Complainant Rajinder Kumar through the present complaint filed U/S 12 of the Consumer Protection Act (for short, C.P.Act.) has prayed for the issuance of the necessary directions to the opposite parties to deliver the vehicle to him and opposite parties no.2 and 3 be also directed to pay the bill of repair to the opposite party no.1. Opposite parties be further directed to pay Rs.50,000/- as compensation for the sufferings and unnecessary harassment to him.
2. The case of the complainant in brief is that he is owner of Hyundai Car Model i-20 bearing registration No.PB-06-S-0101 which was purchased from Novelty Hyundi, Amritsar through Finance from Canara Bank, Gurdaspur. The vehicle was given for repair to the opposite party no.1 and as such he is consumer of opposite party no.1. The vehicle was insured by New India Assurance Co.Ltd. The insured vehicle met with an accident and was damaged. He informed the opposite party no.2 about the accident immediately. Surveyor and Loss Assessor of opposite party no.2 came at the spot and performed necessary things to access the damage. He has further pleaded that the vehicle was taken to Workshop of opposite party no.1 for repair and after thorough inspection by its experts gave estimate of Rs.70,000/- for repair of damage of car on 21.2.2015. Job Sheet was prepared and it was stated that the vehicle will be delivered to him on 13.3.2015. He gave all the particulars of the insurance of the vehicle to the opposite party no.1. After repair he contacted the opposite party no.1 on 13.3.2015 for the delivery of the vehicle. The opposite party no.1 has made a bill of Rs.2,30,000/-.The opposite party no.2 and 3 failed to make all the payment and as such his vehicle was illegally withheld by the opposite party no.1 since 13.3.2015 without any fault. He performed all the necessary formalities and handed over the estimate, original bills etc. to the insurance company to make the payment to opposite party no.1, but opposite party linger on his claim and was negligent in the discharge of its duties. He also sent a letter dated 28.3.2016 to the opposite party no.1. It was later on came to his notice that opposite party no.2 and 3 paid Rs.1,25,000/- to opposite party no.1 but still the opposite party no.1 failed to deliver his vehicle. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.
3. Upon notice, the opposite party no.1 appeared through its counsel and filed its written reply taking the preliminary objections that the complaint is not maintainable; no cause of action has ever arisen in favour of the complainant against the opposite party; the complainant has created a false story in his complaint to mislead this Hon’ble Forum by concocting and distorting the facts and circumstances of the present case; there is no deficiency in service on the part of the opposite party; complainant is guilty for his own acts and conducts and the complainant has not come before Hon’ble Forum with clean hands. On merits, it was admitted that complainant is owner of I-20 car bearing Registration No.PB-06-S-0101, but the car was not purchased by the complainant from Novelty Hyundai, Amritsar but it was purchased from Pathankot branch. The fact is stoutly denied that after thorough inspection by the experts of opposite party, an estimate of Rs.70,000/- for repair of damage of car of complainant was given on 21.2.2015. Mere perusal of the Job card of dated 21.2.2015 shows that estimate Rs.70,000/- plus after opening was written on the job card. The car of the complainant brought to service center of opposite party and was badly damaged and later on detailed estimate was prepared when the car was open for repair and estimate was duly provided by the opposite party to the opposite parties no.2 and 3 and the fact is well within knowledge that detailed estimate has been prepared by the opposite party and with due consent of complainant and directions of opposite parties no.2 and 3, car of the complainant was repaired well within time and information was duly given to the complainant. Invoice of dated 18.3.2015 of Rs.2,14,569/- was prepared and same was duly provided to complainant and opposite parties no.2 and 3. The opposite party no.2 and 3 had given amount of Rs.1,25,840/- towards repair of the car of the complainant and remaining amount of invoice was to be deposited by the complainant but inspite of repeated requests and demands, the complainant has not deposited the balance amount with the opposite party. A letter dated 10.4.2015 was also written calling upon the complainant to deposit the balance amount of repair cost of the car, but he did not turn up to make payment of the repair cost of the car and to get delivery of the car. Another reminder was given to the complainant on 21.4.2015 but this time again he did not turn up to collect the car and to make the payment. Thus, there is no deficiency in service on the part of the opposite party. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. Upon notice, the opposite party no.2 and 3 appeared through their counsel and filed their written reply taking the preliminary objections that the complaint is not maintainable; the complaint is absolutely false and frivolous and no cause of action has ever arisen in favour of the complainant against the opposite party. On merits, it was admitted that the vehicle of the complainant was insured by New India Assurance Co. Ltd. Vehicle no.PB-06-S-0101 was insured with the opposite party no.2 vide cashless policy no.361600311403000002630 for the period of 27.08.2014 to 26.08.2015 in the name of Rajinder Kumar son of Amar Nath. After receipt of intimation of accident from the complainant the opposite party no.2 through its Divisional office Pathankot deputed Er.Arun Udhey Singh Surveyor and Loss Assessor College Road, Pathankot to assess the damage to the vehicle. The surveyor and loss assessor submitted his detailed report on 27.03.2015 by assessing loss payable Rs.1,30,842/-. Thereafter the opposite party no.2 has paid Rs.1,25,840/- to Novelty Hyundai the opposite party no.1 by deducting Rs.5000/- for salvage so the opposite party no.2 and 3 has made the payment of loss caused to the vehicle of insured Rajinder Kumar complainant to opposite party no.1 as per the surveyor’s report and terms and conditions of the policy. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
5. Complainant tendered into evidence his own affidavit Ex.CW-1/A alongwith other documents Ex.C-1 to Ex.C-7 and closed the evidence.
6. Counsel for the opposite party no.1 tendered into evidence affidavit of Rajesh Kakria Ex.OP-1/1 and of Sh.Atul Salaria, Service Manager Ex.OP-1/9 alongwith other documents Ex.OP-1/2 to Ex.OP-1/8 and closed the evidence.
7. Counsel for the opposite party no.2 and 3 tendered into evidence affidavit of Sh.Rajeshwar Singh Sr.Divisional Manager Ex.OP-2,3/1 and of Er.Arun Udhay Singh Surveyor and Loss Assessor Ex.OP-2,3/2 alongwith other documents Ex.OP-2,3/3 to Ex.OP-2,3/12 and closed the evidence.
8. We have carefully examined all the documents/evidence produced on record and have also judiciously considered and perused the arguments duly put forth by the learned counsels along with the incidental scope of adverse inference for some documents that have been somehow ignored to be produced by the contesting litigants. We observe that the prime dispute has prompted at the opposite parties’ failure to deliver back the complainant’s accidented but comprehensively insured car to him after due conduct of repairs on cashless basis at the OP (2&3) insurers’ cost & instead having raised Demand Invoice (being excess difference of unpaid Repair Bills) upon the complainant by OP1 vendor’s workshop.
9. We find that the validity of the insurance policy as well as eligibility of car-repairs on cash-less basis (in case of road side accidents) has not been disputed. Further, there has been no dispute pertaining to any accident-related matter except the appropriation of cost of repairs between the insurers and the insured. The opposite party insurers have failed to produce the policy’s applicable and agreed-upon terms pertaining to appropriation of ‘accidental-repairs’ bills on cash-less basis and in its absence complainant cannot be asked/forced to share the repairs burden of the accidented car. Moreover, when the OP insurers’ designated surveyor has assessed the repairs on cashless basis, it is not understood how its associate OP Repair Workshop has raised the part Repairs Bill upon the complainant. It has been the contracted liability of the insurers to get the accidented car fully repaired and returned to the complainant. It has not been the case of the opposite parties that any additional repairs other than ‘necessitated’ by the instant accident were also done at the instance of the complainant. Thus, it has been the joint liability and responsibility of the opposite parties to ensure full repairs and safe-return of the accidented car back to the complainant (within the time-schedule) in which they have failed depicting deficiency in service on their part and also infringing the statutory consumer rights of the complainant.
10. To sum it up all, we find that the OP insurers have arbitrarily settled the insurance claim in question (on cashless basis) just to raise part repairs bill upon the complainant and have since failed to produce any cogent evidence to support the basis of settlement and in its absence these shall amount to unfair trade practice coupled with deficiency in service. Thus, the OP insurers’ impugned settlement of Repairs Bills and the OP workshop’s impugned repair bills do not entail legality under the applicable law and need be set-aside.
11. In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite parties to settle the impugned repair Bills etc between themselves as per their interse arrangements and return the fully repaired car back to the complainant (sans all invoices/any charges etc) besides to pay him Rs.5,000/- as compensation (for the loss and harassment incurred) and Rs.3,000/- as cost (of the present litigation) within 15 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment and proceedings u/s 27 CPA shall be initiated against them.
12. Copy of the order be communicated to the parties free of charges. After
compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
December 08, 2016. Member.
*MK*
