By:Sri. A.A.Vijayan, President
The complaint is filed under section 12 of the the consumer protection act.
The short account of the claim of complainant is as follows.
The complainant had purchased a motor bike Hero extreme from first opposite party on 28-8-2013 for an amount of Rs.76900/-. On 9-11-2013 the vehicle was damaged due to an accident and when first opposite party was contacted the complainant was directed to entrust the vehicle to the nearest showroom of Hero and also lodged the claim before insurance company. The insurance company evaded liability stating that being a new vehicle responsibility is vested in Hero motor corp. The first and 2nd opposite parties ( dealer and insurance company) are responsible to replace the damaged vehicle after informing the manufacturing company. The complainant requested for Rs.76390/- being the value of the bike together with compensation his hospital expenses and damages.
The first and 3rd opposite party filed the joint version as follows it is true that the complainant has purchased the motor cycle from the first opposite party and that was manufactured by 3rd opposite party. The first opposite party was not informed about the accident as alleged in the complainant. He has never brought his motor cycle for service to the first opposite party after he purchased it. The complainant does not know how the accident occurred. He is giving different versions as to how the accident occurred. There is no cause of action against these opposite parties. Hence the complaint is to be dismissed.
The 2nd opposite party filed separate version as follows. The complainant had submitted an intimation letter and a claim form on 12-11-2013 before this opposite party stating that on 11-11-2013 his motor cycle met with an accident by hitting against the compound wall. A surveyor was appointed by this opposite party to asses the damages caused to the motor cycle. The surveyor inspected the damage of motor cycle at Kalikavu and found that date of accident was different and it does not tally with hospital records. The cause of accident also did not tally with damages noted. Thus on 11-1-14 a letter was issued by surveyor to the complainant stating that actual date of accident was 9-11-2013. More over complainant revealed later that after the accident a jeep ran over the motor cycle. The surveyor submitted the report on 22-1-14 stating that the get the liability of this opposite parties for repairing the vehicle is to Rs.33410.50. The complainant is bound by terms and conditions of the insurance company. As per the policy conditions immediately after the the accident the complainant should have informed the insurance company by notice and writing more over the complainant should have informed to the concerned police station. The complainant failed to perform his duties as per the policy conditions, on the other hand he gave wrong information to these opposite parties. If complainant had given correct information the surveyor would have submitted his report early. The delay caused in assessing the damages was due to negligence of the complainant. This opposite party is ready to pay the amount recommended by the surveyor. There is no deficiency in service of this opposite party. The whole liability of 2nd opposite party under the policy cannot exceed Rs.74794/-. The opposite party's liability to compensate complainant as subject to the price to the spares and labour rate prevalent at the time of accident. I f delay is caused in settling the claim, labour charge and cost of the spares would change and this opposite parties is not responsible for paying that excess amount. The complainant has not entitled to claim expenses of his treatment.
The complainant filed proof affidavit and Ext. A1 to A8 marked. Opposite parties also filed separate poof affidavit and Ext. B1 to B7 are marked.
Points arise for for consideration:-
(1) Whether the complainant is entitled to get his damaged bike replaced?
(2) Whether complainant is entitled to damages and compensation if any? If so who is responsible for making the payment.
(3) Relief and cost?
Point No.1 and 2
Admittedly complainant had purchased the vehicle from first opposite party as seen from Ext.A1, the vehicle invoice and Ext.A2 the delivery note. Ext. B1 is the insurance policy, Ext. B2 is the report of the surveyor assessing the damages caused the vehicle and the cost of repairing . Ext. B4 is claim form the complainant submitted before the 2nd opposite party. Ext. B3 the intimation given to 2nd opposite party after the accident. Ext. A1 and A2 reveal that the complainant purchased the vehicle from first opposite party and it was manufactured by opposite party No.3 Ext. A5 is the insurance policy issued by opposite party No.2.
If the vehicle was damaged due to manufacturing defect opposite party No.3 will be responsible and the manufacturer can be directed to replace the vehicle. Similarly if damage is caused to by improper service given by the first opposite party, the dealer, he has to repair the vehicle free of cost. In the present case the definite case of the complainant is that while he was traveling on the motor cycle it skidded side ways. He has no case that the accident occurred on account of the manufacturing defect of the vehicle or due to the negligence shown by opposite party No.1 in conducting proper service to the vehicle. On the other hand in the complaint the complainant never stated nature of the accident and damage caused to the vehicle. Even in the proof affidavit he did not disclose how the accident occurred and what are the damages caused to the vehicle. But in the claim intimation form and claim form which are marked as Ext. B3 and B4 prepared on 12-9-2013 it is made clear that the vehicle skidded side ways on the road and it dated against the near by wall. The same reason is stated in Ext. B5 letter issued by the complainant to the surveyor of the insurance company dated 11-01-2013. Again the complainant wrote letter to the manager of the 2nd opposite party which is marked as Ext. B6 and there in he has given a new story revealing that while he was riding the vehicle on reaching a turning he lost his control and it slid down. More over he further added that immediately a car ran over the bike and he became unconscious. It is to be noted that the complainant demanded the value of the motor cycle from the manufacturer (opposite party No.3), dealer (opposite party No1), and the insurance company. Admittedly the accident occurred while the complainant was driving the motor cycle. From the complainant as well as documents it has become obvious that it was a mere accident. There is no allegations for the complainant that the accident occurred on account of manufacturing defect of the vehicle or improper service done by opposite party No.1. In the light of such allegations opposite party No.1 and 3 cannot be made liable for the value of the vehicle or price spent by complainant for repairing the the vehicle and then the claim of complainant seems to be untenable against opposite party No.1 and 3. Firstly there is no allegation or evidence to prove manufacturing defect or improper service done by opposite party No.1 as a reason for the accident. Secondly the complainant claimed entire value of the motor cycle. There is no case for him that the damage of the motor cycle was beyond repairable. If the vehicle can be repaired he can claim, at the most the amount spent by him for repairing the vehicle, in the absence of any clause in agreements casting liability on opposite party No.1 and 3 to replace the vehicle. On evaluation of pleadings and evidence it can be rightly concluded that complainant failed to prove a cause of action against opposite party No.1 and 3.
Admittedly the complainant has taken a 2 wheeler package policy as Ext. B1 and that is admitted by opposite party No2, the insurance company. The alleged accident occurred , according to the complainant, on 9-11-2013 by skidding on the side of the road. But in the claim form submitted by complainant before the insurance company on 12-11-2013 which is marked as Ext. B4.. date of action is shown as 11-11-2013. The reason for the accident shown there in was skidding. The insurance company, in getting the claim of the complainant had appointed a surveyor and loss assessor and he filed a detailed report which is marked as Ext. B2. In this report the surveyors pointed out two important aspect. One is that the date of accident revealed by the complainant in the claim form does not tally with the hospital records of complainant, In the intimation given by the complainant to the insurance company which is marked as Ext. B3 he disclosed that his motor cycle skidded and hit against near by wall. It is stated by the surveyor in his report that since the date of accident and the nature of accident did not tally with hospital records and the damage caused to the vehicle respectively, a notice was sent to the complainant for clarification on 11-01-2014, copy is marked as Ext.A6. The complainant sent a letter to the surveyor which is marked as Ext. B5, as the replay to the letter sent by surveyors dated 1-1-2014 to the complainant. Ext. B7 dated 13/12/2013 is the letter sent by complainant to opposite party No.2 where in he changed the date of accident to 9-11-2013. In Ext. B5 he reiterated that the accident occurred by skidding of the bike on the muddy road. Here also he did not mention hitting of the vehicle on the side wall of the Road as seen in Ext.B3. It is stated by 2nd opposite party that complainant also informed the insurance company that when the motor cycle slid down a jeep ran over the motor cycle. This revealation is made by the complainant in the letter issued to the manager of the insurance company on 20-11-2013 which is marked as Ext. B6. From all these circumstances it is seen that complainant set up case that while he was riding the vehicle it skidded side ways on the road and hit against the wall and a jeep ran over the vehicle causing heavy damage to it. This claim is not denied by the opposite parties. Thus it can be concluded that when the complainant was going by bike it met with accident and heavy damage was caused to the motor cycle.
The surveyor appointed by the opposite party No.2 inspected the vehicle and prepared detailed report which is marked as Ext. B2 in which he has shown the total amount to be spent for repairing the vehicle which comes to Rs.33410.50 paisa. But in the report he access the labour charge as Rs.2250/- and total cost of parts and material was assessed as Rs.32260/.50. But he had shown original estimate of the parts and materials as Rs.49569/- it is not clarified by him in his report how he assessed the cost of materials at Rs.32360.50/-. There fore it can be concluded that the total cost of the parts and materials will be Rs.49569/- and the labour charge will be 2250/-. So the total amount to be spent for repairing the vehicle must be Rs.51819/- which can be rounded to 51800/-. Hence we come to the conclusion the the complainant is entitled to for Rs.51800/- from 2nd opposite party for repairing the vehicle and opposite party No.1 and 3 are not liable to pay the amount to complainant. Points are decide accordingly,
Point No.3
On the basis of the findings on the above point we allow the complaint against 2nd opposite party alone. The 2nd opposite party shall pay Rs.51800/- to complainant for repairing the vehicle within one month from the date of receipt of this order and Rs.10,000/- as compensation for mental agony of the complainant Rs.5000/- as cost of the proceedings. If the 2nd opposite party fail to pay above amount with in one month from the date of receipt of this order they shall pay the amount with 12% interest from the expires of above one month period.
Dated this 26th day of April, 2016
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A8
Ext.A1 : Vehicle invoice issued by 1st opposite party.
Ext.A2 : New vehicle delivery note issued by 1st opposite party.
Ext A3 : Registration certificate bearing vehicle No. KL – 71-2892.
Ext A4 : Photo copy the Driving License.
Ext A5 : Two wheeler certificate cum policy Schedule issued 2nd opposite party.
Ext A6 : A letter issued by insurance surveyor to the complainant.
Ext A7 : Letter send by the complainant to the surveyor, and its posts receipts
Ext A8 : Hero owners manual
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B7
Ext.B1(s) : Policy schedule with terms and conditions
Ext.B2 : Survey report with photos.
Ext.B3 : Accident intimation letter.
Ext.B4 : Motor claim form.
Ext.B5 : Letter.
Ext.B6 : Complainant letter to the 2nd opposite party.
Ext.B7 : Complainant letter to the 2nd opposite party.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
