DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Dr. Navneet Agnihotri w/o Dr. Neeraj Sood, r/o E-1/71, Sector 14, Panjab University, Chandigarh.

                   ---Complainant

V E R S U S

1.       Honda Siel Cars India Ltd., through its Managing Director and Chief Executive Officer, Plot No.A-1, Sector 40-41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar (U.P) – 201 306.

2.       Harmony Honda Joshi Automotive Pvt. Limited, through its Managing Director and Chief Executive Officer, Plot No. 67, Industrial Area, Phase-II, Chandigarh – 160002.

3.       Tata AIG General Insurance Co. Limited, through its General Manager, Policy Holder Services, P.O. No. 9407, Chakala MIDC Post Office Mumbai – 400093.

4.       M/s Protech Engineers and Loss Assessors, through its Partner, SCF No. 40, Phase-9, Mohali, near Chandigarh – 160062.

---- Opposite Parties

BEFORE:      SH. LAKSHMAN SHARMA                    PRESIDENT

MRS.MADHU MUTNEJA                       MEMBER

                   SH.JASWINDER SINGH SIDHU             MEMBER

Argued By:             Sh. Neeraj Sobti, Counsel for Complainant.

Sh. Karan Nehra, Counsel for Opposite Party No.1.

Sh. Rajesh Verma, Counsel for Opposite Party No.2.

Sh. Varun Chawla, Counsel for Opposite Party No.3.

Opposite Party No.4 Ex-parte.

PER JASWINDER SINGH SIDHU, MEMBER

1.                Briefly stated, the Complainant, who is the owner of Honda City 1.5 EMT car, bearing Regn. No. CH-04-J-6450 (year of Manufacturing 2009) used to take comprehensive insurance policy, towards her vehicle, so as to facilitate easy & cashless service benefit. Presently, the vehicle was insured with the Opposite Party No.3, through Opposite Party No.2, by paying a sum of Rs.14,687/- towards premium, which was valid from 22.06.2011 to 21.06.2012 (Annexure C-1). It is averred that on 26.6.2011, in furtherance of the policy decision taken by the Opposite Party No.1 to replace some parts in the engine in respect of all the vehicle manufactured in the year 2009, the Complainant was called upon by Opposite Party No.2 to bring her vehicle at their service centre and as such, the said part was got replaced by the Opposite Party No.2 at their workshop. On 24.07.2011, hen the Complainant was coming from Panchkula to Chandigarh, the vehicle suddenly developed loud noise and smoke started coming out of the engine. Apprehending that perhaps a stone or some solid object had hit the vehicle under carriage, the Complainant, immediately, turned off the engine and called at the 24 hours Honda Assistance which tow lifted the vehicle to the service center of Opposite Party No.2. Initially an estimate of Rs.17,836/- was issued by Opposite Party No.2 towards the cost of its repair vide reference No. H250720110037, dated 25.07.2011 (Annexure C-2). The Complainant was assured by Opposite Parties No.2 & 3 that it will be a cashless repair and the vehicle would be delivered by 30.7.2011 after its repair. The Surveyor (Opposite Party No.4) deputed by Opposite Party No.3 visited the service center of Opposite Party No.2 to inspect the damaged vehicle and to submit its report at the back of the Complainant. On the other hand after opening the engine a fresh re-estimate of Rs.2,05,947/- was also prepared by Opposite Party No.2 vide reference No. H250720110037 (Annexure C-3) and again the date of delivery was promised as 30.07.2011. Surprisingly, the Complainant was informed by Opposite Party No.4 through e-mail as well as through its letter dated 29.7.2011 (Annexure C-4) that the under body damage intimated by the Complainant does not co-relate with cause of loss and the Complainant was asked to comment upon the same. The Complainant sent detailed reply to Opposite Party No.4 through e-mail (Annexure C-5). On 30.07.2011, when the Complainant approached Opposite Party No.2 to take the delivery of her car, she was informed that none of the Opposite Parties were ready to make the payment towards the cost of repair of the damaged vehicle as the engine of the car was damaged because of water/ hydrostatic lock. The Complainant tried her level best to make the things understand to the representative of Opposite Party No.2, but to no avail and she was forced to make the payment by her own arrangement and this was also taken down in writing from her by the representatives of the Opposite Party No.2 (Annexure C-6). Thereafter, the Complainant took the delivery of the car on 07.09.2011 by making payment of Rs.2,05,947.23P. It is alleged that the noise of the engine is not the same as it was earlier, but the Complainant was assured that this voice would not persist after the vehicle was driven for few miles. But when the Complainant reached home, she noticed that the voice in the engine became prominent, upon which she immediately made a call to the Opposite Party No.2. The officials of Opposite Party No.2 after getting feed back revealed that the tension bearing of the belt was not working properly and it could not be replaced due to non-availability and the same would be replaced when the part arrives/ available. The Complainant told the officials of Opposite Party No.2 that the same be given in writing but instead of giving in writing the vehicle of the Complainant was chosen to be called back on 8.9.2011 without any date being fixed for its re-delivery and thereafter, the car was delivered to the Complainant on 19.9.2011 after receiving Rs.1236/- more towards its repair (Annexure C-13). Because of the dispute between the Opposite Parties regarding their decision on the actual cause of damage to the engine, the Complainant is suffering unnecessarily and thus, served a legal notice dated 12.09.2011 upon the Opposite Parties (Annexure C-14). However, on 10.10.2011 the Opposite Party No.3 sent its repudiation letter (Annexure C-15). Hence, this complaint.

                   The complaint of the Complainant is not duly verified, but is supported by her detailed affidavit.

2.                Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.                Opposite Party No.1 in its reply has contested the claim of the Complainant by raising preliminary objections to the effect that the present complaint is not maintainable as the car has been purchased for commercial purposes; the relationship between Opposite Party No.1 and the Opposite Party No.2 is strictly on a principal-to-principal basis and each party is responsible for its own action; the allegations made in the complaint are false and frivolous with ulterior motive to harass & defame the answering Opposite Party; the alleged manufacturing defect does not exist and the present complaint is based on surmises & conjectures; and the complaint involves several disputed questions of fact and law which cannot be adjudicated in summary proceedings and only civil courts have jurisdiction to decide the present complaint. 

                   On merits, the Opposite Party No.1 has repeated their preliminary objection, while replying to the averments of the present complaint, in their para-wise reply. It is denied that the vehicle of the Complainant was insured with Opposite Party No.3 through Opposite Party No.2 by paying a sum of Rs.14,687/- towards premium and the cover note & policy was issued by Opposite Party No.3 through Opposite Party No.2 which was valid with effect from 22.6.2011 upto 21.06.2012. It is admitted that on 26.6.2011, the Complainant was called upon by the Opposite Party No.2 to bring her vehicle at their Service Centre for replacement of some parts in the engine as per the policy decision taken by Opposite Party No.1 for replacement of said part in all the vehicle manufactured in the year 2009 and as such the said part was got replaced by Opposite Party No.2 at their workshop. It is denied that the Complainant was coming from Panchkula to Chandigarh on 24.7.2011 when the car suddenly developed loud noise and smoke started coming out of the engine and that the Complainant turned off the engine and called 24 hours Honda Assistance which tow lifted the vehicle to the service center of Opposite Party No.2. It is also denied that initially an estimate of Rs.17,836/- was issued by Opposite Party No.1 towards the cost of its repair and that the Complainant was assured by Opposite Parties No.2 & 3 that it will be a cashless repair; and the vehicle would be delivered to the Complainant by 30.7.2011. It is admitted that estimate of Rs.2,05,947/- was prepared by Opposite Party No.2 vide reference No. H250720110037. It is further denied that on 30.7.2011 the Complainant approached Opposite Party No.2 to take the delivery of her vehicle where to her utter surprise, she was informed that none of the Opposite Parties were ready to make the payment towards the cost of repair of the damaged vehicle on the pretext that the engine of the car was damaged because of water/ hydrostatic lock. It is also denied that the Complainant was forced to make the payment by her own arraignment and this was also taken down in writing from her by the representatives of the Opposite Party No.2, as alleged. It is pleaded that the Opposite Party No.2 has legal right to collect the amount due to Complainant after or before the repairs. Opposite Party No.1 has nothing to do with repairs carried out by the Opposite Party No.2, as both the Opposite Parties have principal to principal relationship. Denying all other allegations and stating that there is no deficiency in service or unfair trade practice on its part, opposite party No. 1 has prayed for dismissal of the complaint with exemplary costs.  

                   The reply of Opposite Party No.1 is duly verified and is supported by a detailed affidavit of Amit Sinha, Manager Legal, Honda Siel Cars India Limited.

4.                Opposite Party No.2 in its reply has taken certain preliminary objections to the effect that the complaint is not maintainable; the present complaint involves complicated questions of law which requires thorough expert and voluminous evidence and such allegations cannot be decided under summary jurisdiction of the Consumer Protection Act, 1986.

                   On merits, it is pleaded that the vehicle was sold subject to the conditions of warranty, wherever applicable. Taking the insurance policy by the Complainant from Opposite Party No.3 was his choice. The service of cashless facility from the answering Opposite Party was available as per the terms of the policy issued by Opposite Party No.3. It is admitted that the vehicle in question was reported to the workshop of the answering Opposite Party on 25.7.2011. It is admitted that Annexure C-2 was issued by the answering Opposite Party which was an estimate only with regard to accidental repairs. However, the car would have been delivered after the consent of repair being given by the Complainant. It is denied that answering Opposite Party has committed anything about expenses towards repairs as the payment under the policy would always depend upon the terms of the policy. It is admitted that Annexure C-3 re-estimate was issued after opening of the engine. As per the reported problem, oil leakage was to be checked and the vehicle was towed by mondial and engine overhaul was done on request of the Complainant. It is asserted that after the opening of the engine and after inspection, it was found that there was ingress of water into the engine which contributed to the damages due to a phenomenon called hydrostatic lock. The Complainant was informed that the marks on the engine shows that the vehicle has been driven in a heavily water logged area/ road resulted into hydrostatic lock. The damages were due to external reasons and the repair of the engine does not fall under the standard/ extended warranty (Annexure C-8).  It is also pleaded that the dispute, if any, is between the Complainant and the Opposite Parties No. 3 and 4 and the answering Opposite Party being the repairer has every right to charge for the repair of the vehicle. It is denied that the Complainant was forced to make the payment by her own arrangement. The Complainant had written the letter (Annexure C-6) absolutely by her own wish and desire without any force. The claim of the Complainant is not maintainable qua Opposite Parties No.1 & 2, as it is not payable under the terms of warranty. It is admitted that the vehicle was delivered vide retail invoice dated 7.9.2011. The vehicle was attended to most efficiently and effectively to the satisfaction of the Complainant and the Complainant had test driven the vehicle before the delivery and there was no engine noise, as alleged. It is denied that the officials of Opposite Party No.2 had revealed that the tension bearing of the belt was not working properly and that the same was not replaced due to non-availability, as alleged. However, the vehicle was reported to the workshop of the answering Opposite Party on 8.9.2011 and the problem mentioned by the Complainant was noise from the engine compartment, bearings to be checked etc.  Receipt of legal notice has also been denied. Pleading that there is no deficiency in service on its part as it was the duty of Opposite Parties No.3 & 4 to pay the claim as per the terms of the policy, the answering Opposite Party prays for the dismissal of the complaint with exemplary costs.  

                   The reply of Opposite Party No.2 is not verified, but is supported by a detailed affidavit of Jasvinder Singh, Service Advisor, Joshi Automotives Pvt. Limited.

5.                Opposite Party No. 3 in reply has taken the preliminary objections that no cause of action has arisen to the Complainant to file the present complaint; there is no deficiency in service on the part of the answering Opposite Party; the Complainant has not approached this Forum with clean hands; disputed and complicated questions of fact and law involved in the present case, which cannot be adjudicated by this Forum in a summary procedure under the Consumer Protection Act, 1986.

                   On merits, the Opposite Party No.3 has repeated their preliminary objection, while replying to the averments of the present complaint, in their para-wise reply. It is pleaded that the Complainant took an insurance policy No. 015132383900 which was valid from 22.6.2011 to 21.6.2012 for an IDV of Rs.6,43,000/- subject to the terms and conditions of the insurance policy. On receipt of claim intimation, Sh. Pukhraj Singh of Protech Engineers & Loss Assessors, was appointed to assess the claim and submit his report. It is denied that the answering Opposite Party assured the Complainant that he need not bother about the expenses with regard to repair of the car. The claim, if any, is payable only as per the terms and conditions of the insurance policy after assessment made by the surveyor. It is further pleaded that the surveyor visited the workshop for assessment and after inspecting the car found that the underbody damages to the car for which the claim was initially lodged did not co-relate with loss as intimated by the Complainant. The surveyor immediately wrote letter dated 29.7.2011 (Annexure C-4) to the Complainant to explain his version regarding the underbody damages. It is claimed that the damage to the engine cannot occur mainly by ingress of water unless there is a mechanical breakdown or when trying to start/ run engine when in contact with water which could lead to seizure of engine and thereby the loss occurred due to consequential loss and the same was not payable for violation of Condition No. 1 (2) (a) of the policy. Hence, the claim of the Complainant was rightly repudiated vide letter dated 10.10.2011 (Annexure R-3/3). Denying all other allegations and stating that there is no deficiency in service or unfair trade practice on its part, opposite party No. 3 has prayed for dismissal of the complaint with costs.  

                   The reply of Opposite Party No.1 is duly verified and is supported by detailed affidavits of Mohd. Azar Wasi, Head North, Claims, TATA AIG General Insurance Co. Limited and Pukhraj Singh, Partner, M/s Protech Engineers and Loss Assessors.

6.                Opposite Party No.4 initially appeared personally and thereafter, through Ms. Jamini Tiwari, Advocate, but subsequently they absented and therefore vide order dated 30.04.2012, they were ordered to be proceeded against exparte.

7.                Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the Complainant and Opposite Parties No. 1 to 3, we have come to the following conclusions.

8.                The present complaint of the Complainant explains that the Complainant who is the owner of a Honda City 1.5 EMT car (model: 2009) bearing Regn. No. CH-04-J-6450, and since the date of purchase he has been subscribing for a comprehensive insurance policy from Opposite Party No.3, on the advise of Opposite Party No.2, so as to facilitate herself towards easy and cashless service benefit in case of any exigencies. The Complainant had paid a premium of Rs.14,687/- vide Cover Note & Policy No. 015132383900 valid for the period from 22.6.2011 to 21.6.2012 (Annexure C-1). The Complainant is very much categorical in claiming that the policy document was not sent or delivered to her by Opposite Party No.3. 

9.                The Complainant claims that on 26.6.2011 the Opposite Party No.2 advised her to bring her vehicle to their service station for replacement of some parts in the engine as per the policy decision by the Opposite Party No.1 for the vehicle manufactured in the year 2009. The said replacement of part was done at the workshop of Opposite Party No.2 and the vehicle kept on running perfectly fine thereafter. The Complainant on 24.7.2011 at around 10:30 pm noticed some loud noise and saw smoke coming out of the engine, apprehending that perhaps some thing may have hit the vehicle beneath, and had caused some accidental damage to it. Complainant immediately turned off the engine, and called 24 hours Honda Assistance, which tow lifted the vehicle to the service center of Opposite Party No.2. Initially, Opposite Party No.2 prepared an estimate of Rs.17,836/- vide Annexure C-2 towards the cost of its repair and the Complainant was assured that the same would be covered under cashless repair and the vehicle would be delivered to her by 30.07.2011. However, the surveyor deputed by Opposite Party No.3 who visited the service center of Opposite Party No.2 inspected the damaged vehicle and to submit its report at the back of the Complainant. The engine of the vehicle was opened and the fresh re-estimate of Rs.2,05,947/- vide Annexure C-3 was prepared. However, the date of delivery of the repaired vehicle was promised as 30.7.2011.  

10.              The Complainant was shocked by the communication dated 29.7.2011 from Opposite Party No.3 wherein it was claimed that the damage intimated by her did not co-relate with the cause of loss and she was asked to comment about the same. This communication was replied by her through an e-mail. These communications are annexed at Annexure C-4 and C-5.

11.              When the Complainant visited the workshop of Opposite Party No.2 to take the delivery of the vehicle, to her utter surprise, she was informed that the Opposite Party No.3 was not ready to make the payments towards the cost of repair of the damaged vehicle, on the pretext that the engine of the car was damaged because of water/ hydrostatic lock. The Complainant was asked to make payments by her own arrangement and a written representation too was got signed from her that in case the Opposite Party No. 3 did not honour the claim, then she would be responsible to make payments and receive her vehicle after repairs (Annexure C-6). 

12.              The Complainant after having made several communications failed to elicit any favour response, but is aggrieved of letter dated 10.10.2011 (Annexure C-15) vide which her claim was repudiated on the ground that Opposite Party No.3 is not liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. The Complainant claims that the attitude of Opposite Party No.1 and 2 on one hand claim that the damage to the car was not covered under warranty conditions as the same was caused due to ingress of water/ hydrostatic lock and on the other hand, Opposite Party No.4 (Surveyor of Opposite Party No.3) was attributing the damage being caused due to mechanical break down of one internal component of engine causing damage to the entire engine, have caused unnecessary suffering to her. Aggrieved with the actions of the Opposite Parties, she served a legal notice upon them (Annexure C-14 & C-15), citing deficiency in service on their part for not having honoured her genuine claim.

13.              Interestingly, initially Opposite Party No.3 in its communication to the Complainant had claimed that the episode of accident as intimated by the Complainant did not in any manner relate with the loss suffered by the vehicle, hence, the same being objectionable, is not payable. However, at a later stage, when the engine of the vehicle was opened, it was revealed on inspection that the engine had suffered the damage due to the ingress of water causing hydrostatic lock leading to the extensive damage to the engine parts. The reply of Opposite Party No.3, as well as Opposite Party No.2 confirms this factor, as they have annexed the copy of repudiation letters which are Annexure OP1/5 and Annexure R-3/3 respectively, which are the same documents dated 10.01.2011, as annexed at Annexure C-15 by the Complainant. We understand that as the episode of water lock of the engine has occurred due to the ingress of water, as confirmed by the Opposite Party No.2, but at the same time, the opinion of Opposite Party No.3, that the loss due to this factor, is not payable, being consequential loss, is not understandable, as no fault is attributable to the Complainant for the happening of this loss. None of the Opposite Parties have been able to make out that the ingress of water in the engine, was in the knowledge of the Complainant, and that even though being in know of ingress of water, she continued to drive the vehicle, causing such an extensive damage to its engine. 

14.              The Opposite Party No.3 in its claim that the damage to the engine of the vehicle in question due to hydrostatic lock is actually a consequential loss, has failed to clearly demarcate as to what was the initial loss, and after the happening of such a loss, the further loss that was caused to the engine, was a consequential loss. Meaning thereby that the consequential loss would only happen, after the completion of an event, and the loss having occurred during this event is quantified; as well as the Complainant was in the knowledge of the damage which had occurred to the vehicle in the first episode. Our own Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, in First Appeal No. 34 of 2012, decided on 09.02.2012, in the case titled as “Tata AIG General Insurance Company Limited V/s M/s Ayushveda Informatics (India) Pvt. Ltd. & others” too has opined that any damage to the engine due to hydrostatic lock on account of ingress of water in the engine is actually an incidental loss and not a consequential loss. Therefore, we feel that Opposite Party No.3 is liable to make good the loss suffered by the Complainant on account of hydrostatic lock of the engine and having denied this genuine claim of the Complainant, amounts to deficiency in service on its part.

15.              It is also worth mentioning here that the Complainant who had been regularly subscribing for a comprehensive policy from Opposite Party No.3, had suffered harassment at the hands of Opposite Party No.2 when a demand of Rs.2,05,947/- was made from her after initially having assessed loss of Rs.17,836/- and that she had made the payment of entire repair charges under compelling circumstances to take her vehicle from Opposite Party No.2.  Such a situation, to our mind, definitely means harassment, which was on account of refusal of her genuine claim by Opposite Party No. 3.                

16.              Since we did not find any deficiency in service on the part of Opposite Parties No.1, 2 and 4, therefore, the present complaint qua them is dismissed, with no order as to costs.

17.              In the light of above observations, we are of the concerted view that the Opposite Party No.3 is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.3, and the same is Allowed. The Opposite Party No.3 is directed, to:-

[a]    To refund the amount of Rs.2,07,182/- i.e. (Rs.2,05,947/- + Rs.1236/-) which the Complainant was forced to pay to Opposite Party No.2, after deducting applicable depreciation, as per the terms & conditions of the policy;  

[b]    To pay Rs.25,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[C]    To pay Rs.10,000/- as cost of litigation;

18.              The above said order shall be complied within 45 days of its receipt by the Opposite Party No.3; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 17 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.  

19.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

29^th January, 2013.                                                                                

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

“Dutt”