JAIDEV SHARMA vs WHEEL WORLD

THIS order will dispose of both the above titled appeals as these are cross appeals filed against the Order dated 25th August, 1992 passed by the State Consumer Disputes Redressal, Commission. Haryana at Chandigarh. Shri Jaidev Sharma Appellant in F.A. No.185/92 and Respondent in F.A. No. 375/93 had filed a complaint before the State Commission Haryana arraying M/s. Wheel World, Staff Road, Ambala Cantt, Wheels World. P.B. No. 2224, Bangalore and United India Insurance Co. Ltd., Amballa Cantt., as Opposite Party Nos. 1 to 3 respectively. The Complainant had purchased one Montana (Diesel) Car manufactured by Sipani Automobiles Ltd., for Rs. 1,28,000/- From Opposite Party No. 1 who is the Dealer in that car on 6.7.1990. The car was insured with Opposite Party No. 3. United India Insurance Co. Ltd. on 17th September, 1990 the car suddenly stopped on the road and did not start. It was taken in a truck from Rohtak to the premises of Opposite Party No. 1 at Amballa Cantt. for necessary repairs on the same day. However, for well-nigh three months the said car could not be repaired despite repeated entreaties of the Complainant. Unfortunately, fire broke out in the show-room of Opposite Party No. 1 on 11th December, 1990 and the vehicle was virtually completely burnt down. Thereafter, the Opposite Party No. 1 asked the Complainant to complete the formalities regarding the insurance claim and despite his earnest efforts to have the matter finalised the same could not be done for about one year. Thereafter, on 29th January,1992 the Complainant received a letter from the Insurance Company-Opposite Party No. 3 asking for further documents which were supplied. However, because of the back of cooperation by the Oposite Party No. 1 no redress was made available to the Complainant. After waiting for well-nighone year and six months, from the date of the delivery of the vehicle to Opposite Party No. 1, the Complainant filed the complaint before the State Commission for relief. He claimed Rs. 1,28,000/- as the costs of the car plus loss of accessories, expenses and compensation for mental harassment etc. The total claim was made to the tune of Rs. 1,87,000/-.

IN the counter filed by the Opposite Party Nos. 1 and 2 some preliminary objections were raised but these were not seriously pressed before the State Commission. On merits the sale of the car to the Complainant was admitted and also the fact that on 17th September, 1990, the vehicle was left with the Opposite Party No. 1 for repairs. The Complainant was informed about the serious defects in the engine and assurances were held out to do the needful and delay was sought to be explained on the ground of short supply of vehicle''s spare parts. The liability was sought to be shifted on the shoulder of the Insurer. The liability was attempted to be evaded on the ground that the vehicle was delivered to Opposite Party No. 1 after the expiry of period of warranty. It was admitted that the fire broke out in the pemises of the Opposite Party No. 1. It was pleaded that because of the defective engine, it was removed from the body, the same escaped the damage while the rest of the car was burnt down. It was the plea that the price of the said engine assembly is Rs. 37.000/- and were ready and willing to delivery the same over to the Complainant. On these grounds responsibility was evaded by the Opposite Party No. 1 while virtually making no valid averment on behalf of the Opposite Party No. 2. In essence, the burden was sought to be passed on to Opposite Party No. 3 i.e. the Insurer. In the counter filed by the Insurance Company substantial parts of the complaints were admitted while asserting that as Insurer they have done the needful. It was stated that immediately on receipt of the information in regard to the damage to the vehicle by fire, the Insurer deputed Shri K.C. Gupta, Surveyor and Loss Assessor to determine the loss. From his report it was found that the engine assembly of the car was separated from the body and the same was not affected at all by the fire. Plea is that requisite documents were not supplied by the Opposite party Nos. 1 and 2 and also the Complainant and consequently there was no deficiency in service which the Insurer had undertaken.

IN the replication filed by the Complainant he stoutly reiterated his earlier stand. It was categorically asserted that the vehicle did not cross 8000 kms., when it was delivered to Opposite Party No. 1 and was otherwise, within the warranty period. It was also highlighted that the car could not be repaired for more than three months and was obviously beyond rectification.

IN support of the complaint, the Complainant produced some documents the authenticity of which was not challenged. He also filed his detailed affidavit to reassert the averments made in the complaint. He was cross-examined at length by the Counsel for the Opposite Party Nos. 1 and 2 but nothing was stated in their favour. Opposite Party Nos. 1 and 2 did not lead any evidence despitre a number of opportunities afforded to them. Even affidavits were not filed to rebat the Complainant''s case. On behalf of the Opposite Party No. 3 the detailed report of Shri K.C. Gupta, Surveyor and Loss Assessor was annexed to the written statement Therein he opined that because of virtual inability of Opposite Party Nos. 1 and 2 to repair the car and the fact that it had been burnt down the case of the Insurer must considered on total loss basis. He also opined that the car was under warranty and despite the obligation of the Manufacturer, as their authorised Dealer had not put it in a roadworthy condition at all after it was brought to them loaded on a truck. He also opined that the vehicle had major manufacturing defects which rendered it beyond repairs and the engine of the vehicle had been removed therefrom and had remained safe from the fire. It may be mentioned here that the premises of the Opposite Party was insured against the risk of fire with the Opposite Party No. 3. The learned State Commission held that the Complainant was entitled to the total replacement of the vehicle as there was manufacturing defect in it. Therefore, it directed the Opposite Parties Nos.1 and 2 to refund the price of the car amounting to Rs. 1,28,000/- jointly and severally. The Complainant''s claim for compensation and damages was disallowed as there was no concrete evidence in its support. In the penultimate para the State Commission further remarked as follows: "Before we part with this order, it deserves recording that whilst the consumer complainant has been accorded the relief aforesaid which he deserves, inevitably inter-se legal rights, liabilities would arise betwixt the three Opposite Parties. Since admittedly the vehicle was comprehensively insured with Opposite Party No. 3 the Opposite Parties No. 1 and 2 on the payment of its price to the Complainant would have rights against the Insurance Company on the principle of subrogation. It is also the case that the premises of Opposite Party No.1 were insured against fire by Opposite Party No. 3 and rights and liabilities would arise thereunder. These and other ticklish legal-issues including the rights and liabilities of a bailee which may arise inter-se betwixt Opposite Parties Nos. 1 to 3 are obviously beyond the scope of the consumer jurisdiction and would inevitably have to be resolved by the Civil Courts alone".

FEELING aggrieved against the said order M/s. Wheel World has filed F.A. No. 375/93 while the Complainant has filed F.A. No. 485/ 92. The case of the Wheels World is that as the car was comprehensively insured the Insurance Co. was liable for the loss of the car and the State Commission should have allowed the complaint of the 1st Respondent by directing the Insurance Co. to pay damages to the Complainant. The State Commission wrongly proceeded on the footing that since before the fire accident the Complainant had complained of the defective engine of the car Opposite Parties Nos. 1 and 2 were jointly liable to pay the cost of the car to the Complainant.

THE Complainant in his appeal has prayed for allowing the compensation to him which has been disallowed by the State Commission. We have heard the parties in both the appeals and we are of the opinion that the order of the State Commission so far it has made liable Opposite Parties Nos. 1 and 2 to pay the price of the car cannot be sustained. The only defect in the car was as pointed out above, was the defective engine which had been removed by the Dealer for doing the needful free of cost. The Complainant had agreed to that course. Therefore, the Opposite Parties Nos. 1 and 2 could not be made liable merely on the ground that from the date of purchase the car was found defective. The car had been comprehensively insured with the Insurance Co. and it has been burnt down in the fire. We have not been able to understand why the Insurance Co. is not liable to pay to the Insured the amount of the policy. Of course the engine is lying with the Dealer, the Insurance Co. can take it as salvage. The engine is of no use to the Complainant without the remaining parts of the car. The Insurance Co. cannot shift its liability on the ground that the car was defective. The Complainant case is based on the contract of insurance. Hence we allow F.A. No. 375/92 filed by M/s. Wheel World, set aside the order of the State Commission passed in relation to them and order that Opposite Party No. 3 is liable to pay to the Complainant Rs. 1,28,000/- being the amount of the Insurance Policy. The Insurance Company is also made liable to pay interest on that amount at the rate of 18% per annum after the expiry of three months from the date of fire. The Insurance Co. can take possession of the engine from the Dealer as part of salvage.

NOW take F.A. No. 485/92 filed by the Complainant We are of the opinion that the Complainant is entitled only to the interest for the period of the delay in settling his claim by the Insurance Company and this we have already granted in the forgoing paragraphs. No order is called for in F.A. No. 482/92 which will stand dismissed.

THE amount of 1,28,000/- with interest at 18% as directed above shall be paid to the Complainant by the Insurance Company within two months from the date of receipt of this order. The appeals are disposed of as above. The Insurance Company shall pay Rs. 2,5000/- as costs to the appellant in F.A. No. 375/93.