IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 2nd day of June, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C.No.158/06 (Remanded) (Filed on 20.09.2006) Between: V.K. Kuruvila, S/o Kuriakose, Vallomtharayil Veedu, Thiruvalla Taluk, Thottappuzhasseri village, Maramon.P.O. …. Complainant. And: 1. The Branch Manager, National Insurance Co. Ltd., P.O.Box No.37, M.C. Road, Thiruvalla. Addl.2.The Divisional Manager, Divisional Office, National Insurance Co. Ltd., Gandhariamman Kovil Road, Pulimoodu, Thiruvananthapuram. (By Adv. Sam Koshy) …. Opposite parties. O R D E R Smt. C. Lathika Bhai (Member) The complainant Sri. V.K. Kuruvila, Vallomtharayil House, Maramon has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint in brief is as follows:- The complainant is the registered owner of a 407 TATA Van bearing Reg.No.KL.07F/9372. The said van was insured with the opposite parties and the policy is valid from 5.4.05 to 4.4.06. On 10.1.06, the said vehicle met with an accident and caused damages. The Koipuram Police prepared an occurrence report regarding the accident. The complainant intimated the matter to the opposite parties and a surveyor of the opposite party inspected the vehicle and prepared an estimate of the damages. Thereafter, the vehicle was repaired at Central Auto Garage, Maramon. For repairing the vehicle, the complainant had purchased spare parts for Rs.12,504/-, paint for Rs.701/- and paid an amount of Rs.4,200/- as labour charges. Totally he had spent an amount of Rs.17,405/-. The complainant had lodged a claim before the opposite parties along with the occurrence report and the work estimate. Thereafter, he went to the office for getting the repairing charges from the opposite parties at least 15 times for this purpose. During his visits, the staff of the 1st opposite party misbehaved and teased him. At last on 30.3.06 the opposite parties had paid a cheque amounting to Rs.4,890/- to the complainant as the repairing charges and he had accepted the cheque under protest. The complainant had paid all relevant documents in original to the opposite parties for processing the claim. On 26.4.06 the complainant had sent a legal notice to the opposite parties demanding the balance repairing charges. There is no reply from the opposite parties and they did not paid the balance repairing charges, which is a deficiency of service. The accident was occurred during the coverage period and the opposite parties are liable to pay the balance repairing charges along with compensation for the mental agony to the complainant and therefore he has filed this complaint for getting the balance repairing charges of Rs.12,515/- along with compensation of Rs.10,000/- for his mental agony. The complainant prays for allowing the complaint. 3. After taking exparte evidence, this Forum disposed of the case as per the order dated 27.12.2008 allowing the complainant to realise Rs.12,515/- the balace amount, after deducting the cheque amount of Rs.4,890/- paid to the complaint by the opposite parties from the total expenses of Rs.17,405/- with 12% interest per annum from the date of filing of this complaint till this date and thereafter at 6% interest per annum till the whole payment and Rs.2,000/- as compensation. 4. Aggrieved by the order of this Forum, the first opposite party preferred an Appeal before the Hon’ble State Consumer Disputes Redressal Commission, Thiruvananthapuram vide Appeal No.216/09. 5. After hearing the parties in the Appeal, the Hon’ble State Commission set aside the order of this Forum and the matter is remitted back on condition that the appellants shall pay a sum of Rs.5,000/- towards cost to the complainant and on deposit of the amount of cost, the same can be withdrawn by the complainant and the Forum is directed to permit the parties to file version and adduce evidence if they so desire and dispose of the case afresh. 6. After the remand of the case from the Hon’ble CDRC, the complainant and the first opposite party appeared before this Forum. On appearance, both sides were given opportunity for adducing evidence in support of their respective pleadings and contentions as directed by the Hon’ble CDRC. 7. The opposite parties have filed a common version stating the following contentions: The complaint is not maintainable either in law or on facts. The opposite parties have admitted the policy and its validity. The complaint is not maintainable as the complainant has accepted an amount of Rs.4,890/- from the opposite parties as full and final settlement of his claim. He had received the amount after executing the discharge voucher treating the said amount as full and final settlement. He had not lodged any protest at the time of receipt of money. Hence this complaint is not maintainable. The complainant plied the vehicle for commercial purpose he is doing cement dealership business. On receipt of the claim the opposite parties have appointed a competent surveyor to assess the loss of the vehicle. On the basis of the survey report and the bills submitted by the complainant, the claim was processed as follows:- Sl. Description of parts Amount Amount Dep.% Amount No. allowed as per bills sanctioned as per submitted Rs. 1. Bonet 2400 2400 50% 1200 2. Bonet Lock 82.12 90 50% 41 3. Radiator Assembly 4700 4700 50% 2350 4. Water Pumb Assembly 1100 1510 50% 555 5. Radiator Hose 111.43 140 50% 56 6. Radiator Foundation 137.25 220 50% 68 7. Fan Belt 170 170 50% 85 8. Fan Leaf 160 260 50% 80 9. Front Grill 640 640 50% 320 10. Engine Foundation 172 850 50% 86 --------------- 4841 8. The complainant has received an amount of Rs.4,890/- as full and final settlement the complainant filed this complaint on experimental basis. The opposite parties have processed the claim with due application of mind and there is no deficiency in service from the part of them. Therefore the opposite parties prayed for the dismissal of the complaint. 9. The complainant had filed a replication stating the following that he had received the amount of Rs.4,890/- under protest. A protest complainant was also filed before the opposite parties at the time of acceptance of amount. The income from the insured vehicle is the sole livelihood of him. Further the surveyor’s report is not correct and the depreciation calculated illegally. 10. The points for consideration in the complaint are:- (1) Whether the complaint is maintainable before the Forum? (2) Whether the complainant is entitled to get a relief as prayed for in the complaint? (3) Relief & Costs? 11. The evidence in this case consists of the oral evidence of the complainant as PW1 and Ext.A1 to A14 were marked from the side of the complainant. For the opposite parties, 2nd opposite party filed a proof affidavit and on the basis of the proof affidavit Ext.B1 was marked. After closure of the evidence, both sides heard. 12. Points 1 to 3:- The complainant’s case is that his insured vehicle met with an accident and he filed a claim before the opposite parties for getting the repairing charges of Rs.17,405/-. But the opposite parties have paid only an amount of Rs.4,890/- and this complaint is filed for getting the balance repairing charges of Rs.12,515/- and compensation of Rs.10,000/-. 13. In order to prove the complainant’s case, the complainant had adduced oral evidence as PW1 and the documents produced by him are marked as Exts.A1 to A14 on the basis of the proof affidavit filed by him. Ext.A1 is the copy of the Insurance Policy Certificate issued by the opposite parties. Ext.A2 is the occurrence report dated 12.1.06 prepared by the Koipram Police. The copy of the estimate produced is marked as Ext.A3. Ext.A4 is the copy of bill issued by the New Benz Automobiles for Rs.12,308/-. Ext.A5 is the copy of bill issued by the Popular Automobiles, Kozhencherry for Rs.196/-. Ext.A6 is the copy of bill issued by the Padayattil Paints & Hardwares for Rs.701/-. Ext.A7 is the copy of bill issued by the Central Auto Garage, Maramon for Rs.4,200/-. Ext.A8 is the copy of cheque amounting to Rs.4,890/- issued by the opposite parties to the complainant. Ext.A9 is the Goods carriage permit and Ext.A10 is the copy of Form 38. Ext.A11 is the copy of R.C. Book. Ext.A12 is the copy of the legal notice sent to the opposite parties by the complainant. Ext.A13 is the postal receipt of Ext.A12 and Ext.A14 is the acknowledgement card. The complainant prays for granting the reliefs as prayed for in the complaint. The opposite parties had cross-examined PW1. 14. The opposite parties contended that on the basis of the survey report and the bills produced by the complainant they have process the claim with due application mind and the complainant had received the amount after executing discharge voucher treating the amount as full and final settlement. There is no deficiency in service from the part of them. 15. In order to prove the contentions of the opposite parties, 2nd opposite party filed a proof affidavit and one document. On the basis of the proof affidavit Ext.B1 marked. Ext.B1 is the survey report prepared by the insurance surveyor after assessing the loss of the complainant’s damaged vehicle. 16. On going through the evidences in this case Ext.A1 policy certificate shows that the complainant’s vehicle has valid insurance coverage at the time of accident. Ext.A2 to A7 clearly proves that the complainant’s vehicle met with an accident and he had spent an amount of Rs.17,405/- for repairing the vehicle. The complainant lodged a claim along with relevant documents for processing the claim. But the opposite parties allowed only an amount of Rs.4,890/-. According to the opposite parties, they have processed the claim on the basis of the survey report and the repairing bills produced by the complainant. On a perusal of the Ext.B1 survey report, the amount assessed by the surveyor for the spare parts and labour charges are less than that of the actual amount paid by the complainant. On going through Ext.A4 to A7 it is clear that the complainant had spent an amount of Rs.17,405/- for repairing his vehicle. The total loss assessed by the surveyor as per Ext.B1 is Rs.10,922.80. After deducting depreciation and policy excess from the assessed- amount they have paid Rs.4,890/- to the complainant as the claim amount. As per the terms and conditions of the policy, the opposite parties are entitled depreciation and policy excess. But opposite parties had not adduced any evidence to show that the expenses met by the complainant as per Exts.A4 to A7 is false and Ext.B1 survey report is true and genuine. In the circumstances we are constrained to hold that the complainant had actually spent an amount of Rs.17,405/- for the repairs. Therefore the complainant is entitled to get the repairing charges after deducting the depreciation and other charges from the amount he had spent. In the circumstances, the complainant’s prayer can be allowed with modifications. 17. In the result, the complaint is allowed, thereby the complainant is allowed to realise Rs.10,802/- (i.e. 50% of the spare parts cost of Rs.13,205/- plus labour charge Rs.4,200/-). Out of the total amount of Rs.10,802/-, opposite parties are allowed to deduct policy excess Rs.500/- and salvage value Rs.450/- and the amount already given to the complainant. The opposite parties are also directed to pay an interest at the rate of 9% per annum for the balance amount due to the complainant from the date of filing of this complaint till this date along with a compensation of Rs.2,000/- (Rupees Two Thousand only) to the complainant. The opposite parties are directed to comply this order within two months from the date of receipt of this order, failing which an interest at the rate of 12% will be paid to the above said amount till the whole payment. Declared in the Open Forum on this the 2nd day of June, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : V.K. Kuruvilla. Exhibits marked on the side of the complainant: A1 : Insurance Policy Certificate. A2 : Photocopy of the G.D extract at Koipram Police Station on 12.1.06 A3 : Photocopy of the estimate of repairs. A4 : Photocopy of bill dated 21.1.06 issued by New Benz Automobiles, Thiruvalla for Rs.12,308/-. A5 : Photocopy of bill issued by the Popular Automobiles, Kozhencherry for Rs.196/-. A6 : Photocopy of bill dated 30.1.06 issued by Padayattil Paints & Hardwares, Kozhencherry for Rs.701/-. A7 : Photocopy of bill issued by Central Auto Garage, Maramon for Rs.4,200/-. A8 : Photocopy of the cheque dated 30.3.06 for Rs.4,890/- issued by the opposite parties to the complainant. A9 : Photocopy of the Goods carriage permit dated 2.1.1997 A10 : Photocopy of the fitness certificate issued by Asst. Motor Vehicle Inspector, Thiruvalla dated 25.10.2005. A11 : Photocopy of R.C. Book in respect of complainant’s vehicle KL.7F/9372 A12 : Photocopy of the legal notice sent to the opposite parties by the complainant dated 26.4.2006. A13 : Postal receipt of Ext.A12 legal notice. A14 : Postal acknowledgement card. Witness examined on the side of the opposite parties: Nil. Exhibits marked on the side of the opposite parties: (after remand) B1 : Motor Final Survey Report dated 24.2.06 issued by Surveyors & Loss Assessors. (By Order) Senior Superintendent. Copy to:(1) V.K. Kuruvila, Vallomtharayil Veedu, Thiruvalla Taluk, Thottappuzhasseri village, Maramon.P.O. (2) The Branch Manager, National Insurance Co. Ltd., P.O.Box No.37, M.C. Road, Thiruvalla. (3) The Divisional Manager, Divisional Office, National Insurance Co. Ltd., Gandhariamman Kovil Road, Pulimoodu, Thiruvananthapuram. (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
