National consumer disputes redressalcommission new delhi



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Dated:  16.07.2014

ORDER


JUSTICE V. K. JAIN, PRESIDING MEMBER (ORAL)

          The complainant is a rickshaw puller and a member of the appellant Co-operative Bank Ltd.  The complainant had stood as guarantor for one Chandra Shekhar, who had taken a loan of Rs. 50,000/- from the appellant bank on 09.03.1996.  The complainant wrote to the appellant bank on 08.08.2008 claiming excess payment.  Later in December, 2010, when he sought to sell his property and published an advertisement in the local newspaper, the appellant bank objected to the same and threatened to get the property seized.  The complainant asked the bank to furnish details of the repayment of loan, but no such information was provided.  He also approached the District Deputy Registrar of the Co-operative Bank, who also directed to the petitioner bank to furnish the requisite information, but despite the directions, the petitioner bank did not provide the same.  Consequently, the complainant preferred a complaint before the District Forum, alleging deficiency in service on the part of the bank.

(2)     The complaint was resisted by the petitioner bank, alleging that as much as Rs. 86,767/- was due to it from the borrower, it had given concession of Rs. 27,163/- and after taking the balance amount, issued the No Due Certificate to the borrower.

(3)     Vide order dated 25.05.2012, the District Forum directed the petitioner bank to pay a sum of Rs. 10,000/- to the complainant towards physical and mental torturealongwith interest at the rate of 9% per annum and Rs. 5,000/- towards the cost of litigation alongwith interest to that amount at the same rate.

(4)     Being aggrieved with the order of the District Forum, the complainant preferred an appeal before the Maharashtra State Consumer Disputes Redressal Commission. Vide impugned order dated 20.02.2014, the aforesaid Commission dismissed the appeal filed by the petitioner. 

          Being still aggrieved, the petitioner is before us, challenging the orders of the fora below.

(5)     A perusal of the complaint would show that on 28.03.2011, the  complainant wrote to the petitioner bank demanding the details of the rickshaw loan.  The complaint further shows that on the complainant approaching the District Deputy Registrar, he also directed the petitioner bank to provide the details regarding the loan to the complainant, but the bank did not provide the requisite information despite directions of the District Deputy Registrar.  There is no material on record to show that the request of the complainant for providing details was granted by the bank.  There is no material to indicate that the direction of the District Deputy Registrar to provide the requisite information with respect to the loan account was provided to the complainant.  Thus, this is a clear cut case of deficiency in providing service to the consumer. 

(6)     The learned counsel for the petitioner submits that the statement of account and pass book are always available with the borrower/account holder as per the procedure of the bank and therefore, the information sought by the complainant was available with him.  We, however, find no merit in the contention.  Though, the account holder/borrower may have the details available to him in the statement of account and/or the pass book, the same would not be available with the guarantor, since he is not the borrower or the account holder.  The complainant in this case was a guarantor and not the borrower or the account holder.  Therefore, the details of the loan account such as the dates and amount of repayment of the loan were not likely to be available with him.  Had those details been available with the complainant, there would have no necessity for him to write to the bank time and again and also approach the District Deputy Registrar of the Co-operative Bank.  We, therefore, find no merit in the contention that the requisite information was available with the complainant. 

(6)     For the reasons stated above, we find no merit in the petition and the same is hereby dismissed.


..…………………..……

V. K. JAIN, J PRESIDING MEMBER

……………….…………



DR. B. C. GUPTA MEMBER

PSM/6


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 REVISION PETITION NO. 2341 OF 2014

(From the order dated 28.01.2014 in First Appeal No. 220 of 2013 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

WITH IA/3634/2014, IA/3635/2014

(STAY, CONDONATION OF DELAY)

United India Insurance Co. Ltd. Through The Regional Manager, DRO-1, Kanchenjunga Building, 8th Floor, 18, Barakhamba Road, New Delhi- 110001

                                                      …  Petitioner

Versus

Diwan Chand S/o Sh. Hardwari Lal Jain R/o- Ward No. 8, Sardulgarh, District Mansa, Punjab

                                                          …  Respondent

 BEFORE:



HON'BLE MR. JUSTICE V. K. JAIN, PRESIDING MEMBER

HON’BLE DR. B. C. GUPTA, MEMBER       

For the Petitioner

:

Mr. Naveen Kumar, Advocate

 

 

 

Dated:  16.07.2014

ORDER


JUSTICE V. K. JAIN, PRESIDING MEMBER (ORAL)

 

I.A. No. 3635/2014

            For the reasons stated in the application, the delay in filing the revision petition is condoned.

 

R.P. No. 2341/2014

The complainant  Diwan Chand, being the owner of the vehicle bearing registration no. PB 31 G 9819, got the same insured with the petitioner company for the period from 04.03.2011 to 03.03.2012.  The aforesaid vehicle met with two accidents, the first accident taking place on 03.10.2011 and the second accident taking place on 25.02.2012.  On intimation in this regard being given to the Insurance Company, a surveyor was appointed who assessed the damages at Rs. 1,95,113/- for repair of the vehicle after the first accident and at Rs. 39,890/- after the second accident.  All the bills were deposited with the Insurance Company. However, the claim was later repudiated by the Insurance Company vide its letter dated 21.03.2012, on the ground that route permit had not been submitted by the insured.  Being aggrieved from the rejection of the claim, the complainant preferred a complaint before the District Consumer Disputes Redressal Forum, Mansa.        

(2)     The complaint was resisted by the Insurance Company on several grounds including that on the date of the accident, the vehicle did not have route permit to ply the vehicle on road as per the Motor Vehicle Act.  Reliance, in this regard, was placed on the terms and conditions of the policy which, inter-alia, stipulated that the policy covered use only under a permit within the meaning of Motor Vehicle Act, 1998.  Accepting the plea taken by the petitioner, the District Forum dismissed the complaint, vide its order dated 24.01.2013.

(3)     Being aggrieved from the order of the District Forum, the complainant preferred an appeal before the State Consumer Disputes  Redressal Commission, Punjab.  Relying upon the decision of the Hon’ble Supreme Court in Amalendu Sahoo vs. Oriental Insurance Co. Ltd., 2010 CTJ 485 (SC) (CP) and the decision of this Commission in New India Assurance Company Ltd. vs. Narayan Prasad Appaprasad Pathak in (2006) CPJ 144 (NC), the State Commission directed the Insurance Company to pay 75% of the assessed amount to the complainant alongwith Rs. 800/- as salvage value of the damaged vehicle, in case the Insurance company wants to keep the salvage of the vehicle.  

          Being aggrieved from the order of the State Commission, the petitioner is before us, by way of this revision petition. 

(4)     The learned counsel for the petitioner submits that the decision in Amalendu Sahoo vs. Oriental Insurance Co. Ltd. case was in respect of the theft of the vehicle and not in respect of the accident of a vehicle, plying without route permit.  A perusal of the aforesaid decision would show that the vehicle in question was being used as a taxi, though it had been insured for personal use.  Thus, it was being used as a taxi, without any permit for such use.  The vehicle was snatched while it was being used as a taxi, which led to a claim being lodged with the Insurance Company.  The claim was repudiated by the Insurance Company on the ground that the insured had violated the terms of the Insurance policy by using the vehicle as a taxi.  The District Forum upheld the contention of the Insurance Company.  Being aggrieved from the order of the District Forum, the complainant approached the State Consumer Disputes Redressal Commission, which relying upon the decision of this Commission in United India Insurance Co. Ltd. vs. Gian Singh in 2006 CTJ 221 (CP) (NCDRC), directed the Insurance Company to settle the claim on non-standard basis and pay 75% of the assessed amount.  The Insurance Company challenged the order of the State Commission before this Commission by way of Revision Petition.  This Commission rejected the petition of the insurance company which then took up the matter to the Hon’ble Supreme Court.  The complainant contended before the Apex Court that since the vehicle had been comprehensively issued and the case related to the fault of the vehicle and was not a case of third party risk, the breach of the conditions stipulated by the Insurance Company was not germane.  The contention of the complainant/respondent was upheld by the Apex Court, holding that the Insurance Company was liable even assuming that there was a breach of the conditions of the Insurance policy. 

(5)     In the case before this court, the claim lodged by the insured does not involve a third party risk and the insured himself is the beneficiary of the claim.  The accident in which the vehicle got damaged were not attributed to its being plied without a route permit.  Therefore, there was no prejudice caused to the Insurance Company, on account of the complainant not possessing a route permit.  Therefore, in our view, the legal proposition laid down by the Hon’ble Apex Court in Amalendu Sahoo vs. Oriental Insurance Co. Ltd. case would equally apply to the present case.

(6)     For the reasons stated herein above, we find no ground to interfere with the view taken by the State Commission, the same being based upon the binding decision of the Hon’ble Apex Court.  The revision petition is, therefore, dismissed.

         


..…………………..……

V. K. JAIN, J

PRESIDING MEMBER

……………….…………



DR. B. C. GUPTA

MEMBER

PSM/1


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION NO.2346 OF 2014
(From the order dated 24-02-2014 in FA No.995/2012 of Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad)

A. Sri Hari Kumar Raju S/o A. Krishna Murthy Raju R/o Pedda Uppara Pally Village Somala Mandal, Chittor District Andhra Pradesh

                                                                          …..Petitioner

Versus


1.      The Managing Director Anshu Automotives Pvt. Ltd. Previously situated at Nizampet X Roads, Plot No.5, Sy. No.126 Hydernagar, Kukatpally Hyderabad – 500072 Presently situated at Anshu Automotives Pvt. Ltd. D.No.5-1-64/5/2, Ground Floor Vimal Towers, Opp: Govt. Junior College Kukatpally, Hyderabad – 500072

2.      The Managing Director Force Motors Ltd., Mumbai – Pune Road Akrudi, Pune – 411035

3.      The Director ARAI (The Automotive Research Association of India) Sy. No.102, Vetal Hill, Off Pand Road Kothrud, Pune – 411038

4.      The Transport Commissioner Transport Bhavan, Khairatabad Hyderabad – 500082

5.      Sri Durga Motors D.No.9/147-46, Near Park Hotel Reni Gunta Road, Tirupati Chittoor District, Andhra Pradesh

                              …..Respondents



BEFORE:

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER

For the petitioner                   :         Mr. A.V.S. Raju, Advocate



16-07-2014

ORDER

V.K. JAIN, J. (ORAL)

1.      The complainant/petitioner purchased a four wheeler from Anshu Automotives Pvt. Ltd., a dealer of Force Motors Ltd.. The delivery of the vehicle was taken on 15-12-2009. According to the complainants, on taking delivery of the vehicle, he noticed several defects such as failure of brakes, vibration, wobbling and skidding of the vehicle, etc., and the matter was reported to the dealer as well as to the manufacturer. This is also the case of the complainant that he served a legal notice on the dealer as well as the manufacturer on 26-07-2010, pointing out several defects to their knowledge but the said notice was not responded and it rather resulted in another dealer refusing service of the vehicle on 26-05-2011. The vehicle was under limited warranty for three years. Alleging deficiency of service, the complainant/petitioner filed a complaint before the District Consumer Disputes Redressal Forum, Chittoor (for short, the District Forum) against the dealer who sold the vehicle to him, the manufacturer, the Director ARAI (Automotive Research Association of India), Transport Commissioner and M/s. Sri Durga Motors, Tirupati.

2.      The dealer resisted the complaint inter alia on the ground that the vehicle did not have any manufacturing defect and was performing satisfactorily. The manufacturer claimed that the complainant was not a consumer and there was no privity of contract between it and the complainant. On merits, it was alleged that the vehicle was free from any manufacturing defect and the problems alleged by the complainants were due to lack of proper maintenance, improper driving habits, rough road conditions, use of adulterated or impure quality of oil, etc.. Sri Durga Motors also took the plea that there was no manufacturing defect in the vehicle and there was no deficiency on its part in providing services to the complainant.

The District Forum vide its order dated 02-11-2012 directed the manufacturer, M/s. Force Motors and opposite party No.5-Sri Durga Motors to pay a sum of Rs.10,000/- to the complainant on account of deficiency in service. The complaint against opposite parties Nos.1, 3 & 4 was dismissed.

3.      Being aggrieved from the order of the District Forum, the petitioner approached Andhra Pradesh State Consumer Disputes Redressal Commission at Hyderabad (for short, the State Commission) by way of an appeal. Vide impugned order dated 24-02-2014, the appeal filed by the complainant was dismissed by the State Commission, thereby upholding the order of the District Forum. The petitioner does not feel satisfied and is before us by way of this revision petition challenging the orders of the fora below.

4.      A perusal of the reply filed by opposite party No.1 i.e. the selling dealer before the District Forum would show that the warranty clause under which the vehicle was sold to the complainant reads as under:

2. Extent of Warranty: Our obligation under this warranty will be limited to repairing or replacing, free of charge such parts, which in our opinion are defective, when the vehicle is brought to our dealer’s workshop within warranty period and if the terms & conditions below are satisfied. Our decision as to whether the part is defective and/or the cause of defect is manufacturing deviation/defect shall be final & binding.”

 

5.      A perusal of the reply filed by the manufacturer would show that out of 12 services stipulated by the manufacturer, the complainant did not avail 7 services i.e. service No.1, 4, 6 & 9 to 12. Clause 13 of the terms & conditions of warranty as quoted in the reply of opposite party No.1 reads as under:



13. The Warranty claim will not be entertained unless all services up to date of the claim, have been performed on the vehicle at our Authorised dealers or service cum part dealers workshop as the case may be.”

          The case of the respondents is that since all the services were not availed at the authorised dealers or service dealers of the manufacturer, no claim from the complainant could be entertained.

6.      It is quite evident from a perusal of the warranty clause that in a case of a complaint alleging manufacturing defect, it was for the manufacturer to decide whether the part in question was defective or not and/or the cause of defect was manufacturing deviation/defect or not, and such decision was binding upon the purchaser. Since the manufacturer, Force Motors was of the view that there was no manufacturing defect in the vehicle or in any part used in it, the aforesaid decision is binding upon the petitioner and he cannot claim replacement of any part on the ground that it had a manufacturing defect in it.

7.      Admittedly, services Nos.1, 4, 6 & 9 to 12 were not availed by the complainant at the authorised workshop/dealer of the manufacturer. As regards service No.1, 4 and 6, there is no explanation from the complainant as to why they were not availed at the authorised workshop/service centre of the manufacturer. As regards services Nos. 9 to 12, the learned counsel for the complainant submits that the authorised workshop, considering the legal notice sent by the complainant refused to service the vehicle and, therefore, the complainant cannot be blamed for not availing the said services. However, there is no material to show that any notice was sent by the complainant to the manufacturer or to the concerned workshop/service centre alleging therein that they had refused to service his vehicle on the complainant approaching them in this regard. Considering the fact that the complainant had already served a legal notice upon the opposite parties, he would not have been silent, had the authorised service centre of the manufacturer refused to service his vehicle and would certainly have complained in writing, not only to the concerned service centre but also to the manufacturer. In the absence of any such complaint, we cannot accept the contention of the complainant that the service centre had refused to undertake the service of his vehicle. Since the services Nos.1, 4, 6 & 9 to 12 were not availed by the complainant from the authorised workshop/service centre, it is quite obvious that he had been getting the vehicle serviced/repaired at workshops other than the authorised service centres/workshops of the manufacturer. Therefore, in view of clause13 of the terms & conditions of warranty, he is not entitled to raise any claim against the manufacturer of the vehicle.

7.      On merits also, the State Commission has gone into each and every defect claimed by the complainant and has found that none of them could be said to be a manufacturing defect. The State Commission in taking this view also took into consideration the expert report submitted by none other than the complainant. We have gone into the reasoning given by the State Commission in this regard. For the sake of brevity, we are not reproducing the reasoning given by the State Commission for taking the view that the aforesaid defects were not manufacturing defects. Suffice it to say that in our opinion the defects pointed out by the complainant cannot be stated to be manufacturing defects so as to justify the replacement of any part from the manufacturer.

For the reasons stated herein above, we find no merit in the revision petition and the same is hereby dismissed.

..…………………………..
(V.K. JAIN, J.)
PRESIDING MEMBER

……………………………..


(DR. B.C. GUPTA)
MEMBER
rk.3

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 




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