BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,ADDITIONAL BENCH, MANGALORE
Dated this the 24th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.2/2014
(Admitted on 03.01.2014)
Mr. R. Eswarraj,
S/o C.T. Rajaram,
Aged 58 years,
Residing at Shobalaya,
Opp. Kulal Bhavan, Mangaladevi Temple Road,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri KP)
VERSUS
1. National Insurance Company,
Head Office,
No.3, Middleton Street, Kolkatta 700071,
Represented by its Chairman.
2. National Insurance Company,
Mangalore Branch Office,
1st Floor, Emjay’s
3. Umesh Reedy, Country Club
Regd. Office : 8.2-703
Amrutha Valley Road No.12
Bangara Hills, JHyderbad 500 034
…........OPPOSITE PARTIES
(Advocate for the Opposite Parties No.1 & No.2 : Sri PJR)
(Advocate for the Opposite Parties No.3 : Sri PJP)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant state his vehicle was KA.19.EC.4959 was insured with opposite party No.2 and covered the period of accident occurred on 11.2.2013. He left vehicle for repair with opposite party No.3 to give estimation on 12.2.2013. opposite party No. 2 sent a surveyor on 13.2.2013 and issued oral work order on 13.2.2013 and did not give any work order and that on enquiry statement it should be submitted after only of the surveyor report. The repair was carried out on 13.2.2013 itself. Opposite party No.3’s Director Mr. Rathnakar Pai mentioned an oral instruction of opposite party No.2 whose men repair was carried out and demanded payment of Rs.7,455/ as against the repair estimation of Rs. 9,025/ made by them. The explanation of opposite party No. 3 to complainant that chromium part was not allowed by surveyor of opposite party No.2 though estimated the offer of Rs.4,613 made by opposite party No.2 to complainant was not accepted by him. Alleging that there was collusion between opposite party No.2 and No.3 seeks direction to opposite parties. Hence seeks direction to pay work order with the estimation pay Rs.9,025/ with interest 21% p.a. and compensation towards Rs.50,000/ towards mental agony and tension caused to complainant and cost of the complaint.
II opposite party No.1 filed memo adopting written version of opposite party No.2 and by stating that pending orders on his application as no relief is claimed against opposite party No.1 for dismissal of the complaint of opposite party No.1 adopted the same of written version of the Opposite party No.2 filed written version admitting insurance coverage policy issued by opposite party to complainant and asserts the liability worked out is only Rs.4,614/ of the assesses balance of Rs.4,653.19 as per the terms of the policy. This amount of Rs.4,614 was offered to complainant on the third day lodging the complaint. There is no deficiency in service. There is no practice to insure complainant furnishing order to the insurer. This position was clarified to in the reply dated 10.4.2013 to complainant. The matter of Rs.4,614/ by cheque was being deposited with the written version hence seeks dismissal.
2. Opposite party No.3 in the written version contend there is no deficiency of service on his part as required repair works was carried out. Considering the nature of work of complainant required travel when he left his scooter for repair he was given an spare vehicle by opposite party No.3 free of cost/maintenance for travel convenience of complainant. He also claims that after inspection of the accident scooter by insurance surveyor carried out the repairs and on completion complainant was informed and he took delivery by paying bill amount of Rs.7,455/ without any grumble and took delivery of the vehicle. As per later complainant started writing letters to opposite party and also made phone calls to disturb their peace of mind. In order to keep customer relationship in good harmony kept cool and later even refunded the paid service charges and oil charges to complainant by sending cheque for Rs. 722.00. Hence by complying there is no deficiency of service seeks dismissal.
3. In support of the above complainant Mr. R. Eswarraj filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C18 as detailed in the annexure here below. On behalf of the opposite parties Mr. Dayananda K Shetty (RW1) Assistant Manager, National Insurance Company Ltd, Mangalore Branch, and Mr. Rama K (RW2) Works Manager, Pai Sales Private Limited also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R18 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for opposite parties side arguments of oral heard. We have considered entire case file on record including evidence tendered by the parties and notes of argument of opposite parties. Our findings on the points are as under are as follows:
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The complainant left his vehicle with opposite party No.3 for repairs on occurrence of an accident and the opposite party No.2 and the complainant was insured with opposite party No.2 covering the risk during the period of accident are admitted. As pointed out for opposite party No.1 no relief is claimed against opposite party No.1. The policy was issued by opposite party No.2 to complainant. Hence as pointed out for opposite party No.1 the present complaint against opposite party No.1 is not maintainable.
2. The claim made by complainant against opposite party No.2 at Rs.9,025/ was denied by opposite party No.2 on the count the chromium part is not covered under the terms of the policy and that opposite party No.2 is not bound to issue work order in writing either to complainant or to opposite party No.3 the repairer. Opposite party No.3 has also denied the assertions made against by complainant and hence there is dispute between complainant the consumer and the opposite party No.2 and No.3 service provider as defined under the section 2 (1) (e) of the C P Act. Hence we answer Point No.1 in the affirmative against opposite party No.2 and No.3 only.
POINTS No.(ii): As seen from the written version of opposite party No.2 it had tendered the liability admitted amount under the terms of the policy Rs.4,614/ by way of cheque date 28.2.2014 before this Forum on 4.3.2014 as the complainant had refused to accept the cheque tendered by opposite party No.2 .
2. Ex.C5 is the invoice receipt bill issued by opposite party No.3 towards the repairs for a total amount of the bill is Rs.7,455/. Ex.C2 is the repairs estimate issued by opposite party No.3 it is dated 11.2.2013 i.e. prior to effecting repairs presumably when the complainant brought the damaged vehicle to opposite party No.3. Ex.C5 on the other hand is dated 13.2.2013 is the Vat Invoice Bill the actual charges incurred towards replacement of parts and servicing and labour charges. Hence the claim of complainant that he is entitled for the amount mentioned at Ex.C2 the estimated amount of Rs.9,025/ in the first place is unjustified.
There are series of communication sent by email and or by post to opposite parties. Even as seen from the compliant and the matter pleaded he purchased the vehicle on 3.2.2011 and hence the accident have taken place on 11.2.2013 is beyond two years after the purchase of the vehicle complainant has to bear towards the depreciation in the total expenditure of the repairs in respect of the damaged parts as per term of the policy. Of course the Ex.R1 is the copy of the insurance policy. The accident took policy beyond the two years of the date of purchase. Ex.R1 the policy mentions the scheme of depreciation fixed in respect of the vehicle beyond two years but not exceed of 3 years 30 percent. As such the claim made out by complainant for reimbursement of the entire expenditure incurred cannot be accepted.
3. Ex.R5 is the Motor Final Survey Report of the surveyor in respect of complainant’s vehicle it is dated 15.2.2013 issued by Praveen K P Surveyor and Loss Assessor. He had assessed the total the insurance appropriate of Rs.4619/- he also motioned the depreciation value at Rs.236.04 and accepted value at Rs.40. He mentioned the spare parts disallowed value from Front beading, bumper (chrome) all round (chrome) totalling inclusive to vat tax at 1,360.05. Considering this in our view the contention raised on behalf of opposite party the liability of opposite party is limited only to the extent of amount offered to complainant as per Surveyor’s report in our view is justified.
4. In respect of opposite party No.3 is concerned in our opinion there are no justifiable ground to complainant against opposite party No.3 by the complainant of deficiency of service considering that opposite party No.3 provided a spare vehicle free of cost during the period when complainant vehicle was in the garage for repairs given by complainant to opposite party No.3. Of course there is no sufficient assertion made by complainant that opposite party No.3 in order to keep good customer relationship he paid back service charge of Rs.722/ was refunded to complainant by way of a cheque. Hence the claim of complainant of deficiency in service by opposite party No.3 is in our view is unjustified. The contention of complainant of collusion between opposite parties No.2 and No.3 against him has no basis what so ever.
5. As to whether the complainant would be entitled for any relief as he had refused to accept the admitted cheque of Rs.4,614/ tendered to him by opposite party No.2 and the cheque given by opposite party No.3 to complainant of Rs.722/ is not enchased by complainant as he produced it before the Forum and mentioned at Ex.C17 we are of the opinion that considering the fact on as discussed above the position does not change in respect of the complainant. The refusal on the parts of complainant to accept the payments tendered by opposite party No.2 based on experts opinion i.e. the Surveyor and Loss Assessor’s report and opposite party No.3 as a good gesture was done by complainant in our opinion at his own peril. It is open to complainant to receive amount lying in deposit of Rs.4,614/ by giving requisition to this Forum. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 24th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. R. Eswarraj
Documents marked on behalf of the Complainant:
Ex.C1: Job card issued by Pai sales
Ex.C2: Repair estimation given by Pai sales
Ex.C3: Claim intimation form
Ex.C4: Motor claim Form
Ex.C5: Invoice for Rs.7,455/
Ex.C6: Invoice for Rs.100/
Ex.C7: Email sent by complainant to branch Manager
Ex.C8: Email sent by complainant to Chairman
Ex.C9: Copy of letter sent by complainant
Ex.C10: Acknowledgements 3
Ex.C11: Letter sent by National Insurance Company
Ex.C12: Letter sent by Pai Sales
Ex.C13: Coy of letter sent by complainant by speed post
Ex.C14: Acknowledgements
Ex.C15: Letter by National Insurance Company along vouchers and copy of survey report
Ex.C16: Copy of Insurance policy
Ex.C17: Cheque for Rs.722/
Ex.C18: Email sent by complainant dated 14.2.2013
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Dayananda K Shetty, Assistant Manager, National Insurance Company Ltd, Mangalore Branch,
RW2 Mr. Rama K Works Manager, Pai Sales Private Limited
Documents marked on behalf of the Opposite Parties:
Ex.R1: 13.2.2012: Insurance policy with terms and conditions bearing No.604301/31/11/6200014828 for the period 14.2.12 to 13.2.2013 standing in the name of Mr. R. Eswarraj in respect of motor cycle bearing No.KA.19EC.4959 (True Copy)
Ex.R2: 12.2.2013: Claim intimation
Ex.R3: 12.2.2013: Motor Claim Form filed by complainant
Ex.R4: 11.2.2013: Repair Estimate by Pai Sales (P) Ltd
Ex.R5: 15.2.2013: Motor Final Survey Report by Mr. Praveen K P In respect of Motor Cycle bearing No. KA.19E.4959 with 5 photos
Ex.R6: : Copy of the DL furnished by the complainant
Ex.R7: : Copy of the RC in respect of motor cycle bearing No. KA.19EC.4959 furnished by the complainant
Ex.R8: 15.2.2013: Bill for Rs.875/ by the surveyor towards Final Survey fee
Ex.R9: : Work sheet
Ex.R10: 13.2.2013: Invoice issued by O.P 3 for Rs.7,455/
Ex.R11: 14.2.2013: E-mail sent by the complainant
Ex.R12: 15.2.2013: Reply to the above enclosed with loss voucher For Rs.4,614/
Ex.R13: : Office copy of the settlement voucher for Rs.4,614/
Ex.R14:23.2.2013: Returned unopened envelop with endorsement Saying that no such person
Ex.R15: 24.2.2013: E-mail sent by the branch Manager of O.P.2
Rc.R16: 10.4.2013: Copy of the reply by the Divisional Manager
Ex.C17: 10.5.2013: Copy of the letter enclosing once again loss Voucher and survey report sent to the complainant
Ex.C18: : Office copy of reply dated 26.4.2013
Dated: 24.01.2017 PRESIDENT
