JUDGEMENT<br /> By Sri. Gururaj, Member:-<br /> <br /> This is a complaint filed by complainant M. Sadashivarao S/o. Venkateshwararao against the Sitaram Automobiles, Hero Honda, Dealers, Raichur, & four others under section 12 of Consumer Protection Act for directing the opposites to pay an amount of Rs. 49,000/- along with interest and cost.<br /> <br /> 2. The brief facts of the complainant’s case are that, he had purchased a Hero Honda Splendor Plus Bike bearing Registration No. KA-36/U-7417 from the Respondent No-1 at Raichur on 27-11-09 and the same was insured with the Respondent No-2 Insurance Company at Raichur under Policy bearing No. 30005/10702533/10123/000 valid upto 04-12-10 and same was handed over to his brother’s son by name Sharath Babu who was studying at Hubli in MBA Course. It is further contended that, on 20-03-10 the said Sharath Babu at about 5.30 pm parked the vehicle by the compound side of the building where he is residing after visiting his friend’s house. While he was proceeding to his room he suddenly noticed that, the motor bike was got fire due to the short circuit of the battery and the spark came out of from it and suddenly catched to the petrol tank causing the fire accident, he and other locality peoples rushed to the spot and saw that, the motor bike was completely burnt and it was totally damaged. Earlier to that, incident the vehicle was got serviced in Hero Honda Showroom on 03-03-10 and after lapse of 15 days he was using the said vehicle, it was working properly and he has not faced any problem with the vehicle. Further it is the case of the complainant that, the sudden spot and short circuit of the battery may be due to the defect of the battery or some manufacturer defect. The Sharat Babu user of the vehicle was also not known about the exact reason of the fire to the vehicle, the complainant came to know about the incident and complaint lodged before the Vidya Nagar Police Station and investigation conducted by them. Further it is the case of the complainant that, he and Sharat Babu approached the Respondent No-1 Showrom at Hubli and informed about the accident and also asked them to conduct the survey of the damaged vehicle, accordingly the technical person of Respondent No-1 Showroom conducted the spot inspection and cause of accident. The surveyor assessed the loss to the tune of Rs. 49,000/-. In this regard, they had given the estimate of the damaged parts and other charges on 23-03-10. That after the survey along with police papers the complainant approached the Respondent No-2 at Raichur for settlement of the claim and also submitted all the relevant papers sought by the Respondent No-2 on 19-05-10. In reply through letter dt. 25-05-10 the Respondent No-2 Insurance Company asked the complainant to submit the cancelled registration certificate of the vehicle and indemnity format. Similarly the Respondent No-3 asked to submit the same documents vide letter dt. 31-05-10. But in reply the complainant over phone contacted the Respondent No-3 and informed about his readiness to give indemnity format, apart from that, he personally approached the Hubli Office of Respondent No-4 and asked them to settle the claim then, the Respondent No-4 Company promised to settle the claim after contacting the Respondent No-5. But afterwards there was no proper reply from the Respondents regarding the settlement of the claim. Ultimately he has got issued legal notice dt. 31-07-10 asking the Respondents to settle the matter within 15 days inspite of receipt of the legal notice the Respondents not acted properly and there is no fruitful results by them, which clearly amounts to deficiency in service on the part of the Respondents, hence he has approached to this Forum by seeking the direction against the Respondents regarding payment of Rs. 49,000/- at the rate of 18% interest and Rs. 30,000/- as a compensation along with cost of the proceedings.<br /> <br /> 3. After service of the notice, the Respondent Nos-1 to 5 have approached through their respective counsel and filed their written version by denying all the allegations made against them. The Respondent Nos-1 & 3 in their written version has contended that, immediately after receipt of the complaint at Hubli from the complainant’s son they have promptly attended the request and conducted the survey and also assessed the loss and estimation was given to the complainant. The Respondent No-2 Insurance Company was also agreed to settle the dispute at Rs, 38,197/- being 95% on Insurance amount with only 5% depreciation subject to condition of handed over the RC Book and Motor cycle in question. The Respondent No-2 Insurance Company never expressed their intention to repudiate the claim nor refused to settle the claim. Further it is contended that, the cause for incident is also not known to the complainant and earlier to that incident the vehicle was in good condition as contended by the complainant in his complaint. The Respondent Nos- 2 & 3 properly responded to the complainant time and again he approached the Respondents. Under the above said circumstances, there is no deficiency on the part of these Respondents. Hence they sought for dismissal of complaint with exemplary cost.<br /> <br /> 4. The Respondent Nos. 2, 4 & 5 in their written version contended that, the allegation of the complainant in his complaint clearly speaks about the manufacturing defect i.e, low durable goods and battery fitted to the motor cycle in question by the Respondent No-3 Hero Honda Motors. As the Respondent No-3 i.e, Hero Honda Motors Ltd., covers warranty to Motor Cycle for one year against all sorts of manufacturing defects. Hence Respondent No-3 Hero Honda Motors Ltd is only liable to pay compensation and damages to the complainant. Further it is contended that, as per the spot panchanama conducted by the Vidyanagar PS Hubli, and the letter issued by the Taluka Executive Magistrate vide letter No. AF 04/2010 dt. 21-03-10 written to the Vidyanagar PS, it is very clear that, the Fire accident in question is not due to any external force but it is only either due to manufacturing defect or from improper were and tear by the complainant, there was no accident by external means, the company is not responsible for any damages in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown failures, or breakages. Under such circumstances, these Respondents are not liable to pay any compensation to the complainant. Further it is contended that, these Respondents asked the complainant through letter dt. 21-05-10 to produce cancelled RC copy, indemnity format but the complainant was not ready to comply the same despite of that, these Respondents have sent a letter dt. 31-05-10 through RPAD and warned the complainant to submit all the relevant documents within 5 days otherwise the claim will be treated as close. Even then also the complainant has not approached with the above said documents. Under such circumstances, there is no deficiency on their part and sought for dismissal of the complaint against them with exemplary cost. <br /> <br /> 5. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:<br /> <br /> 1. Whether the complainant proves that there is deficiency in service on the part of the Respondents as alleged.?<br /> <br /> 2. Whether complainant is entitled for the relief’s as prayed in his complaint.?<br /> <br /> 3. What order?<br /> <br /> 6. Our findings on the above points are as under:-<br /> <br /> (1) In the affirmative. <br /> <br /> (2) As discussed in the body of this judgement and as noted in the final order.<br /> <br /> (3) In-view of the findings on Point Nos. 1 & 2, we proceed <br /> to pass the final order for the following :<br /> <br /> REASONS<br /> <br /> POINT NO.1 :-<br /> <br /> 7. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-17 are marked. On the other hand the affidavit-evidence of Respondent No-1 on behalf of himself and on behalf of Respondent No-3 was filed, he was noted as RW-1. Similarly the Respondent No-2 legal Manager affidavit-evidence was filed, he was noted as RW-2. The Respondent No-1 has filed one document it is marked at Ex.R-1. On behalf of Respondents No. 2, 4 & 5 (8) documents were produced they are marked as Ex.R-2 to Ex.R-9.<br /> <br /> 8. On going through the pleadings of the parties and their respective evidences and documents it discloses that parties are not in dispute on the following points:-<br /> <br /> 1. The complainant is the absolute owner of the vehicle bearing Registration No. KA-36/U-7417 same was purchased from Respondent No-1 Hero Honda Motors Ltd, Dealer at Raichur. <br /> <br /> 2. The alleged fire accident took place at Hubli and same was informed to the concerned police, Respondent No-3 and to the Respondent Nos-2, 4 and 5.<br /> <br /> 3. The surveyor of the Respondent No-3 surveyed the damaged vehicle and also assessed the loss. <br /> <br /> 9. The complainant has produced in all 17 documents at Ex.P-1 to Ex.P-17 they are as follows;- (1) Receipt dt.27-11-09 for having purchased the Motor Bike is marked at Ex.P-1 (2) Insurance Policy is marked at Ex.P-2 (3) Certificate of registration is marked at Ex.P-3, (4) Service receipt marked at Ex.P-4, (5) Copy of complaint marked at Ex.P-5 (6) Spot Panchaname at Ex.P-6, (7) Letter dt. 21-03-10 written by Vidyanagar PSI Hubli to Taluka Executive Magistrate Hubli marked at Ex.P-7, (8) Photo of Motor Cycle is marked at Ex.P-8 (9) Quotation/Estimate is marked at Ex.P-9, Ex.P-9(1 to 3) (10) Letter dt. 19-05-10 by the complainant to the Respondent No-5 is marked at Ex.P-10, (11) Reply Letter dt. 21-05-10 of the Insurance Company is marked at Ex.P-11. (12) Letter dt. 21-05-10 by the complainant to the Respondent No-3 is marked at Ex.P-12. (13) Letter dt. 31-05-10 by the Insurance Company is marked at Ex.P-13, (14) Sharath Babu’s Driving Licence is marked at Ex.P-14, (15) Office copy of Legal notice dt. 31-07-10 is marked at Ex.P-15, (16) four postal receipts is marked at Ex.P-16 to Ex.p-16(3), (17) the postal acknowledgements are marked at Ex.P-17 to Ex.P-17(3).<br /> <br /> 10. The documents filed by the Respondent No-1 i.e, Authorization letter is marked at Ex.R-1. Similarly the (7) documents filed by the Respondents No. 2, 4 & 5 are marked as:- (1) claim form dt. 23-03-10 is marked at Ex.R-2, (2) the letter dt. 07-04-10 written by complainant is marked at Ex.R-2 (3) the letter dt. 07-04-10 written by Sharath Babu to the Manager Ex.R-3, (4) the letter dt. 07-04-10 written by Sharath Babu to the ICICI Lombard Bangalore marked at Ex.R-4, (5) Survey Report marked at Ex.R-5, (6) Quotation Ex.R-6, (7) letter dt. 21-05-10 at Ex.R-7, (8) Letter dt. 31-05-10 at Ex.R-8, (9) Literature of the policy Ex.R-9.<br /> <br /> 11. From the pleadings of the parties and documents filed by complainant and Respondents following point is arising for our consideration:-<br /> “Whether the alleged fire accident is accidental one or due to manufacturing defect and who has to pay the compensation.?<br /> <br /> 12. On perusal of the complaint version it is very clear that, on 20-03-10 the son of the complainant’s brother was used the vehicle and same was in good condition. Similarly the said vehicle was taken to the service station and same was get serviced on 03-03-10. The Ex.P-4 the bill which is having paid for service charges is clearly discloses about its service and immediately after (17) days the present incident was occurred if, at all any manufacturing defects with the motor cycle the mechanic who has attended the vehicle could have noticed the defect and will charge the repair charges and same will be collected through the bill, but on perusal of the said Ex.P-4 there is no mention regarding repair of the vehicle regarding any defect in it. The said Ex.P-4 is showing only changing of engine oil. Apart from that, the spot panchanama produced at Ex.P-6 and Ex.P-7 the letter written by Vidya Nagar police station it is very clear that, the alleged fire accident took place because of spark near to the battery. This will goes to show that, the alleged fire incident might be just because of short circuit in battery. No doubt, the vehicle in question was not running, it was stopped/parked. At the time of alleged incident as per the complaint and police documents there was no external force which caused the alleged fire accident. Only on this point, we cannot say that, there was a manufacturing defect as the battery which is used for the said vehicle is low quality one. It is worthwhile to note here that, there is no single iota of evidence to show that, the battery which is used is low quality one as contended by the Respondent Nos. 2, 4 & 5 in their written version and there is also no documents to show that, the vehicle has been got fire due to any manufacturing defect. Under such circumstances, the contention of the Respondent No-1 & 3 about the alleged fire accident due to sudden short circuit in battery is an accidental one and not for any manufacturing defect is believable. Because the alleged fire came out of the battery might be expanded and contacted with the petrol which is being used for the vehicle this will make more fire expandable and caused complete burn to the said vehicle. There was no reasons to believe that, there is a manufacturing defect for which the vehicle has been damaged in the alleged accident. <br /> <br /> 13. The vehicle in question is having valid insurance with the Respondent 2, 4, and 5 Insurance Company. The Ex.P-2 Insurance Policy clearly speaks that, Insurance Policy is valid and in force from 05-12-09 to mid night 04-12-10. The alleged fire incident took place on 20-03-10 it means at the time of incident the policy was very much in force for which the Insurance Company is responsible to compensate the damage caused to the vehicle. The complainant has made his best efforts by writing letters on 21-05-10 and by way of legal notice dt. 31-07-10 under Ex.P-12 & Ex.P-15 respectively. The Insurance Company though they have admitted the accident and the condition of the policy has not made any efforts to settle the claim. Further it is also very clear from Ex.R-5 that, the Insurance Company has assessed the total cost of the salvage through his surveyor to the tune of Rs. 25,563/- even then they have not paid the amount to the complainant to that extent, this attitude of the insurance company will clearly goes to show that, they are neglected the claim of the complainant, this act of the Respondents No. 2,4, and 5 is nothing but deficiency in service on the part of Insurance Company. Hence we answered Point No-1 in affirmative.<br /> <br /> 14. As regard to the claim of the complainant, he sustained loss of Rs. 49,000/- by fire accident to his Motor cycle. In this regard, he submitted Ex.P-9 estimated cost of repairs issued by one Chandra Auto Agencies. Apart from that, the Respondent Insurance Company has also produced survey report wherein the salvage cost is assessed at Rs. 25,563/- out of estimated cost of the vehicle at Rs. 48,667/-. On perusal of the Insurance Policy the vehicle for which it was insured for Rs. 37,383/- accordingly the Insurance premium was also paid. The Respondent No- 1 & 3 in their written version at Para-5 categorically mentioned the cost of the vehicle as Rs. 38,197/- after deducting the depreciation this will goes to show that, the cost of the vehicle is Rs. 39,350/- as per Ex.P-1. Hence under the above circumstances, the contention of the complainant regarding the claim of the vehicle to the tune of Rs. 49,000/- cannot be accepted. Therefore we have come to the conclusion that the cost of vehicle is not more than Rs. 39,350/- as per Ex.p-1 and we have also not accepted the surveyor report of the Insurance Company as it was not supported by the affidavit of the surveyor, hence we have ordered the insurance company to pay an amount of Rs. 39,350/- towards the cost of the vehicle in question. <br /> <br /> 15. We have clearly noticed the deficiency in service on the part of opposite Insurance Company i.e, Respondent No-2, 4, and 5, as such a lumpsum amount of Rs. 3,000/- is granted to the complainant under this head and Rs. 3,000- towards cost of the litigation. Accordingly the complainant is entitled to recover total amount of Rs. 45,350/- from opposite Insurance Company.<br /> <br /> POINT NO.3:-<br /> <br /> 16. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:<br /> <br /> ORDER<br /> The complaint filed by the complainant is partly allowed against Respondent No-2,4, and 5.<br /> <br /> The complainant is entitled to recover a total amount of Rs. 45,350/- from Opposite Nos. 2, 4, and 5 Insurance Company jointly and severally.<br /> <br /> Opposite Insurance Company is hereby granted one month time to make the above payment, the complainant has to hand over the salvage, indemnity format and surrendered RC Book within 15 days. <br /> <br /> The complaint against Respondent No 1 & 3 is hereby dismissed.<br /> <br /> Intimate the parties accordingly. <br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 20-01-2011)<br /> <br /> Sd/-<br /> Sri. Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br /> Sd/- <br /> Smt.Pratibha Rani Hiremath, <br /> Member. <br /> District Forum-Raichur.<br /> <br /> <br />