IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:   President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:              Member

Dated this, the 25^th  day of   February 2010

CC.60/2009

Muhammad Shamseer.P.V,

Puthiyveettil House,

Temple gate (PO) Thalassery                            Complainant

(Rep. by Adv.C.R.Rajeendran)

1.    M/s.Nandi Toyota Motor World Ltd.,

193, Vijaya Nagar, 1^st stage,

Hunsur Main Road,

Mysore 570017

(Rep. by Adv.M.S.Manjunath)

2.     Chola Mandalam MS, General Insurance,

Dare House, 2^nd floor, No.2,

NCC Base Road, Chennai 1.                   Opposite parties

(Rep. by S.Venkatesh)

3.      The Manger,

         Chola Mandalam MS General Insurance Co. Ltd.,

          Kannur Branch Office, Kannur.

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay a sum for Rs.1, 53,105/- with intererst and cost.

            The facts of the case in brief are as follows: The complainant insured his vehicle with the 2^nd opposite party on 11.4.08. Rs.33, 009/- paid as premium.The above said vehicle met with an accident on 25.4.08 and there by caused heavy damage to the vehicle. The first opposite party undertook the repairing work. An amount of Rs.1, 24,355/- is incurred for the repair. Claims submitted for this amount but 2^nd opposite party sanctioned only Rs.71, 250/-. Hence the complainant was compelled to pay the balance amount of Rs.53, 105/-. Accident took place within the period of Insurance. So opposite parties 2 and 3 are bound to pay the actual expenses incurred to the complainant for repairing the above said insured vehicle without any deduction. The deduction of Rs.53, 105/- in this case by 2^nd opposite party is without any basis and is against terms and conditions of the policy. 1^st opposite party collected Rs.1, 24,355/- for repair but the work carried out in careless manner. The painting work done is defective. The colour does not match with the original body colour of the vehicle and it looks ugly. The fitting of the wind shield is also defective and caused oozing out weather through the wind shield. Head light is not changed though it is charged when these facts brought to the notice of 1^st opposite party they asked the complainant to rectify those defects from AMANA TOYOTA, dealer of Toyota Vehicles at Kannur and also undertaken that 1^st opposite party will pay the cost of the rectification work to AMANA TOYOTA. Thus the rectification work was done from there but 1^st opposite party did not make the payment so far.  1^st  opposite party behaved in a bad manner and insulted the complainant. A lawyer notice is issued to both parties to pay Rs.53, 105/- and to settle the bills with the Amana Toyota on 9.9.2008. 1^st opposite party sent reply with false and untenable contentions. 2^nd opposite party did not send any reply. The complainant suffered much mental pain and opposite parties is liable to pay a sum for Rs.1, 00,000/- as compensation. Hence this complaint.

            Pursuant to the notice opposite parties 1 to 3 entered appearance and filed version. Opposite parties 2 and 3 filed version jointly.

            The contention of 1^st opposite party in brief is as follows: The complainant brought the vehicle for repair due to accident on 25.4.08 at 6 P.M. The estimation was made towards the extent of damage and repairs to be done. Vehicle was estimated as per the request of the customer and the vehicle was repaired for an estimated amount of Rs.1, 24,355/-. On intimation and procedures with the 2^nd opposite party they have issued a letter to 1^st opposite party dt.26.5.08 informing that the claim has been sanctioned for payment of Rs.71,250/-. The complaint has taken delivery of the vehicle on 28.5.08 certifying that to his satisfaction in good condition. 1^st opposite  party has carried out repairs of the vehicle to the utmost satisfaction of the complaint and water through the wind screen glass was fixed on the request of the complainant at Amana Toyota of Kannur at the cost  of 1^st opposite party at Kannur and the charges was  paid by 1^st opposite party to M/s.Amana Toyota. Since complainant complained regarding the head lights new head light assembles were fixed replacing the old on 22.7.08 i.e. after lapse of 2 months from the date of delivery of the vehicle. Complaint has issued a satisfaction letter in Malayalam. Opposite party also issued a letter dt.30.7.08 wherein they have agreed for the correction of the paint mismatch on RH Fender as per the convenience of the complainant either at Mysore or Bangalore workshop. The notice of complainant on 9.9.08 was suitably replaced. There is no deficiency of service on the part of opposite party. Hence to dismiss the complaint.

            2^nd and 3^rd opposite party filed version jointly denying the main allegations of the complaint. The contentions are briefly stated as  follows: The averment in the complaint that as per policy issued to the complainant  the opposite party have agreed to indemnify him against all the loss or damage to the insured and accessories thereon due to the reason of accident or other reason are false and hence specifically denied by the opposite parties. The complainant had lodged a claim for damages to the above mentioned vehicle alleged to be caused in an accident on 25.4.08. These opposite parties deputed licensed surveyors as required by insurance Act. Surveyor assessed the admissible loss at Rs.71, 250/- towards the cost of repair applying necessary deductions. The above vehicle was two years old at the time of the accident. Depreciation is applicable in respect of parts. On receipt of the survey report opposite party settled the claim after obtaining the consent of complainant. An amount of Rs.71, 250/- was paid. These opposite parties have discharged all the liabilities as per the terms and conditions shown in the policy certificate. Complainant has fully satisfied with the amount shown in the loss voucher. Every fact related to the settlement and the settlement amount was legibly shown on the loss voucher. Complainant has not legal right to withdrawn any of the statements in the signed loss voucher. The settlement is with his full consent. The complainant is not entitled to any relief prayed in the complaint. Hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of opposite parties?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Relief and cost.

            The evidence consist of the oral evidence of PW1 and Exts.A1 to A10 on the side of the complainant and Ext.B1 & B2 on the side of the opposite parties/

Issue Nos.; 1 to 3        

            Admittedly the complainant t insured his vehicle with the 2^nd opposite party on11.4.08. ExtA1 shows the registration number of the vehicle as KC.58-A.6775 and name of Regd. owner Muhammad ShamsheerP.V. It also shows the year of manufacturer 2007. Ext.A2 photo copy of policy MCT.00007214 -000-00 shows the period of insurance for 3^rd April 2008 to 2^nd April2009. Ext.A3 is the legal notice sent by complaint to opposite parties demanding to indemnify the losses sustained to his vehicle in the accident by paying the actual amount incurred for the repair of the vehicle. It has stated that 2^nd opposite party sanctioned only Rs.71, 250/- and the balance amount Rs.53, 505/- has been paid by the complaint to get the vehicle released from 1^st  opposite party. Complainant also demanded the cost of rectification work from 1^st opposite party since the repair work carried out by1st opposite party was in a careless manner. Ex.A4 and A4 (a), Ext.A5 and A6 reveals that complainant has sent lawyer notice to opposite parties 1 and 2 and the same were received by both opposite parties.

            1^st opposite party sent reply dt.26.9.2008 to Ext.A3 dt.9.9.08. 1^st opposite party contended therein that the complainant has signed with the repair order form and being satisfied with the work done  he has signed the satisfaction voucher and taken delivery of the work. They have also contended that the water leakage through the wind screen glass was fixed on request of complainant at M/s.Amana Toyota of Kannur. The said ceiling of the water leakage was done at the cost of 1^st opposite party. 1^st opposite party further contended that 2 Nos. Of 2 new head light assembles was fixed replacing the old on 22.7.08 after the lapse of 3 months from the date of accident and after a lapse of two months from the date of delivery of the vehicle. Complainant has given satisfaction letter thanking 1st opposite party for the free replacement of the head light assembly and their service. Further regarding the mismatch of the mild paint, it was intimated to complainant that it could be conveniently done wherever he visit Mysore or Bangalore.

            Ext.A8 is the reply sent by 2^nd opposite party whereby the contention raised that complainant has not informed the 2^nd opposite party about the incident immediately and so also not intimated the incident to the police. This is a breach of terms and conditions and hence complainant has given consent to settle the claim on non standard basis. 2^nd opposite party contended further in Ext.A2 that the claim has been settled on non standard  basis(75% of the assessed loss) to the tune of Rs.71,250/- on the assured amount of Rs.95,000/-.

            Complainant filed proof affidavit in lieu of chief examination. He has stated in the affidavit that an amount of rupees one lakh twenty four thousand three hundred incurred for repairing work but 2^nd opposite party sanctioned only Rs.71, 250/- hence he was compelled to pay the balanced amount of Rs. 53,105/-. Complainant adds that, the deduction of Rs.53, 105/- from the total amount Rs.1, 24,355/- is without any basis and is against the terms and conditions of the policy. Complaint further stated that the repairs are carried out in a careless manner. He adds that painting work done is defective, the fitting of wind shield is defective, and the head light though charged did not change. When these facts were informed 1st opposite party asked complaint to rectify the above said defects from “Amana Toyota,’. But 1^st opposite party did not make payment. Lawyer notice was replied by opposite parties with false and untenable contentions.

            The facts of the case reveal that the actual dispute is with respect to the claims amount. Complainant’s case is that he is entitled for the actual cost is Rs.1, 24,355/-. The claim sanctioned is only Rs.71, 250/- and thereby complaint is compelled to pay Rs.53, 105/-. Hence complainant demands to pay this amount on the contention that the insurer is liable to pay the entire amount required for the repair; hence it has to be answered whether the opposite party is liable to pay the entire repair amount.

            The contention of opposite parties is that the surveyor assessed the admissible loss at Rs.71, 250/- towards the reasonable cost of repairs applying necessary deduction. Ext.A8 reveals that the surveyor assessed the loss to the tune of Rs.95, 000/- after deducting the depreciation noted in the policy, salvage and excess. The actual amount of repair is Rs.1, 24,355/-. The sanctioned amount is less than the actual amount. Rs.29, 355/-. Hence further deduction of Rs.23, 750/- is unjustifiable. Opposite parties has not adduced any evidence to prove that this deduction of Rs.23, 750/- is legal. Hence the complaint is entitled for the amount assessed by the surveyor. Rs.95, 000/-. Signing of satisfaction voucher will not take away the legal rights of the complainant. Opposite parties is also liable to comply the assurance with respect paining work.

            In the light of the above discussion we are of opinion that opposite parties is liable to pay the amount as assessed by the surveyor. There is deficiency in service on the part of opposite parties until opposite parties succeeded in proving that further deduction, which altogether comes half of the amount as legal and justifiable. We are also of opinion that there is liability on the part of 1^st opposite party to carryout painting work as promised earlier. Complainant further entitled for an amount of Rs.5000/- as compensation and a sum of Rs.1500/- as cost of these proceedings. Issue 1 to 3 is answered in favour of complainant and order passed accordingly.

            In the result, the complaint is allowed directing opposite parties 2 and 3 to pay a sum of Rs.29, 355/- (Rupees Twenty Nine thousand Three hundred and fifty five only) as balance claim amount and an amount of Rs.5000/- (Rupees Five thousand only) as compensation together with Rs.1, 500/-(Rupees One  thousand five hundred only)  as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which, the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                               Sd/-                          Sd/-                             Sd/-

                        President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy of the RC book of the vehicle

2.Copy of policy issued by 3d OP

A3.Copy of the lawyer notice sent to OP

A4 & 5. Postal receipts

A5 & 7.Postal AD

A8.Replynotice

A9.Bill dt.22.5.08 issued by Nandi Toyotta

A10.Receipt dt.28.5.08 issued by Nandi Toyota

Exhibits for the opposite parties

B1.Copy of the policy certificate issued to complainant

B2.Copy of the full and final settlement voucher.

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties: Nil

                                                                        /forwarded by order/

                                                                        Senior Superintendent

Consumer Disputes Redressal Forum.