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Anil Goyal v/s New India Assurance Co. Ltd. & Other

    Appeal No. 734 of 2009

    Decided On, 04 October 2021

    At, Madya Pradesh State Consumer Disputes Redressal Commission Bhopal

    By, MEMBER

    For the Appellant: Deepesh Shukla, Advocate. For the Respondent: R1, Pradeep Nighoskar, R2, Aditya Sharma, R3, Mahendra Dulani, Advocates.

Judgment Text

Dr. Monika Malik, Presiding Member.

1. This appeal by the complainant/appellant is directed against the order dated 18.3.2009, passed by the District Consumer Disputes Redressal Commission, Jabalpur (for short ‘the District Commission’), in complaint case No. 100/08, whereby the complaint filed by the complainant has been partly allowed and the opposite parties/respondents No. 2 and 3 were directed to pay compensation of Rs. 20,000 to the appellant/complainant along with cost of Rs. 1,000, within two months, failing which interest @ 7% per annum was awarded on the aforesaid amount from the date of order till its realisation.

2.Briefly put the facts of the case, as narrated by the complainant, are that the complainant had purchased a Hyundai Terracan vehicle for a sum of Rs. 19,19,000, in the year 2004. The opposite parties had advertised that the vehicle had numerous safety features, including air bags, which were said to deploy if the vehicle suffers a collision, along with anti-lock brake system, side impact protection and safety cell construction. On 28.5.2007, the complainant’s vehicle met with an accident and it dashed against a tree. It is alleged that the vehicle did not show any of safety features and the air bags of the subject vehicle did not deploy. The complainant/appellant sustained injuries and the vehicle suffered extensive damages. The complainant alleged that the first estimate to repair the vehicle was given on 17.6.2007 and the second estimate was given on 6.8.2007 by the opposite party No. 2. The complainant had to give Rs. 1 lakh in advance, to opposite party No. 2, as he was not starting the repairing work, without any advance. It is alleged that the opposite parties took two months time to prepare the estimate and the vehicle was not repaired even after eight months of the accident. The complainant finally got his vehicle on 21.1.2008 and thereafter, the engine of the vehicle ceased on 26.1.2008. The opposite party No. 2 again raised a bill for Rs. 2.60 lakh for its repairs. Neither the Insurance Co. was reimbursing the loss nor the opposite parties No. 2 and 3 were giving the vehicle, after repairs to him. Alleging deficiency in service on part of the opposite parties, the complainant filed a complaint, seeking relief.

3.The opposite party No. 1, resisted the complaint stating that a Surveyor was deputed to assess the loss and submitted the estimate for repairs, on the basis of which an analysis report was prepared. Thereafter a net damage to the extent of Rs. 4,12,654 was calculated. The amount was paid to the complainant and he had obtained it in full and final satisfaction of his claim on 11.2.2008. The complainant has got the bills prepared falsely with an intention to get more money from the Insurance Co. The complainant does not deserve any relief.

4.The opposite party No. 2 denied the allegations of the complainant and stated that the material facts have been suppressed in the complaint. When the vehicle was brought to him the air bags were found to have deployed. The repair took time because of non-availability of air bags. The repair was finally completed and the complainant took delivery of his vehicle. The complainant was running the vehicle with no oil indication and therefore, its engine got ceased. Therefore, another estimate for the repairs was prepared, which was approved by the complainant.

5.Opposite party No. 3 in their reply to the complaint made a submission that the car was equipped with Supplemental Restraint Air Bag System (SRS). It will deploy only when frontal impact is felt and thereafter it will need replacement. In the instant case, air bags were replaced as per invoice dated 21.12.2007, which shows that they were deployed. The terms and conditions in reverse of the repair order clearly mention that the opposite party cannot be held liable for any delay in delivery or carrying out repairs or/in procurement of spare parts for reasons beyond ‘Prestige Hyundai’s’ control.

6.Heard. Perused the record.

7.Learned Counsel for the complainant/appellant argued that the impugned order is erroneous, as it ought to have allowed the entire claim, as claimed by the complainant. The District Commission failed to appreciate that the respondents took two months to prepare estimate for repairs of the vehicle and 8 months for repairing it. Moreover, no backup vehicle was offered to the complainant for the above mentioned duration. He further argued that the air bags of the subject vehicle did not deploy, which amounts to deficiency in service, against the injury sustained by the appellant. He argued that the dealer charged for repairs of the air bags when it did not deploy, which further amounts to deficiency in service on part of the respondents No. 2 and 3. He argued that the appellant deserves to be compensated because only after five days of the repair, the engine of the subject vehicle was ceased. Therefore, claim of Rs. 2,60,000 by the dealeri.e.respondent No. 2, deserves to be rejected. He further argued that the appellant deserves the entire claim amount of Rs. 14,05,000.

8.Learned Counsel for respondent No. 1 argued that the complaint filed by the complainant is an afterthought, since he had received the claim amount of Rs. 4,12,654 towards full and final settlement of his claim. Surveyor had timely prepared the estimate and subsequently analysis sheet was prepared by the authorised officials and thereafter the complainant/appellant’s claim was settled. There is no deficiency in service on part of respondent No. 1.

9.Learned Counsel for respondent No. 2 argued that as against appellant’s allegation that the air bags of the subject vehicle were found to have deployed. The respondent No. 2 had demanded advance from the appellant to enable him to buy parts. The repairs took time because of non-availability of air bags, which were required to be replaced in the complainant’s vehicle. The repair work was completed on 21.12.2007. The complainant, however, took delivery of the vehicle on 18.1.2008, without making any payment and he is trying to device methods to escape from his liability to make the payment. He further argued that the reason for ceasure of the engine was running of vehicle on no-oil indication. Respondent No. 2 cannot be held responsible for that.

10.Learned Counsel for respondent No. 3 argued that the insured car was surveyed in June 2007 and the dealer started to carry out the repair work on 14.9.2007. The only delay, which was beyond control, was due to procurement of air bags for which respondent No. 3 cannot be held liable. He argued that the relief claimed by the appellant is exaggerated. Since the complainant obtained relief from the Insurance Co., he could not lay a claim on the respondent regarding reimbursement of balance amount. In support of his contention, learned Counsel has relied upon the judgment of Hon’ble National Consumer Disputes Redressal Commission in the case ofA.B. Motors Private Ltd.v.Admiral Impex Pvt. Ltd.,II (2010) CPJ 317 (NC). He also argued that on 27.1.2008, the complainant reported problems in starting of the vehicle, engine noise and battery discharge. Accordingly, a repair order was opened vehicle it was found that the engine has ceased due to failure of oil pump and was recommended for overhaul. Pursuant to an estimate and approval from the complainant, the dealer concerned on 2.2.2008 ordered parts required for engine overhaul. The complainant also asked to replace the generator assembly and accordingly 2nd estimate for the same was prepared. The above referred problem was regardless of accident and the vehicle was not suffering from any manufacturing defects. Learned Counsel relied on judgment dated 27th April, 2010 passed by the National Commission in the case ofMaster M.A. Gadaffi and Othersv.Mercedes Benz India Ltd. and Another,III (2010) CPJ 87 (NC), and judgment dated 5.1.2010 passed by the National Commission in the case ofM/s. Kloeckner Desma Machinery Pvt. Ltd. and Othersv.M/s. Daimler Chrysler India Pvt. Ltd. and Another,to support his submissions.

11.We have carefully perused the evidence available in the record of the District Commission, as also the impugned order. The complainant/appellant has categorically alleged that at the time of the accident the air bags of the subject vehicle were not deployed. We, however, find that the repair estimate and the survey report show the air bags in the list of damaged/distorted parts. We, therefore, observe that the District Commission has given a correct finding in this regard and has found that the air bags of the subject vehicle were deployed and thereby held no such deficiency in service on part of the opposite parties No. 2 and 3.

12.We further observe that respondent No. 1 in their reply and submissions has categorically stated that they had paid a sum of Rs. 4,12,654 to the complainant towards settlement of the insurance claim, which was obtained by the complainant in full and final satisfaction of his claim. The complainant has not challenged the submissions of the respondent No. 1, rather he has withheld this fact at the time of filing of the complaint. Annexure D-1, in the record of the District Commission, confirms this fact that the appellant had received the insurance claim amount in full and final satisfaction and discharge of all claim in present and future. Therefore, in view of the above, the respondent No. 1-Insurance Co. cannot be now held deficient in service, since they have already discharged from their responsibility of giving the claim amount to the insured.

13.As regards appellant’s allegation that engine of his vehicle ceased on 26.1.2008, we find that it has rightly been held by the District Commission that it was a different event, as no allegation regarding the engine suffering from any defect was made by the appellant earlier. It is undisputed that the intimation regarding engine overhaul and regarding replacement of the Generator Assembly (for which the appellant had requested), was conveyed to the appellant on 10.3.2008. The complainant had responded and had agreed to make payment in this regard. It is unfitting to comment on not providing a backup vehicle to the complainant, when the record does not show that he had made any request in the aforesaid regard.

14.In view of the foregoing discussion, we reach at a conclusion that the District Commission has considered and discussed all aspects of the matter in detail in the impugned order and has arrived at a proper conclusion. We observe that the respondents have maintained that the delay in the repairs occurred due to non-availability of spare parts. It is submitted by the respondents that ‘Prestige Hyundai’ cannot be held liable for any delay in delivery or carrying out repairs for the reasons beyond their control. The District Commission has rightly held that it does not appear that the condition was earlier communicated to the complainant/appellant. Having said so, we, however, find th

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at the compensation awarded to the appellant to the tune of Rs. 20,000 seems to be less, considering the aspect that the complainant had suffered for eight months because of non-availability of his vehicle. Therefore, after considering the evidence available in the record of the District Commission, we conclude that the appellant deserves to be compensated adequately, due to the delay, which occurred in the repair of the accidental vehicle. 15.Therefore, we enhance the compensation, as has been awarded by the District Commission and modify the impugned order. We hereby direct that respondents No. 2 and 3 jointly or severally to pay a sum of Rs. 40,000 to the appellant, in place of Rs. 20,000, as has been awarded by the District Commission. Award of the District Commission regarding cost is maintained. In addition, the appellant also deserves cost of this appeal, which is quantified at Rs. 10,000, to be paid by the respondents No. 2 and 3. The aforesaid amount is to be paid within two months from the date of this order or else it will carry interest @ 7% per annum from the date of impugned order till its realization. 16.With the aforesaid modifications and observations, this appeal stands disposed of.