BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 140 of 2016
Date of Institution : 26.05.2016
Date of Decision : 28.07.2017
Prem Kumar aged about 43 years son of Shri Amarnath resident of 1545-D, Gali No.4, Aggarsain Colony, Sirsa Tehsil and District Sirsa.
……Complainant.
Versus.
1. The Managing Director, Chevrolet Sales India Pvt. Ltd. Corporate office 1st Floor, Plot No.15, Sector-32, Gurgaon-122001.
2 Managing Director, Padam Motors Pvt. Ltd., Hisar Road, opp. Police Chowki No.10 (Traffic) Sirsa.
3 New India Assurance Co. Ltd. through its Manager, Patiala Divisional office-1, 7 Chhoti Baradari, The Mall, Patiala-147001.
4 New India Assurance Co. Ltd. through its Manager, Hisar Road, Sirsa.
5 Ashwani Auto Motors, 9 KM Stone, OP Jindal Marg, Hisar.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT. RAJNI GOYAT, PRESIDING MEMBER.
SHRI MOHINDER PAUL RATHEE, MEMBER.
Present: Sh. Aashish Singla, Advocate for the complainant.
Sh. B.L. Narula, Advocate for the opposite party no.1.
Sh. B.S. Vinayak, Advocate for opposite party no.2.
Sh. A.S. Kalra, Advocate for opposite parties no.3&4.
Sh. M.K. Saini, Advocate for opposite party No.5.
ORDER
The brief facts of the present complaint are that the complainant is registered owner of one Chevrolet Beat Car No. HR-24S-3085 manufactured by op no.1 and purchased from op no.2. The complainant had got his vehicle insured through op no.2 under Zero Depreciation cashless policy on 20.08.2015 and was issued a insurance renewal premium receipt no.7196 dated 20.08.2015 by op no.2 for a sum of Rs. 12793/-. At the time of issuance of this receipt and acceptance of insurance renewal premium, the complainant was assured that the vehicle shall be insured under cashless Zero Depreciation policy and that in case of any loss or damage, the complainant shall get hassle free Zero Depreciation cashless repair from any authorized dealer of Chevrolet Sales India Pvt. Ltd. all over India. The complainant also received the policy No.36140031150300005348 valid w.e.f. 21.08.2015 to 20.08.2016 in this regard issued from the op no.3 i.e. New India Assurance Co. Ltd. Patiala. On being contacted the officials of op no.2 assured the complainant that this policy is under tie up arrangement with op nos. 1 and 2 and the complainant shall get cashless claim from any authorized dealer of op no.1 all over the country. It is further averred that unfortunately the vehicle of the complainant met with an accident and the complainant brought his vehicle at the workshop of op no.5. The complainant also handed over all the documents including the insurance policy and the premium receipt issued to him and he was assured by op no.5 that this is a cashless Zero Depreciation Policy and the vehicle shall be repaired under the same. That surprisingly even after repair of the vehicle under the insurance claim, the op no.5 flatly refused to deliver the repaired vehicle to the complainant saying that the insurance claim is still pending. After some days the complainant contacted both the ops no.2 and 5 in this regard and op no.5 asked the complainant either to get delivery of the repaired vehicle after payment of full bill amount of Rs. 49237/- in cash or to wait for the insurance claim to be paid to them. The complainant asked op no.5 for this cash demand even after cashless policy and he responded that the insurance policy is not a cashless policy and thus the complainant has to get the claim amount directly from the insurance company. It is further averred that forced with the circumstances, as the vehicle was lying at the workshop of op no.5 since last many days and that the complainant was bearing heavy loss because of non availability of the same, he under protest paid in cash a sum of Rs. 49237/- to the op no.5 against service receipt No.9850 dated 28.01.2016 qua bill no.002288 dated 28.01.2016 for repair of the vehicle and get delivery of his vehicle. The complainant contacted the op no.2 in this regard but he also made one excuse or the other and assured the complainant that he will get the insurance claim amount settled from the insurance company directly in the name of the complainant. Since then, neither the op no.2 nor the op no.5 nor the insurance company i.e. the ops no.3 and 4 paid the claim amount to the complainant even after passing of a period of more than 2 months. On being contacted all the ops were making lame excuses. Hence, the complainant got issued a legal notice dated 11.04.2016 to the ops through registered post which was duly received by them. However, a sum of Rs. 45500/-was deposited in the account of the complainant by ops no.3 and 4 against claim amount of Rs. 49237/- for which complainant opposed. On being contacted no satisfactory reply was given by the ops to the complainant as to why and for what reasons the lesser amount was paid whereas the insurance policy was a Zero Depreciation Policy. This conduct on the part of the ops clearly shows their gross negligence in providing service to the complainant. This non cooperation on the part of ops amounts to fraudulent behavior and the same is also in violation of the terms and conditions of the insurance contract between the parties and makes the ops liable to bear the consequence for the same. Despite issuance of a Zero Depreciation Cashless Policy, non repair of the vehicle by op no.5 on cashless basis and payment of lesser claim amount than the repairing charges, the same amounts to playing of fraud with the complainant particularly by ops no.1 and 2 and the same also amounts to negligence in providing services by all the ops jointly and severally. All the above circumstances clearly show that the ops have jointly played a fraud with the complainant and have also violated the terms and conditions of the insurance contract and they have also acted in gross negligence while providing services to the complainant. The complainant was harassed by the ops in this regard and was forced to make alternate arrangement of a vehicle for his day to day working for the time the vehicle was kept idle with the op no.5. The complainant contacted the ops time and again in this regard but to no effect. Hence this complaint.
2. On notice, opposite parties appeared. Case of the op no.1 in his reply, is that the complainant has wrongly impleaded op no.1, as there is no post of Managing Director in the company of op no.1, therefore, the complaint of the complainant deserve to be dismissed on this aspect only. It is further submitted that the answering op no.1 is a manufacturer only and it has no tie-up, relation, authorization, contract, dealership with any of the insurance Company, as well as it had never suggested the complainant to get his vehicle in question insured with op no.3. Therefore, for any of the act and conduct, deed/misdeed of op no.3, the answering op no.1 cannot be dragged to present litigation. The present complaint is not maintainable against the op no.1, as op no.1 is a wholesaler which is situated at about 200 kms from the place of cause of action and used to sell the same in a lot of 25-30 cars to op no.2 and at that time of sale the op no.1 used to receive the sale consideration. It is the duty of op no.2 to sell the same to the customer and to have benefit/bonus/profit out of the same. Therefore all the offers/acts/schemes/insurances etc which were made by the op no.2 cannot be understood as offers of op no.1. The complainant had not raised any plea of bad performance, defect, manufacturing defect or under performance of the vehicle. Only plea which has been raised by the complainant is that his vehicle in question had met with an accident and he was not provided the cashless facility, due to which his vehicle remained for some more time at the workshop and due to which huge loss has been caused to the complainant. In this regard it would be relevant to mention that upon enquiry it was found that opposite party no.5 had admitted the vehicle in question for repair only after the assurance of the complainant that he will make the payment of the repair in cash. An undertaking was taken from the complainant after apprising him of the fact that his vehicle cannot be repaired as cashless. Therefore, the present complaint of the complainant is just an arm-twisting method to get some illegal benefits. The present complaint has not been properly instituted under section 2 (1)(C) of the Consumer Protection Act 1986 and the complainant is not a consumer within the meaning of section 2(I) (D) or 2(i) (6) of the consumer Protection Act, 1986 nor any defects in goods or deficiency in service, as mentioned in section 2 (I), (F), (G) of the Consumer Protection Act, 1986 has been made out. In the present case opposite party no.1 did not show/own any deficiency in service against the complainant, as well as no unfair trade practice was ever adopted by the op no.1 against the complainant. On merits, it is submitted that the answering op no.1 is the group company of the manufacturer of the vehicle in question. The answering op no.1 has no relation with any insurance company and it provides only manufactured vehicles. It is further submitted that vehicle in question had met with an accident and major repair works were carried out on 20.01.2016, the said fact is clear from the vehicle history. An amount of Rs.49237/- was claimed for the repair works. It was brought to the notice of the complainant that cashless provision is not there on the vehicle in question, therefore, he has to make the payment, to which he has agreed and he had made an endorsement in this regard on the job sheet. But the complainant did not deposit the repair amount for long time, due to this reason also the vehicle remained parked for some more time. It is further submitted that the readiness of the vehicle in question after repair was intimated to the complainant on 28.01.2016, which means no time was wasted. Remaining contents of the complaint have also been denied.
3. The op no.2 has filed separate written statement in which certain preliminary objections regarding maintainability; estoppal; jurisdiction; suppression of material facts, no consumer dispute and complaint is bad for mis joinder and non joinder of parties have been taken. On merits, it is submitted that it is wrong to say that the complainant has got insured his vehicle with op no.2, rather the said vehicle was insured by the complainant with ops no.3&4. It is further submitted that as per the terms and condition of the policy/insurance company is liable for the same. The answering op has no concern with the claim. It is further submitted that the pleas taken by the complainant are itself contradictory, as on one side, he is stating that the said insurance was issued by op no.2 and on other side he is stating that the said policy/insurance was issued from the office of op no.3. It is further submitted that the policy, receipt of insurance was issued by ops no.3 & 4, as itself admitted by the complainant, hence the answering op has no liability for the same. The complainant stated that ops no.3 & 4 have deposited the claim amount of Rs.45500/- in his account, as such answering op has no liability about the claim of the complainant. Remaining contents of complaint have also been denied.
4. Ops No.3 and 4 filed joint written statement taking certain preliminary objections. On merits, it is submitted that it is wrong that answering op-Insurance Company has ever issued any insurance renewal premium receipt showing the coverage to be a cashless policy to the complainant. It is further wrong that answering op or its any of the Agent issuing the cover-note, policy had ever stated the policy to be a cashless policy and benefits of repair from any authorized dealer of Chevrolet Sales India Pvt. Ltd. all over India. However, it is admitted that it was a zero depreciation policy. It is further submitted that vehicle was inspected by the Surveyor and Loss Assessor Mr. I.B. Mehta, who after submission of estimate prepared by remaining ops, assessed the loss and thereafter claim of 45500/-(after receipt of report of surveyor on 16.02.2016) has been paid by answering ops to the complainant after deducting the amount of Rs.1000/- on account of excess clause only which is specifically mentioned in the policy. It is further submitted that an amount of Rs.878/- has been deducted on account of salvage as per report submitted by IRDA approved Surveyor & Loss Assessor and there is no objections by complainant regarding the report prepared and submitted by surveyor. Cashless policy is always issued, whenever there is any tie-up arrangement in this regard by the Insurance Company with the dealer. The amount of Rs.1860/- has only been deducted by the surveyor i.e. a technical person, who is the best person to speak about the damages suffered on account of accident only, and not the replacement on account of normal wear and tear or loss. It is submitted that accident allegedly occurred on 15.01.2016. Report regarding damages was submitted by the IRDA approved surveyor on 16.02.2016 and amount of Rs.45500/- has been paid by answering ops to the complainant on 31.03.2016. The time taken by answering op was/is the reasonable one, as the vehicle was insured from Divisional office, Patiala, thus after receipt of report of surveyor, entire file for processing the claim was sent to the relevant Divisional Office(policy issuing office, with whom complainant entered into the contract of insurance) and thereafter claim has been paid to the complainant on 31.03.2016 by the New India Assurance Company Ltd, Divisional Office, Patiala, to the tune of Rs.45500/-, so there is no delay in any manner on the part of answering ops. It is wrong that policy got issued by complainant was cashless policy. It is further pleaded and asserted that whenever there are allegations of fraud and cheating, then Consumer Forum should not proceed and decide the complaint, rather should asked such person/complainant to go for the relief to the courts trying criminal offences. Remaining contents of complaint have also been denied.
5. Op no.5 also filed separate reply and took certain preliminary objections. On merits, it is submitted that the vehicle in question was brought on 16.01.2016 by the complainant in damaged conditions and requested the answering op for repair estimate. The answering op prepared the repair estimate dated 18.01.2016 and after the approval of complainant dated 20.01.2016 got repaired the vehicle in question. The complainant paid bill dated 28.01.2016 of Rs.49,237/- and got the delivery of his vehicle in satisfactory conditions. The dispute in question relates to the insurer company i.e. ops no.3 and 4 and insured person/ complainant. The complainant also gave his undertaking for payment of cost of repair.
6. The parties then led their respective evidence in the form of affidavits and documents. The complainant has placed on record Ex.C1-his own supporting affidavit and copies of documents Ex.C2 to Ex.C15. Ops No.3 & 4 tendered affidavit Ex.R1 and copy of motor survey final report Ex.R2, affidavit of Sh. I.B. Mehta, Surveyor & Loss Assessor Ex.R3 and policy scheme cum certificate of insurance Ex.R4. OP no.1 produced affidavit Ex.R5 and copies of documents Ex.R6 to Ex.R13. OP no.2 produced affidavit Ex.R14. Ld. counsel for op no.5 made a statement that written statement filed on behalf of op no.5 be read in evidence.
7. We have gone through the record of the case carefully and have heard learned counsel for all the parties.
8. From the copy of receipt No.7196 dated 20.8.2015, it is evident that Padam Motors Pvt. Ltd. Sirsa received an amount of Rs.12793/- from the complainant on account of insurance renewal case No.169939 for insurance of his Car bearing registration No. HR-24S-3085 and copy of motor vehicle cover note Ex.C3 having case No.169939 reveals that same was issued at Sirsa for the period 21.8.2015 to 20.8.2016. So it is evident that opposite party no.1 facilitated the insurance of the car of the complainant from office of opposite party no.3 situated at Patiala but as op no.3 has branch office at Sirsa and policy was also provided at Sirsa, therefore, this Forum at Sirsa has territorial jurisdiction.
9. Further more, a perusal of the policy documents also reveal that it was a zero depreciation policy as it is very much mentioned in the policy that in the event of any partial loss claim admissible under this policy no depreciation shall be deducted except on tyres and tubes which are damaged in the accident and are replaced. It is also evident that an additional amount of Rs.2378/- was charged by ops No.3 & 4 from the complainant for zero depreciation policy. It is also an admitted fact that above said insured vehicle of the complainant with ops No.3 & 4 met with an accident on 20.1.2016 and same was taken to op no.5 for repair. The delivery of the vehicle in question was given by op no.5 to the complainant after receiving an amount of Rs.49,237/- from the complainant for repair of the car in question. The grievance of the complainant is that despite the fact that it was a cashless policy, the opposite party no.5 charged an amount of Rs.49237/- from the complainant and then delivered the vehicle to him. It is further the case of the complainant that ops No.3 & 4 have paid only an amount of Rs.45,500/- against the claim amount of Rs.49,237/- after long delay and despite the fact that it was a zero depreciation policy. In so far as contention of the complainant that it was a cashless policy, we see no substance in it because a perusal of policy reveals that it is not a cashless policy. The complainant also gave an undertaking to op no.5 that the bill of the repair of the vehicle will be paid by him. In so far as deduction of the amount is concerned, it may be mentioned that Surveyor and Loss Assessor appointed by ops No.3 & 4 in his report Ex.R2 mentioned estimated total cost of repairs as Rs.94,409/- and assessed the same as Rs.47,377/-. Whereas the final bill of repair of opposite party no.5 is for Rs.49,237/- and the complainant paid the same to op no.5 vide receipt No.9850 dated 28.1.2016 (copy Ex.C8). The Surveyor in his report has not mentioned about any of the unnecessary repairs done or that any unnecessary part which was not damaged in the accident was replaced. The ops no.3 & 4 have already made payment of Rs.45,500/- to the complainant which is also admitted by the complainant. The only difference between the claimed amount i.e. Rs.49,237/- and the paid amount i.e. Rs.45,500/- comes to Rs.3737/-. Out of the said amount, an amount of Rs.1000/- has been deducted as per excess clause and we are also of the considered view that said amount of Rs.1000/- has been rightly deducted by ops No.3 & 4 on account of compulsory excess given in the insurance policy itself. The remaining amount of Rs.2737/- includes Rs.863/- as salvage value of the damaged parts. However, it is the duty of the insurance company to collect salvage/ damaged parts from the repairing workshop and the insurance company has not proved that complainant has not allowed them to collected the salvage. So deduction on account of salvage is not justified. The Surveyor or ops No.3 and 4 have also not justified the deduction of the remaining amount of Rs.1877/-. Therefore, the insurance company is liable to pay remaining amount of Rs.2737/- to the complainant. However, no liability of ops No.1 &2 and 5 of any type is made out. The op no.1 which is the manufacturer of the vehicle in question has unnecessarily been impleaded as a party in the present complaint and no role/ deficiency of service of op no.1 has been proved by the complainant. The op no.2 is also not liable for any claim as it has only facilitated for the insurance of the vehicle in question from the office of op no.3. As the policy in question was not a cashless policy and the complainant gave an undertaking to the op no.5 that payment of repair bill will be paid by him to op no.5, therefore, no liability of op no.5 is also made out.
10. Thus, as a sequel to our above discussion, we partly allow the present complaint qua opposite parties No.3 & 4 and direct them to pay a sum of Rs.2737/- to the complainant. We also direct them to further pay lump sum amount of Rs.5000/- to the complainant as compensation including litigation expenses. This order should be complied by the opposite parties No.3 & 4 jointly and severally within a period of one month from the date of receipt of copy of this order, failing which they will be liable to pay penalty of Rs.100/- per day to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 28.07.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
