This C.C. is coming on before us for hearing; in the presence of Sri. A. Sekhar Babu, Advocate for complainant; and of Sri. Kolli Satyanarayana, Advocate for opposite parties No.1 and 2, and of Sri. G. Sita Rama Rao, Advocate for Opposite party No.3; upon perusing the material papers on record; upon hearing and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Sri R.Kiran Kumar, Member)

          This Complaint is filed u/s.12-A of Consumer Protection Act, 1986. 

2.      The averments made in the complaint are that the complainant is the owner of Sonalica Maxi Cab bearing No.AP-24-TB-4975 and the same was insured with the opposite party No.3 vide policy No.73469588 valid from 17-10-2012 to 16-10-2013 to cover the risk.  The complainant submitted that on 31-05-2013 the above vehicle met with accident near B.Ed college, Venkatapuram of Mudigonda Mandal, Khammam District due to hit by Indica Car, case has been registered by the police, Mudigonda vide Crime No.106/2013 U/sec. 337 of IPC against the driver of Indica car bearing No.AP-20-AK-1924.  The complainant further submitted that due to the accident the vehicle fo the complainant was damaged, immediately the complainant informed the same to opposite party No.3, submitted necessary documents and as per the instructions of opposite party No.3 on 02-06-2013 the complainant handed over the damaged vehicle to the opposite party No.1 to get repair the same.  The complainant further submitted that after verifying the vehicle, the technicians of opposite party No.1 issued estimation letter estimating the repair cost as Rs.4,66,580.25, the cost of repair was informed to the opposite party No.3 and the same was accepted by them.  The complainant further submitted that the technician of opposite party No.1 stated that it will take three months time to put the vehicle on motion, on that after three months the complainant approached the opposite party No.1 in order to take back his vehicle, but to his surprise the technicians of Opposite party No.1 not attended any repairs on the vehicle and it was kept as idle.  The complainant also submitted that he approached the opposite party No.1 many times, as per their demand he paid an amount of Rs.25,000/- on 29-06-2013 and 07-10-2013 to get repair the vehicle.  The complainant further submitted that subsequently the vehicle was sent to opposite party No.1’s showroom at Hyderabad, i.e. opposite party No.2 by saying that the spare parts are not available with opposite party No.1, showroom is very big and comfortable for all types of repairs.  The complainant further submitted that thereafter, he approached opposite party No.2 at Hyderabad to collect his vehicle the opposite party No.2 did not attend the repairs of the vehicle inspite of receiving the amount of Rs.25,000/- also availed long one year time and kept the vehicle idle till date.  The complainant further submitted that to purchase the vehicle in finance and he has to pay @Rs.15,700/- P.M. apart from salary of driver beside to maintain his family, due to non plying of the vehicle from 01-06-2013 he sustained huge loss to a tune of Rs.3,00,000/- apart from physical and mental agony for that complainant approached this Forum.

3.      To support his case the complainant filed the following documents which are marked as Exs.A-1 to A-10. 

4.      On receipt of notice, opposite party No.1 and 2 appeared through their counsel and filed counter.  In their counter, the opposite party No.1 and 2 submitted that, the opposite party No.1 has accepted to get repairs the damaged vehicle by issuing an estimation letter by estimating the repair costs Rs.4,66,580.25/-.  The opposite party No.1 and 2 submitted that, the opposite party No.1 is not dealing with repairs of Sonalica Brand Vehicles and had recommended to take the vehicle to a Sonalica authorized service centre, and in turn the complainant stated that Sonalica is a commercially failure model and did not have an authorized service centre in Khammam or any of the neighboring districts.  The opposite party No.1 further submitted that the complainant towed the vehicle in their premises and forcibly dropped it and repeatedly requested that the company would only help them out because of the given conditions and complainant placed immense pressure on the opposite party through various channels to accept the vehicle for service.  The opposite parties also submitted that when the vehicle was accepted for service, they have indicated that the accident repair would cost over Rs.5,00,000/- due to the nature and extent of damage.  The opposite parties No.1 and 2 further submitted that at the time of dropping of vehicle with the opposite party No.1 the complainant had paid Rs.25,000/- and promised to pay the remaining amount of Rs.1,25,000/- within a period of 30 days and the opposite parties informed the complainant that the advance amount would be utilized to procure spare parts and for starting of work.  The opposite parties No.1 and 2 further submitted that every time the complainant made false commitments for payment, with a moto to service its customers the opposite parties went ahead with procurement or spares in excess of Rs.2,00,000/- and deployed additional resources at its own cost and the complainant and his representatives were well informed of the status of work on the vehicle both verbally as well as visually during their visits to the service station, after taking extreme measures to procure spares, the opposite parties No.1 and 2 completed the work on vehicle and prepared it for delivery by December 2013 and the same was informed to the complainant as well as opposite party No.3.  the opposite party No.1 and 2 further submitted that since the month of December 2013 they are in constant contact with the complainant and his representatives seeking to take delivery of the vehicle upon payment of the balance due amount of Rs.1,81,580/- along with interest and parking charges from the complainant, but the complainant changed his stand and he indicated that he had absolutely no money to pay the same, the complainant threatened that he wanted the for free without any additional payment, failing which he will take-up the matter legally.  The opposite parties No.1 and 2 further submitted that due to the threat from the complainant and to protect their investment, they have shifted the vehicle to Hyderabad, on 12-05-2014 the complainant along with his friend Mr. Veera Reddy went to the servicing centre in Hyderabad, as per their request the opposite party No.2 offered a discount on the bill, instead of paying such amount as mutually agreed, the complainant started arguing again and he claimed that he had no money to pay  and asked the opposite parties for monitory compensation.  The opposite parties No. 1 and 2 submitted that as per the rules and regulations of their company, the complainant is liable to pay parking charges @Rs.400/- per day since 1^st January 2014 to till the date of delivery of vehicle along with interest @24% per annum for not collecting the vehicle after repairs.  The opposite parties No.1 and 2 further submitted that in the above stated circumstances the claim made by the complainant is not maintainable either in law or on facts, and prayed to dismiss the complaint.

5.      To support their case the opposite parties No.1 and 2 filed the following documents and marked as exhibits B-1 to B-6.

Ex.B-1:- Photocopy of Office copy of legal notice, dt.05-04-2014 issued by the counsel for complainant.

Ex.B-2:- Photocopy of Reply Notice given by the counsel for opposite parties No.1 and 2, dt. 27-05-2014.

Ex.B-3:- Photocopy of Postal Receipt, dt. 29-05-2014.

Ex.B-4:- Photocopy of Returned unserved postal cover along with acknowledgement, dt. 29-05-2014.

Ex.B-5:- Postal tracking particulars from India Post website, Track Result for RN665841540IN.

Ex.B-6:-Photocopy of part claim statement and liability note issued by opposite party No.3.

6.      The opposite party No.3 denied the averments made by the complainant in para Nos. 3,4,5,6 and 7 in the complaint.  The opposite party no.3 submitted that they have not advised the complainant to leave the vehicle at M/s. Carz Vahan Motors, Khammam, after leaving the vehicle only claim has been intimated to us.  The opposite party No.3 also submitted that decision of shifting of the vehicle from Khammam to Hyderabad was taken by the bearer  and non availability of parts is not in our control.  It is also submitted that on receipt of claim intimation on 31-05-2013 they have appointed Mr. K. Chinnappaiah, IRDA Licensed surveyor to assess the loss, surveyor visited the work shop, after detailed discussion regarding the damage and spare parts required for repairing the surveyor submitted his assessment report for Rs.2,60,000/-.  The opposite party No.3 further submitted that as per the insurance policy conditions complainant has to bare 5% depreciation on metal parts and 50% depreciation on rubber / Nylon / plastic parts  and he has to bare the excess amount of 10% of the assessed loss and salvage value for the parts replaced and cost of wear and tear items.  The opposite party No.3 further submitted that M/s. Carz Vahan Motors, Khammam has repaired the vehicle and submitted the credit invoice, dt. 23-01-2014 for the repairs carried out to the vehicle, since the opposite party No.3 have extended cashless facility to the repairer, based on the credit invoice submitted, they settled a sum of Rs.2,60,000/- on 04-03-2014 in full to the work shop as assessed by the surveyor through NEFT payment.   The opposite party No.3 further submitted that the delay in repairs happened due to non availability of parts  / shifting the vehicle to Hyderabad is not in control of the insurance company and as per contract of insurance they are not liability to pay for delay in repairs or no compensation available for expenses incurred by the insured during the period of repairs.  The opposite party No.3 also submitted that as per the contract of policy, they have settled their liability amount to the repairer, as per the section 12(1) of the C.P. Act the complaint is not maintainable, the Forum is lacking in jurisdiction to entertain the complaint as several complicated questions of law and facts are involved and civil court can only adjudicate the same, and they relied on, the Hon’ble National Commission in 2003 (III) ALT 2040 CPA, in M/s Donroll Industries Ltd., and another Vs. National Insurance Co. ltd., and others.  The opposite party No.3 further submitted that the claim of the complainant is not accordance with the terms and conditions of the policy and the complainant cannot allege any deficiency of service and prayed to dismiss the complaint.

7.      Written Arguments of both parties filed.

8.      Upon perusing the material available on record following points arose for consideration, is

i)       Whether there is any deficiency of service on the part of opposite

party?

ii)       To What relief?

Point:-

i)       In this case complainant is the owner of Sonalica Maxi Cab bearing No.AP-24-TB-4975 and the same was insured with the opposite party No.3.  According to  the complainant on 31-05-2013 the above vehicle met with accident near B.Ed college, Venkatapuram of Mudigonda Mandal, Khammam District, case has been registered by the police, Mudigonda against the driver of Indica car, the complainant informed the same to opposite party No.3. the complainant submitted necessary documents to the opposite party No.3 and as per their instructions on 02-06-2013 the complainant handed over the damaged vehicle to the opposite party No.1 to get repair.  According to the complainant, after verifying the vehicle, the technicians of opposite party No.1 issued estimation letter estimating the repair cost as Rs.4,66,580.25, the cost of repair was informed to the opposite party No.3 and the same was accepted by them.  According to the complainant, he approached the opposite party No.1 many times, as per their demand he paid an amount of Rs.25,000/- on 29-06-2013 and 07-10-2013 to get repair the vehicle and subsequently the vehicle was sent to opposite party No.2’s showroom at Hyderabad, by saying that the spare parts are not available with opposite party No.1.  According to the complainant, he approached opposite party No.2 at Hyderabad to collect his vehicle, but to his surprise the opposite party No.2 did not attend the repairs of the vehicle.  According to the complainant, he purchased the vehicle in finance, due to non plying of the vehicle from 01-06-2013 he sustained huge loss to a tune of Rs.3,00,000/- apart from physical and mental agony for that complainant approached the Forum for redressal.

From the record we observed that surveyor appointed by opposite party No.3 assessed loss to the tune of Rs.2,60,000/- after deducting depreciation from 5% to 50% on spares as per surveyor report, exhibit B-6.  Surveyor assessed loss and basing on his report the opposite party No.3 has settled payment to the opposite parties No.1 and 2 on 04-03-2014 through NEFT payment.  As per the counter submitted by opposite party No.3 the delay in repairing happened due to the non-availability of parts / shifting the vehicle to Hyderabad, which is not in their control.  And also we observed that “due to the threat from the complainant and to protect the investment of opposite parties No.1 and 2, they have shifted the vehicle to their facility in Hyderabad” as submitted by opposite parties No.1 and 2 is not correct and they failed to produce any documentary evidence to prove their contention. 

And also the opposite party No.3 failed to file surveyor report, which is crucial to dispose this complaint and also the opposite party No.3 failed to intimate about the transfer of the claim amount through NEFT to the opposite parties No.1 and 2 to the complainant.

In the light of the above discursion we are of the opinion that the complainant as well as the opposite parties all is negligent to fulfill their part of obligation and for that all are responsible to bear the consequences.  In the above circumstances the complainant is directed to pay the balance amount of Rs.1,81,580/- towards repairing charges to the opposite parties No.1 and 2 and on such payment the opposite parties No.1 and 2 are directed to deliver the vehicle to the complainant in working condition.

9.      In the result, the complaint is disposed of by directing the complainant to pay the balance amount of Rs.1,81,580/- towards repairing charges to the opposite parties No.1 and 2 and on such payment the opposite parties No.1 and 2 are directed to deliver the vehicle immediately to the complainant in working condition.

          Typed to dictation, corrected and pronounced by us in the open forum, on this the 16^th day of November, 2016.

Member                  FAC President             

District Consumer Forum, Khammam

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant                                                    For Opposite party   

       -None-                                                                       -None-

DOCUMENTS MARKED

For Complainant                                                    For Opposite party

     Member                  FAC President             

District Consumer Forum, Khammam