Advocate Bhalchandra Nikte for the complainant
Advocate R.R.Ganu for the Opponent Nos. 1 and 2.
Advocate Aarti Joshi for the Opponent No.3
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date- 23rd April, 2014
This complaint is filed by consumer against the Manufacturing Company and the Insurance Company u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of Pashan, Pune. Opponent No.1 is the Manufacturing Company and the Opponent No.2 is the dealer of Skoda Motor Vehicle. Opponent No.3 is the Insurance Company. Complainant has purchased Skoda Motor vehicle from the Opponent No.2 for Rs.16,44,716/-. Said car was insured with the Opponent No.3 for value of Rs.15,62,480/-. Complainant had paid premium of Rs.61,535/- for the period of 21/11/2006 to 20/11/2007. Complainant had parked the said car at his residential premises on 16/6/2007 at about 4 p.m. On the next morning i.e. at about 4 a.m. complainant was informed by the Security that there is heavy smoke and burning smell coming out of the said car. Hence, complainant rushed to the car immediately and found that the flame and smoke were coming out of the Bonnet of the car. It was revealed that the car got fired from the engine compartment. In order to avoid further damage, complainant spread water on the fire and brought it under the control. Complainant had also sustained injury while controlling the car. He had informed this incident to the police who had prepared the Panchanama. Complainant had informed this fact to the Opponent No.1. As the car was totally damaged, it was beyond repairable condition. The estimate which was given for the repairs was more than the price of the car. As the car was manufactured by the Opponent No.1 and insured with the Opponent No.3, complainant had given notices to them for the insurance claim as well as for refund of price of the car. Complainant has claimed in all Rs.19,71,606/- including compensation for mental agony.
[2] Opponent No.2 resisted the claim by filing written version. It is the case of the Opponent No.2 that, there is no manufacturing defect in the car and hence Opponent Nos. 1 and 2 are not responsible for any damage. It is also contended that, the car was run for about 7500 kms, which shows that there was no manufacturing defect. Opponent No.2 has further contended that it has no concern with the manufacturing defect. It has prayed for dismissal of the complaint.
[3] Opponent No.1 has adopted the written version of the Opponent No.2.
[4] Opponent No.3 has also resisted the claim by filing separate written version. It is the case of the Insurance company that, there was manufacturing defect in the car. Hence, manufacturer and dealer are responsible for the compensation. The Insurance Company is not liable to compensate the complainant. Opponent Nos. 1 and 2 should not shy away from their responsibility when the car was well within the warranty period and there was manufacturing defect in the brand new car. Opponent No.3 has prayed for dismissal of the complaint.
[5] After considering the pleadings of both parties, scrutinizing the documentary evidence, affidavits, written argument and hearing the argument of both counsel, following points arise for the determination of this Forum. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has established that there was manufacturing defect in the disputed car ? | In the negative |
2 | Whether the complainant has established that the Insurance Company has wrongly repudiated his insurance claim ? | In the affirmative |
3 | What order ? | Complaint is allowed against the Opponent No.3 and dismissed against the Opponent Nos. 1 and 2. |
Reasons-
As to the Point Nos. 1 to 3-
[6] The undisputed facts in the present proceeding are that, the complainant had purchased the car from the Opponent No.1 through the Opponent No.2 and the said car was insured with the Opponent No.3. There is no much dispute about the fats that, the premium was paid by the complainant and the alleged incident took place when the policy was valid. It is the case of the Opponent Nos. 1 and 2 that, the Insurance Company is liable to compensate the complainant and it is the case of the Insurance Company that, as there is manufacturing defect, Opponent Nos. 1 and 2 are liable to compensate the complainant. During the pendency of the proceeding, Expert Evidence was called upon and the ARAI – The Automotive Research Association of India has submitted its report before this Forum. It reveals from the said report that, as the incident took place when the car was in switch off mode, there is no possibility of manufacturing defect. It is significant to note that, the joint inspection of the car by the representative of the complainant and Opponents took place for the assessment of genuineness of the complaint. It appears from the said report that the fire has caught in stationary mode i.e. in parked condition and not in dynamic condition and it was in switched off mode and the battery was disconnected. Alleged incident reported at about 4 a.m. when the temperature is relatively at its low. Hence, there is no possibility of fire due to overheating. The vehicle was diesel vehicle, it was located at the parking, fuel tank is located at the rear, whereas the flames and smoke emanating from the bonnet of the disputed vehicle. There was no leakage of fuel, engine was switched off and there was no connection in battery and other terminals. If the said report is minutely scrutinized, it is crystal clear that, the car was not caught fire due to the manufacturing defect. Moreover, it has come on record that, the said car was used by the complainant for the period of more than six months. Hence, it is the considered opinion of this Forum, that there is no manufacturing defect in the said car.
[7] The learned Advocate for the Opponent No.3 i.e. the Insurance Company argued before the Forum that, the inspection of the car was done by ARAI after six months from the incident. On the contrary, surveyor of the Insurance Company had visited the spot immediately and his report is more relevant than the report of the ARAI. It is significant to note that, eventhough the car was inspected by ARAI after six months from the date of incident, there was no change in the position of the car. Even the surveyor had not opined firmly that, the fire took place due to manufacturing defect. Moreover, in the field of motor vehicle, the opinion of ARAI prevails over the opinion of the surveyor. It is significant to note that, it is not the case of the Opponent No.3 that, there is a breach of terms and conditions of the policy at the hands of the complainant. It is nowhere referred in the policy that, the Insurance Company is not liable to compensate the insurer if anything happens due to manufacturing defect.
[8] The learned Advocate for the Opponent No.3 further argued that, this is the case of misjoinder of cause of action. The complainant has claimed compensation from his manufacturer and the dealer on the ground of warranty and it has also asked compensation from the Insurance Company on the basis of insurance policy. Hence, complaint should be returned and Complainant should be directed to file two separate complaints. The learned Advocate for the Opponent No.3 strongly placed reliance upon the ruling of Dr.Brajo Sunder Banerjee v/s. Tata Engineering and Locomotive Company Ltd. II (2002) CPJ 267. In that proceeding it has been observed that, the complainant has jumbled both the grievance in one complaint and asked relief against the Manufacturing company as well as against the Insurance Company. These are two distinct cause of action and should not be join together. The matter should be reassess separately. It has been observed in the said ruling that, in the interest of justice although Consumer Fora should not be that hypertechnical in the procedural aspects. However, in order to ensure proper and effective adjudication it will be necessary and deal that two distinct causes of action are not misjoined which would result in causing inconvenience to the parties and may also cause prejudice.
[9] If the facts and evidence of the present proceeding are considered, it is crystal clear that, it is established that, there was no manufacturing defect. Hence, there is no cause of action against the manufacturer as well as dealer of the vehicle. There is no question of causing prejudice to either parties, when the evidence before the Forum is sufficient to establish that, there was no manufacturing defect. Hence, one cause of action which was alleged by the complainant goes away and there is no question of misjoinder of cause of action. In this circumstances, it is the opinion of the Forum that, it is not necessary to return the complaint to the complainant and direct him to file two separate complaint one against the manufacturer and dealer and another against the insurance company.
[10] The another ruling on which the learned Advocate for the Opponent No.3 has placed reliance upon is as regards complex and factual questions i.e. the ruling between Oriental Insurance Co. Ltd. v/s. Munimahesh Patel reported in IV (2006) CPJ 1 (SC). In that proceeding it has been observed that, the proceedings before the Commission are essentially in summary nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant. In that context, it has been observed that, the matter should be referred to the Civil Court.
[11] In the present proceeding it has been established on the basis of the report of expert i.e. ARAI that, there is no manufacturing defect in the car. The other facts are not in much dispute. It is the opinion of the Forum that, there is no any complex question involved in the present proceeding and the complaint can be entertained by the Consumer Forum.
[12] It reveals from the claim of the complainant that, the car was insured for the value of Rs.15,62,480/-. Hence, the complainant is entitled for that much amount from the Opponent No.3. Complainant is further entitled to claim compensation of Rs.25,000/- for mental agony, physical sufferings and costs suffered by him.
In the light of the above discussion, this Forum answers the points accordingly and pass following order-
:- ORDER :-
1. Complaint is partly allowed against the Opponent No.3 only and dismissed against the Opponent Nos. 1 and 2.
2. It is hereby declared that the Opponent No.3 has caused deficiency in service by wrongly repudiating the insurance claim of the complainant.
3. Opponent No.3 is directed to pay Rs.15,62,480/- [Rupees Fifteen Lakh Sixty Two Thousand and Four Hundred Eight only] to the complainant within six weeks from the date of receipt of copy of order.
4. Opponent No.3 is directed to pay Rs.25,000/- [Rupees Twenty Five Thousand only] to the Complainant towards compensation for mental agony, physical sufferings and costs within six weeks from the date of receipt of copy of order.
5. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
6. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
