1.                Present complaint under Section 12 of the Consumer Protection Act, 1986, amended upto date (hereinafter referred as to “Act”) has been filed by Sh.Amrik Singh(hereinafter in short to be referred as ‘Complainant’) against Padam Cars Private Limited, G.T.Road, Dhandari Kalan, Ludhiana, through its Managing Director and others (hereinafter in short to be referred as ‘OPs’) directing them to pay Rs.1,50,000/- as remaining claimed amount of the accidental car or in the alternative, the accidential vehicle be handed over to the complainant without charging any money besides Rs.1,10,000/- as compensation and litigation costs to the complainant.

2.                 In brief, the case of the complainant is that the complainant purchased a Chevrolet Optra Magnum car from OP1 and the registration number of the car was PB-48-D-8484 and the said car was insured with OP2 vide policy No.336914 having commenced on 21.10.2012 for a period of one year. In the month of July, 2013, the aforesaid vehicle of the complainant met with an accident and OP2 was informed about the same. The representative of OP2 came to the spot and after inspecting the same, they took the vehicle to the premises of OP1 and thereafter, proper survey was done at the spot by officials of OP2, who told the complainant that the car of the complainant was totally damaged and it could not be repaired. The office of OP2 passed a claim of Rs.6,50,000/- due to total loss of the car, out of which, Rs.5 lakh were paid to the complainant through cheque which was encashed. Thereafter, the complainant had been making requests for the payment of balance amount of Rs.1,50,000/-, at which, the OP2 made an offer to the complainant that if the accidental vehicle is given to the complainant, he will have to relinquish his claim of RS.1,50,000/- to which, the complainant agred. Thereafter, the complainant alongwith officials of OP2 went to premises of the OP1, where the officials of OP2 told the officials of OP1 to hand over the damaged vehicle to the complainant as in the condition it is lying there, to which, they agreed and asked the complainant to come on 25.10.2013. On 25.10.2013, the complainant reached premises of OP1, who handed over the demand letter bearing No. Nil dated 25.10.2013 asking the complainant to deposit Rs.500/- per day as parking charges of the accidental vehicle from 13.7.2013 up till date and 5% of the estimated cost of the vehicle of Rs.9,67,000/- as professional fee. The complainant was astonished to receive the said demand from the OP1 and he contacted the officials of OP2 who had already obtained his consent for handing over the possession of the accidental vehicle to the complainant and they refused to interfere in the matter. The complainant demanded Rs.1,50,000/- from them but they flatly refused to give the said amount. Both the Ops are hand in glove with each other and fraudulently relinquishing his right over Rs.1,50,000/- in lieu of the accidental vehicle and also handover the letter demanding huge money which is absolutely illegal and against the principles of natural justice. The complainant sent a registered legal notice dated 11.12.2013 to OP1 but no reply has been sent by the OP1. Such act and conduct OPs is claimed to be deficiency in service on the part of Ops by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, Ops were duly served and appeared through their respective counsels and filed their separate written replies.

4.                OP1 filed the written reply, in which, it has been submitted in the preliminary objections that the present complaint is barred under Section 26 of the Consumer Protection Act. The present complaint is not maintainable since the complainant is not a consumer as defined under the Consumer Protection Act as till date, the complainant has not paid even a single penny to the answering OP for hiring any services, rather, as per the allegations and averments, the present complaint is not the case for hiring of service for consideration qua answering OP but is a case of breach of oral contract of payment of estimate of professional fee/estimate, charges and parking charges. The complaint as such, is not maintainable and the Hon’ble Forum has got no jurisdiction to adjudicate the matter qua answering OP. The present complaint is not maintainable since the complainant had brought his car in question in the accidental condition on 13.7.2013 in the workshop of answering OP and had called upon the answering OP to submit the estimate of repair after opening the entire car as he had to lodge the claim with OP2 the insurer of the car. On the request of the complainant, the entire accidental car was opened and detailed estimate of loss bearing No.2013000214 dated 13.7.2013 was submitted showing the estimate of repair to be Rs.9,67,635.05P. The complainant till date, has neither got his accidental car repaired nor paid the expenses for submitting the estimate of repairs to the complainant. As per the verbal communication made by the complainant, the insurance company OP2 has declared the vehicle as total loss/net of salvage. The accidental car in question was not got repaired by the complainant till date and even he has not lifted the car. The accidental car is occupying the large space of the workshop of answering OP and as such, the complainant was bound to pay to the answering OP, the charges @5% of the estimate cost of RS.6,97,000/- as professional fee/estimate charges and RS.500/- per day as parking charges from the complainant w.e.f.13.7.2013 till the lifting of the accidental car from the workshop of the answering OP. The complainant was informed about the said fact at the time of bringing the said car in the accidental condition to the workshop on 13.7.2013 and also vide letter dated 25.10.2013. The complainant was called upon to lift the accidental car and pay the aforesaid charges as per company’s policy, procedure and practice. The answering OP has been charging the said amount from other consumers also and the demand of payment so raised by the answering OP from the complainant before lifting of his accidental car is legal and valid. Further, the present complaint is not maintainable since there are allegations and averments of fraud, cheating and breach of trust which are specifically denied by the answering OP and to prove such allegations, only Civil Court of competent authority is the jurisdiction who can try and decide the present complaint. The complainant is estopped by his own act and conduct from filing the present complaint as the complainant is not coming to this Hon’ble Forum with clean hands and had suppressed the material facts. On merits, the facts regarding purchase of the car in question as alleged, lying the vehicle in question in damaged condition in the premises of the answering OP, estimate of repair and raising of demand of professional charges and parking charges as alleged are not denied. It is specifically submitted that the complainant is bound to pay the professional fee for preparing the estimate charges and parking charges and the demand made to that effect by the answering OP is enforceable in the eyes of law being legal and valid. Otherwise, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service on the part of answering OP and all other allegations of the complainant against the answering OP being wrong and incorrect, answering OP prayed for dismissal of the complaint with costs.

5.                OP2 filed the written reply, in which, it has been submitted in the preliminary objections that the present application is not maintainable for want of cause of action and as such, the complaint is liable to be dismissed on this score only. On receipt of intimation, the claim was registered, entertained and processed and the answering OP immediately deputed his surveyor to survey and assess the loss of the car bearing NO.PB-48-D-4848 and to submit the detailed report. The said surveyor immediately surveyed and assessed the loss. On receipt of survey report, the officials of answering OP applied their mind in view of the policy terms and conditions and admittedly settled and paid the claim amount to the complainant in full and final satisfaction of the claim. The complainant also signed the claim discharge cum satisfaction voucher. So, the answering OP had already paid the claim in full and final to the complainant. On merits, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complainant against the answering OP being wrong and incorrect and made prayer of the dismissal of the complaint with costs.

6.                Learned counsel for the complainant in order to support the case of the complainant, tendered into evidence by placing on record affidavit of complainant as Ex.CA, in which, he has reiterated all the allegations made by him in the complaint. Further, learned counsel for the complainant has relied upon documents Ex.C1 & Ex.C2.

7.                On the contrary, learned counsel for the OP1 in order to rebut the evidence of complainant, adduced evidence by placing on record affidavit Ex.RA of Sh.Gagan Brar, its General Manager, in which, he has reiterated all the contents of reply filed by OP1 and refuted the case of the complainant. Further, learned counsel for the OP1 has proved on record the document Ex.R1 to Ex.R3.

8.                On the contrary, learned counsel for the OP2 in order to rebut the evidence of complainant, adduced evidence by placing on record affidavits Ex.RA2  of Sh.Amit Chawla, its Deputy Manager and Ex.RB2 of Sh.Sampreet Pahuja, its Assistant Manager(Legal Claims), in which, they have reiterated all the contents of reply filed by OP2 and refuted the case of the complainant. Further, learned counsel for the OP2 has proved on record the document Ex.R1/2 to Ex.R11/2.

9.                We have heard the learned counsel for both the parties.

10.              Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the averments made by the complainant in his complaint and rebutted the defence plea taken by the Ops and further, it is submitted that the Ops are hand in glove with each other and want to defeat the claim and grab the car from the complainant by immediately raising demand of money from the complainant when the amount of Rs.4,98,000/- was given to complainant. Even, if the OP1 is entitled to any amount, it was the liability of the OP2. Demanding approximately Rs.1,50,000/- by OP1 in letter dated 25.10.2013 shows their malafide intention. The complainant is entitled to the delivery of the car without any payment alongwith relief as claimed in the complaint.

11.              On the other hand, learned counsel for the OP1 has filed the written arguments, in which, he has reiterated all the contents of written reply filed by the OP1 and it has been specifically submitted under the head of “Points of Arguments” that the complainant till date, has not paid any amount and as such, had not hired the service for consideration and as such, is not a consumer as defined under the Consumer Protection Act. The complainant had brought his car to the workshop of OP1 for opening the accidental car for assessment of loss and the employees of the OP1 had opened the entire car and prepared the estimate for RS.9,67,000/- and has called upon the complainant to submit 5% by way of professional charges for preparing the estimate of his accidental car. The complainant till date, has not paid the said amount instead has filed the present complaint on false and frivolous grounds. The accidental car is occupying the large space of the workshop of OP1 and as per procedure, practice and the policy of the OP1, they are charging Rs.500/- per day by way of parking charges. The complainant was called upon to pay the said amount but he has failed to pay the same. Learned counsel for the OP1 has further made reference of all the relevant documents produced by the OP1 in the evidence. Further, learned counsel for the OP1 has relied upon judgments titled as S.C.Thapliyal vs. Sonu Motors-I(2005)CPJ-255(Uttaranchal State Commission);  Indian Phytochem vs. S.K.Banerjee and others-III(2004)CPJ-227(Uttaranchal State Commission); Best Food international Vs. National Insurance Co.Ltd.-IV(2009)CPJ-77(N.C.) and R.D.Papers Ltd. vs. New India Assurance Co.Ltd.-I(2004)CPJ-101(N.C.).

12.              On the other hand, learned counsel for the OP2 has contended that vehicle of the complainant was insured with OP2 and the same met with an accident and the claim was lodged, which was registered and processed and they had appointed the surveyor and loss assessor to assess the loss, who had assessed the loss on total loss basis to the tune of RS.6,50,000/- which was paid to the complainant and the complainant had agreed to retain the salvage which was assessed to the tune of Rs.1,50,000/- and total claim was settled at Rs.6,50,000/- and the same was paid to the complainant in full and final with his consent, to which, the complainant has not denied. As such, there is no deficiency in service on the part of OP2.

13.              We have considered gone through the written arguments filed by the complainant as well as learned counsel for the OP1 and have considered the rival contention of learned counsel for the OP2 and have also gone through the judgments filed by the learned counsel for the OP1 and have also perused the record on the file very carefully.

14.              Perusal of the record reveals that it is an undisputed fact between the parties that the complainant is the owner of the vehicle in question which was insured with the OP2 vide policy NO.336914. It is further an undisputed fact on record that vehicle of the complainant met with an accident in the month of July, 2013 and the same was taken to the premises of OP1. Further, it is a proved fact that due intimation was given to the OP2 and the claim was lodged which was registered and processed and the surveyor was appointed who inspected the vehicle thoroughly and recommended for reimbursement of the loss on total loss basis. OP2 had passed the claim of Rs.6,50,000/-, out of which, Rs.5 lakh was paid to the complainant through cheque. The complainant had relinquished the claim for an amount of Rs.1,50,000/- and agreed to purchase the salvage of the vehicle and issued the consent letter and the officials of OP2 told the officials of OP1 to handover the vehicle to the complainant.

11.              As per the allegations of the complainant that on 25.10.2013, when the complainant had reached the premises of OP1 for delivery of the vehicle, then OP1 handed over a demand letter dated 25.10.2013 demanding Rs.500/- per day as parking charges of the accidental vehicle from 13.7.2013 uptill date and 5% of the estimated cost of the vehicle of Rs.9,67,000/- as professional fee. Further, there are allegations that the Ops fraudulently took the consent of the complainant relinquishing his right over RS.1,50,000/- in lieu of the accidental vehicle.

12.              Perusal of the evidence of the complainant reveals that the complainant has furnished his affidavit in evidence as Ex.CA, in which, he has deposed in terms of the complaint filed by him and further, he has placed on record documents Ex.C1 copy of letter dated 25.10.2013 issued by the OP1, vide which, demand of parking charges @500/- per day and 5% estimate cost was raised from the complainant as per their company policy; Ex.C2 copy of legal notice sent to the OP1 and Ex.C3 copy of the Proposal cum cover note for package policy qua the vehicle in question.

13.              On the other hand, perusal of the evidence of OP1 reveals that the OP1 has furnished affidavit Ex.RA of Sh.Gagan Brar and further, documents Ex.R1 copy of letter dated 25.10.2013 issued by the OP1, vide which, demand of parking charges @500/- per day and 5% estimate cost was raised from the complainant as per their company policy, Ex.R2 copy of estimate of the repair for the vehicle of the complainant and Ex.R3 copy of retail bill qua the estimated charges to the tune of Rs.20,000/-. On the other side, perusal of the evidence of OP2 reveals that OP2 furnished the affidavits Ex.RA2 of Sh.Amit Chawla, its Deputy Manager and Ex.RB2 of Sh.Sampreet Pahuja, its Assistant Manager(Legal Claims), in which, they deposed in terms of the written reply filed by the OP2 and further, OP2 furnished documents Ex.R2/2 to Ex.R11/2.

11.              Perusal of the evidence of OP2 reveals that it is proved fact that the complainant had already settled the claim with OP2 at Rs.6,50,000/-,out of which, Rs.5 lakh was received by him through cheque and further, he agreed to purchase the accidental car at Rs.1,50,000/- and has given his consent. So, there does not appear to be any deficiency in service on the part of the OP2 as the complainant had already settled and received the full amount of his claim. So, present complaint is liable to be dismissed against OP2.

12.              Secondly, the complainant has levelled the allegations against OP1 regarding the demand of 5% of the estimated cost of the vehicle of Rs.9,67,000/- as professional fee and Rs.500/- per day as parking charges of the accidental vehicle from 13.7.2013 which the complainant is not liable to pay and sought relief as claimed in the complaint by filing the present complaint. On the other hand, there is specific plea of OP1 that there is a policy of the company that they charged Rs.500/- per day when the accidental vehicle parked in the premises of the OP1 for assessing the accidental loss. However, Op1 has not placed on record any such document, from which, it could be presumed that this is the policy of OP1 qua charging of Rs.500/- per day as parking charges. Moreover, OP1 has taken the plea that there is an oral contract between the parties but OP1 has not placed on record any such documents that the complainant ever agreed to pay any parking charges @500 per day and also agreed to pay 5% on the estimated costs nor OP1 has placed on record any such rules or terms and conditions that the OP1 can charge the amount as such. However, keeping in view the facts and circumstances that salvage of the vehicle was sold by the insurance company to the complainant only for a sum of Rs.1,50,000/-. So, it appears that a sum of Rs.15,000/- shall be sufficient to meet the expenses etc., of OP1 for parking charges.

21.            In view of the above discussion, we hereby partly allow this complaint and direct the OP1 to handover the vehicle in question to the complainant subject to deposit of Rs.15,000/- by the complainant on account of parking charges etc within 7 days from the date of receipt of copy of this order. Complaint against OP2 is dismissed. Keeping in view the facts and circumstances of the present case, no order as to compensation and litigation costs is passed. Copy of the order be made available to the parties free of costs. File be completed and consigned to record room.

                             (Sat Paul Garg)              (R.L.Ahuja)

                               Member                       President.   

Announced in Open Forum

Dated:23.12.2014

Gurpreet Sharma.

Amrik Singh vs. M/s Padam Cars Pvt. Ltd.

23.12.2014

Present:       Sh.Shekhar Gupta, Adv. for complainant.

                   Sh.Rajeev Abhi, Adv. for OP1.

                   Sh.Gurjeet Singh Kalyan, Adv. for OP2.

                    Written arguments on behalf of OP2 not filed.  Oral arguments have been heard. Vide our separate detailed order of even date, complaint is partly allowed and consequently, application filed by the complainant on 28.11.2014 stand also disposed off. File be consigned to record room after due completion.

                                 (Sat Paul Garg)          (R.L. Ahuja)

                                     Member                           President

Announced in Open Forum

on 23/12/2014