Haryana

Panchkula

CC/136/2018

MAHIMA SADEN - Complainant(s)

Versus

RENAULT INDIA PVT LTD - Opp.Party(s)

COMPLAINANT IN PERSON

11 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                               

Consumer Complaint No	:	136 of 2018
Date of Institution	:	02.08.2018
Date of Decision	:	11.10.2019

 

 

Mahima Suden daughter of Mr. Nagesh Suden resident of House No. D-29, Sector-30-B, Chandigarh.

 

                                                                           ….Complainant

 

Versus

1. Renault India Pvt. Ltd., address ASV Ramana Towers # 37-38, 4^th Floor, Venkatanarayana Road, T. Nagar, Chennai-600017 through its proprietor.
2. M/s PMG Auto Private Ltd. Plot NO. 47, Industrial Area, Phase 1, Chandigarh 160002.
3.  M/s Benchmark Motor Pvt. Ltd., Plot No. 363, Industrial Area Phase 2, Panchkula Haryana-134109 through its proprietor.
4. The Oriental Insurance Ltd., Service Center (Chandigarh Regional Office SCO No. 109-111, Sector-17-D, Chandigarh  through its Branch Manager.

 

                                                                  ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   None for the complainant.

 Sh.Chetan Gupta, Advocate for OP No.1.

 None for OP No.2.

 Sh. Arjunveer Sharma, Advocate for OP No.3.

 Sh.Vinod Chaudhary and Ms. Geeta Chaudhary,            Advocate for OP No.4.

ORDER

(Satpal, President)

1.                     The brief facts of the present complaint are that the complainant had purchased a car (Renault KWID) bearing Registration No. CH01BJ 1710 from OP No.2 on 12.08.2016. The said car was insured from OP No.4. On 10.02.2018, the car of the complainant met with an accident near Amartex Panchkula. The complainant applied break to save a dog and resultantly the car of the complainant hit the road. After, few minutes the car stopped and did not start again. The complainant made a request at a toll free No.180030044444 for assistance but no one came on behalf of OP No.1 for rescue.  The complainant had to get her car towed herself to the nearby agency i.e. Tricity Renault Panchkula.  The complainant visited the agency of OP No.3 and was told that the Engine oil tank of the car is damaged. The complainant requested that the same be replaced as it is covered under the insurance policy as well as the warranty.  

2.             Upon notice OPs No.1, appeared through counsel and filed written statement raising preliminary objections qua complaint is frivolous and vexatious. On merits OP No.1 stated that the legal relationship between the OP No.1 and OP No.2 and 3 is of Principal to Principal basis. The said OP No.2 and 3 are the authorized dealer of OP No. 1 being the manufacturer of the cars and the OP No.2 and 3 has no authority to bind the company by any contract. The OP No.1 does not allocate any vehicle in support of any particular buyer at the time of billing it to the dealer from its manufacturing unit at Chennai and the transaction of the vehicle between the authorized dealer and the corporation stands completed as soon as the vehicle is handed over to the delivery service to transport it to the authorized dealer’s destination. The OP No.1 does not accept the cost of the vehicle from any individual purchaser. The OP No.2 and OP No.3 raises bills and against those bills OP No.1 being the producer of Renault Cars sends vehicle to OP No.2 and OP No.3 and that is the only association or relationship between OP No.1 and OP No.2 & 3. It is pertinent to mention here that OP No.1 is not a necessary party to the instant complaint and the complainant has falsely implicated the OP No. 1 in the instant complaint. The OP No.1 is a customer centric company with customer satisfaction being its basic motto and thus prayed for dismissal of the complaint.

                Upon notice OPs No.2, appeared through representative and filed written statement raising preliminary objections qua complaint is not maintainable. On merits OP No.2 stated that OP No.2 has no knowledge of the fact that customer  called the Toll free no. for assistance and no one came from the OP No.1 for rescue and do not have any details of this as well as the car was towed to other dealership/Agency VIZ. Tricity Renault Panchkula. All other averments of the complainant were denied and prayed for dismissal of the complaint.

                Upon notice OP No.3 appeared through counsel and filed written statement raising preliminary objections qua complaint has been filed seeking compensation on the pretext that the oil tank of the vehicle was damaged due to some collision as conceded by the complainant in the complaint and the same was not repaired or replaced, despite of being the vehicle under warranty. On merits, OP No. 3 stated that the complainant was driving the vehicle at a very fast and rash speed that the vehicle hit the floor just on pushing the break suddenly. No occasion ever accrued to the complainant to get the vehicle towed away. The oil tank of the vehicle was damaged and asked the same to be replaced as the vehicle is under warranty. The manufacturing defects are covered under the warranty and not the physical damages which have occurred due to accident or collision which can be recovered for compensation from the insurance company (OP No.1). It is also submitted that it was obvious that the engine of the vehicle has to be seized if the engine will be tried to run without any oil. All other averments of the complainant were denied and prayed for dismissal of the complaint.

                Upon notice OP No.4 appeared through counsel and filed written statement raising preliminary objections qua complainant is devoid of any merit. On merit, OP No.4 stated that the complainant should not have made efforts to cruise further as it would have increase the quantum of damage and this is precisely what had happened in the present case. The replacement can only be done when there is manufacturing defect or due to accident when the insured vehicle gets damaged and the loss comes in the ambit of terms and conditions of policy. There was no deficiency and it may be appreciated that surveyor is an independent and qualified engineer who has been licensed from IRDA and who has assessed the loss in accordance with the procedure being followed all over the world. However, the company is willing to pay the loss of Rs.1,383/- as assessed by the surveyor in accordance with the norms and procedure of the insurer.

3.             Replication to the written statements of the OPs No.1 to 4 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             To prove her case, the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R1/A along with document Annexure R-1/1 and closed the evidence. The ld. counsel for the OP No.3 has tendered affidavit as Annexure R-3/A and closed the evidence. The ld. counsel for the OPs No.4 tendered affidavit Annexure R4/A along with document Annexure R-4/1 to R-4/6 and closed the evidence. The evidence of the OP No.2 was closed by order of this Forum on 30.07.2019.

                During the course of arguments, the learned counsel for OP No.4 has submitted a copy of Insurance Policy and Motor Claim Form as Mark and Mark-B respectively.

5.             We have heard the ld. counsels for OPs No.1, 3 & 4 and gone through the entire record as well as written arguments filed on behalf of the OP No.4 carefully and minutely.

6.             The grievances of the complainant relates to the non-reimbursement of the repair bill amounting to Rs. 42,142/- (Annexure C-4) to the complainant  by the OP No. 1, 2 and 4 in respect of the Renault car bearing Registration No.CH01BJ1710 which met with an accident on 10.02.2018 near Amartex, Panchkula. The accident of the aforesaid car on 10.02.2018 during the subsistence of the insurance policy is not disputed.

The complainant’s case is that she applied break, at the time of incident on 10.02.2018 to save a dog and resultantly the lower part of the car got collided with the road causing damage to the oil tank of the car. The complainant has alleged that after few minutes the car stopped and did not start again and no one turned up on behalf of OP No.1 despite a toll free call made on No.180030044444. The complainant has alleged that car was taken to Tricity Renault Panchkula by towing it.

7.             The OP No.1, who is manufacturer of the accidental car, has alleged that no liability in the matter can be fastened upon it as it has a relationship with OP No.2 and 3 on the basis of Principal to Principal and that the OP No.2 and 3 are the authorized dealer and not an agent of OP No.1. It is vehemently contended that the OP No. 1 do not sell the vehicle directly to any of the new customer and thus there is no privity of contract between the complainant and the OP No.1. It is further contended that the OP No. 1 does not allocate any vehicle in favour of any particular buyer at the time of billing it to the dealer from its manufacturer unit at Chennai and the transaction of the vehicle between the authorized dealer and the OP No. 1 corporation stands completed as soon as the vehicle is handed over to the delivery service of transport it to the Authorized Dealer’s destination. It is contended that the OP No.1 does not accept the cost of the vehicle from any individual purchaser. It is further alleged that the OP No. 1 being the manufacturer is not liable and responsible for any kind of deficiency pertaining to repair and insurance or insurance related issue/ claim of the vehicle. The learned counsel placed reliance upon the law laid down in the following cases;

1. Jamanlal Goenka College and Hospital & Anr vs. Sr. Rahul Paras Maru, 2012(2), CPR 306 (NC).
2. M/s Mukherji Builders & Construction Corporation Vs. Dr. (Mrs.) Annapurna Mishra, Revision Petition No.355 of 2013 and I.A. No.1 of 2013(NC).
3. M/s Alliance Inorganics Ltd. Vs. The Pradeshliya Industrial & Investment Corporation of U.P. Ltd. Vs. Another, Original Petition No. 168 of 2001(NC).
4. Maruti udyog ltd. Vs. Nagender prasad sinha & others decided on 04.05.2009(NC).
5. Indian Oil Corporation vs. Consumer Protection Council, Kerala & Anr. II (1994) CPJ 21(SC)
6. Mercedes-Benz India Pvt. (formerly known as Daimlerchrysler India Ltd.) & Another versus Intercard(India) Ltd. decided on 09.05.2013(NC).
7. M/s Sohal Motors Vs. Shiromani Gurudwara Parbandhak Committee & Anr. In revision petition no. 3835 of 2010 decided on 19^th may, 2011(NC).
8. Dalip Singh Vs. State Of U.P. in C.A. No. 5239  2002 as decided on 03.12.2009 LNIND 2009 (SC) 2065.
9. Delhi Development Authority Vs. D.C. Sharma as decided on 18.02.2014 in I.A.No.1620 of 2013(NC).

 

8.             The OP No.2 has denied the liability in the matter stating that it has no information that the accidental car was taken to Tricity Renault Panchkula by towing it and further no inaction or negligence can be attributed on its part in view of the fact that vehicle was repaired by OP No. 3. 

9.             The OP No.3 has resisted the claim stating that a manufacturing defect of the vehicle is covered during the warranty period but the physical damaged to it caused due to some collision or accident is not covered under the warranty period.  The learned counsel appearing on behalf of OP No.3 asserted that the loss pertaining to the vehicle had occurred due to a collision as admitted by the complainant causing damages to the oil tank of the vehicle and thus, the losses sustained in the accident are liable to be claimed from the insurance company and not from the OP No.3.

10.            The OP No.4 has alleged that the settlement of the claim is based on certain parameters and the surveyor, who is an expert in his field, has assessed the loss to the tune of Rs.1,383/- vide his report (Annexure R4/6). The learned counsel vehemently contended that engine of the car got seized due to the negligence of the complainant as she continued to drive the vehicle without engine oil after the incident. The learned counsel contended that the admission of the complainant in Para No.2 of the complaint that the car had stopped and did not start again after few minutes from the accident clearly proves that the engine of the car got starved because of non-lubrication. The learned counsel asserted that the consequential losses are not payable under the policy. It is alleged that the report of the surveyor is of utmost importance and the same cannot be ignored or brushed aside. Concluding the arguments, the learned counsel stated that the loss to the vehicle did not occur as a result of direct impact of the engine body with the road; rather it occurred due to the careless driving of the complainant and thus the complaint is liable to be dismissed.

11.            Since no manufacturing defect has been alleged, thus, no deficiency can be attributed on the part of the OP No.1. Similarly, no deficiency can be attributed to the seller i.e. OP No. 2 and to the repairer who is OP No. 3.

12.            Now, we have to examine whether the loss to the vehicle in question falls within the ambit of the terms and conditions of the policy (Annexure R-4/5). The occurrence of the incident within the subsistence period is not disputed. The OP No. 4 has declined the payment of repair charges on the ground that loss to the engine falls under the category of consequential losses. No doubt, the consequential losses are not covered under the terms and conditions of the insurance policy but in the present case, incident took place near Amartex Panchkula on 10.02.2018 and after few minutes the car did not start again and stopped. Here, we may clarify about the words ‘few minutes’ which means negligible and thus the car stopped somewhere very near to the place of incident compelling the complainant to take the vehicle to Tricity Renault by towing it. Towing of the vehicle is not disputed by any of the OPs. We have perused the surveyor’s report (Annexure R4/6) minutely which reveals that Sh.Pankaj Bajaj, Surveyor, while assessing the loss, found that there was impact at the bottom of body of car and it came into his notice that the engine got ceased which required repairs. The said surveyor has further mentioned in his remarks that the details were discussed with insured and the repairer with technical grounds. However, from the perusal of aforementioned surveyor’s report (Annexure R-4/6) we do not find the reasons or the causes on account of which the engine of the car got ceased. Even the technical grounds which has allegedly been discussed by the surveyor with the repairer have also not been described in the said report (Annexure R-4/6). We have found that the surveyor did not visit the site to have a first hand knowledge of the facts and circumstances surrounding the place of incident. In our considered opinion, non-visiting of the site by the said surveyor while assessing the loss to the damaged vehicle is a serious lacuna and the same is fatal for the OP No.4.  If the surveyor had taken the pain to visit the site, he would definitely have watched the traces of incident including the spilling of oil lubricant on the road. The surveyor has attributed the damages of the vehicle to the careless driving by the complainant; however, neither the surveyor nor anybody else has clarified as to how far the car was driven by the complainant from the place of incident leading to the seizure of the engine. It is true that a surveyor’s report is an important and valuable piece of evidence but the same cannot be treated to contain a gospel truth in every case. We have seen many lacunas and defects in the aforesaid surveyor’s report. We may safely rely upon the order passed by the Hon’ble State Commission, Delhi  in the case titled as Suresh Chand Jain Vs. Universal Sompo General Insurance Co. Ltd. & others., 2016(2) CLT 409(DEL) wherein it has been held as under:-

“Surveyor report-Held- Report of the expert surveyor is not ultimate document to reach at a conclusion to allow or not allow  the claim- Courts had to apply their mind also”.

In another judgment passed by Hon’ble State Commission, Haryana in the case titled as The New India Assurance Co. Ltd Vs. M/s Godara Construction Co. 2018(3) CLT 352 (HR), it has been held as under:-  

“Surveyor’s report-held- That the report of expert surveyor is not ultimate document to reach at the conclusion and the courts are required to apply their minds also- This fact also cannot be completely overlooked that the surveyors are always  paid and appointed by the Insurance Companies  without any say of any type on the part of the complainant”.

13.            In view of the aforesaid discussion, we are of the considered opinion that the denial of the repair claim pertaining to the replacement of the engine by OP No.4 in toto is not justified. Keeping in view the facts and circumstances of the present case the OP No.4 should have settle the repair claim amounting to Rs.42,142/- as per tax invoice (Annexure C-4) on non standard basis.  In this regard we may rely upon the decision of the  Hon’ble National Commission delivered  in case titled as Tata AIG General Insurance Co. Ltd Vs. Manvinder Singh and others 2019(2) CLT 534 (NC) wherein it has been observed as under:-

“Insurance claim-Engine got seized due to total leakage of oil from  the engine,  as a stone  hit the oil pan of vehicle-Repudiation on the ground that as the consequential loss has happened due to negligence of the driver, the insurance company is not liable  to indemnify  loss- Held-There seems  to be some  negligence on the part of the driver- He should have stopped the vehicle  when stone  hit the vehicle and should have checked for any damage- Thus, the contributory negligence  on the  part of the driver is there, but  this negligence is not in that proportion so as to deny the total claim”.      

14.            In view of the aforementioned facts and the case laws(supra), we hold the OP No.4 liable to indemnify the complainant pertaining to the expenses incurred by her vide tax invoice(Annexure C-4) amounting to Rs.42,142/- on non-standard basis. The present complaint is dismissed qua OPs No.1 to 3 as no deficiency has been found against them.

15.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OP No.4:-

1. To pay an amount of Rs.31,600/- i.e. 75% of the total tax invoice amounting Rs.42,142/- to the complainant alongwith 9% per annum w.e.f. the date of filing of the complaint till its realization.
2. To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

16.            The OP No. 4 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OP No.4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 11.10.2019

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                                        

President