Punjab

StateCommission

FA/13/248

Jodhbir Singh Shergil - Complainant(s)

Versus

M/s Mahindra Renault Limited - Opp.Party(s)

in person

27 Sep 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                                     

 (1)                       First Appeal No.248 of 2013

 

                                                          Date of Institution: 05.03.2013                    

                                                          Date of Decision:    27.09.2016

 

 

Jodhbir Singh Shergill son of Sh. Ranjeet Singh resident of House No.1097, Sector 29-B, Chandigarh through its GPA holder Arjan Singh Shergill, resident of 1595, Phase 3 BII, SAS Nagar, Mohali.

 

 

                                                                …..Appellant/Complainant

 

                                                Versus

 

1.      M/s Mahindra Renault Limited, Mahindra & Mahindra Gateway         Building, Appollo Bunder, Mumbai through its Managing       Director.

 

2.      Goel Motors (Private) Limited B-55, Phase VI, Industrial Area Opposite Verka Milk Plant, Mohali through its Managing        Director.

 

3.      United India Insurance Company Limited, DO 1, SCO 183-185,       Sector 17-C, Chandigarh through its Divisional Manager.

 

 

                                                             ..Respondents/Opposite parties

         

First Appeal against order dated 29.01.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. H.S. Guram,  Member

Present:-

 

          For appellant              : Sh.Gurjinder Singh Thind, Advocate     For respondent no.1   : Sh. Subhash Chand, Advocate

          For respondent no.2   : None

          For respondent no.3   : Sh. R.C Gupta, Advocate

 

………………………………………………………………………………

 

                                      AND

(2)                    First Appeal No.268 of 2013

 

                                                          Date of Institution: 08.03.2013  

                                                          Date of Decision:  27.09.2016

 

M/s Goel Motors (Private) Limited B-55, Phase VI, Industrial Area Opposite Verka Milk Plant, Mohali through its Authorized Signatory Sh. Deepak Kapoor GM (Service).

 

                                               …..Appellant/Opposite party no.2 

 

                                      Versus

 

1.      Jodhbir Singh Shergill son of Sh. Ranjeet Singh resident of     House No.1097, Sector 29-B, Chandigarh through its GPA      holder Arjan Singh Shergill, resident of 1595, Phase 3 BII, SAS       Nagar, Mohali.

 

                                                            Respondent no.1/Complainant

 

2.      M/s Mahindra Renault Limited, Mahindra & Mahindra Gateway         Building, Appollo Bunder, Mumbai through its Managing       Director.

                                                   Respondent no.2/Opposite partyno.1

 

3.      United India Insurance Company Limited, DO 1, SCO 183-185,       Sector 17-C, Chandigarh through its Divisional Manager.

 

 

                                                    …..Respondent/Opposite party no.3

         

First Appeal against order dated 29.01.2013 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali)

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. H.S Guram, Member

Present:-

          For the appellant                   :  None

          For respondent no.1     :  Sh.Gurjinder Singh Thind, Advocate.

          For respondent no.2     :  Sh.Subhash Chand, Advocate

          For respondent no.3   :  Sh.R.C.Gupta, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

          By this common order, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order dated 29.01.2013 of District Consumer Disputes Redressal Forum SAS Nagar (Mohali) and, thus, can be disposed of together. The order shall be pronounced by us in main First Appeal no.248 of 2013 titled as " Jodhbir Singh Shergill Vs. M/s Mahindra Renault Ltd and others."

2.      Appellant of First Appeal No.248 of 2013 is the complainant in the original complaint before District Forum and respondents no.1 to 3 of this appeal are opposite parties no.1 to 3 therein and they be referred as such hereinafter for the sake of convenience. The appellant of this appeal has filed appeal for enhancement of compensation. Appellant of First Appeal No.268 of 2013 is opposite party no.2 in the complaint and respondent no.1 of this appeal is complainant and respondent no.2 of this appeal is OP no.1 in the complaint and respondent no.3 is OP no.3 in the complaint before District Forum and they be referred as such for the sake of convenience respectively. The appellant of First Appeal No.268 of 2013 has filed this appeal for setting aside the impugned order of the District Forum.

3.      The complainant has filed the present complaint through his general power attorney holder Arjan Singh Shergill U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he had purchased vehicle make Mohindra Logan 1.5 DLX, Model 2009 on 04.03.2009 from OP no.2 bearing engine no.D036901 and Chassis no.8ZK30299, which was duly registered with Registering Authority Chandigarh bearing registration no.CH04H-8809 on 01.04.2009. The vehicle of the complainant met with an accident on 07.05.2011 and it was taken to private workshop Mohali. But after few days, complainant made up his mind to get the vehicle repaired from authorized agency and he approached OPs in this regard. It was assured by OP no.2 that vehicle would be repaired completely and delivered to complainant within one month after necessary repairs. The vehicle was lifted by OP no.2 and taken to their workshop for repair on 04.08.2011. The representative of OP no.2 after examining the documents and insurance papers assured the complainant that it was covered by insurance cover and complainant gave consent for repair. Delay was  caused by OP no.2 on the ground that some spare parts were not available with OP no.2  and they have to be requisitioned from manufacturer of the vehicle. On 25.02.2012, after waiting for more than six months, complainant was told by OP no.2 to pay the amount of repair, which he could later on claim from OP no.3. The complainant was deprived of use of the vehicle for more than six months and he paid an amount of Rs.2,15,000/- to OP no.2, vide receipt no.CR0421 dated 25.02.2012 and Rs.55,000/- vide receipt no.CR0489 dated 29.02.2012 in cash. Thereafter, the vehicle in question was delivered to the complainant  by OP no.2. OP no.2 informed the complainant that the insurance claim was pending before OP no.3 and it would be processed within 15 days, but it was firstly initiated by  representative of OP no.2 on 26.03.2012. The complainant took the vehicle from workshop of OP no.2 on 29.03.2012. The complainant had not even completed 40 kilometers and on third day of the delivery of the vehicle, when complainant was on the way from Sector 17 to Mohali, the driver of the complainant felt some noise in the engine. The vehicle was immediately stopped on the way and OP no.2 was intimated about this on 02.03.2012 at 5.55 pm. As per the survey conducted by Service Advisor of OP no.2, following problems were faced by the complainant i.e. i) Engine RMP over race problem ii) Black smoke problem and iii) Low pick up problem. OP No.2 made the estimated amount, as cost for the repair as Rs.2,50,000/- for repair of the engine of the vehicle.  OP no.2 failed to repair the vehicle satisfactorily and it still continue giving problems even after repair. OPs insisted the complainant to get one lac rupees for his accidental vehicle, as a settlement amount. The complainant insured his vehicle for the year of 2012-13 with OP no.3 but representative of OP no.2 did not even lodge the insurance claim for subsequent repair work. The complainant termed deficiency in service on the part of OP no.2. It was further averred that vehicle was insured with OP No.3 vide policy no.1102003111P001989392 for the period of 08.02.2012 up to 07.02.2013. The complainant has filed complaint praying that OPs be directed to settle the claim of the complainant in regard to Rs.2,15,000/- paid by the complainant and further prayed that OPs be directed to pay Rs.5,00,000/- as compensation for mental harassment.

4.      Upon notice, OP no.1 appeared and filed its separate written reply and contested the complaint of the complainant. It was contested primarily on the ground that vehicle in question was manufactured by OP no.1. It is a reputed company in the country. There is relationship between OP no.1 and OP no.2, which is on principal to principal basis and they shared a purely business relationship. Any manufacturing defect in the vehicle was vehemently denied.  The obligation of the OPs is to repair or replace the defective components on its sole discretion during the warranty period of OPs. The intricate question of facts and law are involved in the present complaint, which cannot be adjudicated in the summary proceedings by the Consumer Forum, as voluminous evidence entailing cross-examination of witnesses would be required for its decision. The insurance policy of the complainant was not cashless and it has to make the payment to the dealer, which complainant can recover afterwards from the insurance company. The problem in the engine arose because complainant has not brought the vehicle for service from authorized workshop. OP no.1 prayed for dismissal of the complaint.

5.      OP no.2 filed its separate written reply and contested the complaint of the complainant. It denied any manufacturing defect in the vehicle. On merits, it was averred that complainant admitted that he took the vehicle to some private workshop in Mohali. OP no.2 took the vehicle for repair only when complainant approached him and assured to get the vehicle repaired. It was denied that OP no.2 never assured of repairing the vehicle within one month, as pleaded by the complainant. The complainant submitted Rs.2,15,000/-  through GPA to OP no.2 after getting his vehicle repaired from it. OP no.2 duly issued receipt no.CR0421 dated 25.02.2012 of Rs.1.60 lac and receipt no.CR0489 dated 29.02.2012 of Rs.55,000/- to GPA holder of the complainant. The complainant agreed to take the vehicle after making the payment to OP no.2 on the pretext that he would get his claim from insurance company/OP no.3 at his own. The problem in the engine of the vehicle was due to rash and negligent driving of the complainant. OP no.2 prayed for dismissal of the complaint.

6.      OP No.3 filed its separate written reply and contested the complaint of the complainant raising preliminary objections. The complaint is not maintainable and no cause of action has accrued to complainant to file the present complaint. The District Forum does not have territorial jurisdiction to entertain the complaint, as its office is situated at Chandigarh. On merits, it was averred that claim was reported on the policy regarding the accident dated 07.05.2011. Survey was conducted on the vehicle. Engineer Kuldeep Singh assessed the loss to the tune of Rs.1,33,200.42 and submitted his report on 15.03.2012. The vehicle thereafter re-inspected by another independent surveyor Engineer Ravinder K. Goel, who submitted his re-inspection report dated 20.03.2012. No further claim regarding any subsequent repair is tenable, which has not arisen out of the original accident. As per version of the complainant, the complication arose after completion of the repair work which was never intimated to OP no.3. There were mechanical faults due to lack of proper service and repair work by OP no.2, due to which no claim is payable, as per terms and conditions of the insurance policy. OP no.3 intimated the complainant that they were ready to make the payment of Rs.1,33,200.42 as per surveyor's assessment but complainant insisted that he would first of all discuss the matter with OP no.2. As such, aforesaid assessed claim could not be released to complainant. In the meantime, the complainant filed this complaint on 16.08.2012. The OP no.3/Insurance Company is now also ready to make the payment of Rs.1,33,200.42 as per surveyor's assessment. Any deficiency in service on its part was denied by OP no.3 and OP no.3 prayed for dismissal of the complaint.

7.      The complainant tendered in evidence, affidavit of Arjan Singh Shergill GPA holder of Jodhbir Singh Shergill/complainant Ex.CW-1/1 along copies of documents Ex.C-2 to Ex.C-7. As against it; OPs tendered in evidence affidavit of Jyoti Malhotra Authorized Signatory Mahindra & Mahindra Ltd Ex.RW-1/1, affidavit of Deepak Kapoor General Manager (Sales) Goel Motors Pvt. Ltd Ex.RW-2/1 along with copy of document Ex.R-1 to Ex.R-3. On conclusion of evidence and arguments, the District Forum Mohali accepted the complaint of the complainant by virtue of order dated 29.01.2013. Dissatisfied with the order of the District Forum Mohali dated 29.01.2013, two separate appeal have been preferred against the same. First Appeal No.248 of 2013 has been filed by complainant for enhancement of compensation and First Appeal No.268 of 2013  has been filed by OP no.2 as appellant challenging the order of the District Forum Mohali.

8.      We have heard Ld. Counsel for the parties at considerable length and have also examined the record of the case.

9.      Evidence on the record has been alluded to by us to settle the dispute between the parties. The pleadings of the parties have been examined by us. Affidavit of Arjan Singh Shergill is Ex.CW-1/1 on the record. This affidavit is in verbatim support of version of the complainant. Ex.C-1 is deed of GPA executed in favour of Arjan Singh Shergill  by the complainant. Ex.C-2 is registration certificate. Ex.C-3 is policy document issued by OP no.3 for the vehicle of the complainant. It was valid from 08.02.2011 to 07.02.2012. Ex.C-4 is receipt dated 25.02.2012 of Rs.1,60,000/- issued by OP no.2 to complainant. Ex.C-5 is receipt dated 29.02.2012 of Rs.50,000/- issued by OP no.2 to complainant.  Ex.C-6 is estimate of the vehicle prepared by OP no.2. The details of estimate is recorded in it. Ex.C-7 is policy document.

10.    To refute this evidence, OP no.1 tendered in evidence affidavit of Jyoti Malhotra Authorized Signatory Ex.RW-1/1. He stated that there was no manufacturing defect in the vehicle. The relationship with OP no.2 with OP no.1 on principal-to-principal basis only and as such there is no liability of OP no.1 in this case. Affidavit of Deepak Kapoor General Manager (Sales) Goel Motors Pvt. Ltd Ex.RW-2/1. He stated in this affidavit that no notice with regard to any manufacturing defect in the vehicle was ever served by the complainant. The complainant himself admitted to take the vehicle to private workshop in Mohali. When vehicle was taken to OP no.2, it assured to complainant to repair it properly. He further stated that OP no.2 has to get every insured vehicle repaired only after getting the survey conducted by the surveyor of the concerned insurance company by which vehicle is insured. The complainant submitted Rs.2,15,000/-  to OP no.2 after getting his vehicle repaired from OP no.2. OP no.2 issued receipt no.CR0421 dated 25.02.2012 of Rs.1.60 lac and receipt no.CR0489 dated 29.02.2012 of Rs.55,000/- to the GPA holder of the complainant. The complainant himself agreed to take the vehicle after making the payment to OP no.2.  Ex.R-1 is vehicle information record with regard to repair of the vehicle. As per repair order no.RO12A0005424, bill dated 23.12.2011, part payment is Rs.191146.52, labour amount is Rs.27023.5 and total amount of Rs.218170/-. Ex.R-1 is terms and conditions of the insurance policy issued by OP no.3 to complainant. Ex.R-4 is Motor Final Survey Report. Sh. Kuldeep Singh Surveyor & Loss Assessor assessed the loss of vehicle as Rs.1,33,200.42  on behalf of OP no.3 as insurer. Ex.R-3 is private and confidential re-inspection report of the vehicle.

11.    From appraisal of above-referred evidence on the record and hearing respective submissions of counsel for the parties, we conclude that the vehicle was insured with OP no.3, it was repaired by OP no.2 after loss to the vehicle. OP no.1 is the manufacturer. Warranty period is alleged to be over and hence OP no.1 has been rightly impleaded in this case. Similarly, OP no.3 assessed the loss of Rs.1,33,200.42 as per terms and conditions of the policy with regard to accident which took place on 07.05.2011. OP No.3 has also been correctly discharged from the liability in this case by District Forum. Admittedly, loss was caused to the engine of the vehicle in some accident. The delay was caused by OP no.2 on the ground that spare parts were not available with them. The vehicle was taken for repair to OP no.2 by the complainant on 04.08.2011 and it returned the vehicle to the complainant after repairs on 25.02.2012 after a delay of six months and 22 days. The vehicle has not been returned within one month and more than six months were taken by OP no.2 in this regard. This is negligence on the part of OP no.2, besides deficiency in service. The complainant also relied upon the receipts issued by Deep Travels being charges received from the complainant for engagement of a taxi for the period 10.06.2011 to 11.10.2012. The complainant executed special power of attorney in favour of Arjan Singh Shergill as he had gone abroad. The complainant has not attended the proceedings before District Forum and District Forum inferred that the complainant was still abroad. The District Forum on that premise correctly observed that complainant never used any taxi for his personal use in India. Receipts produced by the complainant for payment of Rs.75,000/- and Rs.90,000/- issued by Deep Travels for taxi have been discarded by District Forum on the ground that charges proved by him appears to be manipulated one. All the receipts have been prepared by same travel agency, as such, they were liable to be rejected by District Forum correctly. The complainant had been suffering harassment and mental, as well as, physical on account of non-delivery of the car to him from 04.09.2011 to 25.02.2011 for a period of five months and 22 days by OP no.2. The District Forum awarded compensation Rs.25,000/- to complainant on this count. We concur with the findings of the District Forum after examining the evidence that the vehicle was seized after just three days after its delivery to the complainant after repairing by OP no.2 on 25.02.2012. Its seizure took place while the vehicle was being driven from Sector 17 Chandigarh to Mohali. This plea has  been controverted by OP no.2 on the ground that damage to the engine occurred due to rash and negligent driving by the complainant. There is no evidence in support of this plea of OP no.2. OP no.2 failed in its duty to properly test the vehicle after repairing before its delivery to the complainant and some faults remained in the vehicle even after alleged repairing. The complainant spent already Rs.2,15,000/- on repairs and question of his accepting a meager sum of Rs.1 lac as stated is not credible. We agree with the finding of District Forum that OP has not correctly repaired the vehicle despite receipt of Rs.2,15,000/- from the complainant. The finding of the District Forum are affirmed in this appeal. Similarly, order of the District Forum is appropriate directing the OP no.2 to replace the damaged engine of the vehicle in question with a new engine and to return the  vehicle in a proper working condition to complainant within a period of one month from the date of receipt of a certified copy of the order and on failure of OP no.2 to return the vehicle with replaced engine within the aforesaid period, it shall be liable to pay to the complainant a sum of Rs.4,65,000/- with interest thereupon @ 9% per annum w.e.f. 04.09.2011 till the date of actual payment. We do not find any ground to enhance the compensation amount of complainant in this case, as already reasoned order has been passed by District Forum in this regard.

12.    As a result of our above discussion, by upholding the order of the District Forum Mohali dated 29.01.2013, we find no merit in the both First Appeal No.248 of 2013 filed by complainant now appellant and second First Appeal No.268 of 2013 filed by opposite party no. 2 now appellant. Both the above-referred appeals are ordered to be dismissed.

13.    In First Appeal No.268 of 2013, the appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited Rs.75,000/- vide receipt dated 13.06.2013. Out of these amounts, a sum of Rs.35,000/- (Rs.25,000/- as compensation and Rs.10,000/- as costs of litigation awarded by District Forum) be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order, as ordered by this Forum. Remaining amount along with interest, which accrued on the deposited amounts be remitted to the appellant after payment of due amount to complainant.

14.    Arguments in this appeal were heard on 26.09.2016 and the order was reserved. Now the order be communicated to the parties. 15.         The appeal could not be decided within the statutory period due to heavy pendency of court cases.

16.    Copy of this order be placed in First Appeal No.268 of 2013.

 

                                                                     (J. S. KLAR)

                                                     PRESIDING JUDICIAL MEMBER

 

 

                                                         

                                                                   (H.S.GURAM)

                                                                      MEMBER

                       

September 27,   2016.                                                                 

(ravi)