09.05.2024

Sh. Sanjay Kumar, President

1. The brief facts of the present case are that complainant is the  absolute and lawful owner of the vehicle bearing its registration no. DL-2CA-E3596 (Hyundai I-10 Magna) which was insured by the respondent no.2. It is stated that the respondent no.1 is authorized center and doing the business of repairing of the cars and the respondent no.2 is insurance company. It is further stated that during the pendency of the present complaint complainant Navin Kumar died and his LRs namely Smt. Meenakshi Widow, Baby Vanshika and Baby Drishti  minor daughters brought on record.
2. It is stated that the aforesaid vehicle of the complainant was met with an accident on 31.01.2014 at Gurgaon, Haryana and after accident, the complainant intimated to the respondent no.2 about the accident and thereafter, the complainant visited the respondent no.2 with the aforesaid damaged vehicle and requested to repair  it and before repairing, the complainant inquired about the estimate of the repairing of the aforesaid vehicle, on inquiry, the respondent no.1 stated that the repairing charges would be of Rs.60,000/- and on this, the complainant requested the respondent no.1 to issue the receipt qua the estimated charges of repairing but instead of issuing any receipt of estimated charges of repairing, the respondent no.1 assured the complainant that the damaged vehicle will be repaired under the estimated charges.
3. It is stated that on believing on their version, the complainant agreed to repair his aforesaid damaged vehicle and left the same at the workshop of the respondent no.1 vide repair order no.R201400427 dated 31.01.2014 and the respondent no.1 assured the complainant that the said vehicle will be repaired within a week upto his satisfaction. It is further stated that after a week, the complainant visited the respondent no.1 and on inquiry, it came to know that the repairing expenses of Rs.2,11,075.04 have been come upon the damaged vehicle of the complainant and after hearing the same, the complainant great shocked and surprised and on this, the complainant stated the respondent no.1 that at the time of leaving the vehicle at the centre of the respondent no.1 for repairing, the respondent no.1 had stated that the estimated repairing charges would be come of Rs.60,000/-, then how can it possible to claim such huge amount of Rs.2,11,075.04 on the repairing of the damaged vehicle of the complainant. On this, the respondent no.1 stated the complainant that complainant shall have to pay Rs.2,11,075.04 for taking the delivery of his repaired vehicle otherwise the respondent no.1 will sell the vehicle  of the complainant in order  to recover the repairing charges.
4. It is stated that on 29.04.2014 at 04:32 P.M., the complainant received the message on his mobile from the respondent no.1 that “Dear, this is to inform you that we have received a DO against your vehicle bearing Regn. No. DL-2CA-E3596 from IFFCO Tokio General Insurance Co., so I requested you to please collect your vehicle. Regards, Khalid, Samara Hyundai GTK, 9958292724”. It is further stated that after receiving the message from the respondent, the complainant visited the respondent no.1 to get his repaired vehicle released than the respondent no.1 gave a bill for a sum of Rs.2,44,000/- to the complainant, by showing the expenses of repairing charges on the damaged vehicle of the complainant and after receiving the bill of huge  amount, the complainant become shocked and asked that whey the respondent no.1 is increasing the bill amount day by day then even to convince the complainant, the respondent no.1 misbehaved and abused the complainant and threatened to sell the aforesaid vehicle of the complainant to get the repairing charges and also threatened not to visit there otherwise the respondent no.1 will implicate complainant in  false case.
5. It is stated that the respondent no.1 failed to provide good services as promised at the time of taking the vehicle for repairing and there is a deficiency in service on their part and the complainant is suffering on the illegal act which caused by them upon him. It is further stated that complainant served a legal notice dated 06.05.2014 upon the respondents thereby requesting to furnish the correct repairing bill as per estimated repairing charges of the damaged vehicle and to pay the compensation of Rs.1,00,000/- towards the mental agony and harassment within 15 days from the date of receipt of this notice. It is further stated that despite the service of the notice, the respondents failed to comply with the requirement of the legal notice till date and they also failed to give any reply of the notice.
6. Complainant is seeking direction to OP to furnish the correct repairing bill as per estimated repairing charges of the damaged vehicle, to pay compensation of Rs.1,00,000/- to complainant towards his mental agony and harassment and any other order which deems fit and proper.
7. OP1 filed detailed WS and taken preliminary submissions that on 31.01.2014 the 2009 model Hyundai I10 car with the mileage of 74500 kms was brought at the workshop of answering respondent/dealer (OP1) for accidental repair. It is stated that at the time of preparing the repair order dated 31.01.2014 it had been specifically mentioned that the estimate would be given after the survey of the car in question and the delivery of the car after repair would be possible on 20.02.2014.  It is further stated that thereafter on 01.02.2014 the copy of initial estimate was given to the surveyor (M/s Mukesh Setia and Co.) and the complainant by the answering respondent/Dealer.
8. It is stated that on 01.02.2014 the surveyor along with the complainant inspected the car in question and on the basis of the above mentioned estimate the surveyor had prepared the report and in that report the surveyor  had admitted the fact that the answering respondent/Dealer had claimed Rs.2,12,613/- on account of the cost of the parts which were to be replaced/repaired (excluding labour charges) the  copy of which has  been annexed by the insurance company along with the written statement filed by the respondent no.2 (insurance company). It is further stated that thereafter the complainant and surveyor had given consent to the answering respondent/Dealer to carry out the repair works. It is further stated that the complainant was well aware about the fact that the insurance company would pay only Rs.1,24,086/- which is clear from the documents  annexed by insurance company and reaming amount would be payable by complainant.
9. It is stated that thereafter the car in question was repaired satisfactorily by the OP1 in the supervision of the complainant and the insurance company (OP2) and after the repairs of the car in question answering respondent had raised the final invoice dated 31.03.2014 amounting to Rs.2,39,542/- (including VAT, Labour charges etc) against the repairs of the car in question. It is further stated that out of Rs.2,39,542/- the insurance company has paid only Rs.1,24,086/- leaving behind the balance amount of Rs.1,15,456/- (on account of depreciation and the costs of the  parts which are not cover under the insurance) on the ground that the same are not covered under the insurance policy and therefore the balance amount of Rs.1,15,456/- is yet to be paid by the complainant to the OP1.
10. On merit all the allegations made in the complaint are denied by OP1.
11. Complainant filed replication to the WS of OP1 and denied all the allegations made therein and reiterated  contents of complaint.
12. OP2 filed WS and taken preliminary objections that the  present complaint is against respondent no.1, respondent no.2 is only a performa respondent as no relief has been claimed against respondent no.2. As such the name of the answering respondent may kindly be deleted from the array of  the answering respondent. It is stated that the present complaint involves complicated questions of facts as well as law, which requires elaborate oral and documentary evidence and the examination and cross examinations of the witnesses for the proper disposal of the matter. The proper forum for adjudication of the complainant is the civil court. Consumer Protection Act being the special Act where only summary proceedings are taken up and as such the adjudication of the present complaint is beyond the scope and jurisdiction of this Hon’ble Forum and thus the complaint needs dismissal. It is stated that present complaint of the complainant is liable to be dismissed as there is no deficiency in service on the part of the respondent company. It is further stated that the present complaint is misconceived, the same merits dismissal with cost.
13. It is stated that OP2 had granted insurance cover to complainant on his vehicle bearing registration no. DL-2CA-E3596 subject to standard terms and conditions which are applicable to motor vehicle policies. It is further stated that the vehicle had been damaged due to accident which took place on 31.01.2014 and lodged a claim with OP2 than M/s Mukesh Sethia and Co., surveyor and loss assessors duly licensed by IRDA appointed to assess the loss. It is stated that complainant has sent his vehicle  to respondent no.1 who is authorized repair center. It is further stated that surveyor conducted inspection at the garage of OP1 and submitted report dated 28.04.2014 where by loss has been assessed of Rs.1,24,086/- and copy of report filed on record. It is stated that after  repairs to the full satisfaction of complainant the vehicle was delivered and claim discharge cum satisfaction voucher was also given on which complainant agreed the full and final settlement of the claim and duly  signed the discharge voucher. It is stated that Rs.1,24,086/- was directly paid by OP2 to OP1 on behalf of complainant and discharge the liability as per insurance contract. It is stated that there is no deficiency of service on the part of OP2.
14. On merit all the allegations denied and contents of preliminary objections and submissions reiterated. It is stated that present complaint is liable  to be dismissed.
15. Complainant filed replication to the WS of OP2 and denied all the allegations made therein and reiterated contents of the complaint.
16. OP3 Hyundai Motors India Ltd. filed detailed WS and taken preliminary objection that present complaint is frivolous, misconceived, wrong, misleading and devoid of any merit, therefore, liable to be dismissed. It  is stated that no allegations made against OP3. It is further stated that complainant has failed to demonstrate that OP3 had promised or assured services which was not fulfilled or there is any deficiency in service on unfair trade practice on the part  of OP3. It is stated that there is no cause of action against OP3 and wrongly made party in the present complaint case.
17. It is stated that OP3 deals with all its dealers “Principal to Principal” basis and for any act, omission, representation etc. dealers are themselves are liable and OP3 is not involved in retail sale  or service of cars. It is further stated that the liability of OP3 is limited to warranty obligations alone. OP referred the judgment of M/s Hero Honda Ltd. Vs. K.B Murleedharan and Anr. 1986-94 (NS) 955, Indian Airlines Corporation Vs. Patel Ramubhai Shankarlal and Anr. 1986-94 (NS) 437 and Vijay Traders Vs. Bajaj Auto Ltd. 1995 (6) SCC 566.
18. It is stated that as per available information a Hyundai I 10 car bearing VIN: MALAM51BR8M230816 was delivered to complainant on 04.11.2009 and vehicle was reported to service center of OP1 on 31.01.2014 for accidental repair at the mileage of 74500 km. It is further stated that the repair work was started after providing estimate for work and approval of complainant and same was acknowledged by complainant as per repair order dated 31.01.2014 and pre invoice for estimated cost  of work. It is stated that for any damage caused to vehicle due to accident OP3 cannot be made liable and the dispute of accidental repair is strictly inter se the insurance company, workshop and complainant and there is no rule or obligation on the part of OP3.
19. It is stated that present complaint is barred by limitation. It is further stated that the car was purchased on 04.11.2009 and complaint filed in June 2014 beyond two years of purchase, therefore, barred by limitation. The OP3 refers to the judgment of Ishwarlal Amarnai Vs. Hero Punch and Anr. III (2011) CPJ 132 NC. The OP3 denied all the allegations on merit and stated that present complaint is liable to be dismissed.
20. Complainant filed replication to the WS of OP3 and denied all the allegations made therein and reiterated contents of the complaint.
21. Complainant  filed evidence by way of affidavit and reiterated contents of the complaint.
22. OP1 filed evidence by way of affidavit of Sh. O.K Bhalla Authorized Representative. In the affidavit contents of WS reiterated. The OP1 annexed copy of initial estimate and referred to the documents filed on record.
23. OP2 filed evidence by way of affidavit of Rajeev Chaudhary, Vice President (claims) and reiterated contents  of WS. OP relied on copy of surveyor report dated 28.04.2014 Annexure R1 and copy of discharge voucher Annexure R2.
24. OP3 filed  evidence by way of affidavit  of Manish Kumar Assistant Manager Legal. In the affidavit contents of WS reiterated. OP3 relied on portion of owners manual containing warranty policy Annexure 1.
25. Complainant filed  written arguments, OP1 filed written arguments and OP3 filed written arguments. As per record written arguments of OP2 are not available.
26. We have heard Sh. A.K Verma counsel for LR of complainant, Sh. Brijesh Singh proxy for Amresh Singh counsel for OP1, Sh. Chaitanya Jain proxy for Sh. Kapil Chawla counsel for OP2 and Sh. Ajay Kumar Singh counsel for OP3 and perused the record.
27. The deceased complainant was the registered owner of Hyundai I10 Magna having registration no. DL 2CAE 3956. The car met with an accident on 31.01.2014 at Gurgaon Haryana. It is admitted case of the parties that intimation of accident was given to OP2 Insurance Company and a claim lodged. The OP2 insurance company appointed M/s Mukesh Sethia and Co. Surveyors and Loss Assessors. After inspection the surveyor assessed the loss as Rs.1,24,086/-. The copy proved on record of surveyor report dated 28.04.2014. It is admitted that for repair the car was taken to OP1 M/s Samara Hyundai. A repair order was prepared dated 31.01.2014 wherein it was observed that after the survey of the car and delivery after repair would be possible on 20.02.2014. The initial estimate was given by surveyor on 01.02.2014 after inspection alongwith complainant. The total estimate was prepared and claimed by the dealer of Rs.2,12,613/- on account of cost of parts excluding labour charges and copy of same is proved on record. After repair of the car final invoice dated 31.03.2014 of Rs.2,39,542/- was prepared out of which Rs.1,24,086/- paid by insurance company to OP1 and there was balance of Rs.1,15,456/-. The discharge voucher proved on record by OP2 establish that directly Rs.1,24,086/- was directly paid to OP1 by OP2 insurance company. The complainant has not filed any documentary proof to establish that the repair estimate was assessed of Rs.60,000/-. The OP1 has filed and  proved the repairing bills which are correct and there is no illegality or incorrectness established on record. As per record the complainant failed to establish deficiency of service or unfair trade practice against OP1, 2 and 3.
28. On the basis of above observation and discussion complaint is dismissed. No order as to cost. File be consigned to record room.
29. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  09.05.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER