Delhi

StateCommission

FA/538/2013

HARPREET FORD (P) LTD. - Complainant(s)

Versus

D.P. ADHIKURI - Opp.Party(s)

12 Apr 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 12.04.2017

 

First Appeal No. 538/2013

(Arising out of the order dated 04/03/2013 passed by the Consumer Disputes Redressal Forum, Qutab Institutional Area, New Delhi in Complaint Case No. 23/2012)

 

        In the Matter of:

 

                M/s Harpreet Ford Motors Pvt. Ltd.

          B-242, Okhla Industrial Area,

          Phase-I, New Delhi

 

……Appellant     Versus     D.P. Adhikari                                                                            11-B, MIG Flats Sheikh Sarai, Phase-I, New Delhi-110017   M/s Bajaj Allianz, General Insurance Co. Ltd. 1-DLF-Industrial Plot, 2nd Floor, Moti Nagar, New Delhi-110015                                     ……Respondents

CORAM

 

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Justice Veena Birbal, President

1.             This is an appeal u/s15 of the Consumer Protection Act (in short ‘the Act’) wherein challenge is made to order dated 04.03.2013 passed by the Consumer Disputes Redressal Forum, Qutab Institutional Aread, New Delhi in Complaint Case No. 23/2012 whereby the complaint has been allowed.

2.             Briefly the facts relevant for the disposal of present appeal are as under:

                Respondent herein i.e. complainant before the Ld. District Forum had filed a complaint u/s 12 of the Act stating therein that he had purchased Ford Ikon Car bearing registration No. DL-4C-AF 0769 in the year 2005. On 10.09.2011, at about 10 A.M. the respondent-1/complainant had left his house for going to his place of work. On the way it started raining heavily and when the respondent-1/complainant reached at the Shivalik Road, the car had stopped suddenly. The respondent-1/complainant tried to start but it did not start. He rang up appellant/OP-1 (dealer) and on his advise he towed the car to the workshop of appellant/OP-1 at Okhla for checking. It was alleged that appellant/OP-1 had assured the respondent-1/complainant that they would get the repair amount from respondent-2/OP-2 i.e. insurance company. On 10.09.2011 itself, the appellant/OP-1 had inspected the car and gave the estimate cost of Rs. 6000/-. On 12.09.2011 the cost of repair was revised as Rs. 1,50,000/-. The appellant/OP-1 also got the claim form filled up from respondent-1/complainant. The appellant/OP-1 told the respondent-1/complainant that they would get the vehicle repaired and get the claim processed and respondent-1/complainant would only have to pay the difference of claim amount and actual cost incurred in repair of vehicle. The appellant/OP-1 gave the carbon copy of estimated cost of repairs amounting to Rs. 1,47,000/- to respondent-1/complainant. After repairs the car was brought back by respondent-1/complainant.

3.             It was alleged that on 27.09.2011, the respondent-2/OP-2 sent a letter to the respondent-1/complainant to show cause as to why his claim be not repudiated as the vehicle had already been dismantled prior to the inspection by its surveyor and that no water was also found inside the vehicle. The respondent-1/complainant responded to respondent-2/OP-2 wherein it was denied that the vehicle was dismantled before inspection as was alleged. The respondent-1/complainant asked the respondent-2/OP-2 to fulfill its contractual obligation. However, no response was received from it. Thereupon respondent-1/complainant sent a legal notice dated 21.10.2011. The respondent-2/OP-2 vide letter dated 27.10.2011 repudiated the claim of respondent-1/complainant without giving reply to the legal notice. It was alleged that the repudiation was done by respondent-2/OP-2 in an arbitrary manner. Accordingly, respondent-1/complainant had filed a complaint before the Ld. District Forum seeking directions against appellant/OP-1 to repair the vehicle as per terms of cashless insurance policy issued by respondent-2/OP-2. It was further prayed that respondent-2/OP-2 be directed to pay the repair bill amount and also sought compensation and litigation costs.

4.             The appellant/OP-1 contested the claim by filing written statement. It was denied that it had induced the respondent-1/complainant that it would get the insurance claim processed on his behalf. It was alleged that respondent-1/complainant was negligent as it had crossed over a submerged patch of the road where his car had stopped. It was alleged that approval or rejection of insurance claim was depending upon the discretion of respondent-2/OP-2 and not on the promises of the service provider or any other agency.  

5.             Respondent-2/OP-2 also filed written statement wherein it was alleged that when the surveyor had reached the workshop of appellant/OP-1 for inspection, the vehicle had already been dismantled and he found no water inside the vehicle. The parts of the car were also dismantled/removed/drained and the oil was replaced with new oil as such the respondent-2/OP-2 was denied the opportunity to ascertain necessary facts relevant to the cause of loss. It was alleged that loss was not more than Rs. 25,838.75/- as assessed by the Surveyor, vide its report dated 17.09.2011.

6.             Both the parties filed evidence in the form of affidavit.

7.             After hearing counsel for the parties, the Ld. District Forum held appellant/OP-1 and respondent-2/OP-2 jointly and severally liable to bear the repair cost and hand over the possession of the vehicle to respondent-1/complainant without charging any fee from him. Further direction had been given to them to pay Rs. 15,000/- towards compensation and Rs. 10,000/- towards the cost of litigation.

8.             Aggrieved with the aforesaid order, the present appeal is filed by appellant/OP-1. The respondent-2/OP-2 has not challenged the impugned order.

9.             Ld. counsel for appellant/OP-1 contended that appellant/OP-1 is only a dealer/repairer and has been unnecessarily dragged into litigation. It is contended that there is negligence on the part of respondent-1/complainant in taking the vehicle deep inside the water due to which car had stopped. It is contended that appellant/OP-1 cannot be fastened with any liability as has been held in the impugned order.

10.            No one has appeared on behalf of respondent-1/complainant. By the impugned order, the appellant /OP-1 and respondent-2/OP-2 have been held jointly and severally liable for bearing cost of repairs of car as well as towards award of compensation and litigation costs.

11.            The contention of the appellant/OP-1 that the respondent-1/complainant was negligent in running the car in question in submerged patch of the road has been examined. The same has no force as no evidence has been led by appellant/OP-1 in this regard. It has also come on record that when respondent-1/complainant started from his house it was not raining. Even as per surveyor report no water was found inside the vehicle. Further the claim is not repudiated by respondent-2/OP-2 on aforesaid ground. But has been repudiated on the ground that when the surveyor had visited the workshop of appellant/OP-1, the car had already been dismantled. The contention raised has no force and is rejected.

12.            About the liability of appellant/OP-1, it may be seen that evidence of respondent-1/complainant record clearly establishes that appellant/OP-1 assured the respondent-1/complainant to get his claim processed when he had taken his vehicle to the workshop for repairs. The material on record establishes that vehicle in question was dismantled by appellant/OP-1 without getting it surveyed from surveyor of respondent-2/OP-2. Due to said reason the surveyor could not get opportunity to inspect the vehicle. After considering the material on record, the Ld. District Forum held both the OPs jointly and severally liable to bear the repair cost. The relevant finding of the Ld. District Forum is as under:  

        “Moreover, vehicle in question, if any, was dismantled by OP No. 1 without getting it surveyed by Surveyor of OP No. 2, and there was o fault of complainant. Such irresponsible/negligent act on the part of OP No. 1, gives credential to the contentions of the Complainant that OP No. 1 had assured him to get his claim processed at his own responsibility from OP No. 2 and for which it asked the Complainant to bring his vehicle at its workshop. It is a matter of common knowledge that generally the workshops at the insurance companies are having such understating/arrangement to help its customers to get their vehicle repaired immediately. Therefore, in such situation, we are of the view that both the Ops are guilty of deficiency of service and unfair trade practice. When OP No. 1 had assured to get the claim of the Complainant processed from the OP No. 2 then it was incumbent upon it to fulfill its promise and, if, it was unable to fulfill its promise then it was its duty not to dismantle the vehicle of the Complainant, without having being surveyed by the Surveyor of the OP No. 2. Secondly, the OP No. 2 also failed to prove that the vehicle was dismantled by OP No. 1 without having been surveyed by its Surveyor. In such situation, there was no fault of the customer/complainant in getting his vehicle repaired from OP No. 1. The contentions of the Ops that the Complainant was negligent in running his vehicle in submerged water of rain has no force and evidence to support it. When the person is in vehicle, he will not bring his vehicle off the road if it starts raining.”

13.            We find no reason to disagree with the reasoning given by the Ld. District Forum. The Ld. District Forum has considered the entire material on record and thereafter has passed the impugned order. There is no merits in the appeal. Accordingly the same stands dismissed.

                A copy of the order be sent to the parties as well as to Ld. District Forum for necessary information. Thereafter, the file be consigned to record room.       

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member