Punjab

Ludhiana

CC/14/634

Sanjeev Kumar Mishra - Complainant(s)

Versus

United India India Ins.Co.Ltd - Opp.Party(s)

Pardeep Kumar

27 Jul 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

   Consumer Complaint No. :   634 of  10.09.2014

Date of Decision        :   19.08.2015

 

Sanjeev Kumar Mishra son of Sh.Anand Chander Mishra, resident of H.No.144-B, Lajpat Nagar, New Model Town, Ludhiana presently at H.No.225, M.I.G. Flats, IInd Floor, Dugri Phase I, Ludhiana.

….. Complainant

Versus

1.Pioneer Cheverolet, Omni Wheels Private Limited, Basti Jodhewal, Ludhiana Plot No.73, New Kuldeep Nagar, Basti Jodhewal, Ludhiana through its Managing Director/authorized signatory.

2.M/s Cheverolet Sales India Pvt. Ltd., Block B, Chandrapura, Industrial Estate, Halol-389351, District Panchmahals Gujrat, India through its Managing Director/Authorized signatory.

3.HDFC  Ergo General Insurance Limited, Plot No.C-9, IIIrd Floor, Peal Best Heights-II, Netaji, Subash Palace, New Delhi through its Managing Director/Authorized signatory.

4.HDFC Ergo General Insurance Limited, Ludhiana through its Managing Director/Authorized signatory Mall Road, Ludhiana.

…Opposite parties

 

   (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH. SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Pardeep K.Nanchahal, Advocate.

For Op1                         :         Sh.Harpreet Singh, Advocate

For OP2                         :         Sh.Pardeep Kapoor, Advocate

For OP3 & OP4             :         Sh.Vyom Bansal, Advocate

 

                                                                                O R D E R

 

SAT PAUL GARG, MEMBER

 

1.                          This complaint has been filed by Sh.Sanjeev Kumar Mishra under Section 12 of the Consumer Protection Act, 1986 against the OPs, by alleging that the he purchased one car make Chevrolet Beat-LT-10 vide retail invoice No.R-00353 dated 28.10.2011 for an amount of Rs.5,61,957/- from OP1, who is the authorized dealer of OP2 i.e. manufacturer of the said car. The abovesaid car was allotted registration No.PB-10-RT-3471 and the same was insured from the OP3 and OP4 vide insurance cover note No.2300951415 having policy No.231120015107200001 being comprehensive insurance. The complainant got financed the abovesaid car from HDFC Bank Limited, Ludhiana. Warranty of one year was given by Op1 on behalf of OP2 qua the vehicle and other benefits at the time of purchase. Thereafter, the complainant started plying the said vehicle. Suddenly, on 20.6.2012, the complainant parked the said car at his residence and unfortunately, at about 2:45 P.M., the complainant heard a blast noise from the outside. The   complainant   ran            outside his house and astonished to see that the vehicle of the complainant got fire and the complainant with great difficulty managed to extinguish the fire, but till then the vehicle in question was totally damaged. Matter in this regard was reported to the police at P.S.Dugri, Ludhiana, who lodged a DDR No.12 dated 13.07.2012 to that effect. Thereafter, matter was reported to OP1, who advised the complainant to lodge a claim with Op3 and OP4, as such, the complainant approached OP3 and OP4 for the claim of the said vehicle and fulfilled all the formalities and submitted all the documents with regard to the said vehicle, but OP3 and OP4 did not accede to the request of the complainant and rather advised the complainant to approach OP1 and OP2 and told that there was some manufacturing defect in the vehicle in question. The complainant again approached OP1 and OP2, but to no avail. Op3 and OP4 finally refused to pay the claim amount to the complainant and OP1 and OP2 also flatly refused to replace the vehicle in question. Such act and conduct of Ops is claimed to be deficiency in service by the complainant. Hence, by filing the present complaint, complainant has made prayer for the following reliefs:-

i)Op3 & OP4 be directed to pay the claim amount of Rs.5,61,957/- alongwith interest @24% p.a. or in the alternative

ii)OP1 and OP2 be directed to give a new car to the complainant.

iii)Ops are directed to pay damages of Rs.20,000/- on account of rendering deficient service.

iv)Rs.21,000/- as litigation expenses.

Alongwith other alternative relief which deemed to be fit to the complainant.

2.                Upon notices, which the Ops were duly served, who appeared through their respective counsels and filed their separate written replies.

3.                OP1 filed the written reply, in which, it has been alleged in the preliminary objections that the complainant has filed a false case and approached this Hon’ble Forum with unclean hands and he has suppressed the material facts from this Hon’ble Forum. He falsely stated in his complaint that on 20.6.2012, his car caught fire suddenly and there is manufacturing fault in the vehicle. In fact, he had parked his car under a tree and over dry leaves. The dry leaves caught fire and consequently, the car also caught fire. There was no manufacturing fault in the car. This fact is clear from the DDR No.11 dated 20.6.2012 lodged on the same day by the complainant himself at P.S.Dugri, Ludhiana, wherein, the above facts have been reported. However, later on he changed his statement and lodged a second  DDR  No. 12 dated 13.7.2012 falsely stating that his car caught fire due to technical fault. The second DDR was falsely lodged only to get the insurance claim. The car caught fire due to burning of leaves and not due to any manufacturing fault. The car is still lying in the workshop of the OP1 and the complainant is liable to pay parking charges @Rs.250/- per day as he is neither getting the car repaired from the OP1 not taking it back. The complaint is not maintainable and the Op1 has been unnecessarily dragged in the present complaint. Reply on facts, reiterated all the contents of the preliminary objections and denied the allegations made in the paras of the complaint being false. At the end, prayer made for dismissal of complaint with costs against the answering OP.

4.                OP2 filed the separate written reply, in which, it has been submitted in the preliminary objections that OP2 has been unnecessarily dragged into the present litigation. Even a bare perusal of the complaint itself shows that the vehicle was running in good condition and there was not even a single complaint regarding working of the vehicle in question and it is not a case of complainant that the vehicle had catched fire while it was in use or while it was running. In fact, the complainant has filed the present false complaint. As per DDR No.11 dated 20.6.2012,      complainant  himself  stated  that he had parked the car under a    tree over the dry leaves and the dry leaves caught fire, due to some other untoward incident, resultantly, the vehicle in question caught fire. This fact clearly shows the falsity of the case of the complainant and second DDR No.12 dated 13.7.2014 was lodged only to get the insurance claim and the same is claimed to be false one. No information etc., was given to the OP2 as well as no investigation was got conducted from the OP2. It is a case of contract and in case of accident, the OP3 and OP4 only can be held responsible. As per the warranty condition, the OP2 cannot be held responsible for any act which was not result of working style of the vehicle in question and it was an external incident/accident not connected with the performance of the vehicle. It is the condition No. “g” under the clause of warranty limitations, which clearly shows that the vehicle of the complainant, which caught fire due to such like reasons as due to the fire in the leaves on the ground, is not covered under the warranty. The present complaint is not made out against the OP2 as admittedly, the OP2 is neither the manufacturer nor the retailer, it purchases all the vehicle manufactured by General Motors India Pvt. Ltd., its sister concern and further use to sell these vehicles to the retailers like OP1. It is submitted that there is no manufacturing defect in the present vehicle in question. The vehicle in question was not under warranty and has crossed all the warranty limits. Even as per the complaint itself, the vehicle in question was purchased on 28.10.2011 and the complainant had never raised any issue with the OP2 and first time in the month of November, 2014, he had filed the present complaint that is after more than 3 years of purchase of the vehicle in question, whereas   the warranty condition is limited only for 1 year as per the complainant himself. As such, it is claimed that the complaint is hopelessely time barred also even as per the case of the complainant, the vehicle caught fire on 20.6.2012, therefore, cause of action arose on 20.6.2012 and from that date, the limitation period i.e. for 2 years expires on 20.6.2014, whereas, the present complaint was filed on 18.11.2014, about 150 days after the expiry of the limitation period, so complaint is clearly time barred as per Section 24A of the Consumer Protection Act, 1986. Reply on facts, similar pleas were taken as mentioned in the preliminary objections and at the end, denying any deficiency in service on the part of OP2 and all the allegations levelled in the complaint being wrong, OP2 made prayer for dismissal of the complaint with costs.

5.                OP3 and OP4 filed their joint written statement, in which, they took up certain preliminary objections that the vehicle of the complainant was insured by the OP3 and OP4 vide Private Car Package Policy No.2311200151057200001 which was valid w.e.f.18.10.2011 till 17.10.2012 and the said vehicle was allotted a temporary registration No.PB-10-R-2011-Temp-3471 on date 20.10.2011 valid only until 19.11.2011. Upon receipt of the information of loss from the complainant o 20.6.2012, an independent surveyor namely M/s Bansal & Co. was deputed to assess the loss caused to car in question, who had personally inspected the vehicle, took the photographs and documents and thereafter, prepared his report dated 24.7.2012 under his signatures and submitted the same with the OP3 and OP4. After receipt of the said report and after scrutinizing the documents by OP3 and OP4, it was observed that the temporary registration of the vehicle had expired on 19.11.2011 and the complainant had not got the vehicle registered even after expiry of the temporary registration till date. The present loss took place when the vehicle was not registered with the District Transport Office and thus, the claim of the complainant was found not payable one as complainant had violated the terms and conditions of the insurance policy as well as Section 39 of the Motor Vehicles Act, 1988 and the claim of the complainant was repudiated by the competent authority of the company after due application of mind and repudiation letter dated 27.8.2012 which was duly posted to the complainant resolving the liability of the OP3 and OP4 and ultimately, OP3 and OP4 treated the claim as ‘No Claim’ as the said vehicle was not having regular registration certificate with the Transport Registering Authority. Further alleged that the complainant has approached to this District Forum on 10.9.2014 after the expiry of two years and there is a delay for about 150 days in filing the present complaint with this District Forum and no application has been moved by the complainant to get the delay condoned and as such, complaint deserves dismissal on this sole ground. Reply on facts, similar pleas were alleged as alleged in the preliminary objections and at the end, denying any deficiency in service and all other allegations of the complainant being wrong, OP3 and OP4 made prayer for dismissal of the complaint with costs.

6.                In order to prove the case of the complainant, learned counsel for the complainant tendered in evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has proved on record documents Ex.C1 to Ex.C7 and thereafter, closed the evidence on behalf of complainant.  

7.                On the other hand, learned counsel for the Op1 tendered in evidence affidavit Ex.RA1 of Sh.Yogesh Sharma, Manager of OP1, in which, he has reiterated all the contents of the written reply filed by the Op1 and refuted the case of the complainant. Further, learned counsel for the OP1 has proved on record document Ex.R1 and then closed the evidence on behalf of OP1.

8.                Similarly, learned counsel for the OP2 tendered in evidence affidavit Ex.R2/A of Sh.Sanmukh Singh Khaira, Zonal After Sales Manager of OP2, in which, he has deposed in terms of the written reply filed by the OP2 and refuted the case of the complainant. Further, learned counsel for the OP2 has proved on record documents EX.R2/1 to Ex.R2/4 and then closed the evidence on behalf of OP2.

9.                 On the other side, learned counsel for the OP3 and OP4 tendered in evidence affidavit Ex.RC of Sh.Pankaj Kumar, its Manager Legal-Claims, in which, he has deposed in terms of the written reply filed by the OP3 and OP4 and refuted the charges levelled in the said complaint. Further, learned counsel for the OP3 and OP4 has proved on record documents EX.R1 to Ex.R4 and then closed the evidence on behalf of OP3 and OP4.

10.              Written arguments submitted by the complainant, OP2, OP3 and OP4. But those are not submitted by OP1. Oral arguments of Op1 were heard and records gone through minutely.   

11.              It is evident that car in  question   caught fire but the reasons have   not been explained/proved clearly by the complainant in his complaint nor any evidence has been adduced qua the reason of fire. It appears to be a case of natural occurrence of fire. Further, stand taken by the OP2 that there was no manufacturing defect is based on their assertion that the car did not catch fire due to manufacturing defect as it was not in running condition at that time and as such there can be no manufacturing defect.  If the car in question would  have caught fire in running condition or on self start of the car, the matter would have been different. There was no complaint regarding any manufacturing defect prior to the date of occurrence. The defence taken by OP3 and OP4 that temporary registration certificate of the vehicle in question had expired at the time of occurrence and thus, the complainant violated the terms and conditions of the insurance policy as well as Section 39 of the Motor Vehicle Act, 1988 is not tenable and does not hold ground because the car was not in running condition and simply parked outside the house of complainant. However, perusal of the terms and conditions of insurance policy Ex.R1 produced on record by OP3 and OP4 reveals that at page no.3 of the policy under the head “Section Loss of or damage to the vehicle insured" it has been specifically provided as under:-

“The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon

i)by fire explosion self ignition or lighting

ii)by burglary housebreaking or theft

iii)by riot and strike

iv)by earthquake(fire and shock damage)

v)by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost

vi)by accidental external means

vii)by malicious act

viii)by terrorist activity

ix)whilst in transit by road rail inland-waterway lift elevator or air

x)by landslide rockslide

Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced.”

12.              As such, the claim is debarred in the light of abovesaid terms and conditions of the insurance policy Ex.R1 and thus the complainant is not entitled to any claim because occurrence of fire was natural and further, perusal of the complaint reveals that there was no specific reason assigned by the complainant for the cause of fire as mentioned above under the terms and conditions of the insurance policy. Hence, there does not appear to be any deficiency in service on the part of the Ops. Further the delay in filing the complaint has not been explained by the complainant.

13.               Sequel to the above discussion, the complaint appears to be devoid of any merits and as such, the same is dismissed with no order as to costs. Copy of this order be made available to the parties free of costs as per rules. File be consigned to record room.

 

(Babita)                                                      (Sat Paul Garg)                        (G.K.Dhir)  

Member                                  Member                                   President

Announced in open Forum

on 19.08.2015

Gurpreet Sharma

 

 

Additional /supplementary reasons recorded by: G.K.Dhir, President

 

1.                    Complainant first lodged DDR No.11 dated 20.6.2012 (Ex.R2/1) for claiming that his car caught fire due to burning of the leaves abruptly lying underneath the car. Later on complainant changed version himself while lodging DDR No.12 dated 13.7.2012 for claiming as if technical fault in the car was        the reason due to which the same stood engulfed in the fire. Only that person      will take such contradictory pleas, who is to disclose lie. First ever version    suffered through DDR Ex.R2/1 cannot be disbelieved, particularly when the complainant himself was aware that he is lodging this DDR for getting                  insurance claim. No evidence produced to show that car caught fire due to technical defect. If there would have been such technical defect, then the car   would have been in motion. However, car was lying parked at the time it stood engulfed in fire as per both DDRs. As this fire was not due to self ignition or lighting and as such, claim of indemnification not covered by the terms of policy referred above.

2.                Complaint is also barred by limitation because it was filed on 10.9.2014, albeit the cause of action accrued on 20.6.2012. Dates on which            the complainant approached Ops in emails mentioned as 17.07.2012, 17.08.2012, 24.08.2012 and 27.08.2012. As manufacturing defect was not there,                       so claim against OP1 and OP2 certainly is not maintainable. Email correspondence produced on record addressed to OP1 and 2 and not to OP3 and 4. So the complaint being not filed within 2 years on accrual of cause of action is barred    and same liable to be dismissed in view of Section 24-A of Consumer       Protection Act. With these additional reasons, I support judgment.

 

                            

                                                                   (G.K.Dhir)

                                                                   President.                                         

Announced in open Forum

On 19.08.2015.

Gobind Ram