BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st MARCH 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 25/2013
(Admitted on 19.01.2013)
Bhaskar Shetty,
S/o Krishna Shetty,
Aged about 32 years,
Residing at Door No. 3-16,
Sannidhi Nilaya, Narla, Talapady Post,
Mangalore. …….. COMPLAINANT
(Advocate for Complainant: Sri K.S.Udayanarayan)
VERSUS
1. The Manager, Royal Sundaram,
Allianz Insurance Company, Ltd.,
Sundaram Towers, 45, 46,
Whites Road, Chennai 600014.
2. The Manager,
Royal Sundaram Allianz Insurance,
Co. Ltd., 2nd Floor, Shalimar complex,
Kankanady, Mangalore 575 002.
3. The Manager, L & T Finance Co.
Ltd, Crystal Arcade Bldg.
Balmatta Road,
Mangalore 575 001. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1 & 2: Sri. Udaya Kumar Shetty)
(Advocate for Opposite Party No.3 Sri S.B. Muttalli)
***************
ORDER DELIVERED BY HON’BLE MEMBER
SMT.LAVANYA M. RAI:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he is registered owner of TATA Ace HT goods carrying vehicle bearing registration No. KA 19 D 2439 and the said vehicle covered under insurance policy for the period from 02.06.2011 to 01.06.2012.
It is stated that the aforesaid vehicle had met with an accident on 14.03.2012 resulting in heavy damages to the vehicle of the complainant and as a result the said vehicle has to be kept for repair with the authorized dealer M/s Aravind Motors Pvt. Ltd., Balmatta Road Mangalore. Complainant has immediately intimated accident to 1st and 2nd Opposite Parties. It is stated that though he had complied with all the requirements of the opposite parties, they are intentionally delaying the settlement of the claim. It is stated that the complainant availed a vehicle loan because of the non-co-operation from the insurance company he has default to pay the installments.
That the complainant further submits that 1st and 2nd Opposite Parties ought to have settled the claim immediately to the garage owner in order to get back the damaged vehicle. Immediate settlement of Rs. 88,332/- to the garage by the 1st and 2nd Opposite Parties would have saved the vehicle and rental to the garage owner in addition to the actual repair bills of the said vehicle.
The complainant submits that direction for repair of the vehicle was made as per the assurance of the 1st and 2nd opposite parties and the vehicle after repair could not be released as the 1st and 2nd opposite parties have not settled the bills of the garage owner consequential whereupon the complainant is not in a position to use the vehicle to eke out his livelihood by way of using the said vehicle. There is every possibility of it being unworthy condition for use regularly. On account of non-user the condition of the vehicle get deteriorating incurring heavy loss.
The complainant further submits that, though he had complied with all the requirements of the 1st and 2nd opposite parties, they are intentionally delaying the settlement of the claim. It is submitted that the 3rd opposite party may proceed to seize the vehicle as the complainant is in default in respect of paying instalments. The complainant further submits that without using the vehicle he cannot earn his livelihood and pay the instalments to the 3rd Opposite Party. Due to the deficiency of service rendered by the 1st and 2nd Opposite Parties, the complainant has to suffer great hardship and agony.
It is stated that the complainant forwarded the claim form to the Opposite Parties, but the opposite parties failed to release the claim amount and hence the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this FORA to the Opposite Parties to pay a sum of Rs.88,332/- along with interest thereon at 18% per annum along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party No.1 to 3 by R.P.A.D. Opposite Party No.1 to 3 appeared through their counsels filed versions.
Opposite Party No.1 and 2 stated that the complainant filed premature complaint. The policy does not provide cashless payment to dealer and repairer. It is further stated that the complainant not submitted the claim documents. Therefore, the opposite parties not able to process the claim and the complaint is pre-mature. The opposite parties are not liable to pay any sum to the complainant as the complainant has failed to comply the terms and conditions of the policy. As such the complaint against the opposite parties is not maintainable and sought for dismissal of the complaint.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
If so, whether the Complainant is entitled for the reliefs claimed?
What order?
III. 1. In support of the complaint, Bhaskar Shetty (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced Ex C1 to C8 were marked for the complainant as listed in the annexure. One G.Vinay Prakash (RW-1) Assistant Manager of Opposite Party No. 3 filed counter affidavit and answered the interrogatories served on them. EX-R-1 to R-4 were marked for the Opposite Party as listed in the annexure.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answered the points are as follows:
Point No.(i): Affirmative.
Point No. (ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
The facts which are admitted is that the complainant is registered owner of TATA ACE HT goods carrying vehicle bearing registration No. KA 19D 2939 and the said vehicle covered under the insurance policy bearing No.VGC0221033000100 valid for period from 02.06.2011 to 01.06.2012 as per Ex-P1. It is also admitted that the vehicle met with than accident on 14.03.2012.
Now the points are in dispute between the parties before this Fora is that, the above said vehicle after the accident kept in garage for repair and the Opposite Parties given direction for repair of the vehicle to the garage person/repairer but the Opposite Party No. 1 & 2 did not settle the bills till this date. There is no reason why the insurance company postponing the payment/settling the claim. It is contended that there is no justifiable reason for non-settling the claim.
On the contrary the Opposite Party the complainant is seeking cashless facility. In fact under the policy there is no cashless facility and further complainant not furnished the necessary particulars and documents. The complaint is pre-mature.
On perusal of the oral as well as documentary evidence available on record, we find that, in the instant on the date of accident the vehicle was insured with the opposite parties company. After the accident the vehicle was kept for repair with the authorized repairer Aravind Motors Pvt Ltd., and the repairer estimated the costs at Rs 88,332/-. The survey report dated 01.03.2013 i.e. Ex R-3 reveals that the surveyor inspected the vehicle and given direction to open the engine to analyze extended damages to the engine internal parts. It is surprise to note that opposite parties insisted the complainant to produce the re-inspection survey. We are again surprise to note that how the insurer could expect the insured to produce re-inspection survey report. On the other hand it is the primary duty of the surveyor to re-inspect the vehicle once the direction for repair is given. Because the surveyor has already seized the vehicle. It’s his turn to re-inspect the vehicle after the repair. The letter issued by repairer to the complainant dated 19.06.2012 i.e. Ex C-2 reveals that the vehicle was reported to authorized repairers work shop for accidental repair job on 15.05.2012. On 17.05.2012 repair estimation was given. The surveyor visited the garage /work shop on 18.05.2012 to conduct survey and given approval to repair external damage except engine on 25.05.2012. Another letter issued by the repairer reveals that due to space constrain they are unable to keep the vehicle in their premises. One more letter dated 11.08.2012 issued by the repairer i.e. Ex C-3 to the complainant reveals that the complainant not paid the amount to the repairer and the repairer intern demanded parking charge of Rs. 250/- per day from the date of receipt of the vehicle. Ex C-4 i.e. one more letter dated 24.09.2012 reveals that the vehicle was not collected by the complainant and therefore repair demanded Rs. 30,000/- as parking charges as on 15.09.2012 and issued notice that they will take up the matter for legal action. The Ex C-6 is the legal notice issued by the complainant to the opposite parties reveals that the complainant had already complied with the requirements stated by opposite party insurance company. On perusing the above material documents reveals that the surveyor appointed by the opposite party company not submitted the re-inspection survey report of the vehicle after the repair. And there is no justifiable reasons for not conducting re-inspection of the vehicle after the 1st survey by the surveyor. It is not the case that the surveyor not conducted the survey to the vehicle. Since the surveyor inspected the vehicle and dismantled the vehicle, it is the duty of the surveyor to re-inspect the vehicle and assess the repair loss and submit to the insurer and thereafter the insurer should settle the claim without any delay. But the opposite parties not settle the claim till this date. However in the instant case the opposite parties cannot contend that the complainant sought for cashless facility. Since the surveyor conducted the survey of the vehicle after the accident the question of cashless facility does not come into picture and the defense taken by the insurance company cannot be considered. Once the survey is conducted it is the bounded duty of the insurer to either settle the claim or repudiate claim with valid reasons without any delay. But in the instant case the opposite parity company in spite of conducting survey of the vehicle not settled the claim nor rejected the claim. Hence it amounts to unfair trade practice as well as deficiency in service on the part of the opposite parties.
Since the claim is not settled the vehicle laying in garage and the complainant unnecessary has to bare parking charges in this case. By considering that aspect we hold that the insurance company is liable to pay the parking charges till the date of delivery of the vehicle along with repair cost of Rs. 88,332/-.
Therefore, in view of the aforesaid reasons, we hold that the opposite party No. 1 and 2 to jointly and severally directed to pay Rs. 88,332/- (repair cost) plus 30,000/- (parking charges as on 15.09.2012) to the complainant along with interest @ 12% p.a. from the date of accident till the date of payment and also pay Rs. 3,000/- as cost of the litigation expenses. Further parking charges shall be paid till the delivery of the vehicle as charged by the repairer and see that the vehicle should be in road worthy condition.
In the result, we pass the following:
ORDER
The complaint is allowed. The opposite parties No. 1 and 2 jointly and severally shall pay Rs.88,332/- (repair cost) plus 30,000/- (parking charges as on 15.09.2012) to the complainant along with interest @ 12% p.a. from the date of accident till the date of payment and also pay Rs. 3,000/- as cost of the litigation expenses. Further parking charges shall be paid till the delivery of the vehicle as charged by the repairer and see that the vehicle should be in road worthy condition. Payment shall be made within 30 days from the date of receipt of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of MARCH 2016).
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum. Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Bhaskar Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: : Policy copy for the period from 02.06.2011
till 01.06.2013.
Ex C2:19.06.2012 : Repair estimation submitted by
M/s Aravind Motors Pvt Ltd.
Ex C3:11.8.2012 : Letter from Aravind Motors Pvt Ltd.,
Ex C4:24.09.2012 : Notice from Aravind Motors Pvt Ltd.,
Ex C5: : Check Report cum receipt issued
by the Konaje Police Station.
Ex C6:30.07.2012 : Office copy of the Lawyers notice.
Ex C7: : Postal acknowledgment from
1st Opposite Party
Ex C8: : Postal acknowledgment from
1st Opposite Party.
Witnesses examined on behalf of the Opposite Parties:
RW-1: G.Vinaya Prakash, Assistant Manager- Legal.
RW-2: Naveen Kumar, authorized representative of
L&T Finance Ltd.,
Documents produced on behalf of the Opposite Parties:
Ex R-1: Copy of the policy No. VGEO221033000100
for the period 02.06.2011 to 01.06.2012.
Ex R-2: Copy of the letter written by Aravind Motors
dtd: 24.09.2012.
Ex R-3: Copy of the survey report dtd 01.03.2013.
Ex R-4: Copy of the Mahindra letter sent to the complainant
dt 24.9.12.
Dated:31-03-2016 PRESIDENT
