State Consumer Disputes Redressal Commission
Mercedes-Benz India Private Limited vs S.L.B. Enterprises Pvt.Ltd on 19 October, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 1 9-10-2010 Case No. FA-09/648 and FA-09/654 (Arising from the order dated 01-07-2009 passed in complaint No. 625/2007 by the District Consumer Redressal Forum VI, K.G. Marg, Barracks, New Delhi) FA-09/648 MERCEDES-BENZ INDIA PRIVATE LIMITED, (FORMERLY KNOWN AS M/S DAIMLERCHRYSLER INDIA PRIVATE LIMITED) E-3, MIDC CHAKAN, Phase-III, Chakan Industrial Area, Kuruli & Nighoje, Tal : Khed, Pune 410501 - APPELLANT (ORIGINAL OP NO.2) Versus 1. M/S S.L.B. ENTERPRISES PVT.LTD., E-2, Mansarover Garden,, New Delhi 15 RESPONDENT NO.1 (ORI. COMPLAINANT) 2. M/S ICICI LOMBARD GEN.INS.CO.LTD., 5th Floor, Birla Tower, 25-Barakhamba Road, New Delhi - 1 RESPONDENT NO.2 (ORI. O.P. NO.1) FA-09/654 M/S ICICI LOMBARD GEN.INS.CO.LTD., 5th Floor, Birla Tower, 25-Barakhamba Road, New Delhi - 1 APPELLANT (ORIGINAL O.P. NO.1) Versus 1. M/S S.L.B. ENTERPRISES PVT.LTD., E-2, Mansarover Garden,, New Delhi 15 RESPONDENT NO.1 (ORIGINAL COMPLAINANT) 2. M/S DAIMLERCHRYSLER INDIA PRIVATE LIMITED (NOW KNOWN AS MERCEDES-BENZ INDIA PRIVATE LIMITED) E-3, MIDC CHAKAN, Phase-III, Chakan Industrial Area, Kuruli & Nighoje, Tal : Khed, Pune 410501 RESPONDENT NO.2 (ORIGINAL OP NO.2) CORAM : JUSTICE BARKAT ALI ZAIDI - President MS SALMA NOOR - Member 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? MS SALMA NOOR (ORAL) ORDER
1. Both these appeals are directed against the order dated 01-07-2009, passed by the District Forum, K.G. Marg, New Delhi whereby both the appellants have been jointly held liable to pay to the Respondent M/s S.L.B. Enterprises Pvt. Ltd. the complainant in case No. CC-625/07 an amount of Rs. 6,49,911/- towards repair of the Mercedes Benz Car E-200-K bearing registration No. HR-20L 818 purchased on 30-01-2006 and a sum of Rs. 1,00,000/- on account of deficiency of service, mental agony, harassment alongwith Rs. 10,000/- as cost of litigation.
2. The case of the complainant before the District Forum was that it purchased brand new Car on 30-01-2006 for personal use of its Director from the dealer M/s T & T Motors Ltd., New Delhi of the Appellant M/s Daimlerchrysler India Private Limited (Mercedes Benz) hereinafter referring to as Respondent No.2 by paying a sum of Rs. 33,99,537/- which was got insured with M/s ICICI Lombard General Insurance Co. ltd., (hereinafter referred to as Respondent No.1) by paying a premium of Rs. 1,26,111/- which was valid from 30-01-2006.
3. It is alleged in the complaint that on 09-06-2006, the complainant was passing through Sirsa Haryana in his above mentioned car.
It was raining on that day, though all other cars on the road were running smoothly but the car of the complainant suddenly stopped on the way. The complainant immediately called the customer care centre of the Respondent No.2 who towed away the car of the complainant to their service centre at Okhla, New Delhi.
4. That thereafter the complainant lodged the claim with the Respondent No.1 being the insurer of the vehicle and was allotted claim no. 150235 for the claim of the complaint. That the repairs were carried out at the workshop of the addressee no.2. The complainant submitted all the necessary bills and documents with the Respondent No.1 alongwith the copies of the bills to the tune of Rs. 6,49,911/- for the repairs of the car at the office of the Respondent No.1 for the early clearance and for the payment of the same to him.
5. That the complainant was shocked to receive a letter from the office of the Respondent No.1 dated 21-07-2006 wherein they had repudiated the claim. Just in one line the Respondent No.1 mentioned that since the damages preferred by the complainant are consequential damages and are beyond the purview of the coverage of the private car policy, the claim of the complainant is not admissible.
6. That without mentioning any fact that what is the consequential damages in the claim, the Respondent No.1 repudiated the claim of the complainant. The complainant even wrote a letter to the Respondent No.1 dated 10-10-2006 to explain what is consequential damages and why the claim cannot be passed and also mentioned the fact that the car is lying with the workshop of the Respondent No.2 who is asking for rent for keeping the car at their workshop after the repair of the same. The complainant even sent the copy of the said letter to IRDA also, but till date the complainant has not received any reply from the Respondents or from IRDA.
7. The complainant prayed for payment of RS.
7,66,894/- with pendentelite and future interest @ Rs. 24% per annum till realization and also Rs. 2 lakhs as damages and compensation as follows:-
i) Principal amount as per pending claims -
Rs. 6,49,911/-
ii) Interest @ 24% per annum with effect from 14-09-2006 till the filing of complaint Rs. 1,16,983/-
Total -
Rs. 7,66,894/-
8. Both the Respondents filed their written version separately contesting the claim of the complainant Respondent No.1, pleaded that they appointed Shri Ghanshyam Nayyar, Surveyor and Loss Assessor to inspect the vehicle and assess the loss. The Surveyor inspected the vehicle and after inspection submitted its report dated 20-07-2006. From the report it was found that the damage to the vehicle was not on account of any accident or any external impact and the same was result of the fact that the vehicle had stopped suddenly while it has entered in water logged area. Thereafter, the driver tried to crank the engine but it did not start. As per the surveyor, the engine had stopped working due to blockage of exhaust system by water and not allowing the gases to get out of the engine cylinder. Thus the damages were consequential and as per exclusion clause No. 4 (1) of terms and conditions of the policy, the same are not covered and cannot be paid.
Respondent No.1 also pleaded that the vehicle of the complainant was a new vehicle and the same was under warranty of the Respondent No.2 thus Respondent No. 2 was under a duty to repair the vehicle and bear the expenses if any. Respondent No. 2 also filed his reply and stated that complaint is actually against the Respondent No.1 insurer of the complainant vehicle. Respondent No.2 also stated that the complainant purchased his car subject to warranty terms alone. Warranty terms provided that in the event it is found that vehicle suffer from any manufacturing defect during warranty period such defective part is either repaired or replaced free of charge. Respondent No.2 further submitted that complaint of this nature is not maintainable against the Respondent No.2 and hence name of Respondent No.2 be struck off from the proceedings.
9. After considering the evidence filed by the contending parties, the Ld. District Forum, observed that it is quite common that during rainy season there is water logging on the roads and the vehicle have to ply through that water and if the car like Mercedes get stuck mid way because of water entering in engine or its cylinder to block the exhaust pipe, the vehicle is not free from all defects. Respondent No.2 who insured the vehicle and pocketed the premium cannot escape its liability by alleging that it was a consequential damage and the same falls under the exclusion clause.
10. Aggrieved by the findings of the District Forum, both the Respondents preferred separate appeals, challenging the impugned order on grounds respectively detailed in their appeals, reiterating their rival pleas as taken in their respective written versions filed before the District Forum.
11. We have heard the Ld. Counsels respectively appearing on behalf of the contesting parties and have considering their submissions, in the light of the material on record.
12. Both the appeals have been preferred after the prescribed period of limitation. While appeal No. 09/654 is accompanied by an application for condonation of delay, there is no such prayer made on behalf of the Respondent No.2 the Appellant in appeal No. 09/648.
13. Section 15 of the Consumer Protection Act 1986, provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order.
In the present case impugned order is passed on 01-07-2009 and FA No. 09/648 has been filed on 02-09-2009, while FA No. 09/654 is preferred on 03-09-2009, thus both the appeals are time barred.
14. Proviso to Section 15 authorizes State Commission to entertain an appeal after the expiry of prescribed period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal within the prescribed period.
15. In the application for condonation of delay filed in FA No. 09/654 it is stated that the Appellant came to know about the impugned order dated 01-07-2009 through letter dated 12-08-2009 sent by the Counsel for the complainant, where-after they obtained certified copy of the order on 01-09-2009 and thus their appeal though is within limitation, yet as a matter of abundant caution, they have moved the application for condonation of delay. This application is accompanied by an affidavit of Ms Pooja Sharma an officer of the Appellant, who testified the contents of the application for condonation of delay, without enclosed the alleged letter dated 12-08-2009 of the Counsel of the complainant vide which the appellant learnt about the passing of the impugned order.
16. We have perused the copy of the impugned order filed alongwith the appeal. It shows the date of dispatch of the order dated 01-07-2009 as 04-07-2009 with diary No. DF (ND)/2154-56, making it abundantly clear that the copy of the impugned order was sent to the parties including the appellant on 04-07-2009. Even if it is sent by ordinary post, it can be presumed to have reached the Appellants by 11-07-2009 because in ordinary course local dak is expected to be delivered within seven days. In such a case the limitation for preferring the appeal started running at least from that date and the explanation given for not preferring the appeal within 30 days at least from the date of receipt of order does not constitute sufficient cause as envisaged by the proviso to Section 15 of the Act to satisfy this Commission for entertaining the appeal after the prescribed limitation.
17. Hence we do not feel inclined to condone the delay in the case of appeal FA No. 09/654, while the case of the Appellants in FA No. 09/648, is even worse, who have made no request for condonation of delay at all. Their appeal is filed on 02-09-2009 though the appeal petition was preferred on 26-08-2009, without even a formal request for condonation of delay in preferring the appeal after limitation, admitting categorically that impugned order was pronounced by the Forum on 01-07-2009.
18. It is nowhere stated as to when the appellants learnt about the impugned order. They have simply stated in the list of dates and events appended to the petition that certified copy of the impugned order was made available to their advocate on 04-08-2009, which by stretch of imagination can constitute sufficient cause for satisfactorily explaining the delay in preferring the appeal after the expiry of statutory period of limitation.
19. Thus both appeals being time barred are not tenable in law and hence are dismissed without going into the merits of the case.
20. As a result we dismiss both the appeals. No orders as to cost.
21. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.
22. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
23. Announced on 19th October 2010.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (MS SALMA NOOR) MEMBER av