For Complainant          :             Sri Sunil Kumar Mohanty, Advocate.

For Op No.1                    :           Sri Sudhansu Sekhar Mishra, Advocate.

For OP No.2                    :             None.

                                                                        -x-

1.                         The brief history of the case of the complainant is that the insured vehicle bearing No.OD-18-5215 of one S. Santosh Krishna (OP.2) got fire and was damaged on 04.10.2013 and the said vehicle was brought to the workshop of the complainant for repair.  Accordingly survey and assessment was done by the officials of the OP.1 and the claim was to be decided under garage settlement and the OP.1 instructed the complainant to do all repair/replacement works and submit bills for necessary payment.  It is submitted that the complainant did all the repair and replacement works and the vehicle was handed over to the OP.2 during the month of 02/2014 and the bill worth Rs.42, 500/- with necessary documents were submitted before the OP.1 for payment but in spite of several approach and correspondences the OP.1 did not pay the dues of the complainant.  Advocate notice to the OP.1 also did not yield any result.  Thus alleging deficiency in service on the part of the OP.1 he filed this case praying this Commission to direct the OP.1 to pay Rs.42, 500/- towards cost of repair besides Rs.50, 000/- towards compensation and cost to the complainant.

2.                         The OP.1 filed counter denying the allegations of the complainant but admitted that the vehicle of OP.2 which was repaired by the complainant had under insurance policy with OP.1 but there was no contractual relationship between the complainant and OP.1 and hence the complainant is not the consumer of OP.1 and the present case is not maintainable against the OP No.1.  The OP contended that the very policy is in the name of OP.2 and availed the service from the OP.1 but the complainant cannot claim anything under the policy held by OP No.2.  It is further contended that the complainant has failed to produce any evidence regarding existence of contract with the OP.1.  Thus denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant with exemplary cost.

3.                         The OP No.2 in spite of valid notice neither filed counter nor participated in this proceeding in any manner.  The complainant has filed certain documents along with affidavit in support of his case.  The OP No.1 has only filed copy of policy document.  Heard from the A/R for the complainant and the A/R for the OP No.1 and perused the materials available on record.

4.                         In this case it is an admitted fact that the vehicle bearing No.OD-18-5215 was insured with OP.1 and was damaged due to fire accident on 04.10.2013.  The case of the complainant is that as per garage settlement with the OP.1, the insured vehicle was repaired and handed over to the OP No.2 and the bills along with necessary papers were submitted before the OP.1 but no claim is paid to the complainant yet.  The OP.1 raised preliminary objection in this case stating that the complainant is not their consumer and hence this case is not maintainable under C. P. Act.

5.                         Before going into the other merits of the case, the preliminary issue is to be decided at the first instance.  The complainant is the garage owner of TML to which the insured vehicle had come for repair.  In common parlance, if an accident vehicle comes to the garage and if it is insured, it will come at the instance of Insurance Co.  Sometimes, the Insurance Co. settles the insurance claim on the basis of repairs to the insured or to the garage owner at the event of garage settlement.  In the present case, the complainant stated that the officers of OP.1 came to the garage, conducted garage survey and made assessment to the loss of the damaged vehicle and instructed the complainant to repair the vehicle under garage settlement and subsequent payment by the insurer to the garage owner.  This was happened in the present case in hand.  After repair, the vehicle was handed over to OP.2 and the repair bills along with necessary documents were submitted before OP.1 by the complainant for necessary payment but the payment was not made to the complainant.  In the above circumstances, the OP No.1 had entered the complainant into contractual agreement with him along with OP No.2 insured.  By virtue of that arrangement, the complainant has taken up repair work to the insured vehicle.  Thus in our view, the complainant became the beneficiary to the contract between the insured and insurer and as such the complainant is a beneficiary consumer of OP.1 and can maintain a consumer dispute against OP.1 under C.P. Act.

6.                         Further it is seen from the corresponding records available in this case that the OP.1 has contractual agreement with Tata Motors authorised dealers all over India including the present complainant for extending cashless facilities.  The consent letter dt.15.06.2012 of the complainant in this regard is also available on record.  The complainant has mentioned and has sent all details of his bank in the prescribed proforma of OP.1 as per proposal of M/s. Rayal Sundaram Insurance Co.  Hence we find that there is a privity of contract between the complainant and the OP.1 and hence the contention of OP.1 that they have no contractual relationship with the complainant is meaningless.

7.                         In this case, the OP.1 admitted the insurance to the vehicle of OP.2.  Nowhere the OP.1 denies about the accident and repair to the insured vehicle.  Further also nowhere the OP.1 stated that the insurance claim has been settled in favour of the OP.2 directly.  On the other hand the complainant has filed copy of job card and other documents before the OP.1 and the officials of OP.1 have received the documents from the complainant as per list on 16.11.2016 with dated signature, the copy of which is available on record.  The complainant has also made number of correspondences through email with OP.1 which is also available on record.  The complainant has also appeared personally before the OP.1 at Bhubaneswar and handed over the documents in person.  Further the complainant has sent Advocate notice dt.24.01.2017 to which the OP.1 did not feel it proper to reply.  The complainant has also filed copy of job card in respect of repair to the insured vehicle in which a sum of Rs.61, 373/- has been mentioned as cost of repair.  The Ld. A/R for the complainant submitted that out of total cost of Rs.61, 373/-, a sum of Rs.42, 500/- became final towards garage settlement expenditure and hence the complainant has demanded Rs.42, 500/- towards cost of repair.  In the above circumstances, the OP.1 cannot deny payment to the complainant and non settlement of dues, in our opinion, amounts to deficiency in service on the part of OP.1.

8.                         Therefore, the complainant is entitled for Rs.42, 500/- from the OP.1.  For long delay in payment, the claim amount certainly bears interest @ 9% p.a. as we feel.  Further due to such inaction of OP.1 the complainant must have suffered some mental agony and has come up with this case incurring some expenditure for which he is entitled for some compensation and cost of this litigation.  Considering the facts and circumstances of the case, we are not inclined to award any compensation in favour of the complainant except a sum of Rs.5000/- towards cost of this litigation.  The complainant has already handed over the repaired vehicle to the complainant during 02/2014 and it would be just and proper to count interest on the awarded sum from the said date.

9.                         Hence ordered that the complaint petition is allowed in part and the OP No.1 being liable is directed to pay Rs.42, 500/- towards cost of repair with interest @ 9% p.a. from 01.03.2014 and to pay Rs.5000/- towards cost of litigation to the complainant within 30 days from the date of communication of this order.

(to dict.)