DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 547 of 22.12.2021

                                      Decided on: 7.10.2024

Rajneesh Garg aged 28 years son of Krishan Kumar R/o H.No.249, Gaushala Bhawan Street, Mansa Aadhar card No.8203 2063 2727.

                                                                   …………...Complainant

                                      Versus

1. Raja Motors, Hyundai, Near Krishan Auto Sale Mansa Road, Bathinda 151001, through its Manager/Authorized signatory.
2. Raja Motors, Hyundai, Opposite Mansa Gas Service, Raja Motors Barnala Road, Mansa 151505 through its Manager/authorized signatory.
3. Raja Motors, Hyundai,Sirsa, Dabwali Road, Sirsa 125055, through its Manager/authorized signatory.
4. Yashodha Hyundai,Sirhind Road, Patiala147003 through its Manager/authorized signatory.
5. United India Insurance Co.Ltd. DSS 2, Town Centre Back Side Bus Stand, BhattuMandi Fatehabad Haryana, 125053.

                                                                   …………Opposite Parties     

Complaint under the Consumer Protection Act

QUORUM

                                      Sh.Pushvinder Singh, President

                                      Sh.G.S.Nagi, Member   

ARGUED BY

                                      Sh.Rajneesh Garg, complainant with his counsel

                                      Sh.A.S.Billing, Advocate

                                      Sh.Sanjay Khanna, counsel for OPs No.1to4

                                      Sh.B.L.Bhardwaj, counsel for OP No.5.                                

 ORDER

                                    PUSHVINDER SINGH, PRESIDENT

1. The instant complaint is filed by Rajneesh Garg (hereinafter referred to as the complainant) against Raja Motors, Hyundai and others (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. It is averred in the complaint that the complainant purchased a Hyundai Creta car bearing registration No.PB-23-Y-0064 from Sh.Rajinder Singh s/o Darshan Singh R/o H.No.616, village Chugha Kalan, Bathinda, the 2^nd owner of the car and the 1^st owner of the said car was Sh.Kunwar Singh Benipal, who purchased the said car from Yashodha Hyundai, Sirhind Road, Patiala  i.e. OP No.4.
3. It is averred that on 20.9.2021 complainant purchased the said car from Sh.Rajinder Singh,(2^nd owner of the car, who lastly got the car serviced from OP No.3) and applied for registration certificate to be transferred in his name. It is averred that after purchasing the car in question complainant went to OP No.2 for service on 22.10.2021 with regard to the problem in airbag as the sensor of the same was indicating non functioning . It is averred that back rear parking sensor was also non functional. It is averred that on 11.11.2021 the module of the airbag of the car was changed  but was done in an improper manner as the screws of the dashboard were not properly fitted and also cracked some parts  and during the said service sound system and navigation system of the car stopped working. That complainant called the service centre of OP No.1 but the service engineer broke away whole the wire system of the car with his mouth.
4. It is averred that thereafter complainant went to OP service centre on 13.11.2021 from 9am to 6.49pm(as mentioned on gate pass slip) promise time 3.39Pm executive did fake signature on tablet of the complainant. In Hyundai car app shows work done at 3.39pm. That at about 6.30pm manager asked the complainant about damaged (front and rear bumper, starter motor, rear parking sensor, brake master cylinder, driving starter move, motor noise, acceleration, steering wheel button problem, RH axle damage, High pressure, cabin wire, main wire, module radiation, srs, corrosion lower pipe and under cover missing)The complainant also noticed steering problem of the car . It is further averred that the complainant called and mailed the OPs and head office many times and he was assured about the guarantee of the car. That when the OPs refused to do anything on car then complainant asked for the feedback form but the OPs refused to attend the complainant  and used filthy language. That on the exit from service centre , on the log book, complainant wrote that no issue resolved and parts of the car cracked by executive.
5. That thereafter complainant sent the issue to the service Manager and Officers through email on 14.11.2021.That the OPs did not listen to any grievance of the complainant. That due to the said malpractice in trade and unfair trade practice complainant was harassed and is suffering from mental pain and agony. Hence this complaint with the prayer to accept the same by giving direction to the OPs to pay compensation to the tune of Rs.10,00,000/- on account of deficiency in service and unfair trade practice, Rs.1,00,000/- for mental agony and harassment; to penalize for Rs.1,00,000/- ; to pay Rs.33,000/- as litigation charges; alongwith interest @18% per annum and in the alternative of the position of non repairing of car to replace the car damaged by them with new.
6. Upon notice OPs appeared through their respective counsels and filed separate written statements having contested the complaint.
7. OPs No.1to3  in their written statement have raised preliminary objections that the present complaint is not maintainable in the present form and the complainant has no cause of action to file the present complaint; that the complaint is bad for non-joinder and mis-joinder of necessary party; that the complaint is false, frivolous and vexatious and is liable to be dismissed with heavy costs and that the Hon’ble Court has got no jurisdiction to try and decide the present complaint.
8. On merits, it is submitted that the complainant approached the OPs on 13.11.2021 and repair order was prepared in the presence of the complainant and in this regard, email dated 13.11.2021 was sent to the complainant in which it was clearly mentioned that the passenger airbag was missing in your car and your car under body damaged and rear bumper and sensor damage and offered you accident claim. It is further submitted that the car was met with an accident on 4.3.2022 and the complainant intimated the insurance company regarding the said accident on 5.3.2022 and OPs prepared the repair estimate. It is further submitted that the OPs continuously requested the complainant to inform regarding repair of the car in question or payment made by the insurance company but the complainant did not inform regarding repairing of the car and the car was parked in the premises of the OPs without any fault. It is further submitted that the dispute is between the complainant and the insurance company, and as per knowledge of the OPs, the claim of the complainant had been rejected  and the complainant without any reason or justification, pressurized the OPs to repair the car without any payment.
9. It is further averred that the OPs also requested the complainant to either allow them to start the work or to collect his car from the workshop but no response was given by the complainant.
10. The OPs have further averred that earlier the car was met with an accident on 26.5.2019 wherein Mr.Kanwar Singh Benipal S/o Harjit Singh had received Rs.7,49,604/- from Bharti Axa General Insurance Co. as full and final settlement of all claim on net salvage basis against the car wherein the surveyor of the insurance company after surveyor observed that all the spare parts including engine, airbag, front suspension  were damaged during  accident and found the same are not repairable and accordingly Mr.Kanwar accepted for final settlement. It is further averred that since the claim of the complainant was rejected by the company therefore , the complainant made false, manipulated and after though allegations against the OPs without any reasons. There is no deficiency of service and unfair trade practice on the part of the OPs. After denying all other averments OPs have prayed for dismissal of the complaint.
11. In the written statement filed by OP No.4, preliminary objections have been raised to the effect that the present complaint is not maintainable in the present form and the complainant has no cause of action to file the present complaint; that the complaint is bad for non joinder and misjoinder of the necessary part; that the complaint is false , frivolous and vexatious and that the Hon’ble Court has got no jurisdiction to try and decide the present complaint.
12. On  merits, it is admitted that the alleged  car is purchased from the OP. All other averments of the complainant have been denied by the OP and prayer has been made for dismissal of the complaint.
13. In the written statement filed by OP No.5 preliminary objections have been raised that the complaint of the complainant is not maintainable; that the complainant has not come to the Hon’ble Commission with clean hands; that the complaint is bad for non-joinder of Sh.Rajinder Singh s/o Sh.Darshan Singh (2^nd owner) from whom the complainant has alleged to have purchased the car in question and Bharti Axa General Insurance Company with which insurance company Mr.Kanwar Singh Benipal(1^st owner) got insured the car in question and that the complainant has no cause or reason to implead OP No.5 as party in the case.
14. On merits, it is submitted that it has come to the knowledge of OP No.5 that the car was met with an accident earlier on 26.5.2019 when the car was insured with Bharti Axa General Insurance Company and wherein Mr.Kanwar Singh Benipal s/o Harjeet Singh (1^st owner) had received Rs.7,49,604/- from the said Bharti Axa General Insurance Company Ltd. as full and final settlement of all claim on net salvage basis against the car. That the insurance company with which this car was insured as on 26.5.2019 after survey observed that all the major parts including engine, air bags, front suspension, A/C etc were damaged during accident and found the same non repairable and it is crystal clear that after settlement of claim got the car  repaired locally by the insured, sold the same to the complainant. It is averred that the dispute is between the complainant and OPs No.1to3 and the insurance company is not liable to make any payment in respect of wear and tear to the parts , as laid down in the terms and conditions of the insurance policy.
15. It is averred that when M/s Hyundai refused to replace the parts of the complainant’s car as stated in the complaint, then the complainant as an afterthought, tried to cover the same by intimating OP No.5 on 5.3.2022 that an accident of the subject car has taken place on 28.2.2022 and the car is lying for its repair in the garage of OP no.1 without affording an opportunity to OP No.5 to carry out any spot verification/inspection of the said car at the alleged accident site. That no DDR/FIR has been lodged against the tractor-tralla in the case. It is averred that on receipt of intimation of alleged accident, OP No.5 deputed Sh.Ravi Aggarwal, surveyor and Loss assessor to verify/inspect the car for alleged damages to the car who after verification and survey submitted his report vide No.REM/163/2022 dated 10.6.2022  and again on his visit on 21.3.2022 at dealer call the complete car was inspected by him and technical team in the presence of complainant and ASM of M/s Hyundai and the investigating team did not find any accidental damage to the subject car of the complainant. Thereafter complainant filed complaint before the Insurance Ombudsman, Chandigarh against the Insurance company for non payment of insurance claim for the alleged accident on 28.2.2022, which was closed on the ground that since the complainant has also filed complaint before the District Consumer Disputes Redressal Commission, Patiala on the same cause of action hence the same is closed. It is averred that the OP No.5 is not liable to make any payment. There is no deficiency of service on its part. After denying all other averments OP No.5 has also prayed for dismissal of the complaint.
16. In support of his complaint, complainant alongwith his counsel has tendered in evidence Ex.CA his affidavit alongwith documents Exs.C1 to C35 and closed the evidence.
17. The ld. counsel for OP No.5 has tendered in evidence Ex.OPA affidavit of Ramandeep Sharma, Sr.Divisional Manager, Ex.OP2 affidavit of Ravi Aggarwal alongwith documents, Exs.OP1 to OP10 and closed the evidence.
18. The ld. counsel for OPs No.1 to 4 has tendered in evidence Ex.OPB affidavit of Ram Krishan General Motors, Raja Motors for OPs No.1to3, affidavit of Naranjan Lal authorized person of Yashodha Hyundai, Ex.OPC alongwith documents Exs.OP11 to OP37 and closed the evidence.
19. Written arguments by OPs No.1to3 have been filed. We have gone through the same heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
20. The complainant has alleged that he is the 2^nd owner of the Creta car bearing registration No.PB 23Y 0064 and had purchased the said car from Sh.Rajinder Singh S/o Darshan Singh. Complainant has alleged that the first owner namely Kunwar Singh Benipal has purchased the said car from Yashodha Motors Hyundai,Sirhind Road, Patiala and the complainant has purchased the said car in September,2021 from Rajinder Singh who in turn purchased the car from Kunwar Singh Benipal. The complainant has alleged that he had applied for the transfer of the car in his name after the purchase of the said car but RC could not be transferred immediately as there was a strike in the ministerial staff .The complainant has then alleged that he took the car for service on 22.10.2021 to OP No.2 and reported for problem in the air bag and rear parking sensor. The complainant has alleged that the car was inspected and damaged by the OP during inspection. The complainant then took the car for repairs on 11.11.2021 to OP No.1 vide Ex.C23 wherein the module of the air bag was changed. However, the screws in the dash board were not tightened and sound system and navigation system stopped working. The complainant again took the car to OP No.1 where the Manager of the OP enquired about the damage to the front and rear bumper, starter motor, rear parking sensor , brake master cylinder, driving starter move, motor noise, steering wheel button problem, damage to right side axle and missing cabin wire, main wire, module radiation, srs corrosion lower pipe and under cover. The complainant has alleged that he was shocked to hear about the same and took back the car to his own. The complainant then took up the matter with the manufacturer and the OPs through email on 14.11.2021 and prayed for the repair of the car within warranty/guarantee period. The complainant has produced the copies of the messages dated 2.3.2022,Ex.C1 wherein it has been conveyed that, ‘the warranty of the car is going to expire soon please get your car checked in the workshop once before that. Kindly contact to this No.9988981125,Thanks’.
21. The complainant took the car to OP No.1 for general checkup and on 8.4.2022 received a mail,Ex.C4, stating therein that ‘we have received your car registration No.PB 23Y 0064 Creta Diesel in our workshop Raja Motors Bathinda and as we have seen passenger side Air Bag is missing in your car. And the steering control switches are not working. And the USB port wiring is damaged. As our telephonic discussion, we will get all parts replaced at under goodwill. You are requested to give us its rely with satisfaction.’, to which the complainant had replied that I will be fully satisfied with your service as you are providing me service and parts that you have mentioned in your email and also clearing my pending insurance work.
22. The complainant has also produced copy of repair estimate, Ex.C2 of Rs.3,09,241/-, prepared by OP No.2 and has prayed that his car be got repaired within warranty and he may be compensated on account of mental agony and harassment and also litigation charges.
23. OPs No.1to3 have taken the preliminary objections that this Commission has got no jurisdiction to try the said complaint as neither the complainant is the resident of District Patiala nor the cause of action has arisen under the jurisdiction of District Patiala and OPs No.1&3 do not have their dealership at Patiala. The OPs No.1to3 have also taken the objections that the complaint is liable to be dismissed on account of non joinder of the party as the manufacturer of the car is not impleaded as necessary party.
24. The OPs No.1to3 have submitted that the car was never taken to the OPs for any service/repairs on 22.10.2021 and have denied the allegations leveled by the complainant regarding the same. The OPs have submitted that the car was brought to the service center of OP No.2 on 11.11.2021 wherein the car was inspected and the complainant was advised to bring the car to the service centre of OP no.1 at Bathindha. The car was brought to OP No.1 and was inspected on 13.11.2021 in the presence of the complainant and the underbody of the car was found to be damaged, rear bumper and sensor was also found to be damaged and passenger side air bag was also found missing alongwith other various defects as per repair order,Ex.OP11.
25. The OPs have also produced the copy of the reply sent to the complainant with reference to his complaint, copy of which is Ex.OP12, wherein the above allegations have been reiterated and it has further been submitted that the complainant was offered for repair of the car under accidental insurance claim. The complainant then filed for insurance claim on 5.3.2022 as per Ex.OP19 wherein it has been stated by the complainant that, ‘On 28.2.2022 I was going towards my residence on Mansa Road at about 9P.M. when all of sudden a tralla containing husk came in front of the car due to which my car became unbalanced and the car sewered from the road and entered the fields near by hitting the trees on road side due to which  the front, rear and lower body of the car was damaged. The estimate was then prepared by OP No.1 under the accidental repair on 4.3.2022 as per Ex.OP34 for an amount of Rs.3,09,241/-.
26. The OP No.1 has produced a copy of the email  addressed to the complainant, copy of which is Ex.OP37, wherein it has been stated that, ‘this mail is with reference to the discussion regarding the accidental repair of your car bearing registration No.PB 23Y 0064.It is intimated that you had reported the car on 4.3.2022 at our workshop for accidental repair, a repair order was opened by the workshop after the receipt of the car believing your version that the car had met with an accident. It was intimated that the accidental repair will be carried on chargeable basis either by self payment or under insurance. Since you opted for the repairs under insurance as such intimation of the same was conveyed to the insurance company. Claim intimation has been duly submitted by you on 5.3.2022 as discussed above. However, your above declaration    was found false by the insurance company and your claim has been rejected. The same was conveyed to you and you are advised to take up the matter with the insurance company.’ The complainant then made a representation to OPno.1 stating that the warranty of the car is going to expire on 28.3.2022 and car is lying with OP No.1 since 4.3.2022 for repairs. The complainant then asked the OP No.1 to take up the matter with the insurance company again for reconsideration vide email dated 26.3.2022,Ex.OP36 and also prayed for the replacement of the parts under warranty. The OP in response to the said mail , on 30.3.2022 as per Ex.OP35 has stated that the averments of the complainant have been verified by OP No.1 wherein it has been stated that the complainant had himself submitted for the insurance claim vide claim letter dated 5.3.2022. However, the claim was rejected by OP No.5 as the same was found to be false and complainant was advised to take up the matter with OP no.5. It has also been stated that the car of the complainant had met with a major accident just at the mileage of 1500 Kms only and after  inspection of the car by the insurance company the claim was settled as a total loss on net salvage basis with the first owner of the car i.e. Kunwar Singh Benipal. The photographs of the car available with OP No.1 indicate that the major parts including engine, airbag, front suspension  etc. are repaired / locally fixed  with seal the replacement of which also is claimed  under warranty and  it was conveyed that the accidental damage/repair is not covered under warranty and shall be covered on chargeable basis either by self payment or under insurance and complainant was asked to give his consent to the dealership i.e. OP no.1 for repair of the car at his own costs.
27. OP No.4 in its written statement has denied all the allegations of the complainant and prayed for the dismissal of the complaint against OP no.4.
28. OP No.5 in its written statement has taken the preliminary objection that the complainant has not come to this Hon’ble Commission with clean hands and has suppressed true and material facts from the Commission. The OP as submitted that no relief has been sought against OP No.5 by the complainant in his complaint and as such OP no.5 is not liable to pay any claim.
29. On merits, OP No.5 has submitted that the car of the complainant had met with the major accident on 26.5.2019 when the car was insured with Bharti Axa General Insurance Company and wherein the first owner of the car i.e. Kunwar Singh Benipal had received the payment of Rs.7,49,604/- from the insurance company as  full and final settlement of the claim on net salvage basis against the car as a total loss of the car.
30. The OPs have produced the copy of the email,Ex.OP7, issued by OP No.1 on 26.3.2022 by Sh.Amit Sharma  of Hyundai Motor India Limited, wherein the above facts regarding the total loss of the car and settlement of claim for Rs.7,49,604/- on net salvage basis have been confirmed. The OP No.5 has further submitted that   dispute if any is between the complainant and OPs No.1to3 and OP No.5 is not liable to make any payment in respect of the wear and tear to the parts of the car in question as per the terms and conditions,Ex.OP6 of the policy and as per clause 2 of the said policy, company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown failures or breakages etc. etc.
31. OP No.5 has further submitted that the complainant had lodged a false claim as an afterthought when OPs No.1to3 refused to replace the parts of the car of the complainant under warranty period and a false claim was then lodged on 5.3.2022 by the complainant during the pendency of this case which was filed on 22.12.2021. As per the said claim which was filed on 5.3.2022 the accident had taken place on 28.2.2022 when the car was in the possession of OP No.1. No DDR/FIR was lodged in respect of the said accident. However, on receipt of intimation Sh.Ravi Aggarwal, Surveyor and Loss Assessor was assigned for verification/inspection of the said car and a report was duly submitted by the said surveyor vide REM/163/2022 dated 10.6.2022 which is Ex.OP1, wherein it has been stated that:
    1.  
    2.  
    3.  

4. At my second visit to repairer on 21.3.2022 in presence of insured and Hyundai ASM. Hyundai personal also found the same as per above discussion & refused also to give the parts under warranty. Also then complete loss was discussed in presence of insured.

Complete correspondence mail in detail is also given to insured for refusal of claim and is enclosed with the report.

So as such this claim is “Not Maintainable” & file may be closed as “No Claim”.”

32. The OPs have also produced the affidavit of the surveyor & Loss Assessor Sh.Ravi Aggarwal who has confirmed that the damage to the car is not due to any accidental reasons and is only on account of normal wear and tear. OP No.5 as such prayed that the complainant is not entitled for any claim under the insurance.
33. We have considered the rival submissions of the parties and have also gone through the record/evidence on record thoroughly.
34. As far as the preliminary objection regarding jurisdiction of this Commission taken by OPs No.1to3 is concerned, the same was duly heard and dismissed vide an order dated 22.11.2022.Since no appeal against the said order was filed by the OPs, as such the said order has become final.
35. From the evidence so produced by the parties, it transpires that the car of the complainant had met with the major accident on 26.5.2019 when it had covered only distance of 1500KMs and the claim was settled  for Rs.7,49,604/- in favour  of Kunwar Singh Benipal first owner of the car on net salvage basis meaning thereby that the owner retained the car with himself. The complainant is the 3^rd owner of the car and had purchased the car from one Rajinder Singh who in turn purchased the said car from Kunwar Singh Benipal. The car was got repaired locally either by Kunwar Singh Benipal or Sh.Rajinder Singh from whom the complainant has purchased the said car.
36. We are of the opinion that when the car had met with the major accident and claim had already been settled as a total loss and as such the guarantee/warranty of the said car is rendered null and void. As such the car is not covered under any guarantee/warranty as is being claimed by the complainant.As such complainant is not entitled for any claim against guarantee/warranty from OPs No.1 to OPNo.3
37. When the complainant was denied the replacement of the parts under guarantee/warranty, he made up another story, as an afterthought regarding the accident to the car on 28.2.2022 during the pendency of the case  in this Commission which was filed on 22.12.2021 although no such allegation has been leveled in the complaint. Moreover, the car was in the possession of OPNo.1 when the accident is alleged to have occurred and which the complainant has failed to justify. Even no DDR/FIR was lodged by the complainant regarding the said accident. Even then on receipt of the intimation regarding the accident the car was duly inspected by the surveyor appointed by OP No.5 and wherein it has been clearly stated that there is no single accidental damage to any part of the car and parts so demanded , as per the estimate  do not correlate with the cause of accident and even the same was discussed in the presence of complainant alongwith representatives of the Hyundai Motors and they agreed  with the views of the Surveyor and Loss Assessor as per his report,Ex.OP1.In fact the theory of accident so evolved by the complainant in connivance with OPNo.1 is just a fabricated theory and there is no truth in it. As such, we are of the opinion that complainant is not entitled for any compensation/settlement of claim against insurance from OP No.5.
38. In view of the discussion above, we do not find any deficiency in service either on the part of OPs No.1to3 or on the part of OP No.5. However, it is also a fact that OP No.1 in its mail dated 8.4.2022 Ex.C4, when the OPs were well aware about all the facts regarding the damage having been occurred to the car, have submitted that, ‘We have received your car Registration No.PB23Y0064 Creta Diesel in our workshop Raja Motors Bathinda and as we have seen passenger side Air Bag is missing in your car. And the steering control switches are not working. And the USB port wiring is damaged.

As our telephonic discussed. We will get all parts replaced at under goodwill.’

39.  As such, as stated above, we direct OP No.1 to replace the passenger side air bag and damaged USB port and make the steering control switches functional as a good will gesture as offered by OP No.1 himself within 60days from the receipt of certified copy of this order. The complaint is disposed of accordingly. Parties are left to bear their own costs. Copies of order be sent to the parties free of cost immediately.
40. The instant complaint could not be disposed of within stipulated period due to heavy rush of work and for want of Quorum from long time.
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                                              G.S.Nagi                           PUSHVINDER SINGH

                                              Member                          President