service and thereby caused heavy damage in the vehicle.

32. Such being so, on the side of the opposite party 2 it is admitted that the above said vehicle had caught fire, but it is only due to the short circuit of wiring  and not as alleged by the complainant and eventhen in order to help the complainant the opposite party 1 applied for the shed insurance with opposite party 3and  the same was rejected by the opposite party 3 for reason mentioned in the repudiation order.  In such circumstances, it is crystal clear that the facts of the vehicle caught fire is fully admitted by the opposite party 1.  So, the only point is to be taken into consideration by this Forum is that whether the reason stated by the opposite party1 for the said fire is genuine one.  Regarding this fact, on careful perusal of the evidence of the complainant and opposite party1 and also the documents produced on either side, it is crystal clear that in Ex.A2&A3 there is no mentioning about the short circuit of wiring or any other problem in the wire system by the opposite party1 at the time of left vehicle by the complainant for service to opposite party 1   on 27.03.2013.

33. Further, it is stated by the opposite party 1 the fire could not have been caused by the negligence opposite party 1 as alleged by the complainant, and eventhen in order to help the complainant the opposite party 1 has claimed award by means of insurance policy with the opposite party 3 is in question.  In this regard, the explanation given by the opposite party1 that the same has been done only for the welfare of the complainant holds not good.  Therefore, without having any doubt, this Forum can draw an inference  that the vehicle had caught fire only due to the negligence committed by the opposite party1 during service of the said vehicle as alleged by the complainant.  So, the estimation cost of the vehicle for repair has been raised from the amount mentioned in Ex.A3 with that of Ex.A5 andEx.A6. Hence the excess cost has been incurred unnecessarily by the complainant has to be compensated.  However, the vehicle was taken back by the complainant after repair on satisfaction and same has been brought to light through Ex.B3.  Anyhow, only because of the deficiency of service and negligence committed by the opposite party 1the complainant has certainly suffered much mental agony and loss of money.  Further the complainant has incurred some amount towards Alternate transport facility for him and his family members and same also to be compensated.

34. In the light of the above facts and circumstances, and the evidence adduced on either side, the opposite party1 has caused mental agony and loss of money to the complainant due to deficiency of service and negligence and the same has been clearly proved by the complainant.  In such circumstances the opposite party2 remained exparte and he has not come forward to rebut the allegation made in the complaint against them and it is pertinent to note that op1 is the dealer which was appointed by the Respondent authorized Op2 as dealer. So, both op1to op2 are jointly and severally liable for the deficiency of services committed by opposite party1. In respect of the opposite party3, it is rightly pointed out by opposite party3 through his written version as well as averments made in the proof affidavit that he is not at all connected with the complaint on hand and infact no claim against opposite party3 by the complainant in his complaint and thereby it goes without saying that there is no deficiency of service against opposite party3. Thus point No.1 is answered accordingly.

Point No:2:-

            35. As per the conclusion arrived in point No.1 the opposite parties 1&2 are only jointly and severally liable to refund the excess amount of Rs.15,000/- collected towards service provided and repairs and also to pay reasonable compensation for causing mental agony and loss of money towards alternate transport facilities to the complainant with reasonable cost.  In respect of opposite party3, he is not at all liable to pay any compensation.  Thus point No.2 is answered accordingly.

 In the result, this Complaint is allowed in part.   Accordingly, the Op1&Op2 are jointly and severally liable to refund the excess amount to the tune of Rs.15,000/-collected towards the repairing charges (Rupees Fifteen thousand only) with interest at 9%per annum from the date of complaint i.c.  04.12.2013 till the date of this order (04.06.2018) and to pay a sum of Rs.20,000/-( Rupees Twenty Thousand only) in total towards compensation in all means for causing mental agony and loss of money and Rs5,000/-(Rupees Five thousand only) towards the cost of proceedings to the complainant.  In respect of Op3,   this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9% per annum till the date of payment.

This order was dictated by the President to the Stent-typist, typed by her, corrected, signed and pronounced by us in open Forum, today on this 04^th day of June 2018.

   -Sd-                                                                                                        -Sd-

MEMBER                                                                                         PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1&3^rd Opposite parties:-

             -Sd-                                                                                                 -Sd-

          MEMBER                                                                                     PRESIDENT