Punjab

Ludhiana

CC/14/529

Kulwinder Singh - Complainant(s)

Versus

M/s Maruti Suzuki India Ltd - Opp.Party(s)

24 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 529 of 04.08.2014

Date of Decision            :  24.08.2015

 

Kulwinder Singh son of Sucha Singh, Krishna Nagar, Street No.10, Near G.T.N.D. School Khanna District Ludhiana.

                                                                             … Complainant

                                                Versus             

1.M/s. Maruti Suzuki India Limited, Gurgaon through its Director/Managing Director.

2.M/s Stan Auto Private Limited, G.T.Road, Near Sherpur Chowk, Ludhiana, through its Manager.

3.National Insurance Co.Ltd., Divisional Office Dholewal Chowk, Ludhiana,(Netmar Tie Up Office), through its authorized person.

                                                                             Opposite Parties

 

                    (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainants             :       Sh.Sukhminder Singh Somal, Advocate

For OP1                           :       Sh.Sham Lal Ghai, Advocate

For OP2                           :       Sh.R.K.Bhandari, Advocate

For OP3                           :       Sh.Rajeev Abhi, Advocate

 

SAT PAUL GARG, MEMBER

 

1.                          Sh.Kulwinder Singh filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against the OPs, by alleging that he has purchased Ritz VDI vehicle from OP2 on 26.11.2012. OP2 issued Temporary certificate of registration bearing Book No.299 serial No.A17443 and at the same time, OP2, being agent of National Insurance Co., got vehicle insured in its office and OP3 issued insurance policy bearing No.351010311261132273002 dated 26.11.2012 of the above said vehicle. As per the terms and conditions of the policy, the complainant fulfilled all the conditions of the Ops company and moreover, the complainant alogwith Manvir Singh son of Malkiat Singh r/o Manupur Tehsil Samrala District Ludhiana while driving the said vehicle bearing No.PB-10-DU-1932(T) (Maruti Suzuki) on 9.2.2012 at about 3:30 A.M. a  cow came in between the road and the vehicle and Manvir Singh who was driving the said vehicle tried his best to save the cow from harm, as a result of which, the said vehicle skidded off from the road near village Dhelu, Tehsil Joginder Nagar, and was damaged and in this regard, FIR was got registered at Sr.No.31 (A) dated 10.12.2012. The complainant took the vehicle in Palampur Maruti Agency, where the surveyor of OP3 surveyed the said vehicle and sent the report regarding the vehicle to the company as well as to the OP1 and OP2, but they refused to repair the above said vehicle and making lame excuses and asked the complainant to bring the said vehicle from Palampur to Ludhiana for obtaining the service/repair. The said vehicle is still lying at Joginder Nagar. As per the insurance policy of the company, any vehicle can be got repaired from anywhere, any workshop authorized by Maruti Suzuki, India Limited, exchange or serviced from any of the authorized Maruti Suzuki Agencies throughout India. Moreover, the insurance policy is cash-less one. The complainant also approached Op1 regarding change of cell/chassis body of the said vehicle, to which, once OP1 said that they will change the same, but any of the officials of Ops company did not bother about the same and thereafter, totally refused to change the same. Complainant got served the legal notice dated 17.10.2013 through his counsel upon the Ops calling upon them to change the chassis/body of the above said vehicle which has been damaged in an accident or to pay a sum of Rs.4 lakh as compensation/damages for mental harassment, pain, agony to the complainant, but despite receipt of the said notice, Ops failed to do the needful. Such act and conduct of Ops is claimed to be deficiency in service on their part by the complainant. The complainant prayed to direct Ops to change the chassis/body of the vehicle which has been damaged in an accident or to pay Rs.4 lakh as compensation/damages for mental harassment, pain and agony to the complainant caused by the Ops alongwith litigation charges and other benefits to the complainant.

2.                Upon   notices,     the Ops were duly served, who appeared through their respective counsels and filed their separate written replies.

3.                OP1 filed the written reply, in which, it has been alleged in the preliminary objections that the present complaint is without cause of action against the answering OP as the answering OP being the manufacturer of vehicle stand warranty for a certain period and subject to certain terms and conditions of warranty. The liability of answering OP being the manufacturer of the vehicle is limited to provide warranty benefits as per Clause-3 of the warranty policy as set out in the Owner’s Manual and Service Booklet. The complainant has no case against the answering OP for violating any of the conditions of warranty. The complainant has no case for deficiency/defect of any nature as defined u/s 2 (f) & (g) of Act on the part of the answering OP. The complainant is not a consumer as defined under the Act as he did not hire any service for consideration from the answering OP. The present complaint is bad for mis-joinder of parties. The complainant has failed to disclose any violation of his contractual rights by the answering OP. The OP3 is the insurance company, who is to undertake to indemnify the complainant for any accidental repairs under the insurance cover. Reply on facts, it is submitted that answering OP is entirely a separate and independent entity doing sale and after sale dealing of Maruti Suzuki vehicles. The relationship between the OP1 and OP2 are governed by a dealership agreement executed between them and based on principal to principal. The answering OP is not liable for accidental repairs under warranty. It is submitted that the vehicle in question was covered under the vehicle insurance policy of OP3. The complainant was required to fulfill the terms and conditions of policy for obtaining insurance benefits under the insurance policy. For obtaining accidental repairs under the insurance, the complainant was required to bring the vehicle to the workshop of his desired location at his own cost. However, the dealer will assist the owner of vehicle for towing the vehicle for a specified limit as mentioned in the terms and conditions of cashless insurance policy of OP3. The repairing dealer starts the repairs on receipt of vehicle and approval of insurance company which is OP3 in the present case. The answering OP has no role to play in the case of accidental repairs as the answering OP is neither the insurance company nor the accidental repairs workshop. Nor the answering OP ever undertakes to repairs the vehicle under insurance policy. The complainant avail the benefits of insurance policy subject to terms and conditions of policy. It is submitted that it is prerogative of the insurance company either approve/allow the claim of the complainant in full or part. Only then the repairs are carried out by the workshop of dealer under insurance cover. The complainant has made false averment and concealed the material facts with ulterior motive to mislead this Hon’ble Forum. There is no deficiency in service on the part of the answering OP. Each and every other averment of the complaint denied being false and frivolous.

4.                  In  separate  written  statement  filed by OP2,  OP2 took up certain preliminary objections that the complaint is not maintainable in the present form and the answering OP has been unnecessarily dragged in this false complaint. No relief has been sought against answering OP. The complainant never brought the vehicle to the workshop of the answering OP. As such, there is no deficiency of service can be alleged against answering OP. No mental tension, harassment or agony etc., has been caused by the answering OP to the complainant, rather the complainant is liable to pay adequate compensation for dragging the answering OP into false litigation initiated against it by him with some pre nurtured ill-gotten animus desrendi. The complaint is vexatious, false, frivolous, wholly misconceived, groundless and unsustainable in law and liable to be dismissed as such, as the vehicle to the own admission of the complainant skidded of the road and fell in gorge. No manufacturing defect in the vehicle is shown or established. The car of the complainant suffered the damage only due to the negligence and carelessness of the complainant. The compensation, if any, can be sought only from the insurance company i.e. OP3 and not the OP1 and OP2. No cause of action ever accrued to the complainant against the OP2, hence the complaint is liable to be dismissed on this score also u/o 7 Rule 11 CPC as false and half heart pleadings do not fetch any cause of action to the complainant against the OP2. This Hon’ble District Forum has no jurisdiction to entertain and adjudicate upon the alleged dispute involved in the complaint in as much as it is not a consumer dispute, hence it does not fall within the ambit of the provisions of Consumer Protection Act, 1986. The complaint has neither been properly verified at all nor it is supported by mandatory affidavit in support thereof, hence it has no evidentiary value in the eyes of law. Reply on facts, it is admitted to the extent that the complainant had purchased the car in question from OP2 and that temporary certificate was issued to the complainant. It is denied that OP2 is the agent of OP3. It is specifically submitted that the complainant never brought the vehicle to the OP2 for its repair, so no relief can be sought by the complainant against OP2. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying all other allegations of the complainant being false and frivolous, OP2 made prayer for dismissal of the complaint with costs.

5.                OP3 filed the separate written reply, in which, it has been submitted in the preliminary objections that the present complaint is barred under section 26 of the Consumer Protection Act; the present complaint is not maintainable since the accident in question took place on 9.12.2012 and the claim was lodged belatedly on 27.12.2012 with National Insurance Co.Ltd., DO Palampur. As such, there is inordinate and unexplained delay of 18 days on the part of the complainant in intimating the loss to the office of OP3 at Palampur(HP) which is blatant violation of condition no.1 of the policy. Further, it is submitted that the complainant never approached OP3 at Ludhiana nor sent any communication in regard to his claim in question to OP3 at Ludhiana.Accordingly, on the request of the complainant on 27.12.2012, National Insurance Co.Ltd.Divisional Office Palampur, had appointed Mr.H.S.Bawa, Surveyor and Loss Assessor for survey of the vehicle of the complainant, who prepared his interim report dated 31.12.2012 and submitted the same with the National Insurance Co.Ltd., Palampur. Neither the complainant nor M/s Speedways Automobiles, Joginder Nagar had called upon National Insurance Co.Ltd., Palampur  nor the surveyor Shri H S Bawa regarding the opening/dismantling of the car in question and after waiting a sufficient time, the said surveyor prepared his report dated 16.2.2013 under his signatures showing the external and visible damages so found during the physical verification of the vehicle and submitted the same with the National Insurance Co.Ltd.DO Palampur since till the submission of the report dated 16.2.2013, the surveyor Sh.H S Bawa has not heard from them. The loss could not be assessed by Sh. HS Bawa, the aforesaid surveyor since insured as well as repairer failed to honour the advice of the surveyor to inform on dismantling of the vehicle in question which is required for the assessment of the actual loss. In the meantime, the complainant showed his desire to remove the vehicle to some other workshop and also assured the surveyor to let him know the name and place of the workshop, where the vehicle would be shifted but the complainant failed to inform either to the surveyor or to the office of the insurer at Palampur nor contacted any of them. The DO of the National Insurance Co.Ltd., Palampur(HP) thereafter, sent the survey report of Sh.H S Bawa alongwith photographs and other relevant documents to OP3 under the bonafide belief that the vehicle might have been shifted by the insured either at Ludhiana or in the vicinity.  All the best  efforts  made by OP3 but in vain. Thereafter, the claim file of the complainant was closed as ‘No Claim’ by OP3 vide their letter dated 21.5.2013 sent to the insured as per the address give in the policy on the grounds that a period of 5 months and 8 days has already elapsed but the complainant failed to inform OP3 about his intention as to whether the complainant wishes to pursue the claim or not and as such, it can safely be construed that the complainant is no longer interested in the claim. It came to the notice of OP3 that the vehicle has still not been removed from the workshop of M/s Speedway Automobile, Joginder Nagar (HP). The present complaint is not maintainable since the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. It is one of the condition in the policy that the disclaim be challenged by the insured within 12 months from the date of disclaimer, failing which, the claim shall be deemed to be abandoned but the complainant had filed the present complaint after the expiry of 16 months from the date of disclaim i.e. 21.5.2013 and as such, the present complaint deserves dismissal on this score only. The present complaint is bad for non-joinder and mis-joinder of necessary parties since M/s Speedway Automobiles, Joginder Nagar, Mandi where the car is lying parked is not made a party to the present complaint and further the OP1 and OP2 is neither a necessary nor a proper party to the present complaint. Reply on facts, all the allegations levelled against the OP3 are denied being false and frivolous and denying any deficiency in service on the part of OP3, OP3 made prayer for dismissal of the complaint with costs.

6.                In order to prove the case of the complainant, learned counsel for the complainant tendered in evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has producd on record documents Ex.C1 to Ex.C6 and thereafter, closed the evidence on behalf of complainant. 

7.                On the other hand, learned counsel for the Op1 tendered in evidence affidavit Ex.RA1 of Sh.Ranveer Singh Kalra, ASM of OP1, in which, he has reiterated all the contents of the written reply filed by the Op1 and refuted the case of the complainant. Further, learned counsel for the OP1 has proved on record documents Ex.R1/A and Ex.R1/B and then closed the evidence on behalf of OP1.

8.                Similarly, learned counsel for the OP2 tendered in evidence affidavit Ex.RA2 of Sh.Baljit Singh, General Manager(Works) of OP2, in which, he has deposed in terms of the written reply filed by the OP2 and refuted the case of the complainant and thereafter, closed the evidence on behalf of OP2.

9.                On the other side, learned counsel for the OP3 tendered in evidence affidavit Ex.R3/A of Sh.Sunil Tuli, its Manager-cum-Deputy Manager, in which, he has deposed in terms of the written reply filed by the OP3 and refuted the charges levelled in the said complaint, further, tendered in evidence affidavit Ex.R3/B of Sh.H.S.Bawa, Surveyor and Loss Assessor, in which he has proved his report dated 31.12.2012 Ex.R8, Motor Final Survey Report dated 16.2.2013 Ex.R9 and documents Ex.R10 to Ex.R18. Further, learned counsel for the OP3 has proved on record documents EX.R1 to Ex.R18 and then closed the evidence on behalf of OP3.

10.              Written arguments submitted by the OP2 and OP3. But those are not submitted by the complainant and OP1. Oral arguments of complainant and Op1 were heard and records gone through minutely.   

11.              It is evident that the accident of the vehicle in question took place on 9.12.2012 and the complainant had reported the matter to OP3 after the elapse of 18 days which is clearly violation of the terms and conditions of the insurance policy. As per the averments during arguments made by OP1 that liability of OP1 cannot be invoked since there is no manufacturing defect in the vehicle and vehicle in question suffered loss only after the accident due to negligent driving. As such, OP1 cannot be liable for the loss of the vehicle under such circumstances. Further averments of the OP2 that vehicle was never brought to the workshop of OP2. So, there is no question of liability burdened upon the OP3 under such circumstances. As per the averments made by the OP3, the lodging of claim took place after completing the period, i.e.after elapse of 18 days with the National Insurance Co.Ltd.DO Palampur(HP) and this inordinate and unexplained delay of 18 days has not been explained by the complainant. Moreover, the loss of the vehicle was without  the notice of sub office of OP3 at Palampur(HP) which is violation of term and condition no.1 of the insurance policy. These observations are made in the light of assertion during arguments wherein the counsel for OP3 cited following judgments:-

i)Oriental Insurance Company Limited vs. Delhi Assam Roadways Corporation-II(2014)CPJ-10(N.C.).

ii)Satish vs. United India Insurance Co.Ltd.-II(2013)CPJ-481(N.C.).

iii) New India Assurance Co.Ltd. vs. Ram Avtar-I(2014)CPJ-29(N.C.).

iv)New India Assurance Co.Ltd vs. Maha Singh-III(2014)CPJ-204(N.C.)

12.              In view of above observations made in the abovesaid judgments and in view of the above discussions, the charges levelled are not proved nor we find any deficiency in service on the part of the Ops. As such, repudiation of claim by the Ops is not unjustified.

13.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and the same is hereby dismissed with no order as to costs. Copies of this order be made available to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

(Babita)                                   (Sat Paul Garg)                            (G.K.Dhir)

 Member                                   Member                                       President

Announced in Open Forum

Dated:24.08.2015

Gurpreet Sharma.

                                                                                        

 

ADDITIONAL REASONS RECORDED BY G.K.DHIR, PRESIDENT:-

15.              As damage   to the vehicle caused in course of accident and as such, there was no manufacturing defect. Being so neither the seller nor manufacturer can be held liable at all because there is no deficiency in service on their part.

16.              DDR Ex.C2 regarding the accident was lodged for claiming that a cow came in between the road and the vehicle, due to which, the same skidded out from the road. So as per the version given by the complainant to the police, the damage caused due to accident. As per clause 4 of the warranty policy Ex.R1/B, warranty clause not to apply to any repairs or replacement required as a result of accident or collusion. So, this warranty clause excludes the liability of manufacturer and seller.

17.              Letter Ex.R5 dated 21.5.2013 even was sent by Divisional Manager to complainant for disclosing that as after period of 5 months and 8 days, he failed to inform the insurer about his intention to pursue the claim or not and that is why claim file closed as “No Claim”. The surveyor Sh.H.S.Bawa appointed by the insurance company reported the insurance company as if complainant took away the accidental vehicle without intimation to the insurer and the surveyor and intimation Ex.R6 was sought, if the complainant ever contacted for survey. Even through letter Ex.R7 it was found by the insurance company that complainant shifted vehicle to somewhere at Ludhiana. Report of Sh.H.S.Bawa surveyor Ex.R9 alongwith the Covering letter Ex.R8 shows as if the surveyor contacted complainant many times,but failed to get due response from him and that is why preliminary survey report submitted. Letter Ex.R10 dated 21.1.2013 was sent by the surveyor to the complainant for informing him that the complainant have not contacted him for disclosing as to where the vehicle has been shifted and as such, all the  documentary evidence leads to the inference that lack of co-operation on part of complainant resulted in repudiation of his claim. Virtually complainant remained non-cooperative in supply of all the documents as well as furnishing of information as to where the vehicle lying for about 10 months.                

18.              Condition no.1 of the insurance policy Ex.R13 provides for giving notice in writing by insured to insurer immediately upon the occurrence of any accidental loss or damage, but despite that intimation of this accident of 9.12.2012 submitted by complainant on 27.12.2012 as revealed by Ex.R11(intimation of claim). So delay of 18 days of giving intimation certainly have remained un-explained.

19.              Delay of 9 days in reporting matter/incident to insurance company was considered as violation of condition of insurance policy in case New India Assurance Company Limited vs. Tarlochan Jaine-IV(2012)CPJ-441(N.C), but delay of 7 days in reporting theft incident to insurer was considered fatal in case of Bihar State Hyrdo Electric Power Corporation Limited. Vs.  National Insurance Co. Ltd.-2015(1)CLT-292(N.C.). So, repudiation of the claim is justified in view of violation of terms and conditions no.1 of Ex.R13.

20.              For these additional reasons, I concur with the decision of Hon’ble Member qua dismissal of the complaint without any order as to costs.

 

                                                   (G.K.Dhir)

                                                     President

Announced in Open Forum

Dated:24.08.2015

Gurpreet Sharma.