Karnataka

Bangalore 4th Additional

CC/14/1833

Mrs. V. Padmavathi W/o. Sri. Srinivasaappa Aged Major - Complainant(s)

Versus

M/s. Elite Ford - Opp.Party(s)

M/s. Nag Associates Rakshit K. N.

05 Jun 2018

ORDER

Complaint filed on: 31.10.2014

                                                      Disposed on: 05.06.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1833/2014

DATED THIS THE 05^th JUNE OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mrs.V.Padmavathi

W/o Sri.Srinivasappa,

Aged major,

R/at no.27, 2^nd main, Gandhinagar,

Kolar-563131.

 

By Advocates

M/s.Nag Associates     

 

V/s

Opposite party/s

Respondent/s:-

 

1. M/s.Elite Ford,

No.88, Venkatadri Plaza,

Next to VIMS hospital,

Marathalli Outer Ring Road, Bengaluru-27.

 

By Advocates M/s.K.V.Legal

 

2. M/s.Bajaj Alliance

General Insurance,

Golden Heights, 4^th floor,

no.1/2, 59^th C cross,

4^th M Block, Rajajinagar, Bengaluru-10.

Rep. by its Authorized Officer

 

By Adv.Sri.Manojkumar.M.R

 

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to Op.no.1 to rectify all defects and deliver the car in original condition and then receive the amount due of Rs.1,37,000/-. In the alternative, direct Op.no.2 to consider the vehicle as total loss and reimburse the insured value of the vehicle as on 18.12.13, the date of accident. Further direct Ops to pay damages of Rs.2 lakhs towards mental agony with cost and to pass such other orders deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, she purchased Ford Figo 1.4 Titanium car (herein after referred as the said vehicle) from Op.no.1 on 31.12.12 for Rs.6,14,166/-. And was comprehensively insured with Op.no.2 vide policy no.OG-13-1701-1801-00050942. It is the case of the Complainant that, on 18.12.13, her husband while driving the car on Chintamani-Bagepalli state high way at around 7.40 met with an accident as he lost control of the vehicle after a tyre of the car burst, and was injured badly. The car went completely out of control and was dragged towards right side and turned turtle on the highway. As a result of the accident, the front two doors, left rear side door, bonnet, roof, front glass, mirrors etc., was completely damaged. The Complainant further submits that, the vehicle was left at the place of accident and immediately Op.no.2 was informed as the car had run only a little cover 17000 kms and the accident was within the currency of the insurance policy. Op.no.2 asked the Complainant to take car to Op.no.1. Thereafter, Op.no.2 deputed a surveyor for vehicle inspection and advised the Complainant to leave the vehicle for analyzing the extent of damage and for possible repairs at the Op.no.1’s workshop. The Op.no.1 after inspecting the vehicle informed the Complainant that the damage was severe and that it falls under total loss category as in addition to the aforesaid external damage, the entire piston, chasis and crankshaft was also damaged. Despite informing the severity of damage to Op.no.2, the surveyor of Op.no.2 refused to consider the damage under the total loss category and instructed the Op.no.1 to proceed with the repair. Op.no.1 after detailed analysis informed Op.no.2 the extent of damage and provided a pre-estimation and informed that the cost of repair would amount to approx. Rs.4,05,032.35. Op.no.1 after five months i.e. in the month of May 2014, informed the Complainant that the car was ready and that they can take it home. It is pertinent to note that Op.no.1 took nearly five months to repair the car and the total bill of Rs.4,26,243/- was generated out of which the Complainant was asked to pay Rs.1,37,000/- and the remaining to be borne by Op.no.2. Accordingly, the Complainant along with her husband took the money to Op.no.1 to clear the bills and to take the delivery of the car. Before taking the delivery, the Complainant submits that, they took the car for first drive and to his surprise he noticed that the car was not properly moving in the second gear and the pick-up was very bad. The Complainant also observed smoke emanating from the oil gauge and the car was extensively wobbling. While analyzing the bill, they realized that all most all the important parts of the engine was replaced. Ideally, the car should have been considered under total loss and Complainant should have been remitted with the insured amount. Looking at the car condition, she and her husband requested Op.no.1 to address the gear, pickup, wobbling and smoke issue and insisted that only after the issues are addressed completely the amount will be settled and the vehicle will be taken back. Thereafter, the Op.no.1 specifically stated to the Complainant that the Op.no.2 had not given approval to replace the chassis and that without replacement of the same the wobbling cannot be rectified. Additionally, the Complainant also learnt that if the said wobbling continues, it would affect the normal movement of tyres, which in turn would lead to wearing of tyres much earlier than its usual course. Further, the Complainant observed that due to such wobbling, as soon as the vehicle reached 60 kmph, the steering started vibrating which caused huge discomfort for the driver. Under such circumstances, they decided to not to pick the vehicle and asked the Op.no.1 to bring it back to the original condition so as to enable them to use the vehicle for the purposes they intended to do. Due to such late delivery, the Complainant who works as a teacher and her husband who is an advocate are facing huge problem in commuting due to the non-representativeness of Op.no.1. They are forced to commute either by taxi or auto which leads to unnecessary expenditure to a tune of Rs.500/- per day. Despite waiting for several months and placing several requests, the Op.no.1 has not addressed the issues and failed to put back the car in to its original condition. Op.no.1 was not ready to address the matter, hence, he issued legal notice. However, Op.no.1 instead of returning the car in proper condition, sent a reply notice forcing them to clear the bills along with the parking charges of Rs.350/- per day from 08.05.14 and to take the car back. This act of Op.no.1 evidently indicates the unfair trade practice followed by them. Hence prays to allow the complaint.

 

3. On receipt of the notice, Op.no.1 & 2 did appear and filed separate version denying the contents of the complaint. The sum and substance of the version of the Op.no.1 are that, the complaint filed by the Complainant is not maintainable either in law or on facts, hence liable to be dismissed.  Op.no.1 further submits that, Complainant brought the said vehicle to the work shop for repairing the damage caused due to the accident of the vehicle. Complainant had signed on the repair work order form and authorized to carry out necessary work. Complainant also signed on the pre-estimate repairs cost of Rs.4,05,032.35. Op.no.1 further submit that, Op.no.2 inspected the vehicle on 02.01.14 and gave their approval for going ahead with the repair works on 18.01.14. Later, after inspecting the vehicle engine gave their supplementary approval on 03.03.14. The total repair cost was Rs.4,26,243/- and as per the terms & conditions of insurance policy Op.no.2 paid Rs.2,88,276/- and the remaining balance of Rs.1,37,967/- is payable by the Complainant. Op.no.1 further submit that, vehicle was ready on 28.04.14 and informed the Complainant to pay the said remaining balance and take the delivery of the vehicle.  Complainant without paying the balance amount, making false allegation that the vehicle is not functioning properly as such she do not want to take the delivery of the vehicle. The vehicle does not have any such problems as alleged by the Complainant. Irrespective of the Complainant taking the delivery of the vehicle or not, she is liable to pay balance amount to it along with interest. Further she also liable to pay the parking charges of Rs.350/- per day from 08.05.14 till the date of taking the delivery of the vehicle. Hence on these grounds and other grounds prays for dismissal of the complaint.

 

3a. Op.no.2 by way filing its version, categorically denied with regard to the alleged deficiency of service on the part of it. Sum and substance of the version of Op.no.2 is that, the Complainant has insured the said vehicle for the period from 31.12.12 to 30.12.13 wide policy bearing no.OG-13-1701-1801-00050942 for an amount of Rs.5,83,458/- being the total sum insured, with hypothecation in lien, subject to endorsement no.22 and 7, wherein IMT 22 being applicable to the facts of above case, relating to compulsory deductible to the insured vehicle. Further, the policy issued is subject to various, terms & conditions, exceptions, limitations incorporated in the said policy. The accident in question is not disputed by Op.no.2. Op.no.2 submits that, Op.no.1 having issued repair estimate dtd.26.12.13, wherein a sum of Rs.2,90,442/- including spares and labour charges, an estimate being issued, had so issued pre-estimate dtd.01.02.14 towards spares and labour charge for Rs.4,05,032.35. More so, the said vehicle, wherein the total sum insured being rs.5,83,458/-. Further submits that, as per terms & conditions of the policy, in particular Sec.I of the policy terms & conditions and that the liability of the Op.no.2 is and would be based on the IRDA approved surveyor’s report and based on the policy terms & conditions. Wherein since the estimate of the repairer being Rs.4,05,032.35, since not exceeded 75% of the total value of the insured vehicle being Rs.5,83,458/-, the claim of the Complainant as per the terms & conditions of the policy as per Sec.I, has to be determined on repair basis and that the relevant clause under ‘Sum Insured – Insured’s Declared Value (IDV) are extracted, reads thus:

“The schedule of age-wise depreciation as shown below is applicable for the purpose of total loss/constructive total loss (TL/CTL) claims only.”

“The insured vehicle shall be treated as a CTL if the aggregate cost of retrieval and/or repair of the vehicle, subject to terms & conditions of the policy, exceeds 75% of the IDV of the vehicle”.

As such, the claim of the Complainant in regard to the damage caused to the insured vehicle, could not be considered on a total loss and that the claim of the Complainant was so considered based on the report of IRDA approved licenced Surveyor. In this context, based on the survey report dtd.05.05.14 and as well as considering the terms & conditions of the policy, had so assessed the loss caused due to damage and had so estimated the same at Rs.2,88,279/- being payable. Op.no.2 further submits that, it is not aware as to the fact whether the Complainant had so paid the balance amount, so called the differential amount, since being liable to be paid i.e. Rs.1,37,000/- to Op.no.1. When Op.no.2 has already discharged its liability by paying an amount of Rs.2,88,280/-, it is no way concerned with regard to the remaining amount of Rs.1,37,000/-. Hence on these grounds and other grounds prays for dismissal of the complaint.

 

         

          4. The Complainant to substantiate her case filed affidavit evidence and got marked the documents Ex-A1 to A6. The Director of Op.no.1 filed affidavit evidence and none of the documents got marked. The authorized signatory and also the Surveyor of Op.no.2 filed affidavit evidence and got marked the documents Ex-B1 to B15. Written arguments filed by the Complainant and Op.no.1. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  We have briefly stated the facts of the complaint as well as version filed by Op.no.1 & 2. It is not in dispute that, the total cost of the repair of the said vehicle was for an amount of Rs.4,05,032.35 but after repair, the total bill was for Rs.4,26,243/-. Out of which, as per terms & conditions, Op.no.2’s liability is for Rs.2,88,280/- and the said amount has been already paid by it to Op.no.1.  The only controversy involved in this case with regard to, who has to pay a sum of Rs.1,37,000/- being the arrears of cost of repair and also another consequential repairs.

 

          8. Op.no.2 rightly pointed out that, it is the Complainant who has agreed to carry out the repair work by signing the pre-estimate cost of repair work, which can be seen on going through the very document produced by Op.no.2 marked as Ex-B10.  According to the case of the Complainant, after repair they have taken the said vehicle for test drive. To their surprise, they noticed that the vehicle was not properly moving in the second gear and the pick-up was very bad. Further, smoke emanating from the oil gauge and the vehicle was extensively wobbling. In this context, herself and her husband requested Op.no.1 to address the gear, pickup, wobbling and smoke issue and insisted that only after the issues are addressed completely, the amount will be settled and the vehicle will be taken back. To know all these defects are concerned, learned counsel for the Ops have rightly brought to the notice of this forum that, there is no any expert report. In the absence of expert report, it is unsafe to arrive at conclusion that, the repair was not done properly by Op.no.1. In this context, we placed reliance on the following decisions:

1) R.P.No.3973/2012, Hon’ble National Commission, Sukhvinder Singh vs. Classic Automobile and anr. dtd.06.11.12, wherein the relevant para reads thus:

6. The District Forum has placed reliance only on the affidavit of the respondent. To our mind this much evidence is exiguous. The service history only reveals that there was overheating which defect was removed. The above stated authorities hardly dovetail with the facts of this case. There is no evidence except P-4 that the vehicle became defective again. The above said judgments are not applicable to the present case. The observation made by the State Commission assumes importance. The report of expert was essential or some other evidence showing manufacturing defect should have been adduced. The mere fact that the vehicle was taken to the service station for one or two times does not ipso fact prove the manufacturing defect. Due to lack of evidence, the value of the petitioner’s case evanesces.

2) I (2010) CPJ 235 (NC) in the case of Classic Automobiles vs. Lila Nand Mishra & Anr., wherein it is held that:

(i) Consumer Protection Act, 1986 – Sec.2(1)(f), 2(1)(g), 13(1)(c) – motor vehicles –manufacturing defects – complaint allowed by forum – joint and several liability imposed on manufacturer and dealer – manufacturer absolved in appeal – entire liability fixed on dealer – hence revision –onus to prove manufacturing defect lies on Complainant – No expert evidence produced to prove manufacturing defect in vehicle – alleged defects cannot be termed as manufacturing defect – vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defect – manufacturing defects in vehicle not proved – order of lower for a set aside.

(ii) Dealer – liability – manufacturing defect in vehicle – dealer not liable unless shown that vehicle sold by manufacturer on principal to principal basis – dealer being an intermediary between consumer and manufacturer – liability for manufacturing defect to be fixed on manufacturer – dealer not liable for it.

(iii) Motor vehicles – unfair trade practice –alleged, price of catalytic converter charged – vehicle supplied without catalytic converter – price of vehicle with or without catalytic converter same, proved – unfair trade practice not proved.

 

9. We find there is considerable force in the arguments advanced by Op.no.1 & 2, since no expert evidence is produced to prove manufacturing defect in the said vehicle as well as the repair work was not properly carried out by Op.no.1.

 

          10. As per terms & conditions, Op.no.2 has already discharged its liability by paying the amount of Rs.2,88,280/- to Op.no.1. Under such circumstances, it is for the Complainant to pay the remaining amount of Rs.1,37,000/- to Op.no.1 and get release the said vehicle. In this context, learned counsel for the Op.no.2 placed reliance on the following decisions:

 

1) (1996) 6 SCC 428

2) AIR 1999 SC 3252

3) Appeal no.330/05, dtd.11.08.06

4) IV (2011) CPJ 458 (NC)

5) 2013 AIR SCW 6490

6) II (1999) CPJ 10 (SC)

7) RP no.3647/11, (NC) dtd.10.10.12

8) II (1999) CPJ 10 (SC)

 

11. Amongst the said decisions, decision of Hon'ble Karnataka State Commission in appeal no.330/2005, dtd.11.08.2006 in the case of The Oriental insurance company ltd., vs. Sri.Basavareddy V. Huchchannavar, wherein it is held that:

This appeal is by the insurance company challenging the order of the DF awarding a sum of Rs.1,61,377/- as compensation in favour of the Complainant.

The facts in this case are as follows:-

The Complainant is the owner of a bus bearing Reg. No.KA26 3611. The said vehicle was insured with Op/insurance company with effect from 24.10.03 for a period of one year. The vehicle in question met with an accident on 07.12.03. As the policy was in force as on the date of accident, the Complainant informed the fact of accident to the insurance company. The insurance company after coming to know of the accident appointed a surveyor to assess the loss. The surveyor in turn assessed the loss at Rs.85,500/- and submitted the report. On the basis of the surveyor report when the insurance company offered the said payment the Complainant refused to receive the same. Thereafter the Complainant filed the complaint before the DF claiming compensation of Rs.1,61,377/- on the ground that he has spend a said amount in order to get the vehicle repaired by replacing the damaged parts.

No doubt the Complainant has produced certain bills before the DF to show that he has spent a sum of Rs.1,61,377/-. It is not known whether the said bills are in respect of getting the damaged parts of the vehicle repaired. The affidavit of the person who issued the bills has not been filed before the DF. Therefore in the absence of the proof of the fact that he had spent a sum of Rs.1,61,377/-, it is safe to rely upon the surveyors report.

At the time of arguments we called upon the learned counsel appearing for the appellant/insurance company to produce the surveyors report. After going through the report, we are satisfied that the loss assessed by the surveyor is just and reasonable. Therefore in our view the DF was not right in awarding a sum of Rs.1,61,377/- as compensation even though the Complainant failed to prove that he had spent the said amount in order to get the vehicle repaired relating to the damage caused in the accident.

We are told that during the pendency of the Complainant before the DF the insurance company has paid a sum of Rs.85,500/- as compensation as per the report of the surveyor to the Complainant. This fact is not disputed. Hence for the reasons stated above we are of the view that the DF is not right in awarding a sum of Rs.1,61,377/- as compensation. In the result we pass the following

ORDER

Appeal is allowed.

The impugned order is set aside. Since the insurance company has paid a sum of Rs.85,500/- on the basis of the surveyors report the complaint filed by the Complainant is dismissed.

 

12. In the light of the decision cited supra, we come to the conclusion that, on the basis of survey report marked as Ex-B12, Op.no.2 has already paid the amount of Rs.2,88,280/- to Op.no.1. When such being the fact, the difference amount of Rs.1,37,000/- is to be payable by the Complainant to Op.no.1 in respect of arrears of the bill for the repair of the said vehicle. Accordingly we answered the point no.1 in the negative.

 

 

13. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is dismissed.

 

          2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 05^th June 2018).

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.V.Padmavathi, who being the complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1 & A2	Invoice dtd.31.12.12 and the insurance details
Ex-A3	Details of pre-estimate dtd.02.01.14
Ex-A4	Details of invoice dtd.28.04.14
Ex-A5	Legal notice dtd.30.06.14
Ex-A6	Reply notice dtd.11.08.14

 

 

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.Gurjit Singh, who being the Director of Op.no.1 was examined.

Sri.Krishna Sheerndi, who being the authorized signatory of Op.no.2 was examined.

Sri.K.V.Pruthvish, who being the Surveyor in the panel of surveyors of Op.no.2 was examined.

 

Copies of Documents produced on behalf of Opposite party no.2

 

Ex-B1	FIR and complaint
Ex-B2	Chargesheet
Ex-B3	Claim intimation to call center of Op.no.2
Ex-B4	Original claim form
Ex-B5	Surveyor’s letter dtd.05.01.14
Ex-B6	Documents relation to Complainant
Ex-B7	Smart card and DL
Ex-B8	Preliminary survey report dtd.23.01.14
Ex-B9	Quotation dtd.28.07.11 of repairer
Ex-B10	Pre-estimate dtd.01.02.14
Ex-B11	Repair order dtd.28.04.14
Ex-B12	Survey report dtd.05.05.14
Ex-B13	Claim payment approval form
Ex-B14	Policy
Ex-B15	Private car package policy terms & conditions

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT