ASHOK KUMAR vs FRONTIER AUTOWORLD PVT. LTD. & 3 ORS

The present revision petition has been filed against the judgment dated 03.08.2016 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (''the State Commission'') in First Appeal no. 615 of 2014.

The facts of the case as per the petitioner/ complainant are that the petitioner had purchased a car from respondent no. 3/ opposite party No.3, i.e., World Class Automobiles insured by respondent/ OP no. 2, i.e., HDGC ERGO General Insurance. Respondent nos.1, 3 and 4/ O.P. Nos.1, 3 and 4 were deleted from the memorandum of parties in the appeal as per the statement of counsel for the petitioner/ appellant. It was alleged that on 19.05.2011 the bottom of the car hit a speed breaker and pit and as a result the engine oil leaked. The petitioner gave information to World Class Automobiles Private Limited and was advised to take vehicle to Respondent no. 1/ O.P.No.1, i.e., Frontier Autoworld Pvt. Ltd., an authorized agent of respondent no. 4/ O.P.No.4, i.e., Volkswagen Group Sales India Pvt. Ltd. After inspection he was informed that the cost of repair would be approximately Rs.20,000/-. On 23.05.2011 it was further informed that the self-starter would have to be replaced and the cost would be around Rs.18,000/- to Rs.20,000/- approximately. The petitioner asked respondent no. 4/ O.P.No.4 to bear the expenses of the same because the car was within the warranty. On 03.06.2011, the respondent no. 1/ O.P.No.1 informed that self-starter was not available and could be replaced only as and when it was received from Germany. In the meantime Rs.1000/- would be reimbursed per day. After a few days when he went to take delivery of vehicle it was told by officials of respondent no. 1/ O.P.No.1 that the engine had to be opened and it would cost Rs.1.00 lakh. The petitioner contacted respondent no. 2/ O.P.No.2 i.e. insurance company to pay the amount, but, it refused to reimburse the amount because the vehicle was within the warranty period. Due to non-availability of the vehicle, he was forced to hire a taxi @ Rs.1000/- per day from 20.05.2011. It was prayed that the respondents may be directed to refund the same along with Rs.50,000/- for mental harassment etc. and Rs.50,000/- for loss of his business. Petitioner has prayed that they be also directed to replace the vehicle if it was beyond repairs.

The respondent no. 1/O.P.No.1 filed their reply controverting his averments and alleged that the car had suffered damaged due to its mis-handling by the petitioner/complainant. It was brought to the workshop on 21.05.2011 with the problem of chamber damage. It was not liable to pay any amount qua loss of business, hiring taxi, etc. because there was no fault on its part. Hence, it was not responsible to replace the starter etc.

The respondent nos. 2 and 3/ O.P.Nos.2 and 3 were proceeded ex parte before the learned District Consumer Disputes Redressal Forum, Gurgaon (the "District Forum"). Later on respondent no.1/ O.P.No.1 was also proceeded t ex parte on 28.05.2012.

Respondent no. 4/ O.P.No.4 alleged that there was no manufacturing defect in the vehicle in question and it was not liable to pay any damage caused due to accident. It was the responsibility of the insurance company to pay the same.

The District Consumer Disputes Redressal Forum, Gurgaon, (''the District Forum'') vide their detailed and well-reasoned order dated 29.05.2014, while partly allowing the complaint observed as under: 5. We have heard the parties and appraised the material on record carefully. In view of the facts and circumstances discussed above we are of the considered opinion that the complainant while driving his Car on 19.05.2011 in fact rashly and negligently has struck it against speed-braker and a pot hole on the road causing its chamber/oil sump damaged due to which its engine oil has leaked but still without taking any due care and caution it was driven by him due to which vehicle became out of order and has to be towed away to the workshop of OP-1 on 19.05.2011 on the instruction of OP-3 dealer from Panchgaon Chowk where the alleged accident took place to the OP-1 workshop situated at Ardee City, Sector 52-A, Wazirabad, Gurgaon. Consequently, OP-1 has intimated OPs as well as Insurance Company and its Job Card was opened on 21.05.2011, repaired the oil chamber/oil sump. They have raised the Invoice dated 13.06.2011 for repair with Bill of Rs.17,503/-(OP-4C) out of which the Insurance Company as per Survey Report has sanctioned and paid a sum of Rs.10,424/- as per email dated 29.07.2011 (OP-4D) and the balance was paid by the complainant.

However, the dispute arose between the parties when OP-1 workshop after repairing oil sump/chamber found that the vehicle is unable to start as its Self Starter was also found to be out of order. Consequently, they have placed an order from the Company and asked the complainant to avail Taxi charges of Rs.1000/- per day till repair of the vehicle vide their email dated 03.06.2011 (OP-4F) it will be reimbursed. On receipt of the Self Starter they have repaired the vehicle and informed the complainant vide email dated 15.06.2011 and asked the complainant that Taxi services provided to him is now de-activated and asked him to submit taxi Bill for reimbursement of the same (OP-4G) which means he was entitled to Taxi charges by informing him that as service part (Self Starter) is not available with them since 27.05.2011, thus, he can avail taxi services @ Rs.1000/- per day till time they received part which would be reimbursed. Thus, he was entitled to get this amount from 27.05.2011 to 15.06.2011 i.e. for 20 days and he is entitled to reimbursement of Taxi charges of Rs.20,000/- only but he has submitted the Bills wrongly for the period 25.05.2011 to 15.06.2011 @ Rs.1150/- per day instead of Rs.1000/- per day as allowed by OP-1. Thus, he was entitled to only Rs.20,000/- instead of Rs.25,300/- which he has not received till date nor adjusted in Bill and thus, he is entitled to it from OP-1.

OP-1, however, later on has replaced Self Starter of the vehicle being within Warranty free of charges as per admission of the OP-4 manufacturer vide Invoice dated 27.07.2011 for Rs.14,163/- but when the vehicle was started with the help of Self Starter there was noise coming out of the engine of the Car. OP claimed that this noise could not be checked at the time of receipt of the vehicle because at that time there was no engine oil in the Car. The engine noise however, clearly indicates that the vehicle was driven without engine oil after the oil sump was broken and thus, the complainant negligently mishandled the Car causing opening of the engine and its repair. Consequently, the complainant was also informed and written estimate for the repair of the engine by the OP-1 was also given to the complainant i.e. (C-5) with estimate of Rs.2,70,000/- on 26.05.2011 and on receipt of the approval of the complainant necessary overhauling of the engine and repair was conducted. Even the complainant has paid in advance a sum of Rs.50,000/- vide Receipt dated 24.06.2011 (C-6) as a token of acknowledgement of the same. The vehicle was repaired and was ready for delivery on 27.07.2011 (OP-4K) and vide Invoice of even date Bill of Rs.2,62,440/-was raised (OP-4L). OPs, however, refused to pay the Bill. Consequently, complainant has paid Bill by paying a sum of Rs.1,95,000/-vide Receipt dated 15.08.2011 (OP-4MA) and Rs.22,519/0 vide Receipt dated 16.08.2011 (OP-4M) and took the delivery of his Car on the same day i.e. during proceedings of this complaint. As per claim of the OP without any objection or demur though they have given 10 % discount on labour charges worth Rs.2,000/-. The complainant however, alleged that in fact it is a manufacturing defect in the engine and thus, he is entitled to its replacement free of costs from OP-1, 3 and 4 and refund of the amount paid by him. However, as discussed above the failure of the engine is consequential result of accident which took place on 19.05.2011 when he has driven the vehicle rashly and negligently which has caused striking of the Car from below with the speed-braker as well as pot hole on the road causing leakage of oil from its oil sump/chamber but without taking due care and caution he has driven it without engine oil causing damage to its engine which has finally caused overhauling of the engine. On the other hand, complainant failed to prove his case by producing any expert report that it was a manufacturing defect. Thus, as accidental damage is not covered under the Warranty the complainant is not entitled to replacement of the engine from the manufacturer or the vendor /workshop as they have relationship on principal to principal basis and if it would have been resulted due to accident he could have claimed damage from the Insurance Company which he failed to claim. Consequently, there is no merit in the case of the complainant that he is entitled to relief claimed by him of replacement of engine or refund of overhauling charges from the OPs. In fact, it is settled proposition of law that one cannot take benefit of his own wrong.

However, the complainant as discussed above is entitled to refund of Rs.20,000/- with Interest @ 9 % p.a. from the date of filing of the complaint till realization from OP-1 & 4. The complainant is also entitled to litigation expenses of Rs.5,000/-. Hence, the complaint is decided accordingly.

Dissatisfied by the order of the District Forum, the petitioner/ complainant filed an appeal before the State Commission but only against OP no.2, i.e., HDGC ERGO General Insurance Co. The State Commission while dismissing the appeal held as under: " This argument is of no avail. As per facts mentioned above, it is clear that bottom of the car hit the speed breaker due to which chamber was damaged and there was oil leak. Even thereafter he drove the car continuously due to which further damage was caused. It is clear that damage was caused due to rash and negligent driving of the car by the complainant. He has not taken proper care of the vehicle and the damage was not covered under the warranty. Learned District forum rightly opined that the complainant cannot take the benefit of his own wrong. When the oil had leaked he should have stopped the car there and then. Findings of learned district Forum are well reasoned based on law and facts and cannot be disturbed. Resultantly appeal fails and the same is hereby dismissed".

Hence, the present revision petition.

I have heard the learned counsel for the petitioner. Learned counsel for the petitioner Mr Sushant Chaudhary has contended that while he admits that the accident had taken place due to the careless driving of the petitioner, the District Forum and the State Commission had over looked the evidence and pleadings on record and denied him proper and reasonable compensation for his heavy financial loss. He further contended that the District Forum and the State Commission had erred in holding that accidental damages are not covered by warranty, and hence, he was not entitled for replacement of the engine from the manufacturer. He contended that the lower fora should have passed the order against the insurance company directing them to pay him the amount spent on repair of the engine of Rs.2,62,000.

I have carefully gone through the record. In the State Commission, the petitioner, i.e., the Appellant in FA no. 615 of 2014 had got OP nos. 1, 3, 4 deleted from the memo of parties, i.e., Frontier Autoworld Pvt. Ltd., as OP no. 1, World Class Automobiles Pvt. Ltd., as OP no.3 and Volkswagen Group Sales India Pvt. Ltd., as OP no.4. However, he has included them in the memo of parties in the revision petition. Having given up the claim against the same he cannot now again seek damages against them. As per the complaint of the petitioner, the complainant was driving the said vehicle on 19.05.2011 at "Pachgaon Chowk, suddenly a speed breaker and dig came, due to this chamber of the said vehicle was broken/ cracked and the engine oil was leaked". From this it is clear that the accident had been caused due to his own fault and careless driving. It is also evident from the record of the lower fora that OP no. 1 had received the car for accidental repair. The car could not be repaired free of cost under warranty for the accidental repair and they raised an invoice for Rs.17,503/-. The same was claimed from the insurance company. The insurance company paid an amount of Rs.10,424/- against the said invoice. Thereafter the respondent no. 1/ OP no. 1 had found that self-starter was not working and replacement of the same free of cost under warranty and also agreed to pay Rs.20,000/- towards taxi charges. The petitioner refused to take same. The District Forum in their order have directed that OP no. 1 is only entitled an amount of Rs.20,000/- with interest @ 9% per annum from the date of filing the complaint till realisation from OP 1 to 4. The State Commission as also the District Forum have held that the engine of the car was damaged because when the chamber of the vehicle was damaged the oil leaked out and the car was then driven dry due to which the engine got damaged. The engine was not damaged due to any manufacturing defects. Hence, the petitioner cannot claim that it should have been repaired free of cost under warranty. Regarding his claim against the insurance company, nowhere in his complaint has he mentioned that he had ever preferred a claim against the insurance company for Rs.2,62,440/- the expenditure incurred on overhauling the engine. The District Forum has correctly came to the conclusion that the " accidental damage is not covered under the warranty, the complainant is not entitled to replacement of the engine from the manufacturer or the vender/ workshop................ , and if it would have resulted due to accident he could have claimed damage from the insurance company which he failed to claim ". Yet he has alleged that there was deficiency in service on the part of the insurance company in not giving the compensation for the expenditure incurred on the repair of the engine. However, as per the complaint, as also the documents on record there is no evidence that he had ever preferred a claim against the insurance company for the same nor any evidence to show that the insurance company have repudiated the said claim.

In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs.