DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Complaint Case No.: 557 OF 2010

Date  of  Institution  :   31.08.2010

Date   of   Decision  :   23.09.2011

Sushil Kumar, R/o H.No.845, Sector 4, Panchkula.

                                                                                    ---Complainant.

V E R S U S

Reliance General Insurance Company Pvt. Ltd., SCO No.145-146 (Top Floor), above VLCC, Sector 9-C, Chandigarh

---Opposite Party

BEFORE:            SHRI LAKSHMAN SHARMA                    PRESIDENT

                        SMT. MADHU MUTNEJA                   MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:            Sh.Sukhdarshan Singh, Adv. for complainant.

Sh.Tajinder Joshi, Adv. for the OP

PER MADHU MUTNEJA, MEMBER

1]             Briefly stated, the complainant had taken a comprehensive insurance policy against his Car No.HR-70-C-5000 from the OP effective from 28.1.2009 to 27.1.2010.  The said vehicle met with an accident on 25.7.2009 and the cost of parts damaged was Rs.3,67,188/-.  The OP deputed Sh.Kailash Chand, Surveyor to asses the loss.  The complainant has stated that as per the assessment it was agreed between the Insurance Company as well as the Repairer that the damaged parts would be repaired and in case the repaired parts did not work properly, it could be replaced.  The complainant realized that the repaired part was giving trouble, hence the complainant informed the Dealer requesting for replacement of the part.  An estimate was prepared and the vehicle was completely repaired accordingly after replacement of damaged parts. The complainant was directed to deposit Rs.1,58,217/- as his share for repairs.  The complainant has alleged that as the car was purchased on 28.1.2009 and accident took place on 25.8.2009 i.e. about 7 months after purchase.  He has stated that as per insurance norms no depreciation can be made if the claim arises within 6 months; and after six months only 5 percent depreciation can be made. The complainant has stated that the OP has made depreciation against the replaced part, which is against rules & regulations of insurance.  He has thus filed the instant complaint claiming Rs.1,58,217/- illegally deducted on account of depreciation besides costs for mental harassment and litigation.

                Besides the policy, the complainant has attached numerous bills of Joshi Automotives Pvt. Ltd. dated 25.8.2009, 10.4.2010 and 01.7.2010 in evidence to prove his claim.

2]             After admission of complaint, notices were sent to the OPs.

                In the preliminary objections, the OPs have submitted that they have not charged any depreciation from the complainant.  The amount has been charged by Joshi Automotives Pvt. Ltd.  The complainant has failed to make M/s Joshi Automotives Pvt. Ltd. as Opposite Party in the case.

                On merits, the OP has denied the cost of the parts amounting to Rs.3,67,188/- as stated by the complainant.

                The factual position is that the car of the complainant was damaged when his car hit the road divider while crossing Railway Phatak.  The Surveyor inspected the vehicle and found that there was under carriage damage and the gear box housing was damaged. The same was allowed to be replaced.  The Surveyor assessed the loss to the tune of Rs.62,457/-.  This amount was duly paid to the repairer under cashless facility. A Satisfaction Voucher (Ann.R-2 & R-3) have been placed on record to show voluntary acceptance by the complainant towards full and final settlement of his claim. OP has thus denied that the damaged part was repaired and not replaced.  OP has also submitted further that there was no agreement between the insurance company, Surveyor and repairer that if the repaired part did not work properly, it will be replaced  As the damaged part was replaced,  there was no need for any such understanding.  The complainant took the vehicle after proper testing and fully satisfied with the replaced parts and accordingly gave satisfaction and discharge voucher in favour of the repairer i.e. M/s Joshi Automotives Pvt. Ltd.

                After using the Car for about 6 months and running  the car approximately 5000 kms, the complainant complained about some noise in the transmission assembly.  He again approached the OP.  The Surveyor appointed by the Insurance Company checked the vehicle and found that the noise was due to some scoring marks on the “bearing race” of the Thrust Bearing.  The Surveyor clearly mentioned in his report that this was due to poor workmanship or manufacturing fault in the bearing. 

                A meeting was held at the dealer’s premises on 02.10.2010 along with the officials of the OP as well as Joshi Automotives and the Surveyor.  The fault was found in the transmission assembly, hence the liability if any was of Honda Siel Company, the manufacturer of the vehicle or M/s Joshi Automotives Pvt. Ltd., the repairer.  It was thus decided between the manufacturer and dealer to replace the complete assembly to remove the noise.  There was no fault in the part which has earlier been replaced at the time of accident.  Noise, if any, was only due to manufacturing defect or poor workmanship.  Hence, the Insurance Company was not liable to pay any compensation.

                The OP has submitted that they never asked the complainant to deposit any depreciation.  After the meeting, mentioned above, it was decided to consider the loss on sub-standard basis to help the complainant and the OP had agreed to reimburse 60% of the cost of Transmission Assembly while the remaining 40% would be paid by the Dealer/Manufacturer of the vehicle. If the dealer has charged any amount from the complainant, it is totally illegal and the dealer/repairer is liable to refund the same to the complainant.  Again, reiterating that the payment for the replacement of the complete Transmission Assembly was only due to manufacturing defect or poor workmanship, the insurance company has said that it could not be held liable.  No depreciation has been deducted.  The amount is payable by the dealer or manufacturer only, which has not been made a party to the complaint, as already mentioned in the preliminary objections.  The OP is still ready to pay 60% of the price of Transmission Assembly even though they were not liable to pay any amount to the complainant, hence the OP has not caused any mental harassment and financial loss to the complainant.

                The OP have placed the Surveyor Report as well as approval of 60% of the assessment along with affidavit of Sh.Rajesh Sharma, Manager Claim, as substantive evidence to their contentions.      

3]             Parties has led evidence in support of their contentions. 

4]             We have heard the ld.Counsel for the parties and have perused the record.

5]             The main disputes relates to non-payment of Rs.1,58,217/- by the OP, which the complainant had paid to dealer for repair  of the car. In this regard the complainant has given details about an accident to his vehicle, the claim against which was settled by the OP for Rs.62,457/-.  As per the Job sheet available as well as complainant’s own version, there was under carriage damage and gear box housing  damage.  The complainant has said that Joshi Automobiles on the instructions of OP Company had only repaired the part.  The OP in reply have denied this allegation and have submitted that defective parts were asked to be replaced and not repaired. 

                It is also submitted by the OP that after using the car for about 6 months after the accident, and running it approximately 5000 Kms, the complainant complained about some noise in transmission assembly and approached the dealer/Joshi Automobiles.  Since the said part needed replacement, the complainant approached the OP for payment of the replaced part.  When the transmission assembly was dismantled by the dealer, Sh.Kailash Chandra, Surveyor, appointed by the Insurance Company checked the same and found that the noise was due to scoring marks on the bearing race of the Thrust Bearing and that this was due to poor workmanship or the manufacturing fault in the bearing. 

6]             The OP has submitted that a meeting was held in the office of dealer and it was decided that as the vehicle was well within the warranty period, the manufacturer was required to replace the complete transmission assembly to remove the noise.  There was no fault in the part replaced earlier at the time of accident.  The OP has thus submitted that they are not liable to pay anything to the complainant, but even then they agreed to reimburse 60% of the cost of the transmission assembly while balance amount of 40% would be paid by the dealer and manufacturer.  The OP had made payment of Rs.2,20,313/- as 60% of the automatic transmission assembly whereas 40% amount was to be paid by the dealer and manufacturer.  It is contended that if the dealer/repairer has charged any amount from the complainant towards the said part, then it is totally illegal and the dealer/repairer is liable to refund the same to the complainant.

7]             In our opinion also the defect in the transmission assembly is not the result of the accident to the vehicle on 24.8.2009 and the car has been running for about 6 months after the repairs.  The complainant has also given Satisfaction Voucher & Discharge Voucher in favour of OP Company.  Once the complainant has received the amount in full and final satisfaction of his entire claim under the policy, he cannot now agitate the same.  Ann.R-2 & R-3 proves the satisfaction given by the complainant to OP Company towards his claim.

                    It is a settled law that where the insured has accepted the amount offered by the Insurance Company in full & final settlement of his claim without any objection or protest, the insured is estopped by his own act & conduct to raise any further amount from the  Insurance Company towards the claim or compensation for deficiency in service or negligence. 

8]             The defect in the transmission assembly is not part of the earlier claim and if the vehicle was under the warranty period, the amount should have been paid by the manufacturer and dealer only. 

9]             The complainant has not made the manufacturer and dealer as party to the present complaint and has preferred to file the complaint only against the Insurance Company.  The OP Company has already paid 60% amount of the transmission assembly directly to the dealer/repairer even though they could have denied the same.  The complainant should have appreciated this act of the OP and not filed the instant complaint against the OP.  He should have taken the matter with the Dealer/Repairer and Manufacturer and filed the complaint against them only if the amount was not payable by him as per warranty. This complaint against the OPs is definitely not maintainable, as we do no find any deficiency in service on the part of the Insurance Company.

10]            In view of the above observations, we dismiss this complaint with no order as to cost. 

        Certified copies of this order be sent to the parties free of cost.  After compliance, The file be consigned to the Record Room.

Announced

23.9.2011

                                                           (LAKSHMAN SHARMA)

PRESIDENT

(MADHU MUTNEJA)

MEMBER 

(JASWINDER SINGH SIDHU)

MEMBER