Complaint in short is as follows:-
1. The complainant is the registered owner of Honda City Motor car made of 2013 with registration No. KL- 02-AP- 5499 and which is insured with second opposite party through the first opposite party on 20/08/2019 vide policy No. ITG/82668082 with effect from 07/09/2019 to 06/09/2020 under private car package policy along with add on “depreciation waiver “by remitting an additional amount of Rs.7,474/- in addition to the net own damage premium Rs.15,148/- with regular taxes and GST etc. The said vehicle was previously insured with M/s Royal Sundaram insurance company and so when the complainant approached the opposite party No.1 for regular service of his vehicle, he was persuaded by first opposite party to take the above policy with second opposite party stating that which is having an attractive offer of “ Zero risk’, cashless settlement and speedy service “etc. Due to instigation of the first opposite party the very same day complainant insured the vehicle with second opposite party even though the vehicle was having a valid insurance policy for more than two weeks with its previous insurer.
2. The first opposite party issued a policy certificate in favor of the complainant which shows that the vehicle was absolutely fit, proper and no existing damages. On 03/12/2019 when the complainant was taking the car from the parking area to the road by rubbing on the pillars of the gate some damages have caused on the RH rear door, RH quarter panel and RH running board and the next day itself complainant approached the first opposite party with the vehicle and after inspection the employees of first opposite party informed that necessary repairs will be done within 4 or 5 days with zero payment except an amount of Rs.1,000/- as claim charges.
3. The complainant left the vehicle with first opposite party for repair works as per the direction of the employees of first opposite party and after 5 days on 11/12/2019, the complainant approached the first opposite party to take back the vehicle under the impression that the repairs would be completed as promised. But it was noticed that the vehicle was untouched and on enquiry it was informed by the employees of the first opposite party that the work approval from second opposite party was not been obtained for the reason that the damage caused to the vehicle according to them are pre-existing. It is informed that the work can start only on payment of an amount of Rs.16,000/- in advance as the 50% of the total liability. The first opposite party intimated the same through an email message to the son of the complainant and hence the complainant disputed the unlawful demand since the vehicle is insured with second opposite party through the first opposite party as “depreciation waiver“ which guaranties that 100% damages would be covered by the opposite party No.2. More over when the vehicle was inspected by the employees of the opposite parties there was no case of old pre-existing damages. Thereafter complainant contacted second opposite party and the representatives of second opposite party informed the complainant that at any rate complainant has to pay Rs.16,000/- in advance otherwise the complainant can take back the vehicle and carryout the repairs at his choice. Hence the complainant was forced to take back the vehicle on 12/12/2019 and carried out the repair work from Ms/s Surya Auto Garage, Nilambur by spending an amount of Rs. 18,000/- as the total cost of repair.
The complainant thereafter demanded the claim and take up the matter with the opposite parties over phone on several occasions and both parties were not even attended or answered properly and later complainant received a letter from opposite party No.2 dated 24/12/2019 expressing the inability to consider and meet the claim and further said that the claim is treated as closed and repudiated which is unpleasant and unexpected.
The complainant is a legal practitioner and presently practicing as an advocate at Nilambur court and having several social activities and it is highly essential for a person like him to have a car for his day-to-day activities and to discharge his work with accurate and in a prompt manner. But due to the deficiency in the service of opposite parties he was not able to attend his office and in utter dismay and despair has suffered much mental agony and pain further affected the profession and carrier resulting in huge financial loss also. The complainant alleges that both parties cheated the complainant by dishonestly inducing the complainant and deceiving to take the policy by way of false representation. There after the complainant caused legal notice on 28/01/2020 and on receipt of the notice the first opposite party sent reply notice after long time with untenable contentions and the second opposite party not even cared to respond so the prayer of the complainant is directing the opposite parties to pay Rs.18,000/- being the amount spent by the complainant for repairing the damages and also to pay Rs.25,000/- as damages and cost.
4. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version denying the entire averments and allegations in the complaint.
5. The first opposite party contended that complaint is not maintainable either in law or fact and to be dismissed.
6. The first opposite party admitted that the complainant is the owner of the Honda vehicle bearing registration No. KL 02-AP 5499. But it is contended that they have not persuaded the complainant to take the insurance policy from IFFCO Tokyo General insurance company that is second opposite party. It is submitted that the first opposite party had nothing more than the role of facilitator in the insurance agreement between the complainant and the second opposite party and it was purely the complainant’s decision to avail the policy from second opposite party. The first opposite party never persuaded the complainant and no consideration from either the complainant nor from second opposite party was there upon the subscription of the policy by the complainant with the second opposite party. The first opposite party denied that the said vehicle was previously insured with M/s Royal Sundaram Insurance Company. The opposite party denied that after due payment that the first opposite party had issued a policy certificate in favor of the complainant which shows that the vehicle was absolutely fit, proper and no existing damages etc. The opposite party also denied the averment that when the complainant was taking the car from the parking area to the road by rubbing on pillars of the gate some damages have caused on the RH rear door, RH quarter panel and RH running board and on the next day itself complainant approached the first opposite party with the vehicle, after inspection the employees of first opposite party informed that necessary repairs will be done within 4 or 5 days with zero payment except an amount of Rs.1,000/- claim charges etc. The opposite party denied the contention that as per direction of the employees of first opposite party complainant left the vehicle with first opposite party for repair work, after five days on 11/12/2019 the complainant approached the first opposite party to take back the vehicle under the impression that the repairs would be completed, but it was noticed the vehicle was untouched, on enquiry the representative of first opposite party informed that the work approval from second opposite party has not been obtained from the reason that the damage caused to the vehicle according to them are preexisting, work can start only payment of an amount of Rs.16,000/- in advance as the 50% of the total liability, the first opposite party intimated the same through email to the son of complainant, the complainant disputed the unlawful demand, the vehicle insured with opposite party No.2 through opposite party No.1 as depreciation wavier which guaranties that 100% damages would be covered by the opposite party No.2, when the vehicle was inspected by the employees of the opposite parties there was no case of old or pre-existing damages etc. The opposite party denied that the complainant had demanded and take up the matter with the opposite parties over phone on several occasions and both parties were not even attended or answered properly.
7. The first opposite party submit that on 10/12/2019 the complainant brought the vehicle to the first opposite party requesting to repair the damages on the vehicle and the complainant wanted the same to be repaired by claiming insurance. The first opposite party intimated the second opposite party and the surveyor of the second opposite party inspected the vehicle. The first opposite party came to know that the complainant was informed by the second opposite party via email on 11/12/2019 that 50% of the repair charges would have to borne by the complainant as the damages were preexisting. The said decision is at the complete discretion of the second opposite party and the first opposite party does not have any say on the same. There is no privity of contract between the first opposite party and complainant pertaining to the insurance. The submission of the first opposite party is that the role of the first opposite party is only as a facilitator who assist the customers of the first opposite party to fill up online application forms and all. The first opposite party rendering free service so as to maintain a good relation with the customer and the first opposite party is neither an agent nor a partner of second opposite party. It is submitted that the first opposite party have no contract of agency or partnership or any other contract between the first opposite party and the second opposite party. The second opposite party is alone is liable to compensate if there is any deficiency or denial of service by the second opposite party. The first opposite party is no were responsible to compensate the complainant for the deficiency or denial of service. There is no deficiency in service or unfair trade practice or other illegalities on the side of the first opposite party and so the first opposite party is not liable for any of the claims of the complainant but to be dismissed with compensatory cost under section 26 of the Consumer Protection Act.
8. The second opposite party also admitted that they had issued policy No. ITG 82668082 for the period 07/09/2019 to 06/09/2020 in favor of the vehicle No. KL 02-AP- 5499 owned by the complainant. The opposite party submitted that the complainant is not certain about the date of incident which caused damage to the vehicle whether it is 05/12/2019 or 03/12/2019. According to the second opposite party as per claim form it is 05/12/2019 and as per lawyer notice it is on 03/12/2019. In complaint no specific date is mentioned. The second opposite party was intimated about the incident only on 10/12/2019 and there was no explanation for the delay causing production of vehicle for the repair on 10/12/2019 that is five days after the date of the incident. The submission of the second opposite party is that the delay was deliberate one in order to mask the fact that the damages were impact quite old. The opposite party submitted that for issuing the insurance policy the vehicle had been inspected by the second opposite party on 20/08/2019 and had found certain damages to the vehicle. The opposite party had taken certain photographs of the vehicle, noted the damages existing on the vehicle at that time and naturally damages existing at the time of issue of the policy were not covered under the policy. The opposite party submitted that when the vehicle was inspected by the authorized personal of the second opposite party for processing the claim it was noticed that the damages for which the claim was filed appeared to be quite old and matched with the very same damages that have been present at the time of the vehicle was inspected before issue of the insurance policy. The opposite party there for repudiated the claim vide letter dated 24/12/2019 sent to the complainant. The repudiation from the side of second opposite party was with valid reason and after application of mind. The submission of the opposite party is that there is no deficiency in service but the complainant is trying to get money out of second opposite parties under false premises and so the complaint be dismissed with compensatory cost.
9. The complainant and opposite parties filed affidavit And documents. The documents on the side of complainant marked as Ext. A1 to A6. Ext. A1 is lawyer notice with acknowledgement issued by Adv. T.Kunhali to the opposite parties dated 27/01/2020. Ext. A2 is reply notice by Adv. K. Alikoya dated 20/02/2020. Ext. A3 is copy of certificate cum insurance policy schedule com payment receipt valid from 07/09/2019 to 06/09/2020 issued by second opposite party to the complainant dated 20/08/2019. Ext. A4 is copy of estimate issued from Surya Auto Garage dated 13/01/2020. Ext. A5 is cash receipt for Rs.18,000/- dated 23/01/2020. Ext. A6 is copy of letter issued by the second opposite party to the complainant dated 24/12/2019. The documents on the side of opposite party marked as Ext. B1 to B4. Ext. B1 is copy of letter issued by adv. Alikoya to Adv. Kunhali dated 20/02/2020. Ext.B2 is copy of postal acknowledgement. Ext. B3 is copy of final survey report including photographs. Ext. B4 is photographs of the vehicle involved in the complaint.
Heard both side, perused affidavit and documents. The flowing points arise for consideration
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
10. Point No.1 &2
The first and second opposite parties admit that the vehicle involved in this complaint stands insured by the second opposite party and which is covered the period 07/09/2019 to 06/09/2020. The case of the complainant is that when the vehicle was taking from the parking area to the road during the first week December 2019, by rubbing on the pillars of the gate some damages have caused on the RH rear door, RH quarter panel and RH running board. Immediately on the next day itself the complainant approached the first opposite party for the repair work and the first opposite party had agreed to finish the repair work within 4 or 5 days. But when the complainant approached the first opposite party on completion of the agreed days he could see that the repair works not completed by the first opposite party. The reason stated by the first opposite party was that the work approval from the second opposite party was not received by them. It was informed that the damage caused to the vehicle according to them are pre-existing and so the work can only be started on payment of Rs.16,000/- in advance at the 50% of the total liability. The submission of the complainant is that since the vehicle is inured with the second opposite party through the first opposite party as “depreciation waiver”, which guarantees that 100% damages, would be covered by the second opposite party. It is also submitted by the complainant that while the vehicle was inspected by the employees of the opposite parties there was no case of old or pre existing damages. Now the question arises what is the role of the first opposite party in subscribing the policy of the second opposite party by the complainant and also whether the damages to the vehicle were preexisting one or not.
11. The complainant submits that when he approached the first opposite party for the service purpose the first opposite party persuaded the complainant to subscribe the policy of the second opposite party. The complainant subscribed the policy of the second party on 20/08/2019 which is evident from the Ext. A3 insurance certificate. The submission of the complainant is that while subscribing the policy of the second opposite party there was an existing insurance policy issued by Royal Sundaram and which last for another two weeks. Ext. A3 reveals that there is previous insurance issued by Royal Sundaram. The first opposite party admitted that they are only the facilitator but no liability towards the complainant. The first opposite party submitted that they have not received any consideration from the complainant or the second opposite party and also there is no privity between the complainant and first opposite party. The contention of the first opposite party may be right to a certain extent that they have not received any consideration but the contention of the complainant that the first opposite party persuaded the complainant to avail the policy of the second opposite party while the insurance policy issued by the Royal Sundaram was in force. The certificate of insurance Ext. A3 shows that the policy was taken on 20/08/2019 and which came in to force only after 07/09/2019. It can also be concluded that he shifted his insurance coverage from Royal Sundaram to the second opposite party since the policy coverage was more effective than that of policy issued by the Royal Sundaram.
12. Now the question is whether the damage to be rectified was pre-existing one and justified the repudiation process of the second opposite party. The specific case for the second opposite party is that the alleged damage was preexisting one and so rightly repudiated by the second opposite party. The second opposite party produced two documents to establish the contention of the preexisting damage that is two sets of photographs. The opposite party produced photographs without CD or negative of the photographs. One cannot ascertain the date on which the damage was occurred from photographs. Ext.B3 photo graphs produced as part of survey report shows certain date that is 10/12/2019, which means after 07/09/2019 the date of commencement of insurance coverage under the second opposite party. The photographs marked as Ext. B4 series does not bear any date, so the document produced by the opposite party is not sufficient to establish the contention that the damage was occurred prior to the issuance of insurance policy by the second opposite party. It is also to be noted that if the damage was preexisting one it can be seen that there was valid insurance policy during that period also. Now it can be seen that the complainant was having valid insurance coverage for his vehicle and due to persuasion of the first opposite party and impressed by the policy coverage of the second opposite party the complainant subscribed the insurance policy of the second opposite party and when he rightly approached the opposite party for the re imbursement of damage, the second opposite party repudiated the claim raising unjustifiable and untenable contentions which amounts deficiency in service as well as unfair trade practice .
13. The first opposite party refused to repair the vehicle and the complainant was compelled to avail repair work form some other service centre. The complainant produced Exts. A4 and 5 to establish the expenses met by him for the repair work. Ext. A4 is estimate and ext. A5 is receipt for the payment of expenses. The commission is of the view that the second opposite party is liable to reimburse the repair work expenses of Rs.18,000/-. The complainant also prayed for 35,000/- rupees as cost and compensation. We find it is a reasonable amount and we allow Rs.15,000/- as compensation and 10,000/- rupees as cost. The first opposite party persuaded the complainant to avail the insurance policy from the second opposite party and thereafter evaded from the responsibility towards the complainant, so the first opposite party is also liable to pay cost and compensation.
In the light of above fact and circumstances we allow this complaint as follows:
- The second opposite party is directed to pay Rs.18,000/- to the complainant as cost of the repair work done by the complainant.
- The opposite parties are directed to pay Rs.15,000/- as compensation to the complainant.
- The opposite parties also directed to pay Rs.10,000/- as cost of the proceedings to the complainant.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the above said entire amount will carry interest @ 9% per annum from the date of filing this complaint till realization.
Dated this 10th day of October , 2022.
Mohandasan K., President
PreethiSivaraman 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 to A6
Ext.A1: Lawyer notice with acknowledgement issued by Adv. T.Kunhali to the
opposite parties dated 27/01/2020.
Ext.A2: Reply notice by Adv. K. Alikoya dated 20/02/2020.
Ext A3: Copy of certificate cum insurance policy schedule com payment receipt valid
from 07/09/2019 to 06/09/2020 issued by second opposite party to the
complainant dated 20/08/2019.
Ext A4: Copy of estimate issued from Surya Auto Garage dated 13/01/2020.
Ext A5: Cash receipt for Rs.18,000/- dated 23/01/2020. E
Ext.A6: Copy of letter issued by the second opposite party to the complainant dated
24/12/2019.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B4
Ext.B1: Copy of letter issued by adv. Alikoya to Adv. Kunhali dated 20/02/2020.
Ext.B2: Copy of postal acknowledgement.
Ext.B3: Copy of final survey report including photograph
Ext.B4: Photographs of the vehicle involved in the complaint.
Mohandasan K., President
PreethiSivaraman C., Member
VPH Mohamed Ismayil C.V., Member
