Date of Filing:18/04/2011

        Date of Order:27/06/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  27^th DAY OF JUNE 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 748 OF 2011

M. Veerabhadraiah,

S/o. M. Mallaiah,

Aged About 54 years,

R/at: No.141, First Floor,

13^th Main, 27^th Cross,

3^rd Block, Jayanagar,

BANGALORE-11.                                                                 ….  Complainant.

V/s

1) The Manager/

Royal Sundaram Alliance Insurance

Company Limited, No.186/7,

Raghavendra Plaza, 2^nd Floor,

1^st Cross, Wilson Garden,

Hosur Main Road,

BANGALORE-560 027.

2) THE Manager,

Royal Sundaram Alliance Insurance

Company Limited, Sundaram Tower

Road, No.45 ^ 46 wile Road,

Chennai-600 014.                                                         …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.3,51,918/- with interest, are necessary:-

          The complainant is the owner of Accent CRDI Diesel car bearing registration No. KA-05-MC-9562.  He purchased the said car for Rs.3,51,318/-.  It was insured with the opposite party and renewed.  The insurance was valid between 21.10.2010 to 20.10.2011 and the value agreed was Rs.3,00,000/-.  On 23.10.2010 the said vehicle met with an accident and damaged owing to the rash and negligent driving of the driver of the Maruthi car bearing No. KA-01-MB-6759.  A case in criminal No. 226/2010 was registered by the jurisdictional police on 23.10.2010 against the offending driver of the Maruthi car.  This has been intimated to the opposite party on the same day to one Sri. Kannan and as per his advice the vehicle was shifted from the accidental place to the police station and then to Trident Automobile Private Limited, Bangalore for repair.  The complainant has spent Rs.6,000/- towards towing charges.  The said Trident Automobile Private Limited had given estimation for the repair.  The complainant paid Rs.40,000/- as advance on 12.11.2010.  In first week of December-2010 the Trident Automobile Private Limited telephoned to the complainant to take delivery of the vehicle by paying repair charges of Rs.2,45,918/-.  It was intimated to the opposite party on 14.12.2010 and also on 10.01.2011.  As there was no response from the opposite party, to avoid the damage to the vehicle the vehicle was taken delivery on 11.12.2010 by paying Rs.2,45,918/-.  The inaction of the opposite party is deliberate and intentional is nothing but unfair trade practice and deficiency in service.  Hence the complainant is entitled to the reimbursement of the repair charges and damages of Rs.1,00,000/-.

2.       In brief the version of the opposite parties are:-

          The ownership of the vehicle, its insurance with the opposite party, its validity, it met with an accident, its limitation to the opposite party, its leaving with M/s. Trident Automobiles Private Limited are all admitted.  The opposite party appointed an Insurance Regulatory and Development Authority licensed Surveyor Mr. B. Sunil for assessing the loss and the said surveyor gave a detailed report stating that the net liability of the repair would be Rs.1,15,000/-.  The vehicle suffered depreciation at the rate of 50% for Rs.59,893/- and salvage was valued at Rs.1,000/- apart from the policy excess of Rs.500/-.  As per the liability computation done by the statutory surveyor for repair damages cost incurred by the complainant a sum of Rs.1,29,781/- was sent to the repairer M/s. Trident Automobiles Limited for the cashless repair undertaken for the vehicle vide letter dated: 09.02.2011.  A cheque for the said amount was sent to the repairer on 13.12.2010, but it was returned to the opposite party on 22.02.2011 stating that the complainant has already paid the dues.  The claim of the complainant was settled as per the surveyors report.  Therefore there is no deficiency in service.  In view of the decisions reported in III (2009) CPJ 4 (NC), III (2009) CPJ 194 (NC), III (2009) CPJ 262 (NC) the complaint has to be dismissed.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the parties have filed their respective affidavits.  The complainant has also filed the written arguments.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is deficiency in service?
2. What Order?

5.       Our findings are:-

Point (A) & (B):        As per the final Order

                             for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record it is an admitted fact that the complainant has purchased KA-05-MC-9562 the Accent CRDI Diesel car and it was registered in his name on 22.10.2005.  It was insured with the opposite party and renewed.  The policy was renewed from time to time and the policy No.VPC0072454000102 was issued which is valid from 21.10.2010 till the mid night of 20.10.2011.  The value declared was Rs.3,00,000/-.  That is to say that depreciated value has been given hence the question of depreciating further in the value of the vehicle does not arise.

7.       Anyway further it is an undisputed fact that on 23.10.2010 at 1.45 pm the vehicle met with an accident and sustained damages.  Accordingly a complaint was lodged with the jurisdictional police i.e., the Traffic Police, Ramanagara, who registered the case in crime No.246/2010, issued FIR and conducted the investigation.  Further it is an admitted fact that this was intimated to the opposite party and the representative of the opposite party Mr. Kannan asked the complainant to remove the vehicle from the accidental spot to the police station and to M/s. Trident Automobiles Private Limited, Yeshwanthpura Yard, Bangalore, for repair.  Accordingly the complainant towed the vehicle to the police station and to the M/s. Trident Automobiles Private Limited and left the vehicle there for repairs.

8.       It is also an admitted fact that the opposite party No.1 has not paid the amount to anybody.  Hence the complainant paid Rs.40,000/- as advance on 12.11.2010 to M/s. Trident Automobiles Private Limited by receipt No.N201006257.  Even after that no amount has been paid, no correspondence took place between the opposite party and M/s. Trident Automobiles Private Limited.  Hence the complainant paid Rs.2,51,918/- to M/s. Trident Automobiles Private Limited as per their bill, the tax invoice Nos. B201022039, B201022675 and receipt No.RPT/YPRSC/2190/10-11 and took the delivery of the vehicle.  The complainant had also issued a notice to the opposite party on 14.12.2010.  Even after receipt of the same the amount was not paid.  Hence the complainant issued another notice dated: 03.01.2011, 31.01.2011 to the opposite party.  Though it has received, it has not replied to the complainant nor paid the amount.  This is nothing but deficiency in service and unfair trade practice.

9.       The contention of the opposite party is that it has appointed a surveyor by name Mr. Sunil who assessed and gave the report.  According to which their liability is only Rs.1,28,957/- as the vehicle has suffered depreciation at 50% for Rs.59,893/- and salvage was valued at Rs.1,000/- apart from the policy excess of Rs.500/-;  Which they had sent to M/s. Trident Automobiles Private Limited on 10.02.2011, but the Trident Automobiles Private Limited has returned the cheque to them on 22.02.2011 stating that the complainant has taken back the vehicle hence they are not liable.  This is an untenable contention.

10.     According to the letter dated: 10.02.2011 the opposite party had enclosed the cheque No.85822 dated: 13.12.2010 to M/s. Trident Automobiles Private Limited.  How this could happen on 10.02.2011?  How can they enclose the cheque of 13.12.2010? there is no answer.  If the cheque is ready on 13.12.2010 they could have sent that cheque to the M/s. Trident Automobiles Private Limited on 13.12.2010 itself.  Why they waited for two months to send the cheque.  That means the cheque has not been prepared on 13.12.2010 nor it was sent to the Trident Automobiles Private Limited.  Immediately only after the complainant took delivery of the vehicle by paying full amount this cheque has been concocted sent to Trident Automobiles Private Limited and got it back.  Even after return of the cheque from the Trident Automobiles Private Limited why the opposite party has not sent the amount to the complainant?  There is no answer.

11.     It is not stated that the complainant had insured the vehicle for the original value of the vehicle.  Only the depreciation value has been given in renewing the vehicle at the time of renewed for 2010 and 2011.  Hence taking depreciation, salvage charges or policy excess is nothing but deficiency in service.

12.     Even otherwise the Surveyor has not been examined before this Forum nor his affidavit has been filed.  Why surveyor has given the report stating that the value of the repair is only Rs.1,28,957/-.  Without the affidavit of the Surveyor how can we say his report is gospel truth.  Even otherwise how can the Surveyor again gave depreciation when the value of the vehicle itself has been depreciated and taken insurance for the depreciated value?  There is no answer.  In any event the complainant has claimed Rs.2,51,918/- which is corroborated by the bills.  The Surveyor has assessed the value of the repair charges at Rs.1,29,781/-.  Always the surveyor will try to reduce as much as possible so that he can be in good books in the insurance company.  The repairer will always be giving to charge, more, so that he can be in good books with the insurer.  That means both gave extreme values for repair.  Hence under these circumstances if we take the average of these two which will comes to Rs.1,90,853/- and order that to be paid that will meet the ends of justice.  No amount has been paid by the opposite party to the complainant.  The vehicle is repaired.  For that purpose the insurance is made.  The opposite party cannot escape its liability in paying the amount to the complainant.  Hence if we direct the opposite party to pay this amount to the complainant along with the cost of this litigation we think that will meet the ends of justice.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant a sum of Rs.1,90,853/- together with interest thereon at the rate of 12% per annum from 11.12.2010 until payment within 30 days.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite parties shall send the amount as ordered above in Serial Nos. 2 and 3 by way of D.D. to the complainant through registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 27^th Day of June 2011)

MEMBER                                           MEMBER                          PRESIDENT