BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No. 133 of 2015 Date of Institution: 26.3.2015
Date of Decision: 30.9.2015
Ashok Kumar, Age 49 years, Son of Dharam Pal, Resident of Old Talwandi Road, Gali Telian Wali, Ward No.15, Zira Tehsil Zira District Ferozepur.
....... Complainant
Versus
- The New India Assurance Co. Limited, through its Managing Director, Registered and Head Office, New India Assurance Building, 87 M.G. Road, Fort, Mumbai-400001.
2. The New India Assurance Co. Limited, through its Divisional Manager, Divisional Office, Shaheed Udham Singh Chowk, Malwal Road, Ferozepur City.
3. Shekh Farid, Authorised Dealer of Mahindra & Mahindra, G.T. Road, Malwal through its Managing Director.
4. Mahindra & Mahindra, Mahindra Towerm, G.B. Bhosle Marg, Mumbai-400018 through its Managing Director.
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * * *
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PRESENT :
For the complainant : Sh. A.K. Gupta, Advocate.
For opposite party No.1 : Ex-parte.
For opposite party No. 2 : Sh. R.K. Sachdeva, Advocate.
For opposite party No. 3 : None
For opposite party No. 4 : Sh. H.D. Kathpal, Advocate.
QUORUM
S. Gurpartap Singh Brar, President
Mrs. Inderjeet Kaur, Member ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant purchased Genio SC 853 from opposite party No.3 on 25.3.2013 with a warranty of one year, which was manufactured by opposite party No.4. Opposite party No.3 got it financed from H.D.B. Financial Services Limited and got it insured from opposite party No.2 at its agency. The insurance was valid for the period from 23.3.2013 to 22.3.2014. The complainant paid a sum of Rs.24,285/- as premium to opposite
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party Nos.1 and 2. The vehicle was insured for Rs.5,34,643/-. The complainant purchased the said vehicle for earning his livelihood and the complainant and his family is fully dependent on it. The complainant run the said vehicle for approximately 17000 K.Ms. Two services were conducted by opposite party No.3. There was clutch plate defect in the vehicle, which was changed, but opposite party No.3 wrongly charged for the same though it was within warranty period. Further it has been pleaded that on 16.1.2014, the complainant was driving the vehicle at about 9:00 A.M. at Zira and when this vehicle reached near Government Girls School, Old Talwandi Road, its self started burning, as a result of which the entire dash board, front box, staring and widow were burnt badly. However, the complainant got himself out safely. The vehicle caught fire on account of manufacturing defect in its wiring. Information in this regard was given by the complainant to opposite party No.2 and the vehicle was brought at the workshop of opposite party No.3. Since then the vehicle is lying in the workshop of opposite party No.3. The complainant has further pleaded that he did not affix any extra item in the vehicle in question since its purchase till it caught fire and never get the same repaired from any outer agency or mechanic. The complainant received a letter from opposite party No.3, wherein it has been stated that tampering of wire at the Front Head light has been done and the fuse in the box was also tampered. The
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complainant was never called when the alleged mechanic checked the vehicle in question. The complainant has denied this allegation. The complainant hired the services of third mechanic namely Kuldeep Singh, who checked the vehicle in the presence of opposite party No.3 in their workshop and gave his report dated 5.2.2014 to the effect that there was technical defect in the vehicle and all the wires, holder and other spare parts were original of the company. Further it has been pleaded that opposite party Nos.3 and 4 were bound to get the vehicle in question changed being technical defect in it or in the alternative opposite party Nos.1 and 2 were duty bound to give the insurance. Neither opposite party Nos.3 and 4 changed the vehicle nor opposite party Nos.1 and 2 gave the claim. The complainant had been visiting opposite party No.2 for the claim of the vehicle and he had also been visiting opposite party No.3 for change of the vehicle with new one, but opposite party Nos.2 and 3 had been putting off the complainant without any rhyme or reason. Pleading deficiency in service on the part of the opposite parties, the complaint has prayed that opposite party No.2 be directed to pay the insurance claim or in the alternative, opposite party No.3 be directed to change the vehicle with new one. Further a sum of Rs.50,000/- has been claimed as compensation for harassment and Rs.10,000/- as litigation expenses.
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2. Opposite party No.1 did not appear before this Forum despite service of notice. Therefore, opposite party No.1 was proceeded against ex-parte vide order dated 20.5.2015.
3. Upon notice, opposite party No.2 appeared and filed its written reply to the complaint, wherein certain preliminary objections have been raised that there is neither any accident nor theft etc. Therefore, the alleged loss does not fall under the policy in question and opposite party No.2 is not liable in any way to pay any claim to the complainant; that the complaint is bad for non-joinder of necessary parties; that the complainant has no cause of action to file the present complaint against opposite party No.2; and that in the present complaint, complicated questions of law and facts are involved. Lengthy process of chief examination and cross-examination of the parties is required, which is not possible in the summary process of this Forum. On merits, all the averments of the complaint have been denied and further it has been pleaded that correct report was given by opposite party No.3 and no liability can be fastened on opposite party No.2 due to any alleged reason of manufacturing or technical defect in the vehicle.
4. Opposite party No.3 failed to file its written reply to the complaint despite availing sufficient opportunities for the same. One Sagar Kumar was
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appearing on behalf of opposite party No.3 on the dates of hearing till 1.6.2015, but thereafter nobody has come present on behalf of opposite party No.3.
5. In its written reply, opposite party No.4 has also raised certain preliminary objections that the complainant is not consumer of opposite party No.4. Opposite party No.3 purchase the vehicles manufactured by opposite party No.4 in bulk quantities and in turn resell them to their own customers. All the transactions with dealers are on principal to principal basis; that the complainant has admitted that the vehicle is used for commercial purpose for his livelihood. However, he has nowhere pleaded or proved that he is using it for livelihood by way of self occupation; that the clutch plate is not covered under the manufacturers warranty. Therefore, the amount has been charged by the dealer in respect of the clutch; that the vehicle got spark due to which, as alleged, certain parts were affected. However, when the vehicle came to dealership, it was found on inspection that fuse got interchanged instead where 5 Ampere fuse has to be used at that place the complainant or someone else, has inserted 10 Ampere Fuse and where 10 Ampere fuse is to be inserted, there 5 Ampere fuse has been put and due to interchanging the fuse, the incident has occurred. It resulted into running the direct flow of current, which lead to short circuit of wiring and ultimately few parts got affected by fire. When the vehicle was brought at dealership by the
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complainant himself, the inspection was conducted in presence of the complainant and it was shown to him that the fuses have been interchanged due to which the said incident had occurred; and that the complaint is time barred. Admittedly the vehicle was purchased on 25.3.2013 and the complaint was filed on 16.4.2015 i.e. after the lapse of two years of purchase of the vehicle. On merits, it has been pleaded that Finance Company has not been impleaded as party. Therefore, the facts cannot be verified. Further it has been pleaded that a letter was sent by the dealership seeking approval for repair by mentioning the observations made at workshop during the inspection of the vehicle. The copy of repair order (RO) was made in the presence of the complainant and findings were made that wrong fuses have been inserted in the wrong places. On account of this, the said incident has occurred. When the vehicle was brought at the workshop of dealership on 25.3.2013, the complainant refused to get the repair work done. Further it has been pleaded that report dated 5.2.2014 shows that the qualification of said Kuldeep Singh has not been mentioned. No diploma or degree has been mentioned. He has not even shown that he is competent to inspect the Mahindra & Mahindra vehicles. He has not even mentioned whether the fuses have been interchanged or not. It is vague report and cannot be relied upon. The problem arose due to negligence of the complainant. The complainant did not give any approval for repair of the
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vehicle. Therefore, the vehicle is lying at dealership. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
6. Learned counsel for the complainant tendered into evidence Ex.C-1 to Ex.C-10 and closed evidence on behalf of the complainant. On the other hand, learned counsel for opposite party No.2 tendered into evidence Ex.OP-2/1 to Ex.OP-2/2 and closed evidence on behalf of opposite party No.2. Similarly, learned counsel for opposite party No.4 tendered into evidence Ex.OP-4/1 to Ex.OP-4/3 and closed evidence on behalf of opposite party No.4.
7. We have heard the learned counsel for the parties and have also gone through the file.
8. Purchase of the vehicle in question, manufactured by opposite party No.4, by the complainant from opposite party No.3 on 25.3.2013, has been admitted. It is also the admitted case of the parties that the said vehicle was got insured by opposite party No.3 with opposite party No.2 vide Policy Schedule Cum Certificate of Insurance Ex.C-2 for the period from 23.3.2013 to 22.3.2014 for Insured’s Declared Value (IDV) of Rs.5,34,643/-. The grievance of the complainant is that on 16.1.2014, when the complainant was driving the said vehicle at about 9:00 A.M. at Zira and when it reached near Government Girls
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School, Old Talwandi Road, its self started burning, as a result of which the entire dash board, front box, staring and window burnt badly, information regarding which was given by the complainant to opposite party No.2 and the vehicle was brought at the workshop of opposite party No.3, but neither opposite party No.2 proceeded further for giving insurance claim to the complainant nor opposite party No.3 has replaced the vehicle in question with new one. In its written reply, opposite party No.4 has pleaded that when the vehicle was brought to dealership, it was found on inspection that fuse got interchanged instead where 5 Ampere fuse has to be used at that place the complainant or someone else, has inserted 10 Ampere Fuse and where 10 Ampere fuse is to be inserted, there 5 Ampere fuse has been put and due to interchanging the fuse, the incident has occurred. In support of this contention, opposite party No.4 has placed on the file copy of Job Card Ex.OP-4/3 issued by Sheikh Farid Automobiles Limited i.e. opposite party No.3. The complainant has specifically pleaded that he was not called by opposite party No.3 at the time of alleged inspection of his vehicle. However, occurrence of burning the vehicle in question has not been denied by opposite party No.4. Opposite party No.3 has failed to file any written reply or lead any evidence despite appearance to rebut the claim of the complainant. Therefore, the onus was upon opposite party No. 4 to prove its contention that the said occurrence took place on account of
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negligence of the complainant in the alleged tampering of wiring and interchanging of fuses of the vehicle in question. Job Card Ex.OP-4/3 does not bear the signatures of the customer/complainant. No name of the Mechanic/Engineer, who allegedly inspected the vehicle in question on 17.1.2014, has been mentioned either in the written reply of opposite party No.4 or in the Job Card Ex.OP-4/3. Even the said Job Card has not been proved on the file by opposite party No.4. No affidavit of the Mechanic/Engineer, who allegedly inspected the vehicle in question on 17.1.2014 and prepared this Job Card has been placed on the file by opposite party No.4. Therefore, this Job Card seems to be procured by opposite party Nos.3 and 4 just to escape from their liability and no reliance can be placed on such like Job Card. On the other hand, to prove his version, the complainant has placed on the file expert opinion/report dated 5.2.2014 issued by Mistri Kuldeep Singh of Kuldeep Motor Garage, Ferozepur City Ex.C-9 vide which said Kuldeep Singh has opined that he has been doing the work of repair of vehicles for the last 26/27 years and during this long duration, he has performed checking, repair and electrical wiring of thousands of vehicles and he has full knowledge and experience in this regard. On 5.2.2014, he had checked one vehicle Mahindra Genio, Chassis No.MA1YE2JEKD6B44218, Engine No.JED4A3516 at the showroom of Sheikh Farid Automobiles, Dealer Mahindra & Mahindra, Ferozepur.
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Fire had broken out in the fuse box of the said vehicle near staring at the time of its driving. He had checked the said vehicle at the instance of its owner and after complete inspection, it was found that the fire broken out in the said vehicle on account of manufacturing defect in it and its wiring, holder and other spare parts etc. were the same, which were fitted by the company, and no parts other than provided by the showroom/agency was fitted there. No music system or extra horn was lying installed in the said vehicle and its wiring was not tampered. Opinion of the said Mechanic Kuldeep Singh has not been controverted by either of the opposite parties in an unequivocal terms. The said Mechanic/expert has also not been subjected to cross-examination by the opposite parties. Therefore, the complainant has succeeded in proving on the record that fire broken out in the vehicle in question due to some defect in the vehicle in question, which resulted into burning the entire dash board, front box, staring and window badly and he has not committed any breach of the terms and conditions of the warranty. Therefore, opposite party No.3, vide letter Ex.C-4, wrongly rejected the claim of the complainant stating that such incidence does not come under warranty preview. The claim of the complainant duly falls under the warranty, which is being provided by the manufacturer i.e. opposite party No.4 on its products. Opposite party No.4 cannot wriggle out from the warranty provided on the vehicle in
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question merely pleading that all the transactions with the dealers are on principal to principal basis.
9. So far as objection raised by opposite party No.2 that there is neither any accident nor theft etc. and as such the alleged loss does not fall under the policy in question is concerned, as per DK Illustrated Oxford Dictionary, the word ‘accident’ means, “1. an unpleasant and unexpected event. 2. an event that happens by chance”. As per The Concise Oxford Dictionary of Current English, Ninth Edition, word ‘accident’ has been defined as “1. An event that is without apparent cause, or is unexpected 2. An unfortunate event, esp. one causing physical haram or damage, brought about unintentionally 3. Occurrence of things by chance; the working of fortune 4.an occurrence of involuntary urination or defecation 5. An irregularity of structure by accident unintentionally.” In the present case also, fire broken out from the vehicle in question unexpectedly and by chance. Therefore, the broking out of fire from the vehicle in question is also termed as accident and thus the claim of the complainant duly covers under the policy in question. Opposite party Nos.1 and 2 are liable to make good the loss of the complainant occurred due to fire. The vehicle in question was got insured with opposite party No.2 on 23.2.2013 for IDV of Rs.5,34,643/- and it damaged due to fire broken out on 16.1.2014 i.e. within one year from the date of its purchase/insurance. As per
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Schedule of Depreciation for arriving at IDV mentioned in the terms and conditions of the policy Ex.OP-2/2, depreciation is to be made at the rate of 15% from the IDV of the vehicle in question i.e. Rs.5,34,643/-. Therefore, opposite party Nos.1 and 2 are liable to pay the claim to the complainant on account of loss of his insured vehicle after deducting depreciation at the rate of 15% from the IDV of Rs.5,34,643/- of the vehicle in question considering the loss to be a total loss.
10. The complainant has hired the services of the opposite parties for valuable consideration. So far as objection raised by opposite party No.4 that the complainant is using the vehicle in question for commercial purpose is concerned, the complainant has specifically pleaded in para No.3 of the complaint that he purchased the said vehicle for earning his livelihood and he and his family members are fully dependent on this vehicle. Opposite party No.4 has neither pleaded that besides the vehicle in question, the complainant or his family members also have some other source of their livelihood nor have produced any evidence that the complainant is earning huge profits by running the said vehicle. As per provisions of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. In the present case also, the complainant
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has specifically pleaded that he is using the vehicle in question for earning his livelihood and the opposite party No.4 has failed to refute this pleading of the complainant by leading any cogent and convincing evidence. Therefore, the objection raised by opposite party No.4 in this regard is not sustainable and is rejected accordingly. The complainant duly falls within the definition of consumer, as provided under Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.
11. Another objection raised by opposite party No.4 is that the vehicle was purchased on 25.3.2013, the complaint was filed on 16.4.2015 i.e. after the lapse of two years of purchase of vehicle and as such the complaint is time barred. Admittedly, the vehicle in question was purchased on 25.3.2013, it was damaged on account of fire, which was broken out due to some defect in the vehicle on 16.1.2014. Therefore, cause of action for filing the present complaint had also arisen to the complainant on 16.1.2014 and as such the present complaint filed by the complainant on 26.3.2015 (wrongly mentioned by opposite party No.4 as 16.4.2015) is well within the period of limitation as provided under Section 24-A of the Consumer Protection Act, 1986.
12. In view of what has been discussed above, this complaint is accepted and opposite party Nos.1 and 2 are directed to pay the claim to the complainant on
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account of loss of his insured vehicle after deducing depreciation at the rate of 15% from the IDV of Rs.5,34,643/- of the vehicle in question considering the loss to be a total loss. Opposite party Nos.1 and 2 are directed to collect the vehicle in question from the workshop/showroom opposite party No.3. Further opposite party Nos.1 and 2 are directed to pay a sum of Rs.5000/- as litigation expenses to the complainant. This order is directed to be complied with within a period of thirty days from the date of receipt of a copy of this order. The complainant is directed to execute the document(s) for change of ownership of the vehicle in question in the name of opposite party No.2 and payment of claim by opposite party No.1 and 2, if any required by them. However, opposite party Nos.1 and 2 shall be at liberty to recover the amount of claim paid to the complainant from opposite party No.3 and 4 subject to terms and conditions of the policy under due process of law. File be consigned to the record room.
Announced (Gurpartap Singh Brar)
30.9.2015 President
(Inderjeet Kaur) Member
