State Consumer Disputes Redressal Commission
Sh. Rakesh Seth Prop. vs Tapan Motors. & Ors. on 3 June, 2016
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.: 239/2015
Date of Presentation: 28.11.2015
Date of Decision: 03.06.2016
.....................................................................................
Rakesh Seth,
Proprietor Elecmech Engineers,
Oak Wood Palace Jakhoo, Shimla-1,
Himachal Pradesh.
... Appellant.
Versus
1. Tapan Motors,
authorized dealer of Hyundai Service,
Through its General Manager,
Office at Goyal Complex-1,
Barog Bye Pass, Solan, 173211, H.P.
2. Reliance General Insurance,
Anil Dhirubhai Ambani Group,
Through its Regional Manager,
Regional Office at SCO-212, 214,
1st Floor, Sector 34-A, Chandigarh (U.T.).
3. Hyundai Motors India Limited,
Through its Manager,
Registered office at DLF Tower (B),
3rd Floor, I.T. Park, Chandigarh (U.T.).
...Respondents
...........................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1
For the Appellant: Mr. Rakesh Manta, Advocate.
For Respondent No.1: Mr. Ajit Jaswal, Advocate vice
Mr. Janesh Gupta, Advocate.
For Respondent No.2: Mr. Shashi Bhushan, Advocate
vice Mr. Ratish Sharma, Advocate.
.......................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against order dated 29.10.2015, of learned District 1 Whether reporters of the local papers may be allowed to see the order?
Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) Consumer Disputes Redressal Forum, Shimla, whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against the respondents, has been dismissed.
2. Facts relevant for the disposal of appeal may be noticed. Appellant owned a car, bearing registration No.HP-62A-9090, manufactured by respondent No.3. This car was purchased by the appellant, on 08.11.2009, from respondent No.1. On the same day, it was insured with respondent No.2. According to the appellant, on 11.05.2010 when he was travelling in the area of Rampur Sub Division of Shimla district, by the car, in question, there was a loud sound of brake down. Respondent No.1 was immediately informed, who allegedly directed the appellant to get the vehicle inspected from some local mechanic and to bring it in moveable condition and then to get it checked and inspected at its workshop at Solan. Accordingly, appellant got the vehicle checked from a mechanic of Rampur Bushehr, who charged a sum of `445/-, to bring the car in moving condition. On 20th May, 2010, car was taken to the workshop of respondent No.1. According to the appellant, on inspecting the vehicle, mechanic of respondent No.1 declared that there was no manufacturing defect in the car and that the damage 2 Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) had occurred due to some accident. Appellant told the functionaries of respondent No.1 that no accident had taken place, but the said functionaries insisted that it was a case of accident and told the appellant to leave the vehicle for repair and to sign certain papers for raising claim with the insurance company i.e. respondent No.2, with whom the vehicle was insured. On the asking of functionaries of respondent No.1, appellant signed certain papers. However, when the car was repaired, he was charged a sum of `30,966/-, against bill dated 04.06.2010 and was told that the money would be refunded to him, as soon as, his claim was approved by respondent No.2. On 13.08.2010, the appellant received a communication from respondent No.2, the insurer, that his claim had been rejected, as the damage to the vehicle was not due to any accident, but on account of metallurgical defects (wear & tear), which according to respondent No.2, was a manufacturing defect. Appellant then filed a complaint, under Section 12 of the Consumer Protection Act, 1986, against respondents No.1 & 2 and also respondent No.3, the manufacturer of the car.
3. Complaint was contested by all the three respondents by filing separate replies. Respondent No.1 took the plea that damage to the car had been 3 Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) caused due to accident and that even a casual look at the car indicated that it was a case of damage by accident, because some stone appeared to have hit the car from underneath, resulting in damage to certain parts. Also, it was stated that the appellant had himself told that the vehicle had met with an accident and this fact was recorded by him in the repair order, copy Annexure OP-1/A. It was stated that since it was a case of damage, caused by accident, appellant was advised to approach the insurance company, who then submitted the claim to insurance company, vide claim form, Annexure R-2.
4. Respondent No.2, the insurer, in its reply pleaded that though claim was lodged by the appellant, vide Annexure R-2 (claim form), yet the damage was reported by the Surveyor, deputed by it, to have been caused because of metallurgical defects (wear and tear). They relied upon the report of Surveyor, deputed by them, which is Annexure R-3.
5. Respondent No.3 in its reply denied that there was any manufacturing defect in the vehicle or the damaged parts.
6. Learned District Forum, vide impugned order, has dismissed the complaint holding that no evidence of alleged manufacturing defect in the vehicle has been adduced by the appellant. For 4 Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) dismissing the complaint against respondent No.2, the insurance company, learned District Forum has not given any reason.
7. Notices were sent to all the respondents. Respondents No.1 & 2 were served and they have put in appearance through advocates, engaged by them, as counsel. Respondent No.3 was not served on the address, given in the memo of appeal and it was reported that respondent No.3 had shifted from the address, mentioned on the registered cover containing the notice. Appellant was afforded an opportunity to file correct address of respondent No.3, vide order date 26.02.2016 of this Commission and notice was ordered to be issued to the said respondent for 11.04.2016, on the new address, which the appellant was ordered to file. Appellant did not file the correct address of respondent No.3 nor did his counsel appear on that date. Matter was adjourned to 12.04.2016, on which date counsel for the appellant appeared and a last opportunity was granted to the appellant to file correct address of respondent No.3 and notice was ordered to be issued to respondent No.3 for 30.05.2016. Another address was filed by the appellant. Notice was sent to respondent No.3 on that alternative address, but the same was received back with the report that 5 Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) respondent No.3 had moved even from the alternative address. On 30.05.2016, counsel for the appellant again did not appear and some advocate appeared, as proxy, for him. We adjourned the matter to 31.05.2016 and on that date also counsel for the appellant did not appear and proxy advocate filed an address of respondent No.3, on which the notice had been sent earlier, but the same was received back with the report that addressee had moved from that address. Under these circumstances, we passed the order striking off the name of respondent No.3 and adjourned the matter to this date, for consideration, whether the complaint as against respondents No.1 & 2, would proceed in the absence of respondent No.3.
8. Today, learned counsel for the appellant has appeared. According to him, respondent No.3 is not a necessary party, as no relief has been claimed against it. According to him, the relief, claimed is with regard to refund of amount of `30,966/-, charged from the appellant by respondent No.1 or the payment of money, equivalent to the aforesaid amount of money, by respondent No.2, being the insurer. In view of this submission, we have proceeded to hear the matter finally.
6
Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015)
9. Repair order, copy Annexure OP-1/A, shows that when the vehicle was left at the workshop of respondent No.1 on 23.05.2010, it was specifically mentioned in the repair order that it was a case of "Accidental Repair". Order is duly signed by the appellant, who is supposed to be an educated man, as the order is signed by him in english. Not only this, he filled in insurance claim form, Annexure R-2, on 21.05.2010, or say before the vehicle was taken to the workshop of respondent No.1 and submitted it to respondent No.2. In this claim form, it is written that when the vehicle was being driven on rough road, a stone hit it from underneath, resulting in damage to the gear box of hosing side. This claim form is also signed by the appellant. Appellant has not denied having filled in this form and submitting the same to respondent No.2. These two documents nail the lie of the appellant, as regards his claim against respondent No.1 that the vehicle had a manufacturing defect and the repair having been carried out within the warranty period, it (respondent No.1) was not justified in charging an amount of `30,966/-, on account of repair charges.
10. Now coming to the claim against respondent No.2, though the appellant submitted claim form, Annexure R-2, to respondent No.2, but it 7 Rakesh Seth Prop. Versus Tapan Motors & Ors.
(F.A. No.239/2015) is his own case that vehicle had never met with an accident. He very categorically stated in para -3 of the complaint that vehicle had never met with any accident. Now, when the appellant has taken self- contradictory stand, as regards his claim against respondent No.2, no relief can be granted to him, even against respondent No.2.
11. In view of the above stated position, appeal is dismissed.
12. A copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Vijay Pal Khachi) Member June 03, 2016.
GAURAV} 8