Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                    Complaint No. : 581

                                                                   Instituted on     : 13.11.2019

                                                                    Decided on       : 26.11.2024

Sudesh  s/o Sh. Maan Singh, resident of Amru Pana, village Kalinga, Tehsil & District Bhiwani.

                                                                             ......................Complainant.

Vs.

1. Sidheshwar Motors Pvt. Ltd., Sidheshwar Nissan Datsun, 11^thK.M.Stone, NH-9, Delhi-Hisar Bypass, Hisar-125001(Haryana) through its Prop./Partner/Authorised person.
2. M/s B.A.Motors Pvt. Ltd., B.A.Nissan, Near Sukhpura Chowk, Rohtak, Tehsil & District Rohtak through its Prop.,Partner/Authorized Person.
3. Future Generali/India Insurance Co.Ltd., Servicing office:303-310, Kailash Building Connaught Place, New Delhi-110001 through its Manager/Authorized Signatory.

                                                                   ...........…….Opposite parties.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. VIJENDER SINGH, MEMBER.

Present:       Sh.NarenderTomar, Advocate for the complainant.

                   Sh. Rajesh Kumar, AR for opposite party No.1.

                   Sh.Basant Kumar, Advocate for opposite party No.2.

                   Sh.SameerGambhir Advocate for opposite party No.3.

ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the case as per the complainant are that he had purchased a Nissan Datsun Car vide invoice No.SINVHMA19000195 dated 23.01.2019 amounting to Rs.404108/- and got registered the said car vide registration no.HR16V-7874. The aforesaid car has also been duly insured with the respondent no.3. There is heavy defect in engine of the said car because it was hit up(heat up) while driving regularly. On 02.06.2019 the said car suddenly stopped due to hit up(heat up)  and was not started, upon which the complainant made a complaint to the respondent no.2 and told about the aforesaid defect. Respondent no.2 came at the house of complainant alongwith crane and took the aforesaid car in his workshop. After repairing of the car, the complainant brought the same on 15.07.2019 and the respondent no.2 asked the complainant to pay Rs.8311/-, upon which the complainant stated that his vehicle is already insured with the respondent no.3 and they should charge the amount  from the respondent no.3. But respondent no.2 refused to hand over the car without making payment. Hence the complainant was having no option to pay the aforesaid amount of Rs.8311/-. But the said car again got defective due to hit up(heat up)  on the very next day i.e. 16.07.2019. Complainant again contacted the respondent no.2 and took his car in the workshop of respondent no.2 on 17.07.2019. After repairing, opposite party demanded Rs.6000/- from the complainant. Complainant again asked the respondent no.2 to charge the said amount from the respondentno.3 but to no effect. Till then the car is parking in the premises of the respondent no.2 from 02.06.2019 to 15.07.2019 and again from 17.07.2019 to 02.10.2019.  Thereafter complainant brought his car after paying Rs.4719/- to the respondent no.2 on dated 02.10.2019. In fact complainant has no liability to pay the aforesaid repairing charges, because the car of the complainant was duly insured with the respondentno.3  under zero dep. policy. But despite repeated requests of the complainant, respondents have not settled the claim of the complainant. The act and conduct of the opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to replace the defective car with new one of the same cost or to pay the value of car i.e. Rs.404108/- alongwith interest @ 24% p.a. from the date of purchase i.e. 23.01.2019 till actual payment, to pay Rs.1000/- per day for the period 02.06.2019 to 02.10.2019, to pay Rs.100000/- as compensation on account of mental agony and harassment and Rs.5500/- as litigation expenses to the complainant.

2.                After registration of complaint, notices were issued to the opposite parties.Opposite party no.1 in its reply has submitted that there is no defect in the engine of the said car and it was hit up while driving regularly as alleged. The word “Hit up” does not make any sense. It is pertinent to submit here that as per the word “Hit up” means the vehicle had got hitten and struck somewhere but the literal meaning of the said para shows that the complainant wants to mention the same as “Heat UP’ and not “Hit up” and the complainant himself is finding himself unable to explain that what actually he wants to convey to the Court and shows that there is no such alleged defect in the vehicle. Opposite party has sold the vehicle in same condition, in which the same was standing, regarding which satisfactory note was also given by the customer at the time of taking the delivery for which the opposite party is not at all liable in any manner. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Opposite party no.2 in its reply has submitted that it is correct upto extent that on dated 02.06.2019 complainant made a complaint to the opposite party no.2 and opposite party went to the house of complainant alongwith crane and took the car in workshop and rest of para of complaint is wrong and denied. It is also denied that there was heavy defect in engine and heat up while driving regularly and suddenly stopped due to heat up and not started. It is submitted that such defect on the part of negligence of driving is not covered in insurance policy.  It is duty of the opposite party to provide service to the complainant. Opposite party has done his work with due care and attention. No act and conduct on the part of opposite party is illegal, null and avoid and there is no deficiency in service on the part of opposite party no.2. Opposite party No.2 is only service provider as agent and repair vehicle and also entitled to receive payment either insurance company or owner due to repair of accident vehicle. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

3.                Opposite party No.3in its reply has submitted that the alleged occurrence happened on 15.09.2019 and intimated to the opposite party on 18.09.2019, so the opposite party could not verify the spot survey of the vehicle. As detailed in legalnotice from Advocate Mr. NarenderTomar there was a heavy defect in engine from 02.06.2019 because it was hit up while driving regularly and the complainant had shifted the vehicle to workshop but claim intimation is given to insurer on 18.09.2019 with date of loss as 15.09.2019 after a delay of more than 3 months, hence there is breach of policy condition no.1 and there is misrepresentation by the complainant for disclosing the correct date of loss/cause of loss and damages to vehicle.  As per policy condition no.2(a), “The company shall not be liable to make payment in respect of consequential losses, deprecation, wear and tear, mechanical or electrical break down, failure or breakages.” Legal Notice describe that subjected vehicle is not functioning properly from the beginning and there remains concerned related to vehicle working. The respondent received intimation on 18-09-2019 with date of accident as 15-09-2019 whereas Legal Notice stated that vehicle was parked at M/s BA Motors from 17-07-2019 onwards. The respondent observed from workshop gate register that vehicle entered in workshop on 31-08-2019 and was lying in workshop custody till date of claim/intimation/date of survey iv 18-09-2019 whereas claim reported with date of loss as 15-09-2019 which is not possible. Further surveyor submitted the observation that damages to vehicle radiator not accidental in nature and caused due to engine overheating. There was concern related to working and overheating of engine and on later stage insurance claim reported with different date of loss and cause of loss to get parts covered under insurance claim but complainant had misrepresented date of loss and other facts to avail insurance claim. Complainant has also submitted in the present complaint regarding manufacturing defect. Further surveyor submitted that engine replaced in warranty as per service history and bills issued for the same on 27-08-2019 and vehicle Job card is 15-07-2019. Complainant has not disclosed any accidental loss in the present complaint. Engine defect was under warranty, so the manufacture company of vehicle had rectified the engine defect under warranty. The answering respondent Insurance Company is not liable to make any payment. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of complaint with costs.

4.                Ld. counsel for complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex. C-1 to Ex. C-16(except Ex.C8) and closed his evidence on dated 17.08.2021. Opposite party No.1 has tendered affidavit Ex.RW1/A, and closed his evidence on 01.09.2022. Ld. Counsel for opposite party No. 2 in its evidence has tendered affidavit Ex.RW2/A and closed his evidence on dated 01.09.2022. Ld. Counsel for opposite party No. 3 in its evidence has tendered affidavit Ex.RW3/A, document Ex.R3/1 to Ex.R3/17 and closed his evidence on dated 03.02.2022.

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 vehicle was purchased on 23.01.2019 from the respondent no.1. In this compliant the complainant has pleaded that there is a manufacturing defect in the vehicle in question and he cannot enjoy the vehicle. The vehicle heat up firstly on 02.06.2019 and was got repaired on 15.07.2019 and vehicle again heat up on dated 17.07.2019 and remained at the service center upto 02.10.2019.  The complainant spent an amount of Rs.8311/- and Rs.4719/- respectively on the repair of the vehicle. To prove this fact complainant has placed on record 2 tax invoices Ex.C5 & Ex.C7.  In fact, complainant wants to replace the vehicle through this complaint or wants refund of the value of car amounting to Rs.400418/- with interest from the respondents. But complainant failed to implead the manufacturer of the vehicle in question in the present case.  We have minutely perused the documents placed on record by both the parties. The complainant has placed on record document Ex.C5 to prove the fact that he spent an amount of Rs.8311/- on the repair of the vehicle whereas the vehicle was in warranty period and the Invoice date is 27.08.2019. As per Ex.C7 vehicle was repaired on dated 04.10.2019 whereas the complainant has pleaded that vehicle was brought in the service centre on 17.07.2019 and remained there upto02.10.2019. We have minutely perused the documents placed on record by both the parties. The insurance company took different stand that as per the complainant his vehicle met with an accident on dated 31.08.2019 due to coming of dog in front of his vehicle and has placed on record a document Ex.R3/8. The claim of the complainant has been declined by the insurance company. As per survey report Ex.R3/5, the surveyor has mentioned in his report that: “As per manual job card vehicle again visited on 31.08.2019 but no any gate entry found for the same. No any Gate exit entry found in Register after the 27.08.2019, when engine work done in warranty. There is some mismatch in the gate entry and exit, As per all above observation insured vehicle not exit from workshop after 27.08.2019. This is for insurer information”. No liability on the part of insurance company was found because the engine was found repaired under warranty. But perusal of Ex.C5, Ex.C7 shows that complainant had spent an amount of Rs.8311/- + Rs.4719/- on the repair of the vehicle. The complainant further pleaded that his vehicle was remained present in the workshop from 17.07.2019 to 02.10.2019 but in contrary to the same, the insurance company pleaded that the vehicle met with an accident on 31.08.2019 because the complainant submitted claim form with the insurance company regarding this accident. The insurance company also placed on record vehicle history as Ex.R3/10. The perusal of this report itself shows that engine heating report was made on 27.08.2019 and the same was checked and again engine heating  was checked on 04.10.2019 and the same was resolved. Thereafter he visited on 15.10.2019 and this time the complaint was of oil leakage from engine side. The opposite party recommended for replacement of oil chamber but the customer refused for same. This evidence has been placed on record by the insurance company on 03.02.2022. The complainant also closed his evidence on 17.08.2019. He placed on record 15 documents i.e. Ex.C1 to Ex.C1 to Ex.C7 and Ex.C9 to Ex.C16. He failed to place on record any technical report to prove that there is manufacturing defect in the vehicle in question. The perusal of vehicle history report itself shows that the vehicle was firstly brought in the service centre on 28.01.2019 for accessory fitment. Thereafter on 09.04.2019 for carrying out first free service, 3^rd time on 27.08.2019 with the complaint of engine heating. Some repair work was done on 27.08.2019 and some parts were also replaced under warranty.  Remaining parts were replaced on chargeable basis. Thereafter again the same problem occurred on 04.10.2019. This time also the vehicle was repaired on paid basis.  Again the problem of oil leakage appeared in the vehicle and this time also the repair work was done on paid basis. However, complainant refused to do the work. As per our opinion, no evidence has been placed on the file by the complainant to prove the fact that there is manufacturing defect in the vehicle in question. On the other hand, opposite party No.2 also failed to place on record all the authentic documents related to the vehicle in question. In fact there is some hide and seek on the part of opposite party No.2 as they have not disclosed some fact in their written statement about the full history regarding the defects and repair work of the vehicle and for how many days the vehicle was standing  in the workshop. It is the prime duty of the respondent no.2 to place on record the vehicle history before this Commission but opposite party No.2 has not come with clean hands. He has not submitted any single word that how much amount he has received from the complainant on account of repair of vehicle in question. Complainant approached twice in the month of August and October and why the repair work was done on chargeable basis whereas the vehicle was in warranty period. Hence there is deficiency in service on the part of opposite party No.1 & 2 and they are liable to refund the amount of repair charges illegally charged from the complainant i.e. Rs.8311/- + Rs.4719/- i.e. Rs.13030/-alongwith compensation to the complainant.

6.                In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party No.1 & 2 to refund the amount of Rs.13030/-(Rupees thirteen thousand and thirty only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 13.11.2019 till its realization and shall also pay Rs.50000/-(Rupees fifty thousand only) on account of mental agony and harassment suffered by the complainant due to deficiency in service on the part of opposite party No.1 & 2 and to pay Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.

8.                Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.

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:

26.11.2024

                                                          ........................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Vijender Singh, Member.