| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 207 of 13-08-2018 Decided on : 24-01-2023 Inderjit Garg aged about 50 years S/o Sh. Kirtan Singh C/o Badal Medical's, near Shiv Chowk, Mandi Dabwali, District Sirsa (haryana). …...Complainant Versus Raja Hyundai, Mansa Road, Bathinda through its Proprietor/ Partner/ Authorized Person. United India Insurance Company Ltd., Divisional Officer: The Mall, Bathinda through its Sr. Divisional Manager. Branch Manager, United India Insurance Company Co. Ltd., Branch Office: Opposite Civil Hospital, Mandi Dabwali, Distt. Sirsa.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Bharat Bhushan, Advocate. For the opposite parties : Sh. Rohit Jain, for opposite party No.1 Sh. J.D Nayyar for opposite party No.2 & 3. O R D E R Kanwar Sandeep Singh, President The complainant Inderjit Garg (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 others (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that he is the owner of Car Hyundai i10-VIN-MALAN51CLBM999756 bearing registration No. HR-25C-4989. The said car is comprehensively insured with opposite party No.2 vide Policy No.1119013116P112324638 w.e.f. 26.12.2016 to 25.12.2017. It is alleged that car of the complainant met with an accident on 13.12.2017 near village Bargadi on Bathinda-Faridkot road, when suddenly a tractor trolley crossed the road and struck with the car. The car was badly damaged and intimation in this regard was given to opposite party No.2 immediately and thereafter, at the institution of opposite party No.2. The car was brought to the workshop of opposite party No.1 by towing the same with Crane, hired by complainant from Rajdeep Crane and Recovery Service against payment of Rs.2800/-. Opposite party No.1 after thorough inspection of the car, prepared estimate to the tune Rs.3,89,612/- wherein it was mentioned that Dash Penal of the car has been damaged and broken and is beyond repair and as such complete body shell was required to be changed. The estimate of the body part was given as Rs.3,35,662.40 and labour charges Rs.53,949.60 totaling Rs.3,89,612/-. It is also alleged that the surveyor was appointed by opposite party No.2 and the estimate prepared by opposite party No.1 was given to the surveyor of opposite party No.2. However, thereafter, opposite party No.1 colluded with surveyor, appointed by opposite party No.2 and they with intention of making unreasonable gains and cheating with the complainant, rejected the estimate, prepared by themselves after about one month and issued a new estimate, which was drastically different from the initial one. As per the estimate, the dash panel was non-repairable and complete change of Body Shell was required, but after collusion between opposite party No.2, Surveyor Mr. Rakesh Gupta and employee of the opposite parties Simarjeet Singh, the estimate was changed from Rs.3,89,612/- to Rs.1,50,647/ with new Estimate issued on 13.01.2018 for the mutual benefit of both the opposite parties as otherwise the car was beyond repair. It is further alleged that the complainant paid Rs.10,000/- against the estimate dated 17.12.2017 which had repair estimate of Rs.3,89,612/- not against the second repair estimate. In the month of March, 2018, the complainant was asked for test drive and on the first look itself before test drive, the roof was not in the proper shape and complainant pointed out the same to opposite party No.1 and they asked the complainant to come again after the error is rectified. Although the car was not fit for test drive, but on the same day, the complainant was presented with a pre invoice of Rs.1,62,592/-. It is also alleged that complainant was again called for test drive in the month of April, 2018 and on test drive, he found that the car was deviating towards left (accidental side) upon applying break. Simarjeet Singh, an employee of opposite party No.1 was accordingly conveyed and he admitted the fault and was not in a position to fix on the spot. He requested the complainant to come again on the next day. However, even after repeated visits, the situation of the car was not even close to actual position.The complainant has not received any Repair Work Completion Certificate from opposite party No.1 and the car is not fit at all for for drive on road, and as such the complainant cannot afford to put his life in danger by driving the car which turns towards left on applying breaks and of which dash panel is repaired by welding while the standard procedure in case of breakage of dash panel is, change of the part. The complainant alleged opposite party No.1 with malafide intention got served legal notice dated 13.06.2018 upon him leveling false allegations that the complainant is not taking delivery of the car in question intentionally to avoid the payment. The demand raised by the opposite party No.1 regarding parking charges of the car is totally illegal, rather opposite party No.1 failed to repair the car in question satisfactorily and failed to give its delivery to the complainant. There is no fault on the part of the complainant in any manner. The opposite parties cannot take advantage of their own wrong. The complainant has always been ready and is still ready to take delivery of the car provided that car is reverted back to its original position. It is alleged that the complainant approached the opposite parties many times and even made complaints to Hyundai customer care centre on 09.05.2018 through email on their email Id crservice@hmil.net but there was no response. The mechanic of opposite party No.1 orally told the complainant that the car repaired is not safe for running on road, as the same has been repaired by welding which can break by jerk in running condition and can cause any mishap. They orally told the complainant that only solution is to change whole body shell but the opposite parties are not ready to do the same. The complainant alleged that due to adamant attitude of the opposite parties, he has suffered mental tension, botheration and financial loss for which he claims compensation to the tune of Rs. 1,00,000/- On this backdrop of the facts, the complainant has prayed for directions to the opposite parties to repair the car in question with zero defect by changing body shell as per original estimate dated 17.12.2017 or in the alteranative, the opposite parties No. 2 & 3 be directed to pay IDV of the car in question to the complainant treating the same as total loss, with interest @ 18% p.a. and to pay compensation to the tune of Rs.1,00,000/- in addition to litigation expenses to the tune of Rs.22,000/- besides any other additional, alternative and consequentional relief. Upon notice, opposite parties appeared through their respective counsel and contested the complaint by filing separate written statements. The opposite party No. 1 in its written reply raised legal objections that complaint is misplaced, misconceived and entirely frivolous. The complainant is not a consumer. The complainant himself is at fault and has not come to this Commission with clean hands. That the complainant has filed this false complaint, in order to avoid liability to pay the outstanding amount pertaining to the repair and that the complainant has got no cause of action On merits, the opposite party No.1 admitted that complainant brought the car in question to its workshop. It has been pleaded that vehicle in question was not thoroughly inspected and pre-estimate dated 17.12.2017 was made as per wishes and asking of the complainant as the complainant was adamant to get the car repaired totally whereas actual estimate is generally prepared in the presence of surveyor when the vehicle is inspected by the surveyor. It has also been pleaded that in the presnt case on 17.12.2017 the Surveyor was not present, but hte complainant was adamant to get the estimate prepared so the estimate was prepared as per the damage told by the complainant. The complainant at that time stated that he will himself negotiate with the Insurance company and will get the reimbursement at his own. On 13.1.2018, the actual estimate of the vehicle was prepared in the presence of the surveyor and complainant. At that time, the vehicle was opened for the first time for inspection and calculation of estimate of damage and estimate of cost and expenses of repair. As the previous estimate was prepared on the asking of the complainant, so it carries no value. The complainant has admitted the correctness of estimate dated 13.1.2018 as the vehicle was inspected in his presence and the estimate was thereafter prepared as per actual damage/loss caused to the vehicle. The complainant has voluntarily deposited Rs.10,000/- as advance and has given the consent to start the repair as per the estimate dated 13.1.2018. It has been further pleaded that the vehicle in question is lying fully repaired as per wishes of the complainant, but the complainant is intentionally avoiding its delivery and also avoiding payment of outstanding pertaiing to the repair of the vehicle. It is denied that Sh. Simarjit Singh, Service Manager of opposite party No.1 conveyed to the complainant that the vehicle is having some fault after repairing. It has been pleaded that the said vehicle is lying in fully repaired, roadworthy condition and is ready for delivery but the complainant is intentionally and malafidely delaying the same and also trying to avoid the payment of outstanding amount. In the end of opposite party No.1 prayed that the complaint be dismissed and complainant be directed to make the payment of outstanding amunt. Opposite parties No.2 & 3 in their separate written reply raised preliminary objections that present complaint is not maintainable since as per the averments in the complaint itself, no relief has been sought against opposite parties No. 2 &3. It has been pleaded that the complainant has averred that the car was under repair with opposite party No.1 and it had not been repaired to the satisfaction of the complainant by opposite party No.1. As such it is a dispute between the repair (opposite party No.1) and the complainant. The opposite parties No. 2 & 3 have already written different letters in this regard to the complainant and finally a letter dated 7.9.2018. Further legal objections are that the complainant has no cause of action and that this Commission has got no jurisdiction to try and entertain the complaint. The complainant has filed this false and has unnecessarily harassed the opposite parties by dragging them into uncalled for litigation. It has been pleaded that actual facts of the case are that on receiving the intimation with regard to alleged accident, the opposite parties appointed surveyor who prepared his report as per facts and circumstances on the spot and had assessed the net loss as Rs.1,01,748/-. Thereafter the role of the opposite parties would have come into picture only once the vehicle had been repaired only then the loss would have been indemnified on the basis of final survey report and as per rules and regulations of the policy. The opposite parties No. 2 & 3 had requested the complainant vide their different letters and finally letter dated 7.9.2018 to submit the final bills/parts replaced and produced the vehicle for re-inspection, so that the opposite parties would be able to proceed further with the matter. However, the complainant neither supplied the documents nor produced the vehicle for re-inspection and as such the matter could not been further proceeded by the opposite parties. The complaint with regard to non-satisfactory repair of the vehicle is qua opposite party No.1 and opposite parties No. 2 & 3 have nothing to do with it and cannot be held negligent in any manner for that purpose. It has also been pleaded that opposite parties No. 2 & 3 have neither repudiated the claim of the complainant nor they have closed the file till date and are in fact waiting for the complainant to submit the final bills of the repair/ parts replaced and to produce the vehicle for re-inspection so that the same could be further proceeded. It is very difficult for any orgainization to keep the matter pending for indefinite period, as such the complainant be directed to submit the final bills/parts replaced and to produce the vehicle for re-inspection for enabling the opposite parties to proceed further with the same. Further preliminary objection are that complainant is estopped by his own act and conduct from filing the present complaint and as such, there is no deficiency of service on part of the opposite parties. On merits, the opposite parties No.2 & 3 have pleaded that the estimate has been provided by surveyor as per actual facts and the inspection done by him. No such estimate has been reduced as alleged by complainant. The surveyor has assessed the net loss to the tune of Rs.1,01,748/- as per inspections done by him and the said amount was only payable subject to furnishing of requisite documents, final bills/parts replaced and after producing the vehicle for reinspection and the complainant has failed to provide all the documents to the opposite parties. In support of his complaint, the complainant has tendered into evidence his affidavit dated 13-8-2018 (Ex. C-1) and documents (Ex.C-2 to Ex.C-11). In order to rebut this evidence, the opposite party No.1 has tendered into evidence affidavit of Sh. Simarjeet Singh dated 18-10-2018 (Ex.OP-1/1). Opposite party No.2 & 3 have tendered into evidence affidavit of Sh. Baldev Singh dated 04-10-2018 (Ex.OP-2/1) and documents (Ex. OP-2/2 to Ex.OP-2/7). We have heard learned counsel for the parties and gone through the record. The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings. We have carefully gone through the record and have considered the rival contentions. The allegation of the complainant as detailed in his complaint is that opposite party No.1 after thorough inspection of the car, prepared estimate to the tune Rs.3,89,612/- wherein it was mentioned that Dash Panel of the car has been damaged and broken and is beyond repair and as such complete body shell was required to be changed. The estimate of the body parts was given as Rs.3,35,662.40 and labour charges Rs.53,949.60 totaling Rs.3,89,612/-. The complainant has further mentioned in the complaint that as per estimate, the dash panel was non-repairable and complete change of Body Shell was required, but after collusion between opposite party No.2, Surveyor Mr. Rakesh Gupta and employee of the opposite parties Simarjeet Singh, the estimate was changed from Rs.3,89,612/- to Rs.1,50,647/ with new Estimate issued on 13.01.2018 for the mutual benefit of both the opposite parties as otherwise the car was beyond repair. Ex. OP-2/6 is the Final Survey Report dated 18-07-2018 of Er. Rakesh Kumar K. Gupta, Surveyor & Loss Assessor. A perusal of this document reveals that the said surveyor has specifically mentioned in his report that he visited the workshop while the vehicle was under repair, noted the extent of damages, repairs and replacements. The said surveyor has assessed the loss after considering estimates of Rs. 3,89,612/-. Therefore, the contention of the complainant that estimate was changed from Rs.3,89,612/- to Rs.1,50,647/- with new estimate issued on 13.01.2018, is not tenable. The surveyor has assessed the loss vide aforesaid detailed report by discussing each and every affected part of the vehicle. The complainant has also alleged that mechanic of opposite party No. 1 told him that car repaired is not safe for running on road as the same has been repaired by welding which can break by jerk in running condition and can cause any mishap, but no affidavit of such mechanic/expert evidence has been placed on file by complainant to prove his this version. As such, in the absence of any expert evidence, this version of the complainant cannot be believed. 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. The complainant has prayed for directions to opposite party No. 1 to repair the car in question with zero defect or claim IDV of the vehicle. The opposite party No. 1 in para No. 9 of its reply has pleaded that vehicle in question is lying fully repaired and this fact was not denied by complainant. Though it is alleged by complainant that vehicle was not repaired properly and was not fit for driving on road but complainant failed to bring on the file any evidence to prove this fact. Moreover, relief of IDV cannot be awarded until and unless there is total loss of vehicle. Therefore, keeping in view the aforesaid law also, the surveyor report is to be accepted. So, keeping in view all the circumstances of present complaint, complainant is held entitled to claim of Rs. 1,01,748/- as assessed by surveyor. The opposite parties No.2 & 3 have not settled the claim without any fault of complainant. Therefore, complainant is also entitled to interest @ 6% per annum w.e..f. date of filing of present complaint till date of payment in addition to some amount of compensation for his suffering at the hands of the opposite parties. Resultantly, this complaint is partly allowed with Rs.5,000/- as cost and compensation against opposite parties No. 2 & 3. The opposite parties No. 2 & 3 are directed to pay to complainant Rs. 1,01,748/- being claim amount, with interest @ 6% p.a. w.e.f date of filing of present complaint till payment. The opposite party No. 1 is directed to handover the vehicle in question (fully repaired) to the complainant on receipt of payment of repair charges amounting to Rs.1,62,592/- asked vide document Ex.C-10 minus Rs.10,000/- deposited by complainant. The compliance of this order be made 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. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room. Announced : 24-01-2023 (Kanwar Sandeep Singh) President
(Shivdev Singh) Member
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