Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 150
Instituted on : 10.04.2018.
Decided on : 04.08.2022
Deepak Khera S/o Sh.Dilbagh Rai Khera R/o 1109/7 Tej Colony, Rohtak, Ph. No. 9416102617.
.......................Complainant.
Vs.
- Rohtak Suzuki, Sonepat Stand, Rohtak through its Incharge/Manager.
- The New India Assurance Co. Ltd. Rohtak through its Manager
……….Opposite parties..
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
Present: Shri K.L.Khera, Advocate for the complainant.
Shri Naveen Chaudhary, Advocate for the opposite party No. 1.
Shri Anil Sharma, Advocate for opposite party No. 2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case as per complainant are that complainant is owner of motorcycle bearing registration no.HR-12-N-4484, Model GS 150-R M/C vide Chassis No. MB8NG-49AC 98106180, Engine No. G-423-106235 and the said vehicle is insured with the opposite party No.2. On dated 23.02.2018, the complainant was coming from Gurgaon to Rohtak on his said vehicle and when he reached near village Maina, then a buffalo came opposite side on the road. Complainant tried to stop his vehicle but the same was slipped and complainant fell down on the road. Thereafter motorcycle of the complainant did not start as the race wire was also broken. Complainant took his vehicle to the workshop of the opposite party no. 1 and he gave estimated repair cost of Rs.8000/- vide job card no.4197 dated 23.02.2018. Opposite party no. 1 also submitted detailed estimate on even date amounting to Rs.12160/- including labour charges. The motorcycle is still in the custody of opposite party no.1. The said matter is also brought to the notice of opposite party no. 2. It is further submitted that the complainant approached the opposite party no. 1 and asked to deliver the motorcycle but the opposite party no. 1 stated that the Engine of motorcycle has been damaged/seized and demanded of Rs.16,500/- in addition to Rs.8000/-. The complainant protested the same and denied to give Rs.16,500/- as the opposite party no. 1 never asked to Rs.16,500/- at the time when the vehicle was taken in custody and estimate was prepared. The said estimate was prepared by opposite party no. 1 after supervising the vehicle. The complainant asked the opposite party no. 1 to deliver the vehicle in a running position and ready to make the payment of Rs.8000/- but the opposite party no. 1 asking for Rs.16,500/- beside Rs.8000/-. The said vehicle was also inspected by Surveyor of opposite party no. 2 who had also not complained of any damage/seize of engine, and this fact become obvious that the vehicle was damaged/seized while repairing the motorcycle. As such, there is deficiency in service on the part of opposite parties. Hence this complaint and it is prayed that opposite parties may kindly be directed to return motorcycle in running condition and pay an amount of Rs.50,000/- as damages besides interest and litigation expenses to the complainant.
2. After registration of complaint, notices were issued to the opposite parties. Opposite party No. 1 appeared and filed its reply submitting therein that the complainant brought his motorcycle Suzuki GS-150-R bearing registration No. HR-12-N-4484 in accidental condition to the answering opposite party on 23.02.2018. The vehicle was received by the answering opposite party no. 1 vide Job card no. 4197 dated 23.02.2018 in non-start and accidental condition and the complainant also instructed for repairing of the starting problem at that time. Further answering opposite party intimated to the complainant the estimated cost of parts as Rs.8000/- for accidental work. The vehicle was insured with opposite party no. 2 so the opposite party no. 2 deputed a surveyor who inspected and conducted the survey of the aforesaid vehicle in respect of the physical loss and thereafter accidental repairs of the vehicle were carried out by the answering opposite party. During the course of accidental repair, the race wire was replaced after which it was found that the engine of the motorcycle was ceased due to which the motorcycle was not starting. So, they contacted the complainant telephonically in this respect upon which the complainant confirmed and consented to start the engine work. The motorcycle of the complainant is 2009 make and its market value is very less, hence the complainant is not ready to make the payment of the estimated cost of engine repair work. The opposite party no. 1 is ready to deliver the vehicle to the complainant on his making the payment of Rs.6850/- towards accidental repair work, however if the complainant wishes to get the engine repair work done, he will have to pay towards the same. All the other contents of the complaint were stated to be wrong and denied and opposite party no. 1 prayed for dismissal of complaint with costs.
3. Opposite party no. 2 in their reply has submitted that after getting the information from the insured/complainant about the damages of the motorcycle No.HR-12-N-4484, opposite party immediately deputed Mr. Nitin Sharma, Surveyor and Loss assessor to assess the loss of damaged motorcycle and after thoroughly, carefully and minutely inspection of the vehicle, the surveyor without prejudice assessed the loss of vehicle/motorcycle to Rs.3751.20/-, the surveyor has mentioned in his report, that the insured/complainant has given a letter that he is not interested to take the claim and then the surveyor recommended to close the claim file as ‘No Claim’. All the other contents of the complaint were stated to be wrong and denied and opposite party no.2 prayed for dismissal of complaint with cost.
3. Ld. Counsel for the complainant in his evidence has tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and closed his evidence on dated 15.07.2019. Ld. Counsel for the opposite party No. 1 in his evidence has tendered his affidavit Ex.RW-1/A, documents Ex. R1 to Ex. R2 and closed his evidence on dated 04.03.2020. Ld. Counsel for the opposite party No. 2 in his evidence has tendered his affidavit Ex.RW-2/A, documents Ex. RW2/1 to Ex. RW2/6 and closed his evidence on dated 22.01.2020.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case the accident/incident had taken place on 23.02.2018 and the vehicle was brought before the workshop of respondent no.1 for repair. Initially the respondent no.1 gave an estimate of Rs.8000/- for the repair of the vehicle. The estimate is Ex.C2. Thereafter an another estimate Ex.C5 has been issued on 23.02.2018 for Rs.11660/-+500/-(including workshop labour charges). Regarding this accident the respondent no.2 was also informed by the complainant and Mr. Nitin Sharma surveyor/loss assessor has been appointed by the insurance company to assess the loss of vehicle in question.. As per the assessment the surveyor assessed the loss and placed on record a copy of the survey report as Ex.RW2/1. Perusal of the report shows that initially an estimate of Rs.12630/- has been issued by the company but after the assessment the assessed amount comes to Rs.3751/-. On the other hand, we have minutely perused the written statement filed by the opposite party No.1. As per respondents, the complainant had concealed the material facts before the Hon’ble Commission. In fact a consent has been sought from the complainant for repair work of the vehicle and also sought some consent for engine repair work in the damaged vehicle. The surveyor has conducted the survey of the damage vehicle and when the repair work has been carried out of the vehicle, at that time, the mechanic noted that the engine of the vehicle has been seized after the accident. The respondent no.1 telephonically informed the complainant that the engine work is required and they sought some confirmation from the complainant but the complainant had denied to change the parts of the motorcycle. The motorcycle of the complainant is lying with the respondent no.1 without engine repair. Respondent no.1 has further pleaded in his written statement that the respondent no.1 is ready to deliver the vehicle of the complainant on making the payment of Rs.6850/- towards the accidental repair work.
6. In the present complaint the survey of the vehicle has been conducted by the surveyor and the surveyor has not mentioned in his report regarding the damage in engine. The main contention of the complainant is that initially an estimate of Rs.8000/- has been prepared and on the same day another dated estimate of Rs.12160/- was also prepared. Thereafter respondent no.1 demanded an amount of Rs.16500/- on account of engine repair charges in addition to previously demanded cost i.e. Rs.8000/-. As per complainant the engine repair cost has wrongly been demanded by the opposite party. Here it is the prime duty of the respondent no.1 that if there is further damage in the vehicle they should intimate the surveyor regarding the damages in the engine of the vehicle but the respondent no.2 or the surveyor has not been intimated by the respondent no.1. So there is grave deficiency in service on the part of respondent no.1. On the other hand complainant gave a written consent to the insurance company that he does not want to proceed his claim further in the insurance company and he withdraws his claim from the insurance company. After considering this application i.e. Ex.RW2/5, the insurance company closed the file of the complainant as no claim.
7. The motorcycle in question is still standing in the workshop of respondent no.1 since the year 2018 but neither the vehicle has been repaired by the opposite party No.1 nor any intimation has been given to the complainant that they have not repaired the vehicle or to pick up the vehicle from the workshop. The vehicle in question is 2009 model and since 2018 the same has not been repaired by the opposite party No.1. Now the same cannot be repaired. Hence there is deficiency in service on the part of opposite party No.1 and opposite party No.1 is liable to compensate the complainant. The IDV of the vehicle is Rs.21000/-
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 to hand over the vehicle in question to the complainant and also to pay Rs.18000/- as compensation on account of cost of vehicle (Rupees eighteen thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 10.04.2018 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service as well as litigation expenses to the complainant within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
04.08.2022.
.......................................................
Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
