The complainant Dicky Mittal (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Raja Hyundai and another, (here-in-after referred to as opposite parties).
Briefly stated, the case of the complainant is that he purchased one Hyundai Verna CRDI Car from opposite party No. 1 having Registration No. PB10-ER-0082. The car was fully insured with opposite party No. 2 vide policy No. 10072443 valid from 21-10-2013 to 20-10-2014. The opposite party No. 1 assured the complainant that said car is defect free and as per warranty conditions if any defect occurs, it shall be cured without any extra payment by opposite party No. 1 through its authorised dealer.
It is alleged that said car met with an accident on 5-11-2013 at Village Lukhuwali Hanumangarh and entire car from front and rear badly damaged. The air bags did not open due to which complainant suffered injuries. As per proper procedure, complainant asked opposite party No. 1 to get the repair work done. The opposite party No. 1 already informed opposite party No. 2 regarding accident.
It is further alleged that since the vehicle was fully insured, the opposite party No. 1 was instructed to carry out necessary repairs and to replace all damaged parts. The opposite party No. 1 stated that some of the parts are not available and intimation in this regard has been sent to Company. The opposite party No. 1 assured that as and when parts from company are received, immediately repair shall be done.
The complainant alleged that opposite party No. 1 got signatures of complainant regarding repair work. Legal notice dated 10-01-2018 was sent by opposite party No. 1 against facts that complainant has not given consent for repair. The complainant was told when he made last visit to opposite party No. 1 that one of the part to be replaced is not available with the company due to which repair work is pending. In reply to legal notice, complainant requested opposite party No. 1 to get the vehicle repaired and hand over to him immediately.
It is further alleged that now opposite party No. 1 has refused to repair the vehicle on the ground that opposite party No. 2 has refused to compensate opposite party No. 1 regarding repair work although both the opposite parties were bound to repair and return the vehicle to complainant. The opposite party No. 2 is not paying compensation/repair charges and even not refused in writing to pay the same meaning thereby it is deemed refusal on the part of opposite party No. 2. The complainant has also sent legal notice dated 5-2-2018 to opposite party No. 2 but to no effect.
It is pleaded that aforesaid act of the opposite parties amounts to deficiency in service and unfair trade practice. Due to refusal to replace the defective part and to repair the vehicle free of cost, the complainant suffered mental tension and agony. The complainant further alleged that in case any parking charges are levied, the same are illegal and not recoverable and only opposite party No. 2 is responsible for the same.
On this backdrop of facts, the complainant has filed this complaint with the prayer for directions to opposite parties to repair the vehicle free of cost as per terms of extended warranty and pay Rs. 49,000/- as compensation in addition to Rs. 50,000/- as litigation expenses.
Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing separate written version.
In written version, opposite party No. 1 has taken legal objections that complaint is misplaced, misconceived and entirely frivolous. That the complainant is not consumer. He is at fault and has not come to this Forum with clean hands. That the complainant has got no cause of action against opposite party No. 1. The repair in question is accidental repair. Accident allegedly taken place on 5-11-2013, so the repair is out of warranty. The opposite party No. 1 is not legally bound to repair the vehicle. The complainant can get it repaired either through his insurance company or at his own. That the cause of action has allegedly accrued in favour of complainant on 5-11-2013 when alleged accident took place and vehicle was handed over to opposite party No. 1 for repair. So, complaint is barred by limitation.
On merits, the opposite party No. 1 has pleaded that warranty conditions were provided by manufacturer and no personal promise or agreement was made by it with complainant. The opposite party No. 1 denied that vehicle was having any manufacturing defect and air bags did not open. The opposite party No. 1 admitted that complainant handed over his damaged vehicle to it. It is submitted that vehicle was out of waranty as it met with an accident. The complainant is concocting false story regarding manufacturing defect. The opposite party No. 1 has further stated that complainant never gave consent regarding repair of damaged vehicle to it. The complainant was made aware of the fact that in accidental repair cases, the vehicle has to be repaired either with the consent of Insurance Company if the vehicle is insured or the owner of the vehicle has to personally give consent if he wants to get it repaired at his own expenses without asking for insurance claim. The opposite party No. 1 was not given consent by both of them inspite of repeated requests. It is further mentioned that complainant was neither interested nor bothered about repair of vehicle. When opposite party No. 1 sent legal notice dated 10-1-2018, as number of years have passed and the vehicle in question was occupying valuable parking space without any payment/charges, complainant came out of hibernation and filed present complaint on false and concocted version in order to grab undue benefit out of his own wrongs. That the opposite party No. 1 never refused to repair the vehicle in question. In the end, the opposite party No. 1 prayed for dismissal of complaint.
The opposite party No. 2 in its separate written version has taken legal objections that complaint is hopelessly time barred as the alleged loss has taken place on 5-11-2013 and intimation to opposite party No. 2 was given on 6-11-2013. Claim of the complainant was closed vide letter dated 21-5-21014 due to non submission of consent by him before start of repair. The complaint has been filed in the year 2018 i.e. after four years from the closure of claim. That intricate question of law and facts are involved which require voluminous documents and evidence for determination which is not possible in summary procedure. That the complainant has concealed the fact that he has to submit the consent of repairing at garage within 7 days. Even opposite party No. 2 wrote letters dated 4-3-2014 and 20-3-2014, but complainant failed to submit consent of repairing. As such, opposite party No. 2 closed the claim of complainant vide letter dated 21-5-2014. That the complainant is not consumer and that he has no locus standi and cause of action.
On merits, the opposite party No. 2 submitted that it vide its letter dated 4-3-2014 and 20-3-2014 requested the complainant to submit consent for repairing at garage otherwise his claim would be closed but he failed to submit the same. As such, opposite party No. 2 closed the claim file of complainant vide letter dated 21-5-2014. It is stated that insurance of vehicle is matter of record but it is further mentioned that said insurance is strictly subject to terms and conditions of the policy. In further written version, the opposite party No. 2 has reiterated its stand as taken in legal objections and controverted the stand of the complainant. In the end, the opposite party No. 2 also prayed for dismissal of complaint.
Parties were asked to produce evidence.
In support of his claim, complainant tendered into evidence his affidavit dated 27-1-2018 (Ex. C-1), reply to legal notice & postal receipt (Ex. C-2 & Ex. C-3), photocopy of legal notice & postal receipt (Ex. C-4 & Ex. C-5), photocopy of policy forwarding letter (Ex. C-6), photocopy of policy certificate (Ex. C-7) and photocopy of estimate (Ex. C-8).
To rebut the claim of complainant, opposite party No. 1 has tendered into evidence affidavit dated 19-7-2018 of Sh. Surinder Monga (Ex. OP-1/1).
Opposite party No. 2 has tendered into evidence photocopy of policy schedule (Ex. OP-2/1), photocopy of private car package policy (Ex. OP-2/2), photocopy of letters (Ex. OP-2/5 to Ex. OP-2/5), affidavit dated 13-11-2018 of Sh. Nishant Gera, Legal Manager (Ex. OP-2/6), affidavit dated 14-11-2018 of Sh. Amandip Sapolia, surveyor & loss assessor (Ex. OP-2/7) and photocopy of survey report containing 3 pages (Ex. OP-2/8).
We have heared learned counsel for the parties and gone through the file.
These are undisputed facts between the parties that car of complainant was insured with opposite party No. 2 vide Insurance policy (Ex. C-7) No. 300/HI-/10072443 for the IDV Rs. 9,80,217/- for the period from 2-10-2013 to 20-10-2014 against premium of Rs. 26,221/-. The car in question met with an accident on 5-11-2013 i.e. within covered period. The complainant lodged claim with the opposite parties vide No. MOTO 03408127. The car in question is still in possession of opposite party No. 1 in damaged condition.
The submission of learned counsel for the complainant is that at the time of purchase of car in question, opposite party No. 1 provided insurance of opposite party No. 2. It was assured that in case of any accident, insured is required to inform only to the nearest Hyundai Dealership. Thereafter dealer will take care of everything i.e. from picking of the car upto the cashless claim settlement. The complainant intimated the loss to both the opposite parties i.e. Insurance Company as well as dealer. Thereafter he duly signed and submitted the documents as required by them but inspite of his repeated visits and requests his car has not been returned to him duly repaired till date even a period of more than 7 years has elpased. Whenever complainant visited opposite party No. 1 to inquire about his car, it was intimated to him that one of the part is not available and as and when part is received from company, it will be replaced but thereafter opposite party No. 1 refused to repair the car in question on the ground that opposite party No. 2 has refused to compensate opposite party No. 1 regarding repair work. The complainant is suffering due to this illegal act of the opposite parties. During these seven years the car of the complainant remained parked at open place under sky and the conditions of the car has been so deteriorated that now it cannot be road worthy even after its repair. Therefore, the complaint be accepted and the amount equal to full value of car i.e. Rs. 9,89,217/- be granted.
On the other hand, learned counsel for opposite party No. 1 submitted that complaint is time barred as cause of action accrued in favour of complainant on 5-11-2013 when accident took place and vehicle was handed over for accidental repair. He further submitted that there is no manufacturing defect in the car. The opposite party No. 1 is not bound to repair the car as it is out of warranty being accidental repair. In accidental case, damaged vehicle can be repaired after consent of Insurance Company or owner of vehicle. The opposite party No. 1 was never instructed by complainant or Insurance Company to start the repair despite repeated requests. The opposite party No. 1 never refused to repair the car and complainant himself is at fault.
The learned counsel for opposite party No. 2 sumitted that complaint is time barred as the alleged loss has taken place on 5-11-2013 and claim of complainant is closed on 21-5-2013 whereas present complaint has been filed in the year 2018. The next submission of learned counsel for opposite party No. 2 is that complainant has concealed true facts from this Commission. He failed to give consent to start the repair. The opposite party No. 2 sent various reminders to complainant for submission of consent and ultimately, on 21-5-2014, opposite party No. 2 closed the claim of complainant.
We have carefully gone through the record and have considered the rival contentions.
A perusal of file reveals that plea of the opposite parties is that complainant failed to give consent to start repair of damaged car in question due to which opposite party No. 1 did not start repair and opposite party No. 2 closed claim file of complainant on 21-5-2014 after sending two letters dated 4-3-2014 & 20-3-2014 (Ex. OP-2/3 and Ex. OP-2/4). In the claim closure letter dated 21-5-2014 (Ex. OP-2/5), the opposite party No. 2 has mentioned that claim of complainant remained unprocessed as they have not received consent to start the repair. Opposite party No. 2 would treat the claim as closed and it shall not have any liability in respect of said claim.
Ex. C-6 is the covering letter issued by opposite party No. 2 alongwith which policy covering the risk in car in question was sent to complainant meaning thereby that the Insurance was provided by opposite party No. 1 to complainant. In this letter the opposite party No. 1 has specifically mentioned that -
“You just need to inform the nearst Hyundai Dealership and the Dealer will take care of everything from picking up the car, claim intimation with Insurance Company, survey arrangements, vehicle repair, salvage management and hassle free nearly cashless claims settlement”
Ex. C-8 is the document issued by opposite party No. 1 on 6-11-2013 just after one day of accident when the damaged car was handed over to opposite party No. 1 for repair. In this document at the bottom in one of the colum complainant has put his signature as Customer's Signature wherein he has consented and authorised opposite party No. 1 to do repairs. The wording of this column is reproduced as under :-
“I hereby authorise for the above repairs to be executed using necessary materials and I am affixing my signature below in evidence of agreeing to the terms and conditions given in the reverse side of this repair order absolutely and unconditionally.”
As detailed above, at the time of effecting insurance, vide Ex. C-6 the opposite party No. 1 assured the complainant that picking of car upto cash less claim is the responsibility of opposite party No. 1 and now the stand of opposite party No. 1 is that complainant or Insurance Company both have not given consent due to which repair work was not started whereas vide Ex. C-8, complainant has given authorization to opposite party No. 1 to start repair work. In Survey report Ex. OP-2/8, Sh. Amandip Sapolia, while assessing the loss in question, has also mentioned that the loss was discussed with insured and claim form was submitted by insured. The said surveyor has also tendered his affidavit Ex. OP-2/7 wherein he has mentioned that he inspected the damaged vehicle at the place of opposite party No. 1 and prepared survey report dated 21-4-2014 and assessed tentative liability on the basis of estimate submitted by insured to the tune of Rs. 3,06,727/-. Thus, loss was discussed by surveyor with insured on the basis of which assessment was made. The version of opposite party No. 1 is that vehicle was to be repaired after receiving consent either from complainant or Insurance Company but according to letter Ex.C-6 opposite party No. 1 assured the complainant that complainant is required only to intimate the loss thereafter everything will be done by dealer. Even vide document Ex. C-8 complainant authorised opposite party No. 1 for the repair of his car. Therefore, the statement of opposite party No. 1 is itself contradictory. However, vehicle was not repaired even after consent of complainant. The opposite party No. 2 placed reliance on document Ex. OP-2/3 dated 4-3-2014 and OP-2/4 dated 20-3-2014 that they required the consent of complainant to repair the car but complainant did not give consent. However, complainant denied receipt of these documents. The opposite party No. 2 has not placed on file any postal receipt etc., to prove that these documents were ever sent to complainant. Hence, opposite party No. 2 failed to prove the mode through which these documents were delivered to complainant. Further as per survey report Ex. OP-2/8 Claim Form was submitted by insured and loss was discussed with the insured. The vehicle in question was also examined by surveyor by visting the place of opposite party No. 1 on 25-4-2014. So, if consent to repair was not given by the complainant as submitted by the opposite parties, then thereafter the question of survey does not arise. Even in document Ex. OP-2/8, there is nothing that consent was not given by the complainant for repair of his car. It seems that both the parties are hands in glove. Even it is admitted that relation between complainant and opposite party No. 1 is of agency and buyer and between opposite party No. 2 and complainant is of insurer and insured. It is admitted that information was given to opposite parties after the car in question met with an accident, but the opposite parties failed to explain whey and for which other purpose they were informed regarding accident of the car if not for the purpose of repair of accidental car. Hence, the opposite parties cannot deny their liablity by taking false plea that consent was not given due to which car was not repaired and claim file was closed. Thus, there is deficiency in service on the part of opposite parties in not settling the claim of the complainant without any fault of his part. The opposite parties cannot take benefit of their own wrongs.
The opposite parties have raised legal objection that complaint is time barred as accident took place on 5-11-2013 and the present complaint has been filed in the year 2018. In the case in hand, it is proved on file that damaged car was neither repaired nor returned to complainant and is still lying in possession of opposite party No. 1. However, complainant has denied receipt of claim close letter (Ex. OP-2/5) and opposite parties have also failed to prove the mode through which the letter in question was actually delivered to complainant. As such, complaint is within limitation being continuous cause of action.
Now, question is regarding amount for which the complainant is to be held entitled to. The complainant has prayed for repair of vehicle free of cost as per terms of extended warranty. The complainant has not placed on file any warranty terms and conditions to prove that accidental vehicle is also covered under warranty and is entitled for free repair. Therefore, in such circumstances direction can only be given to Insurance Company.
Hon'ble National Commission in case of Narinder Kumar Joshi Vs. Reliance General Insurance Company Limited 2017 CPJ 366 (NC) has observed that the insurance claim is to be settled on the basis of surveyor report unless legitimate reasons are pointed out for not accepting the surveyor report.
Similarly, in case of Sri Venkatshwar Sindikat Vs. Oriental Insurance Company and Anr., II CPJ 1 (SC), Hon'ble Supreme Court of India has observed that the surveyors were appointed under statutory provisions and they are linked between insurer and insured when question of settlement of loss or damage arises. The report of the surveyor could become base for settlement of claim by the insurer in respect of loss suffered by the insured.
Therefore, keeping in view the aforesaid law also, the surveyor report is to be accepted. The surveyor has also mentioned in his affidavit Ex OP-2/7 that tentative liability on the basis of estimate submitted by insured is Rs. 3,06,727/-. So, keeping in view all the circumstances of present complaint, complainant is held entitled to claim to this extent. The opposite parties have not settled the claim without any fault of complainant. Therefore, complainant is also entitled to interest @ 9% per annum from the date of institution of this complaint i.e. 22-1-2018 till date of payment in addition to some amount of compensation for his suffering at the hands of the opposite parties.
For the reasons recorded above, the complaint is partly accepted. The opposite parties are directed to pay Rs. 5,000/- as cost and compensation to complainant, jointly and severally. Opposite party No. 2 is further directed to pay Rs. 3,06,727/- alongwith interest @ 9% per annum w.e.f. 22.1.2018 till date of payment, to the complainant.
The compliance of this order be made by the opposite parties within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced:-
10-09-2021 (Kanwar Sandeep Singh)
