IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 5th day of   October2009

CC/185/2007

K.P.Sajith,

Keloth Puthiyapurayil,

Post Kolachery, KannurDist.                                       Complainant

(Rep.by Adv.M.Sheeba)

1. The Dealer,

    ESSCO Automobiles,

    Makkani, Kannur 2

2. The Dealer,

    ESSCO Automobiles,

    Cheruvannur, Calicut.                                               Opposite parties

    (Rep. by Adv.P.P.Bhargavan)

3. M/s.Oriental Insurance co. Ltd.,

    C.K.H.Building,

    Thazhepalam, Tirur. 676101

     (Rep. by Adv.P.P.Venu)

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay an amount of total sum of Rs.30, 000/- together with the cost of these proceedings.

            The brief case of the complainant is as follow: complainant purchased an ambassador car KL.13 P.5179 from 1^st opposite party on 5.1.06, 2^nd opposite party is the dealer. Complainant had taken the extended warranty in addition to the warranty on 5.1.06. On 5.6.07, when the vehicle traveling with the passengers reached at Kozhikode, the crank shaft of the car has broken. The passengers were compelled to get down. The extended warranty of the car was valid up  to 4.1.2008. On 6.6.2007 complainant approached 1^st opposite party and demanded to replace the crank shaft as per the extended warranty. The 1^st opposite party told complainant that for the extended warranty there is  tie up with insurance company and the complainant should pay the replacing charges and thereafter it should be reimbursed to the complainant from the insurance company. So the complainant paid Rs.15, 132.95 to replace crank shaft, Complainant also paid Rs.5000/- for towing the car from Kozhikode to Kannur. When the complainant approached 1^st opposite party to reimburse the amount 1^st opposite party stated that he is not coming under the purview of extended warranty and the amount cannot be reimbursed. Complainant was cheated by opposite party and there by suffered for financial and mental agony which is estimated to an amount of Rs.30, 000/- on 7/7/07. Complainant issued lawyer notice demanding an amount of Rs.30, 000/- as compensation. 2^nd opposite party replied with false contentions. Hence this complaint.

            Pursuant to the notice opposite parties 1, 2 and 3 filed version. Opposite parties 2 & 3 filed version together contending that the special contingency insurance (extended warranty) was issued by M/s Oriental Insurance co. Ltd., No warranty had even issued by opposite parties 1 and 2 and complainant had not paid any amount to these opposite parties for issuing the extended warranty. The premium for the extended warranty was paid by the complainant to M/s. Oriental Insurance co. Ltd., and the extended warranty was issued by the above said company. Hence these opposite parties are not liable to pay any amount as compensation to the complainant. It is true that 1st opposite party supplied an Ambassador car through  2^nd opposite party. It is not correct to say that the complainant approached the 1^st opposite party on 6.6.07 and demanded to replace crank shaft as per the extended warranty. The car was brought to work shop on 11.6.2007.Complainant was informed that he should pay the repair charges and thereafter it should b e reimbursed to the complainant by the insurance company. The complainant had paid only 12,243/- to 1^st opposite party. The complainant is bound to prove that he had spent Rs.5, 000/- for towing the vehicle to Kannur. The 1^st opposite party had informed complainant to approach M/s. Oriental Insurance co. Ltd. to get his extended warranty claim settled\. There is no deficiency of service on the part of opposite parties 1 and2. Insurance company alone is liable to settle the case and to pay the compensation. Hence to dismiss the complaint.

            3^rd opposite party filed version separately contending that they could not find any such extended warranty in favour of the complainant for his alleged car KL.13/P-5179. The complainant has not furnished any particulars regarding the policy. Hence this opposite party is not liable to provide any relief. 3^rd opposite party subsequently filed additional version admitting that the vehicle was insured with the opposite party for  the period from 6.1.2004 to 5.1.2008 as special contingency insurance as extended warranty for 1 year after  Main warranty expires. The policy was issued from Tirur Branch. The complainant neither communicated the alleged Mechanical failure nor lodged any claim. Hence there is no deficiency in service on the part of this opposite party.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for any remedy as prayed in the  

     Complaint?

3. Relief and cost.

            The evidence consists of oral testimony of PW1, DW1 and documents Exts.A1 to A11 and B1 marked.

Issue Nos.1 to 3

            Admittedly complainant purchased an Ambassador car Kl.13P.5179 from 1^st opposite party and the same was supplied through the 2^nd opposite party. The case of the complainant is that he had taken the extended warranty on 5.1.2006 and it was valid up to 4.1.2008. The crank shaft of the vehicle was happened to be broken on 5.6.2007 at Kozhikode and on 6.6.2007 complainant demanded 1^st opposite party to replace the crank shaft as per extended warranty. 1^st opposite party told him that for the extended warranty they have  tie up with insurance company and that the complainant should make payment if the replacing charges of the defective pars and the same would be  reimbursed from the insurance company. Accordingly complainant paid Rs.15, 132/- for replacement of crank shaft. He had also paid Rs.5000/- for towing the car from Kozhikode to Kannur. But when he approached the 1sty opposite party for reimbursement 1^st opposite party stated that he will not come under the purview of extended warranty. Opposite parties 12 and 2 contended that they have not issued any warranty or extended warranty. The premium for extended warranty was paid to3rd opposite party and the extended warranty was issued by Insurance Company. Supplemental 3rd opposite party contended that they could not find such extended warranty but not specifically denied that they did not issue any such extended warranty. It can only be considered as an admission. Anyway 3^rd opposite party subsequently admitted by filing additional version that the vehicle was insured on 5.6.2007 which is within the purview of insurance. Hence exempting the technicalities it is a definite case that the company is liable to reimburse the amount. Complainant had been attempted to get the amount reimbursed from the very outset. Complainant sent lawyer notice on 7.7.2007. Ext.A8 lawyer notice reveals that complainant had tried very much to get the amount. Opposite parties 1 and 2 failed to advice complainant in proper manner. Anyway it has come in evidence that the complainant has renewed the policy with the Oriental Insurance Company for the Ambassador car KL.13P.5179 denying the claim amount on the ground of technicalities is quite unfair on the part of Oriental Insurance Company since the alleged incident happened during the period of policy. The premium amount is already in the pocket of Insurance Company. Question of technicalities did not arise at the time of receiving the premium amount. The receiving branch raised no objection in receiving the amount on behalf of the company. The Insurance Company depending merely upon the technicalities to deny the claim amount. 3^rd opposite party is liable to reimburse the amount.

Ext.A4 the details of defects issued by 1^st opposite party shows that crank shaft were broken at Calicut. Ext.A5 shows the price of spare pars as Rs.9200/-. Ext.A6 reveals that the total expense for the repair of the vehicle is Rs.15132/-. 3^rd opposite party did not questioned the estimate amount in Ext.A6, issued by1st opposite party. Since the vehicle is a new one 3^rd opposite party is liable to reimburse the entire amount. The evidence shows that the incident had taken place at Calicut and the vehicle is repaired at Kannur. There is no doubt that without expense the vehicle cannot be shifted to Kannur, which is more than 100 KM away from Calicut. But complainant has not produced any evidence to that affect. Hence it can be4 assumed that a minimum Rs.2000/- is required to take the vehicle to Kannur.

            In the light of above discussion complainant is entitled to get an amount of Rs.17, 000/- as claim amount and a sum of Rs.5000/- as compensation together with Rs.1000/- as cost of these proceedings. Issues 1 to 3 are found in favour of complainant.

            In the result, the complaint is allowed directing the 3^rd opposite party to pay an amount of Rs.17000/- (Seventeen thousand only) as claim amount and a sum of Rs.5000/- (Rupees Five thousand only) as compensation together with Rs.1000/-(Rupees One thousand only) as cost of this proceedings within one month from the date of receiving this order, failing which the complainant is allowed to execute the order against the 3^rd opposite party.  

                              Sd/-                             Sd/-                         Sd/-

                        President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.certificate cum policy schedule issued by OP

A2 Copy of the registration certificate of the vehicle

A3.Copy of the special contingency insurance issued by OP

A4.to A6.Copy of the extra warranty dt.6.6.07 issued by ESSCO Automobiles

A7.Receipt dt.6.6.07 issued by Khalasi Crane service

A8.Copy of the lawyer notice dt.7.7.07 sent to OPs

A9 & 10. Postal ADs

A11.Reply notice dt.13.7.07

Exhibits for the opposite parties

B1.Policy schedule

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite arties

DW1.Sreejhith.K.M.                                        /forwarded by order/

                                                                        Senior Superintendent