Tamil Nadu
Ariyalur
RBT/CC/90/2022
S.Arun kumar - Complainant(s)
Versus
M/s.FCA India Automobiles Pvt Ltd., - Opp.Party(s)
Mr.A.Manoharan,B.Sc.,B.L.,
28 Feb 2023
ORDER
Date of filing: 30/05/2017.
Date of order: 28/02/2023.
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ARIYALUR
PRESENT: THIRU. DR. V. RAMARAJ. M.L.,Ph D., : PRESIDENT
THIRU. N. BALU B.A., B.L., : MEMBER I
TMT. V. LAVANYA B.A., B.L., : MEMBER II
C.C.NO.90/2022.
Tuesday the 28th day of February 2023.
S. Arunkumar - Complainant.
/Vs/
1. M/s.FCA India Automobiles Private Limited
Having corporate office at Mumbai - 400 013.
2. M/s Ramkay FIAT
Authorized Dealer cum Service Station
Having office at Perungudi Industrial Estate,
Chennai – 600 096.
3. The Regional Manager
New India Assurance
Having office at 21,2nd Floor, B Block, Macmillan House,
Patulous Road, Royapettah,
Chennai- 600 002. – Opposite Parties.
Counsel for the Complainant - Mr. A. Manoharan
Counsel for the 1 st opposite party - M/s S. Shivakumar
Suresh
Counsel for the 2nd opposite party - Mr. R. Veera Raghavan
Counsel for the 3rd opposite party - Mr. M. Manikantan.
This complaint having come for final hearing before us on 17/02/2023 and upon perusing the proof affidavit ,documents, oral arguments ,written aarguments filed by the complainant and written version, proof affidavit, documents, written arguments of the 1st 2nd & 3rd opposite parties, this commission passed the following
ORDER
PRONOUNCED BY Tmt. V.LAVANYA B.A,B.L., MEMBER II
ADOPTED BY Dr.V.RAMARAJ M.L.,Ph.D., PRESIDENT & Mr. N.BALU B.A.,B.L. MEMBER I.
01. The complaint was filed u/s 12 of the Consumer Protection Act, 1986 and prayed that i) direct the opposite parties to pay a sum of Rs. 2, 65,000/- being the book value of the vehicle or to direct the 3rd opposite party to pay the entire cost for the repair of the vehicle ii) direct to pay a sum of Rs. 2, 00,000/- as damages. iii) direct to pay a sum of Rs.50, 000/- towards the loss incurred by the complainant to engage taxis for the day to day use.
The brief averments of the complaint
02. The complainant had purchased a FIAT Punto car bearing registration number TN45 BC 5080 from the 1st opposite party dealer cum service station for the cars manufactured by the 1st opposite party and had availed the service of New India Assurance by insuring the vehicle for a sum of Rs.2, 65,000/- and had been paying the premium regularly till date.
03. The insurance policy availed is a comprehensive one and had been paying the premium for non depreciation policy. On 12/12/2016 due to incessant rain and flash flood on the OMR road the complainant’s car hit against a pot hole and the engine of the car abruptly stopped in the middle of the road and the water level rose to a level just above the door and flooded the cabin. Immediately along with passerby help the car was pushed to an elevated place on the service lane. This incidence was reported to the service station of the 1st opposite party immediately. The 3rd opposite party was also informed on 16/12/2016; a surveyor inspected the vehicle on 20/12/2016. The Insurance policy for the period was in force.
04. The 3rd opposite party surveyor requested the 2nd opposite party to send the details of the incident to get the approval from the New India Assurance Company Ltd.,and a rough estimate of Rs. 4, 00,000/- was quoted for servicing the vehicle. Subsequently all the details were sent to the surveyor by the complainant on 22/12/2016. On 26/12/2016 the 2nd opposite party submitted an estimation for the first level servicing cost of Rs. 22,000/- and it was approved by the surveyor on 27/12/2016.
04. It is pertinent to note that on 03/01/2017 the complainant was informed by the 2nd opposite party that all the fuel injectors were jammed and that they will have to break open the injectors to proceed. The 3rd opposite party was sent an email for additional approval as certain mechanical technicalities were involved for servicing the car. When the surveyor was contacted he raised certain key questions with the 2nd opposite party for which he did not get satisfactory reply.
05. The surveyor had made observation that there was no trace of water was detected in the engine oil at the time of inspection made by him on 20/12/2016, he manually rotated the engine and it was found to be functioning freely without friction. As the vehicle was not totally submerged in the water there was possibility of water seeping into the engine and there was no actual necessity to open the engine.
06. On 12/01/2017 the complainant received a call from the 2nd opposite party that the injectors were jammed and approval was needed to remove the engine as there were water traces in the engine oil without opening the engine the vehicle cannot be started. Also they informed that if the confirmation was not speedy, they will have to levy parking charges at the rate of Rs. 350/-per day.
07. On 07/01/2017 the technical advisor of the 1st opposite party informed that they could remove 2 out of the 4 injectors without any damage, this issue could have been resolved earlier itself as the personnel of the 1st and 2nd opposite parties had informed that they need to break open all the injectors. The callous attitudes of the opposite parties have given rise to suspicious intention.
08. The 1st opposite party has been drawn attention to all these facts with the fond hope that they would come to the aid of a customer in the hour of crisis. The 3rd opposite party is the insurer of the complainant their liability towards this complainant is implied as per the insurance policy.
09. On 17th January 2017 a communication was sent to all the opposite parties and on the same day 2nd opposite party sent a communication regretting the inconvenience caused and assured that the issue was being coordinated with the dealer vide registered reference no.1-3331530011.Subsequently on 20/01/2017 and 16/02/2017 communication was sent to the 1st and 2nd opposite parties calling upon them to fix the issues.
10. The 2nd opposite party claimed that the Turbo charger is worn out and needed replacement, even after replacement what was the next course of action was not briefed by the 2nd opposite party and no concrete reply was given by them. On 16/02/2017 to check the status of the vehicle the complainant visited the 2nd opposite party and was given two options either to replace the turbo charger with a new set which would cost Rs.24,000/- or to use the reconditioned turbo charger which would cost Rs.14,000/- and moreover they had already broken 2 injectors and inspected the engine and informed that there might be possibility of other problems ie, engine related problems and it can be assessed and confirmed only upon replacing the turbo charger and in worst case they might have to end up in replacing the engine, there was contradictory statement in their versions. The reply given them was shocking and sarcastic which made the complainant to realize that he was taken for ride by all the opposite parties.
11. Pointing out the facts a communication was sent dated 17/02/2017 to the 2nd opposite party , subsequently they had sent a email to the surveyor of 3rd opposite party on 25/02/2017 and on 20/03/2017 an email was sent to all the opposite parties. Thereupon , the complainant chose to go in for a new turbo charger and paid a sum of Rs 12,000/- as advance for getting a new Turbo on 18/02/2017. To the dismay it was found that the Turbo charger was not available and had to place purchase order with the 1st opposite parties. Almost a month was over yet the Turbo charger was not fixed due to unavailability of stock. On 22/03/2017 a new Turbo was received and it is learnt that the Surveyor of the 3rd opposite party had gone to the premises of the 2nd opposite party and had inspected the vehicles on 28/03/2017. Ultimately the 2nd opposite party gave an estimation dated 27/02/2017 and the Surveyor of the 3rd opposite party seems to have furnished with a copy of the estimation. The copy of the estimation along with the endorsement made by the Surveyor was mailed on 28/03/2017.
12. A copy of the estimation dated 27/02/2017 shows that the 2nd opposite party has estimated the total cost of the spares to be replaced in the vehicle to the tune of Rs.1,79,500/- and the labour charges at Rs. 28,725/- excluding tax on taxable items. Earlier the labour charges mentioned was 22,000/-.Out of the estimation dated 27/02/2017 the Surveyor of the 3rd opposite party have approved Rs.12,000/- for labour charges and Rs.2,000/- for servicing injector glow plug and clearing thus totalling Rs.14,000/- out of the total labour charge of Rs.40,725/- as claimed by the 2nd opposite party. Further the surveyor has given approval for replacing spare parts worth Rs. 51,100/- instead of the cost of Rs. 1, 79,500/- claimed by the 2nd opposite party towards cost of the spare parts to be replaced. The 3rd opposite party has agreed to reimburse only a sum of Rs.65,100/- out of the total cost of Rs.2,30,600/- as claimed by the 2nd opposite party for repairing the vehicle. Hence the estimation amount and the claim amount has larger gap which is unacceptable and ought to be clarified between the 2nd opposite party and 3rd opposite party. There has been undue delay which is the result of lethargic attitudes of 1st and 2nd opposite parties to rectify the defects in the vehicle on time. There is huge financial loss for the deficiency of service caused by the opposite parties. Hence this complaint.
Brief averments of the 1st opposite party.
13. The relationship between the 1st opposite party and 2nd opposite party is only Principal to Principal basis. Once the vehicle is disbursed to the Dealer there is not relationship between them as of principal and agent. They are separate entities. For any act of the selling dealer the manufacturer shall not be held vicariously liable. The transaction of retail sale is an activity falling within the exclusive domain of the selling dealer. The motor vehicles are invoiced in favour of the sales and servicing dealer for onward retail sale to customers. Any sale transaction undertaken by the dealer together with attendant formalities is thereby wholly independent of influence or control of the manufacturer herein. The dealership agreement states that the 1st opposite party is not a principal to the 2nd opposite party and hence it is clear that for no purpose whatsoever the 1st opposite party is to be considered as a agent of the manufacturer.
14. The complainant has no locus stand to implead this opposite party in this complaint. The dispute referred for adjudication is irrefutably is in reference to alleged non honouring of commitment by the 1st opposite party, since the 1st opposite party have no cause or nexus with closure of their service centre. Further due to repudiating the claim submitted to the complainant by the 3rd opposite party the complaint has arose, if it is so the complainant has to proceed as against them alone in manner known to law. The complainant has failed to establish even remotely as to how the product manufactured by this opposite party is substandard one.
15. In fact the 2nd opposite party was guided with required well defined document to attend such flood related vehicles. It is pertinent to submit that they give Warranty for the impugned vehicle only for a period of 2 years or completion of 30,000 km whichever is applicable. Out of way this answering party did everything that was possible from their side though the vehicle is out of Warranty so also the 2nd and 3rd opposite parties are independent entities with whom this opposite party have no control.
16. When this answering party received the communication from the complainant that to take up the matter with the 2nd opposite parties in turn they were always extending a warm welcome to the complainant, the matter could not make much headway as the 3rd opposite party has to approve the estimate submitted by the 2nd opposite party. In spite of non availability of spare part of the vehicle, the 1st opposite party made arrangement and supplied the same to the 2nd opposite party which is admitted by the complainant in his complaint.
17. As the 3rd opposite party has agreed to reimburse the complainant a sum of Rs.65, 100/-only out of Rs.2, 30,600/- as claimed by the 2nd opposite party. The complainant should find a way out to make good the loss as against the 3rd opposite party rather than including this opposite party alone rather than including this 1st opposite party without any sufficient reason.
18. The 1st opposite party denies to have acknowledged the complainant under reply that the vehicle impugned should be treated as a case of total loss such statement is not proved by any proof. Hence the complainant cannot anticipate the 3rd opposite party to substitute the terms and conditions of the policy to suit his whims and fancies.
19. The complainant cannot pin point on this answering party instead has to fix defects in the vehicle and seek remedy with the 3rd opposite party who has to take call in this regard for the disbursement of the amount claimed, as without their approval the 2nd opposite party cannot fix the defect . Hence the complainant has to prevail upon the 3rd opposite party and ensure that the entire claim amount is disbursed and he could be assured that the vehicle would be made ready in a matter of time. The relief’s sought by the complainant has not averred in his pleading nor has established by way of evidence. Therefore this 1st opposite party is not liable for any compensation. Hence the petition may be dismissed with exemplary cost.
20. Citations relied upon by the 1st opposite parties
1. C.C. No.127 of 2018 dated 28/04/2022. (State Consumer Disputes Redressal Commission)
2. Maruthi Udyog limited Vs. Nagender Prasad Sinha and another (II (2009 CPJ (NC))
3. Tata Motors Ltd., Vs. Antonio Paulo Vaz and Another.
Brief averments of the 2nd opposite party
21. The 2nd opposite party is an authorized dealer for FIAT brand of automotive cars manufactured by the 1st opposite party. FIAT Punto Evo is one of the models of such cars. The Complainant had purchased the diesel car of Punto Evo Model from another authorized dealer during February 2013. The manufacturer’s warranty for that vehicle was for 2 years or for a run of specified kilometres whichever occurs earlier. Any claim arising for the damage to the vehicle due to accident is expressly excluded by the terms of the warranty even during the manufacturer’s warranty. Thus the present complaint does not come under the per view of manufacturer warranty as the accident occurred on 12/12/2016, amidst flash floods due to Vardha cyclone which is admittedly not a claim under the manufacturer’s warranty. There is misconceived and untenable claim against the 2nd opposite party.
22. When a vehicle is insured and suffers an accident which is covered in the insurance policy, the claim of the owner of the vehicle is only on the insurer according to the terms of the policy. On 12/12/2016 when the car met with an accident in the flash floods during Vardha cyclone the 1st opposite party arranged to tow the stranded vehicle to the workshop of the 2nd opposite party on the next day ie,on 13/12/2016 for repair. The 3rd opposite party was also informed to claim applicable insurance benefits. After inspection by the surveyor of 3rd opposite party the 2nd opposite party prepared an estimate on 27/02/2017 for repairing the vehicle. The 2nd opposite party after thorough inspection found 24 parts for replacement valued at Rs. 1, 82,700/- involving labour costs of Rs.28, 725/- in addition excluding taxes. On 27/02/2017 the 2nd opposite party sent a mail to the complainant and to the 3rd opposite party’s surveyor specifically seeking approval for the replacement of 24 parts at their stated value including labour costs of Rs.28,725/-. Approval of the 3rd opposite party insurance surveyor was relevant mainly between the complainant and the 3rd opposite party as to know what values of repair costs would be permissible as an insurance claim according to the terms of the policy. It is mandatory for the 2ndopposite party to get Insurance surveyor’s prior approval of repair jobs and costs will keep the flow of work smooth and quick and keep the customer at ease in the matter of settlement of his claim against the Insurance Company.
23. A first level estimate dated 26/12/2016 was issued for a sum of Rs.22, 000/- towards cleaning up of the damaged vehicle before a closer inspection could be taken up, which was approved by the 3rd opposite party Surveyor through an email. It is found that the surveyor had deliberately left the charges towards labour to be “discussed later”. However on 17/01/2017 thorough email the complainant approved for Rs.22,000/- on the first level estimate and the job was done. After completing the process of first level estimate it was found that all the four injectors on the engine of the vehicle could not be removed for days as they had got badly jammed therefore only after removing the four injectors and four plugs called glow plugs it was possible to examine the head of the engine as the injectors had got badly damaged. There was possibility that any of the injectors could get broken during their attempted removal for which the complainant had to bear the expense for the replacement cost of broken injectors. To remove the jammed injuctors the vehicle had to be taken to lathe and if in the process of removing the jammed injuctor, if any part gets broken because of excess of jamming the complainant has to bear the expenses. Fortunately the jammed injuctors and the glow plugs were removed without any damage. For doing outside job a sum of Rs. 3,300/- was chargeable, if it was not possible to remove the jammed injuctor a new injector had to be replaced which would have cost about 10,000/- per injuctor.
24. The engine of the vehicle could not be started due to damage of the Turbo Charger it was found that the turbocharger had got damaged due to flood, without fitting a turbocharger starting the engine was not possible and to make further assessment of servicing to be done could not be asserted. A new turbo charger was procured at a cost of Rs. 24,000/- for which Rs.12, 000/- advance was paid on 18/02/2017. As the turbocharger was not available in stock the 2nd opposite party had to order to the 1st opposite party. In the meantime a turbocharger of a demo car was fitted and the engine successfully started to function. Subsequently the 2nd opposite party sent an email stating the functioning of the engine and estimate was also sent as attachment to the email. Finally after one month on 28/03/2017 the insurance surveyor intimated which all parts were listed in the 24 parts list in the estimate dated 27/02/2017 and which would be covered under the insurance claim and the value recoverable by the complainant and what value should be borne by the complainant. The details were intimated to the complainant when the insurance surveyor visited this 2nd opposite party’s workshop on 28/03/2017 and put a tick or a cross Mark against the value of each one of the 24 spare parts listed on a Hard copy of the estimate dated 27/02/2017 apart writing the remark of CR against few items.
25. The surveyor has already given permission for the estimation of labour charges and had approved a total of Rs.14, 000/- for insurance claim purposes. Thus the delayed incomplete approvals on the part of the insurance surveyor add to the delay in the commencement of service of vehicle. The complainant was dependent on the surveyor approval for each part of the repair job .On 28/03/2017 when the surveyor wrote his remarks on the hard copy of the 2nd opposite party’s estimate dated 27/02/2017, this 2nd opposite party also wrote his remarks on the same hard copy informing that they were awaiting customer’s approval. The surveyor had given approval for the parts which come under the insurance coverage and the remaining parts charges have to be borne by the complainant ,to which he was dilly dallying not wanting to bear any cost relating to parts or labour that were not approved by the surveyor for insurance claims purposes.
26. The complainant was reluctant to instruct the 2nd opposite party to replace oly those parts which the surveyor had approved for insurance claim purposes and remaining old parts unchanged, moreover he did not wish to take the chance of using his vehicle with such limited replacement of parts, no instruction was given to this opposite party to change all the 24 parts mentioned in the estimate list dated 27/02/2017 agreeing to pay for those parts as per their value given even though the surveyor did not approve many of them for insurance claim purposes. Finally the complainant has left his flood damaged car with the 2nd opposite party with no instructions as to what parts had to be replaced in spite of giving a list of all such recommended parts with their cost along with cost of the labour in the estimation list. The vehicle remains parked in a stationery condition in the premises of the 2nd opposite party. Due to wear and tear the vehicle would have further affected in battery, interiors and other parts which have to be properly technically assessed, the complainant is responsible for the acts and should bear the costs and consequences of such impact on the car and not renewing insurance. Therefore, no such consequences in any way relatable to any default or deficiency in service on the part of the 2nd opposite party is attributable, hence this complaint against this 2nd opposite party has to be dismissed with costs.
Brief averments of the 3rd opposite party.
27. The 3rd opposite party is the Insurance company and the complainant has availed the service of this opposite party by availing motor Policy bearing No.71270431150300003711 covering his car Fiat/Grande Punto bearing Registration No.TN-45-BC5080 for a period from 22/02/2016 to 21/02/2017 and the Insured Declared Value was fixed as Rs.2,65,741/- and the liability was only limited to the insured declared value and not beyond the insured value agreed by the complainant while entering into the policy agreement. The Policy is Zero depreciation policy and the insured declared value of the car was fixed as Rs.2,65,741/-and the maximum liability is also limited to Rs.2,65,741/- in case of total loss as per the terms and conditions of the policy.
28. On 16/12/2016 the complainant had informed to the 3rd opposite party regarding the accident of the insured vehicle due to the flood, immediately after receiving the information they appointed an independent licensed and IRDA authorised surveyor on 20/12/2016 to survey the insured damaged vehicle and on the very same day the surveyor inspected the vehicle at the premises of the 2nd opposite party. The surveyor during the inspection on the insured vehicle lifted the insured vehicle and drained the engine oil and found no traces of water and rotated the engine and found everything in order. After the receipt of the estimate the independent surveyor on 27/12/2016 gave approval to clean and flush the engine and Gear oil to start the engine of the insured vehicle to ascertain the actual loss. A mail was sent to the 2nd opposite party immediately by the surveyor.
29. On 4/01/2017 the surveyor was informed that the injectors and glow plug could not be removed and required replacement. The surveyor based on his professional expertise opined that the breakage of injector and glow plug was the consequential loss caused during repair work and hence did not approve it. The Surveyor raised clarification to the 2nd opposite party regarding the working condition of the engine at his earlier inspection of the vehicle on 20/12/2016,the very purpose of opening the engine of the insured vehicle as there was no water traces in the engine was not answered by the 2nd opposite party. The surveyor conveyed that if it is necessary to dismantle heater plugs and injectors with proper tools for examination the labour charge may be considered for approval of the claim and it was clearly cited that any damage caused during execution of repair work is not covered under the scope of the policy and advised the complainant and opposite parties to expedite the repair work and also cautioned that any damage or loss occurred due to delay in repairing the vehicle will not be covered under the policy as the same was aggravation of loss due to delay in repairing.
30. On 12/02/2017, the 2nd opposite party informed that there was problem in the engine turbo hence the surveyor once again inspected the insured vehicle for further assessment on 13/02/2017 and the surveyor found that the engine turbo was jammed and hence approved to replace the Major Kit. Subsequently after starting the engine again the surveyor inspected the insured vehicle on 28/03/2017 and approved the parts and labour charges and informed the complainant on 24/04/20`17 to expedite the repair work as there were no signs of repair work being carried out. The 2nd opposite party initially claimed Rs.22, 000/- for labour charges and further issued a fresh estimate dated 27/02/2017 for a sum of Rs. 1, 79,500/-towards parts and Rs. 28,725/- towards labour against their earlier estimate of Rs.4, 57,858/- dated 20/12/2016 which shows that the estimation of repair done by the 2nd opposite party was not based on proper reliable assessment.
31. The 3rd opposite party is bound by the Assessment report of the surveyor ,as there was no proper reply from the 2nd opposite party the surveyor cannot make his assessment of the damages ,moreover the surveyor had intimated the approval process and the assessment details to the 2nd opposite party in which they had made inordinate delay in every stage, after making complete assessment at different stage the surveyor had finally mailed to the complainant and the 2nd opposite party by mail on 24/04/2017 and called for information for stage inspection after repair work. Neither reply nor information related to progress of the repair work was furnished by the 2nd opposite party. Hence the surveyor was not in a position to submit his final report, the surveyor had no other option but to submit the status report on 3/05/2017.On 26/06/2017 surveyor reminded the 2nd opposite party to commence the repair work and cautioned that aggravated loss due to delay in repairing the vehicle will not be entertained as per the terms of the Policy.
32. As per the status report of the surveyor the net loss assessed as Rs.97, 500/- including labour and parts against the claim of Rs.4,57,858/- of the 2nd opposite party after deducting the salvage and policy excess from the loss. It is statutory obligation of the approved surveyor that before submitting status report he has to ensure that he makes time to time inspection of the insured vehicle during every stage of repair work to ensure the replacement of the part and for proper assessment of damage and has to re inspect the vehicle after repair work has been completed by the 2nd opposite party and thereafter only the 3rd opposite party would be able to settle the claim of the complainant. As there was inordinate inappropriate delay the claim could not be settled till date. Therefore it is previewed that for the First level service Rs.22, 000/- again claimed 4, 57,858/- on 27/02/2017 estimated for a sum of Rs.1, 79,500/- towards parts and Rs. 28,725/- towards labour without any basis.
33. The assessment and estimate made by the 2nd opposite party does not bind this opposite party only the report of the surveyor was applicable, the 2nd opposite party who is the beneficiary and there are chances of escalating the damages due to financial interest over the estimation .
34. The delay in settled claim was only due to delay caused in repairing the vehicle by the 2nd opposite party. This opposite party is not liable for the loss due to negligence or delay on the part of the 1st and 2nd opposite parties. Based on the report submitted by the surveyor the 3rd opposite party can act upon the vehicle damages claim not as per the whims and fancies of either the complainant or the other opposite parties, it is pertinent to submit that the claims made by the 2nd opposite party at different times for the single loss is not binding on the 3rd opposite and for the escalated value of loss stated by the complainant or by the 2nd opposite party. This 2nd opposite party has statutory mandate to follow the norms and procedure established under the law it will not arbitrarily fix the damages or claim amount and shall not settle the claim without any prudence.
35. The claim by the complainant was due to the deficiency of service on the part of 1st and 2nd opposite parties and 3rd opposite party is not liable for deficiency of service and negligent and unprofessional service. Till date the opposite parties have not completed the repair to the insured vehicle and as per the assessment of the surveyor the loss shall not be treated as total loss as claimed by the complainant based on the 2nd opposite party’s valuation. The surveyor report has clearly declared the loss as partial loss and assessed the loss value as Rs.97, 500/- including labour against the insured value of Rs.2, 65,741/- claim made by the complainant is a partial loss and this opposite party can settle the claim after the due repair has been completed, after re-inspection of the surveyor and based on his final report this opposite party is ready to settle the claim immediately without any further delay. There can be an increase of 15% maximum during the process. As per the IRDA licensed surveyor and the loss assessed as per the survey report, the loss is less than 75% of the Insured Declared value hence there is no mandate on the part of this opposite party to declare the loss as total loss.
36. Due to incompletion of the repair work from the 1st and 2nd opposite parties till date this 3rd opposite party is not able to perform its legal obligation to the complainant. The non clarification of the queries raised by the surveyor to the 2nd opposite party and non cooperation on the various estimates and at various point of time clearly elucidates the stand of the 1st and 2nd opposite parties as not justifiable, hence the 1st and 2nd opposite parties are liable to compensate the complainant for their deficiency in service and to compensate any aggravated loss occasioned due to delay in repairing the insured vehicle or any loss occasioned during the repair process due to negligence of the 1st and 2nd opposite parties. Hence the complaint against the 3rd opposite party may be dismissed.
37. The complainant side Exhibits A1 to A15 is marked. On the side of 1st opposite party no Exhibits marked, on the side of 2nd opposite party Exhibits B1to B2 marked. On the side of 3rd opposite party Exhibits B3 to B10 Marked.
38. Points for consideration
1. Whether the opposite parties have committed deficiency of service as alleged by the complainant?
2. Whether the complainant is entitled for the relief as prayed in the complaint?
Point No.1.
39. On perusal of available records it is envisaged that the complainant had owned a FIAT Punto Car bearing registration no.TN45 BC 5080 which is manufactured by the 1st opposite party in the year 2012 and purchased by the complainant on February 2013 with two year warranty period. The complainant purchased the vehicle from a dealer in Tiruchi (Not added as a party).The 2nd opposite party are the dealer cum Authorised Service Partner and the 3rd opposite parties are the Insurance service providers. The complainant had insured his vehicle with the 3rd opposite party under Private Car Enhancement Cover Policy insurance (Comprehensive policy) with Nil Depreciation Policy and has insured for a sum of Rs. 2, 65,714/-and paid Rs.9669/- as a premium for the coverage between 22/02/2016 to 21/02/2017. Enhanced coverage of Add on Cover for NIL Depreciation was availed by paying an additional premium of Rs.2258/- by the complainant. It is so that the Complainant car met with an accident on 12/12/2016, due to vardha cyclone the area was inundated with flood water because of incessant downpour of rain. The car hit the pothole in the impact the car stopped in the middle of the flooded road. Immediately the Service Centre of the 1st opposite party was informed and the car was towed to the Service Station on 13/`2/2016 for service at free of cost. As the complainant had insured his vehicle to the 3rd opposite party, immediately the incidence was informed to them. The 3rd opposite party appointed an IRDAI Approved Independent Surveyor to inspect the vehicle to ensure to what extent the Insurance claim can be disbursed. The 2nd opposite party on 27/02/2017 sent a Level B estimate bill to the 3rd opposite party and the complainant for damage of parts for Rs.1,79,500/- and labour charges Rs.28,725/- for which approval of both the parties was essential to start the vehicle service work. Now it is vital to discuss and it is presumed that the complainant vehicle did not give any fault from the date of purchase and he had been using roadworthy constantly from 2013, then where does the question of manufacturing defect arise. In C.N. Anantharam vs M/s. FIAT INDIA LTD., & OTHERS the H’ble Supreme Court has cited that when in any vehicle if the Independent Technical Expert is of the opinion that there are inherent manufacturing defects in the vehicle of the complainant then he will be entitled for refund of the price of the vehicle . But to prove the above contention the present case in hand, no Independent Expert Technical Expert opinion had been sought. More over The Supreme Court (2021) Apex Court ,In Honda Cars India Limited vs. Sudesh Berry had overturned a decision of NCDRC and reiterated that a vehicle manufacturer cannot be held liable for any defects in the performance of a dealer/or an authorised service centre while servicing vehicles. In Tata Motors Limited vs Antonio Paulo Vaz & another the Apex Court has categorically cited that if there is any Deficiency of Service by the dealer or the authorized centre in rendering assistance for repairs of the vehicle, the manufacturer of the vehicle cannot be held liable. Hence from the above Catena of Judgements it is clear that 1st opposite party cannot come under the ambit and perview of deficiency of service as alleged by the complainant. Therefore no relief against the 1st opposite party can be claimed and the complaint against the 1st opposite party is dismissed.
40. Regarding the 2nd opposite party, this commission perceives that, as per their versions and exhibits it is cited that they have given their estimation and sent mail for the concurrence and approval from the complainant and the Insurance Surveyor of 3rd opposite party on 26/12/2016, the said exhibit is marked from the complainant side as Ex A4 which is implied that the 2nd opposite party has acted as per the rules. It is learnt that the 2nd opposite party has not entered into any contract with the complainant, for the service they had issued complaint reference no.1-3331530011 through email. On perusal of Ex A11 dated 27/02/2017, it is clearly cited that the 2nd opposite party has issued a Level C Estimation for the 24 parts to be replaced along with the rates and labour charges which has been endorsed by the 3rd opposite party’s Surveyor in respect of coverage of claim for the approval of 7 parts, the remaining unapproved parts amount has to be borne by the complainant for which the complainant has not given consent. Due to non – Approval from the complainant the 2nd opposite party were reluctant to carry on with the service of the vehicle, which resulted in the delay of service of the vehicle.
41. In fact, after getting approval from the Surveyor to clean and flush the engine the 2nd opposite party opened the engine to find the Injectors jammed due to which the engine could not be started. After getting approval from the Surveyor the 2nd opposite party took the vehicle to the Lathe and removed the jammed injectors meticulously. Subsequently after removing the injectors again engine did not start and it was found that the Turbo charger had to be replaced, a new Turbo charger was replaced by the 2nd opposite party and the car engine started working to be roadworthy. Inspite of all the service done by the 2nd opposite party, the complainant has shown displeasure and unsatisfied remark on the 2nd opposite party. It is envisaged that in any electronic gadgets as well as automobile there is depreciation value. Due to wear and tear any vehicles start losing its potentialities. Likewise the 2nd opposite parties has acted upon according to principle of natural justice and fair procedures. For each and every fault service they had sent email to the complainant and the surveyor of 3rd opposite party to get approval. It is pertinent to state that no lay man will be deputed to do any automobile service, only persons having automobile service experience can analyse the fault and do the service. Hence, the 2nd opposite party without getting the approval from the complainant to carry out the fault repair service of the vehicle could not complete the job work within stipulated period. From the Argument of the 2nd opposite party counsel it is learnt that the vehicle is still lying in the 2nd opposite party’s premises since 6 years. Inspite of several requests the complainant has not come forward to rectify or take back the vehicle. By this time the vehicle would have become obsolete. The Complainant had the option of getting a second opinion by engaging an automobile service engineer to clarify his suspicious about the escalating fault and replacement of parts in the vehicle by the 2nd opposite party, though he had the option to do he did not do so. Instead of taking initiative to rectify the problem the complainant chose to go the legal way and left the vehicle in the premises of the 2nd opposite party ,in spite of knowing that the electronic and mechanical functioning of the car would totally detoriate if kept idle for a prolong period. Therefore, we opine that the 2nd opposite party cannot be held liable for the deficiency of service as alleged by the complainant in his complaint. Hence no relief against the 2nd opposite party can be claimed and the complaint against the 2nd opposite party is dismissed.
42. On perusal of versions and exhibits marked by the 3rd opposite party it is learnt that the Surveyor has admitted to reimburse the amount as per Assessment report claim and ensured that this opposite party can settle the claim after the due repair has been completed, after re-inspection of the Surveyor and based on his final report this opposite party is ready to settle the claim immediately without any further delay. It is perceived that at each and every stage of service of the vehicle the Surveyor had made time to time inspection which has been endorsed in the Exhibit A11. Moreover all the approvals were subject to Policy condition. The complainant has availed a Comprehensive policy in order to cover the Natural Calamity. The Surveyor is an Approved Independent Surveyor appointed by IRDAI who is well versed to carry out the work with competence, objectivity and professional integrity by strictly adhering to the code of conduct stipulated under the law and Regulations. The 3rd opposite party in their Exhibit B6 has clearly mentioned that when the Surveyor himself inspected the vehicle on 20/12/2016 and observed that no evidence of water entry into the engine and found the engine in order. Further he has also stated in their exhibit to the 2nd opposite party that if necessary dismantle of the heater plugs and injectors are required they can do so, thus the above exhibit reveals that the Surveyor had approved the removal of injectors and glow plugs for smooth running of the vehicle. Moreover, the surveyor had clearly mentioned in Ex B7 to expedite the repair work and update time to time for the stage inspection. Ex B9 is the Motor Final Survey (Status) Report dated 03/05/2017 filed by Surveyor as the Insurer Liability was to pay Rs. 97,500/- for the Insured derived Vehicle. Hence it is observed that the 3rd opposite party have acted in a bonafide manner and they cannot be held liable for deficiency of service and no relief can be claimed against them.
Point No.2.
43. As already discussed in Point No.1, elaborately, this commission perceives that the complainant is not entitled for any relief as prayed in the complaint. Therefore the complaint is dismissed with no cost.
In the result, complaint is dismissed as not proved with no cost.
Order typed by Member II, Corrected by Steno and Pronounced by us in the Open Commission on this the 28th day of February 2023.
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
Complainant Side Documents:-
S.No. | Date | Description | Remarks |
Ex-A1 | 22/02/2013 | R.C | Xerox |
Ex-A2 | 05/02/2016 | Insurance Policy Certificate | Xerox |
Ex-A3 | 22/12/2016 | Email to the 3rd Opposite Party | Printed copy |
Ex-A4 | 26/12/2016 | Email from 2nd opposite party. | Printed copy |
Ex-A5 | 26/12/2016 | 1st Level Estimation | Printed copy |
Ex-A6 | 17/01/2017 | Email copy by the complainant | Printed copy |
Ex-A7 | 20/01/2017 | Email sent by 1st opposite party | Printed copy |
Ex-A8 | 17/02/2017 | Email sent by complainant to the 1st opposite party | Printed copy |
Ex-A9 | 17/02/2017 | Email sent by the 2nd opposite party to the complainant | Printed copy |
Ex-A10 | 18/02/2017 | Email sent by the 1st opposite party to the complainant | Printed copy |
Ex-A11 | 27/02/2017 | Estimation | Printed copy |
Ex-A12 | 07/03/2017 | Email sent by the complainant to the 2nd opposite party | Printed copy |
Ex-A13 | 20/03/2017 | Email sent by the complainant to the 1st opposite party | Printed copy |
Ex-A14 | 21/03/2017 | Email sent by the 1st opposite party to the complainant | Printed copy |
Ex-A15 | 26/06/2017 | Email by 3rd opposite party to the 2nd opposite party | Printed copy |
1st Opposite Parties Side Documents:- NIL
2ND Opposite Party side Document:-
S,No. | Date | Description | Remarks |
Ex-B1 | 27/12/2017 | Email by 2nd opposite party to the 3rd opposite party along with Estimates | Printed copy |
Ex-B2 | 27/02/2017 &28/03/2017 | Estimation of 2nd opposite party | Printed copy. |
3rd Opposite Party Side Documents:-
S.No. | Date | Description | Remarks |
Ex-B3 | 27/12/2016 | Mail Sent by Surveyor to 2nd opposite Party to clean/flush the components | Printed copy |
Ex-B4 | 20/12/2016 | Estimation given by the 2nd opposite party for Rs.4,57,858/- | Printed copy |
Ex-B5 | 04/01/2017 | Mail sent by 2nd opposite party to surveyor regarding jamming of 4 injectors and 1 glow plug | Printed copy |
Ex-B6 | 17/01/2017 | Mail sent by the complainant to 2nd opposite party regarding repair work | Printed copy |
Ex-B7 | 25/01/2017 | Mail sent by Surveyor to 2nd opposite party advising to expedite the repair works | Printed copy |
Ex-B8 | 24/04/2017 | Mail sent to 2nd opposite party high lighting that no progress in repair works and to call for stage inspection from time to time | Printed copy |
Ex-B9 | 03/05/2017 | Survey Report | Printed copy |
Ex-B10 | 26/06/2017 | Mail sent by surveyor to 2nd opposite party to remind them to expedite the repair work | Printed copy |
Complainant side witness:-
Mr. S. Arun Kumar (Complainant)
1st Opposite Party side witness:-
Mr. Hitesh Jain (Head Legal & Company Secretary)
2nd Opposite Party side witness:-
Mr. C. Madhu (Customer Relation Manager)
3rd Opposite Party side Witness:-
Mr. B.A. Nelson Babu (Regional Manager)
N. BALU V.LAVANYA V.RAMARAJ
MEMBER I MEMBER II PRESIDENT
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