By Sri. MOHANDASAN.K, PRESIDENT

Case of the complainant is as follows:-

1.         The complainant is the registered owner of the vehicle No.KL 55 L 2197 Nissan Micra Car. The vehicle is insured with National Insurance Company limited. The vehicle   was entrusted with the opposite party for the repair works on 08/02/2021 who is the authorized service centre of the vehicle. The concerned engineers of the opposite party examined the damages of the vehicle and prepared an estimate. Subsequently the insurance surveyor also verified the damages of the vehicle and they approved for the repair work.

2.         The first opposite party told to the complainant that there will be delay for the payment of insurance amount and so the complainant is required to pay an advance amount of Rs.60,000/-. Accordingly the complainant transferred an amount of Rs.60, 000 to the account of the opposite party. Subsequently the insurance company sanctioned an amount of Rs. 97,500/- for the repair work. The first opposite party informed the complainant that the repair work is completed and the vehicle is to be taken away by the complainant. When the complainant approached the opposite party they demanded a further amount of Rs.30,000/- in addition to the advance payment of 60,000/-rupees and the insurance amount of Rs.97,500/-. The complainant asked what are the works done to cause this much expense and then the replay of the opposite party was that  many parts of the vehicle has been replaced and that is the reason for the cost of repair work. Then the complainant demanded to show the replaced parts but then the answer was that the same disposed as part of scrap items. Hence the complainant issued email to the opposite party on 29/07/2021 to issue the replaced parts to the complainant.

3.         The complainant submitted that when the vehicle was started to use again found defective and the performance of the vehicle has considerably affected. The opposite party said that the issue is due to defect to battery and on replacement of the same the defect will be all right. Accordingly the said battery was replaced and even then the technicians of the opposite party noted the complaint. The AC was defective and then the complainant refused to take delivery of the vehicle. The complainant alleges the vehicle was idle with the opposite party for the last 8 months and so the complainant was compelled to avail taxi for his personal purpose. The complainant submitted that the act of the opposite party amounts deficiency in service and unfair trade practice and due to the same he suffered a lot of inconvenience, hardship and mental agony.  The  prayer of the complainant  is to repair the vehicle  properly and direct the opposite party  to deliver the replaced parts along with  2 lakh rupees as compensation on account  of financial loss and Rs.10,00,000/-  as mental agony and also appropriate cost of the proceedings .

4.         On admission of the complainant notice was issued to the opposite parties and the opposite parties entered appearance and filed version. The opposite parties contended that the complaint is bad for non-joinder of necessary parties and the insurance company i.e national insurance company is an essential party in the proceedings.

5.         The opposite parties admitted that the vehicle bearing No. KL 55 L 2197 was entrusted with the opposite parties for repair work. The claim for the repair work was duly submitted before the insurance company and the company deputed the surveyor. On 08/02/2021 the surveyor inspected the vehicle and accordingly the repairs to be done was fixed by the surveyor and complainant. The insurer stated that they cannot pay the repair charges to the opposite party and directed the complainant to pay for the repair.  The complainant agreed to pay the repair charges to the opposite party and the deal was principal to principal.  Detailed estimate prepared and the same was given to the complainant and the representative of insurance company.  There was direction to comply the directions of the insurer for all purposes which was agreed by the complainant. The repair was monitored by insurance company surveyor.  The opposite party was only permitted to do the repair as directed by the insurance company.  To start the repair the insurance surveyor directed the opposite parties to dismantle the part and the surveyor took photo graphs of the vehicle and parts. The surveyor submitted detailed report to the insurance company. It was informed that some spares to be replaced and for some labour etc. are not covered under the insurance policy and depreciation is to be applied. The insurance company is having many conditions with regard to depreciation, exemption, exclusions etc., and the same is entered in to between the complainant and insurance company. The opposite party is not having agreement with the complainant and   insurance company .The insurer informed the opposite party that they will process the bill as per the agreed policy conditions and they will sanction only eligible amount.  The complainant was directed to pay the balance amount and the complainant agreed for the same.  The same was intimated to the opposite party and thereby the complainant deposited Rs.60, 000/- as advance payment on 09/03/2021 as directed by the insurance company.

6.         The repair work started after the direction received from the surveyor. The total repair cost was rupees 1, 67,872/-. The matter was informed to the complainant and the complainant stated that he is not having money to pay for the repair. The complainant verified the repairs done and checked the entire work done before finalizing the report of surveyor. The complainant checked the replaced spares, damaged spares and detailed inspection was done by him and his friend- a work shop mechanic.  The complainant contacted insurance company and submitted the records.  The insurance company processed the claim and paid Rs. 97,500/- to the opposite party as per direction of complainant and it was given only on 19/07/2021. It was informed that it was the only amount payable as per the insurance policy and balance amount is not payable as per policy conditions since the vehicle is of 2012 model. The complainant contacted the opposite party and stated that he is taking steps to get more amount from the insurance company. The salvage were collected by the insurance company as routine procedure. There was balance damaged spares which are scraps of no value. The insurer took note of the replaced parts and calculated its value in the survey report as well as final report.  The salvages such as replaced parts scraps, damaged parts etc. belonged to the insurance company as per policy condition, it is property of insurance company and their contractor removed some parts from the service centre as per policy conditions.  After the repair the complainant and the surveyor of the insurance company inspected the vehicle, repaired parts, and replaced parts, removed parts and the work done.  After due satisfaction the insurance company processed the insurance claim. The survey report is self-explanatory for all purposes. The same was agreed by the complainant and he is estopped from disputing the same before a court of law.

7.         The opposite party submitted that due to covid pandemic situation the local health department was conducting throughout in the workshops, service centres, etc. and directed to remove all based including scraped spare parts, oils, consumables, etc. before starting the monsoon season. There was some scraped parts of the complainant’s vehicle and other vehicles heaped out the service centre and the same was removed to fight against pandemic. The said rusted damaged metal, plastic, fibre parts are of no value and the same was discarded by the insurance company.

8.         The opposite party submitted that the complainant not taken delivery of the vehicle even after the insurance company paid the bills and the request the pay bill was not complied by the complainant. The balance amount payable was Rs. 30,000/-. The complainant was not willing to pay the amount stating one reason or other. Complainant stated that he is not having money and he is not taking delivery of the vehicle. More over the complainant stated that the vehicle is an old model and he is looking new one.

9.         The specific contention of the opposite party is that as per the policy conditions the removed, replaced, repaired parts are belong to the insurance company and they will calculate for the same in their survey report since it is the property of the insurance company.

10.       The opposite parties specifically denied each and every contentions in the complaint. The opposite parties denied the claim of the complainant that the complainant is entitled for loss of business to the tune of Rs.2,00,000/- that he is entitled compensation of Rs.10,00,000/-  etc.  It is submitted that they had issued detailed estimate to the complainant. The complainant directed to replace the entire damaged portion, parts with brand new spares. The vehicle is having branch new spares and the insurance company will pay its value after depreciation considering the 9 year old vehicle. Hence the submission of the opposite party is that insurer is a necessary party   and the complainant is not maintainable against the opposite parties and so liable to dismiss with cost to the opposite parties.

11.       The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 and A2. Insurance survey report marked as Ext. C1. The opposite party did not file documents. Ext. A1 is copy of email message issued by opposite party to the complainant. Ext. A2 is copy of letter issued by national insurance company to the complainant dated 23/06/2022 as reply to the letter of complainant dated 16/06/2022.

12.       Heard complainant and opposite parties, perused affidavit and documents. The following points arise for consideration:-

1. Whether   there is deficiency in service on the part of the opposite parties?
2. Whether the complaint is  not  defective due to non-joinder of necessary

       Party?

3) Relief and cost?

13.       Points No 1 to 3

            The complainant submitted that he approached the opposite parties for the repair of his vehicle on 08/02/2021 with the insurance coverage of national insurance company. But the opposite parties directed the complainant to pay an advance amount of Rs.60, 000/- towards the repair cost. Subsequently the insurance company as per insurance survey report allowed Rs.97, 500/- in favour of the opposite parties. While the complainant approached the opposite parties for the release of the vehicle the opposite parties further demanded 30,000/- rupees from the complainant. At that time the complainant demanded the replaced parts from the opposite party but the opposite parties failed to provide the same. Moreover while the complainant started to use the vehicle it was also noted the defect of the vehicle not fully rectified. Hence the complainant refused to take delivery of the vehicle and so the vehicle is idle at the workshop of the opposite party. Due to the act of the opposite parties, the complainant submitted that he sustained huge financial loss as well as inconvenience and hardships.

14.       On the other hand the opposite party submitted that the vehicle was an old one and so the opposite parties were not having tie-up with the insurance company, duly requested the complainant to pay some amount towards as advance for the repair work. It was also submitted that they had informed the complainant some parts are to be replaced. The insurance company allowed the repair cost in accordance with survey report after considering the depreciation value of the vehicle. So there is no delay caused according to the opposite party in providing service. The opposite parties repaired the vehicle at the supervision of insurance company as well as the complainant. The delay for the repair work was caused only due to the delay in sanctioning the commencement of repair work from the side of complainant and the insurance company. More over the opposite parties contented that complainant was suffering from financial stringency and that also caused for delay in taking delivery of the vehicle. Now the dispute is with respect to non-delivery of replaced parts to the complainant 

15.       The opposite party submitted that the relevant period was being covid pandemic, the health officials inspected the premises of the opposite party and recommended to remove all the scraped parts and oils from the premises before starting monsoon and the scraped vehicle parts of the complainant included in the removed scraped parts. Ext.A1 shows the facts regarding the contention of the opposite parties. On perusal of Ext. A1 it can be seen that the opposite parties failed to provide replaced parts to the complainant, which the complainant is entitled. The opposite party contended that these replaced parts are not entitled to the complainant but they are the assets of the insurance company. The complainant produced ext. A2 letter issued by the insurance company to the complainant which specifically revealed the salvage items are the property of the insured who is the owner of the vehicle. So the contention of the opposite parties regarding the entitlement of salvages is baseless and incorrect.

16.       It can be seen that the complainant though alleged defects to the vehicle, even after the service, which is not proved before this Commission. There is no evidence for the contention of the complainant regarding defective service to the vehicle. But the fact remains that the opposite parties failed to provide replaced parts to the complainant which the complainant is entitled.  Hence we find that there is deficiency in service on the part of opposite parties.

17.       The opposite parties contended that the insurance company is a necessary party in the complaint. But it can be seen that the insurance company duly deputed a surveyor and on the basis of survey report the insurance company issued approved claim in favour of the opposite parties. There is no specific allegation against the insurance company from the side of complainant and so the contention regarding non joinder of insurance company is not sustainable. The insurance survey report assessed liability as Rs.97, 595/-. Ext. C1 reveals the salvage value as Rs.300/-. There is no other document to see the cost of replaced parts. Hence the complainant is entitled the salvage value of Rs.300/-. It is also found that the opposite parties failed to provide the replaced parts to the complainant despite repeated demands. The explanation offered from the side of opposite parties is not proper and acceptable and so the complainant is entitled compensation of Rs.20, 000/- on account of defective service from the side of opposite parties. The complainant also entitled Rs.5, 000/- as cost of the proceedings. 

18.      In the light of above facts and circumstances we allow the complaint as follows:-

1. The opposite parties are directed to pay Rs. 300/- (Rupees three hundred only) to the complainant as the salvage value assessed by the surveyor as per Ext. C1.

     2) The opposite parties are directed to pay Rs. 20,000/- (Rupees twenty thousand

           Only) as compensation on account of deficiency in service and thereby caused       

             Inconvenience and hardship to the complainant

3. The opposite parties are directed to pay Rs.5, 000/- (Rupees five thousand only) to the complainant as cost of the proceedings.

The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled interest at the rate of 12% per annum from the date of order to till date of payment. 

Dated this 19^th day of February, 2024.

Mohandasan. K, President

     Preethi Sivaraman.C, Member

     Mohamed Ismayil.C.V, Member

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1 and A2

Ext.A1: Copy of email message issued by opposite party to the complainant.

Ext.A2: Copy of letter issued by national insurance company to the complainant dated

            23/06/2022 as reply to the letter of complainant dated 16/06/2022.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Nil

Mohandasan. K, President

     Preethi Sivaraman.C, Member

     Mohamed Ismayil.C.V, Member