STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s Lally Motors, Plot No.6, Industrial Area, Phase-1, Chandigarh, through its Authorized signatory.

……Appellant

                           V E R S U S

1.  Sandeep Arora s/o Sh. Madan Arora, r/o #1018, Sector 44-B, Chandigarh.

2.  ICICI Lombard General Insurance Co. Ltd, SCO No.24-25. First Floor, Sector 8-C, Chandigarh, through its Branch Manager.

3. ICICI Lombard General Insurance Co. Ltd, Zenith House, Keshavrao Khadye Marg, Mahalaxmi Mumbai 400034,

              ....Respondents.

Appeal U/s 15 of Consumer Protection Act, 1986

BEFORE:             HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                             MRS. NEENA SANDHU, MEMBER.

Argued by:     Sh. Aftab Singh, Advocate for the appellant.

                     Sh. Vinay Gupta, Advocate proxy for Sh. Anant Pal Singh, Advocate for respondent No.1.

                     Respondents No. 2 and 3 exparte.   

PER  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal is directed against the order dated 17.08.2010, rendered by the District Consumer Disputes Redressal Forum-1, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which the OPs, were directed to pay to the complainant Rs.1,95,351/- alongwith litigation costs of Rs.5,500/- within thirty days, from the date of receipt of a copy of the said order, failing which, they were to pay the  same alongwith interest @ 9% per annum, since 12.10.2008 (one month after, the report Annexure C-9 of the surveyor) till the amount was actually paid to the complainant.

2.             On 14.07.2008 the complainant (now respondent no.1) purchased a Honda Accord Car for Rs.16,82,000/- from the authorized Dealer Lally Motors, OP-3 (now appellant). He got the said car insured from the OPs 1 & 2 (now respondents No.2 and No.3) and a cover note was issued by OP-2, on behalf of OP-1. The said insurance was valid from 15.07.08 to 14.07.09, for which, the complainant had paid Rs.37,961/- as premium, to OP-2, through cheque and the same was encashed. On the night of 4.8.2008, the said car, developed some starting problem, which occurred due to heavy rain, and the water accumulated on the intersection of Sectors 32 & 31, Chandigarh, upto knee level and entered the engine, due to which, it (engine) got seized. The car got stuck, in the water, on way back of the complainant to his house, which fact was corroborated by the surveyor, in its report, dated 12.9.2008. OP-3, without the consent of the complainant, approached OP-2, and apprised it about the defect, as well as the, expenditure to be incurred for repairs.  On 19.09.08, when he visited OP-3 to take delivery of the said car, he was shocked to know that the estimated cost of repairs of the car was raised to Rs.2,44,000/-. He was told that the vehicle would only be delivered, after the cash payment. The complainant told that the car was new and had travelled 896 kms only. He entertained an apprehension, that there may be some manufacturing defect, but OP-3 did not appreciate his view. After that, the complainant approached the officials of the OP-2, who assured that they would make the entire payment of the repair charges, and told him, to pay the said charges, firstly, out of his own pocket.  The complainant, immediately made the cash payment to OP-3, on the directions of OP-2 vide receipt dated 19.9.2008. OP-2 made the payment of Rs.80,000/-, to the complainant, and assured that, the balance amount would be paid lateron.  The complainant accepted the said amount, with the hope that he would get the remaining amount. In the meanwhile, the vehicle of the complainant was stolen, regarding which an FIR no.302 dated 14.11.08, was lodged at Police Station, Sector 36, Chandigarh.  Thereafter, the complainant raised  claim, on account of the theft of his vehicle, and the same was paid by the OP-2, to him, after getting the non-traceable certificate, but the balance payment of repair charges was not made by OP-2. The complainant ran from pillar to post, to get the balance repair charges, of the said vehicle amounting to Rs.1,64,000/-  and also served a legal notice dated 31.7.2009, but the OPs, did not make the payment of the amount claimed. It was further stated, that the aforesaid acts of the OPs, amounted to deficiency in service, and unfair trade practice.

3.             In their written reply OPs 1 & 2, stated that, it was evident, that the damage caused to the vehicle was not, on account of, any accident but on account of starting problem, when it had been driven for only 896 kms. It was further stated that the said defects were not, on account of any external source or accident and the complainant never lodged any claim with the OP, in that respect. It was further stated that the manufacturing defects and normal wear and tear, were not covered under the policy, of any Insurance Company nor it was provided under any policy provided by them, including the policy in dispute. It was further stated that the documents provided to the OPs, were forged and fabricated.  It was further stated that, if there had been any defect, on account of the water entering the vehicle, the complainant should have immediately stopped the vehicle.  It was further stated that OP-1 and OP-2, never promised, to make the entire payment to the complainant, rather the amount of Rs.80,000/-, was released, on the basis of documents, provided to them. It was denied, that there was deficiency in service, or indulgence into unfair trade practice, on the part of the OPs.  

4.             Despite service of OP-3, no duly authorized representative appeared on its behalf.  Accordingly OP-3 was proceeded against ex-parte.

5.             The Parties led evidence, in support of their case.

6.             After hearing the Counsel for the complainant as well as OP-1 and OP-2, and, on going through the evidence, on record, the District Forum, accepted the complaint, in

 the manner, referred to in the opening para of this order.

7.             Feeling aggrieved, the instant appeal, was filed by the Appellant/OP-3.

8.             Notice was issued to the respondents for 15.11.2010. On 15.11.2010, Sh. Rajneesh Malhotra, appeared as a proxy Advocate on behalf of respondents No. 2 and No.3, but thereafter none appeared for respondents No.2 and No.3. Accordingly, respondents No.2 and No.3, were proceeded against ex-parte on 04.05.2011.

9.             We have heard the Counsel for the appellant, as well as respondent No.1, and have gone through the evidence and record of the case, carefully. 

10.           The Counsel for the appellant/OP-3, submitted that OP-3 was not at all responsible, for payment of any amount, on account of damage, to the vehicle. He further submitted that, appellant/OP-3 was only the dealer, who sold the car to the complainant/respondent No.1. He further submitted that, since, the car was duly insured, OP-1 and OP-2 (now respondents No. 2 and No.3) were responsible, to pay the amount of repairs, to the complainant/respondent No.1. He further submitted that, no liability, with regard to payment of repair charges, could be fastened upon the appellant/OP-3. He further submitted that the District Forum was wrong in holding that, OP-3/appellant alongwith, other OPs was liable, for the payment of amount claimed by the complainant, in the complaint. He further submitted that the order of the District Forum, qua, appellant/OP-3, being illegal, and perverse, is liable to be set aside.

11.           The Counsel for Sandeep Arora (respondent No.1/complainant), very frankly admitted that, no relief was sought against OP-3/appellant, by the complainant/ respondent No.1. He further submitted that, respondent No.1, has no objection, in case, the order of the District Forum, qua the appellant/OP-3, is set aside

12.           After giving our thoughtful consideration, to the contentions,  of  the  Counsel  for the parties, and, on going

through the documents and the evidence, on record, we are of the considered opinion, that in the complaint, no relief, whatsoever, was sought by the complainant/respondent No.1 against OP-3/appellant. OP-3/appellant was only the dealer, who sold the car, in question, to the complainant/respondent No.1. In case the car suffered any damage, in its engine, due to the entry of water, on account of heavy rain and the amount of repairs was paid by him (complainant), then the vehicle being insured, respondents’ No. 2 and 3, were liable to pay the same, as admissible under the terms and conditions of the Policy and as per the provisions of law. In our considered opinion, the order of the District Forum, against OP-3/appellant, directing it to pay the amount mentioned, in the opening para of the order, alongwith OP-1 and OP-2 (now respondents’ No. 2 and No.3) was, thus, not passed on the correct appreciation of evidence and law, on the point. The order passed by the District Forum, against OP-3/appellant, being illegal, and perverse, is liable to be set aside.

13.           For the reasons recorded above, the appeal filed by the appellant/OP-3 is accepted, with no orders as to costs. The order of the District Forum, directing OP-3/appellant, to pay the amount, is set aside.

14.           Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.

Pronounced.

4^th May 2011.

                                                                                            Sd/-

    [JUSTICE SHAM SUNDER]

    PRESIDENT

                                                                                Sd/-

   [NEENA SANDHU]

   MEMBER