Delhi

East Delhi

CC/167/2015

RAM NIWAS - Complainant(s)

Versus

SUNRISE AUTOWORLD - Opp.Party(s)

01 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. NO. 167/2015

1	SH. RAM NIWAS S/o LT.SH. RATNA RAM R/o 496, PKT-E, MAYUR VIHAR PH-II, NH-24, DELHI-110091.	….Complainant
Versus
1.     2.	M/S SUNRISE AUTOWORLD PVT. LTD. THROUGH ITS PROPRIETOR/DIRECTOR/MANAGER, PLOT NO. 2, IP EXTN. NEAR MOTHER DAIRY, DELHI-92.   BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD. THROUGH ITS AUTHORISED SIGNATORY, 6TH FLOOR, 93 ASHOKA BHAWAN, NEHRU PLACE, NEW DELHI-110006.	…OP1                                                                                    …OP2

 

Date of Institution: 11.03.2015

Order Reserved on: 17.02.2023

 Order Passed on: 01.03.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal(Member)

Order by : Sh. S.S. Malhotra (President)

JUDGMENT

1. By this order the Commission shall dispose off the complaint of the Complainant as filed by him against the OP1, the Service Centre of the Vehicle, who allegedly has not painted his vehicle properly and OP2 who has not reimbursed the total bill of the repair despite having valid insurance claim.
2. Brief facts stated by the complainant are, that he purchased one Car of Hundai, DL-7CL-8600 in the month of February 2012 & the same was being maintained properly for two years but on 01/05/2014, when his car was parked at common parking area, the same was damaged by throwing Acid/Chemical by one Sh. Sunil Dayal S/o Sh. Shiv Dayal for which he lodged the report in Police Station and necessary proceedings were initiated against him but since his car was extensively damaged, he approached OP1 for repairing the vehicle and also informed the OP2 w.r.t. insurance claim of vehicle. One Sh. Jameel, authorized official of OP2 took the car to OP1 where said Sh. Jameel had contacted one Sh. Moolchand employee of OP1, who after inspecting the vehicle informed the complainant that complainant is not required to pay a single paisa towards the repair of the car as the car is comprehensively insured and car would be painted afresh after removing the old paint and it was assured that vehicle would be delivered back on 22/05/2014 and the estimate cost of repair was informed as Rs. 48,000/- approximately. The complainant requested the OP1 to mention complete work done by them and cost of repair but the said Sh. Moolchand told the complainant to come after 2 days and only on 14/05/2014 the complainant was provided with the copy of Repair Order dated 12/05/2014 and then signature of the complainant were obtained on the Repair Order on 14/05/2014.
3. The complainant visited the OP1 on 22/05/2014 for taking the delivery of the vehicle but he was informed that repairing work has not yet completed nor any approval of OP2 has been received, so he should come after 02 days. The complainant again visited on 24/05/2014 but the position was same and again he was asked to come after 02 days and when he visited on 26/05/2014 the car was still incomplete as 06 monograms/emblems were not affixed by OP1 and after mentioning all these facts he took the delivery and signed accordingly and then he was shocked to note that OP1 has raised Repairing Bill to the extent of Rs. 69,891/- out of which the insurance company had paid only Rs. 35,761/- and Rs. 34,130/-(as stated) were paid by the complainant from his pocket which he paid in cash and he also observed that the charges  levied by OP1 were on the higher side. On the request of complainant to Sh. Moolchand, to provide authentic copy of full details and also the detail of expenses sanctioned by OP2, but it was not provided and as such there is deficiency in service on the part of OP1 is delivering the vehicle late by 04 days that too without affixing 06 monograms, which he did only after 05 times of his visit and even the charges were on the higher side particularly w.r.t. painting charges.
4. It is further submitted that the OP1 charged 53,000/- towards labour charges including tax by taking undue and illegal advantage of being sole authorized service provider in the vicinity, whereas this painting could have been done from outside for 20,000/- only for which he has placed quotation from two private painters. Not only this, the quality of the paint as provided by the OP1 was not as per the specification nor the OP1 removed all the old existing paint at several places rather applied afresh paint on the already existing paint which is total negligence and unskilled attitude of OP1 and result was that the paint started coming out and it was total mis-represented by OP1 that he would remove all the previous paints and afresh paint would be applied on the car. The charges were also on the higher side. Much time was taken by OP1 and this work could have been done within a week, and non delivery of the vehicle on 22/05/2014 and delivering the same only on 26/05/2014, was another inconvenience to the complainant in pursuing his profession of visiting various courts, and he was forced to avail taxi service for attending the court cases for 10-12 days and such act on the part of the OP1 is stated to be deficiency in service.
5. As far as OP2 is concerned, it is stated that it has not reimbursed the full amount of repair and as such it is deficient in providing the service to the complainant. It is prayed that OP1 & OP2 are liable to pay compensation to the complainant and it is prayed that OP1 be directed to pay Rs. 3,50,000/- towards applying sub-standard paint and also compensation of Rs. 33,000/- as difference on account of the amount charged by OP1 (to the extent of 53,000/- which could have been done, for only 20,000/- from outside and he has claimed Rs. 33,000/- towards over-charging) Rs. 35,000/- for indulging in unfair trade practice and Rs. 25,000/- towards mental harassment and compensation along with interest @ 12% p.a.
6. OP1 has filed written statement taking preliminary objection that complaint is not maintainable as it is without any cause of action, the complainant has not come to Commission with clean hands. It is stated that after inspecting the vehicle, rough estimate of Rs. 48,000/- was given and it was informed to the complainant that final estimate can only be given after the thorough inspection of the vehicle by surveyor of the Insurance Company. The surveyor inspected the vehicle and allowed some items for repair and also for the replacement as per the detail given in para 6 which was done after taking permission of the surveyor as well as of the complainant as some extra work was also got done by the complainant.
7. It is further submitted that compensation as sought is excessive and exorbitant. As far as merits are concerned, the car of the complainant was damaged when it came to OP1, rough estimate was given by Sh. Moolchand are the admitted facts. It is further submitted that the other work as mentioned from Sr. no. 10 to sr. no. 15 of para 6 of written statement were the additional work, which was sought to be done by the complainant apart from the work approved by the surveyor. Rest of the contents were denied & it is prayed that the complaint case of the complainant be dismissed.  
8. Complainant has filed Rejoinder to the reply filed by OP1 and he has stated that OP1 has failed to inform as to how the complainant is without any cause of action as the complainant specifically has alleged that OP1 used sub-standard poor quality of the material, the work was not done with machines, highly exorbitant charges have been levied by them and delivery of the vehicle was not given in time, which all facts are sufficient to infer deficiency w.r.t. services agreed to be given by the OP1.
9. It is further submitted that the said Sh. Moolchand, Manager of OP1 and Sh. Jameel Surveyor of the Insurance Company had jointly inspected the vehicle on 12/05/2014 that too without informing the complainant and even in his absence, and as such the contention that work has been done on the consent of complainant is, specifically denied & it is reiterated that OP1 through Sh. Moolchand informed the complainant that approximate expenses would be Rs.48,000/- and despite that they have charged much more than that, by saying that work w.r.t. certain additional repair has to be paid by the complainant.
10. It is further submitted that complainant’s signature were obtained one time on 14/05/2014 and it was also represented that OP1 will recover all the charges from OP2 and Sh. Moolchand did not inform the complainant that OP2 has approved repairing work only to the limited partial extent and it is reiterated that complainant never agreed that he would bear the charges w.r.t. extra work as mentioned from Sr. No. X to XV of Para 06 i.e. (RH Fender, RH Front Door, LH Fender, LH Front Door, LH Rear Door, LH Qtr. Panel).
11. The contents of the complaint are reiterated and it is submitted that reply/written statement of the OP1 be rejected being without any merit and complaint of the complainant be allowed.
12. OP2 has filed its written statement, taking preliminary objection that the complaint is not maintainable against OP2 as whatever amount the surveyor passed after due verification of the work done and bill submitted by the OP1, were reimbursed to the OP1 on behalf of the complainant and therefore as per the settled guidelines, the complaint against OP2 is not maintainable and there is no deficiency on the part of the OP2. It is further submitted that the report of the surveyor as received by the Insurance Company, which is appointed under the guidelines of IRDA is an independent individual and Insurance Company has no role either w.r.t. work done by OP2 or w.r.t. report submitted by the surveyor and it is prayed that complaint of the complainant against OP2 be dismissed.
13. The complainant has filed Rejoinder to the written statement filed on behalf of the OP2, and he has denied that the Insurance Company has not committed any deficiency in service. He has further submitted that the authorized Surveyor of the OP visited the workshop of OP1 after 3 days delay, he visited without informing the complainant and did the inspection in absence of complainant, he did not convey any fact w.r.t. report submitted by him to the Insurance Company and even inter-se correspondence in between OP1 & OP2 w.r.t. extent of delay or extent of amount spent or the manner and method of painting the car by OP1, has not been mentioned at all as to how the surveyor calculated the amount payable by the OP2 to the OP1 and therefore it is specifically denied. It is denied that the vehicle has been delivered as per terms and conditions of the Insurance Policy, or the OP2 has wrongly assessed the claim amount without giving any opportunity of being heard to the complainant and also it released the amount to the OP1 without intimation to the complainant, who otherwise has over-charged the expenses. The surveyor although took photographs of the damaged car but never shared the same to the complainant and everything done by the surveyor of OP2 was done in collusion with OP1 and its Manager Sh. Moolchand. The contents of the complaint are reiterated and it is prayed that there is deficiency of service in granting lesser amount than the bill to the OP1.
14. Complainant has filed his evidence and also filed additional documents with the permission of this Commission. OP1 & OP2 also filed their respective evidence. All the parties have filed their written arguments. The Commission has perused the record.
15. The basic controversy as alleged by the complainant is w.r.t. deficiency in service on the part of both the OPs, i.e. against the OP1, the deficiency is w.r.t. making a delayed delivery of the vehicle after repair, over-charging the amount and vehicle was not being properly painted with machine and deficiency in workmanship. Deficiency against OP2 is w.r.t. reimbursement of the lesser amount than the actual amount claimed by OP1 that too without any information of the same to the complainant and without taking him in-confidence w.r.t. work done/to be done.
16. The Commission has heard the arguments and gone through records, documents filed by the parties and also the written arguments.
17. Basically the complainant has divided his complainant in two parts i.e. alleging deficiency on the part of OP1 on one part & alleging deficiency on the part of OP2 separately. As far as OP1 is concerned the complainant has basically argued that there is deficiency w.r.t. using in sub-standard of the quality new paint, paint was done without removal of the previous paint, paint was not done with machines, the monogram/emblem were not affixed, delivery of the car was not given in time by OP1, it charged excessive/exaggerated rates for providing their services and even otherwise has charged the amount more than what was stated while given estimate.
18. As far as OP2 is concerned the deficiency is stated to be that it has deducted the depreciation at higher rates randomly at 50% of all parts, the report of surveyor is not correct and on account of such mis-calculation wrong report of the surveyor, he had to pay Rs. 35000/- approximately from his own pocket which, in fact were to be reimbursed by the Insurance Company as informed by Sh. Moolchand.
19. Coming to all the aspects one by one. As far as paint/process of paint/removal of paint removal of old paint and then doing it is concerned it is relevant to mention that the complainant meanwhile moved an application for getting the vehicle inspected from an expert so that the report w.r.t. paint, procedure, done by machine or manual or whether done after removing previous paint or not could have been determined by the expert but that application subsequently was withdrawn on 18/07/2019. Accordingly there is no opinion of the expert to prove as to how the paint was done and as such whether there was any deficiency in paint or painting process or w.r.t. sub-standard quality of paint was used, the complainant has failed to prove all such aspects.
20. The next contention is w.r.t. over-charging the rates by OP1. The complainant has placed the quotation from two mechanics. The same is not relevant as it is no-where specific as to how much that mechanic was qualified, what paint he would have used, what paraphernalia he had in his shop. All such necessary aspects are missing from the evidence and therefore the evidence of Private Mechanic/Mistri is not sufficient to appreciate this contention of the complainant. Therefore there is no deficiency on this aspect as well.
21. Now coming to the contention as to whether the OP1 has charged extra payment by stating that local mechanic has given a quotation that such work would have been done by the local mechanic within the range of Rs. 20,000/- or 23,000/- as stated. The I^st quotation provided by mechanic is dated 30/07/14 and II^nd is 04/09/18.  As far as the estimate dated 30/07/14 is concerned it establishes that this report has been obtained by the complainant after having taken delivery of the vehicle from the OP and after the paint has already been done which has been admittedly done in May 2014. This opinion is nothing more than an effort to create a doubt in the mind of the Commission. If the vehicle is already painted, and it requires no paint, then anyone can give any estimate even for an amount 10,000/- or even 5,000/-as a person giving such estimate knows that he has to do nothing, but only has to create a doubt.
22. Apart from appeasing complainant the, this quotation is of no good and such facts could have been appreciated in much better way, if this estimate would have been taken by the complainant prior to handing over the vehicle for repair/paint to the authorized dealer. Therefore this contention is not well found & getting such estimates is of no avail to the complainant.
23. Even otherwise it can easily be differentiated that a work done by private mechanic, and a work done by authorized dealer/workshop, are two different scenarios altogether which cannot be compared at all with each other. The confidence/assurance which is available from the authorized workshop, can never be achieved from private mechanic particularly in the circumstances when there is no material on record w.r.t. the mechanic’s expertise and the paraphernalia to be used by such person to paint the car w.r.t. qualification that mechanic has, what space that mechanic has and the service which would be given after repairing the vehicle. Similarly, estimate dated 04/09/18 is not worth appreciating and it has not been clarified at all as to how it relates to the complainant after 04 years of paint. How that estimate is material has also not been explained. Therefore this opinion/quotation also is not convincing & therefore the contention of the Complainant cannot be appreciated. Above all, how the complainant is harping on this issue is also beyond imagination. If he would spent Rs.20,000/- on paint then the Insurance Company would have been paying only that amount which he had spent. In this case admittedly the OP2 has paid amount of Rs. 34,000/- approximately although it is stated that OP2 has reimbursed on lower side yet it is in any case more than Rs. 20,000/- and therefore this contention of complainant also is of no avail. If he would have spend lesser amount, on the paint, lesser amount he would have been reimbursed & if that amount has been spent from an authorized shop, at higher rates then that amount has been paid by the Insurance Company proportionately & above all he got the work done from an authorized workshop. Therefore looking from all these angles the contention that the OP1 has overcharged for the paint/painting work has also of no merit.
24. Coming to the next aspect that monograms/emblems have been fixed after the delivery of the car despite the fact that car was not delivered in time and was given 4 days after the agreed date. It is further submitted by the complainant that since he is an advocate he had to spend amount while going to the office/attending court proceedings of his clients and so on and so forth and therefore he suffered much for not getting the delivery of the vehicle in time. No document has been filed in Commission to show that in which court he appeared on those 4 days, which matter in those 4-5 days were listed how much amount he spent using the private car/taxi and what pecuniary loss he suffered for 4 days. Therefore this contention is also not well found.
25. However as far as mental tension and harassment and visiting the OP time and again is concerned, definitely there is deficiency and that is only w.r.t. non pecuniary loss. This would be dealt its subsequent paras.
26. As far as not fixing monograms/emblems is concerned, this is again deficiency on the part of OP1 who has not delivered the car on 22/05/2014, and 24/05/2014 and despite the fact OP1 informed the complainant that car is ready for delivery and he may take the delivery of the vehicle. If the vehicle was not fully repaired, it should not have informed the complainant thereby asking him to take the delivery, if the vehicle was not delivery-fit. Delivery was delayed for 4 days and even on that date the monograms/emblems were not fixed. There is no pecuniary loss to the complainant on this aspect as well, but definitely there was deficiency on the part of OP1 in not affixing the monograms/emblems in time.
27. Now coming to the next contention w.r.t over charging the amount by OP1 w.r.t. monograms/emblems. This is also not any issue as whatever monograms/emblems have been fixed by the OP1, the Insurance Company has already reimbursed the same and the complainant has not suffered any pecuniary loss and in any case emblems have been fixed by the OP1 without charging any amount from complainant. Therefore apart from certain delay there is no deficiency on this aspect as well.
28. Now coming on the aspect as to whether OP1 has over charged w.r.t. the entire work/repair as the complainant has submitted that when it visited the OP1, he met Sh. Moolchand who informed him that the approximately cost of all the repair would be 48,000/-. Complainant submits that he has been given bill of Rs. 69,891/- and OP1 has over charged in this regard. Not only he has overcharged, OP2 has also reimbursed lesser amount by Rs. 34,130/- on that account and therefore he had to pay Rs. 35,000/- approximate from his own pocket and therefore there is deficiency on the part of OP1 & OP2. Ld. Counsel for OP1 has argued that the complainant was given rough estimate of 48,000/- and he was informed that final estimate would be told once this surveyor would visit and authorizes workshop as to which workshop would fall within the insurance claim as is being claimed by the complainant and in that process certain amount are not sanctioned by the surveyor and OP1 workshop is bound to charge only those expenses which have been sanctioned by the surveyor and when surveyor visited, he only sanctioned the work w.r.t. 09 items i.e. 1. Roof Top Repair, 2. Back Door Repair, 3. Rear Bumper Repair, 4. Hood Panel Repair, 5. RH Qtr. Panel Repair, 6. RH Rear Door Repair, 7. Glass Wind Shield Repair, 8. Glass Back Door Repair, 9. Front Bumber Repair and work w.r.t. Sr. No. 10-15 i.e. Sr. No. X to XV (RH Fender, RH Frond Door, LH Fender, LH Front Door, LH Rear Door, LH Qtr. Panel) was not sanctioned by the surveyor. It has been mentioned by the OP1, that the work was started with the consent of the complainant who agreed that he would pay the amount of all the bills which will not be sanctioned by the surveyor.
29. The contention of the OP2 is that the vehicle is 4 year old and there are certain depreciation which the Insurance Company has to deduct as per rules and also certain work executed beyond the surveyor report are chargeable & same payment has to be  made by the complainant over and above, the amount sanctioned by the surveyor. The complainant has argued that the demand by the OP1 is on the higher side & otherwise also he was never told that he would be making payment of the additional works. Therefore what is additional work or whether it has been done with consent of the complainant is an issue. The complainant has filed bill as well as estimate and it is written on the estimate/job card that “Sh. Jameel has started the work after talking to the customer. It is also written that the work has been started on the customer level. Whether the said work, was additional work apart from the painting work, or whether it was ancillary work to the painting work is therefore, the sole issue. It could have been easy for both the parties if the opinion of expert would have come on record but since no expert opinion has been placed on record, the Commission has to evaluate the report of the surveyor only. Complainant has argued that the report of the surveyor is not conclusive and in support of that he has relied upon the judgment New India Assurance Company Vs. Pradeep Kumar(2009) 7 SCC page 787. The law and the contention is not in dispute but what are the factors to controvert or support the report of surveyor are not in the file & in absence of any other report apart from the report of surveyor this report only can be considered and therefore the Commission is of the opinion that contention of OP1 & OP2 is well found that the OP2 would only reimburse those amount, which are required to be reimbursed in view of the complaint lodged i.e. w.r.t. paint of the car in this matter. For other work, complainant has to bear the expenses from his own pocket. Similar is the law w.r.t. depreciation and it is always different on the different parts. The contention of complainant is that various different articles have been taken at different slabs for the calculation of the depreciation, but the OP2 in this matter has randomly taken the depreciation to the extent of 50% on all parts. This contention of the complainant is well found. OP2 has not explained as to why he has taken the deprecation on all the articles at the single rate of 50%. He should have not done it and if he has done it, he had to explain it. No reason is explained. Therefore there is certain deficiency on the part of OP2 in this regard.
30. Final result, by observing all such facts is that the extra work apart from the surveyor report is payable by the complainant and OP1 has not committed any deficiency on the part, but there is deficiency on the part of OP2 who has not taken care of taking correct amount on the such articles at depreciated value. Therefore complainant had to pay some extra amount w.r.t. unauthorized deduction in the name of depreciation.
31. Next contention of the complainant is that OP1 & OP2 have suppressed the details of repair work. This contention of complainant is not well found as initial estimate was given, upon which the surveyor visited the workshop, inspected the vehicle and gave its opinion and for all other work which are to be done by the OP1, and whatever repair work has been done is mentioned in the final bill. Therefore even the details of the repair are not given initially. But the same has been mentioned in the bill and which have been accepted by the complainant by writing that the monograms/emblems have not been fixed and he, at that time has not raised any objection either w.r.t. details of work or details of information. Therefore this contention of complainant is not well found. Similarly, the contention of the complainant that OP1 & OP2 have not disclosed the vital information regarding the correspondence between OP1 & OP2 is also not well found. Keeping in view all the facts and circumstances, the deficiency on the part of OP1 and OP2 is summarized as follows:-

• That OP1 retained the car for 4 days despite assurance that delivery of vehicle would be given upto 22/05/14, the OP1 has not affixed monograms/emblems on the car within time and as far as  deficiency on the part of OP2 is not concerned, it has not explained as to how it has deducted 50% depreciation on all articles randomly.

32. The Commission therefore orders as follows:-

• That OP1 would pay a compensation of Rs.10,000/- in all to the complainant towards mental harassment & pain etc, without any interest.
• OP2 would pay Rs.7,000/- to the complainant on account not explaining as to how the depreciation is calculated without an interest.
• The amount would be given by OPs within 30 days & if it is not paid within 30 days of received of Order, interest would be payable by the OPs to the complainant @ 6% p.a. from the date of this order.

Copy of this order be supplied/sent to both the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 01.03.2023.