Date of Filing : 05.10.2021
Date of Disposal: 13.09.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU. J.JAYASHANKAR, B.A, B.L. ..… MEMBER-I
THIRU.P.MURUGAN,M.Com, ICWA(Inter), B.L., ....MEMBER-II
CC. No.55/2021
THIS TUESDAY, THE 26th DAY OF SEPTEMBER 2022
Tmt.P.Meenakshi, W/o.K.Sadeeshbabu,
No.12, Sri Nagar Colony,
Jansirani Street,
Brindhavanam Avenue,
Thirumullaivoyal, Chennai -600 062. ……Complainant.
//Vs//
The Authorized Person,
Sri Lakshmi Auto Enterprises India Private Limited,
No.118, Annai Indira Nagar,
Okkiam, Thoraipakkam,
Chennai – 600 097. …..opposite parties.
Counsel for the complainant : M/s. R.Suryaprakash, Advocate.
Counsel for the opposite parties : M/s. R.Ravichandran, Advocate.
This complaint is coming before us on various dates and finally on 05.09.2022 in the presence of M/s. R.Suryaprakash, Advocate counsel for the complainant and M/s. R.Ravichandran Advocate counsel for the opposite parties and upon perusing the documents and evidences produced by both parties this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in not getting insurance approval and in not servicing the vehicle properly along with a prayer to direct the opposite party to replace the defective car and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony due to the deficiency in service along with cost.
Sum and substance of the complaint:-
The complainant submitted that she had purchased a car namely Tata Tigor XM bearing registration No.12Al 6573 with Chassis No.MAT62922LKP58468 on 09.01.2021 from the opposite party’s branch office namely M/s.Lakshmi Tata, Ambattur in instalment basis. The total cost of the vehicle was Rs.7,10,000/- including tax, insurance and other charges and a sum of Rs.1,65,000/- was paid as initial payment and the monthly instalment was Rs.12,634/- and the total instalments was for 48 months. The car was insured with Reliance General Insurance, Anna Nagar West, Chennai vide insurance policy No.993492123740000182. On 03.02.2021 the complainant’s car met with an accident and sustained several damages as follows:-
Several scratch dent marks found on the all side of the car;
Left side rear view mirror fully damaged;
Windscreen glass, front bumper, front engine bonnet, front top body, front left side body damaged;
Several scratch and dent marks found fully overall the car all the side;
Shell overall damaged.
The FIR was registered under crime No.114/PH1/2021 and after inspection by the Service Engineer of the opposite party it was advised that the shell of the car to be changed and proposal was sent to the insurance company. After doing the same the opposite party did not follow up the same and the complainant’s mechanic advised that if the entire shell was repaired it will not come 100% perfect and hence it was advised to change the entire shell. Though the complainant and his wife sent several emails to the insurance company and the opposite party they did not send any proper reply considering their request. Without proper procedure or inspection regarding the insurance approval the repair was done to the car. On 16.07.2021 the opposite party called the complainant and informed that the car was ready for delivery. When the complainant’s husband approached the opposite party’s service centre he found 19 defects in the car and hence the car was not taken delivery. On 17.07.2021 the opposite party’s Service Engineer Mr.Pradeep informed the complainant that out of 19 defects 15 were corrected and 4 could not be corrected. When the complainant visited the opposite party’s service centre on 19.08.2021 he was informed that all the 19 points were done but they refused to give certificate that all the 19 points were cleared and they forced to take delivery of the complainant’s vehicle. Without rectifying the mistake in proper manner, not giving proper answer to the customer and threatening the complainant to take delivery or otherwise charges would be imposed, the complainant alleges deficiency in service on the part of the opposite party had come up with the present complaint for the following relief as mentioned below;
To direct the opposite party to replace the defective car;
To pay a sum of Rs.10,00,000/- towards compensation for the mental agony caused due to the deficiency in service along with cost.
Defence of the opposite party:
The opposite party filed written version contending inter alia that the cause title for the opposite party itself was not properly provided and that the car was very badly damaged by the accident that occurred on 03.02.2021. It was submitted that when the complainant left the car for repairs, he demanded to get total loss insurance claim but the opposite party has advised the complainant’s husband that the decision to declare total loss was to be decided only by insurance company. Still the opposite party insisted the insurance surveyor to take steps to declare total loss but he declined. The complainant’s husband insisted for delivery of the vehicle and stated that he could get soon the total loss claim and also wanted the opposite party to keep the car until then. Hence a job card was opened on 22.02.2021 stating that “to carry out accident car repairs” and the complainant’s husband signed the job card. Since the insurance company refused to declare the total loss claim, the complainant’s husband demanded the insurance company at least to change the shell of the car completely and the said claim was also declined. As per the advice of the insurance company the complainant agreed to change the front Bonnet, four side doors, top and front & rear side plates by new one (called as Child parts). After all the attempts, on 01.04.2021 the insurance company’s approval was given and except certain items many parts were to be procured from Pune, Maharastra etc. Due to lock down there was delay in Pune and hence there was delay in getting parts. The complainant’s husband visited the vehicle and pointed out certain defects which were carried by the opposite party and on 02.07.2021 and 07.09.2021 the complainant and her husband were informed about readiness of the car for delivery from 28.07.2021. The car was not taken delivery till date and subsequently on 18.09.2021 a notice was received demanding for replacement of the car with a new car and also Rs.10,00,000/- as compensation. Thus disputing all the allegations made by the complainant the opposite party sought for the dismissal of the complaint contending that there was no deficiency in service on their part.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A6 were marked on their side. On the side of opposite party proof affidavit was filed and documents Ex.B1to Ex.B5 were marked on their side.
Points for consideration:-
Whether the opposite party had committed deficiency in service in getting the insurance claim and also in making out the repairs for the complainant’s damaged vehicle?
If so to what reliefs the complainant is entitled?
Point No.1
On the side of the complainant following documents were filed in support of his allegations;
Tax Invoice issued by the opposite party in the name of complainant dated 31.12.2020 was marked as Ex.A1;
Insurance copy issued by Reliance General Insurance Company in the name of complainant dated 05.01.2021 was marked as Ex.A2;
FIR copy dated 03.02.2021 was marked as Ex.A3;
Job Card status dated 13.07.2021 was marked as Ex.A4;
Email conversations in between the parties was marked as Ex.A5;
Legal notice issued by the complainant to the opposite party with acknowledgement card dated 18.09.2021 was marked as Ex.A6;
On the side of opposite party the following documents were filed in support of their defence;
Job Card was marked as Ex.B1;
Spares order placed by opposite party to company in Pune was marked as Ex.B2;
Reminder sent to take delivery of the car dated 07.09.2021 was marked as Ex.B3;
Reminder sent to take delivery of the car dated 22.09.2021 was marked as Ex.B4;
Reminder sent to take delivery of the car dated 31.10.2021 was marked as Ex.B5;
We perused the pleadings and documents submitted by both the parties. The crux of the complaint arguments was that the car met with an accident was not serviced properly by the opposite party and that no insurance claim was arranged by the opposite party and thus the complaint was to be allowed
On the other hand, the contention of the opposite party was that the car was damaged very badly which could not be repaired and hence the complainant insisted them to get total loss claim from the insurance company. It was also the contention of the opposite party that they wanted them to retain the vehicle until then. However, after some time when the total loss claim was declined by the insurance company, the complainant agreed for repairing the vehicle and a job card was opened on 22.02.2021 to carry out the repair’s which was seen by the complainant’s husband. As the total loss claim was denied by the insurance company the complainant’s husband insisted for insurance claim for the repairs with respect to the shell of the car which was also declined and only certain repairs were admitted by the insurance company. After the repairs are carried out the complainant refused to take delivery of the vehicle. Thus arguing that there is no deficiency in service the counsel sought for the dismissal of the complaint.
On appreciation of the pleadings and evidences, we could see that when the complainant alleges that the opposite party had failed to get the insurance claim honored they should have added the insurance company as one of the party to the proceedings which they failed to do so. As it is the specific contention of the opposite party that certain repairs were done with the approval of the insurance company and that they had declined the total loss claim. In the present case the complainant had submitted the Tax Invoice for the purchase of the vehicle from the opposite party and also the insurance policy taken for the car. The FIR in proof of accident was also filed as Ex.A3. It is also seen from the email conversations between the complainant and the opposite party that the vehicle after inspection by the complainant on 16.07.2021, certain corrections were requested by the complainant which was duly carried out as per version of the opposite party in email dated 17.08.2021. In the said mail he has stated that the correction jobs were completed by 28th July and that the body shop team has requested the complainant to visit the workshop for final inspection. In such circumstances when the complainant stated that the repair work was not properly done by the opposite party, it is the bounden duty of the complainant to produce evidence with respect to the same. But there was no report was filed by the complainant to show that the repairs were not properly carried out on the vehicle. Mere allegation with any valid evidence on the part of the complainant could not be entertained. The job card status shows that it was closed. In this circumstance we hold that the alleged deficiency in service on the part of the opposite party in not repairing the vehicle properly has not been successfully proved by the complainant with regard to the complaint allegations that the opposite party has failed to get proper insurance claim for the vehicle, the same has to be dismissed for lack of pleading and evidences and over all the insurance was not made a party to the proceeding. Thus we answer the point in favour of the opposite party and as against the complainant.
Point No.2:
As we have held above that the opposite party had not committed any deficiency in service the complainant is not entitled any reliefs from the opposite party. Thus we answer the point accordingly.
In the result the complaint is dismissed. No order as to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 13th day of September 2022.
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MEMBER-II MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 31.12.2020 Tax Invoice. Xerox
Ex.A2 05.01.2021 Insurance Copy. Xerox
Ex.A3 03.02.2021 FIR copy. Xerox
Ex.A4 13.07.2021 Job card status. Xerox
Ex.A5 ............ Email conversations. Xerox
Ex.A6 18.09.2021 Notice issued to opposite party with acknowledgement copy. Xerox
List of documents filed by the opposite party:-
Ex.B1 22.02.2021 Job card. Xerox
Ex.B2 ……………. Spares order placed by opposite party to company in Pune. Xerox
Ex.B3 07.09.2021 Reminder sent to take delivery of the car Xerox
Ex.B4 22.09.2021 Reminder sent to take delivery of the car Xerox
Ex.B5 31.10.2021 Reminder sent to take delivery of the car Xerox
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MEMBER-II MEMBER-I PRESIDENT
