Tamil Nadu

South Chennai

cc24/2008

pratap reddy - Complainant(s)

Versus

popular vehicles & 2 others - Opp.Party(s)

p j jayashankar

13 Oct 2021

ORDER

                                                                                Date of Complaint Filed    : 18.01.2008

                                                                                Remanded back and filed: 27.09.2019

                                                                                     Date of Reservation         : 11.10.2021

                                                                                     Date of Order                  : 13.10.2021

                                                                                                       

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH)

 

Present:

 

                    Thiru. R.V.R. Deenadayalan, B.A., B.L.                                : President

                 Thiru. T. Vinodh Kumar, B.A., B.L.                                          : Member

 

CONSUMER COMPLAINT No.24/2008

 

WEDNESDAY, THE 13^TH DAY OF OCTOBER 2021

                                

Mrs. Praathima Reddy,

W/o. Late P. Sasidhar Reddy,

Old No.21, New No.35,

II Lane, Mc Nichols Road,

Chetpet,

Chennai – 600 031.                                                                                    .. Complainant.                                                                ..Versus..

 

1. Popular Vehicles & Services Ltd., (1410-1),

Represented by its Director,

No.11, Arunachalam Road,

Saligramam,

Chennai – 600 093.

 

2. Maruthi Udyog Ltd.,

Represented by its Director,

11^th Floor, Jeevan Prakash Building,

No.25, Katurba Gandhi Marg,

New Delhi – 110 001.                                         

 

3. Royal Sundaram Alliance Insurance Company Ltd.,

Represented by its Director,

Sundaram Towers,

Nos.45-46, Whites Road,

Chennai – 600 014.                                                                           ..  Opposite parties.

*******

                                                                                                          

Counsel for the complainant                       : M/s. P.J. Jayashankar

Counsel for the 1^st opposite party              : M/s. D.S. Rajasekaran & another

Counsel for the 2^nd opposite party             : M/s. S. Ramasubramaniam &  Associates

Counsel for the 3^rd opposite party              : M/s. M.B. Gopalan

 

 

            On perusal of records and after having heard the oral arguments of the the opposite parties 1 & 2 and having treated the written arguments of the complainant and 3rd  opposite party as their oral arguments, we delivered the following

ORDER

Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A., B.L.

            The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.5,00,000/- or to refund the cost price of the present brand new swift (DLX) diesel car and to pay a sum of Rs.6,00,000/- towards compensation for mental agony suffered by the complainant with cost.

            2. The complainant submitted his Proof Affidavit and written argument.   On the side of the complainant, documents Ex.A1 to Ex.A8 were marked.   Inspite of sufficient time is given, the 1^st opposite party has not submitted his proof affidavit for a long time and hence, evidence of the 1^st opposite party is closed on 11.02.2010.  The written arguments and on the side of the 1^st opposite party is filed.  The 2^nd opposite party has submitted his proof affidavit and no written arguments filed and on his side, documents Ex.B1 to Ex.B14 were marked. The 3^rd opposite party has submitted his proof affidavit and written arguments filed and on his side, documents Ex.B5 to Ex.B15 were marked.

                                                                                                                                                             

            3. The Consumer Complaint No.24/2008 was originally filed before this Commission on 18.01.2008 and an order was passed on 13.09.2011.   The opposite parties filed for appeal vide F.A. Nos.14/2012, No.112/2012 & No.134/2013 before the Hon’ble SCDRC, Chennai.  The Hon’ble SCDRC, Chennai passed an order dated:22.04.2019 and remanded the case records back for fresh disposal and again the Consumer Complaint No.24/2008 was restored in DCDRC, Chennai (South)’s file on 27.09.2019.

4. The averments of the complaint in brief are as follows:-

 

The complainant purchased a Maruti Swift Diesel Car bearing Registration No.TN.01-AH-3456 on 16.06.2007 and it was insured with the 3^rd opposite party (ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED)dated 21.06.2007.  But 27.07.2007 evening there was heavy down pour of rain, the car travelled in the road under the Chetpet bride at Chennai near Kusalambal Kalyana Mandapam and reached the complainant’s house with great struggle.  Thereafter the next day morning the car was not starting and therefore the complainant sought the help of the Maruti customer care mobile service crew of the 2^nd opposite party. The  crew of the 2^nd opposite party came and inspected the vehicle and informed that the self starter moter had failed and therefore toed the vehicle to their authorized service center i.e. the first opposite party.  But the 1^st opposite party has not repaired the vehicle evenafter repeated demanded made by the complainant.  On various grounds the car was not repaired till the filing of this complaint.   The 1^st opposite party informed that it needs instructions from the 2^nd oppostie party for warranty repair and approval from the 3^rd opposite party for proceeding with the repair.  The negligent act of the opposite parties the car was lying idle in the work shop of the 1^st opposite party.  The 3^rd opposite party has not shown any response in spite of the regular follow up and repeated reminders.  Due to the legharigic attitude of the 1^st and 2^nd opposite parties the complainant is not able to attend the works and the complainant very difficult to travel. The complainant caused a legal notice dated 27.11.2007 to all the opposite parties and demanded to pay damages a sum of Rs.6,00,000/- due to the deficiency of service.  But 1^st and 3^rd opposit party has not replied evenafter receipt of the notice, however the 2^nd opposite party directed the dealer to repair the car and give it to the complainant within the warrranty.  Hence this complaint is filed.

 

5. Written version of the 1^st opposit party in brief:-

 

It is admitted that the vehicle was entrusted through Maruti Customer care on a routine basis.  The vehicle was affected by flood on 27.07.2007 as reported by the Maruthi Customer Care and accordingly the same was towed by the 1^st opposite party on 28.07.2007.  The job card was opened on 30.07.2007 and on a trial basis the starter moter was replaced to start the engine of the complainant’s car since the vehicle did not start and on diogonisis it was confirmed by the opposite party that the water had entered into the engine and accordingly adviced the complainant to seek the help of the 3^rd opposite party insurance company. On receipt of the claim, the 3^rd opposite party had surveyed the vehicle through their surveyor on 01.09.2007and given approvel to dismantal the vehicle for further inspection.  Again the surveyor inspected the vehicle on 07.09.2007, 20.09.2007 and 25.09.2007. on all such surveys an approval was given for replacement of certain parts and on instructions of 3^rd opposite party, the same was replaced, but the vehicle did not start enen after replacement.  Further it was diognised due to lack of compression it is not started. Hence it is advised for replacement of engine due to the block caused by the floods. The duty enntrusted to the opposite party is to rectify the vehicle to the running condition which this opposite party can do provided either the complainant or the 3^rd opposite party agrees to bear the cost of the same.  Even on assumption it is to due to manufacture defect, the same can only be claimed from the 2^nd opposite party and the concerned dealer who sold the vehicle. Hence it is requested to dismiss the complaint as against this opposite party.

 

6. Written version of the 2^nd opposite party in brief :-

 

The 2^nd opposite party being the manufacturer of Maruti Suzuki vehicle stands warranty subject to terms and conditions of warranty.  Since the damage in vehicle has not covered under warranty, this opposite party be delited from the array of parties or the complaint be dismissed insofor as the opposite party is concerned. When the vehicle in question did not start, it was found that the same was not starting due to“Hydrostatic lock“  (as a result of water entering into the combustion chamber and lead to incompressibility there by damaging the engine leading to engine failure).   It is admitted by the complainant that the vehicle got submerged in flood water and the same got damaged due to complainant’s own negligence.  The complainant sought repair jobs under insurance on chargeable basis as the alleged defect is not covered under warranty.  The obligation of the opposite party is only to provide warranty service as per clause 3 of owners manual and service booklet and admittedly there is no manufacturing defect in the vehicle.  It is pertinent to submit that as per information provided by the 1^st opposite party the 3^rd opposite party has rejected the insurance claim as submitted by the complainant and the complainant ought to pay for repair jobs, which complainant is unwilling to make and hence the vehicle is lying unattended awaiting complainant’s approvel for repair jobs in the workshop of the 1^st opposite party. Hence request the opposite party to dismiss this complaint.

 

7. Written version of the 3^rd opposite party in brief:-

 

It is true that the complainant’s car was insured with this opposite party under the package policy for the period 21.06.2007 to 20.06.2008.  Admittedly the complainant’s vehicle suffered a break down on 27.07.2007 and was taken repairs by the 1^st opposite party.  If any claim under the policy was to be laid, immediate intimation of the loss/damage ought to have been given to this opposite party by the complainant or by the 1^st or 2^nd opposite parties.  This opposite party had no occasion to be aware of any occurence or the extent of damage.  However this opposite party was intimated of the vehicle being brought for repairs only on 01.09.2007 from the 1^st opposite party which was 36 days after the date of break down  and the complainant never intimated the claim. Immediately this opposite party had deputed its surveyor for verification.  At the time of inspection it was found that the engine assembly was found rusted.  Such extensive rusting was nothing but a deterioration of the vehicle by reason of being kept idle without repairs.  It was only an aggravation of the damage, if any originally suffer, due the alleged rain water. This opposite party submits that as per terms of the policy.

a) Immediate intimation of any loss or damage is required to be given to the insurer which is a curcial stipulation to enable the Insurer to ascertain the extent of damage actually attrubutable to the incident (Condition No.1)

b) In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautios being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are effected any extention of the damange or further damange to the vehicle shall be entirely at the insured’s own risk.(Condition No.4)

It is further submit that the claim was submitted by the complainant after a delay of 36 days and even then the answering opposite party appointed surveyor in the same day i.e. 01.09.2007 and the surveyor found that the engine assy was rusted and we had enquired about the rusting of the engine from the complainant and the complainant responded vide letter taed on 02.11.2007 that even though the vehicle was left for service on 04.08.2007 with the 1st opposite party and the same was unattended for considerable time period.  It is further submitted that the taking account of above said complainant’s vehicle has faced aggravation damage which resulted in the rusting of the vehile parts including the engine assy this opposite party conveyed the complainant vide letter dated 01.09.2007 that the damages to the engine assy and the internal parts as a result of the aggravaion damages are not admissible as per the condition No.4 of the policy.  This opposite party further informed the complainant that any liabbility of its own would be restricted to the overhauling of engine assy and replacement of gasket as per the terms and conditions of the policy issued to the complainant insured.  Though this opposite party is entitled to take a stand that there is no liability on account of such breach, it had however acted with utmost reasonableness and sense of cooperation in agreeing to pay labour charges towards overhauling of the engine assembly and replacement of certain essential spares such as piston rings, gaskets, lubricnants tec., such a stand was communicated soon after the first date of inspection on 01.09.2007 itself.  However as no repairs were effected and there has been further deterioration, this opposite party had no occasion to proceed further.  There was no possibility of any assessment of the loss since there was no dismantling or commencement of repairs. This opposite party submit that it cannot be held liable for the cost of the vehicle or for any other reliefs.  The complainant cannot stake any claim as against this opposite party for lapses or deficiencies alleged against the other oppostie parties.  Hence it is requested to dismiss this complaint.

8.The points for consideration are:-

1) Whether there is any deficiency in service on the part of the opposite parties?

2)Whether the complainant is entitled to get reliefs as claimed in the complaint?

3)To what relief, the complainant is entitled?

9. Point No.1:-

 

The complainant purchased a Maruti Swift Diesel Car on 16.06.20107 from the 2^nd opposite party as per Ex.A1. Ex.A3 is the copy of insurance policy issued by the 3^rd opposite party to the complainant on 21.06.2007.  Ex.A2 is the copy of certificatio of registration dated 12.07.2007.  After the complainant purchased her car within fifteen days from the date of registration it was repaired due to water entering into the combusstion chamber and lead to imcompressibility there by damaging the engine leading to engine failure and the same was technically called as HYDROSTATIC LOCK.  The above said defect is not manufacturing defect and thereby the 2^nd opposite party who is manufacturer of the vehicle is not liable for the claim made by the complainant.  The 1^st opposite party is only a service provider and he can repair the vehicle either on payment made by the complainnat or the insurance company. In this case both the complainant and the 3^rd opposite party have not pay the cost of repair charges to the 1^st opposite party which resulted no repair was done by the 1^st opposite party service station and thereby the complainant is not entitled to get any compensation against the 1^st oppostie party.

10. It is admitted fact that the vehicle was insured with the 3^rd opposite party.  While the insurance is in force the above said car was damaged due to heavy rain in driving and submerging the vehicle in flood water which called as HYDROSTATIC LOCK.  The 3^rd opposite party issued a carshield private car package policy to the complainant in which in the first section  it is mentioned that the company will indemnify the insured against loss or damage to the private car insured hereunderr and/or its accessories whilst thereon and also in the fifth column it is mentioned by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost.  In this case also due to heavy rain while driving the car submerged  in flood water.  Hence the 3^rd opposite party is liable to pay the damage of the car.  But the 3^rd opposite party submitted in his written argument, stated that if any claim under the policy was to be laid, immediate intimation of the loss/damage ought to have been given to the 3^rd opposite party by the complainant but the complainant has failed to so and intimated the same  36 days after the date of break down through the 1^st opposite party.  As per the terms of the policy  immediate intimation of any loss or damage is required to be given to the insurer which is a curcial stipulation to enable the Insurer to ascertain the extent of damage actually attrubutable to the incident and In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautios being taken to prevent further damages or loss and if the vehicle be driven before the necessary repairs are effected any extention of the damange or further damange to the vehicle shall be entirely at the insured’s own risk and the above conditions clause one and four was followed by the complainant and therefore it is not correct that the 3^rd opposite party is not liable to pay any claim made by the complainant.

11. Further the complainant’s vehicle was damaged due to heavy down pour of rain and the same was immediately informed to the 2^nd opposite party’s crew man and they told it is miner repair and thereby it can be set right on the warranty period of the car.  But after through inspection he found that the car was not repaired in a simple manner and thereby the claim was made to the 3^rd opposite party.  The 3^rd opposite party also sent his surveyor and inspect the vehicle on various times and they also given a consent for miner repair.  The claim made by the complainant but no repudation letter was given by the 3^rd opposite party to the complainant.  As stated above as per the carshield private car package policy the 3^rd opposite party is liable for the same.  But the 3^rd opposite party filed to do so and therefore the complainant sustained heavy loss and mental agony due to the deficiency of service on the part of the 3^rd opposite party and thereby we found that the 3^rd opposite party is committed deficiency in service on his part.  Accordingly point No.1 is answered.

12. Point No.2 & 3:-

 

We have discussed and decided that the 3^rd opposite party has committed deficiency in service on his part. Hence the 3^rd opposite party is liable to pay a sum of Rs.4,76,543/- which is insured’s declared value of the insurer to the complainant and further the 3^rd opposite party also liable to pay a sum of Rs.25,000/- towards compensation for mental agony caused to the complainant and also liable to pay a sum of Rs.20,000/- towards litigation expenses.  Accordingly point No.2 & 3 are answered.

In the result, this complaint is allowed in part.  Accordingly, 3^rd Opposite Party is directed to pay a sum of Rs.4,76,543/- (Rupees Four lakhs seventy six thousand five hundred forty three only) towards insured’s declared value to the insured car and to pay sum of Rs.25,000/- (Rupees twenty five thousand only) towards mental agony caused to the complainant and due to the deficiency of service on the part of the 3^rd opposite party and also directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards litigation expenses to the complainant. The complaint is dismissed as against the 1^st and 2^nd opposite parties. 

The above amounts shall be payable by the 3^rd opposite party within three month from the date of this order, failing which, the above said amounts shall carry interest at the rate of 9% per annum till the date of payment.

            Dictated to Steno-Typist, transcribed and typed by him, corrected and pronounced by us in the Open Commission, on this  the  13^th  day of October  2021.

 

T.VINODH KUMAR                                                     R.V.R.DEENADAYALAN                                                                                       

    MEMBER                                                                                         PRESIDENT

 

List of documents filed on the side of the complainant:

 

Ex.A1                                                  Copy of invoice from Kapico Motors Ltd.

Ex.A2         12.07.2007                       Copy of the RC Book from the registering 

                                                            authority

Ex.A3         21.06.2007                       Copy of Insurance policy issued by the 3^rd opposite

                                                            party

Ex.A4        27.11.2007                        Copy of legal notice to the opposite parties

Ex.A5       01.12.2007                         Copy of registered post acknowledgement due from

                                                            the 1^st opposite party

Ex.A6      03.12.2007                          Copy of registered post acknowledgement due from

                                                            the 2^nd opposite party at Chennai

Ex.A7     03.12.2007                           Copy of registered post acknowledgement due from

                                                            the 3^rd opposite party

Ex.A8     08.12.2007                           Copy of letter from the 2^nd opposite party

 

* * * * * * * *

 

 

List of documents filed on the side of the 2^nd opposite party:-

 

Ex.B1                            Copy of the Pre-Delivery Inspection

Ex.B2                            Copy of the Owner’s Manual

Ex.B3                            Copy of the vehicle history

Ex.B4                            Copy of Motors Insurance Claim form

 

List of documents filed on the side of the 3^rd opposite party:-

 

Ex.B5                              Copy of Insurance Policy

Ex.B6     03.09.2007       Copy of Claim Form

Ex.B7   03.09.2007         Copy of Assessment Report

Ex.B8     02.11.2007       Copy of complainant’s letter

Ex.B9   11.05.2007         Copy of Email from the 3^rd opposite party to the 1^st

                                         opposite party

Ex.B10  14.11.2007        Copy of email

Ex.B11  28.11.2007        Copy of Email from the 3^rd opposite party to the 2^nd 

                                         opposite party

Ex.B12  14.11.2007        Copy of Survey Report

Ex.B13  28.11.2007        Copy of Email from the 3^rd opposite party to the 2^nd 

                                        opposite party

Ex.B14  29.11.2007        Copy of notice

Ex.B15  21.01.2008       Copy of reply by the 3^rd opposite party

 

 

 

T.VINODH KUMAR                                                     R.V.R.DEENADAYALAN                                                                                       

    MEMBER                                                                                              PRESIDENT