Haryana

Ambala

CC/391/2021

Sanjay Choudhary - Complainant(s)

Versus

KBS Motors Pvt Ltd - Opp.Party(s)

Sandeep Kashyap

20 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	391 of 2021
Date of Institution	:	23.12.2021
Date of decision	:	20.06.2023

 

Sanjay Choudhary aged about 39 years S/o Sh. Jasmer Singh, R/o village Khesopur, P.O Samalkha Tehsil Ambala Cantt, District Ambala

                                                                             ……. Complainant

                                                Versus

1. KBS Motors Pvt. Limited., Village Tepla, Ambala-Jagadhri Road, Saha District Ambala-133104, through its Authorized Signatory
2. Liberty General Insurance Limited, 171/2 2nd floor, Rai Market, Vijay Rattan Chowk, Sadar Bazar Road, Ambala Cantt, Haryana-133001 through its Authorized Signatory
3. Liberty General Insurance Limited, Registered Office 10^th  floor, Tower-A, Peninsula Business Park, Ganapatrao Kadam Marg, Lower Parel, Mumbai, Maharastra-400013 through its Authorized Signatory
4. Mahindra and Mahindra Financial Services Ltd. 2^nd  Floor, Sadhana House, Behind Mahindra Towers, 570 P B Marg, Worli, Mumbai, Maharastra-400018 through its Authorized Signatory (Given up).

….…. Opposite Parties

Before:      Smt. Neena Sandhu, President.

                  Smt. Ruby Sharma, Member,

        Shri Vinod Kumar Sharma, Member.           

 

Present:    Shri Sandeep Kashyap, Advocate, counsel for the complainant

                  Shri Shekhar Bansal, Advocate, counsel for the OP No.1

                  Shri Dev Batra, Advocate, counsel for the OPs No.2 and 3

                  OP No.4 already given up vide order dated 03.01.2022

Order:        Smt. Neena Sandhu, President.

1.           Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) and prayed as under:-

1. OPs No.2 and 3 to admit the claim of the vehicle Mahindra TUV 300 bearing Registration No.HR-85-5838 and get repaired the same from the OP No.1.
2. OP No.4 not to demand the remaining installments of the above said vehicle till the same was not handed over to the complainant by OP No.1 to 3 by fully repairing the same.
3. To pay Rs.50,000/- as compensation/damages for causing mental harassment and agony and financial losses.
4. To pay Rs.11,000/- as the costs of litigation.

Or

Grant any other relief which this Commission may deems fit.

 

2.             Brief facts of the case are that the complainant is the registered owner of the vehicle Mahindra TUV 300 bearing Registration no. HR-85-5838, model 2017 and the same was financed from OP No.4. OP No.1 is the authorized dealer of Mahindra & Mahindra Ltd., OPs No.2 and 3 are the insurance company. The complainant is working as a property dealer and such requires the services of the personal vehicle continuously as he has to go from one place to other regarding his business. After purchasing the above said vehicle the complainant got the same continuously insured from time to time through insurance policies. Thereafter the vehicle in question was comprehensively insured from OPs No.2 and 3 vide insurance policy no. 201120050219700226700000 by paying the premium of Rs.16,780/- and the said policy was valid from 17.10.2019 to midnight of 16.10.2020 and the IDV of the vehicle was declared as Rs.7,00,000/- . At the time of the issuing of the policy in question it was promised to the complainant by the officials of the OPs No.2 and 3 that the policy in question is a cashless policy and in case it  is damaged in future the same will be got repaired by authorized services centers of the Mahindra and Mahindra Ltd. by the OPs No.2 and 3 itself. During the period of the insurance on 24.02.2020 when the complainant was coming to his home the above said vehicle met with an accident as a cattle came in front and when the complainant turned the vehicle in his right side to save himself from the said cattle, the vehicle of the complainant hit the gate of the factory namely Ankur Indy, Village Manglai and the vehicle was got badly damaged in the said accident. Thereafter the police station Mahesh Nagar registered FIR no. 172/2020 against the complainant on the statement of the owner of the above said factory. The complainant in morning of 25.02.2020 itself informed the officials of the OPs No.2 and 3 about the accident and damage of the vehicle. Claim no.200502201120110072701 was lodged with OPs No.2 and 3. Thereafter the surveyor of OPs No.2 and 3 inspected the vehicle of the complainant and the total loss of the vehicle of the complainant came to around Rs.4,29,579/-. Thereafter the Government of India imposed lockdown due to pandemic -Noval Carora Virus (Covid-19) and Office of the OPs No.1 to 3 remained closed due to the imposing of national lockdown. The complainant again contacted the officials of the OP No.1 to 3 and inquired about the status of the claim of his above said vehicle. OP No.2 issued a letter dated 22.10.2020 and demanded some documents from the complainant and also informed the complainant about the deduction of 10% from the claim amount wrongly and illegally. The complainant provided all the documents demanded by  OPs No.2 and 3, but refused to give his consent for the deduction of 10% from the claim amount and thereafter the OPs No.2 and 3 flatly refused to admit the claim. At the same time, OP No.1 also issued the letter dated 14.10.2020 to the complainant  seeking his consent for repair of the vehicle and also wrongly and illegally demanded Rs.500/- per day as parking charges. As such, he gave his consent to OP No.1 to start repair work of the vehicle for which, the officials of the OP No.1 also took the cheque of Rs.20,000/- from the complainant as security. Thereafter the officials of the OP No.1 again issued letters dated 10.11.2020 and 26.12.2020 demanding parking charges of Rs.500/- per day from the complainant. The complainant many a times contacted with the officials of OP No.1 and informed them the vehicle in question was standing due to the negligence of OPs No.2 and 3 only as they did not approve his claim, as such the complainant is not liable to pay anything to OP No.1, but officials of the OP No.1 were adamant. Thereafter the officials of the OP No.4 also starting threatening the complainant to pay the remaining installments to them. The complainant many a times contacted with the officials of the OPs No.2 and 3 and requested to admit his  claim but to no avail. The complainant had earlier filed a complaint through another counsel, but he had not contested and the same was dismissed in default by this Commission, but till date the previous counsel has not informed the detail of the same and as such now the complainant has no other way left except to file fresh complaint on same cause of action. Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections to the effect that the present complaint is not maintainable, as the complainant has filed the complaint to create false evidence to avoid the payment of parking charges outstanding towards him for parking the vehicle in question at the premises of OP No.1; the complainant has not come to this Commission with clean hands and has suppressed the true and material facts; the complainant has no cause of action to file the complaint etc. On merits, it has been stated that OP No.1 time and again requested the complainant to make the due amount qua parking charges in its premises and also to make payment of repairing charges, if the complainant wants to get the vehicle repaired from it  but the complainant paid no heed and now the vehicle is not in a position to repair and it took place due to the gross negligence and carelessness of the complainant, as he paid no heed on the persistent requests of OP No.1. The estimate was prepared as per damages found in the vehicle which was duly informed to the Insurance Company by OP No.1 on 12.09.2020 after conducting survey by Mr.Amit; as the vehicle was received in the workshop on 10.09.2020 and estimate was prepared on 11.09.2020 and Surveyor Report was submitted to the Insurance Company on 30.09.2020. On 15.10.2020, the complainant visited the Workshop and gave his consent with a post-dated cheque of Rs.20,000/- dated 25.10.2020 saying that if his claim of Cashless will not be settled with the Insurance Company, he will pay the bill but OP No.1 could not get the cheque of the complainant presented for encashment; as the complainant himself promised that he has no amount in the bank and he will make the payment of the cheque in question in cash but he failed to pay the same. OP No.1 had issued letters dated 10.11.2020 and 26.12.2020 as well as sent messages through Whatsapp to the complainant-himself as well as on his provided mobile number; in which they have informed to the complainant regarding the dishonouring of cheque issued by the complainant in favour of OP No.1 and also requested for his consent and as per Policy OP No.1 had demanded Parking Charges from the complainant. The vehicle of the complainant was standing because of his own negligence, as the insurance company has already disapproved his cashless claim. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OPs No.2 and 3 appeared and filed written version and raised preliminary objections to the effect that this Commission has no jurisdiction to entertain & try the present complaint as the previous filed complaint has already been ordered to be "Dismissed in Default", by this Commission; the complainant has not come to the Commission with clean hands and suppressed the material facts etc. On merits, it has been stated that the alleged accident if had taken place, it was all because of rash, negligence and careless driving on the part of its driver which is proved from averments made in the complaint itself. The complainant wants "Blanket Claim" in cash & in advance, which is very astonishing pleadings based upon imaginations. Infact the true facts are that after receiving delayed intimation, OPs No.2 and 3 appointed Sh Amit Maniktala (Surveyor & Loss Assessor) to inspect the vehicle and to assess the loss. Vehicle was inspected by the surveyor and submitted his report regarding the vehicle in question. Loss was assessed for an amount of Rs.3,77,958/- subject to deductions & terms and conditions  of policy in question. However finally payable amount can only be arrived after getting the repair bills & final inspection etc which has never been done by the complainant. Although the accident of the vehicle in question was allegedly caused on 24.02.2020, but the intimation regarding the same was given to OP No.2 and 3 on 20.09.2020 i.e. approx after 7 months & that too without explaining any delay, as such, they were denied an opportunity to inspect the vehicle at the spot itself, which is required mandatorily as per the terms & conditions of the insurance policy and the regulation. The surveyor inspected the vehicle in the workshop of OP No.1 and asked to complainant to submit necessary documents. OP No.3 had also written various letters & reminders dated 03.11.2020, 17.11.2020 & lastly on dated 25.11.2020 to the complainant to submit necessary documents including bills/repair invoice after repairing of the vehicle & also for re-inspection of the vehicle after repairs alongwith its replaced damaged parts etc but to no avail. Till date neither final repair bill has been supplied nor vehicle has been got re-inspected after repair along with replaced parts and as such, under those circumstances, they were left with no alternative but to close the file on the ground that "we can't keep the claim open for indefinite period without any activity from your side" Hence this intimation was sent to complainant vide last reminder/letter dated 25.11.2020. Rest of the averments of the complainant were denied by the OPs No.2 and 3 and prayed for dismissal of the present complaint with costs.
5.           Complainant in person on 03.01.2022 suffered statement that he wants to give up the OP No.4  from the array of parties, which was accepted by this Commission vide order dated 03.01.2022.
6.           Complainant tendered his affidavit as Annexure CX alongwith documents as Annexure C-1 and C-8 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.1 tendered affidavit of Mukesh Kumar Swami, Works Manager of OP No.1-Company-M/s KBS Motors Private Limited (Mahindra), H.Q.Village Tepla, Ambala-Jagadhri Road, Saha, District Ambala (Haryana) as Annexure OP-1/A alongwith documents Annexure OP1/1 to OP1/18 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 and 3 tendered affidavit of Shraddha Kinare of OPs No.2 and 3-Liberty General Insurance Ltd., Peninsula Business Park, Tower A, 10^th Floor, G.K.Marg, Lower Parel, Mumbai-400013 as Annexure OP-2/A alongwith documents Annexure OP-2/1 to OP-2/8 and closed the evidence on behalf of OPs No.2 and 3.
7.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 to 3 and have also carefully gone through the case file.
8.           Learned counsel for the complainant submitted that by not considering the claim of the complainant, despite the fact that the accident took place during subsistence of the policy in question, the OPs are deficient in providing service and adopted unfair trade practice.
9.           On the other hand, learned counsel for the OP No.1 submitted that  since OPs No.2 and 3 did not give approval to repair the accidental vehicle, as such, it was left with no alternative, to seek consent from the complainant to get his vehicle repaired on payment basis, yet, he failed to give his consent in the matter, as a result of which, the vehicle was left parked in the premises of OP No.1 for which the complainant is liable to make payment of parking and other allied charges. 
10.           Learned counsel for the OPs No.2 and 3 while reiterating the   objections raised in their written reply submitted that since the complainant in the first instance failed to inform the OPs No.2 and 3 regarding the accident in question for more than 7 months and thereafter when he was asked to provide some documents relating to the vehicle in question, he failed to provide the same, as such, after waiting for a long time, his claim was closed accordingly. 
11.           The  following questions falls for consideration in this case:-
    1. Whether the second complaint is maintainable, if earlier complaint is dismissed in default?
    2. Whether there was any intentional delay on the part of the complainant in informing the OPs No.2 and 3 regarding accident of the said vehicle?
    3. Whether, the  damage of the vehicle coincided with the cause and nature of accident or not?
    4. Whether the complainant is entitled to get any relief or not?
    5. Whether the complainant is liable to pay the parking and other allied charges to OP No.1 or not and if yes, how much and if not then,  who is liable to pay the same?

 

12.           First coming to the question, as to this second complaint is maintainable, if earlier complaint was dismissed in default by this Commission or not? It may be stated here that our answer to this question is in the affirmative, in view of principle of law laid down by the Hon’ble Supreme Court in New India Assurance Co. Ltd vs R. Srinivasan decided  on 28 February, 2000, Appeal (civil)  11439 of 1996  wherein it was held as under:-
    1. That being so, the rule of prohibition contained in Order 9, Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default...”
13.           Now coming to the question as to whether there was any intentional delay on the part of the complainant in informing the OPs No.2 and 3 regarding accident of the said vehicle? It may be stated here that it is clearly coming out from the record Annexure OP-1/2 that after the accident of the vehicle in question  which took place on 25.02.2020, it was taken into the custody by the Police Station, Mahesh Nager, under FIR No.172 of 2020, Annexure OP-1/5. It is also coming out  from the order dated 22.06.2020, Annexure OP-1/4 having been passed by the District Judicial Magistrate, Ambala that the said vehicle was released on supardari and possession there was handed over to the complainant only on 10.09.2020. It is significant to mention here that since in the order dated 22.06.2020, it has been clearly mentioned by the District Judicial Magistrate, Ambala that the vehicle is no more required by police for investigation and that there is no rival claim. As such, under these circumstances, we are of the considered view that it cannot be said there was any suspicious activity involved in the said accident, on the part of the complainant. Even otherwise, this Commission is also very much aware of the fact that during those days, the country was running through various lumps of lockdowns, whereby the movement of the people was totally restricted and even the companies were also not functioning.  Under these circumstances, it can easily be said that it was on account of the circumstances beyond the control of the complainant that the vehicle in question could not be provided to OPs No.2 and 3 for any inspection and as such, if the said vehicle was provided to the OPs No.2 and 3 only on 12.09.2020 i.e. just after two days of release from the police custody that cannot be termed as any intentional delay on the part of the complainant. 
14.           The next question which needs to be answered is, as to whether, the damage of the vehicle coincided with the cause and nature of accident or not? It may be stated here that our answer is found within the Surveyor and Loss Assessor (Er.Amit Maniktala) Motor Survey Report dated 02.02.2022 Annexure OP-2/7, wherein it has been clearly opined by him that “Damages were found fresh and coincide with cause and nature of accident”. Thus, once the Surveyor appointed by OPs No.2 and 3 himself has not doubted the accident and found the nature of and cause of accident coinciding with the damage to the vehicle, as such, later on, OPs No.2 and 3 cannot wriggle out of the same, on the ground that they were not provided the estimate or were not able to re-inspect the vehicle. Once the OPs No.2 and 3 themselves did not approve cashless  authorization for repair of the vehicle in question, as is evident from email dated 01.10.2020, Annexure OP-1/16  having been sent to OP No.1 by them, later on, they cannot wriggle out of the situation that they were not provided an opportunity to re-inspect the vehicle after repairs or that they were not provided repair invoice qua the vehicle in question.
15.           The next question which needs to be answered is, as to the complainant is entitled to get any relief or not. It is significant to mention here that this Commission has already held above that there was no intentional delay on the part of the complainant in reporting the accident of the vehicle in question to the OPs. At the same time, as stated above, the Surveyor has also opined that “Damages were found fresh and coincide with cause and nature of accident” meaning thereby that no doubt has been cast upon the complainant qua the accident in question and at the same time, it is also coming out from the said surveyor report dated Annexure OP-2/7 that an amount of Rs.3,77,958/- was assessed as net payable qua the accidental vehicle. It is therefore held that the complainant is entitled to get an amount of Rs.3,77,958/- towards repair of the vehicle in question, as assessed by the surveyor. However, it is made clear that over and above, any amount, if incurred towards repair of the vehicle in question shall be borne by the complainant himself. Thus, by not making payment of the said amount to the complainant or directly to OP No.1 so that it is able to repair the accidental vehicle in question and on the other hand, by closing the claim of the complainant, the OPs No.2 and 3 have committed deficiency in service.  
16.           The next question that needs to be answered is as to whether the complainant is liable to pay the parking and other allied charges to OP No.1 or not? It may be stated here that the vehicle in question remained parked at the premises of OP No.1 because the claim amount was withheld by the OPs No.2 and 3, as such, complainant is not at fault, thus, he cannot be burdened to pay the parking charges. 
17.            As far as reliance placed by learned counsel for OPs No.2 and 3 on Baljinder Singh Vs NIC, FA No.173 of 2022 decided on 08.12.2022 and United India Insurance Company Ltd. Vs. Surinder Singh, FA No.5 of 2021 decided on 09.02.2021 by the Hon’ble State Consumer Disputes Redressal Commission, Punjab is concerned, wherein claim to the extent of 75% on non standard basis was allowed, it may be stated here that both these cases relates to theft of the vehicle in question and it was only under those circumstances held that delay in intimation to the Police as well as leaving key in the vehicle was material violation on the part of the insured. Thus, since, the facts of these cases, are totally different from those of the present case, as such, reliance placed by learned counsel for OPs No.2 and 3 on these judgments is misplaced.  
18.           Since no deficiency in service has been proved on the part of the OP No.1 as such, complaint filed by the complainant against it is liable to be dismissed. However, it is made clear that OP No.1 shall not ask any parking/allied charges qua parking of the vehicle in question, from the complainant, except the actual charges which will be incurred on repair of the accidental vehicle in question.
19.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.1 and allow the same against OPs No.2 and 3 and direct them, in the following manner:-  
    1. To pay Rs.3,77,958/- to the complainant as assessed by the Surveyor alongwith interest @4% p.a. from the date of closure of the claim, till realization.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.

                   The OPs No.2 and 3 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.2 and 3 shall pay interest @ 6% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.  

 Announced:- 20.06.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President