State Consumer Disputes Redressal Commission
Goyal Motors P. Ltd. vs Sh. Bharat Bhushan Vaid. & Ors. on 11 June, 2018
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
(1) F.A. No. : 293/2017
Date of Presentation: 23.11.2017
Order reserved on: 07.04.2018
Date of Order : 11.06.2018
Bharat Bhushan Vaid son of late Shri Ram Nath Vaid resident of
160 Lower Bazar Shimla.
... Appellant/Complainant
Versus
1. National Insurance Company Ltd. Division No.10 Flat No.101-
106 N-1 BMC House Connaught Place New Delhi-110001
through its Divisional Manager (Managing Director).
2. National Insurance Company Ltd. Division Office Himland
Hotel Circular Road Shimla-171001 H.P. through its Divisional
Manager.
... Respondents/opposite parties No.1&2
3. Goel Motors Private Ltd. Tara Devi Shimla 171010 through its
Managing Director.
... Respondent/opposite party No.3
For Appellant : In person.
For Respondent No.1&2: Mr. Jagdish Thakur Advocate.
For Respondent No.3 : Mr. Shashi Bhushan Advocate.
-----------------------------------------------------------------------------------
(2) F.A. No. : 35/2018
Date of Presentation: 11.12.2017
Order Reserved on : 07.04.2018
Date of Order : 11.06.2018
1. National Insurance Company Ltd. Division No.10 Flat No.101-
106 N-1 BMC House Connaught Place New Delhi.
2. National Insurance Company Ltd. Division Office Himland
Hotel Circular Road Shimla-H.P. 171001
.......... Appellants/Opposite parties No.1&2
Versus
1. Bharat Bhushan Vaid son of late Sh. Ram Nath Vaid resident
of 160 Lower Bazar Shimla District Shimla H.P.
..... Respondent No.1/Complainant
(F.A. No.293/2017)
(F.A. No.35/2018)
(F.A. No.36/2018)
2. Goel Motors Private Ltd. Tara Devi Shimla 171010 through its
Managing Director.
..... Respondent No.2/opposite party No.3
For Appellants: Mr. Jagdish Thakur Advocate.
For Respondent No.1: In person.
For Respondent No.2: Mr. Shashi Bhushan Advocate.
................................................................................................
(3) F. A. No.: 36/2018
Date of Presentation: 12.12.2017
Order Reserved on : 07.04.2018
Date of Order : 11.06.2018
1. Goel Motors Private Ltd. Tara Devi Shimla 171010 through its
Managing Director.
.......... Appellant/Opposite party No.3
Versus
1. Bharat Bhushan Vaid son of late Sh. Ram Nath resident of
160 Lower Bazar Shimla-171001.
..... Respondent No.1/Complainant
2. National Insurance Company Ltd. Division No.10 Flat No.101-
106 N-1 BMC House Connaught Place New Delhi-110001
through its D.M.
3. National Insurance Company Ltd. Division Office Himland
Hotel Circular Road Shimla through its D.M.
..... Respondents/opposite parties No.1&2
For Appellant: Mr. Shashi Bhushan Advocate.
For Respondent No.1: In person.
For Respondents No.2&3: Mr. Jagdish Thakur Advocate.
..............................................................................................
Coram
Hon'ble Mr. P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes
................................................................................................
1
Whether Reporters of the local papers may be allowed to see the order? yes
2
(F.A. No.293/2017)
(F.A. No.35/2018)
(F.A. No.36/2018)
JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Appeal No.293/2017, Appeal No.35/2018 & Appeal No.36/2018 filed against the same order passed by learned District Forum in consumer complaint No.32/2013 title Bharat Bhushan Vaid Versus National Insurance Company Ltd. & Ors. All the appeals are consolidated for disposal in order to avoid conflicting orders. Brief facts of consumer complaint:
2. Shri Bharat Bhushan Vaid filed consumer compliant under section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased a new Maruti Wagon-R LXI Car Silk Silver from opposite party No.3 on 29.06.2011 in consideration amount of Rs.379145/-(Three lac seventy nine thousand one hundred forty five). It is pleaded that on dated 16.09.2011 vehicle met with accident at place known as Bowli situated at a distance of about 7 KM from Kumarhatti. It is pleaded that at the time of accident vehicle was driven by complainant himself. It is pleaded that complainant and his wife suffered multiple injuries in the accident and were confined to bed for many days. It is further pleaded that matter was reported in police post Dagshai and telephonic information of accident was also given to opposite party No.2 by complainant on 16.09.2011. It is further 3 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) pleaded that opposite party No.2 deputed surveyor namely Shri Panwar. It is pleaded that vehicle was parked at Goyal Motors Solan for about 3/4 days. It is further pleaded that mechanic of Goyal Motors Solan Shri Harjeet also inspected the vehicle. It is pleaded that Shri Harjeet mechanic of Goyal Motors Solan told the complainant telephonically that he had prepared estimate of repairs of vehicle in the sum of Rs.270000/-(Two lac seventy thousand). It is further pleaded that thereafter vehicle was took to the workshop of opposite party No.3 at Shimla for repair works. It is pleaded that complainant submitted the estimate of repair works alongwith motor claim to opposite party No.2 on 17.10.2011. It is pleaded that opposite parties No.1 & 2 appointed Shri Mohinder K. Sharma as surveyor and Shri Mohinder K. Sharma did not agree with the estimate report of M/s. Top Gear Auto Shimla. It is pleaded that opposite party No.3 did not adopt proper procedure for repair works of vehicle. It is pleaded that opposite party No.3 had cut body shell of vehicle and body of vehicle was cut at several places. It is pleaded that even inner side portion of the body near the back door had been cut and welded on both sides. It is further pleaded that mechanic of opposite party No.3 had made several holes in the left bottom of the vehicle. It is pleaded that gas welding process was operated upon body shell of vehicle instead of spot welding process. It is pleaded that in the process of 4 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) repair works of vehicle immense damage was caused to body shell of the vehicle which has materially impaired the value and utility of vehicle as a whole. It is further pleaded that opposite party No.3 did not obtain consent of complainant prior to starting of repair works of vehicle. It is pleaded that complainant has received vehicle under protest. It is further pleaded that resale value of vehicle has been substantially reduced due to defective repair works of vehicle. It is pleaded that opposite parties have caused extreme mental torture and harassment to complainant. It is pleaded that complainant remained hospitalized at IGMC Shimla due to hernia operation and vehicle could not be utilized. It is further pleaded that vehicle could not be utilized by wife of complainant when wife of complainant visited IGMC Shimla and PGI Chandigarh for examination of menningioma. It is pleaded that opposite parties have committed deficiency in service and indulged in unfair trade practice. Complainant sought relief of payment of Rs.720000/-(Seven lac twenty thousand) alongwith interest @ 18% per annum. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1&2 pleaded therein that vehicle was insured in the sum of Rs.360188/-(Three lac sixty thousand one hundred eighty eight) on IDV basis and insurance policy was 5 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) effective from 29.06.2011 to 28.06.2012. It is pleaded that on receipt of information of accident opposite parties No.1&2 appointed Shri Vijay Singh Panwar surveyor cum loss assessor to conduct spot survey and thereafter also appointed Shri Mohinder Kumar Sharma as surveyor & loss assessor to conduct the final survey. It is further pleaded that surveyor cum loss assessor recommended a sum of Rs.69380.79/- (Sixty nine thousand three hundred eighty rupees & seventy nine paise) on repair basis. It is pleaded that complainant insisted for replacement of original body shell. It is pleaded that body shell was reparable. It is pleaded that opposite parties also appointed Shri Umesh Kumar Sood as surveyor & loss assessor. It is further pleaded that as per surveyor report opposite parties are liable to pay a sum of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise) to complainant. It is pleaded that complicated facts are involved and complainant be relegated to civil court. It is pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of complaint sought.
4. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that repair works of vehicle was done properly and vehicle was fit to drive in all respects. It is pleaded that allegations by complainant qua 6 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) defective repair works of vehicle are incorrect and are denied in toto. It is pleaded that opposite party No.3 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.3 sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
6. It is proved on record that initially complainant filed consumer complaint No.11/2012 before H.P. State Consumer Commission. It is proved on record that on 20.12.2012 H.P. State Commission transfer consumer complaint to learned District Forum Shimla for disposal in accordance with law. H.P. State Commission had held that State Commission has no direct jurisdiction to entertain and adjudicate the consumer complaint because Insured Declared Value of vehicle was Rs.360168/-. H.P. State Commission held that on the basis of report of surveyor vehicle was took to workshop of opposite party No.3 for repair and opposite party No.3 carried out repairs and raised a bill of Rs.80944/-(Eighty thousand nine hundred forty four). State Commission had held that out of Rs.80944/-(Eighty thousand nine hundred forty four) a sum of Rs.69381/- was to be paid by opposite parties No.1&2 and rest of the amount was to be demanded from complainant on account of his share. H.P. State Commission held in C.C. No.11/2012 that complainant was 7 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) not satisfied with the repair works of vehicle conducted by opposite party No.3 particularly with respect to the repair of body shell. State Commission held that according to complainant body of vehicle was so badly damaged that it required replacement and did not require just repair works by way of welding the damaged portion of body shell of vehicle.
7. Learned District Forum decided the consumer complaint on dated 16.10.2017 and ordered opposite parties to replace the damaged parts i.e. Body shell and other parts assessed by the surveyor of opposite parties without charging anything from the complainant. Learned District Forum further ordered opposite parties to make vehicle roadworthy within forty five days from the receipt of copy of order. Learned District Forum further ordered that opposite parties would also pay a sum of Rs.10000/-(Ten thousand) as compensation to complainant on account of harassment and mental agony. Learned District Forum further ordered that opposite parties would also pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand) jointly and severally. Feeling aggrieved against the order passed by learned District Forum complainant and opposite parties have filed three appeals before H.P. State Commission.
8
(F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018)
8. We have heard complainant personally and heard learned advocates appearing on behalf of opposite parties and we have also perused entire record carefully.
9. Following points arise for determination in present appeals.
1. Whether appeal No.293/2017 titled Bharat Bhushan Vaid Versus National Insurance Company Ltd. & Ors. is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Whether appeal No.35/2018 titled National Insurance Company Ltd. & Anr. Versus Bharat Bhushan Vaid & Anr. is liable to be accepted as mentioned in memorandum of grounds of appeal.
3. Whether appeal No.36/2018 titled Goyal Motors Pvt. Ltd. Versus Bharat Bhushan Vaid & Ors. is liable to be accepted as mentioned in memorandum of grounds of appeal.
4. Final order.
Findings upon point No.1 with reasons relating to F.A. No.293/2017 :-____________________________________________
10. Complainant filed affidavit in evidence. There is recital in affidavit that complainant is senior citizen of India. There is recital in affidavit that complainant purchased vehicle Maruti Wagon-R LXI from opposite party No.3 on dated 29.06.2011 in consideration amount of Rs.379145/-. There is recital in affidavit that vehicle met with accident on 16.09.2011 at place known as Bowli situated at a distance of about 7 K.M from Kumarhatti. There is further recital in affidavit that deponent and wife of deponent sustained 9 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) multiple injuries in the accident. There is recital in affidavit that information of accident was given to the insurance company. There is recital in affidavit that vehicle was parked at Goyal Motors Solan for 3-4 days. There is recital in affidavit that Shri Harjeet mechanic of Goyal Motors prepared the estimate of damage to the tune of Rs.270000/-(Two lac seventy thousand). There is recital in affidavit that thereafter vehicle was brought to Shimla for repair works in the workshop of opposite party No.3. There is further recital in affidavit that surveyor Mohinder K. Sharma did not prepare damage estimate properly. There is recital in affidavit that complainant requested the opposite parties to change the original body shell of vehicle completely. There is recital in affidavit that opposite party No.3 did not change the original body shell of vehicle and repaired the vehicle by way of gas welding process instead of spot welding process. There is further recital in affidavit that opposite party No.3 in repair process damaged the original body shell of vehicle and diminished the value of vehicle substantially. There is recital in affidavit that complainant restricted his claim to the tune of Rs.720000/-(Seven lac twenty thousand) with interest @ 18% per annum alongwith special damages and costs.
11. Complainant also filed affidavit of Shri Chaman Rakesh Azta. There is recital in affidavit that deponent is 10 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) qualified Bachelor of Engineering in Automobile stream and has experience as surveyor and loss assessor of accidental cases. There is recital in affidavit that deponent has submitted survey and loss assessment report in more than 2000 (Two thousand) accidental cases. There is further recital in affidavit that deponent on the request of Shri Bharat Bhushan Vaid complainant visited M/s. Goyal Motors Tara Devi Shimla in the last week of August 2012. There is recital in affidavit that test drive of vehicle was conducted in his presence and he occupied seat in said vehicle when test drive of vehicle was conducted. There is recital in affidavit that at the time of driving vehicle had given rattling sounds. There is further recital in affidavit that there was gap between the left front door and roof panel which was due to poor repair works. There is recital in affidavit that there was visible gap in the front windshield glass on the left hand side. There is further recital in affidavit that there was extensive welding and cutting of various parts of body shell of vehicle. There is recital in affidavit that there was clear leakage of rain water from the door and entire floor on the co-passenger seat was drenched. There is recital in affidavit that replacement of entire body shell of vehicle was essential. There is recital in affidavit that value and efficiency of vehicle has been amply diminished because of improper repair works. State 11 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) Commission has carefully perused all the annexures filed by complainant.
12. Opposite parties No.1&2 filed affidavit of Shri Vivek Suman. There is recital in affidavit that deponent is working as Administrative Officer (Legal) in National Insurance Company Ltd. There is recital in affidavit that repair bill to the tune of Rs.80944/-(Eighty thousand nine hundred forty four) was submitted. There is recital in affidavit that share of opposite parties comes to Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise) as per recommendation approved by surveyor cum loss assessor. There is recital in affidavit that remaining amount of Rs.11564/-(Eleven thousand five hundred sixty four) was to be paid by complainant on account of depreciation charges.
13. Opposite parties No.1&2 also filed affidavit of Shri Mohinder K. Sharma surveyor cum loss assessor. There is recital in affidavit that deponent is automobile engineer and is also authorised surveyor cum loss assessor. There is further recital in affidavit that after careful inspection of vehicle deponent had recommended amount to the tune of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise) to complainant. 12
(F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018)
14. Opposite parties No.1&2 also filed affidavit of Shri Vijay Singh Panwr. There is recital in affidavit that deponent is automobile engineer. There is recital in affidavit that deponent inspected the vehicle on dated 17.09.2011 at Bohli District Solan-H.P at 7.00 PM. There is further recital in affidavit that deponent submitted report alongwith photographs of vehicle. State Commission has carefully perused all annexures filed by opposite parties No.1&2.
15. Opposite party No.3 filed affidavit of Shri Sehej Shabad Goyal Managing Director. There is recital in affidavit that version filed by opposite party No.3 and annexures filed alongwith version be treated as part and parcel of evidence of opposite party No.3 by way of affidavit.
16. Submission of complainant that complainant is legally entitled to damaged claim on the basis of total loss of vehicle is decided accordingly. It is proved on record that insurance company appointed surveyor cum loss assessor namely Sh. Mohinder K Sharma and it is proved on record that surveyor cum loss assessor did not recommend damage on total loss basis but has recommended the damage on repair basis to the tune of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise). It is well settled law that report of surveyor is valuable and important document and it is also well settled law that due credence 13 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) should be given to the report of surveyor cum loss assessor. See 2012(1) CPJ 420 NC H.C Saxena Versus New India Assurance Company Ltd. See 2012(4) CPJ 103 NC National Insurance Company Ltd. Versus Jyothi Tobacco Traders. See 2009(3) CPJ 194 NC Nand Kishore Jaiswal Versus National Insurance Company Ltd.
17. Submission of complainant that learned District Forum should ordered refund of Rs.11564/-(Eleven thousand five hundred sixty four) which amount complainant has already paid is decided accordingly. State Commission is of the opinion that surveyor cum loss assessor has recommended that an amount of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise) would be paid by insurance company to complainant. Surveyor has further recommended that amount of Rs.11564/-(Eleven thousand five hundred sixty four) would be paid by complainant on account of depreciation charges. Even H.P. State Consumer Commission in C.C. No.11/2012 decided on 20.12.2012 has held in para-3 that on the basis of report of surveyor vehicle was taken to the workshop of opposite party No.3 for repairs. State Commission observed that opposite party No.3 carried out repairs and raised a bill of Rs.80944/- out of which a sum of Rs.69381/- was to be paid by insurance company and rest of the amount demanded 14 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) was to be paid by complainant on account of his share. It is well settled law that State Commission could not review its own earlier observation mentioned in order dated 20.12.2012 in C.C. No.11/2012. See 2017(1) CPR 705 NC Global Health Pvt. Ltd. and other Versus Nisarg Shailesh Shah.
18. Submission of complainant that learned District Forum has not awarded interest to complainant and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that complainant is legally entitled for reasonable interest in accordance with law from opposite parties.
19. Submission of complainant that adequate compensation has not been granted to complainant from opposite party No.3 for defective repair works of body shell of vehicle is decided accordingly. Complainant has filed affidavit of Shri Chaman Rakesh Azta who is automobile engineer and is also surveyor cum loss assessor. There is recital in affidavit filed by Shri Chaman Rakesh Azta that at the time of test drive of vehicle there was rattling sounds in vehicle. There is further recital in affidavit filed by Shri Chaman Rakesh Azta that there was gap between the left front door and roof panel which was due to poor repair works. There is recital in affidavit filed by Shri Chaman Rakesh Azta that there was visible gap in the front windshield glass on the left hand side. There is further recital in affidavit filed by Shri Chaman 15 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) Rakesh Azta that there was extensive welding and there was cutting of various parts of the body shell. There is recital in affidavit filed by Shri Chaman Rakesh Azta that there was clear leakage of rain water from the door and entire floor on the co-passenger seat was drenched. There is recital in affidavit filed by Shri Chaman Rakesh Azta that value and efficiency of vehicle was amply diminished because of improper repair works. State Commission is of the opinion that affidavit filed by Shri Chaman Rakesh Azta is trustworthy, reliable and inspire confidence of State Commission relating to poor repair works conducted by opposite party No.3. There is no evidence on record that Shri Chaman Rakesh Azta has hostile animus against opposite party No.3 i.e. Repairer at any point of time. Opposite party No.3 did not file any counter affidavit of any mechanical expert in order to rebut the affidavit of Shri Chaman Rakesh Azta relating to poor repair works.
20. Submission of complainant that opposite party No.3 was under legal obligation to repair the vehicle free of charges and was also under legal obligation to replace the entire body shell of vehicle with new body shell of vehicle free of charges during warranty period is decided accordingly. It is proved on record that vehicle was sold to complainant by opposite party No.3 in consideration amount of Rs.379145/- 16
(F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) (Three lac seventy nine thousand one hundred forty five) vide sale certificate annexure-C-I placed on record on dated 29.06.2011. It is proved on record that accident took place on 16.09.2011 within short period of three months of purchase of vehicle. Complainant has himself admitted in the complaint that damage to vehicle was caused due to accident. It is well settled law that in accidental case vehicle could not be repaired free of charges by vendor during warranty period. It is also well settled law that in accidental cases body shell of vehicle could not be replaced free of charges by Vendor during warranty period. See 2017 (4) CPR 132 NC titled Ashok Kumar Versus Frontier Autoworld Pvt. Ltd & Ors. It is well settled law that ruling given by Hon'ble National Consumer Commission is binding upon all State Commissions as per law. Hence plea of complainant that opposite party should replace body shell of vehicle free of charges during warranty period and should repair vehicle free of costs during warranty period in accident case is rejected in view of ruling cited supra announced by Hon'ble National Commission.
21. Submission of complainant that Shri Mohinder K Sharma has not properly assessed the loss of vehicle and has assessed meager amount and on this ground appeal be allowed is decided accordingly. It is proved on record that surveyor cum loss assessor has recommended loss to complainant to the tune of Rs.69380.79/-(Sixty nine 17 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) thousand three hundred eighty rupees & seventy nine paise). Complainant did not file interrogatories to the surveyor cum loss assessor namely Mohinder K. Sharma. No reason assigned by complainant as to why complainant did not file interrogatories to Shri Mohinder K. Sharma in accordance with law. In view of the fact that complainant did not file any interrogatories to Shri Mohinder K. Sharma surveyor cum loss assessor in accordance with law and as per Consumer Protection Act 1986 plea of complainant that Shri Mohinder K. Sharma has assessed less repair amount is defeated on the concept of ipse dixit (An assertion made without proof).
22. Submission of complainant that Shri Harjeet Singh Mechanic has assessed loss of vehicle to the tune of Rs.270000/-(Two lac seventy thousand) and on this ground appeal be allowed is decided accordingly. Complainant did not file affidavit of Harjeet Singh in order to prove that he has assessed loss to the tune of Rs.270000/-(Two lac seventy thousand). It is well settled law that as per section 13(4) of Consumer Protection Act 1986 controversial facts should be proved by way of affidavit only. No reason assigned by complainant as to why complainant did not file affidavit of Harjeet Singh relating to proof of controversial facts as per mode mentioned under section 13(4) of Consumer Protection Act 1986. It is well settled law that contents of controversial 18 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) document is not perse admissible automatically under Consumer Protection Act 1986. It is well settled law that contents of controversial documents should be proved under Consumer Protection Act 1986 as per section 13(4)(ii) of Consumer Protection Act 1986. As per section 13(4)(ii) of Consumer Protection Act 1986 document could be produced in evidence which is producible as evidence. Contents of controversial document is producible as evidence in consumer matter by way of affidavit of person who had signed controversial document. Point No.1 is decided accordingly. Findings upon point No.2 with reasons relating to F.A. No.35/2018 :-_____________________________________________
23. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of insurance company that insurance company is not under legal obligation to replace body shell of vehicle as ordered by learned District Forum but insurance company is under legal obligation to indemnify the damage caused to complainant as assessed by surveyor cum loss assessor is decided accordingly. State Commission is of the opinion that insurance policy was executed between complainant and opposite parties No.1&2 vide insurance certificate annexure- C3 for own damage of vehicle. Insurance company has received premium to the tune of Rs.9605/- from complainant for own damage of vehicle. As per insurance policy total IDV 19 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) value of vehicle was Rs.360188/-. State Commission is of the opinion that insurance company is under legal obligation to indemnify the repair charges of the vehicle as assessed by surveyor cum loss assessor. Insurance company appointed surveyor cum loss assessor namely Shri Mohinder K. Sharma who has recommended compensation to complainant to the tune of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise) on repair basis. State Commission is of the opinion that insurance company is under legal obligation to pay amount to complainant as per loss assessed by surveyor cum loss assessor. It is held that liability of insurance company is limited to the extent of payment of Rs.69380.79/-(Sixty nine thousand three hundred eighty rupees & seventy nine paise). It is well settled law that in accident cases replacement of entire body shell of vehicle free of charges during warranty period is not permissible in view of ruling reported in 2017 (4) CPR 132 NC Ashok Kumar Versus Frontier Autoworld Pvt. Ltd & Ors announced by Hon'ble National Commission.
24. Submission of learned Advocate appearing on behalf of insurance company that in view of complicated facts involved in present matter complainant be relegated to civil court for adjudication of dispute is decided accordingly. State Commission is of the opinion that it is not expedient in the 20 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) ends of justice and on the principle of natural justice to relegate complainant to civil court. It is held that consumer complaint could be disposed of under Consumer Protection Act 1986 properly and effectively. Point No.2 is decided accordingly.
Findings upon point No.3 with reasons relating to F.A. No.36/2018 :-_____________________________________________
25. Evidence is not repeated again in order to avoid repetition. Submission of learned Advocate appearing on behalf of opposite party No.3 i.e. Repairer cum Vendor that vendor could not be ordered to replace body shell of vehicle free of charges during warranty period in accidental cases is decided accordingly. It is proved on record that present vehicle was brought to workshop of opposite party No.3 for repair works in accidental case. It is well settled law that in accidental cases vendor or repairer is not under legal obligation to replace the entire body shell of vehicle or to repair vehicle free of charges during warranty period in view of ruling of Hon'ble National Consumer Commission reported in 2017 (4) CPR 132 NC titled Ashok Kumar Versus Frontier Autoworld Pvt. Ltd & Ors. It is well settled law that ruling given by Hon'ble National Consumer Commission is binding upon all State Commissions. In view of the fact that present vehicle was brought for repairs in accidental case in the workshop of opposite party No.3 it is held that opposite party 21 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) No.3 is not under legal obligation to replace the body shell of vehicle free of charges during warranty period in accidental matter and it is held that opposite party No.3 is also not under legal obligation to conduct repair works of vehicle free of charges during warranty period in accidental matter.
26. Submission of learned Advocate appearing on behalf of opposite party No.3 that repair works of vehicle was conducted properly and opposite party No.3 did not commit any deficiency in service in repair process is decided accordingly. Opposite party No.3 did not file affidavit of mechanic who has conducted repair works of vehicle. No reason assigned by opposite party No.3 for non filing of affidavit of mechanic who had conducted repair works of vehicle. Adverse inference is drawn against the opposite party No.3 for non filing of affidavit of mechanic who had conducted repair works of vehicle. Opposite party No.3 had filed affidavit of Shri Sehej Shabad Goyal Managing Director. There is no recital in affidavit filed by Shri Sehej Shabad Goyal that he has personally conducted repair works of vehicle. It is held that Shri Sehej Shabad Goyal Managing Director has filed affidavit on the basis of derived knowledge. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to rebut the affidavit filed by Shri Chaman Rakesh Azta simply on the basis of 22 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) affidavit filed by Shri Sehej Shabad Goyal Managing Director Goyal Motors in view of the fact that Shri Sehej Shabad Goyal has not personally conducted repair works of vehicle. It is proved on record by way of affidavit filed by Shri Chaman Rakesh Azta who is qualified Bachelor of Engineer and who is surveyor cum loss assessor that improper repair works of vehicle was conducted by opposite party No.3 and it is proved by affidavit of Shri Chaman Rakesh Azta that due to improper repair works conducted by opposite party No.3 value and efficiency of vehicle has been diminished materially. It is held that deficiency relating to repair works on part of opposite party No.3 is proved on record by way of affidavit of Shri Chaman Rakesh Azta. It is held that opposite party No.3 is under legal obligation to compensate the complainant for improper repair works of vehicle. See 2017(3) CPR 667 NC United India Insurance Company Ltd. and other Versus Balwinder Singh and others. Point No.3 is decided accordingly.
Point No.4 : Final Order
27. In view of findings upon points No.1 to 3 above appeals i.e. F.A. No.293/2017 title Bharat Bhushan Vaid Versus National Insurance Company Ltd. & Ors., F.A. No.35/2018 title National Insurance Company Ltd. & Anr. Versus Bharat Bhushan Vaid & Anr. and F.A. No.36/2018 23 (F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018) title Goyal Motors Pvt. Ltd. Versus Bharat Bhushan Vaid & Ors. are party allowed.
28. Order of learned District Forum that opposite parties would replace damaged parts i.e. Body shell and other parts assessed by surveyor of opposite parties without charging anything from complainant and would conduct necessary repair for making vehicle roadworthy without any charges within forty five days from receipt of copy of order is set aside on account of factum of accidental matter.
29. It is ordered that opposite parties No.1&2 i.e. Insurance company will pay an amount of Rs.69380.79/- (Sixty nine thousand three hundred eighty rupees & seventy nine paise) alongwith interest at the rate of 9% per annum as assessed by surveyor cum loss assessor namely Mohinder K. Sharma from date of institution of complaint till realization. It is further ordered that insurance company will adjust already paid amount if any to complainant.
30. It is further ordered that opposite party No.3 i.e. Goyal Motors will pay compensation to complainant to the tune of Rs.120000/-(One lac twenty thousand) for defective repair works of vehicle and for diminishing utility and value of vehicle. It is further ordered that complainant will be entitled for interest @ 9% per annum from the date of institution of complaint till realization.
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(F.A. No.293/2017) (F.A. No.35/2018) (F.A. No.36/2018)
31. It is further ordered that complainant will be entitled for punitive compensation to the tune of Rs.10000/- (Ten thousand) from opposite party No.3 on account of mental agony and harassment for defective repair works of vehicle of complainant. It is further ordered that complainant will be legally entitled to litigation costs to the tune of Rs.5000/-(Five thousand) from opposite party No.3 for defective repair works of vehicle of complainant.
32. Order of learned District Forum is modified to this extent only in the ends of justice and on the principle of natural justice. Certified copy of order be placed in the files of F.A. No.35/2018 & F.A. No.36/2018 forthwith. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. All Appeals i.e. F.A. No.293/2017, F.A. No.35/2018 & F.A. No.36/2018 are disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 11.06.2018 K.D* 25