| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.470/2011 M/S MOBILE CENTRE THROUGH ITS PARTNER SH. NIKHIL BHATIA RAJINDRA MARKET, NEAR TIS HAZARI EXCHANGE, Vs. - THE NEW INDIA ASSURANCE COMPANY LTD.97, NEHRU PLACE, NEW DELHI
(THROUGH ITS PRINCIPAL OFFICER) - M/S CARNATION,
STUDIO 205, IHDP, PLOT NO.7, SECTOR 127, NOIDA, U.P. (THROUGH ITS PRINCIPAL OFFICER)……OP Date of Institution-08.11.2011 Date of Order- 22.12.2023 O R D E R MONIKA SRIVASTAVA– President - Complainant has filed the present complaint for settling the claim in accordance with the estimate and final bill for a sum of rupees 1,40,000/- along with damages for a sum of Rs.1,00,000/- and compensation for mental agony and harassment. OP 1 is New India Assurance Co. Ltd. and OP 2 is Carnation Ltd.
- It is the case of the complainant that they got their car insured from of OP 1 and paid the premium of Rs.14,591/-. Copy of the policy schedule certificate is annexed as Annexure 1. It is further stated that on 15.07.2011 while returning from Gurgaon to Delhi his car came across a stone lying in the centre of the road. Due to fast moving traffic, the complainant was unable to stop his car and hit the stone. The car was brought home after being towed with another vehicle.
- It is the case of the complainant that OP 1 was informed about the incident and OP 1 instructed the complainant to send his car to OP 2. Accordingly the car was towed to the workshop of OP 2 on 16.07.2011 and a sum of Rs.3,600/- was paid by the complainant towards towing charges which is annexed as Annexure C3.
- The said car was then inspected and the complainant was informed that the oil assembly of the car was damaged and needs replacement. On 20.07.2011, OP 2 informed the complainant that the car was ready to be driven and demanded and amount of Rs.5,000/- towards synthetic oil. Complainant objected to synthetic oil being used and OP 2 requested for one more day to drain the synthetic oil and refill it with GTX20W50.
- It is the case of the complainant that on 21.07.2011, the vehicle was delivered to the complainant after assurance that it was fit to be driven however after driving the car for a few kilometres it came to a stop. IT was again taken back to the workshop of OP 2. On 22.07.2011 complainant was informed that it would take two days for opening the car engine and after two days complainant was informed that many parts of the car were damaged.
- It is further stated that OP2 expressed its inability to arrange for the parts of the car and the complaint was forced to shift the car to Ring Road Honda workshop. Complainant again requested OP 1 to have the car surveyed at Ring Road Honda. Email sent in this regard is annexed as Annexure C4. It is stated that due to the negligence of OP 2, the complainant had to suffer huge loss. Copy of the emails dated 25.07.2011 is annexed as Annexure C4.
- An email was sent by the complainant on 31.07.2011 to OP 1 enclosing the estimate given by Ring Road Honda and requested OP 1 to appoint a surveyor for the inspection of the engine. It is annexed as Annexure C7. Another email was sent to OP1 for settling the claim at Rs.1,40,000/-Copy of the email dated 26.08.2011 is annexed as Annexure C 8.
- Complainant received an email from OP 1 dated 29.08.2011 informing that a claim of Rs.6,100/- has been settled. The same is annexed as annexure C9. It is the case of the complainant that OPs have been negligent in rendering services. It is further stated that complainants made representations however, no action was taken by the OP.
- OP 1 in their reply have stated that complainant’s partnership firm is not a registered firm and therefore is hit by section 69 of the Indian Partnership Act. It is further stated that complaint involves complex questions of law and that the complainant in order to get pecuniary benefits tried to play fraud by producing fake accident story. It is stated by the OP that in fact present complaint was lodged by the complainant with the delay of 60 days and on this ground alone the complaint ought to be dismissed. Reliance has been placed on Annexure C6 wherein an email has been written dated 25.07.2011 by Mr. Nikhil Bhatia and in second para he has mentioned that “My above mentioned vehicle met with an accident on the night on 15.05.2011 and was sent to Noida workshop on 16.07.2011 through M/s Sitaram Crane Services” . It is stated that in order to get the claim they have deliberately twisted the story of a sudden accident at National Highway.
- It is also stated that complainant again violated the terms and conditions of the policy when despite knowing the fact that stone has hit the bottom of the vehicle has driven the vehicle from Delhi to Gurgaon and damaged the vehicle. It is also stated that admittedly the complainant after satisfactory repair of oil pan assembly obtained the delivery of the vehicle in question and after driving the vehicle on NH 24, the vehicle got seized again due to driver’s fault and negligence which is not covered under the terms and conditions of the policy. It is stated that it is a consequential act of the insured which is not covered under the policy.
- It is further stated that Nikhil Bhatia has no locus standi to file the present complaint as he has not been duly authorised. It is further stated that OP 1 ought to be deleted from the array of parties because unsatisfactory job is done by OP 2 and due to which the complainant’s vehicle got damaged as per the allegation of the complainant himself which is clearly reflected from the mail dated 25.07.2011. It is further stated that when on 15.07.2011 the complaint was returning from Gurgaon to Delhi his car came across a stone lying in the centre of the road and the complainant was unable to stop his car and hit the stone and the car was towed with another vehicle which means that the engine of the vehicle got damaged.
- It is stated that complainant keeps changing his version and in an email dated 31.07.2011 it is stated “ as a result my vehicle went over the stone. I decided not to drive the vehicle and arranged for the vehicle to be towed to my residence in Green Park” but admittedly the vehicle was towed down from Defence Colony to H 16, Sector 63 Noida.
- It is further stated that as per the investigation and the statement of the complainant, the vehicle was driven after hitting the stone to the residence of the complainant which is situated at defence colony and due to the leakage of the oil pan assembly consequent damage has occurred which is not covered under the policy. It is also stated that the claim of the complainant has been passed in accordance with the papers, documents and the investigation carried out by the independent investigator appointed by OP 1 Rs.6,100/- is what has been allowed to the complainant.
- It is further stated that complainant is a victim of defective repair done by OP 2 due to which his engine was further damaged and comes under the definition of “consequential loss”. It is stated that OP1 has settled the claim as per the papers document supplied by the complainant in accordance with the terms and conditions of the policy and the calculation has been arrived at in terms of the policy by the investigator. The said report dated 09.08.2011 is exhibited as OP1/E.
- It is further stated that an amount of Rs.5,720/- has already been paid in this regard to OP 2 but the complainant has failed to submit the discharge voucher to collect the said cheque amount and therefore there is no question of deficiency on service on the part of OP 1. It is stated that the vehicle was sent to OP 2 for repair and after the repair the vehicle was handed over to the complainant’s driver on 21.07. 2011 at 7:00 PM after payment of the total bill amounting to Rs.5,720/- and when the driver had driven barely up to Ghazipur, he heard a loud noise from the engine. The vehicle was stopped, problem was informed to OP 2 and it was later revealed that crank piston connecting the main begin set thrust, washer oil, seal set, hit gasket were damaged which proves that there was a fault in repair and due to which the damage occurred and for this situation only OP 2 is liable for the loss.
- OP 2 in their reply has stated that there is no deficiency of service alleged against him and therefore OP 2 is liable to be dropped from the proceedings. It is further stated that as per the notice dated 01.09.2011, the surveyor of OP 1 had inspected the complainant’s vehicle and was informed that oil pan assembly was damaged and some other parts needed to be replaced and as per the direction and instructions of the complainant complete work was done by OP 2 therefore there is no deficiency in service on the part of OP 2. It is further stated that after the vehicle was repaired, the driver of the complainant drove the vehicle after satisfying and inspecting the vehicle. It is denied by OP 2 that OP 2 demanded an amount of Rs.5,000/- towards synthetic oil and thereafter drained it and refilled it with GTX 20 W50.
- Complainant in his rejoinder has mostly reiterated the averments made in the complaint. It is also seen that though the complainant has filed his evidence none of the OPs have filed their respective evidences. Both the OPs have filed their written arguments.
- This Commission has gone through the entire material on record. It is noticed that no documents have been filed by op one along with their reply.
- It is seen that the complainant has availed the services of M/s Sita Crane services on 16.07.2011 for towing the vehicle from Defence Colony to OP 2. And an estimate from Ring Road Honda has also been placed on record dated 28.07.2011 and a bill from OP2 has also been placed on record dated 21.07.2011. As per the survey report of the surveyor damage to the engine’s internal parts was a consequential loss after the accident the vehicle had run 3 to 4 kilometres since the oil pan was damaged and injured, oil leaked out of it there was number oil left in the engine the subject vehicle should not have been driven but since it was driven it caused consequential loss to the internal parts which as per policy and terms of the condition are not payable. This report of the surveyor has not been placed on record.
- This Commission is of the view that OP2 is largely responsible for the defect in the repair of the car of the complainant. It is evident from the facts stated that the car of the complainant was sent for repair at OP2’s garage but after having been rectified and being driven for merely 3-4 kilometres, the engine stopped working with a loud noise. Therefore, it is res ipsa loquitor, “facts speak for themselves” that the vehicle of the complainant was not properly repaired by the OP2 and consequently OP2 being deficient is directed to pay to the complainant a sum of Rs. 1,40,000/- with interest @ 6% p.a from the date of the complaint till realization. This amount is to be paid within three months from the date of the order failing which the interest payable on the said amount would be @ 8% p.a. OP1 is liable to pay the admitted amount of Rs.6,100/- to the complainant if not already paid and in case some amount is paid by OP1 to the complainant then the balance amount out of Rs.6,100/- would be paid by the OP1 to the complainant with interest @ 6% p.a from the date of the complaint till realization. This amount is to be paid within three months from the date of the order failing which the interest payable on the said amount would be @ 8% p.a. No other amount is found payable to the complainant.
- Copy of the order be provided to the parties as per rules. File be consigned to the record room. Order be uploaded on the website.
| |
