State Consumer Disputes Redressal Commission
Dr.Prithipal Singh vs Nic on 23 November, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHAN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 332 of 2008
Date of institution: 16.04.2008
Date of decision : 23.11.2012
Dr. Pirthipal Singh Bhandari s/o late Sh.Daulat Singh Bhandari, J/153,
Rajouri Garden, New Delhi c/o New Bhandari Hospital, Majitha Road,
Amritsar
.....Appellants
Versus
1. National Insurance Company Limited, Branch Batala Road, Amritsar
through its Branch Manager.
2. Ford India Ltd., S.P.Koil Post, Chengalpattu - 603 204, through its
CEO/Chairman/Managing Director/Principal Officer.
3. Ford Motor Co., 1, American Road, Dearborn Road, Michigan 48126,
USA through its Chairman & Chief Executive Officer, Mr. William
C. Ford Jr., through CEO of Ford India Ltd., S.P. Coil Post,
Chengalpattu - 603 204.
4. M/s Harpreet Motors Pvt. Ltd., TSG Complex, 69/1-A, Najafgarh
Road, Moti Nagar Crossing, New Delhi - 110 -15 through its
CEO/Chairman/Managing Director/Principal Officer.
5. M/s Bhagat Ford through its Manager/Principal Officer Dr.Jagdish
Singh Marg, Patiala.
6. M/s A.B.Motors (Pvt.) Ltd., Mohan Vihar, New Amritsar Gate,
Amritsar through its Manager/Principal Officer.
.....Respondents
First Appeal against the order dated 19.02.2008
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Sardar Jasbir Singh Gill, Member Argued by:-
For the appellants : Sh.Updip Singh, Advocate For respondent No.1 : Sh.Varun Chawla, Advocate for Sh.Rajneesh Malhotra, Adv.
For respondents No.2&3 : Sh.Anupam Bansal, Advocate First Appeal No.332 of 2008 2 For respondents No.5&6 : Sh.Anil Chawla, Advocate JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 19.2.2008 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short the District Forum) vide which the complaint was dismissed as infructuous on the ground that payment of Rs.1,47,841/- was towards full and final settlement of his claim.
2. The complainant-appellant had got his 1997 model car insured with OP-respondent No.1 for the period from 23.4.2002 to 12.4.2003 for Rs.3,50,000/- plus Rs.10,000/- for sound system. On 12.4.2003 while going from Amritsar to New Delhi and driven by Kumar Kamat, the car met with an accident near Phillaur in which it was damaged. A police report was lodged and OP- respondent NO.1 was also informed. The vehicle was shifted to the workshop of M/s Harpreet Motors Private Limited, New Delhi OP- respondent No.4 whereas the injured were shifted to Amritsar and Ludhiana. The complainant spent Rs.4500/- for toeing the vehicle from the site of accident to the workshop of OP-respondent No.4 in New Delhi. On an intimation being given to OP No.1, M/s K.R.Arora was appointed as a Surveyor to assess the loss. OP-respondent No.4 raised a bill dated 31.5.2003 for Rs.2,43,858/- but when the complainant went to the workshop to take the delivery, a lot of accidental work was pending regarding which OP No.4 gave another estimate of Rs.40,000/-. When the complainant again went to take delivery, he found that the repair work was still pending and he, therefore, informed the manufacturer OP-respondent No.2 First Appeal No.332 of 2008 3 and the repairer OP-respondent No.4 through letter dated 29.6.2003. The vehicle was handed over to the complainant on 25.7.2003 against a final invoice of Rs.2,78,500/- and the complainant spent Rs.2746/- for the repair of the tyre tube and Rs.4077/- were charged by the Surveyor. Since there was leakage from oil seals and noise from lower side, the vehicle was again sent to M/s Bhagat Ford OP-respondent No.5 who charged Rs.1202/- for its repair. The complainant again sent the vehicle for the repair of multiple defects as oil leakage from timing seal, vibration in engine, defect in the gear system, and in brake system for which Rs.2900/- were charged. OP No.4 on 16.9.2003 again charged Rs.12,265/- for the repair of multiple defects in the crank system, timing of engine etc. and Rs.3646/- were spent on 14.11.2003, Rs.530/- on 15.12.2003, Rs.2950/- plus Rs.25,408/- plus 8% taxes on 7.4.2004. The contention of the complainant is that these amounts had to be spent because earlier the repairs done by OP No.4 were defective and had to be set right.
3. OP No.1 Insurance Company informed the complainant that they have passed the claim for Rs.1,47,841/- against the original claim of Rs.2,78,500/- whereas there were subsequent repairs also. OP No.1 had been insisting that the complainant give full and final discharge certificate before the said amount was paid to him, to which, the complainant did not agree and OP-respondent No.1 refused to make the payment.
4. On 17.9.2004 OP No.4 gave an estimate of Rs.42,708/- for further repair of the vehicle and another bill for Rs.1371/- on 16.11.2004, Rs.102/- on 25.11.2004 and Rs.21,641/- on 17.1.2005. Subsequently, the vehicle had to be sent for repair to First Appeal No.332 of 2008 4 OP No.5 who charged Rs.6411/- and again Rs.1064.70 on 17.6.2005. However, in order to repair the repeat faults including low pick-up, they charged Rs.17,174/- on 22.11.2005 and Rs.858/- on 15.2.2006. The contention of the complainant is that the car was not properly repaired by OP No.4, due to which, the defects in the car occurred repeatedly and had to be subsequently repaired regarding which he had to spend a huge amount for whcih no compensation was paid by the insurance company. The case of the complainant is that he spent Rs.3,83,152/- on the repair of the vehicle though it was insured only for Rs.3,60,000/-. He, therefore, prayed for compensation of the said amount or in the alternative, Rs.3,60,000/- which was the IDV of the vehicle along with interest @ 18% per annum. He also prayed for Rs.5 lac as compensation for harassment, mental agony, inconvenience and loss and also prayed for costs of the complaint.
5. The complaint was contested by OP-respondent No.1 admitting that the vehicle was insured with them and when they received an intimation about the accident, they appointed a Surveyor, who assessed the loss of Rs.1,47,841/- which was offered to the complainant but he did not collect the amount after giving a certificate of full and final settlement. It was denied if there was any deficiency in service on their part or if the subsequent repairs were payable.
6. OP-respondent No.2 Ford India Limited also contested the complaint alleging that the same is barred by time and the learned District Forum has no territorial jurisdiction to entertain and try the complaint. It was contended that the complaint is bad for mis-joinder of OP No.3, 5 and 6 as a party who were not First Appeal No.332 of 2008 5 concerned with the case in any manner. According to them, the vehicle was about 6 years old and its warranty has long expired. Even when the car met with an accident in April, 2003, it had covered 48,996 KM, it was extensively damaged and the repair was effected to the entire satisfaction of the complainant who was to pay Rs.2,78,500/-. It was admitted that subsequently, the complainant brought the vehicle for repairs on different dates and the same was repaired to his satisfaction. It was denied if there was any deficiency in service on their part.
7. OP No.4 is M/s Harpreet Motors Private Limited which had repaired the vehicle in the first instance. Their contention is that the vehicle had been damaged in the accident extensively, it was brought to their workshop and the repairs were effected to the entire satisfaction of the complainant. However, subsequently also, the vehicle was brought for repair because it was not maintained by the complainant properly, due to which, there appeared defects and the same had to be removed. They also contended that the learned District Forum, Amritsar has no jurisdiction to entertain and try the complaint. They denied if the repairs effected earlier were not upto the mark or some defects were left which were removed, subsequently, for which the complainant was charged. It was denied if there was deficiency in service on their part and if they are liable to pay any compensation.
8. OP No.5 and 6 also contested the complaint on similar grounds alleging that the same is bad for mis-joinder of parties; that the vehicle had been repaired to the entire satisfaction of the complainant and that the complaint is barred by time. It was First Appeal No.332 of 2008 6 admitted that the vehicle was brought to them for repairs which were carried out to his entire satisfaction.
9. The parties were given opportunity to adduce evidence in support of their respective contentions.
10. After hearing arguments of the learned counsel for the parties and after perusing the record, the learned District Forum vide impugned order dated 19.2.2008 dismissed the complaint due to the reasons stated above. The complainant has filed the present appeal against the said order.
11. We have heard arguments of the learned counsel for the parties and have gone through the record.
12. The learned counsel for the complainant has argued that the learned District Forum wrongly held that the payment of Rs.1.47,841/- before the learned District Forum was received by the learned counsel for the complainant towards full and final settlement of his claim. When we peruse the record, we find that the OP No.1-insurance company had been indulging in an unfair trade practice from the very beginning while insisting upon the complainant to give them a discharge voucher of full and final settlement of the claim and only then the amount of compensation would be paid by them. In this respect, we may refer to the letter Ex.C49 dated 6.7.2004 vide which OP No.1 asked the complainant to sign the discharge voucher for Rs.1,47,841/- and the amount would be released after the said voucher was received by them. This condition was repeated through letter Ex.C50 dated 19.7.2007. Again on 3.8.2004 vide Ex.C53, OP No.1 told the complainant that the cheque is ready for disbursement subject to submission of full and final discharge voucher unconditional from First Appeal No.332 of 2008 7 his end. The complainant wrote to the OPs first on 14.7.2004 vide Ex.C47 and again on 18.8.2004 vide Ex.C54 that the claimed amount is less than what was spent for the repairs and, therefore, the complainant is not willing to issue the receipt towards the full and final settlement. Otherwise, he was willing to accept the amount towards part satisfaction of his claim. OP No.1 sent a reply through Ex.R7 in which also, the said condition was repeated that the cheque be collected by submitting a discharge voucher being full and final settlement of the claim. Even in the written reply filed by the OP-insurance company before the learned District Forum, they maintained that they were ready to pay the amount subject to the complainant submitting discharge voucher being full and final settlement of his claim. Needless to mention that the payment of the amount was not made by the OP-insurance company because the complainant was not willing to accept the said amount towards full and final settlement.
13. The said cheque was tendered by the learned counsel for OP No.1 before the learned District Forum and at that time also, it was tendered towards full and final settlement. However, the learned counsel for the complainant did not accept it towards full and final settlement as is clear from his statement dated 4.1.2007. Since the complainant was not willing to receive it towards full and final settlement from the very beginning, it cannot be said that after filing the complaint, he had accepted it towards full and final settlement. That is why, the learned counsel while accepting the cheque did not make such a statement. In order to find out whether the amount was received towards full and final settlement of the claim, we cannot decide it on the basis of the statement First Appeal No.332 of 2008 8 made by the learned counsel for OP No.1 alone but it has to be decided on the basis of the statement made by the complainant or his Counsel. The full and final discharge is to be given by the complainant and, therefore, it is the intention on his part as to whether he was accepting the amount towards part payment or towards full and final settlement which would be relevant. We are, therefore, of the opinion that the approach adopted by the learned District Forum to treat the said payment towards full and final settlement cannot be accepted as correct.
14. There is another aspect of the case. If the amount had been accepted towards full and final settlement of the claim, then the complaint itself would have been withdrawn by the complainant but it was not so withdrawn. The proceedings continued in the complaint and ultimately, it was decided through the impugned order by the learned District Forum. This fact also proves that the payment was not towards full and final settlement of his claim.
15. The learned counsel for the complainant-appellant has argued that initially bill Ex.C10 was issued by OP No.4 which was for a sum of Rs.2,43,858/-. Subsequently, the repair order Ex.C11 was issued for Rs.40,000/- and the repair bill, therefore, arose to Rs.2,78,500/- which was paid by the complainant vide receipt Ex.C22. It is argued that some more repairs were effected, thereafter, regarding which, Rs.12,265/- were paid vide Ex.C29, Rs.1202/- vide Ex.C33, Rs.2152/- vide Ex.C34 and Rs.3646/- vide Ex.C36 read with Ex.C37. Some more repairs were carried out regarding which the invoice Ex.C38 for Rs.530/- Ex.C43 for Rs.25,408/- were issued. The complainant had paid Rs.32,629/- vide receipt Ex.C65 regarding which bill Ex.C67 was raised. The First Appeal No.332 of 2008 9 learned counsel for the complainant has argued that Harpreet Motors Private Limited had not repaired the car properly, due to which, it continued giving problem and had to be brought to the workshop time and again for removing the defects which were required to be removed earlier but were not removed by them.
16. The learned District Forum in the impugned order has mentioned the earlier repairs at page 10 and 11 of its order and the subsequent repairs at page 12 and 13 of the order. When we go through the same, we find that the brake fluid had again been put, wire assembly, power steering oil, power steering fluid, replacement of clutch plate and wire knob and assembly heater had earlier also been repaired for which OP No.4 had charged its price but those had to be got repaired again. The contention of the learned counsel for OP No.4 is that these defects arose due to not maintaining the vehicle properly and, therefore, it was not due to the defects left by them earlier. The learned District Forum did not deal with this aspect in the right perspective. We are of the opinion that if the vehicle had been repaired in a proper manner when the bill for Rs.2,78,500/- was raised, there would not have been any need to repair the same parts, subsequently, or to repair those parts which had not been repaired or replaced earlier. The complainant had to deliver the vehicle time and again for repairs which not only caused him mental and physical harassment being deprived of the use of the vehicle but also caused him financial loss because he was being charged time and again for the said repairs. Further more, if these parts had been repaired earlier, then the payment thereof would have been made by the insurance company OP No.1 but when the same were repaired subsequently, OP No.1 did not make the First Appeal No.332 of 2008 10 payment thereof. Otherwise also if OP No.4 had given the estimate for Rs.2,78,500/- in the first instance, OP No.1 may have thought of considering it a total loss because this amount was more than 75% of the IDV of the vehicle. Due to the fault of OP No.4, the complainant had to spend Rs.3,83,152/- on the vehicle, the IDV of which was Rs.3,60,000/- only. It was, therefore, deficiency in service on the part of OP No.4 which caused harassment to the complainant. He deprived the complainant from compensation from OP No.1-insurance company with respect to the subsequent repairs. The contention that the repairs arose due to mishandling of the vehicle cannot be accepted because the odometer reading on 19.9.2003 was 50687 whereas on 31.12.2004, it was 55685. The vehicle, therefore, could not have been mishandled during the said period when it was driven only 5000 KM within a span of 15 months i.e. 330 KM per month which comes out to 11K per day. We are, therefore, of the opinion that the amount spent by the complainant during the period of the aforesaid repairs from 19.9.2003 to 31.12.2004 shall be borne by OP No.1 and Harpreet Motors OP No.4 in equal shares.
17. A perusal of the record shows that the complainant has spent the following amounts during the period from 26.7.2003 to 14.11.2003.
S.No. Date of the Bill Amount Exhibit
1. 24.10.2003 Rs.12,265 Ex.C29& C30
2. 13.10.2003 Rs.2152 Ex.C31
3. 2.9.2003 Rs.1202 Ex.C33
4. 3.11.2003 Rs.10113
5. 14.11.2003 Rs.3646 Ex.C36 & C37
First Appeal No.332 of 2008 11
6. 15.12.2003 Rs.530/- Ex.C38
7. 7.4.2004 Rs.25408/- Ex.C43
8. 29.9.2004 Rs.32629/- Ex.C65& C67
9. 15.11.2004 Rs.1371/- Ex.C71 & C72
10. 24.11.2004 Rs.102/- Ex.C77 & C78
11. 31.12.2004 Rs.21641/- Ex.C84 & C90
Total Rs.1,11,059/- say Rs.1,11,060/-
Out of this amount, Rs.55,530/- shall be paid by the insurance company and the remaining amount shall be paid by OP No.4.
18. The complainant has also contended that he spent a sum of Rs.2,78,500/- for the repair of the vehicle but has been paid only Rs.1,47,841/- and he is entitled to the full amount spent by him. We do not find any merit in this argument. In view of the terms of the insurance policy, OP No.1 was entitled to deduct the amount @ 50% for all rubbers, nylon, plastic parts, tyres, tubes, batteries and air bags and 30% for fibre glass components. The age of the vehicle was 6 years old and it carried a depreciation of 40% as provided under Section I of Loss or Damage To The Vehicle Insured in the insurance policy Ex.R14. The Surveyor has correctly applied depreciation to assess the amount of damages.
19. Since the OP No.1 have harassed the complainant by imposing unreasonable condition of executing a discharge voucher towards full and final settlement of the claim which was nowhere a precondition in the policy of insurance for payment of compensation, OP No.1 would, therefore, pay Rs.50,000/- as compensation to the complainant for adopting unfair trade practice and causing him mental and physical harassment. First Appeal No.332 of 2008 12
20. The OP No.1 were adopting an unfair trade practice and did not make the payment of the compensation promptly. The OPs would be, therefore, liable to pay interest on the payable amount of compensation with effect from 2.9.2003 (one month after the report Ex.R8 of the surveyor) till the amount was actually paid to the complainant.
21. The learned District Forum did not allow the costs of litigation to the complainant. We are of the opinion that since the OPs did not pay him compensation and forced the complainant to file the complaint, he would be entitled to Rs.5000/- as costs of litigation before the learned District Forum and Rs.5000/- before this Commission.
22. If the amount mentioned above is not paid by OP No.1 and Harpreet Motors within 30 days from the date of receipt of a copy of the order, they would pay the same along with penal interest @ 12% per annum since the filing of the complaint i.e. 17.3.2006 till the amount is actually paid.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER November 23, 2012.
Paritosh