Sr    Sri M.C.DEVAKUMAR,

M    Member

1.       The Complainant has filed the complaint Under section 12 of CP Act 1986, against the opposite parties alleging deficiency in service and by seeking a direction to opposite parties to pay the entire repair charges of his car amounting to Rs.4,74,000/- and to pay cost of Rs.10,000/-incurred for hiring taxi and to pay compensation of Rs.3,00,000/- for causing mental agony with litigation expenses and such other reliefs.

2.     Brief facts of the complaint:

Complainant is the owner of the Maruthi Celerio-ZX vehicle bearing registration No.KA-09MB-6833. The opposite parties are the insurer of the said vehicle. The insurance of the car was valid from 13.05.2017 to 12.05.2018. The said vehicle met with an accident on 21.07.2017 and damaged. Due to health problems, complaint was lodged with police on 16.11.2017 belatedly. Accident was informed to the opposite parties and the authorized surveyor conducted the survey.

3.        Authorized dealer at Mysore estimated the repair costs at Rs. 5,09,735/-. The authorized surveyor has assessed the liability of the insurer at Rs.2,55,990/-after deducting all the depreciation. The opposite parties offered Rs.1,50,000/-towards settlement, same was rejected by the complainant. Later the opposite parties have informed the complainant on 26.03.2017, that, the claim has been closed as “No claims”. The request to re open the claim on 13.06.2018 was not considered.

4.     Legal notice was issued on 19.07.2018, calling upon the opposite parties to pay the repair charges was neither complied nor replied. The vehicle was covered under comprehensive policy, as such, opposite parties are liable to indemnity the loss caused to the car. The complainant started hiring taxi for his movement, which caused financial loss and mental agony. The act of non indemnifying the loss was alleged as deficiency in service and hence the complaint.

5.     Opposite party nos 1 and 2 represented through counsel filed their version. The complainant has intimated about the claim on 23.10.2017, thus not complied with the terms and conditions of the policy. Still the IRDA approved surveyor was appointed to inspect and assess the damages of the vehicle. The surveyor reported the loss at Rs.2,55,990.55/- however, after the deduction of depreciation of metallic and plastic parts, GST on labour cost and other parts, a sum of Rs. 2,03,234/- was arrived.

6.     But the complainant refused to get repair the vehicle through authorized service centre, thereby 25% on the total value has been deducted as per accepted practice, thus a sum of Rs. 1,52,426/- arrived. A cash loss offer of Rs. 1,50,000/-was given to the complainant. Since the damages to the car was on front and left door with seat, the estimation of Rs. 5,09,735/- by M/s. Friendly Motors was not correct. However, on failure to respond to the notices on 12.03.2018,13.03.2018, e-mails dated 05.03.2018, 21.03.2018 and 26.03.2018, they were constrained to close the claim as “No Claim”as such, intimated the complainant on 27.03.2018. Hence the request to reopen was not considered. The option of total loss cannot be exercise as the assessed value of the surveyor does not exceed 75% of the IDV i.e, Rs.4,74,000/- as on the date of alleged, accident. Hence, the allegation of “deficiency in service” is denied, as such prayed for dismissal of the complainant.

7.     To establish the facts, both side parties filed their examination in chief as part of evidence along with several documents. Opposite parties filed written arguments. Counsel for complainant and opposite parties addressed oral arguments. By perusing the material on record, matter set down for orders

8.      The points that would arise for our consideration are as under:

1. Whether the complainant proves the deficiency in service by the opposite parties and thereby he is entitled for the reliefs sought?

2. What order?

9.     Our findings on the aforesaid points are as follows:

Point No.1:-Partly in the affirmative

Point No.2:- As per final order for the following

:: R E A S O N S ::

10. Point No.1:- The complainant counsel argued that, the car bearing No.KA-09 MB-6833, owned by him has comprehensive insurance policy valid between 13.05.2017 to 12.05.2018, met with an accident on 21.07.2017 and suffered damages. In that, regard complaint was lodged with the jurisdictional police on 16.11.2017 belatedly, on account of his health problems. The authorized surveyor appointed by the opposite parties, inspected the car and assessed the damages, and the loss was arrived at Rs. 2,55,990/- only after admissible deductions  and depreciations. However, the opposite parties offered only Rs.1,50,000/- towards settlement, which was declined since the car has comprehensive policy, the opposite parties are liable to indemnify the loss suffered as well as the damages caused. On failure the settle the claim and closure of the claim as “No Claim ” has been alleged as deficiency in service  by opposite parties  and hence filed the complaint and sought for the reliefs.

11.       The opposite party counsel argued that, the complainant has not acted in accordance with the terms and conditions of the policy. They have appointed an IRDA authorized surveyor for assessment of the loss suffered by the insured vehicle. The surveyor assessed the loss at Rs.2,55,990/- without deduction of the depreciation value of the metallic and plastic parts as per policy terms and conditions at 15% as per policy. Thereby deducted the GST value on labour cost and the parts, and they have arrived at Rs. 2,03,234/- Further, the complainant did not come forward get his vehicle repaired from the authorized service centre, thereby 25% of the total of Rs.2,03,234/- was deducted as per the applicable practice, which comes to Rs.1,52,426/- and hence offered at Rs.1,50,000/- as reported, by the complainant, the damage to the vehicle was on front and the left door with seat, thus the estimation of repair charges of Rs. 5,09,735/- by M/s Friendly was not justifiable. Further in spite of several reminders to settle the claim, the complainant failed to come forward, as such, the claim has been closed as “No Claim” Hence, no deficiency in service on their part and prayed for dismissal of the complaint.

12.     Considering the material evidence and the documents on record, this commission consider that the complainant’s car suffered damages in an accident. A claim was made as per the loss estimated by M/s Friendly motors Ltd., However, the surveyor appointed by opposite parties assessed the loss at Rs. 2,55,900/-. But the contention of opposite party that, the surveyor has not deducted the value of metallic and plastic parts, as such, they deducted the same and arrived the loss at Rs. 2,03,324/-. Further, on refusal to undertake the repair at authorized service centre, another 25% of the value was deducted and finally arrived at Rs. 1,52,426/-. This contention of opposite party is not justifiable, because authorized surveyor of opposite party has assessed the loss by applying all the standard as per policy terms and conditions only. As such, the offer made by opposite party to pay only Rs. 1,50,000/- is not justifiable and hence the closure of the claim as “No Claim” without any reasons was attributed  to arbitrary  decision by opposite party. Thereby the opposite parties are liable to pay the loss as assessed by their surveyor. In view of the above discussions, the point no.1 is answered partly in the affirmative.

13. Point No.2:- In view of the above observations, in point no.1 complaint filed by Sri. Dr.J.P.Lohith deserved to be allowed in part. Hence the following

:: ORDER ::

1. The complaint is allowed in part
2. The opposite parties are directed to pay Rs. 2,55,990/- to the complainant within 60 days of this order.
3. The opposite parties shall pay Rs. 5,000/- compensation for causing mental agony and hardship and shall pay Rs.5,000/-towards litigation expenses to the complainant in next 60 days.
4. Furnish the copy of order to both parties at free of cost.