Date of Order:18/01/2017

ORDER

BY SRI.H.JANARDHAN, MEMBER

1.     The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for  direction to the O.Ps to pay a sum of Rs.25,000/- towards mental agony, Rs.1,20,000/- towards taxi charges, Rs.1,00,000/- for business loss and Rs.2,40,680/- towards loan installments paid on subsequent months.

2.     The brief facts of the complaint is that, the complainant had purchased a car bearing No. KA -02 MG 9282 ID vehicle from the O.P.No.1 during the month of November 2012 and insurance policy was obtained from the O.p No.2 and issued a policy bearing No.1401732311002926 for the said vehicle covering the risk from November 2013 to November 2014.  O. P No.1 is the authorized service center.  The above said vehicle met with an accident on 15.12.2013 at 2 a.m near Muddana Palya in the outer ring road of Magadi. The complainant intimated the accident to the 1^st and 2^nd O.P without any delay. The 1^st O.p authorized service center  as well as manufacturing company, the complainant left the damaged car with the O.P No.1 under intimation of O.P.No.2 for repair of the said car.  After thorough inspection from the 2^nd O.P and its surveyor on the O.p.No.1 had send the quotation to the complainant on 16.12.2013 and informed orally  to the 1^st and 2^nd O.p surveyor  that all the formalities have been complied with the vehicle in question and it will be repaired by the 2^nd O.P within three weeks and it will be delivered within a months time.  Further after the lapse of almost four months as on the date of the vehicle was not delivered as promised by 1^st O.P and its employee went on giving evasive replies and requested to grant time to deliver the vehicle and assigned reasons.  The O.p.No.1 and its surveyor who were working for the 2^nd O.P avoided to attend the phone calls of the complainant for the reasons best known to them. The 1^st O.P is blaming 2^nd O.P and its surveyor and ultimately  caused deficiency in service and the O.p.No.1 and 2 and made the complainant to suffer.  Further complainant submitted that he  is a business entrepreneur and carrying on multiple business activities and solely depending on the said car for day to day conveyance.  Without the aid of the vehicle the complainant unable to carry-out the business activities effectively. Due to non-delivery of the vehicle as promised by the O.P.No.1 the complainant sustained loss in business which cannot be compensated in terms of the money. Further the complainant has paying monthly loan installments of Rs.12,840/- and due to non-delivery and availability of the vehicle in time as promised by O.P.No.1 amounted to mental agony apart from business and financial loss to the complainant and the complainant engaged a taxi service for day to day business activities and spent Rs.1,500/- per day.  The non-delivery of the vehicle caused mental agony and torture and also suffered business loss and made the complainant to run from pillar to post and due to non-delivery of the vehicle as assured by the O.Ps. Complainant left with no other option issued a legal notice to the O.ps and requested to hand over the vehicle. Inspite of the legal notice the O.ps did not respond nor bothered to deliver the vehicle in question. The complainant left with no other option filed this present complaint.

3.     Upon issuance of notice O.Ps appeared through their counsel and filed its version.  In the version of O.P No.1 it is contended that, the complaint is not maintainable either in law or on facts and the complaint is based on false and vexatious grounds and contended that  the same is not maintainable.  The claim made by the complainant  is a false claim and it is made on misconception  and further the claim is made without any basis  and does not merit any consideration.  O.P.No.1 is not aware of the fact that the complainant received insurance from the O.P.No.2.  It is true that the complainant has brought the car bearing Reg. No.KA-02 MG 9282 to the service station for accidental repair and after thorough examination our service executives found that the damages by assessing the repair works that needs to be carried out to have the vehicle in working condition sent the quotation to the complainant on 16.12.2013.  The complainant stated that, she had insured her vehicle with M/s Reliance General Insurance Co. Ltd and requested to send the copy of quotation to her insurer.  The executives of the O.p.No.1 intimated the complainant that the huge damage has been inflicted and vital parts has been damaged and those parts has been replaced  and for the replacement the materials have to be ordered from the regional office  and it would take 20 days time to receive the said materials and another 20 days to carry-out the repair work. For which the complainant agreed for time prescribed by the O.P.No.1.  At the same time it was brought to the notice of the complainant that the insurer of the said vehicle i.e. Reliance General Insurance Co. Ltd., had undertook to compensate and to bare the repair cost and the same was agreed by the complainant.  The O.P.No.1 has placed the required material to carry-out the repair work soon after the arrival the executives of the O.PNo.1 had commenced the repair work and within a stipulated time of 20 days of receiving the materials  its staffs have completed the repair work brought back the car to the working conditions and the vehicle was ready for delivery.  The O.P No.1 had also informed the complainant through its executives that repair work is completed and the vehicle is ready for delivery and informed about the bill amounting to Rs.3,36,066/- incurred towards the repair of the said car.  The bill already been raised by the O.P.No.1 and the same sent to the insurer for realization. Since the cost of the repair is not realized the delivery of the vehicle to the owner is out of question and the O.P.No.1 had brought the same to the notice of the complainant that the final bill has been sent to the insurer and still awaiting for the approval of the insurer and suggested the complainant to follow-up with the insurer to clear the repair cost.   After the issuance of the legal notice the O.P.No.1 had replied to the said notice and had sent to the complainant address that the vehicle is ready for delivery  but the approval from the insurer is awaiting.  Further the O.P.No.1 submits that after the reply notice the complainant approached our showroom and had taken the delivery of the alleged car on 19.4.2013.  As the complainant has taken the delivery of the car  there is no deficiency in service on the part of the O.P.No.1 and on other ground prays for dismissal of the complaint.

4.     In the version of O.P.No.2 contended that, it is admitted that the complainant has insured the car of the complainant and the liability against the O.P.No.2 is limited as per the terms and conditions of the policy of insurance. The O.p.No.2 submit that, the complainant had informed the O.P.No.2 that her car met with an accident on 15.12.2013 and accordingly the O.P.No.2 has appointed an investigator and investigate the assess the loss caused to the car and accordingly O.P.No.2 submitted the report to their company.  O.P.No.2 request the complainant to submit the claim form estimation report based on the same the O.P.No.2 appointed the final surveyor to assess the damage caused to the vehicle. The insurance company has got the vehicle examined by the licensed surveyor and accordingly surveyor has assessed the damages caused to the vehicle for the repair amounting to Rs.3,00,829/-. and on verification of the insured vehicle documents and re-verification of the repaired vehicle the assessed amount was paid to the authorized repairer and there is no deficiency in service on the part of the O.P.No.2 and hence contended that the complaint is not maintainable and is liable to be dismissed.

5.       In order to substantiate the case of the parties and both parties filed their affidavit evidence and also heard the arguments.

6.      On the basis of the pleadings of the parties, the following points will arise for our consideration are:-

                                (A)   Whether the complainant has proved

                     deficiency in service on the part of the O.Ps?

(B)  Whether the complainant is entitled to

     the relief prayed for in the complaint?

(C)   What order?

7.     Our answers to the above points are:-

POINT (A) & (B):      In the Negative.

POINT (C):       As per the final order

for the following:

REASONS

POINT No.(A) & (B):-

8.     On perusal of pleading of both the parties, it is not in dispute that the complainant purchased the vehicle of the ID car bearing Reg. No. KA-02 MG 9282 from the 1^st O.P.  and the insured the car with the O.P.No.2 and also issued a insurance policy to the said vehicle covering the risk for the period November 2013 to November 2014. O.P.No.1 is the authorized service center and O.P.No.2 is the insurer. It is also not in dispute that the vehicle met with an accident on 15.12.2013 near Muddannaplaya outer ring Road, Magadi Road and it was intimated to the 1^st and 2^nd O.P and the complainant left the car with the O.p.No.1 under the intimation of the O.P.No.2 and after thorough inspection from the 2^nd O.P from its surveyor the 1^st O.P had sent the quotation to the complainant as well as the 2^nd O.P on 16.12.2013 and further stated that all the formalities  would be complied and the vehicle in question would be repaired by 1^st O.p within three week and it will be delivered within a months time.  It is the specific case of the complainant is that, after a lapse of four months the vehicle was not delivered and the O.Ps went on giving evasive replies for the delivery of the vehicle.  The complainant has also admitted in the affidavit evidence that he is a business entrepreneur and carrying on multiple business activities. However, the complainant did not place any credible evidence that he has used the private car for his convenience and did not examine any of the witness. In the absence of the credible evidence it cannot be acceptable that the complainant incurred loss when the car was left for repair. Furthermore the O.P.No.1 submits that after the reply notice the complainant approached our showroom and had taken the delivery of the alleged car on 19.4.2014 and the insurance company also settled the claim. Whereas the complainant did not stated anything in his complaint or in the affidavit evidence and hence it is nothing but suppression of material facts in order to get the orders from this Forum in his favour. Further it is not in dispute the car severely damaged and obviously service station has to prepare their estimate and the insurance company has to appoint investigator in  order to approve the repair cost.  On account of following all the formalities time will consume  and it is the duty of the complainant to get the claim of the insurance and their approval at the earliest and she cannot expect the O.P.No.1 to do all those acts on behalf of the complainant. Somehow the O.P.No.1 intimated to the insurer i.e. O.P.No.2 and get the consent by filing the estimation paper.  Furthermore the car was deliver back to the complainant after carrying out the entire repairs.  It is worth to note that the complainant did not say anything about the settlement of the claim by the insurer and delivery of the vehicle and not produced any rebuttable evidence to that effect.  In the light of above discussions, we reached to conclusion that, the complainant failed to prove the deficiency in service and thereby the complainant is not entitled for the relief as sought in the complaint.  Accordingly we answered these points partly in the Negative.

POINT No. (C):- 

9.     On the basis of the findings  given on the  point No. (A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is hereby dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 18^th Day of January 2017)

MEMBER                 MEMBER                PRESIDENT

*Rak