PRESENT

                   Complainant Absent.     

                   Opponent No.1 by Adv. Smt. Anita Marathe present.  

                   Opponent No. 2 by Adv. Kiran Chandvadkar present.

                   Opponent No. 3 Absent.       

                                                    ORDER

(Per- Mr. S. D. MADAKE, Hon’ble President.

1. The complainant purchased India Vista Quadra jet from opponent no. 2 wasan motors on 09.03.2010.  The registration of Vehicle was MH 04 EF 5012. The said vehicle was insured with opponent Tata Motor insurance having policy No. 3001/TM/089525/00/000 for a period from 04.03.10 to 03.03.2011.
2. The complainant alleged that he paid premium of Rs. 12960/- and taken comprehensive policy. The vehicle was covered with extended warranty for mechanical, electrical emission and manufactures warranty upto 1 to 2 years.
3. According to complainant on 21.12.2010 at 10 a.m the vehicle was on the way from Kandivali (E) to his office on western high way. He stated that all of a sudden it was felt that some hard object stuck from bottom. The same was not seriously noticed as the vehicle was on the move.
4. The complainant stated that after few minutes entering into the office it was detected that some oil was dripping from the bottom of either Engine or some part of it.
5. The complainant contacted the authorized workshop of respondent no. 1 and taken the vehicle to the workshop by toeing to van. He reported the incident to opponent No. 2 a manufacturer and Insurance Company.
6. The complainant stated that surveyors of opponent No. 2 and 3 took inspection and taken photographs and assured that damage caused to the vehicle shall be covered under comprehensive policy as well as under mechanical warranty.
7. The complainant stated that opposite parties failed to consider the claim. The opponent 2 was not ready to deliver the vehicle unless complainant pays Rs. 73575/-(Rupees seventy three thousand five hundred seventy five ) The vehicle was not used during 21.12.2010 to 28.01.2011 for about 38 days as same was not delivered till complainant paid Rs. 73575/-(Rupees seventy three thousand five hundred seventy five ).
8. The complainant sent notice through Advocate on 14.02.2011 regarding his claim, however there was no response from opponent 2 and 3.
9. The complainant prayed for direction to opponents to pay Rs. 5,88,575/-(Rupees five lacs eighty eight thousand five hundred seventy five)  with interest and cost to complainant as per claim made in para 19 of complaint.
10. The complaint was admitted on 25.05.2011. The opponent no. 1 Tata motors filed written statement and resisted the allegation made by complainant. It is contended that all documents like owner’s manual, warranty and service book were given to complainant.
11. The opponent no. 1 stated that it is not a case of manufacturing defect. The vehicle suffered damage on account of accident and further on account of complainant’s negligent driving the vehicle in the damaged condition.  
12. The opponent no. 1 alleged that complainant unnecessarily dragged Tata Motors without any cause of action. It is stated that accidental damage and damages on account of negligent driving are not covered under warranty.
13. The opponent no. 2 filed written statement and contested the complaint. It is stated that there is no cause of action to file complaint as it was the negligence on the part of complainant and as per warranty condition the vehicle was an accident vehicle and there was breach of warranty.
14. The opponent no. 2 stated that there was breach of warranty condition so work was done on chargeable basis, so unless charges were paid it was not possible to deliver the vehicle. All other allegations are denied specifically.
15. The opponent no. 3 filed written statement and denied allegations made in various paras of complaint. The complainant is not a consumer and is not eligible for any relief as stated in para 19 of complaint.
16. The opponent no. 3 alleged that on receipt of said claim same was investigated and it revealed that no accident was occurred and there was some mechanical fault. The said loss has to be borne by manufacturer and service provider.
17.  The opponent no. 3 stated that to prove occurrence of accident filing of F.I.R. is mandatory. There is no negligence or failure of duty on the part of Insurance company. The amount of claim is calculated without any evidence. There is no deficiency in service or unfair trade practice.
18. We have heard learned counsel for the parties. Perused complaint, written statement, affidavit of evidence, written note of argument and all the papers relating to the vehicle.
19. Admittedly the complainant purchased vehicle from opponent no. 2. The said vehicle is manufactured by opponent no. 1 and was insured with opponent no. 3 having taken comprehensive policy. The alleged incident took place during warranty and also during insurance period.
20. Admittedly vehicle was repaired by opponent no. 2 on payment as per chargeable basis. There is no dispute that Wasan Motors retained vehicle after repairs for the purpose of non – payment of amount of repairs.
21. Admittedly vehicle was purchased on 09.03.2010 and warranty was for 24 months or for 75000 K. M. As per clause 5 of terms of contract warranty shall not apply if vehicle met with an accident.
22. On perusal of documents it is evident that on 21.12.2010, during insurance period said vehicle met with accident as some hard object stuck from bottom below engine. The vehicle was taken for repairs by toeing the same to opponent no. 2.
23. The documents indicate that there is no inherent mechanical defect in the vehicle and damage was caused to vehicle due to accident occurred on 21.12.2010. There was no negligence on the part of complainant as alleged by all opponents.
24. The policy was comprehensive policy and accident took place during the contract of Insurance, hence opponent no. 3 insurer is liable to pay the repair charges. As the repair was beyond scope of warranty opponent no. 2 is not liable for payment of any amount. There is no evidence of manufacturing defect , hence opponent no. 1 is not liable.
25. The complainant is entitle for reasonable compensation for mental agony. His claim is exorbitant. The compensation has to be as per law laid down under section 73 of Indian contract Act, 1872. We quantity the said amount as Rs. 20000/- payable by insurance company.
26. In the result we pass following order.

                                    ORDER

1.      RBT/CC/245/2011 is partly allowed.

2.      The insurance company ICICI Lombard is ordered to pay

         Rs.73,575/-Seventy three thousand five hundred seventy five

          rupee only) to complainant with interest @ 9 % from the date of

          admission of  the complaint i.e. 25/05/2011 till payment.

3.      The insurance company is ordered to pay Rs.20,000/-(Twenty

          thousand ) as compensation for mental agony to complainant.

4.      No order as to cost.

5.      Copy of this order be sent to the both parties.