Tamil Nadu

South Chennai

685/2009

Mr. Saravanan - Complainant(s)

Versus

m/s. Cars India , Manager & others - Opp.Party(s)

N.A.Padmanabha Rao

28 Dec 2016

ORDER

                                                                        Date of Filing :   16.02.2009

                                                                        Date of Order :   28.12.2016

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            

C.C.NO. 685/2009

WEDNESDAY THIS  28TH  DAY OF DECEMBER 2016

Mr. Saravanan,

No.26/37, Santhome Main Road,

Marina Square,

G-14, Ground Floor,

Mylapore, Chennai 600 004.                          .. Complainant.

 

                        ..Vs..

1.  M/s. Cars India,

Rep. by Manager,

No.9, Cenataph Road,

Chennai 600 018.

 

2. The Authorized Signatory,

ICICI Lombard General Insurance

Company Ltd.,

Chotabhai Centre,

II & III Floors, No.140,

Nungambakkam High Road,

Nungambakkam,

Chennai 600 034.

 

3. The Authorized Signatory,

Branch Manager,

ICICI Bank Ltd.,

No.7, Bazullah Road,

T.Nagar, Chennai 600 017.                     ..            opposite parties.

 

Counsel for the Complainant           :  M/s. N.A.Padmanabha Rao & others

Counsel for the opposite party-1     :  M/s. Nidin & K.Mookam kavil

Counsel for the opposite party-2     :  M/s. Michael Marie Antony

Counsel for the opposite party-3     :  Exparte. 

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties   under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of rs.4,86,684/- towards the claim amount as per the terms and conditions of the insurance policy and to pay a sum of Rs.10,00,000/- as compensation for mental agony and to pay cost of the complaint.

1. The averment of the complaint are brief as follows:

        The complainant purchased a car namely i.e. Maruti Swift 2XI from the 2^nd opposite party on 18.1.2007 vide Invoice No.VSL 060001089 and the car was delivered to the complainant on 18^th January 2007 itself vide delivery receipt No.089.  The said car was duly registered with the RTO on 18.1.2007 and bearing the number TN 09 AS 6000.  To his rude shock and dismay the insurance policy issued by the 2^nd opposite party shows that the complainant’s car was insured on 19.12.2006 while he came to be its owner only on 18.1.2007 is too big a pill to swallow.  It is nothing but a sheer fraud.   The said fraud came to light only after his car met with an accident within one year of purchase, when he has approached the 2^nd opposite party for the claim.    

2.     When he sent lawyer notice to the opposite parties  1 and 2, the 1^st opposite party replied evasively disowning responsibility.   That even after the occurrence of the accident, the complainant has been as usual regular and prompt in the payment of the EMI towards the vehicle even if he is not in a position to use the Car, while so, strangely enough, the 1^st opposite party by its reply points its index finger towards the 2^nd and 3^rd opposite parties, which is far from the truth of the matter.   The complainant had to request the 3^rd opposite party to stop withdrawing any more EMI’s form his ICICI account with the 3^rd opposite party, but in vain as the 3^rd opposite party continuous to make withdrawals knowing fully well of the entire facts about the fraud played by the 1^st and 2^nd opposite parties in collusion with the 3^rd opposite party itself.  

3.     After receipt of the notice, the opposite parties 2 & 3 till date never cared to comply with his demand, nor have they even responded to it either.   The 1^st opposite party has sent a reply to the complainant.   Subsequently, the complainant issued another lawyer’s notice to the opposite parties 1 to 3 on 9.1.2009 demanding to pay a sum of Rs.4,86,684/- as and towards the claim amount as per the terms and conditions of the insurance policy and to pay a sum of Rs.1,00,000/- for the mental agony, hardship, anxiety, loss of peace, discomfort and physical strain caused by the opposite parties to the complainant.   The commission and omissions on the part of the opposite parties 1 to 3 clearly tantamount to deficiency in service.  The opposite parties are thus liable to compensate the complainant.   Hence this complaint.

4. Written Version of  1^st opposite party is in briefly as follows:

        The 1^st opposite party denies all the averments and allegations made in the complaint under reply save those that are specifically admitted hereunder.   The inclusion of 1^st opposite party in the above complaint amounts to misjoinder of parties.   The 1^st opposite party admits booking of a Swift Zxi car by the complainant with them on 13.12.2006 and the same was delivered to the complainant on 18.1.2007.  The 1^st opposite party denies the allegation that first opposite party had sent any letter to the complainant offering to pay a sum of 75% of the IDV”.  Apparently the reference is to the 2^nd opposite party, viz ICICI Lombard General Insurance Co. Ltd, as the first opposite party had nothing to do with the issuance of the insurance policy for complainant’s car.  

5.     When the complainant’s car was brought to their workshop for carrying out body repairs for damage caused to the car due to an accident, hence the 1^st opposite party’s had given to the complainant the estimate for the repairs on 2.2.2008.  Apart from carrying out the repairs, the 1^st opposite party has nothing to do with the insurance coverage for the complainant’s car and this is a matter strictly between the complainant and the insurance company.    The claim of the complainant as against the 1^st opposite party is baseless and illegal.   Hence this complaint is liable to be dismissed. 

6. Written Version of  2^nd  opposite party is in briefly as follows:

        The 2^nd opposite party denies all the allegations set out in the complaint except those that are admitted specifically admitted herein.   There is no guilty of deficiency of service on the part of the opposite party.   It is a common practice for the Financer namely the bank herein used to deduct the premium out of the loan amount and to send to an Insurance company of their choice in order to protect their interest as well as the interest of the borrower since no vehicle can be plied in a public place without valid certificate of insurance.   Not only the opposite party, but also several financiers used to seek the co-operation of the Insurance companies for covering the vehicle with a policy.  As and when the premium is tendered, a policy used to be given to the person in possession of the vehicle through his financier.  This is a common practice in the business adopted by all the financiers.  

7.    The 2^nd opposite party admits that “Private car package policy was issued on 2.1.2007 with a coverage for the period from 19.12.2006 to 18.12.2007.  But the allegation raised by the complainant in para-6 is hereby denied.  The 2^nd opposite party also reminded the complainant vide their letter dated 6.5.2008 that they are in receipt of preliminary survey report of the vehicle and as per the preliminary assessment the vehicle is in a repairable condition and the liability of repairs would not exceed 75% of insured depreciated value, hence the other option of the settlement other than repair is not feasible.   The 2^nd opposite party submit that the claim of the complainant is not repudiated and hence the complaint itself is a pre-mature one and as such they are not liable to pay a swum of Rs.4,86,684/- towards the claim amount, since there is no deficiency of service.   Hence the complaint is liable to be dismissed.

8.      Though the notice served, the opposite party-3 has not chosen and appear and set exparte.  

9.       In order to prove the averments of the complaint, the complainant has filed proof affidavit along for his evidence and documents Ex.A1 to Ex.A9 marked.  Proof affidavit of opposite parties  1 & 2 filed and Ex.B1 to Ex.B3  marked on the side of the 1^st and 2^nd opposite parties.  

10.   At this juncture, the point for the consideration before this

        Forum is:  

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite parties as alleged in the complaint?

 

2.  Whether the complainant is entitled to any relief as prayed for?

11. Point No.1

          Regarding this point No.1, on careful perusal of the complaint, it is stated that the complainant had purchased Maruti Swift ZXI car on 31.12.2006 by availing loan with the 3^rd opposite party, from the car dealer Croscent Auto Rental Services India Pvt. Ltd  on 18.1.2007.  The invoice dated 31.12.2006 is marked as Ex.A1 and delivery note is marked as Ex.A3.  The insurance policy issued by the 2^nd opposite party is marked as Ex.A2.   The R.C. book for the alleged vehicle is marked as Ex.A4.  It is further stated that it is brought to the knowledge of the complainant even before the registration of vehicle and before the complainant become an owner, the said vehicle was insured even on 19.12.2006, it is nothing but a sheer fraud.  In such a given situation for a vehicle which is less than a year old, the complainant as a rule, get a new car in the place of the damage car of the complainant and therefore he issued a legal notice Ex.A5 to the opposite parties and in turn opposite party-1 reply through Ex.A6.  The reply letter sent by opposite part-2 is marked as Ex.A7.   But not complied the demand of the complainant and therefore the complainant again issued another notice Ex.A8 to the 2^nd opposite party demanding compensation for mental agony caused to him due to failure to comply with legitimate claim.   Ex.A9 is the renewal of the insurance policy for the complainant’s vehicle. 

12.    While being so, the 1^st opposite party vehemently contended that the when complainant’s car   was brought to their work shop for carrying out body repairs for damage caused to the car due to an accident, the 1^st opposite party had given to the complainant to estimate for the repairs on 2.2.2008 itself.   Thereafter, the complainant has not chosen to proceed and therefore there is no deficiency of service on the part of him.  Such being situation, on going through the evidence of opposite party-2, it is stated that it is a common practice for the financier namely the bank herein used to deduct premium out of the loan amount and to send  to an Insurance company of their choice in order to protect their interest as well as the interest of the borrower since no vehicle can be plied in a public place without valid certificate of insurance.   In such a way, in this case on hand also the policy has been issued subject to terms and conditions of the policy with a coverage for the period from 19.12.2006 to 18.12.2007.  Further it is narrated by the opposite party-2 that on the basis of the document of preliminary survey report  Ex.B2 submitted by the surveyor, they have been assessed to carry out the repairs for complainant’s car which had left to 1^st opposite party for repairs caused damage due to an accident, since the vehicle is in repair condition, and no point of time the claim of the complainant is not repudiated and hence the complaint itself is pre-matured one and there is no deficiency of service on the part of the opposite party-2.   

13.     At this juncture, on careful perusal of rival submissions, put forth on either side, it is crystal clear that the purchase of the alleged vehicle bearing registration No.TN-09-A8-6000 and the same was insured by availing the vehicle loan from the opposite party-3 and taken insurance policy with opposite party-2 are all admitted.    Similarly the vehicle was brought to the workshop of opposite party-1 for carrying out repairs for damages caused to the said car due an accident is also not disputed.   In such circumstances, though it is duty of the complainant to furnish particulars about the date of accident, preferring of complaint to that effect to the concerned Police station etc, the complainant had failed to do so.  The complainant was not even say a single word about the date of accident in the complaint itself.  Even then, the accident has not been disputed by the opposite parties the said particulars are not in need of.   It is learnt that from the allegation made in the complaint that the first allegation raised by the complainant is that even before the registration of the concerned vehicle and the complainant become the owner, the insurance policy was issued for the alleged vehicle bearing the registration  No.TN-09-A8-6000 even on 19.12.2006 is nothing sheer fraud.  In respect of this allegation, the opposite party-2 admits that the private car Package policy was issued on 2.1.2007 with coverage for the period from 19.12.2006 to 18.12.2007 since it was taken only to protest their interest as well as the interest of the borrower as well as financier, which is common practice in the business adopted by all the financier and as such in this case also the some procedure have been followed and thereby it has been duly explained.  In this circumstances, it is noticed that the vehicle was booked on 31.12.2006, but it was actually purchased and delivered the said car to the complainant on 18.2.2007 and immediately concerned vehicle was registered with RTO, Chennai West Ex.A4 has been issued.  So, it is crystal clear that the difference between the alleged period is nearly one month.   Therefore, its goes without saying that the complainant has not proved in what way the complainant has been affected for the said policy issued on 19.12.2006 with coverage the period from 19.12.2006 to 18.12.2007.  Moreover, it is pertinent to note that subsequently the policy has been renewed properly for the subsequent years.   Therefore, the allegation made in the compliant in respect of the above said policy used in an initial stage of the purchase of vehicle holds not good since it is not heavy much relevancy.

14.   The other allegation made by the complainant is the 2^nd opposite party has repudiated a claim made by the complainant by means of Ex.A5 and Ex.A8 and thereby there is a deficiency in service on the part of the opposite parties.  As already discussed above, it is  seen that though the  fact of the alleged vehicle met with an accident the said fact not mentioned by the complainant neither in complaint nor in the proof affidavit.   In such circumstances, it is learnt from the averments and the evidence of opposite party the vehicle was brought to his workshop for repairs and the estimate for repairs was given on 2.2.2008.   In such circumstances on perusal of  Ex.B2 survey report filed by the opposite party-2, it is where mentioned that the date and time of accident is 15.1.2008 at 10.00 a.m. at Vaniyambadi.   Further, it is learnt that as per the survey report filed by the opposite party-2 the vehicle was within the repair condition and thereby the liability of opposite party-2 to exceed Rs.2,00,000/- and there is no evidence of dismantled i.e. for total loss  and hence total loss basis cannot be recommended and in this regard  Ex.B1 reply letter was sent to the complainant and the same is marked also on the side of the complainant as Ex.A7.  Therefore, the issuance of legal notice by the complainant opposite party-2 has properly replied. 

15.       At this point of time, it is pertinent to say that if the complainant is not able to accept the reply given by the opposite party-2, it is the duty of the complainant to prove that he is entitled or eligible for total loss basis settlement through relevant documents.   In fact, the complainant has not at all produced any document to show that the vehicle is fit for total loss settlement.   Even the complainant has not chosen to file the estimation for repairs given by the opposite party-1, in order to prove that the alleged vehicle is under dismantle condition.  Moreover, the complainant has not come forward to produce any expert opinion report obtained from any vehicle engineer or to take steps to obtain the same  in this regard.   Therefore it is crystal clear that the complainant has not fulfilled his bounden  duly to prove the allegation made in the complaint against the opposite parties.  Not only that, if assuming that, as it is taken that the complainant is entitled for a new vehicle because of the alleged fraud done by the opposite parties 1 & 2 in the issuance of insurance policy with the coverage period, the duty of the complainant to produce the relevant documents for the same to show that he is entitled for the same.    But no such evidence filed by the complainant before this forum.   But nothing document placed by this forum.  So, the plea taken by the opposite parties cannot be easily thrown out.

16.     In the light of above facts and circumstances and observations made above the complainant has not proved any deficiency of service on the part of the opposite parties by means of relevant and consistent evidence.  Hence this forum, can easily come to the conclusion without any hesitation that there is no deficiency of service on the part of the opposite parties.   Thus point No.1 is answered accordingly.  

17.     Point No.2

          As per the view concluded in point No.1, the complainant is not entitled for any relief as prayed for in the complaint.  Thus the point No.2 is answered accordingly.

In the result, the complaint is dismissed.  No cost.

Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  28   day  of  December   2016.

 

MEMBER-I                                                                        PRESIDENT.

Complainant’s side documents:

Ex.A1- 13.12.2006         - Copy of Invoice of Maruti car dealer with receipt.

Ex.A2- 17.1.2007  - Copy of Insurance policy.

Ex.A3- 18.1.2007  - Copy of Delivery receipt issued by Crescent Auto repairs

                              And services India Pvt. Ltd.

Ex.A4- 22.1.2007  - Copy of R.C. issued by RTO, Chennai West in the name of

                               A.Saravanan.

Ex.A5- 24.3.2008  - Copy of complainant’s notice to the opposite parties.

Ex.A6- 9.4.2006    - Copy of 1^st opposite party reply notice.

Ex.A7- 6.5.2008    - Copy of 2^nd opposite party letter to the complainant.

Ex.A8- 9.1.2009    - Copy of complainant’s notice to the opposite parties.

Ex.A9- 16k.12.2008- Copy of Insurance Policy.

 

Opposite parties’ side documents:   

Ex.B1- 17.3.2008  - Copy of letter of the 2^nd opposite party.

Ex.B2- 7.3.2008    - Copy of survey report.

Ex.B3-         -       - Copy of Insurance Policy.

 

MEMBER-I                                                                    PRESIDENT.