Ms. Sunita Sharma, Presiding Member
1. Present appeal is filed against order dated 5.12.2019 passed by learned District Consumer Commission, Una camp at Hamirpur in consumer complaint No. 114/2017 titled Suresh Kumar v. Managing Director M.S Competent Automobiles Pvt. Ltd. & Anr.
Brief facts of consumer complaint:
2. Brief facts of the case are that complainant is owner of vehicle bearing No. HP-84-1330, which was duly insured with opposite party No. 2. It is pleaded that vehicle suffered damages during the cloud burst on 6.8.2017. Complainant handed over the vehicle for necessary repair to opposite party No. 1 which is authorised service station. It is averred that Opposite party No. 1 not repaired the vehicle properly and kept it in the workshop w.e.f. 9.8.2017 to 15.9.2017. Thereafter, complainant issued legal notice to opposite party No. 1. Then opposite party No. 1 handed over the vehicle and charged Rs. 19,605 and Rs. 1,000 as insurance charges. Complainant has taken cashless policy of the Maruti and opposite party No. 1 is also authorised service station so charging of amount for repair is deficiency in service on behalf of opposite parties and also unfair trade practice. With these averments prayer has been made to return the repair charges of Rs. 19,605 and to pay compensation of Rs. 50,000 for harassment.
3. Opposite party No. 1 resisted and contested the complaint by filing reply. On merits, it is admitted that vehicle was brought to the opposite party No. 1 for repairs but it is denied that there is deficiency in service on behalf of opposite party No. 1. It is submitted that when vehicle was brought job card was prepared and all the repairs needed were duly submitted to opposite party No. 2. Opposite party No. 2 also sent his surveyor and allow the repairs of certain parts, which were carried out by opposite party No. 1 on approval of opposite party No. 2. Vehicle was brought to the workshop on 9.8.2017 and as per the surveyor’s report repair was affected on 12.8.2017 and after repair complaint was informed but complainant has not taken the vehicle. It is further submitted that complainant was informed that in case he wanted to affect more repairs then he has to pay additional payment. Said vehicle was handed over to complainant in running condition. If there is any grievance of complainant then that is against opposite party No. 2 and there is no liability of opposite party No. 1 and opposite party No. 1 has no deficiency in service. With these averments prayer has been made for dismissal of the complaint.
4. Opposite party No. 2 was duly served but did not appear to contest the complaint before learned District Commission so proceeded against ex parte vide order dated 11.8.2018.
5. Thereafter, complainant and opposite party No. 1 adduced the evidence in support of their respective claims.
6. Learned District Consumer Commission allowed the complaint and directed opposite party No. 2 to pay Rs. 19,605 i.e.repair charges to the complainant along with 9% interest from the date of filing of the complaint till its realisation. Further, Opposite parties No. 1 and 2 are jointly and severally directed to pay compensation of Rs. 15,000 on account of mental pain, harassment and agony and Rs. 5,000 towards litigation costs.
7. Feeling aggrieved against order passed by learned District Commission, opposite party No. 2 filed present appeal before State Commission.
8. We have heard learned Advocate appearing on behalf of appellant on merits and we have also perused entire record carefully.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No. 1 with reasons:
10. Learned Counsel for appellant/Insurance Company has argued that Insurance Company has immediately deputed surveyor, when the vehicle was taken to the respondent No. 2 for repair, who submitted his report and vehicle was repaired on the basis of loss assessment so made by the Surveyor. Surveyor has assessed loss/damage to the tune of Rs. 5,156 only and necessary repairs were affected. Learned Counsel for appellant/Insurance Company has further argued that no notice has ever been served upon appellant/Insurance Company by the Commission below. Thus, order dated 11.1.2018 passed by learned Commission below, whereby Insurance Company has been proceeded ex parte is bad and unsustainable in the eyes of law. Learned Counsel for appellant has further argued that it was clarified by respondent No. 2/opposite party No. 1 to respondent/ complainant that in case he wants some additional repairs, then those can be affected on the payment of additional amount. Therefore expenditure spent upon additional repairs beyond the scope of insurance policy is not legally payable.
11. None appeared on behalf of respondents despite service.
12. We have perused the record file and order dated 11.1.2018. Summons were issued to the appellant/ Insurance Company at the address given in the complaint and RAD was not received back, therefore, it was presumed by the learned Commission below that Insurance Company was duly served. Learned Commission below has rightly presumed that appellant was served since the address of the appellant is same in the memorandum of appeal and appellant did not choose to appear before the Commission below to defend the case. Moreover the appellant has not prayed for setting aside the ex parte order and date of knowledge of ex-parte order has also not been mentioned in the appeal. Moreover, order dated 11.1.2018 has not been challenged. Therefore, the arguments of the learned Counsel for appellant is rejected.
13. It is not disputed that job card was prepared on 9.8.2017 Annexure-R4 annexed with the reply of the respondent No. 2 and estimate repair of Rs. 20,000 was given. It is also not disputed that surveyor was also deputed on 12.8.2017 and whole work as per requirement was completed as per sanction given by appellant/Insurance Company to the surveyor. Appellant/Insurance Company is relying upon the report of Surveyor, but no report whatsoever has been filed by appellant before this Commission also. Therefore, adverse inference is to be drawn against the appellant. The appellant has relied upon surveyor report to show its bona fide, but no such surveyor report has been filed or placed before the Commission below and argument addressed by the learned Counsel for the appellant that learned Commission below has gravely erred in allowing the complaint by awarding a sum of Rs. 19605 and Rs. 1,000 as insurance charges is rejected and finding to that extent is affirmed.
14. It is nowhere stated by the respondent No. 2 here in this appeal that complainant has insisted for some additional repairs and it is case of additional repairs, that a sum of Rs. 19,605 has been charged from the complainant. The vehicle was handed over to the claimant on 15.09.2017, which is evident from the payment receipt given to the complainant and in between 12.8.2017 to 15.9.2017 there is no correspondence between respondent No. 2 and claimant for charging additional money. Meaning thereby that Rs. 19,605 has been charged from the complainant for doing the work as per requirement and was completed on 12.8.2017, which is admitted by appellant/Insurance Company also.
15. It is admitted case of the parties that surveyor was appointed by the appellant/Insurance Company and after thorough examination of the vehicle, it was repaired as per loss assessment made by the surveyor and when the vehicle was brought, job card was also prepared and all needed repairs were duly submitted to the appellant/opposite party No. 2. On the perusal of the documents, it is also clear that vehicle was purchased by the complainant from respondent No. 2, who is authorised dealer of the Maruti car and complainant has taken comprehensive insurance policy from Marut
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i itself and was entitled for cashless repair. Vehicle of the complainant was insured with the appellant and despite cashless insurance policy, complainant has to made payment of Rs. 19,605, to respondent No. 2, which amounts to unfair trade practice and deficiency in service. There is no merit in the appeal and same deserves to be dismissed. In view of above stated facts point No. 1 is decided accordingly. Point No. 2: Final Order 16. In view of findings upon point No. 1 above, appeal is dismissed with costs of Rs. 3,000. Certified copy of order be sent to learned District Commission forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Appeal dismissed.