Per Justice Sham Sunder , President This appeal is directed against the order dated 16.08.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it accepted the complaint and directed the OPs to pay the remaining amount of Rs.1,66,836/- (Rs.2,86,836 - Rs.1,20,000/-) to the complainant within 30 days alongwith Rs.5000/- as costs of litigation, from the date of receipt of a copy of the order, failing which, the OPs were directed to pay interest @ 9% p.a. from the date of filing the complaint i.e. 15.2.2010 till actual payment. 2. On 13.03.2009, the complainant (now respondent No.1) purchased a Swift car from OP-1 (now appellant) for the sum of Rs.4,40,442/-. The said car was insured by OP-2 through OP-1, for the period from 13.03.2009 to 12.03.2010. On 30.07.2009, at 2.30 p.m. the said car met with an accident, the report whereof was lodged with the concerned Police Station. It was stated that on the same day the complainant handed over the damaged car to OP-1, and intimation of the same, was also sent to OP-2. An official of the Insurance Company reached the premises of OP-1, on 31.07.2009, and issued the confirmation. OP-1, in consultation with OP-2, assured that the car, in question, would be repaired for an amount of less than Rs.1,20,000/- and, on that assurance, the claim was settled at Rs.1,20,000/-. On 2.09.2009, OP-1 informed the complainant that the amount involved for the repair would be more than Rs.1,20,000/- He then informed the same to OP-2 and told it to repair the car at its cost, upon which, it was assured by OP-2 that, in case, the expenditure on repair of the car was to be more than Rs.1,20,000/-, then, the said repair would be made at its cost. On such assurance of OP-2, the complainant received the pay order amounting to Rs.1,20,000/- from OP-2, whereas, the estimate prepared by OP-1 for repair was about Rs.5.16 lacs. The complainant again wrote a letter to OP-2 on 24.09.2009 and requested it to get the car repaired, at its end, but he did not get any response from OP-2. Thereafter, he approached OP-2 several times, but all in vain. It was further stated that the car was given to OP-1 for repair on 31.07.2009 . It was assured to be delivered back after 20 days, but the same was delivered to him on 07.12.2009, after paying Rs.2,86,836/- to OP-1, and that too, after making a number of requests. It was further stated that OP-2 failed to make the payment of Rs.1,66,836/-, which was paid extra, by the complainant, to OP-1, for repair of the car. It was further stated that OP-2 also informed the complainant verbally that the insurance policy had been cancelled and, thus, he would be required to get his vehicle insured again. It was further stated that again the complainant got the said car insured from Oriental Insurance Company Ltd. Mohali for the period from 8.12.2009 to 7.12.2010, for which, he had to pay Rs.10,876/-. It was further stated that the acts of the OPs amounted to deficiency in service and indulgence into unfair trade practice. When the OPs failed to redress the grievance of the complainant, a complaint under Section 12 of the Consumer Protection Act (hereinafter to be called as the Act only) was filed. 3. OP NO.1, in its reply, admitted the factual matrix of the case. It was stated by it that the car was insured with OP NO.2. It was further stated that OP No.1 had no role to play except that it repaired the car, in question, when it met with an accident, as the complainant consented for the said repairs himself, by it. It was further stated that OP NO.1, being a dealer, got the vehicle insured from OP NO.2, as no new vehicle could be allowed to be plied on the road, until the same is insured, before delivery. It was further stated that the complainant gave his choice for insurance of the vehicle by OP NO.2. It was further stated that it was OP NO.2, which was deficient, in rendering service, and indulged into unfair trade practice and not OP NO.1. It was further stated it was OP NO.1, which was neither deficient, in rendering service, nor it indulged into unfair trade practice. 4. OP-2, in its reply, admitted the factual matrix of the case. It was stated that after the accident took place, the survey was got conducted from a competent surveyor on 1.8.2009. He further submitted that the complainant had received an amount of Rs.1,20,000/- on 28.8.2009 in full and final settlement of the claim, lodged by him. He further submitted that after the receipt of the amount, aforesaid, in full and final settlement of the claim, lodged by the complainant, he could not demand any further amount with regard to the damage, caused to the vehicle, or on account of the expenditure, incurred by him, over and above, what was paid to him. It was further stated that OP No.2 was neither deficient, in rendering service, nor it indulged into unfair trade practice. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum passed the order, referred to above, in the opening para of this order. 7 Feeling aggrieved, the instant appeal, was filed by the Appellant/ OP No.1. 8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellant/OP No.1, submitted that, it sold the vehicle to the complainant/respondent No.1. He further submitted that the vehicle was got insured with OP No.2. He further submitted that when the vehicle met with an accident, as per consent of the complainant, the same was repaired by OP No.1 and a sum of Rs.2,86,836/- was charged from him as repair charges. He further submitted that, in case, the Insurance Company, OP No.2, did not pay him the full amount of repairs, then it (OP No.2) could only be held liable for deficiency in service and indulgence into unfair trade practice. He further submitted that, as per information, the Insurance Company filed an appeal, against the order impugned, which was dismissed by this Commission. He further submitted that no allegation against OP No.1/appellant, was levelled, in the complaint, by the complainant, nor any relief was claimed against it, by him. He further submitted that the District Forum, was wrong, in coming to the conclusion, that OP NO.1 was also liable to pay the amount awarded, alongwith OP NO.2. He further submitted that the order impugned, qua the appellant, being illegal, is liable to be set aside. 10. The Counsel for complainant/respondent NO.1, did not dispute the factum, that, in actuality, no relief was claimed against the appellant/OP NO.1. 11. The Counsel for respondent NO.2 ,submitted that, once the amount of Rs.1,20,000/-, on account of damage, caused to the vehicle, in question, after the receipt of survey report, was obtained by the complainant, in full and final settlement of the claim lodged, now it does not lie in his mouth to say that he was not paid the full amount of repairs, which was spent by him. He did not say anything with regard to the liability of the appellant. 12. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal deserves to be accepted, for the reasons, to be recorded hereinafter. There is, no dispute, about the factum, that the complainant/respondent purchased Swift car from the appellant/OP No.1 for a sum of Rs.4,40,442/- . It is not disputed that the same was insured by OP NO.2 through OP NO.1/appellant. It was, on account of the reason, that as and when any vehicle is sold by the dealer, it cannot be taken out of the premises of the dealer, on the road for plying, until and unless, it is insured by the Insurance Company. Undisputedly, the car met with an accident, and a sum of Rs.2,86,836/- was paid as repair charges to OP NO.1/appellant, by the complainant. Under these circumstances, by no stretch of imagination, it could be said that OP NO.1 played any other role, except that it sold the car, the same was insured by OP NO.2 through it and it repaired the same, when it met with an accident. Once the car was insured and damage was caused to it, if it was covered under the Insurance policy, the amount of repair was to be paid by OP NO.2 Insurance Company. Even the perusal of the averments, contained in the complaint, clearly goes to show that no relief was claimed against OP NO.1, as it was neither insurer, nor had any role to play, so far as the accident of the vehicle was concerned. It appears that the District Forum wrongly held that OP NO.1/appellant was liable to pay the amount awarded, jointly and severally with OP NO.2 Insurance Company. OP NO.1/appellant was neither deficient, in rendering service, nor indulged into unfair trade practice. No liability, therefore, could be fastened upon it, by the District Forum. The order of the District Forum, qua it, is liable to be set aside. 13. In so far as, the liability of the Insurance Company is concerned, the same has been discussed, in detail, by the District Forum, in the impugned order. The District Forum, also came to the conclusion, that the complainant obtained a sum of Rs.1,20,000/- under the impression that the amount of repair would not exceed the same. Thus, the District Forum was right in holding OP NO2, responsible for payment of Rs.1,66,8836/- alongwith cost and interest. The appeal filed by OP NO.2 has already been dismissed, as submitted by the Counsel for the appellant. 14. The order of the District Forum, qua appellant/ OP NO.1, therefore, suffers from illegality and perversity , and the same deserves to be set aside. 15. For the reasons, recorded above, the appeal of the appellant/OP No.1 is accepted with costs, quantified at Rs.3000/-. The impugned order fastening the liability qua OP NO.1/appellant is set aside. 16. Certified Copies of this order be sent to the parties, free of charge. 17. The file be consigned to the record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
