BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 5th April 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.315/2011
(Admitted on 22.08.2011)
Mrs. Rashmi H. Shetty,
W/o Harish N. Shetty,
Aged 28 years,
C/o Sri Durga Agency,
Angaru House Compound,
Padubidri,
Udupi 564 111.
State of Karnataka
….. COMPLAINANT
(Advocate for the Complainant: Sri MPS)
VERSUS
1. The Regional Manager,
M/s Oriental Insurance Co. Ltd,
3rd Floor, Techno Polis,
1.1044, Bhickodi Gardens,
Begumpet,
Hyderabad 500 016.
2. The Divisional Manager,
M/s Oriental Insurance Co. Ltd,
P.B.No.48, Duty Plaza,
2nd Floor, Church Road,
Mangalore 01.
3. M/s Tata Motors Insurance
Broking & Advisory Service Ltd,
802/893, Tubiani Chambers,
Free Press Journal Marg,
Mumbai 500 211.
…........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 to No.3: Sri AKK)
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 claims her vehicle KA 20C/1282 covered under a policy issued by opposite party No.1 met with an accident on 2.6.11. For removing vehicle from the spot and the charges paid towards electric pole damaged in the accident complainant had paid to MSCOM Rs.14,447 in Rs.8,500 for clearing and cutting the trees. Opposite party insurance company complainant was informed about the accident M/s Arvind Motors Pvt Ltd estimated the repair cost at Rs.6,41,140 which is total loss the block of the engine has also broken. The service station had worked out the estimate after inspecting the vehicle thoroughly through surveyor during the course of discussions with the surveyor on the 20th June 2011 replied him to repair of the body, chassis and replacement of the drivers’ cabin only. There was sever damage to the engine. Even Tata Service Station given their opinion. Complainant had given the vehicle on contract basis to M/s Sree Manjunath Food and Packages Pvt Ltd on contract basis at Rs.42,000 per month and paid instalment of Rs.11,500 per month to the SBI. Alleging that the complainant assuming payment of the service station not willing to attend to the repair work of the vehicle. Contending that opposite parties failed to respond to the legal notice and giving authorization to the service station seeks relief claimed in the complaint.
II Opposite parties claimed in the version though denied alleging in the complaint did mentioned at the Para of 10 stated deputed opposite party No.1 and No.2 advised to dismantle the vehicle to assess the actual and exact loss sustained by the insured vehicle but the repairers were not authorized to do so and the surveyor brought this notice to the complainant but the opposite parties is not willing to discussion nor she authorised repairer to dismantle the vehicle. The surveyor found that the damages sustained are repairable and does not amount to total loss. As such the demand on complainant for the settlement is not justifiable. Both the repairer and complainant did not co-operate with the surveyor with opposite party No.1 and No.2 intention to repair the vehicle as the vehicle is not giving the assured mileage as disclosed by the opposite party No.3 and the dealer opposite party No.3 and the complainant wanted to get rid of the vehicle by taking undue advantage of the insure policy issued by the opposite party No.1 and No.2 though the insurance of the policy covered is not disputed. Hence seeks dismissal of the complaint.
2. In support of the above complainant Mr. N.J. Shetty, G.P.A Holder of the complainant Mrs. Rashmi H. Shetty (CW1) filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C25 as detailed in the annexure here below. On behalf of the opposite parties Mr. Gopikrishna Rao, Administrative Officer (RW1), Mr. P Krishna Murthy (RW2) Surveyor and Loss Assessor and Raghu Naik (RW3) Assistant Manager, Oriental Insurance company also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked at Ex.R1 to R2 as detailed in the annexure here below.
3. In fact after affidavit evidence and interrogatories and by hearing argument the concerned order dated 31st October 2012 this complaint was allowed with direction of opposite party No.1 and No.2 jointly and severally to pay Rs.6,30,800/ with interest and the cost. However opposite party No.1 and No.2 took the matter in the appeal before the State Consumer Forum and by order dated 8.9.2014 in Appeal No. 2165/12 was allowed and the order of this Forum dated 31.10.2012 was set aside and the matter was remanded for the fresh surveyor report with the direction to dismantle the vehicle in the presence of the appellant/insurance company person of the surveyor and the vehicle resurvey and then dispose of the case.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by parties. Our findings on the points are as under follows:
Point No. (i) : Partly Affirmative
Point No. (ii) : As per the final order.
REASONS
IV. POINTS No. (i): Subsequent to the remand the vehicle in question was resurveyed and the surveyor filed his report dated 20.10.16 field before the Forum. On 27.12.2016 in the report the surveyor assessed the loss at Rs.2,59,739/. It is now marked at Ex.R2. RW3 also examined after remand. RW2 filed additional affidavit evidence.
2. The learned counsel for complainant argued that the opposite party deliberately wanted dismantling of the vehicle even though as per Ex.C23 the Arvind Motors Pvt Ltd estimated the loss at Rs.5,93,540/ as quoted the total amount. However the learned counsel for complainant contends if the entire total loss of the vehicle complainant would have got the salvaged vehicle, it was also contended that so far the complainant paid Rs.3,19,000 as rental to opposite party No.3 the vehicle for repair was still kept in his premises. However it is to be noted that when opposite party No.1 and No.2 sought dismantling of the damaged vehicle to correctly asses the loss and estimate the damages caused and estimated the loss of the vehicle to be dismantled. Even as recorded by the State Commission in its order of remand this complainant refused permission to dismantle the vehicle. This fact is not disputed by learned counsel for complainant and rather admitted by learned counsel for complainant. The process of assessment of actual damage caused to the vehicle could not be assessed and estimated by the surveyor. Hence for the delay caused in the dismantling the complainant had to blame himself he cannot be permitted to shift the responsibility on any of the opponents. When opposite party No.1 and No.2 and their surveyor appointed wanted the accident vehicle to be dismantled admittedly the owner of the vehicle the complainant refused permission. Hence the liability to pay the rental charges due to be paid is by complainant to opposite party No.3 and it cannot be fastened to opposite party No.1 and No.2.
3. The surveyor having assessed the damages caused to the vehicle after dismantling at Rs.2,59,739 is the only amount the complainant is entitled to and none beyond that. It is to be noted at the cost of the repetition the delay was caused in completing the assessment was due to complainants’ refusal to grant permission for dismantling the damaged vehicle. Hence point No.1 partly answered in the affirmative.
POINTS No. (ii): Hence we are of the opinion that complainants’ claim for even when there was no refusal or no repudiation of the liability by opposite parties No.1 and No.2 to pay towards the damage caused to the vehicle of the complainant, while directing opposite party No.1 and No.2 jointly and severally to pay the amount assessed of Rs.2,59,739/. In case opposite party No.1 and No.2 failure to pay the amount within stipulated time shall be directed to pay interest at 10% from the date of complaint till the payment. Wherefore the following
ORDER
The complaint is partly allowed with cost. Opposite parties No.1 and No.2 jointly and severally directed to pay Rs.2,59,739/ (Rupees Two lakh Fifty Nine thousand Seven hundred Thirty Nine only) to complainant within 30 days from the date of receipt of copy of this order. On failure to pay the same amount opposite party shall pay interest on the above amount at 10% per annum from the date of complaint till the date of payment.
2. Complaint against opposite party No.3 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 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 5th April 2017)
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. N.J. Shetty
Documents marked on behalf of the Complainant:
Ex.C1: Office copy of Legal Notice dated 30.06.2011 along with postal acknowledgements
Ex.C2: Office copy of Legal Notice dated 11.07.2011 along with postal acknowledgements
Ex.C3: Copy of estimation dated 07.06.2011
Ex.C4: General Power of Attorney
Ex.C5: Intimation Letter dated 03.06.2011
Ex.C6: Insurance Policy
Ex.C7: Driving Licence and Badge
Ex.C8: Photographs and Newspaper cutting
Ex.C9: Letter from MESCOM dated 07.12.2011
Ex.C10: Receipt issued by MESCOM
Ex.C11: Cash Voucher dated 02.06.2011
Ex.C12: Cash Voucher dated 02.06.2011
Ex.C13: Cash Voucher dated 02.06.2011
Ex.C14: Copy of Tax invoice dated 27.04.2011
Ex.C15: Certificate of registration issued by RTO
Ex.C16: Goods Carriage Permit
Ex.C17: Copy of estimation dated 07.06.2011 (original Produced along with complaint)
Ex.C18: Letter dated 29.04.2011 written by Sri Manjunath Foods and Packaging Pvt Ltd to the complainant
Ex.C19: Letter dated 21.11.2011 issued by Arvind Motors
Ex.C20: Receipt issued by Canara Maritime
Ex.C21: Cash Voucher dated 02.06.2011
Ex.C22: Bank statement
Ex.C23: Original estimate of the vehicle
Ex.C24: Original tax invoice
Ex.C25: Endorsement given by the police station
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Gopikrishna Rao, Administrative Officer
RW2 Mr. P Krishna Murthy, Surveyor and Loss Assessor
RW3 Mr. Raghu Naik, Assistant Manager, Oriental Insurance Company
Documents marked on behalf of the Opposite Parties:
Ex.R1: 18.08.2011: Motor (Final Surveyor Report)
Ex.R2: 20.10.2016: Surveyors Report
Dated: 5.4.2017 PRESIDENT
