BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.914 /2011 against C.C.No.35/2011, Dist.Forum-II,Vijayawada, Krishna Dist.
Between:
1.Royal Sundaram Alliance Insurance Co.Ltd.,
40-1-55/A,MG Road,Benz Circle,
Beside Central Bank of India,
Vijayawada-520 010.
(Rep. by Mr.Giridhar Kishore,
Surveyor).
2. Royal Sundaram Alliance Insurance Co.Ltd.,
Regd. Office:Sundaram Towers, 45 &46
Whites Road, Chennai – 600 014 ...Appellants/
Opp.parties
4 & 5.
And
1. Dr. K.Prasanth Kumar,
S/o.Mohan Das,
Residing at 39-2-19/12/1A,
APSEB City Central Colony, Labbipet,
Vijayawada – 520 010. ...Respondent/
Complainant
2. M/s. Sundaram Honda,
(Prop. T.V.Sundaram Iyengar & Sons Ltd.),
Branch Office situated at 11, M.G Road
Labbipet, Vijayawada – 520 010
(Rep. by Mr.Damodar Business Head,
Mr.Satyanarayana RF & I Manager, ,
Mr.Ramesh Service Manager).
3. T.V.Sundaram Iyengar & Sons Ltd., ,
Regd. Office situated at TVS Building,
West Velli Street,
Madurai.
4. M/s. Honda Seil Cars India Ltd.,
25/26, Prince Tower,
1st Floor, College Road, Nagambakkam,
Chennai – 600 006
(Rep:RH Prasad, designation unknown). ...Respondents/
Opp.parties
1 to 3
Counsel for the Appellants : Mr. N.Mohan Krishna
Counsel for the respondents : M/s. K.Visweswara Rao-R1
M/s. G.Sudha-R2 & R3
M/s.Kochar & Co. –R4
F.A.No.1077 /2011 against C.C.No.35/2011, Dist. Forum II,Vijayawada, Krishna Dist.
Between:
M/s. Honda Seil Cars,
Through Mr.Amit Sinha,
Plot No.A1 Sector 40/41,
Surajpur-Kasna road, GNID Area,
Gautam budh Nagar – 201 306. ...Appellant/
Opp.party no.3
And
1.Dr. K.Prasanth
S/o.Mohan Das,
R/o.39-2-19/12/A,
APSEB Central Colony, Labbipet,
Vijayawada – 520 010. ...Respondent/
Complainant
2. M/s. Sundaram Honda,
Prop. T.V.Sundaram Iyengar & Sons Ltd.,
11, M.G.Road Labbipet,
Mr.Damodar Business Head,
Mr.Satyanarayan,
RF & I Manager,Mr.Ramesh Manager. ... Respondent /
Opp.party no.1
3. T.V.Sundaram Iyengar & Sons,
TVS Building West Velli Street,
Madurai. ... Respondent/
Opp.party no.2
4. Royal Sundaram Alliance Insurance Co.Ltd.,
40-1-55 A Beside Central Bank of India,
Vijayawada,
Through Mr.Giridhar Kishore,
Surveyor. ... Respondent /
Opp.party no.4
5. Royal Sundaram Alliance Insurance Co.Ltd.,
45 &46 White Road Chennai – 600 014
Beside Central Bank of India. ... Respondent/
Opp.party no.5
Counsel for the Appellant : M/s. Kochar & Co.
Counsel for the respondents : M/s. K.Visweswar Rao-R1
M/s. G.Sudha – R2 & R3
M/s. M/s. N.Mohan Krishna-R4 & R5
F.A.No.114 /2013 against C.C.No.35/2011, Dist.Forum II,Vijayawada, Krishna Dist.
Between:
M/s. Sundaram Honda,
(Prop. T.V.Sundaram Iyengar & Sons Ltd.),
Branch Office situated at 11 M.G Road
Labbipet, Vijayawada – 520 010
(Rep. by Mr.Damodar Business Head,
Mr.Satyanarayana RF & I Manager, ,
Mr.Ramesh Service Manager).
2. T.V.Sundaram Iyengar & Sons Ltd., ,
Regd. Office situated at TVS Building,
West Velli Street,
Madurai. ...Appellants/
Opp.parties 1 & 2
And
1.Dr. K.Prasanth
S/o.Mohan Das,
R/o.39-2-19/12/A,
APSEB Central Colony, Labbipet,
Vijayawada – 520 010. ...Respondent/
Complainant
2.M/s. Honda Seil Cars India Limited, ,
25/26 Prince Tower 1st Floor , College road
Nagambakkam , Chennai – 600 006
(Rep. RH Prasad Deg Unknown).
3. Royal Sundaram Alliance Insurance Co.Ltd.,
40-1-55 A, MGR Road , Banz Circle,
Beside Central Bank of India,
Vijayawada,
Rep. by M.Giridhar Kishore,
Surveyor.
4. Royal Sundaram Alliance Insurance Co.Ltd.,
Regd. Office:Sundaram Towers, 45 &46
White Road, Chennai – 600 014. ... Respondents/
Opp.parties 3 to 5
Counsel for the Appellants : Ms. G.Sudha
Counsel for the respondents : Mr.V.Gowrisankar Rao-R1.
M/s.Kochar & Co.-R2.
Mr.N.Mohan Krishna- R3 & R4.
QUORUM: SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
FRIDAY, THE TWENTY EIGHTH DAY OF JUNE,
TWO THOUSAND THIRTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member
***
Appeal in F.A.No.914/2011 is filed by the opposite parties 4 and 5, F.A.No.1077/2011 is filed by the opposite party no.3 and F.A.No.114/2013 is filed by opp.parties 1 and 2 against the order dt.26.7.2011 of the District Forum at Vijayawada in C.C.No.35/2011.
Since all the three appeals arise out of one and the same order dt. 26.7.2011 made in C.C.No.35/2011, they are clubbed and heard together and are being disposed of by way of common order.
For the sake of convenience, the parties in all the three appeals are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant is the owner of Honda City car bearing no.AP 16 BM 2002,(hereinafter referred to as the subject car) as he purchased the same on 30.7.2009 for a valid consideration of Rs.8,42,000/- on apprising high of the car by the executives of the opp.parties 1 to 3 and then on their advise the said car was insured with the opp.parties 4 and 5. On 14.11.2010 at about 7.45 p.m., the complainant’s car met with an accident near Chimakurthi, Prakasam Dist., as the car touched a boulder while negotiating a ditch on the road. The driver of the subject car intimated the same to the complainant at about 8 p.m. Immediately, the complainant, informed to the local office of opposite party no.1 about the accident. As per the call center executive advise, the incident was informed to the insurance surveyor Mr.Giridhar Kishore of Vijayawada. At 9.30 p.m Honda call center took the details and gave the complaint and promised that they would give immediate assistance as the car cannot be started nor moved and hence a truck will be arranged for picking up the car, but there was no action on the part of the opposite parties for about 14 hours. After some time, the call center people informed the complainant that as the truck was not available in Vijayawada, the same would be arranged from Hyderabad and would reach the spot on the next day afternoon, but there was no response about the steps taken by the opposite parties.
On 15.11.2010 at 3 pm., it seems that two persons contacted by Honda, went to the spot and brought the complainant’s car to Vijayawada showroom/service center by pulling the car with a rope tied to their vehicle. The complainant came to know that his car was taken to Sundaram Honda Garag, Vijaywada on the early hours of 16.11.2010. The complainant was not informed, about the shifting of his damaged car from the spot to Vijayawada.
Mr.Giridhar Kishore, the surveyor of the opposite parties 4 and 5 called the complainant at 8 p.m. on 17.11.2010 and started a verbal discussion panicking the complainant in an interrogation manner by talking rules, regulations, conditions by showing the photos of the insurance questioning the complainant and also informed the complainant that the insurance company would not accept the service center’s report and would proceed in claim process in their own way and demanded signatures on duly filled claim form and unfilled/blank vehicle repair satisfaction voucher. The complainant signed the same, on being warned by the surveyor, that the claim would not be processed without signatures.
It is further stated in the complaint that there was no response from the opposite parties till 26.11.2010 and on 26.11.2010 the opposite party no.1 sent an estimation with date 8.11.2010 showing 59 items (41 items + 18 labour charges) for repair and for substitution and showing the estimate value at Rs.1,66,772/-. He stated that on receipt of confirmation from the complainant, they would proceed with repair work. On enquiry, by the complainant, Mr.Ramesh, Service Manager of opposite parties 1 and 2 informed the complainant that only Rs.20,000/- would be covered by insurance and the rest to be paid by the complainant. When the complainant insisted for written clarification, the complainant received another estimate dt.22.11.2010, in which the quantity of items were decreased showing 20+ 12 items valued at Rs.97,278/-, with a difference in item prices by a higher value. On the same day i.e. on 29.11.2010, the complainant sought for clarification by another letter demanding the reasons for change in number of items and change in item prices. But there was no response from the opp.parties. On 18.12.2010, the complainant received a letter from opposite party no.1 with false allegations and deviated facts as mentioned in the complaint. The complainant suspects the bonafides of the opposite parties in their representation and all the facts as mentioned in the complaint established deficiency in service on the part of the opp.parties.
It is further stated in the complaint that the complainant was forced to use another car for his daily activities, due to failure of opp.parties to give clarification, regarding estimate which led to non confirmation of the bill/estimate value and non delivery of the vehicle ,for a long time, till date with repairs and substituted parts. The complainant suffered irritation, inconvenience, disturbances and also suffered from mental agony, because of the negligent response by opp.parties and as a result, the complainant who is a doctor by profession has been disturbed in his concentration on surgeries and rendering services to his patients. The complainant claims damages at Rs.1 lakh for depriving him of the subject car after repairs and with substituted parts, forcing him to use another car. Thus, the complainant suffered damages, in all aspects and he estimated the damages at Rs.10 lakhs, owing to the negligence and deficiency in service on the part of the opp.parties, besides delivery of another new car, as the subject damaged car, though repaired may give rise to new problems or same old problems. Hence the complaint.
The opp.parties 1 and 2 filed separate counter/written version contending that there are no complaints, whatsoever, for the subject car either at the delivery or later and it is running in good condition. Before taking delivery of the car, a test drive was done by the purchaser and received the car.
These opp.parties further contended that the way the incident was described by the complainant in the complaint clearly indicates, it is the negligence of the driver, who without care and caution drove the vehicle and hit a boulder, in that process, the car raised up and hit the boulder and the bottom of the car got damaged. To cover up driver’s negligence, with an ulterior motive and with an intention to claim insurance, the complainant, in an intelligent manner, described the accident occurred was not because of the negligence of the driver. These opp.parties denied the allegation that there was no response about the steps taken for lifting the vehicle from the spot to the workshop.
These opposite parties further contended that the complainant herein misutilised the signed papers, committed breach of trust and cheated and the representation made by him is totally different from the way he acted and thus pressed into service those blank forms on which this opposite party signed.
These opp.parties further contended that there was no response from the claimant, when the opp.party received estimate which was originally done on 18.11.2010 but received on 26.11.2010. The complainant never gave any positive instructions to proceed with the works. On 26.11.2010, when the complainant contacted one Mr.Ramesh, who has reluctantly accepted and on their estimation they have informed only Rs.20,000/- will be given, which is not to the liking of the complainant, so he has chosen to file the present complaint. There is no deficiency in service on the part of these opp.parties. The claim is vexatious, exaggerated and not genuine one. There are no merits in the complainant’s case. Therefore, the complaint may be dismissed with exemplary costs.
Resisting the complaint, opposite party no.3 filed counter/written version contending that the complainant has no cause of action against this opposite party. The alleged cause of action is pertaining to an unfortunate accident that the complainant’s car met with an accident due to negligence of the driver of the subject car. The subject car does not suffer from any manufacturing defect from the date of purchase and the said complaint has been filed to make wrongful gains as the insurance company has refused to bear the cost of repair, beyond Rs.20,000/-. Above all, no liability for any deficiency in service, or defect or unfair trade practice arise in the present complaint to involve this opposite party in the entire quagmire.
This opposite party further contended that the relationship between this opposite party and opp.parties 1 and 2 is on principal to principal basis and each party is responsible for its own actions. Any grievance pertaining to after sales service can only be addressed to opposite party no.1. Moreover, all subsequent communications with regard to booking of the car and servicing issue took place between the complainant and opposite party no.1. Above all, there is no privity of contract between answering opposite party and the complainant. The complainant has no locus standi to initiate the present proceedings. Therefore, the complaint may be dismissed with exemplary costs to this opposite party.
The opposite parties 4 and 5 filed written version, contending that the District Forum lacks territorial jurisdiction to entertain this complaint, as the alleged accident, for which the complainant had made claim, happened at Prakasam Dist., hence this instant complaint is liable to be dismissed. The present complaint, which involves complicated questions and facts and law, can be and ought to be adjudicated upon by competent civil court requiring voluminous evidence as the complainant is disputing quantum to be paid, under the terms of the policy issued to the complainant.
These opposite parties further contended that they have appointed an insurance regulatory and development authority licensed surveyor u/s.64 UM of the Insurance Act,1938 for assessing the loss and the said statutory surveyor, gave a detailed report stating that the net liability of these opposite parties would be Rs.85,333/- for repair basis settlement. The complainant had consented for settling the claim on repair basis, for the said sum, by signing vehicle repair satisfaction voucher for settling the claim, in favour of opposite party no.1 repairer and therefore, the claim was settled for a sum of Rs.85,333/- in favour of opposite party no.1, repairer. Therefore, the complaint is liable to be dismissed. The complainants’ claim for further sum is baseless and untenable under the policy terms issued.
These opposite parties further contended that there is no negligence in service provided by these opp.parties. The opposite party has settled the claim of the complainant, as per the terms of the policy. Therefore, the complaint is liable to be dismissed, with exemplary costs.
During the course of enquiry, before the District Forum, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A19. On behalf of the opposite parties 1 and 2, its business head Sri D.Damodar, filed his evidence affidavit. On behalf of opposite party no.3, its Manager (legal) Sri Amit Sing filed his evidence affidavit. On behalf of opp.parties 4 and 5, its Sr.Executive (Legal) filed his evidence affidavit and got marked Exs.B1 to B13,
Upon hearing the counsel for both the parties and on consideration of the material on record, the District forum allowed the complaint directing the opposite parties 1 to 3 to deliver new defective free vehicle of same model to the complainant in lieu of old vehicle , which is lying with the opposite party no.1 since long time. The opp.parties 1 to 5 are directed to pay jointly and severally an amount of Rs.1 lakh to the complainant for causing mental agony and hardship and to pay Rs.2000/- per day from 01.12.2010 till the date of delivery of new car to the complainant, towards loss or to pay expenditure incurred for engaging a private car ( taxi ) for his day to day work, being a renowned surgeon and to pay Rs.2000/- towards costs.
Aggrieved by the said order, the opp.parties 1 and 2 filed F.A.No.114/2013, opp.party no.3 filed F.A.No.1077/2011 and opposite parties 4 and 5 filed F.A.No.914/2011 questioning the validity and the legality of the impugned order.
Heard the counsel for all the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is an admitted fact that the complainant has purchased the vehicle Honda City 1.5 SMT MT. Taffeta White with factory fitted A/C. and other standard equipments for total amount of Rs.8,42,000/- from opposite party no.1 on 30.7.2009. It is also not in dispute that the subject car is hypothecated in favour of State Bank of Hyderabad. Opp.parties 1 and 2 are the authorised dealer of the opposite party no.3. There cannot be any dispute that all the after sales services and ancillary services, such as warranty and the servicing of the subject car are provided by the respondent no.2 and it is only in the case of manufacturing defect that the opp.party no.3 the manufacturer is required to take care of the same as per per the terms of the warranty.
It is the case of the complainant that on 14.11.2010 at 7.45 p.m., the subject car was met with an accident. Because of the uneven road and ditches on the road and because of darkness, the lighting of the car was not sufficient, as such, the car touched a boulder, while negotiating a ditch on the road and thereby the car bottom was damaged, though the driver has taken utmost care and caution in driving the vehicle. This case of the prosecution is not proved by the complainant. Admittedly, the complainant is not an eye witness to the accident. The complainant did not choose to file an affidavit of the driver of the subject car on the date of the accident, to prove the accident proper. However, the opposite parties have not seriously disputed the fact that the vehicle was damaged in an accident.
Further, from the narration of the accident of the subject car, by the complainant, it is clear, that the accident occurred on 14.11.2010 at 7.45 p.m. It is mentioned in Ex.B1 the copy of the Motor Insurance Claim Form submitted by the complainant to the opposite parties 4 and 5 that his car, on the way from Ongole to Chimakurthi near accident spot his car went over, hit a big stone, which was not visible and was kept on the road causing bottom damages. Therefore, the case of the complainant that because of uneven and ditches on the road, darkness as the light of the car was not sufficient and as such, the car touched a boulder while negotiating a ditch on the road is inconsistent to his earliest version regarding the accident in Ex.B1, cannot be accepted. It is therefore, obvious that the complainant’s car met with an accident, due to driver’s negligence. The said accident could be avoided, had the driver being efficient to immediately stop the subject car. The driver noticed leaking of oil due to afore mentioned accident and not due to any manufacturing defect, to hold the opposite party no.3 liable in any manner.
It is the specific case of the opposite party no.3, the manufacturing company that the subject car does not suffer from any manufacturing defect from the date of purchase. No problem of manufacturing defect of the subject vehicle was ever raised by the complainant till the date of the accident i.e. 14.11.2010 and till the filing of the complaint before the District Forum. The complainant did not adduce any evidence to disprove the above case of the opposite party no.3. As seen from the complaint , the main grievance of the complainant was against the insurance company and the dealers as his claim for the repairs of the subject car was not fully indemnified by the former. The opposite party no.3 has been impleaded being the manufacturer of the subject car, without any allegation of defect or manufacturing defect in it. In the absence of evidence of technical expert as envisaged u/s.13(c) of the Consumer Protection Act, 1986, the District Forum, erred in passing the impugned order against opposite party no.3 .
There cannot be any dispute that there is a principal to principal relationship shared between the manufacturer and dealer . The same was reflected upon by the Hon’ble National Commission in Maruthi Udyog Ltd. vs. Arjun Singh III (2009) CPJ 22, wherein it was held that when the relationship between the manufacturer and dealer is not principal to principal basis, the manufacturer cannot be held for the acts of the dealers. Therefore, no deficiency of service can be fastened on the opposite party no.3.
Now coming to opposite parties 1 and 2, who are the authorised dealer of opposite party no.3, it is the case of opposite parties 1 and 2 that on receipt of the message , the concerned mechanic was sent, who has inspected and opined that the vehicle got damaged and cannot be moved at all and it cannot be towed with the assistance of the another vehicle and to pickup the car, a truck is required. Thus the company officials sought for a truck. Inspite of best efforts, they could not get a truck for lifting the car. No truck was available at Vijayawada. So, the Vijayawada office contacted the Hyderabad office , who made necessary arrangements and sent the truck, to the accident spot to pick up the car. On 15.11.2010 by 3 p.m. the claimant’s car was brought to service center by pulling with a rope tied to Indica car, thus the Honda car reached the garage of opposite parties 1 and 2. Therefore, it cannot be said that the opposite parties 1 and 2 have not taken any action on the complaint given by the complainant. No delay or inaction on the part of the opp.parties 1 and 2 has been established. Absolutely, there is no evidence on record, to show that the complainant gave positive instructions to opposite parties 1 and 2 to proceed with the works. The complainant who got damaged the vehicle, should not be allowed to have the benefit, for his own wrong which is contrary to settled law. Infact, the complainant did not take the car after repairs from the garage of the opp.parties 1 and 2 .
It is settled proposition that as per the contractual warranty obligations, once the car met with an accident, warranty stands annulled. Since, the subject car had met with an accident, the complainant will not get any right to make any type of claim much less the present claim. The District Forum ought to have seen, that the vehicle is damaged, but it is not having defects, it erroneously held that there are hidden defects in the vehicle, without any basis. Above all, the subject car had a satisfactory run of 17000 kl.mts. till the date of the accident. As stated above, till the date of accident, no complaint has been given to the opposite parties 1 and 2, complaining about manufacturing and other defects in the vehicle. The complainant has not adduced any evidence to prove that there is a manufacturing defect or any other defects in the subject car. It is the case of the opp.parties 1 and 2 that they have got the subject car repaired . It appears that the entire consternation of the complainant is to procure new vehicle, on this pretext.
In view of the above facts and circumstances, we do not find any deficiency in service on the part of the opposite parties 1 and 2.
It is the case of the opposite parties 4 and 5 insurance company that soonafter they received the claim Ex.B1, from the complainant , they appointed an insurance regulatory and development authority licensed surveyor u/s.64 UM of the Insurance Act,1938 for assessing the loss and the said statutory surveyor gave a detailed report Ex.B2 stating that the net liability of this opposite party would be Rs.85,333/- for repair basis settlement. The complainant had consented for settling the claim on repair basis, for the said sum, by signing vehicle repair satisfaction voucher vide Ex.B3 and this opposite party had settled a sum of Rs.85,333/- in favour of opposite party no.1, as per statutory surveyor’s report. Therefore, the complainant’s claim for further sum is baseless and untenable under the policy terms issued.
The complainant has not adduced any evidence to prove that Ex.B2 surveyor’s report can be discarded. It is well settled law that the report of the surveyor has to be given due importance, in arriving at the conclusion, about the net loss suffered. As stated above the complainant herein never produced any evidence contrary to the conclusion arrived by the statutory surveyor. We do not find any reasons as to why the surveyor’s report should not be given any credence .
The complainant has not placed any evidence contrary to Ex.B2 surveyor’s report, for substantiating the higher sum claimed. We hold that the claim as assessed by the statutory surveyor u/s.64 of the UM of the Insurance Act is valid and tenable and therefore, the claim of the complainant for additional sum is untenable and unsustainable. As such, there is no deficiency in service, on the part of the opposite parties 1 and 2
The relationship between the opposite party no.3 and opposite parties 1 and 2 is on principal to principal basis and each party is responsible for its own actions. Any grievance pertaining to after sales service can only be addressed to respondent no.2 . Moreover, all subsequent communications with regard to booking of the car and servicing issue took place between the complainant and opposite party no.1. That apart, there is no privity of contract between the opposite party no.3 and the complainant. therefore, the District Forum erred in directing opposite parties 1 to 3 to replace the repaired car with new one and to pay compensation etc. to the complainant.
For the aforesaid reasons, the impugned order of the District Forum, is not sustainable under law and is liable to be set aside.
In the result, all the three appeals F.A.No.914/2011, F.A.No.1077/2011 and F.A.No.114/2013 are allowed. The impugned order of the District Forum is set aside. The complaint in C.C.No.35/2011 is dismissed. The appellants/opp.parties 1 and 2 in F.A.no.114/2013 are directed to deliver the repaired vehicle to the respondent no.1/complainant without demanding any charges, as and when he approaches them for delivery. In view of the facts and circumstances of the case, the parties to all the three appeals are directed to bear their own costs.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 28.6.2013
