STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

Joshi Automobiles Private Limited, C-117, Industrial Foal Point, Phase-VII, Mohali (Punjab), through its General Manager Sh.Sanjay Minhas.

                                .…Appellant/Opposite Party No.3

                                Versus

1]     Sanjiv K. Dahiya, Advocate, s/o Sh.Jai Chand Dahiya, R/o 881-F, Sector 21, Panchkula (Haryana)

                                                ---Respondent/Complainant

2]     Reliance General Insurance Anil Dhirubhai Ambani Group, SCO 212-214, Ist Floor, Sector 34-A, Chandigarh, through its B.C.M.

3]     Reliance General Insurance Anil Dhirubhai Ambani Group, SCO No.212-214, Ist Floor, Sector 34-A, Chandigarh, through its Regional Manager.

                ---Respondents/Opposite Parties No.1 and 2 

BEFORE: JUSTICE SHAM SUNDER, PRESIDENT

                MRS. NEENA SANDHU, MEMBER

Argued by: 

Sh.Rajesh Verma, Advocate for appellant.

Respondent No.1 in person.

Sh.Tejender K.Joshi, Advocate for respondents No.2 and 3.

                                ----

MRS. NEENA SANDHU, MEMBER

1.                    This appeal is directed against the order dated 23.09.2011 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant (now respondent No.1) and directed the Opposite Parties as under:-

                              i.   “OPs No.1 & 2 shall jointly & severally reimburse upto Rs.26,200/- to the complainant against the repair bill, which will be prepared by OP-3.  This will be in consonance with the assessment made by the Surveyor in his report Annexure R-1.

                             ii.   OPs No.1 & 2 shall also pay Rs.30,000/- as compensation for causing undue harassment to the complainant by taking unnecessary and unwarranted objections.

                           iii.   OPs No.1 & 2 shall further pay Rs.7000/- as cost of litigation.

                            iv.   OP No.3 shall deliver the vehicle to the complainant after repair within 20 days from the date of receipt of copy of this order, on receipt of payment from the complainant.

                              v.   OP No.3 shall not claim any parking charges from the complainant as the delay in repair and collection of vehicle is not due to his fault.  

          The order be complied with by the OPs No.1 & 2 within a period of 30 days from the date of receipt of copy of the order, failing which they shall be liable to pay the decretal amount at (i) & (ii) along with penal interest @12% p.a. from the date of order till its actual payment to the complainant, besides paying litigation cost.  OP-3 shall also deliver the vehicle within the stipulated time”.

2.                    The facts, in brief, are that the complainant got insured his Hyundai Getz-GLS car, with Opposite Parties No.1 and 2 for the period from 11.9.2009 to 10.9.2010.  It was stated that at the time of obtaining the policy, the vehicle was thoroughly examined & checked by an official of Insurance Company. It was further stated that no damage to the vehicle was mentioned, in the policy, nor was there any mention of fitting of any CNG/LPG Kit, as the same did not exist, at the time of issuance of Insurance Policy. It was further stated that on 23.11.2009, the car met with an accident and suffered dents and scratches. The complainant made a claim with Opposite Parties No.1 and 2, but they denied the claim, on the ground, that the scratches/dents existed on the car, before the date of insurance.  It was further stated that the complainant, thus, had to get his car repaired from his own pocket for which he spent Rs.20,000/-. It was further stated that on 19.7.2010, the car again met with an other accident.  The complainant again lodged the claim with Opposite Parties No.1 & 2, and the car was delivered to Opposite Party No.3, on 20.7.2010, and was still lying there.  It was further stated  that  the vehicle was inspected by the Surveyor of Opposite Parties No.1 & 2 in the presence of the complainant. It was further stated that  the complainant was given an estimated date for completion of the repair as 30.7.2010.  In this repair order, there was no mention of fitting of any LPG/CNG Kit in the car.  It was further stated that at that time, the Service Adviser of Opposite Party No.3 was also present.  It was further stated that Opposite Parties No.1 & 2, had not even made any mention about the existence of LPG/CNG kit, in the vehicle at the time of first accident. It was further stated that the complainant never installed any LPG/CNG Kit in his car.  However,  Opposite Party No.1,  vide its letter dated 23.7.2010 rejected the claim stating, therein, that it was unable to proceed further on the ground that there was an LPG/CNG Kit  fitted, in the vehicle, without any endorsement in the policy. The complainant drew its attention to the letters dated 23.7.2010 and 31.8.2010 issued to him by the Opposite Parties No.1 & 2. The relevant extract of the letter dated 23.7.2010 (Ann.C-4) issued by Opposite Parties No.1 & 2 reads as under:-

        “On the perusal of survey report on record we observed that:-

 Unauthorized LPG/CNG kit fitted in the vehicle without any endorsement in Policy.

        We therefore express our inability to proceed further with the claim vehicle but if you have anything afresh to say in the matter, please reply this letter within 7 days after the receipt of this letter failing which we shall presume that you have nothing to say in the matter & we shall close the file treating as No Claim without any further communication to you in this regard.  We would like to place on records our concern for the loss and would look forward to serving you once again in future.  

                The relevant extract of letter dated 31.8.2010 (Ann.C-5) issued by Opposite Parties No.1 & 2 to the complainant later on, reads as under:-

        “As per survey report there is LPG Kit fitted in the insured vehicle, which is not endorsed in the Insurance Policy.

        As per GR 42 of India Motor Tariff, “In case  of vehicles fitted with bi-fuel system such as Petrol/Diesel and CNG/LPG, permitted by the concerned RTA, the CNG/LPG kit fitted to the vehicle is to be insured separately at an additional premium @4% on the value of such kit to be specifically declared by the insured in the proposal form and/or in a letter forming part of the proposal form.”

        It is observed through your Policy copy that you have not got the endorsement done for LPG Kit paying additional premium.

Hence, we express our inability to proceed further with the claim.  We would like to place on records our concern for the loss and would look forward to serving you once again in future.”

It was further stated that despite repeated  requests of the complainant, Opposite Parties No.1 and 2, failed to settle the claim and, ultimately, he served a legal notice dated 9.8.2010 upon them, but to no effect. It was further stated that after receipt of letter dated 31.8.2010 (Annexure C-5), the complainant himself inspected the car and found that the Opposite Parties themselves fitted an old LPG Kit in the car.  The condition of the LPG kit so fitted showed that it was purchased from some scrap dealer and had not been used for the last 4/5 years. It was further stated that the complainant did not possess any other vehicle and, he was attending to his work by traveling in taxi.  It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In their written reply, Opposite Parties No.1 & 2 stated that there was no negligence, and deficiency, in rendering service, on their part.   It was further stated that after receipt of claim, the Surveyor Sh.Ankush Kumar was appointed to assess the loss, who examined the vehicle thoroughly and found that LPG kit was fitted, in the vehicle, and the same was not endorsed in the Insurance Policy.     It was further stated that as per GR-42 of Indian Motor Tariff, in case of vehicles fitted with bi-fuel system, the CNG/LPG kit fitted to the vehicle was to be insured separately at an additional premium @ 4% on the value of such kit to be specifically declared by the insured in the proposal form and/or in a letter forming part of the proposal form.  It was further stated that the insured neither inform about the fitting of LPG Kit, at the time of obtaining policy nor paid the extra premium, which amounted to non-disclosure of material fact and, as such, the claim was rightly repudiated vide letter dated 31.8.2010.  It was further stated that before assessing of the claim, the letters dated 23.7.2010 and 31.8.2010, already reproduced above, were sent to the complainant, asking him, to explain his case. As the complainant did not reply to the said letters, the admission of the facts being presumed, the claim was rightly repudiated.  It was further stated that the surveyor assessed the loss for an amount of Rs.26,200/-.   It was denied that Opposite Parties No.1 & 2, illegally got the LPG kit fitted in the car.  It was further stated that Opposite Parties No.1 & 2 were not liable for any consequential loss as claimed by the complainant. It was further stated that, Opposite Parties No.1 & 2 were neither deficient, in rendering service nor indulged into unfair trade practice.

4.                    In its written reply, Opposite Party No.3, stated that no relief was prayed for, by the complainant, against it.  It was further stated that the checking of vehicle or fitting of LPG/CNG kit, mentioned in the complaint, needed response from Opposite Parties No.1 & 2 only.   It was further stated that the car was lying parked in the same position, as it was received, and they were waiting instructions, from the complainant, to start the job work.  It was further stated that since the vehicle was lying parked unnecessarily, without any job work, hence they had right to charge parking charges @ 500/- per day, from the complainant. It was further stated that, Opposite Party No.3 was neither deficient, in rendering service nor indulged into unfair trade practice.

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

6.                    After hearing the complainant, in person, learned Counsel for the Opposite Parties, and on going through the evidence and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order. 

7.                    Feeling aggrieved, the instant appeal, has been filed by appellant /Opposite Party No.3.

8.                    We have heard the Counsel for the appellant, respondent No.1, in person, the Counsel for the respondents No.2 and 3 and have gone through the evidence and record of the case, carefully. 

9.                    The Counsel for Appellant/Opposite Party No.3 submitted that after the receipt of certified copy of the order passed by the District Forum, in order to comply with the same,  the appellant made an estimate of repairs of the car for Rs.1,30,000/- without dismantling the car, and the same was sent through a registered letter to the complainant on 16.11.2011 for obtaining his consent, to start the repair. However, the complainant, instead of giving his consent for repairs, filed an execution application, under section 27 of the Consumer Protection Act, 1986  to compel the appellant to repair the vehicle/complete the job work for Rs.26,200/- only, whereas, it was not possible for the appellant to repair the vehicle for this meagre amount.  He further submitted that the complainant himself in para 16 of the complaint mentioned the approximate cost of repair of the car at Rs.50,000/-.  He further submitted that, moreover, in para no.19 of the impugned order, it was categorically observed by the District Forum that “as the car has yet not been repaired, the final bill is not ready, hence the actual cost of the repair is not yet ascertained”.   Once, the District Forum observed that the cost of repair, is yet to be ascertained, then, in our considered view, before giving any finding, it (District Forum) should have ascertained the cost of the repair, from any authorized workshop, especially when in the repair order submitted by Opposite Party No.3, there was no mention of the cost of the repair, though the description of the parts to be repaired/replaced was mentioned.  It was also not clear from the report of the surveyor, as to how, and, on what basis, he had arrived at the conclusion that cost of repairs of the vehicle worked out to be Rs.26,200/-. It was also not clear, from the report of the surveyor, whether the amount assessed by him, was on the basis of estimate or on actual repair basis.  In ordinary parlance,  in the first instance, the estimate of loss, to the vehicle, is prepared by the dealer/repairer and, thereafter, the surveyor assesses the loss and allows the workshop to do the necessary repairs. After the vehicle is repaired by the workshop, the repaired parts /replaced parts are verified by the surveyor, and only then, the final survey report is prepared, on the basis of which the Insurance Company is required to settle the claim of the insured. However, in the present case, no such exercise seems to have been undertaken by the surveyor. In the peculiar facts and circumstances of the present case,  in order to ascertain the estimated cost of repair, it would be appropriate, for the District Forum, to send the vehicle to the authorized dealer/repairer either, on its own, or with the consent of the parties and thereafter shall adjudicate upon the controversy, for arriving at the conclusion, as to what would be actual cost of repair/replacement of damaged parts; to what extent the Insurance Company would be liable to indemnify the insured; who will pay the amount of cost of repair/replacement of the damaged parts, beyond the amount to be paid by the Insurance Company, to the repairer; who will pay parking charges to Opposite Party No.3/appellant for the period during which the car remains parked in its premises.

10.                 For the reasons recorded above, the appeal is accepted, with no order, as to costs, and the impugned order of the District Forum, is set aside. The complaint is remanded back to the District Forum, with a direction, to decide the same afresh, on merits in accordance with law, in view of the observations, made in paragraph No.9 above. The parties are directed to appear before the District Forum, on  24.05.2012 at 10.30.a.m.

11.                 The District Forum record along with a certified copies of the order, be sent back immediately, so as to reach there, well before the date fixed.

12.                 Certified copies of this order be sent to the parties, free of charge.

13.                 The appeal file be consigned to Record Room, after completion

Pronounced.                                                                                      Sd/-

02.05.2012                                        [JUSTICE SHAM SUNDER]

                                                                                 PRESIDENT         

                                                                                                                        Sd/-                             [NEENA SANDHU]

                                                                                                MEMBER

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