Punjab

Faridkot

CC/15/82

Vasdev Garg - Complainant(s)

Versus

Pankaj Motor Ltd. - Opp.Party(s)

Ashu Mittal

13 Jan 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :     82

Date of Institution: 25.06.2015

Date of Decision :  13.01.2016

 

 

Vasdev Garg s/o Baij Nath Garg, c/o Ambay Trading Co. Mall Godown Road, Kotkapura, Tehsil Kotkapura, District Faridkot. (Punjab).   

                                                                                      ...Complainant

Versus

1. Pankaj Motors, Kotkapura-Faridkot-Talwandi Bhai Bye Pass, Near Sandhu Palace, Faridkot through its Proprietor.

2. Maruit Suzuki India Ltd, Palam Gurgaon Road, Gurgaon-122015 through its MD.

3. Sandhu Automobiles Pvt Ltd, Link Road, Dholewal Chowk, Ludhiana through its Proprietor.

4. ICICI Lombard General Insurance Co. Ltd, ICICI Lombard House 414, Veer Savarkar Marg, Near Sidhi Vinayak Temple, Prabhadevi, Mumbai-400025.

                                                        ....OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P L Singla, Member.

 

Present: Sh Ashu Mittal, Ld Counsel for complainant,

              Sh Atul Gupta, Ld Counsel for OP-1,

              Sh Vipin Tayal, Ld Counsel for OP-2,

              Sh Neeraj Maheshwary, Ld Counsel for OP-4,

              OP-3 Exparte.

(Ajit Aggarwal, President)

                                            Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund Rs 1,407/- with interest, to replace the rear tyres of vehicle and for further directing OPs to pay Rs 20,000/- as damages for deficiency in service and harassment besides litigation expenses.

2                                    Briefly stated, the case of the complainant is that complainant purchased a car Maruti Wagon R from OP-1 and OP-1 and 2 gave warrantee for two years against any defect and OP-1 got insured his said vehicle from OP-4. Insurance was valid from 16.09.2013 to 15.09.2014 and OP-4 issued only cover note for insurance. At the time of insurance, OP-1 and 4 assured complainant that if his vehicle meets with any accident, its damaged parts would be repaired/replaced without any payment, but complainant would have to pay Rs 1000/-only under compulsory deductible clause. After expiry of insurance, complainant again got insured his vehicle from OP-4 through OP-1 and insurance was valid from 16.09.2014 to 15.09.2015. Assurance regarding repair and replacement of parts was again given to complainant at the time of renewal of insurance. In March, 2015 car of complainant met with an accident and its front and side mirrors were damaged. Complainant immediately informed about it to OP-1, who informed complainant that these are not available with them and advised him to contact OP-3. Complainant contacted OP-3 and son of complainant left the vehicle with OP-3, who asked him to visit after a week and thereafter, OP-3 informed OP-4 for inspecting the said car. It is contended that rear tyre of conductor side was also inflated and son of complainant made request to OP-3 to replace the same as it was under warrantee period. After a week, when son of complainant visited Op-3, it demanded Rs 2407/-from his son and even refused to deliver the said car to him without paying Rs 2407/-. It was requested to OP-3 that complainant had to pay only Rs 1000/-, but OP-3 did not budge from its stand and under compulsion, his son paid Rs 2407/-to OP-3. It is further contended that rear tyre of the said car was not replaced or repaired by OP-3. Complainant also served a legal notice dated 7.04.2014 to OPs, but all in vain. All this amounts to deficiency in service and has caused financial loss, harassment and mental tension to him for which he has prayed for directing the OPs to pay Rs 20,000/- as compensation alongwith litigation expenses incurred by him besides the main relief. Hence, the complaint.

3                                    The counsel for complainant was heard with regard to admission of the complaint and vide order dated 29.06.2015 complaint was admitted and notice was ordered to be issued to the opposite party.

4                                     Despite availing many opportunities, Op-1 did not file written statement and therefore, vide order dt 1.10.2015, defence of OP-1 struck off. OP-2 filed reply taking preliminary objections that present complaint is without any cause of action as being manufacturer of vehicle, liability of OP-2 is limited to provide warranty benefits as per clause 3 of warrantee policy and answering OP has fulfilled its obligations under warrantee as per terms and conditions of warrantee. It is asserted that there is no deficiency in service on the part of answering OP and complaint is bad in the eyes of law on ground of misjoinder of parties. It is further averred that complainant has wrongly dragged OP-2 in the array of OPs as OP-2 has no role in present dispute of complainant. However, on merits, OP-2 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of answering OP. It is asserted that Op-2 sells its vehicles only to its dealers exclusively under a contract of sales of goods act and not to individuals. It is averred that said vehicle met with an accident and complainant took it to OP-1 for carrying out accidental repairs. It is further averred that said vehicle of complainant met with an accident due to negligence of complainant. it is further averred that complainant entered into an independent contract with OP-1 to carry out accidental repairs to which OP-2 is not privy as Op-2 neither received any amount for carrying out repairs nor carried out any repairs to the vehicle and OP has no role in the present matter. It is contended that they have been wrongly dragged in the present complaint. As per Clause 4 (2) of Warranty Policy, the items of wear and tear are specifically excluded from the warranty policy and hence, complainant cannot claim replacement of tyre under warranty. It is asserted that as per clause 4 (4), the warranty shall not apply to any repairs or replacement required as a result of accidents or collision. Moreover, under Section 14(1) (d)of C P Act, compensation can be awarded to complainant for any loss/injury suffered due to negligence of answering OP, but complainant has failed to place on record any material in order to substantiate his claim and has no right to invoke the jurisdiction of this Forum. All the other allegations and allegations regarding relief sought are denied and it is reiterated that there is no deficiency in service on the part of Op-2.

5                                   Reply by  OP-4  also filed with objections that present complaint involves intricate questions of law and facts requiring voluminous documents and evidence for determination which is not possible in summary procedure under Consumer Protection act and appropriate remedy for it lies only in Civil Court. Moreover, complainant has concealed the material facts and is therefore,  not  entitled  to any  relief.  It is  averred  that    OP-4     has already paid Rs 5,997/-after deduction of TDS of Rs 118/- i.e Rs 5879/- to OP-3 by NEFT transfer by way of cheque no. 203783 dt 25.03.2015 on  the  basis  of  loss  assessed   in   the   case        and   no amount is due  or  payable  and  liability  if any  is  of  only  OP-1.   It  is averred that complainant  has  no  locus  standi  to  file  the       present  complaint  and complainant has no cause of action against OP-4. Complaint filed by complainant is not maintainable in this Forum as this Forum has no jurisdiction to file the present complaint and it is liable to be dismissed. However, on merits, it is asserted that on receipt of intimation regarding accident, the OP-4 assessed the loss to the tune of Rs 5,997/-after applying depreciation and other provisions as per terms and conditions of policy and IMT and paid Rs 5997/-directly to OP-3 after deducting Rs 118/-as TDS. It is denied that answering OP demanded Rs 2407/-from complainant as only Rs 2000/-were deducted on account of compulsory excess. There is no deficiency in service on the part of answering OP and all the other allegations levelled by complainant are refuted with a prayer to dismiss the complaint with costs.

6                                Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, affidavit of Saurabh Garg as Ex C-10 and documents Ex C-2 to C-9 and then, closed his evidence.

7                              In order to rebut the evidence of the complainant, Ld Counsel for OP-4 tendered in evidence affidavit of Meenu Sharma Manager as Ex OP-4/1 and documents Ex Op-4/2 to 5. No evidence of OP-2 was produced despite many opportunities granted to them and therefore, vide order dt 18.12.2015, evidence of OP-2 was closed by order of this Forum.

8                                     The Ld Counsel for complainant argued that complainant purchased Maruti Wagon R car from OP-1 in the month of September 2013, which was manufactured by OP-2. At the time of sale of car, they gave warranty of two years against any defect in the car. The said car was insured with OP-4 through OP-1 for the period from 16.09.2013 to 15.09.2014. OP-1 and 4 told complainant that if the car meets with any accident, during the insurance period, the complainant will have to pay only Rs 1000/- under Compulsory Deductible Clause and entire repair and replacement of the damaged parts was to be carried out without any other payment. After expiry of insurance policy, complainant again renewed the insurance policy through OP-1, which was valid from 16.09.2014 to 15.09.2015 on the same terms and conditions. The OPs only sent insurance certificate to the complainant and did not send any other document. The copy of insurance certificate is Ex C-3.  In the month of March 2015, the said car met with an accident and got damaged in that accident. The complainant immediately approached OP-1 for repair of it. OP-1 told that the damaged parts are not available with them and recommended them to go to OP-3 for repair. On the advice of OP-1, complainant contacted with OP-3, who assured to repair the vehicle and told to visit after one week for delivery of vehicle after repair. OP-3 informed OP-4 regarding the accident and OP-4 inspected the vehicle. In the accident, rear tyres of the vehicle also damaged and complainant requested to replace the same as these were also under the warranty period. After a week, complainant visited OP-3 for delivery of vehicle, where OP-3 and 4 demanded Rs 2,407/-from him as repair charges. He told OP-3 that as per insurance policy, complainant have to pay only Rs 1000/- under Compulsory Deductible Clause and nothing else can be charged from him. He also contacted OP-1 and 4, but they paid no heed to his request and refused to give delivery of car without payment of Rs 2,407/- and under compulsion, complainant had paid Rs 2407/-to OPs. Even they did not replace the defective tyre of the car. Copy of bill and receipt is Ex C-2. As per insurance policy, OPs cannot charge more than Rs 1000/-in any way for the repair of the car of complainant. They illegally charged Rs 2407/-from complainant. Complainant served a notice to OPs, but they did not respond to the notice. Copy of the notice is Ex C-4. All these acts of OPs amount to deficiency in service and trade mal practice on their part. Due to these acts of OPs, complainant has suffered financial loss, harassment and mental agony. The complainant is entitled for the refund of Rs1407/-, which are charged more by the OPs from complainant alongwith interest and compensation. Ld counsel for complainant prayed that the present complaint may be allowed with costs to OPs.

9                                     To controvert the arguments of complainant, ld counsel for OP-2 argued that complainant has filed the present complaint without any cause of action against them. They have fulfilled their obligation under warranty as per terms and conditions of the warranty. As per terms and conditions of warranty, OP-2 being manufacturer of the vehicles is only liable for manufacturing defects in the vehicle and not for any damages caused in accident. As per their own version, the vehicle got damaged in accident and not due to any manufacturing defect, so, there is no deficiency in service on the part of OP-2. They are unnecessarily impleaded as party to this complaint. Even in the complaint, complainant does not claim any relief against the OP-2. There is only dispute regarding insurance claim of the said vehicle. There is no privity of contract of insurance between complainant and OP-2. Only OP-4 is liable to pay the insurance claim of the vehicle in question, who insured the said vehicle. So, the present complaint may be dismissed against OP-2.

10                                       The Ld Counsel for OP-4 argued that the complainant has not come to this Forum with clean hands and has concealed the material facts and therefore, he is not entitled for any relief. OP-4 has already paid Rs 5,997/-after deduction of TDS to OP-3 on 25.03.2015 for the loss assessed to the vehicle of complainant and no other amount is due or payable regarding it. The assessment sheet regarding payment of claim amount of vehicle in question is Ex OP-4/2. The complainant has no locus standi and cause of action to file the present complaint. It is correct that the car of the complainant was insured with OP-4 subject to terms and conditions. Depreciation was to be charged as per terms and conditions of the policy. On receipt of intimation regarding claim, the OP-4 assessed the loss to the vehicle to the tune of Rs 5997/- after depreciation and other provisions as per terms and conditions of the policy and they paid this amount directly to OP-3. Copy of the claim form and Survey Report is Ex OP-4/3 and OP-4/5 respectively. It is wrong that OP-4 demanded Rs 2407/-from complainant. They deducted only Rs 2000/- on account of compulsory deductable clause as per terms and conditions of the policy and after applying the compulsory deductable clause they paid the entire claim regarding vehicle and now nothing is due towards them and there is no deficiency in service and trade mal practice on their part. The complainant has not suffered any loss due to it and present complaint may be dismissed.

11                We have heard the ld counsel for parties and have also gone through affidavits, evidence and record placed on file.

12                  The case of the complainant is that his car was insured with OP-4 and as per insurance policy in case the car meets with any accident and got damaged, in that case, the complainant have to pay only Rs 1000/- under Compulsory Deductable Clause and the car was repaired and the damaged parts would be replaced without any further payment and in any case, the complainant has to pay only Rs 1000/-. His car met with an accident in March, 2015 and he got it repaired from OP-3 and duly intimated regarding it to OP-4, but at the time of delivery of car, they charged Rs 2407/- from him instead of Rs 1000/- under Compulsory Deductable Clause, as per insurance policy. They charged Rs 1407/- more from him. In reply OP-4 admitted that car of the complainant was insured with them and met with an accident and repaired by OP-3. They admitted that the complainant gave them information regarding it and they assessed the loss to the vehicle. They argued that they have paid the entire bill of repair of vehicle of complainant to OP-3 directly after deducting compulsory deductable charges, which are Rs 2000/-.  They have argued that as per Compulsory Deductable Clause, they were entitled to deduct Rs 2000/-as per terms and conditions of the Policy.

13                                             The complainant produced copy of certificate of insurance as Ex C-3. OP-4 has produced the copy of the same as Ex OP-4/4. From the perusal of the certificate of insurance, it is clear that as per insurance certificate, the compulsory deductable charges amount is only Rs 1000/- and not Rs 2000/- as pleaded by OP-4. So as per insurance policy, the OP-4 can charge only Rs 1000/- from the complainant as Compulsory Deductable charges and not more than it. Therefore, in these circumstances, the OP-4 wrongly and illegally charged Rs 2407/- from complainant as Compulsory Deductable Charges, which amounts to deficiency in service and trade mal practice on their part. The complainant has fully succeeded in proving his case. He is entitled for the refund of Rs 1407/-, which are more paid by him. Hence, complaint in hand is hereby allowed. OP-4 is directed to refund Rs 1407/-alongwith interest at the rate of 9% per anum from 12.03.2015 i.e the date of payment till final realisation to complainant. OP-4 is further directed to pay Rs 3000/-as compensation for harassment and mental agony suffered by complainant and Rs 2000/-as litigation expenses to the complainant. Compliance of this order be made within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost as per rules. File be consigned to record room.

Announced in Open Forum

Dated : 13.01.2016

 

                     Member            Member                  President

                      (P Singla)          (Parampal Kaur)     (Ajit Aggarwal)