State Consumer Disputes Redressal Commission
M/S Future Generali India Insurance Co ... vs Jerry Coelho & Others on 30 November, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 24 of 2019 in Consumer Complaint
23 of 2016.
Before: Adv. Mrs Varsha Bale, Officiating President
Dr. Nagesh S. Colvalkar, Member
Adv. Ms.Rachna Anna Maria Gonsalves, Member
M/s Future Generali India Insurance Co. Ltd.,
Through its Company Secretary,
With Office at 2nd floor, M. J. Market,
1245/2, East Ward, Rajaram Road,
Shivaji Udyan Nagar,
Kolhapur, Maharashtra 416008. .....Appellant
V.
Mr. Jerry Coelho,
S/o Rocky Coelho,
Major in age,
R/o House No. 868/6,
Pandagal, Shiroda,
Ponda Police Station,
Ponda Goa 403103. ...Respondent-1
The Managing Director,
M/s Auto Industries Goa Pvt. Ltd.,
N. D. Naik Building, V. N. Road,
Arlem, Margao Goa 403602. ...Respondent-2
The General Manager,
M/s Auto Industries Goa Pvt. Ltd.,
N. D. Naik Building, V. N. Road,
Arlem, Margao Goa 403602. ...Respondent-3
The General Manager, Manager-in-Charge,
M/s Auto Industries Goa Pvt. Ltd.,
Cross Roads Avenue VI,
Arlem, Margao Goa 403602. ...Respondent-4
1
The Managing Director,
Fiat Group Automobiles India Pvt. Ltd.,
Benefice, 3rd floor,
Mathuradas Mill Compound,
Lower Parel (W), Mumbai 400013. ....Respondent-5
The General Manager/Manager-in-charge,
Fiat Group Automobiles India Pvt. Ltd.,
Benefice, 3rd floor,
Mathuradas Mill Compound,
Lower Parel (W), Mumbai 400013. ....Respondent-6
M/s Auto Industries Goa Pvt. Ltd.,
Through its Company Secretary,
Cross Roads Avenue # VI,
Arlem, Margao Goa 403602. .....Respondent-7
Fiat Group Automobiles India, Pvt. Ltd.,
Through its Company Secretary,
Benefice, 3rd Floor,
Mathuradas Mill Compound,
Lower Parel (W), Mumbai 400013. ..Respondent-8
Adv. Shri. J. Lopes present for Appellant.
Adv. Shri. T. Pereira present for Respondent-1.
Adv. Shri. S. Usgaonkar present for Respondent-2, 4 & 7.
Adv. Shri. Ms. D. Arolkar holding for Adv. Shri. J. Costa present for
Respondent-5 & 6.
Respondents-3 deleted & 8 absent.
DATE: 30/11/2023
JUDGEMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order shall dispose off the Appeal filed by Appellant against Judgment and Order dated 04/07/2018 passed by District Commission South Goa in CC/23/2016.
22. The Appellant herein was the original Opposite Party-8 before the District Commission South and the Respondent-1 was the original complainant. Respondents-2, 3, 4 and 7 were the original opposite parties-1, 2, 3 and 6 (repairers) and Respondents-5, 6 and 8 were the original Opposite Parties-4, 5 and 7(manufacturer).
3. The contention of the Appellant is:
i. That the Respondent No.1 had filed a complaint before District Commission South, Margao on 23/03/2016 on account of defects in the vehicle after repairs by the repairers. Further that the Appellant had filed the written version denying the case of the Respondent-1/ Complainant and that the allegations in the complaint was on the issue of work of repairs not being done properly and on time as promised by the repairers.
ii. The Respondent-1/Complainant in his complaint at paragraph 26, page 14 had stated that the Insurance company had paid the amount for the repairs to the repairers and hence Appellant cannot be held liable for any deficiency of service that the Respondent- 1/Complainant in paragraphs 13 and 14 further stated that:
13.The Complainant states that after a delay of almost three months M/S Auto Industries Pvt. Ltd. claimed that the vehicle was ready for delivery to the Complainant.
14.The Complainant received a call on 27/06/2014 informing him that his Fiat Punto vehicle has been fully repaired as per the factory finish and that the same is ready for delivery.3
iii. Also that the vehicle is admittedly insured with Appellant as the Appellant has paid for the repairs carried out to the extent of its liability under the insurance policy.
iv. Further it is the case of the Appellant that the Respondent-1/Complainant has made a claim, that upon receipt of the claim that the Appellant had appointed a surveyor to inspect the vehicle who is an independent person and after receipt from the surveyor and upon the Respondent-1/Complainant giving a discharge voucher on the satisfaction of the repair work, has made the payment of the charges in terms of insurance policy.
v. As per the defects reported by the experts ARAI to whom the District Commission South had referred the matter to, the only defects reported are as under:
"There was a visual differentiation for the colour of front door and front bumper with respect to the other parts of the vehicle. In addition, trim gaps between the door aperture and door assembly were observed uneven.
There was a visual differentiation for colour of front door and front bumper with respect to the other parts of the vehicle. In addition, trim gaps between the door aperture and door assembly were observed uneven.
Colour shade of front door and bumper with respect to rest of the vehicle was observed to be a variance.
The vehicle pulling to the right side was observed on account of improper steering geometry. This was 4 observed for various speeds ranging from 30km to 100km per hour.
From the right side pulling tendency of the vehicle, it can be inferred that alignment of the vehicle is not proper."
vi. The Appellant further stated that on reading the report of the expert it is a clear case of improper repair and that the repairer is the authorized repairer of the manufacture and therefore is duty bound to repair the said vehicle according to the standard of the manufacture.
vii. That Appellant stated that the District Commission, South Margao, was pleased to allow the complaint of the Respondent-1 with cost and compensation.
viii. That the Appellant being aggrieved by the Impugned Judgment and Order filed this Appeal before this Commission on the following grounds:
a. That the District Commission South erred in passing the impugned Judgment and Order dated 04/07/2018 by not going into details of the facts of the present case and also without considering the records in the file.
b. That the District Commission South has not given any reasons as to how there was a deficiency in service by the Appellant.
c. That the District Commission South has not appreciated the Expert Report given by ARAI who is an expert and independent person whose services were engaged in order to at the correct decision of the case.5
ix. The Appellant further prayed that the Impugned Judgment and Order dated 04/7/2018 be set aside and original complaint be dismissed with cost against the Appellant.
4. The contention of Respondent-1 is:
i. That the Respondent-1 and his wife needed a vehicle for their daily use and after having made served inquires upon the representation of the Opposite Parties that they decided to purchase a flat Grande Pinto Multijet Dynamic, manufactured by Opposite Party-7 the Opposite Party-6 is an authorized dealer of Opposite Party-7.
ii. Therefore the Respondent-1 obtained loan from Corporation Bank and purchased the said vehicle on 08/08/2013 which was registered under Registration No. GA-05-D-0219. The said vehicle met with an accident on 27/03/2014 wherein the driver side front portion of the vehicle was damaged and it was not roadworthy after the accident. The Respondent-1 handed over his vehicle for repairs to Opposite Party-6 the authorized agent for Opposite Party-7 who was carried out the repairs and serviced the vehicle.
iii. In furtherance to the aforesaid, on thorough inspection, Opposite Party No. 6 estimated the cost of the repairs to make it in perfect running condition and free from all defects at Rs.2,50,000/-. That the vehicle was insured with Opposite Party No. 8 and that accidental damage were covered by the said insurer.
iv. Thereafter the Respondent No.1 had requested the representative of Opposite Party-6 to forward the 6 insurance claim to Opposite Party-8 Shri Santosh V. Gaonkar, surveyor of Opposite Party No.8 who inspected the vehicle and an initial amount was released to commence the repair work and the Respondent-1 was informed within thirty days.
v. As stated by Respondent-1 that Opposite Party-6 on account of certain difficulties, informed Respondent-1 that they could not undertake the repairs work immediately. The wife of Respondent-1 contacted Opposite Party-6 on various occasion and were given vague and flimsy excuses by Opposite Party-6 who did not complete the work as promised. After a delay of about three months, Opposite Party-6 claimed that the vehicle was ready for delivery and on 27/06/2014 the Respondent-1 was informed that the vehicle is fully repaired as per factory finish and the same is ready for delivery. The Respondent-1 on inspecting the vehicle found that the stereo was missing and therefore asked the Opposite Party-6 to replace the missing stereo and refused to take the vehicle until the stereo was first placed in the vehicle. That about ten days thereafter, Opposite Party-6 informed Respondent-1 that a new stereo has been fitted and he should take delivery of the vehicle. Upon conducting bare inspection of the said Vehicle, the Respondent-1 found that there were various defects and deformities in the vehicle and these defects were visible. Also that the Opposite Party-6 ought to have carried out the repairs in order that the vehicle gets factory finish the Respondent-1 refused to take the delivery as the repair work was not satisfactory and insisted that the quality of the repairs should be checked by an official fiat engineer of Opposite Party -1.7
vi. At the request of Opposite Party No. 6, the Respondent-
1, insisted the work shop but found that the repair work was not satisfactory and therefore Respondent-1 requested Opposite Party No. 8 to withhold the payment towards the repair but Opposite Party No.8 however made the entire payment which was due from them. Thereafter the Respondent-1 and his wife made several requests to Opposite Party No.6 to carry out the repair work as per the standard norms of the company. However, neither Opposite Party No.6 nor Opposite Party No.7, complied with said requirements and although the work was not satisfactory, Opposite Party No. 6 imposed parking charges of Rs.250/- per day on the Respondent- 1 for failure to take the delivery of his said vehicle. That both the Opposite Party No.6 and Opposite Party No. 7 did not provide proper services to the Respondent No.1.
Also that Respondent-1 had to undergo tremendous mental tension agony and torture, since the repairs were not satisfactory. Furthermore the Respondent-1 had to spend an amount of Rs.3,11,415/- for hiring the taxi, Rs.2,30,000/- for purchase of second hand car and also re payment of monthly installment of Rs.42,915/- towards the loan amount.
vii. On addressing a legal notice to the Opposite Parties, the Respondent-1 was informed that the work of repairs was completed hence the Respondent-1 then engaged services of an expert to find out the deficiency in the work carried out by Opposite Party No.6 wherein the expert found various defects in the repairs. Thereafter on 12/11/2014 on a representation made by Opposite Party No.6, the Respondent-1 visited the work shop of Opposite Party No.6 and since having been left with no other option, Respondent-1 made payment of around Rs.50,053/- and took delivery of the said vehicle, he was 8 further forced by the management of the Opposite Party No.6 to sign a satisfactory note to which the Respondent No.1 refused to sign the same. Since Opposite Party No.6 refused to deliver the possession of the vehicle, he made an endorsement to the effect that the repair work was unsatisfactory and signed the delivery note. Thereafter the Respondent-1 took the vehicle to a private garage and upon inspection, the Respndent-1 was informed that various repairs will have to be carried out. Also one of the garage owner estimated the cost at Rs.73,300/- for replacement of body shell and other owner estimated cost of Rs.2,75,500/- and the third one at Rs.2,91,600/-.
viii. Being aggrieved the Respondent No.1 had approached the District Commission, South, requiring a direction to Opposite Party No. 6 and 8 to jointly and severally make payment of Rs.2,91,600/- for putting the vehicle in perfect working condition and further that Opposite Party No. 6 and 7 jointly and severally to pay an amount of Rs.6,79,717/- towards expenses made by the Complainant/Respondent-1 during the period when the vehicle was being repaired and a further amount of Rs.6,79,717/- towards the amount spent by the Complainant/Respondent-1 due to non repair of the vehicle in time.
ix. The Order passed by District Commission South, allowed the Complainant with costs of Rs.2,000/- to be borne equally by Opposite Party No. 6 and 8. The Opposite Party No. 6 was directed to replace the body shell of the vehicle of the Complainant/Respondent-1 to correct the wheel alignment and alignment in the steering geometry. The Opposite Party Nos. 6 and 8 was directed to pay amount of Rs.5000/- and Rs.10,000/- respectively to the Complainant/Respondent-1 as 9 compensation. Further that the Opposite Party Nos. 6 and 8 to comply with the above directions within a period of two months from the date of delivery of the vehicle by the Complainant/Respondent-1 to Opposite Party No.6.
x. It is also pertinent to note that the Opposite Party No.6 who had repaired the vehicle had explicitly pleaded and led evidence by filing an affidavit in evidence and all the facts stated were in the written statement, that the deformities had remained in the vehicle after repairs solely on account of the damage caused to the body shell. Also that the replacement of the body shell is necessary to put the vehicle in running condition and the same has not been directed to be done by the Appellant/Opposite Party No.8 it amounts to deficiency of service on the part of the Appellants/Opposite Party No.8 and that the Complainant/Respondent-1 to deliver the vehicle to the Opposite Party No.6 within ten days from the date of receipt of this Order.
xi. Respondent-1 further prayed that the Appeal be dismissed with cost and the Appellant be directed to incur the cost of replacing the body of the fiat pinto vehicle and the Judgment of the District Commission South be upheld.
5. The contention of Respondent-2, 4 & 7 is:
i. That the Appellant has challenged the Order dated 04/7/2018 passed by District Commission South Goa by which the Appellant, the insurer of the vehicle of Respondent-1 damaged in the accident, has been ordered to pay the cost of the body shell and the cost of carrying out the alignment in terms of the insurance policy and the balance to be paid by Respondent No.1 10 for the reason that the deformities in carrying out repairs to the vehicle viz., a. Deformity in the body shell, b. Drifting of the vehicle on the right side in account of improper steering geometry and improper wheel alignment which was the deficiency in service committed by the Appellant and the Respondent No.2.
ii. Further that Respondent No.7, the repairer of the vehicle of the Respondent No.1, damaged in the accident has been directed to replace the body shell of the vehicle also correct the wheel alignment and the alignment in the steering geometry and to pay compensation of Rs.5,000/- for the deficiency of not suggesting the replacement of body shell for the reason that the Respondent No.2 was under obligation to repair the vehicle and make it roadworthy without keeping any defects. The Respondents-2, 4 & 7 prayed that the Appeal be dismissed.
6. The contention of Respondents-5, 6 & 8 is:
i. That the Impugned Order, passed by District Commission, was pleased to dismiss CC No. 23/2016 against Respondents-5, 6 & 8 i.e. Respondents 4, 5 & 7 respectively.
ii. That the Respondents 5, 6 & 8 do not have any grievance with the Impugned Order and that the Appellant has not sought to set aside the Impugned Order as against Respondents-5, 6 & 8.
iii. Further that the Appellant has not contended that the Impugned Order is perverse as against the Respondents- 5, 6 & 8.11
iv. The Respondents-5, 6 & 8 further prayed that the Order passed by District Commission, South be upheld to the extent it relates to Respondents-5, 6 & 8.
7. Documents were relied upon which were placed on record before the District Commission, South and Written Arguments were filed by all Parties before this Commission.
8. Arguments were heard on behalf of Adv Shri J Lopes for the Appellant, Adv. Shri T. Pereira for Respondent-1, Adv. Shri S. Usgaonkar for Respondents-2, 4 & 7, Adv. Ms. D. Arolkar holding for Adv. Shri J. Costa for Respondents-5 & 6.
Adv. Shri J. Lopes on behalf of Appellant, argued that there is no deficiency in service on behalf of Appellant and that they have done the Payment as per the Estimate that was given. Also that the car was inspected thrice by the Appellant. Insurance Company cannot be held liable.
Adv. Shri T. Pereira for Respondent-1, submitted that the Order passed by the District Commission South, was in his favour and at the same time not in his favour and pointed out that the entire repairs were detailed at page 11 of the Written Arguments and that the repairs were carried out but not as per his satisfaction. Also that the Body Shell was to be replaced as per the Order and if the said was replaced his problem would be solved.
Adv. Shri S. Usgaonkar for Respondents-2, 4 & 7 pointed out to this Commission that the accident occurred in the year 2014 and the ARAI Test is of 2017. The Judgment is rightly passed and also that the Vehicle was not brought to the Respondent after the Order was 12 passed. Lastly he posed a pertinent question, whether the Vehicle was in a roadworthy condition.
Adv. Ms D. Arolkar for Respondents-5 & 6 submitted that the parts of the car are no longer manufactured.
9. On hearing the arguments advanced by advocates of the aforesaid parties and after going through the documents and records relied upon, we observed that the Judgment of the District Commission south was rightly passed. We find that the vehicle was not brought to the repairer by Respondent-1 after the Order being passed. We also find that the vehicle is no longer being manufactured. We also agree with the Order of District Commission and find that the vehicle is still in the possession of Respondent-1 and the road worthiness of the said vehicle is unknown. The District Commission, South observed that the Respondent-1 wanted vehicle to be repaired at the cost of insurer i.e. Opposite Party-8 and the said cost was based on the report made by the surveyor appointed by the Opposite Party-8. The surveyor therefore ought to have approved the replacement of the body shell in order to make the vehicle roadworthy, in view of the admitted cashless facility of the insurance provided to the Respondent-1. Also we find that the insurer has made no pleadings nor has led any evidence with respect to the observation in paragraph No. 44 of the Order.
10. We agree with the observation and findings in the Order passed by the District Commission as seen in paragraphs 44 to 70.
11. We opine that as the parts are no longer manufactured it would be only appropriate to award the Consumer with compensation for the deficiency in service that he 13 has experienced. In view of the aforesaid circumstances, we pass the following:
ORDER
1. The Appeal is dismissed and the order of the District Commission South is modified as under:
The Appellant is directed to pay compensation of Rs.50,000/- and cost of Rs.25,000/- to the Respondent-1.
Pronounced on 30/11/2023, ready on 05/01/2024.
Proceedings in the matter stands closed.
[Adv. Mrs Varsha Bale] Officiating President [Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna Anna Maria Gonsalves] Member VS 14