Haryana

Karnal

161/2012

Blue Line transport Company - Complainant(s)

Versus

M/s Sidak Automobile Pvt. Ltd - Opp.Party(s)

Sh. R.M. Kaushik

12 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.161 of 2012

                                                             Date of instt. 19.3.2012

                                                               Date of decision:12.04.2017

 

Blueline Transport Co. (Regd.) no.37, Improvement Trust Market, near bus stand, Ludhiana through its authorized signatory Dr. Arun Singh Dalal son of Shri J.S. Dalal resident of house no.102, Sector 18-A, Chandigarh.

 

                                                                             ……..Complainant.

                                      Vs.

1.M/Sidak Automobiles Pvt. Ltd. 71/3, Mile Stone, G.T. Road, Karnal through its proprietor/partner.

2. M/s Tata AIG General Insurance Co.Ltd. Infinity Tower, Building no.4, 501, Dindoche Depot, Malad East Mumbai, Mahrashtra.

3. Bharati AXA General Insurance Co. IInd Floor, SCO no.23, 24 and 25, Red Square Market, Hissar through its Divisional Manager.

 

                                                                             ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

                   Ms. Veena Rani…..Member

 

Present:-      Shri R.M.Kaushik Advocate for complainant.

                    Shri Vinod Dogra Advocate for opposite party no.1

                    Shri Narender Sukhan Advocate for opposite party no.2.

                    Shri Rohit Gupta Advocate for opposite party no.3.

                                       

 ORDER:

 

                   This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that vehicle bearing registration no.PB-10BP-008 was got insured with opposite party no.2 through opposite party no.1, vide cover note no.WMNO10999248, valid from 25.2.2011 to 24.2.2012. The policy was cashless. On 10.6.2011, Shri Arun Singh Dalal was coming from Rohtak to Karnal in the said vehicle and when crossed Gohana at about 8.00 p.m., the vehicle suffered a break down due to breakage of engine oil chamber, as a result of which, the vehicle could not move further. Therefore, the same was left there. Next morning, the vehicle was brought to the premises of opposite party no.1 by hiring services of Kaka Crane Service, Meerut Road, Bye-pass, G.T.Road, Karnal and an amount of Rs.3500/- was paid as crane service charges. Opposite party no.2 was also informed regarding the incident. Shri Mahesh was deputed as surveyor to inspect the vehicle, who directed the complainant to get repaired the same from opposite party no.1. On the asking of the surveyor, the vehicle was repaired by opposite party no.1 and an amount of Rs.90,000/- had to be paid to the opposite party no.1 for repairs because after repairs it was told that the vehicle was insured with opposite party no.3 instead of opposite party no.2.  Initially, the vehicle was insured with opposite party no.2 under cashless policy from 25.2.2011 to 24.2.2011, but the same was got reinsured by opposite party no.1 with opposite party no.3 for the period of 2.3.2011 to 1.3.2012 without the consent of the complainant. The vehicle remained parked in the premises of opposite party no.1 from 11.6.2011 to 16.10.2011 for repairs and due to that the complainant suffered inconvenience, mental agony and pain. It has further been pleaded that after delivery of the vehicle, the same ran smoothly for few days, but thereafter the car started giving trouble. The complaint was made to opposite party no.1 a number of times. The vehicle was checked by opposite party no.1, but the defects were not removed. Thereafter, the vehicle was got checked from Krishan Auto Sales, Indistrial Area, Chandigarh, the authorized dealer, on 4.11.2011 and an amount of Rs.4500/- was paid for repair of the engine, because the engine was not installed properly by opposite party no.1. Ultimately, he got served a legal a notice dated 5.1.2012 upon the opposite parties, but the same also did not yield any result.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable against opposite party no.1; that the vehicle was purchased by the complainant for commercial purpose, therefore, the complainant is not consumer; that the complainant has not approached this forum with clean hands; that the complainant is estopped from filing the present complaint by his own acts and conduct and that the complaint is false, frivolous and baseless and has been filed just to harass the opposite party no.1.

                   On merits, it has been submitted that initially the vehicle was got insured with opposite party no.2, but lateron, on the request of the complainant the cover note issued by opposite party no.2 was got cancelled and the vehicle was got insured with opposite party no.3. As a matter of fact, the reason of breakage of the engine oil of the car was accident. The complainant brought the vehicle to the workshop of opposite party no.1 and the same was repaired as per direction of the complainant. When Mr. Mahajan representative of opposite party no.2 refused to cover insurance of the vehicle under cashless policy, then the complainant had paid the whole amount of Rs.90,000/- through cheque. The delivery of the vehicle was delayed by the complainant for his own reasons. The complainant had brought the vehicle to the workshop of opposite party no.1 on 23.10.2011 and 23.2.2012 and complaint about starting problem and the fault were got removed to full satisfaction of the complainant. The dispute is between the complainant and opposite parties no.2 and 3 only and opposite party no.1 has no concern whatsoever with the claim of the insured vehicle. In this way, there was no deficiency in service on the part of the opposite party no.1.

3.                Opposite party no.2 filed written statement disputing the claim of the complainant. It has been averred that the opposite party no.1 acted beyond its scope of authority and issued cover note for policy period from 25.2.2011 to 24.2.2011 to the complainant without collecting premium of the said policy. The complainant had not paid even a single rupee as premium to opposite party no.2. Therefore, the cover note stood cancelled. Thus, the vehicle of the complainant was not insured by opposite party no.2. The opposite party no.1 contacted opposite party no.2 on 26.6.2011 to register the claim of the complainant. Pursuant thereto a surveyor was deputed by the company, who informed the company that the cover note for the said policy was cancelled and the car was already insured with opposite party no.3. However, the complainant inconnivance with the opposite party no.1 lodged claim with opposite party no.2 just in order to extort money. There was no deficiency in service on the part of the opposite party no.2. The complaint is not maintainable and the same is false and baseless. The other allegations made in the complaint have been denied.

4.                Opposite party no.3 also filed written statement disputing the claim of the complainant. Objections have been raised that the complainant has no locus standi to file the complaint; that the complicated questions of law and facts are involved, which cannot be adjudicated by this forum under summary jurisdiction; that the complaint is not maintainable in the present forum and that there was no deficiency in service or unfair trade practice on the part of the opposite party no.3.

                   On merits, it has been pleaded that the claim of the complainant was duly processed by opposite party no.3 by way of appointment of IRDA approved Independent Surveyor and Loss Assessor to inspect and carry out the survey of the insured vehicle and assess the loss. Survey was conducted. On careful inspection of the insured vehicle during survey it was found that loss of engine was not related with the cause of accident and the surveyor assessed the payable loss and submitted Motor Survey Report. Thereafter, an amount of Rs.6361/- was paid and full and final settlement of the entire claim, to which no objection was raised by the complainant. Thus, the complainant is estopped from filing the complaint by its own act and conduct. In this way, there was no deficiency in service on the part of the opposite party no.3.

5.                In evidence of the complainant, his affidavit Ex. CW1/A and documents Ex.C1 to C17 have been tendered.

6.                On the other hand, in evidence of the opposite parties, affidavit of Tarsem Singla Director Ex.OP1/A, affidavit of Shivali Sharma, Senior Executive Ex.OP3/A, affidavit of Sunil Khichar Senior Manager Ex.RW2/A and document Ex.OP3/B have been tendered.

7.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

8.                The complainant has alleged that his vehicle was got insured with opposite party no.2 for the period of 25.2.2011 to 24.2.2012 and cover note was  issued in that regard, but lateron without his consent the opposite party no.1 got insured his vehicle with opposite party no.3. The opposite party no.2 in the written statement clarified that the premium amount was not deposited by the complainant for insurance of the vehicle, therefore, the cover note stood cancelled.

9.                The complainant could not produce any documentary evidence worth the name on record, which may show that premium amount was deposited by him for insurance of his vehicle with opposite party no.2. As the complainant did not deposit the premium amount, there could be no question of issuing the insurance policy by opposite party no.2 and the cover note stood cancelled. Thus, the complainant has failed to establish that his vehicle was insured with opposite party no.2.

10.              Admittedly, the vehicle of the complainant was insured with opposite party no.3 for the period of 2.3.2011 to 1.3.2012. As per the case of the complainant, the vehicle suffered break down due to leakage of engine oil chamber and as a result of that the vehicle could not move further. Opposite party no.3 appointed surveyor and loss assessor to inspect the vehicle and assess the loss. Opposite party no.3 has alleged that the loss of engine was not related with the cause of accident. However, it has been admitted that the surveyor assessed the loss and submitted report. Opposite party no.1 specifically pleaded that the breakage of engine oil chamber was due to accident. No doubt, the complainant in the complaint did not specifically allege that the vehicle had met with an accident, rather submitted that the vehicle suffered break down due to breakage of engine oil chamber, but pleadings of the complainant read as a whole coupled with the pleadings of the opposite party no.1 and the fact that the surveyor appointed by opposite party no.3 assessed the loss, is sufficient to prove that the vehicle had met with an accident. It is not the case of the complainant that the engine oil chamber of the vehicle had broken due to some manufacturing defect in the engine. Even otherwise, this fact cannot be ignored that engine oil chamber of the vehicle generally breaks down due to some external cause i.e. accident. Under such circumstances, it stands established that the vehicle of the complainant had met with an accident due to which engine oil chamber had broken and the engine was damaged.

11.              As per the case of the complainant, an amount of Rs.90,00/- was paid by him to opposite party no.1 for repair of the vehicle. The opposite party no.1 has also admitted the factum of receiving Rs.90,000/- from the complainant through cheque, as repair charges. However, the opposite party no.3 has submitted that an amount of Rs.6361/- was paid in full and final settlement of the claim of the complainant, to which the complainant did not raise any objection or protest. However, the opposite party no.3 has not produced even a single document, which may show that the surveyor assessed the total loss as Rs.6361/- and the said amount was ever paid to the complainant in full and final settlement of account without any objection on his part. Therefore, the plea raised by opposite part no.3 in the written statement in this regard cannot be accepted. Consequently, non-payment of the amount of the actual bill by opposite party no.3 to complainant certainly amounted to deficiency in service on its part.

12.              It is also the case of the complainant that after repair of the vehicle by opposite party no.1, the same ran smoothly for few days, but thereafter started giving trouble and the defects were not removed by opposite party no.1 despite repeated complaints. However, there is no evidence of the complainant, which may indicate that he approached opposite party no.1 regarding any defect in the vehicle after delivery of the same to him after carrying out accidental repairs. In the absence any documentary evidence, the such plea raised by the complainant cannot be accepted. Thus, the complainant has failed to prove any deficiency in service on the part of the opposite party no.1.

13.              As a sequel to the foregoing discussions, we accept the complaint and direct the opposite party no.3 to pay to the complainant the amount spent by him on repair of the vehicle i.e. Rs.90,000/- after making necessary/ compulsory deduction as per terms and conditions of the policy with 9% per annum from the date of filing the complaint till  its realization. We further direct the opposite party no.3 to pay Rs.11,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 12.4.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)  (Veena Rani)

                               Member`          Member