Complaint filed on: 02-07-2013

                                                      Disposed on: 12-05-2016

BEFORE THE BENGALURU IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM COMPLEX, 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027          

CC.No.1228/2013

DATED THIS THE 12^th DAY OF MAY 2016

PRESENT

SRI.H.S.RAMAKRISHNA, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -

Mr.M.Ramanjini,

#35, 3^rd Cross, Chikka Banasawadi, Bengaluru      

V/s

Opposite parties:-    

1. The Dealer,

Renault Whitefield, Trident Auto Enterprises (P) Ltd, #111, 124/125 B, Narayanapura, KR Puram, Bengaluru-16

2. The Manager,

Insurance Company,

Bajaj Allianz Co. Ltd,

Ground floor, #31, TBR Tower, 1^st Cross, New Mission Road, Near Bengaluru Stock Exchange,

Bengaluru -27

ORDER

SRI.H.S.RAMAKRISHNA, PRESIDENT

          This is a complaint filed by the complainant against the OPs no.1 and 2, praying to pass an order, directing the OPs to pay a sum of Rs.25,000=00 alongwith  cost of litigation and grant other such relief as deemed fit, in the interest of justice and equity.

2. In the complaint, the complainant alleges that, on 30-3-2013 the complainant had purchased a Duster Diesel THP RXZ110ps fabric from Dealer-Renault Whitefield i.e. 1^st OP vide invoice no.VSLA12000254. In addition to they also collected a sum of Rs.7,000=00 towards reimbursement of handling charges and Rs.41,872=00 towards reimbursement of insurance and the complainant took delivery of the vehicle on 31-3-2013 and all relevant documents of the vehicle viz. sales invoices, tax paid receipt were handed over to the complainant, except insurance policy at time of delivering the vehicle. The Manager of OP convinced the complainant that the insurance was already done and policy would be handed over the very next day. The complainant received the insurance policy on 5-4-2013, the policy was dated 3-4-2013, valid from 28-3-2013 to 27-3-2014. The complainant noticed the mistakes or glaring mismatches in the policy as mentioned below:

a) The basic value of the vehicle as per new vehicle sales invoice was Rs.10,13,450=00 but the insurance policy reflects the vehicle IDV is Rs.11,02,380=00.

b) Vehicle chassis number as per details in the new vehicle sales invoice and RTO records is shown as MEEHSRA36D3019560, but in the insurance document issued to complainant, it is shown as MEEHSRA 36D2017275 this is critical as he will not be in a position to claim any damages during the tenure of the policy.

c) The vehicle engine number as per the details in the new vehicle sales invoice and RTO records is shown as D019932 but in the insurance policy issued is shown as D017245 again with an incorrect chassis and engine numbers the policy is totally incorrect putting the complainant at risk of not being able to claim and damages.

On 6-4-2013 after telephonic conversation with the dealer, the complainant sent a mail to the dealer as per his request regarding correction of incorrect details of the vehicle as mentioned in the insurance policy, but he did get a reply from the dealer stating that, the defects will be corrected within 4 working days. In spite of numerous reminder telephone calls and innumerable visits to the dealer to set right the same and there was no proper reply or any sincere effort from the dealer to alleviate grievances and also stopped answering his calls. Only after his final personal visit to the dealer’s outlet and orally requested them to return the money and then they sent email dated 24-4-2013 stating, that the insurer is still rectify the issue and will issue the corrected policy as soon as possible.  The complainant frustrated, angry, upset and feeling sad of not using the vehicle purchased out of his hard earnings due to non-availability of insurance policy and requested them to cancel the policy, so he could take a new policy and use his vehicle. Reminder about the cancellation was sent to the dealer on 25-4-2013 for which he got reply stating that they were still in the process of correction of policy. On 29-4-2013 the complainant got a confirmation to cancel the policy and the documents to be submitted for doing the same for the dealers and based on this, he made a new insurance policy for his vehicle. The complainant received a mail from the Manager that, they would be deducting an amount of Rs.12,600=00 which amounts to 30 percent of the premium paid for the policy which was not issued on his vehicle. In the process, he has lost his valuable time which was not fruitful. Hence the present complaint is filed.

3. In response to the notice, the OPs no.1 and 2 put their appearance through their counsel and filed separate version.

4. The 1^st OP in his version pleaded that, the 1^st OP is neither engaged in the business of insuring vehicles sold by it nor is it an agent of any insurance company. The 1^st OP is engaged in the business of sale and service of automobiles any ancillary services provided by it are merely liaison services and the 1^st OP is not service provider in such cases. The errors in the initial cover note issued by the 2^nd OP were due to no representation or omission by the 1^st OP. The 1^st OP has acted in good faith and attempted to have the insurance policy issued by the 2^nd OP at the earliest, all delays caused to such changes were due to the actions of the 2^nd OP. The 1^st OP is not responsible for any deductions made by the second OP with relation to the insurance procured by the complainant. The 1^st OP on receiving notice of the defects in the vehicle informed the 2^nd OP regarding the same, however the 2^nd OP sent a fresh insurance cover note only after 20 days since the date of receipt of information regarding its mistake. The complainant requested the 1^st OP to cancel the insurance policy as he wished to insure the vehicle with a different insurance company that offered insurance on the vehicle at a lower premium. On receipt of the complainant’s request to cancel the insurance policy, the 1^st OP informed the complainant that the complainant was to return a copy of the original cover note, which the complainant alleged to have misplaced. The complainant refused to accept the cancellation in accordance with the 2^nd OP insurance policy therefore the delay in the effective cancellation of the insurance policy and the 1^st OP is in no manner responsible for any deductions or delays by the 2^nd OP.

5. The 2^nd OP in his version pleaded that, the complaint is not sustainable either in law or on facts in so far as the 2^nd OP is concerned. The claim is not maintainable against the 2^nd OP and the complaint is misconceived and is based on erroneous assumptions of facts and in law. The policy issued in subject to various terms and conditions. The complainant has concealed and suppressed material and relevant facts of the case. The 2^nd OP issued the policy on the basis of proposal form presented by complainant to this insurance company, the averments made by the complainant that incorrect IDV, Chassis number and engine number has been issued by company is completely denied and the 2^nd OP on 30-3-2013 received cover note bearing no.MC1003836200 dated 28-3-2013 from the dealer /1^st OP. Accordingly on receipt of the cover note bearing no. MC1003836220 dated 28-3-2013, the 2^nd OP opted to for issuance of policy as per the cover note bearing no.MC1003836220  dated 28-3-2013 with the vehicle details as to engine No, Chassis No, Insured’s declared value and the premium being arrived at as per the tariff had issued private car-package policy of insurance from 28-3-2013 to 27-3-2014 vide policy bearing no.OG-13-1701-1801-00068394. On 22-4-2013 the 2^nd OP received an email from the dealers/1^st OP and the 2^nd OP on the same day on 22-4-2013 discussed the aspect of subject relating to correction of policy from 1^st OP with the higher authorities seeking approval to make correction in the policy on the very same day of receipt of email from 1^st OP. The 1^st OP requested the 2^nd OP for correction of policy in regard to chassis number and engine number on 22-4-2013 under policy no.OG-13-1701-1801-00068394 followed by issuance of cover note bearing no.MC1003836220 dated 28-3-2013 immediately thereof within two working days i.e. on 24-4-2013, the approval for correction of policy in regard to chassis number and engine number being accorded as per inter office mail correspondence. However the 2^nd OP received the certificate of insurance only on 5-4-2013, the policy was dated 3-4-2013 valid from 28-3-2013 to 27-3-2014. The complainant noticed the mistake or glaring mismatches. As on 5-4-2013 on receipt of certificate of insurance policy, the complainant had not so made any attempts or nor had contacted the 2^nd OP. The 2^nd OP was thus unaware of the same till 22-4-2013. As per mail sent on 25-4-2013 the complainant sought amount back after cancellation of policy. The 2^nd OP intimated about the cancellation and refund of amount sought by the complainant vide email dated 21-5-2013. There being no response from the complainant in regard to the mail forwarded on 21-5-2013 and as well as to the mail forwarded on 29-4-2013 by 1^st OP. The complainant having failed to reply email dated 29-4-2013 and 21-5-2012 and left with no other alternative in view of the fact that the complainant’s non-cooperation and further complainant being not interested thus having not forwarded the original policy and original cover note, the policy of insurance thus remained to be in force pending cancellation. Thus instead of replying the mail dated 29-4-2013 and 21-5-2013 and as well so having not forwarded the original policy copy and original cover note to the 2^nd OP has filed the above frivolous complaint and thus there cannot be alleged any deficiency in service or negligence in service as alleged and no compensation be awarded and the complaint is not maintainable before this forum and prays for dismissal of the complaint.  

6. The complainant has filed his affidavit by way of evidence. On behalf of the 1^st OP, the affidavit of G.N.Narasimhan has been filed and on behalf of the 2^nd OP, the affidavit of one Kiran Pujar has been filed and produced documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides meticulous.  

7. So from the averments of the complaint of complainant and version of the OPs the following points arise for our consideration.

1. Whether the complainant has proved the alleged deficiency in service by the OPs?
2. If so, to what relief the complainant is entitled?

8. Our findings on the above points are;

          Point no.1: In the Affirmative

          Point no.2: As per the final order

REASONS

          9. As looking in the averments of the complaint and also the version filed by the OPs No.1 and 2, it is not in dispute that, the complainant has purchased a Duster Diesel THP RXZ 110ps fabric from Renault Whitefield, Trident Auto Enterprises Pvt. Ltd on 30-3-2014 vide invoice no.VSLA12000254. Further to substantiate this fact, the complainant has filed his affidavit and in his sworn testimony reiterated the same and also produced sales invoice, as looking into this document, it is crystal clear that, the complainant has purchased the Duster Diesel THP RXZ 100ps Fabric dated 30-3-2013 for a sum of Rs.11,60,400=00. This evidence of complainant is not in dispute and there is no contra evidence to disbelieve the version of complainant. Therefore, it is proper to accept the contention of the complainant that, he has purchased the Duster Diesel THP RXZ 100ps Fabric dated 30-3-2013 for a sum of Rs.11,60,400=00.

          10. The complainant has also further alleged that, in addition to the said amount, the 1^st OP has collected a sum of Rs.7,000=00 towards reimbursement of handling charges and Rs.41,872=00 towards reimbursement of insurance and he took delivery of the vehicle on 31-3-2013 and all the relevant documents namely sales invoice, tax paid receipt were handed over to the complainant, except insurance policy, on demand made by the complainant, the complainant received the insurance policy only on 5-4-2013, the said policy valid from 28-3-2013 to 27-3-2014. The basic value of the vehicle as per new vehicle sales invoice was Rs.10,13,450=00, but the insurance policy reflects the vehicle IDV is Rs.11,02,380=00 and his vehicle chassis number as per details in the new vehicle sales invoice and RTO records is shown as MEEHSRA36D3019560, but in the insurance document issued is shown as MEEHSRA36D2017275 and engine number as per details in the new vehicle sales invoice and RTO records is shown as DO19932, but in the insurance policy issued is shown as D017245, again with an incorrect chassis and engine number, the policy is totally incorrect. On 6-4-213 after having telephone conversation with the dealer, he sent a mail to the dealer, request regarding correction of incorrect details as mentioned in the insurance policy. The 1^st OP dealers stating that, the defects will be corrected within 4 working days, but inspite of numerous reminder telephone calls and innumerable visits to the dealer to set right the same, there was no proper reply or any sincere effort from the dealer to rectify the mistakes. Only after final personal visit to the dealer’s outlet and requesting them to return the money, but they sent an email on 24-4-2013 stating that, the insurer is still rectifying the issue and issue the corrected policy as soon as possible. Due to this, the complainant contacted the OPs to cancel the policy so he sent reminder to the dealer on 25-4-2013 for which he got a reply stating that, they were still in the process of the correction of the policy and once again he asked the dealer to cancel the same and refund the entire insurance monies. On 29-4-2013 the complainant got a confirmation to cancel the policy and the documents to be submitted for doing the same from the dealer. Based on this the complainant made a new insurance policy on his vehicle, but he received a mail from the Manager that they would be deducting an amount of Rs.12,600=00 which amounts to 30 percent of the premium paid for a policy which was not issued on his vehicle. To substantiate this fact, the complainant in his sworn testimony reiterated the same and also produced debit note invoice dated 30-3-2013, the invoice No.VSLA12000254, this debit note receipt, Duster diesel car bearing chassis no.MEEHSRA36D3019560 and engine no.D019932 under this it is clear that, the 1^st OP received a sum of Rs.41,872=00 from the complainant towards the insurance and also produced the policy issued by the 2^nd OP it discloses that the policy issued on 3-4-2013 so and produced email correspondences. As looking into the email dated 6-4-2013 it is clear that, the complainant received the policy and further an another email on the same day i.e. at about 12.56 p.m. the complainant informed OP, the mistake of chassis number and engine number found in the policy, this is also clearly supported. As looking into the policy issued by the 2^nd OP and also RC only for the reason, the complainant sent a mail to the 1^st OP to rectify the mistake found in the policy. To this email the 2^nd OP issued a reply through email dated 24-4-2013 informed that the 2^nd OP is rectifying the problem and sending the correct policy as soon as possible, but till 25-4-2013, the OPs were not rectified the mistake found in the policy for that reason the complainant sent a mail to the 2^nd OP for cancellation of policy and requested for refund of the policy amount and only on 24-4-2013 the 2^nd OP informed the complainant by sending email regarding the cancellation of policy and issue the refundable cheque and requesting for original cover note from the Bajaj, alternative policy copy which ever you have and request letter from the complainant side. To this email dated 29-4-2013, the complainant issued a reply dated 1-5-2013 by sending mail attaching the new policy cover note as per their request for the cancellation of the defective policy, inspite of that, the 2^nd OP has not cancelled the policy and refunded the insurance amount, this is further clear. As looking into the email dated 9-5-2013 sent by complainant to 2^nd OP, but the policy was cancelled this is clear as seen from the email sent by the complainant to the 1^st OP dated 11-5-2013 so on that date the policy was cancelled and also as per email dated 9-5-2013 sent by Kamalanayan to nd OP cancelled the insurance policy of the complainant after deducting a sum of Rs.12,600=00 and ordered to refund a sum of Rs.29,272=00 only. To disbelieve this evidence nothing on record, therefore it is proper to accept the contention of the complainant that there was mistake found in the policy in respect of engine number and chassis number the vehicle purchased by the complainant inspite of best efforts made by the complainant, the 2^nd OP has not rectified the mistake at the earliest, but only on 9-5-2013, they cancelled the policy at the request of complainant and returned a sum of Rs.29,272=00 after deducting Rs.12,600=00.

          11. The defence of the 1^st OP that, there is no deficiency of service on the part of the 1^st OP since the 1^st OP is engaged in the business of selling the vehicle but they are not doing insurance business thereby there is no deficiency of service on the part of the 1^st OP. Even to substantiate this facts, the 1^st OP Sri.G.N.Narasimhan in his sworn testimony reiterated the same and further even as looking into the material evidence placed by the complainant, it is clear that, the 1^st OP is only a dealer in selling the vehicle but not insurance.

12. On the other hand, no doubt, the premium amount of Rs.41,872=00 was received by the 1^st OP and forwarded the same to 2^nd OP for issuing the policy and while the 2^nd OP issuing the policy from wrongly mentioned the engine number and chassis number of the vehicle in the policy, thereby there is no negligence on the part of the 1^st OP.

          13. The defence of 2^nd OP is that, there is no deficiency of service by the 2^nd OP, since the complainant has so failed to cooperate with the 2^nd OP so as to enable the 2^nd OP to further process the request of complainant for cancellation of policy was thus struck or want of original policy and original cover note. The complainant having failed to reply mail dated 29-4-2013 and 21-5-2013 and that left with no other alternative in view of the fact that, the complainant’s non-cooperation and further complainant being not interested thus having not forwarded the original policy and original cover note, the policy of insurance thus remained to be in force pending cancellation. Thus instead of replying the mail dated 29-4-2013 and 21-5-2013 and as well so having not forwarded the original policy copy and original cover note to the 2^nd OP has so filed the above frivolous complaint. Further take defence of 2^nd OP has unaware of the mistake found in the policy issued by the 2^nd OP till 22-4-2013. In respect of his defence on behalf of the 2^nd OP, one Mr.Kiran Pujar has filed his affidavit and reiterated the same and also produced email correspondences, but this defence of the 2^nd OP is falsify. As looking into the email dated 6-4-2013 sent by insurance company to complainant, by looking into this document, it is clear that, there is mistake in the policy about engine number and chassis number will do the correction within 4 working days, that the 2^nd OP came know about the mistake of engine number and chassis number of the vehicle in the policy only on 22-4-2013. Further as looking into the email dated 4-5-2013 sent by the complainant to 2^nd OP, it is clear that, the complainant has furnished the relevant documents as requested by the 2^nd OP, as per email dated 29-4-2013 thereby this fact falsify that the complainant failed to reply email dated 29-4-2013 21-5-2013, therefore it is proper to accept the defence taken by the 2^nd OP.

          14. On the other hand, the material evidence placed by the complainant, it is clear that, there is an error apparent that policy issued by the 2^nd OP regarding chassis number and engine number and immediately the complainant has informed about the mistake found the in policy to rectify the same to the OPs, inspite of his best efforts, the OPs have failed to rectify the mistake, at last to sought the complainant requested the OPs to cancel the policy and demanded for refund of insurance amount. In spite of that policy the 2^nd OP after taking long period and ordered to cancel the policy and directing to refund a sum of Rs.29,272=00 after deducting Rs.12,600=00 this is an unreasonable, thereby definitely these facts amounts deficiency of service on the part of the 2^nd OP. Hence, we answered these points in the affirmative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint is dismissed against the 1^st OP.

          The complaint is allowed holding that, there is deficiency in service on the part of the 2^nd OP.

          The 2^nd OP is directed to pay a sum of Rs.19,400=00 and also directed to pay a sum of Rs.10,000=00 as compensation for mental agony. The complainant is also entitled for a sum of Rs.2,000=00 towards cost of this litigation.

          The 2^nd OP is directed to pay the aforesaid amount within 30 days from the date of this order, failing which, the aforesaid amount shall carry interest at 18% per annum from the date of this order to till the date of realization.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 12^th day of May 2016).

MEMBER                   MEMBER                   PRESIDENT

-:ANNEXURES:-

1.     Witness examined on behalf of the complainant by way of affidavit:

M.Ramanjini, who being the complainant was examined.

2.     Documents produced on behalf of the complainant:-

          1. New vehicle sales invoice dated 30-3-2013

          2. Debit note invoice dated 30-3-2013

          3. Delivery of vehicle dated 31-3-2013

          4. RC copy of complainant

          5. Insurance policy of vehicle of complainant

          6. Email correspondences  

3.     Witness examined on behalf of the OPs by way of affidavit:

1. G.N.Narasimhan, who being the 1^st OP was examined.

2. Kiran Pujar who being the 2^nd OP was examined.

4.     Documents produced on behalf of the OPs:-

          1. New vehicle sales invoice and vehicle due

Statement / gate pass

          2. Cover note dated 28-3-2013

          3. Copy of the policy and terms and conditions of the

Policy

          4. Endorsement schedule

          5. Email correspondences

MEMBER                   MEMBER                   PRESIDENT