Punjab

Ludhiana

CC/14/792

Sunil Kumar - Complainant(s)

Versus

Sewakunj Motors - Opp.Party(s)

Damandeep Singh

14 Feb 2017

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 792 of 19.11.2014

Date of Decision          :   14.02.2017

 

Sunil Kumar Arora, aged about 38 years son of Sh.Ram Sarup, resident of House No.320, Sector 25-C, Aery Mill Road, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

….. Complainant

Versus 

1.Sewakunj Hyundai, G.T.Road, Mandi Gobindgarh, Khanna side, Tehsil Khanna, District Ludhiana, through its Proprietor.

2.Gurinder Singh, authorized employee of Sewakunj Hyundai, Demo Service, near Bhadla Tota, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

3.Hyundai Motor India Limited, Plot No.H-1, Sipcot Industrial Park, Irrungattu Kottai, Sriperumbudur Taluk, District Kancheepuram, Tamil Nadu-602117, through its authorized person.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Harveer Singh, Advocate

For OP1                         :         Sh.Nitin Kapila, Advocate

For OP2                         :         Ex-parte

For OP3                         :         Sh.Vishal Gupta, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased an Eon car from Northern Hyundai, Ludhiana on 19.2.2012 with temporary registration certificate No.PB-10-R-2012-9008 after the same being got financed from HDFC Bank, Mandi Gobindgarh. That car met with an accident on 4.11.2012, when the complainant was coming from Ambala side to Gobindgarh, near Sirhind G.T.Road because it struck against the footpath. Axel and bumper of the car stood damaged, due to which, the car went out of working condition. Injury to none was caused. Complainant was compelled to leave the car at Sirhind. Op1 is the service centre, but OP3 is the dealer. Complainant visited OP1 for repair of his car, which was insured with Bajaj Allianz General Insurance Company Limited, Patiala for period from 19.2.2012 to 18.2.2013. On request of the complainant, employees of OP1 brought this car in the premises of OP1 for repair of axel and bumper only after towing the same from Sirhind to the premises of OP1 at Khanna on 5.11.2012. Jaspreet Singh, an employee of OP1 estimated the loss at Rs.10,000/- to Rs.15,000/- for repair. The original insurance policy of the car was handed over to OP1, who assured that amount will be got by the complainant from the said insurance company in view of the cashless policy scheme. From November, 2012 till 5.11.2013, the complainant continued to visit OP1 regularly for getting back his car after its repair, but every time, Op1 warded off the complainant on the pretext that the parts of the car were not available. Complainant disclosed as if OP1 has sent request to OP3 for supply of the said parts. OP3 is liable to supply the parts to dealer and service centre in time, but non supply of the same amounts to gross negligence on the part of OP3. On 7.11.2013, the complainant received a call from OP1 to the effect that he can get the car in repaired condition after paying Rs.70,000/- including paint charges of Rs.35,000/-. Op1 repainted the said vehicle without consent and permission of the complainant and also changed some parts and colour of the vehicle. By repairing the car owing to change of colour and spare parts, the value of the car alleged to have decreased. No bill was issued by OP1, despite demand. OP1 is an influential person. Matter taken through email to the company and reply of the same even was received. Complainant objected to the act of OP1 for demanding Rs.70,000/-. OP1 offered an amount of Rs.1,50,000/- to the complainant, if the complainant surrendered the car with OP1 in lieu of purchase of new one. Change of colour of the car rendered the car unfit as per legal documents. The car was new one and travelled upto 5000 kms only. On refusal by the complainant to accede to the request of OP1, OP1 has started claiming the additional charges of Rs.500/- per day as parking charges are also recoverable. That car is still lying with OP1. Legal notice dated 5.10.2013 was got served by the complainant, but OP1 created letter dated 1.10.2013. After receiving legal notice, OP2, an employee was sent to the office of complainant for settlement of issue with offer of surrender of car against consideration of Rs.2,50,000/- and purchase of new Hyundai car. By pleading deficiency in service on the part of Ops, prayer made for directing Ops to replace the car with new one and pay Rs.2 lac as compensation for mental harassment and agony. Interest @18% per annum on the amount of Rs.2 lac from November 2012 till actual realization even claimed. It is also claimed that earlier complaint filed by the complainant before District Consumer Disputes Redressal Forum, Fatehgarh Sahib was returned for presentation with Forum having jurisdiction. Thereafter, complainant filed complaint in this Forum, but the same was withdrawn, due to technical defect therein. Liberty was granted to the complainant to file fresh one after removing  the technical defect. Thereafter, this complaint filed.

2.                In written statement filed by Op1, it is pleaded interalia as if complaint is not maintainable; complainant has suppressed the material facts from this Forum disentitling him to any relief; complaint filed with ulterior motive; complaint is bad due to non impleadment of insurer Bajaj Allianz General Insurance Company Limited, Patiala. Besides, it is claimed that there is no deficiency in service on the part of OP1 because it has already carried out the necessary repairs as per the job work assigned to it and after doing these repairs, OP1 repeatedly called upon the complainant to take delivery of the car, but the complainant remained negligent in not taking the delivery resulting in accumulating of parking charges. Complainant was called upon to pay parking charges @Rs.500/- per day, but till date, neither the complainant took the delivery of the car and nor he paid the parking charges. Complainant himself claimed that cause of action arose to him in the jurisdiction of District Fatehgarh Sahib, but the present complaint filed at Ludhiana by twisting the facts, despite the fact that no cause of action has accrued within the territorial jurisdiction of this Forum. Admittedly, the car of the complainant met with an accident and the same was handed over to OP1 for necessary repairs. It is also admitted that OP1 is the service centre of OP3. Complainant never informed OP1 about the car in question being insured with Bajaj Allianz General Insurance Company Limited, Patiala for period w.e.f.19.2.2012 to 18.2.2013. Even the complainant has never lodged any claim with said insurance company, despite the fact that it was his duty to inform the insurer about the accident. After getting the information of accident, the insurer was to depute the surveyor for assessment, but the complainant remained negligent in not submitting intimation to the insurer or impleading the same as party. In view of that there was no question of reimbursement of any charges by the insurer. Besides, for lodging the claim with insurer, complainant was to fill forms and to supply the copy of RC, but no RC was ever issued in favour of the complainant. As the insurance policy was not in favour of the complainant and that is why disclosure of the same was not made by the complainant to OP1. It is denied that at any point of time, OP1 assured the complainant for getting the amount of repair reimbursed from the insurer. Car in question was not handed over by the complainant to OP1 in November, 2012. Rather, the complainant himself came to OP1 on 18.3.2013 for getting rough estimate of repair expenses prepared. After preparation of those estimates, complainant opted to get the car repaired on payment    of final charges. Complainant handed over the car in question to OP1 on 23.3.2013 and the job work as required was completed in due course of time and thereafter, repeated intimation of completion of repair was sent to the complainant for calling upon him to have delivery of the car, but the complainant failed to accept the same as referred above. The complainant had been repeatedly asking OP1 to do  one     or the other additional job work from time to time resulting of delay in delivery of the car. After completion of all the works, intimation was sent to the complainant, but despite that the complainant has sent a false and frivolous notice dated 5.10.2013. An amount of Rs.71,628/- payable as repair charges, were demanded from the complainant through letter dated 1.10.2013, but the complainant had paid no heed for making the payment. Each and every other averment of the complaint denied.

3.                In separate written statement filed by OP3, it is claimed that the complaint is baseless and frivolous, being filed on basis of wrong and misleading facts. Perusal of allegations made in the complaint reveals that no allegations levelled against OP3 and as such, it is claimed that no cause of action has accrued to the complainant against OP3. Op3 operates with all its dealers on principal-to-principal basis. Liability of OP3 being manufacturer of Hyundai cars is limited and extend to the warranty obligation alone. No allegation levelled qua the performance of the car manufactured by OP3. Liability of manufacturer with dealers is on principal to principal basis only. Accidental work can be done on chargeable basis alone either as per the terms of the insurance or on cash payment basis. The alleged dispute of insurance settlement is between the complainant and insurance company and OP3, being manufacturer has nothing to do with that. As per information provided by OP1, the complainant has not accepted the delivery of the car despite issue of several remainders and the fact that the repair of the car has already been done. The complainant deliberately has not impleaded the insurance company as party. As per information available with OP3, Northern Motors Pvt. Ltd., delivered an Eon car to Mr.Suneel Kumar in perfect running condition. Other allegations levelled in the complaint denied.

4.                OP2 is ex-parte in this case.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.C1 along with documents Ex.C2 to Ex.C14 and even tendered affidavit Ex.CA2 of Mr.Pardeep Tiwari and thereafter, closed the evidence.

6.                On the other hand, counsel for OP1 tendered in evidence affidavit Ex.RA1 of Sh.Pankaj Behal, General Manager of OP1 concern along with documents Ex.R1 to Ex.R6 and then closed the evidence.

7.                Counsel for OP3 tendered in evidence affidavit Ex.RA of Sh.Manish Kumar, Deputy Manager, Legal & Secretariat of OP3 and thereafter, closed the evidence.

8.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

9.           Perusal of copy of order Ex.C3 passed by the District Consumer Disputes Redressal Forum, Fatehgarh Sahib reveal that earlier complaint was filed by       the complainant, but the same was returned with permission to file the same before appropriate Forum having jurisdiction. Thereafter, complainant filed complaint No.912 of 12.12.2013 before this Forum, but the same was got dismissed as withdrawn by suffering statement with liberty to file fresh one. Copy of order dated 15.10.2014 produced on record as Ex.C2. It was thereafter that this complaint filed on 19.11.2014 on the same cause of action.

10.              It is vehemently contended by Sh.Harveer Singh, Advocate representing complainant that damage to the bumper alone was caused in course of accident dated 4.11.2012, but subsequently shed fell on the car, when it was lying in the premises of OP1 and as such, OP1 liable to reimburse the complainant for the loss caused to the car in accident due to fall of that shed. However, factum regarding further damage to the car on account of fall of shed on the car is not at all mentioned in the complaint or in affidavit Ex.CA2 of Sh.Pardeep Tewari or in  affidavit Ex.C1 produced in evidence. So, these arguments are based on no evidence and as such, the same are not sustainable at all. So, claim of the complainant put forth through oral arguments of counsel for complainant is not at all believable that further damage to the car was caused on account of fall of shed.

11.              Car in question was purchased by the complainant from OP1 and the same after accident on 4.11.2012 was brought for repair to the premises of OP1, for which, he demanded the repair charges and as such, certainly complaint against OP3, the manufacturer is not at all maintainable because there was no contract for repair of the accidental car with OP3, the manufacturer. Dispute regarding charging of repair charges or parking charges remains between the complainant and OP1 and OP2 alone and as such, certainly submissions advanced by Sh.Vishal Gupta, Advocate representing OP3 has force that in view of non staking of any relief or claim against OP3, complaint against Op3 is not maintainable. Damage to the car in question caused in course of accident and as such, in view of non impleadment of the manufacturing defect, certainly, complainant not entitled for the replacement of the car with a new one. Claim of the complainant in that respect is exorbitant.

12.              It is claim of the complainant put forth in para no.3 of the complaint that the car in question was insured with Bajaj Allianz General Insurance Company Limited, Patiala during period from 19.2.2012 to 18.2.2013 and as such, certainly as per claim of the complainant, accidental car in question was insured with above said insurer on the day of accident namely 4.11.2012. However, that insurer has not been impleaded as party and nor the complainant claims to have sent any intimation to the insurer qua the accident and as such, in case, repair of the accidental car done by the OP1, then certainly the complainant liable to pay for the same.

13.              Ex.C4 is the copy of temporary registration certificate of the car in question bearing registration NO.PB-10-R/2012/Temp/9008. Chassis number of this car mentioned as 34059, but engine number as 26065 in Ex.C4. Same chassis number as 034059 mentioned in Ex.R2. Engine number of the repaired car mentioned as G3HABM026065 in repair order Ex.R4 as well as in Ex.R6 also. There cannot be more than one engine number and chassis number of different cars. Rather, there can be only one number of engine or chassis of a car and as such, if different temporary number of the car mentioned in Ex.R4 or Ex.R6, then the same does not make any difference. Rather, in view of disclosure of the same engine number in Ex.R4 and Ex.R6 and chassis number in Ex.R2 as is mentioned in Ex.C4, there is no escape from conclusion that actually each of the documents Ex.R2 and Ex.R4 and Ex.R6 pertains to the accidental car in question only. Submission of counsel for complainant to the contrary has no force. Insurance cover Ex.C14 of the car in question produced to show that it was insured with Bajaj Allianz General Insurance Company Limited for period from 19.2.2012 to 18.2.2013, but despite that no document produced to show that intimation regarding this accident was given to the said insurer. Non submission of this intimation to the insurer was because of the fact that car in question was not having RC on the day of accident. The car in question was purchased after being financed by HDFC Bank on 19.2.2012 through invoice Ex.C11. Temporary registration number of the car can be used for 30 days only and thereafter, a permanent registration number has to be acquired. Despite that until the date of accident namely 4.11.2012, no registration certificate was obtained and that may be the reason of non lodging of the claim with insurer. That fact has been  concealed by the complainant and as such, the said circumstance bound to go against  the complainant.

14.              Ex.C5 is Transactions inquiry obtained from ICICI Bank site and the same at the most shows that the car in question may have been got financed. Ex.C8 is the letter dated 1.10.2013 produced by the complainant himself on the record. Perusal of the same reveals that OP1 informed the complainant that his accidental car was ready after repair since long and as such, in view of request of the complainant himself, car parking charges have been waived of and complainant should take delivery of the vehicle by paying Rs.71,628/- as repair charges. This fortifies the claim of the Ops that the complainant not accepting the delivery of the car by paying the repair charges, despite repeated requests.

15.              It is the grievance of the complainant that colour of the car has been changed and even other parts have been changed, due to which, value of the car has decreased. For projecting that grievance attention drawn to letters Ex.9 and Ex.C11 sent by the complainant to Ops. Ex.R4 is the repair order dated 23.3.2013, whereas Ex.R2 is the estimate performa dated 18.3.2013 showing as to what repairs required. Ex.R3 is the bill regarding claiming of labour charges of Rs.15000/-, whereas Ex.R5 is retail invoice showing the carried out repairs. After going through these documents, it is not at all made out that any amount was claimed by OP1 for carrying on work of painting. If that be the position, then submissions advanced by counsel for complainant has no force that colour of the car has been changed without consent of the complainant. In view of falsity of that plea, the claim of the complainant regarding change of other spare parts without his consent even not believable and as such, it is not a case, in which, further damage to the car caused on account of any act of OP1. Even it is not proved by the complainant that value of the car diminished because of carried out paint work against his consent. Which parts of the car stood changed without consent of the complainant qua that disclosures not made by the complainant in his complaint or in the submitted affidavits and as such, allegations in that respect remains vague. So, value of the car in question has not diminished on account of any act of OP1. Rather, OP1 has claimed the repair charges for the carried works, but the complainant not paying the same despite demand and as such, fault lay with the complainant in not taking the delivery of the car by paying the repair charges. So, complaint being meritless merits dismissal.

16.              Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

17.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                      (G.K.Dhir)

                       Member                                                President

Announced in Open Forum

Dated:14.02.2017.

Gurpreet Sharma.