State Consumer Disputes Redressal Commission
Yogesh Kaurav vs Sai Ford Ltd. on 8 March, 2018
1
M.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
Appeal No.82/2016
Yogesh Kaurav
S/o Shri Rajnikant Kaurav
R/o Village Golgaon (Kalan)
Siregaon, Tehsil Gadawara
District Narsinghpur (M.P.) : Appellant
Vs.
1. Sai Ford Ltd.
Through its Authorised Representative
23, 24, Sector E, J.K. Road, Bhopal.
2. Sai Chhaya Autolink Pvt. Ltd.
Through its Authorised Representative,
191-A, Zone-I, M.P. Nagar, Bhopal (M.P.)
3. Cholamandalam MS General Insurance Co. Ltd.
Through its authorised representative,
Z-7, Zone-I, M.P. Nagar, Bhopal (M.P.) : Respondents
BEFORE;
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
COUNSEL FOR THE PARTIES:
SHRI SACHIN K. VERMA, LEARNED COUNSEL FOR APPELANT.
SHRI ANURAG MAHESHWARI, LEARNED COUNSEL FOR RESPONDENTS
NO. 1 AND 2.
SHRI RAVINDRA TIWARI, LEARNED COUNSEL FOR RESPONDENT NO.3.
ORDER
( 08 .03. 2018 ) The following order of the Bench was delivered by Justice Rakesh Saksena, President.
Appellant/complainant-Yogesh Kaurav has filed this appeal against the order dated 14.12.2015, passed by the District Forum, Bhopal in complaint No. 242/12, whereby the complaint has been partly allowed.
22. Briefly stated the case of the appellant/complainant is that he is the registered owner of Ford Figo car, bearing registration No. MP04- CF 3822. The said car was duly insured with respondent No.3-Chholamandalam General Insurance Co. It met with an accident on 9.6.2010 in Gadarwara, District Narsinghpur. After the accident the car was taken over to respondents No. 1 and 2 viz. Sai Ford Ltd. and Sai Chhaya Autolink Ltd., by towing the same, since after the accident the car was not in position to start.
3. The accidental car of the appellant was examined and inspected by the Accidental Vehicle Incharge of the respondents No 1 and 2 and an estimate of Rs.2,07,000/- was given to him as well as to respondent No.3. In this estimate, no claim in respect of damage to engine parts was disclosed. On receiving information from respondents No. 1 and 2 to take test drive of the vehicle before its delivery, when the appellant tried to start the vehicle, he found some noise from the engine. He informed to concerned employees of respondents No. 1 and 2 in that regard and refused to take delivery of the vehicle.
4. Again experts of respondents No. 1 and 2 examined the car and found that engine of the car had also suffered some damage due to accident. Respondents No. 1 and 2, therefore, estimated an amount of Rs.80,000/- further for repair and replacing of parts of engine of the car.
5. Appellant alleged that the accidental car was under the period of warranty and was duly insured with respondent No.3- Insurance Co., therefore, the appellant had no liability for repairs after accident. Since neither the respondents No. 1 and 2 nor the Insurance Co. managed to repair the accidental car completely, the complainant was compelled to move to Consumer Forum for the deficiency in service on their part. He also lodged a FIR against respondents No. 1 and 2 for playing mischief with him. The Insurance Co. was, therefore, liable for the insurance amount of 3 Rs.5,13,000/-. The appellant claimed Rs.9,05,328/- by way of compensation as detailed hereunder:-
a. On account of actual cost of the vehicle Rs.5,13,000/- b. On account of insurance premium Rs. 10,953/- c. On account of towing charges Rs. 10,000/- d. On account of mental strain, humiliation and harassment Rs.1,00,000/-
e. Loss and damages Rs. 5,000/-
f. Deficiency in service Rs. 20,000/-
g. EMI paid to Finance Co. Rs.2,21,375/-
h. Legal expenses Rs. 27,000/-
________________
Rs.9,05,328/-
________________
6. Respondents No.1 and 2, viz. Sai Ford Ltd. contested the claim of the appellant/complainant, stating that the appellant did not place true facts before the Forum. When the car was brought for repairs, it was not in a position to start or move. In view of the accidental condition of the car, at that time it was not possible to inspect and examine the engine. It was not possible to examine the defects of engine until it was opened. As such it was not possible to submit estimate about repairs of the engine. Apparently no damage was visible from outside. In the first estimate of Rs.2,07,539/-, which was given to appellant on 17.6.2010, no part or repairing of engine was included. After repairs, according to estimate, when the respondents No. 1 and 2 detected some objectionable noise coming from the engine, they called appellant and informed him about the same. After obtaining consent of appellant, respondents No. 1 and 2 opened the engine and gave an additional estimate of Rs.76,012.57 for its repairs. When they sought consent of appellant for repairs of engine he failed to do so, therefore, the engine was not repaired.
Since the appellant did not contact respondents No. 1 and 2, and also because for no reason the vehicle was parked in their garage incurring liability of Rs.300/- per day towards parking charges from 4 6.7.2010, they sent a legal notice to him on 20.10.2010. Respondents No. 1 and 2 stated that they were ready to deliver the custody of car without repairs of the engine to appellant on payment of amount as indicated in the first estimate along with parking charges Rs.7,500/-.
7. The case of the respondent No.3-Insurance Co. was that when intimation about accident was given and claim was filed by the appellant, the Insurance Co. appointed a Surveyor for assessment of loss and repairing charges etc. Company's Surveyor examined the vehicle and assessed the loss of Rs.1,19,823/- and filed his report dated 7.7.2010. Since the appellant did not submit the original bills or receipts of payment, pertaining to repairs, the Company issued letters to him on 4.9.2010, 19.7.2010, 1.10.2010 and 29.10.2010, but he did not produce any receipt or bill, therefore, his claim was repudiated on 29.10.2010 for non-compliance. The Insurance Co. further stated that only after the vehicle is repaired, its charges have been paid and the original bills are submitted to the Company then only the vehicle could be inspected but the appellant did not cooperate for the said proceedings
8. The District Forum after appreciating the evidence on record allowed the complaint with following directions:-
"16. Therefore the complaint is allowed and the parties (on receipt of the copy of this order) are direct to do as under:
(i) The complainant (within 2 months from the date of received copy of this order) is directed to give the cash receipt bills for the first repair to the O.P.-3, (according to the repair work done on the basis of the surveyor report dated 7.7.2010) to recover the claim;
(ii) The O.P. 3 is directed, to pay the complainant the repair charges for the repair according to the surveyor's report dated 7.7.2010 (within 2 months from the date of receipt of repair bills given by the complainant).5
The complainant is free to take the vehicle from the garage of the O.P.1 and 2, after the payment of the repair work done on the basis of the first estimate. If the complainant wants a completely repaired vehicle then;
(iii) The O.P. 3 is directed, within 3 months of the received copy of this order, to assess the latest repair work to be done on the said vehicle through its surveyor, and pay the complainant the amount for the repair work done on the vehicle, as assessed by the surveyor, on the receipt of the cash bills given by the complainant.
(iv) The parties are left to bear their own costs."
9. Though complaint has been allowed and relief has been granted to the complainant but being not satisfied with the relief granted by the Forum, the complainant/ appellant has filed this appeal.
10. Learned counsel for appellant submitted that the car of the appellant was since under the warranty period of the Ford Company and was also under coverage of insurance, the respondents were liable to make good the loss caused by accident and to pay all the charges.
11. Learned counsel for respondent No.2 submitted that the warranty was only in respect of manufacturing defects in the vehicle and not for repairs in case of accident of vehicle.
12. We find substance in the submission made by learned counsel for respondent No.2, therefore, we hold that condition of warranty did not come in picture in the instant case of accident.
13. Learned counsel for appellant submitted that since the car was brought to respondents No. 1 and 2 in a position when its engine was not working, it has to be presumed that the estimate given by them covered repairs of whole of the vehicle, including damage caused to engine. The claim of these respondents that 6 defects of engine were detected later on was an after thought with intent to derive undue favours from the appellant.
14. Learned counsel for respondents No. 1 and 2controverted the above submission saying that at the time when the vehicle was brought it was in such condition that it was not possible to start and/or to open the engine with a view to examine the defects or damage caused to engine of vehicle. Therefore, after initial repairs when it was found that engine was not running properly, they opened it with the consent of appellant for examining the defects and cost of repairs. However, when the estimate of Rs.76,012.57 was shown, despite writing letters and even issuing legal notice to complainant on 20.10.2010, he did not turn up to give consent for repairs. He submitted that in the above circumstances, nowhere malafides or ulterior motive was revealed on the part of respondents No. 1 and 2.
15. Learned counsel for appellant submitted that before the District Forum, on 8.5.2012, he filed an application under Section 13 of the Consumer Protection Act, to the effect that the Insurance Co. was since not going to pay the amount of Rs.80,000/- of the second estimate, the complainant was ready to pay the said amount under protest through Court, so that he may claim the said amount in the instant complaint. In reply to the said application respondents No. 1 and 3, pointed out that the complainant did not place the correct facts before the Commission. He merely requested for custody of vehicle after paying Rs.80,000/- under protest, but he failed to pay the bill amount of estimate of Rs.2,07,549/-, which was spent actually on repairs. Because of adamant behavior of the appellant the vehicle was lying parked in the garage of respondents No. 1 and 2. The estimate of said Rs.80,000/- was issued long back in the year 2010 whereas, due to mistake on the part of appellant, the vehicle was lying there since a long time, therefore, it was not possible to state as to how much the vehicle deteriorated further and what would be its repair cost at the relevant time.
716. It is relevant to note that at that stage, on 22.8.2012, the complainant thought it fit to get his application for interim custody of the vehicle, not pressed. This clearly indicates that the complainant did not pay full amount of repair charges under the estimate given by the respondents No. 1 and 2 initially. Admittedly, even thereafter the appellant made no effort to pay the estimate charge of repairs to respondents No. 1 and 2.
17. In the common course of conduct, it is quite possible that defects/damages caused to engine of an accidental vehicle may not be estimated unless other damages caused to other body parts of the vehicle are repaired. Issuing of an estimate by respondents No. 1 and 2 in respect of damages which were noted on first inspection, can by no stretch of imagination be said to be malafide or deficiency in service. This aspect, after a critical scrutiny of the evidence of record, has been elaborately dealt with by the District Forum in paragraph 13 and 14, of the impugned order, which is quoted hereunder:
"13. Therefore in the absence of the compliance by the complainant, he was not given the claim for the repair. Also the complainant, did not give consent for the repair of the engine, so that the problem concerning noise coming from the engine of the car could not be resolved, therefore the repair work could not be done. The O.P.1 and 2's contention that it is difficult to assess the damage to the engine, without opening the vehicle, which is difficult to do in the accidentally damaged vehicle, is acceptable. When the complainant came to take the delivery of the car, in case he found noise coming from the engine, the surveyor from the O.P.3 should have been called on the spot to assess the further repair charges, so that the problem could be resolved, which was not done.
14. The accident as well as the repair according to first estimate happened in the year 2010 and the complainant came before the Forum in the year 2012. In between the vehicle was kept with the O.P.1 & 2 without any approval for the repair from the complainant's side. The complainant filed an application before the Forum on 22.5.2012 to take the vehicle after paying the estimated cost for the 8 second repair, Rs.80,000/-, to which the O.P.1 & 2 objected as there point was also valid that since the vehicle is standing for a long time, the fresh estimate will be prepared for the repair work to be carried out, which will be different from the estimate of Rs.76,012.57 (Ex.30). We also don't deny the O.P.2's contention that the complainant should first pay the repair charges for the work done on the vehicle according to the first estimate and then give consent for the repair work according to the second estimate. Since the said vehicle was under the policy cover during the time of the accident, the repair work to be done should be assessed by the surveyor and the O.P.3 is liable to pay the charges for the repair as per the surveyor's assessment. However, it was a duty of both the complainant as well as the O.P.1 and 2 to call a surveyor as well, when the complainant came to take the delivery of the said vehicle after the repair on 06.7.2010, so that the surveyor could assess the authenticity of the repair work done. Also the repair work in the engine of the said vehicle could be assessed by the surveyor, so that the complainant could get a claim from the O.P.3. It was definitely the duty of the complainant to provide the cash receipt bills required by the O.P.3, in order to obtain the claim, which he did not perform and till date no payment was made to O.P.1 & 2 for the repair work done."
After examining the record of the District Forum, we find ourselves in agreement with the observations made by the Forum herein above.
18. We also find substance in the submission made by learned counsel for Insurance Co. that until and unless, the original bills and receipts, in respect of repairs made in the vehicle, are submitted to the Surveyor of the Insurance Co., for the purpose of assessment of loss, it would not be possible for the Insurance Co. to make payment. It has though been admitted by the parties that some amount in respect to initial estimate had been paid to respondents No. 1 and 2 but still no full payment of repairs done by them has been made. After perusal of evidence once again we feel that the observations of the District Forum to the effect that to some extent there had been deficiency on the part of respondents No. 1 and 2 by not calling the Surveyor of Insurance Co. at the time when 9 the appellant was called to take delivery of the vehicle and appellant raised objection about noise coming from the engine on 6.7.2010 are justified. The Forum rightly observed that the complainant was also to be blamed for not giving consent for complete repair of the vehicle at that time, in the absence of which, the vehicle kept on lying, in the service centre of respondents No. 1 and 2 indefinitely.
19. In view of discussion hereinabove, we find no illegality or error in the impugned order passed by the District Forum. The findings recorded by the Forum are therefore, approved and affirmed. We find no substance in this appeal. It is accordingly dismissed.
(JUSTICE RAKESH SAKSENA) PRESIDENT mm