BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th September 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.386/2012
(Admitted on 15.12.2012)
Mr. Kiran Kidiyoor,
Aged 32 years,
S/o Sri Jayasheela Kidiyoor,
R/at Garodi House,
Kidiyoor post and village, Udupi,
Presently R/at Kantharaj Shetty lane,
Mannagudda, Mangalore.
……… Complainant
(Advocate for Complainant by Sri. MCK)
VERSUS
- The Manager,
The Bajaj Allianz General Insurance Company Ltd,
403,404, 4th Floor Crystal Arcade
Near Hotel Roopa, Mangalore,575001.
- The Managing Director,
The Bajaj Allianz General Insurance Company Ltd,
GE Plaza, Airport Road, Yerawada,
Pune 411006.
…. Opposite Parties
(Advocate for the Opposite Parties No.1 and 2: Sri. KP)
ORDER DELIVERED BY HONBLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency of service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to pay balance amount, with interest @ 14% p.a. Rs.6,441/, cost of the legal notice Rs.2,500/, and to pay damages to the tune of Rs. 25,000/ towards the hardship and mental agony suffered by the complainant.
II. The brief facts of the case are as under:
The top Number Complaint lodged by the complainant against the above of the opposite parties Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant is the registered owner of Innova car bearing Reg. No. KA.19 MB.2752 chassis No. MBJ11JV400722 and engine No.2KD6568290. The complainant had insured his aforesaid vehicle under opposite party No.1 and had paid sum premium of Rs. 36,738/ as per policy bearing No. OG.11.1702.1801.00001575. The above insurance policy had coverage for a period from 09.09.2010 to 08.09.2011.
Further submitted that when the things stood thus, aforesaid vehicle of complainant met with an accident on 29.05.2011 and hence, complainant had kept the vehicle for repair before M/s United Cars Pvt. Ltd. Mangalore, an authorized dealer/workshop of Toyota India. Since the vehicle in question was covered under comprehensive policy, the intimation of the same was given to opposite party No.2 (Claim No.OC.12.1702.1801.00000249), who also conducted inspection of the vehicle and estimation of the expenses to be incurred was forwarded to opposite parties, after conducting aforesaid procedures, M/s united Cars Pvt. Ltd. Mangalore, repaired aforesaid vehicle and charged total bill amount of Rs. 36,692/ to the complainant. After receipt of aforesaid Bill complainant contacted opposite party No.1 and requested them to pay the said sum since vehicle in question was insured under comprehensive policy. Opposite party No.1 however, informed complainant to pay the said sum to M/s United Cars Pvt. Ltd. Mangalore and assured to complainant that the entire bill amount will be refunded to him by the company after receipt of the original bill from M/s United Cars Pvt. Ltd Mangalore. Accordingly, the complainant had paid entire sum of Rs. 36,692/ to M/s United Cars Pvt. Ltd Mangalore on 03.06.2011.
Further submitted that , a week thereafter, the complainant has received information from his banker that you have remitted an amount of Rs.20,307/ and Rs.8,944/ by way of two separate cheques dated 10.06.2011 and 11.06.2011 respectively to the bank account of the complainant. The complainant was shocked to learn that as against bill amount of Rs.36,692/ opposite parties have paid an amount of Rs. 29,251/ only by way of aforesaid cash remittance. When the complainant enquired about the same, the opposite party No.1 failed to give any positive explanation and refused to re imbrues entire amount. Further, as per policy, opposite parties have undertaken to indemnify the complainant for the loss or damage to be caused out of aforesaid vehicle, however, subject to compulsory deduction of Rs. 1,000/. Hence as per terms of the policy obtained by complainant, opposite parties ought to have paid an amount of Rs. 35,692/ as against the total bill amount of Rs.36,692/. However, contrary to the terms of the policy, opposite parties have illegally and fraudulently, remitted only sum of Rs. 29,251/ and thereby will fully caused loss of Rs. 6,441/ complainant. The failure on part of opposite parties to re imburse entire sum spent by the complainant towards the repair of the insured vehicle amounts to unfair trade practices and deficiency of service. Further, opposite parties have deliberately and mischievously cheated complainant to the tune of Rs. 6,441/ illegal act of the opposite parties have caused substantial loss and damage to complainant. The complainant has also suffered irreparable hardship and mental agony in view of the illegal acts of the opposite parties, for which the opposite parties are liable to compensate the complainant herein.
Since the opposite parties have failed to compensate the complainant to the loss caused to him, the complainant has caused regd. Legal notice dated 17.08.2011, calling upon the opposite parties to pay to the complainant to pay total sum of Rs.6,441/ being the minimum loss caused to him with an interest at the rate of 14/ per annum from 03.06.2011, till realization. The opposite parties however, refused to comply with the said legitimate demand of the complainant. Hence, the complainant was constrained to file present complainant seeking following reliefs.
III. Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite parties by RPAD with copies of the complainant. Inspite of receiving version notice the opposite party No.1 the opposite parties appeared through their counsel filed separate version. It is stated that the opposite parties all the allegation that the complaint made by the complainant. There is no cause of action for the complainant to file complaint. The insurance of Policy No.OG.11.1702.1801. 00001575 from 09.09.2010 to 08.09.2011 in respect of the complainant vehicle with chassis No. MBJ11JV4007227832071 and engine No. 2KD6568290 is admitted. But the benefit herein is restricted to the terms and conditions mentioned in it. That the opposite parties on receipt of claim from the complainant towards the damages to his car in an accident dated 29.05.2011 deputed the surveyor and assessed the loss. The claim is settled and paid to the complainant in accordance with the survey report as per the terms and conditions of the policy. Further submitted that no claim is entertain able or payable as per the bills produced by the complainant and the claim has to be settled only as per the policy terms issued after assessing the loss by statutory surveyor appointed by the IRDA licensed surveyor U/S 64 UM of the Insurance Act. 1938 for assessing loss and deducting the compulsory deductions like depreciation, salvage charges and policy access. Therefore the further claim of complainant as prayed by him is baseless and untenable under the policy norms.
IV. 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 there is a deficiency of service on the part of the Opposite Party?
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) and (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (i and ii)
Let us taken the matter for assigning the reasons in come to a conclusion even by discussion, we taken up above together of the above points 1 and 2. Likewise the claim in the matter by the complainant against the opposite parties against opposite parties for claiming balance amount a sum Rs.6,441/. The said claim of is strength that the admitted fact of the innova car bearing registration No. KA.19 MB.2752, was net with an accident and got damage mechanically, with respect to the date of 29.05.2011. The that a fact there is no in dispute in all even by any of the apposite parties. In the result as per the said admitted insurance policy is concern, which issued had coverage for a period of 09.09.2010 to 08.09.2011 also such being so the opposite party also collected to total use sum of premium amount of Rs. 36,738/ by that time, from the opposite party accordingly, the document available and got Exhibit as per Ex R 2 is the policy, in the record before has. Despite none of the opposite party his ready to comply even as per the terms and conditions mentioned therein though it was an contractual agreement and it is be law of contract as well as indemnity, even it’s in the mind of both the opposite party.
At this juncture it is a clear case and fact that it is in favor valuation of principles of trade policy as well as principles of natural justice including
it is of favor deficiency in service. Further one more important point to be kept in mind in this circumstances and situations is why the opposite party is not able to comply its own terms and conditions made there in and by them in the said Ex R2 admitted document of insurance policy. Because, the averment pound in the said document is observed by us that, compulsory deductible is Rs. 1,000/ additional compulsory deductible is Rs.00/(Zero). As it is so in the said insurance policy Ex R2 admitted document is concern, in the circumstances of any claim arises, the opposite party is only empower to deduct only a sum of Rs. 1,000/, irrespective of the claim arises with in the stipulated period of time, of its coverage of the policy. Such being so, even in the case on hand it is the total claim made against the opposite party his only a sum of Rs. 36,392/ towards total repair charges, of the said damaged vehicle innova car, which incurred by the complainant and later the legal demand and claim made by his with the opposite party only a difference claim for a tune of Rs. 6,441/ only. The said calculation his that even as per the final bill available in the record issue by measures united cars Pvt. Ltd Mangalore dated 03.06.2011 his for a total sum of Rs. 36,692/ the said entire amount was paid by the complainant to them and thereafter got delivery of the said referred car by the complaint. Later, even as per Ex C3 document HDFC Bank extract of account discloses that on 2 occasions the complaint is in receipt of only as sum of Rs. 29,251/ from the opposite party. But has we observed that Ex R 5 document of the opposite party is without any date, as produced by them. So, the same is produced for the purpose of the case and it is also not believable. Hence, it is ignored while concluding this claim hence, this complaint raised by him for the balance of difference amount of a sum of Rs. 6,441/. The said demand and claim is also after making deduction of a sum Rs. 1,000/ towards compulsory deductible amount, as per the document of insurance policy. Such being so, even as per the contract and indemnity it is the clear and admitted fact that the opposite party is liable even to pay the said balance claim and demand of a sum Rs. 6,441/, which made by the complainant. Because, it is the contract as per the document Ex R2 policy. Except the said compulsory deductible amount of Rs. 1,000/, nothing should be either deduct are to be kept in the hence of the opposite party for this without any either reasonable grounds are meaning, the opposite party unnecessary kept the same with them for their utilization, without making payment to the complaint at least it is the bounden duty of the opposite party is that, the same to make good by way of making payment of the same, in full to the complainant, has demanded by him. And also not to give room, in order to large the complaint like this before has. By keeping all the above facts and circumstances we have now any hesitation in along the above complaint against the opposite party, is only for legal entitlement. With regard to doing so by us that there is a deference of service including untried practice , done by opposite party and which cause to the complaint, even with causing economical loss, suffering and mental agony. For compensating this a, we hold that both the points No. 1 and 2 have answered has in the affirmative. Accordingly, toward the claim the concerned the said balance amount of Rs.6,441/ in full is order to pay to the complainant by the opposite party has the complainant his entitle. Further, since unnecessary keeping the same till the day by the opposite party from the date of accident 29.05.2011, the opposite party is also liable to pay sum of Rs. 6,441/, including with the interest at the rate of 10% up to from 29.05.2011 till realization. Further, even teach a lesson to the opposite party in the similar matters the opposite is also liable to pay the meager a sum of Rs. 5,000/ towards compensation to the complainant, has he is also entitle for the same. That apart another sum of Rs. 3,000/ to pay by the opposite party towards cost and litigation expenses of this case which incurred by the complainant.
POINTS No. (iii): In the result, accordingly we pass the following Order:
ORDER
The complaint is allowed. The opposite parties are liable to pay for a sum of Rs. 6,441/(Ruppees Six thousand four hundred and forty one only) with accrued interest at the rate of 10% per annum from 29.05.2011 to till payment. Further, opposite parties are also liable to pay for a sum of Rs. 5,000/ (Rupees Five thousand only) towards compensation and also to pay Rs. 3,000/ (Rupees three thousand only) towards cost and litigation expenses incurred by the complainant. Hence the payment shall be made within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 10 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28th day of September 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C. V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Mr. Kiran Kidiyoor
Documents marked on behalf of the Complainant:
Ex.C1: Dated: 17.08.2011 Copy of the Legal Notice send to opposite Party No.1 and 2 along with Acknowledgement and postal receipt.
Ex.C2: Dated: 14.09.2010 Certificate cum policy schedule issued by Bajaj Allianz General Insurance Company to Complainant. Ex.C3: Dated: 14.06.2011 Account Statement of the complainant.
Witnesses examined on behalf of the Opposite Parties:
RW 1: Sadashiva.K.
Documents produced on behalf of the Opposite Parties:
Ex.R1: Authorization Letter.
Ex.R2: True copy of policy with terms and conditions.
Ex.R3: Policy Holder’s Manual.
Ex.R4: Final Survey Report.
Ex.R5: Discharge voucher.
Dated: 28.09.2016. PRESIDENT
