IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Wednesday  the8^th  day  of June, 2022

                                  Filed on : 02.11.2021

Present

1. Sri.S.SanthoshKumarBSc.,LL.B  (President )

2.Smt.P.R.Sholy, B.A., LLB (Member)

In

CC/No.260/2021

between

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed u/s 35 of the Consumer Protection Act, 2019

1.       Material averments briefly stated are as follows:-

Complainant  is the owner of Auto taxi bearing Reg. No. KL.29-P -5286.  It is having  a insurance policy from 5/9/2021 to 4/9/2022 issued by the  1^st opposite party M/s Cholamandalam MS General Insurance Co. Ltd. issued through the 2^nd opposite party.     On 11/9/2021 while complainant was driving  the vehicle towards East to the  HaripadRailway station from National Highway  it accidently hit on an  electric post while saving a dog  and the vehicle sustained damage.  The electric post was also broken.  On 11/9/2021 it was informed to the  1^st opposite party. Since  there was no response,  complainant paid an amount of  Rs. 9672/- to the KSEB.   A GD entry was made on the same day. The vehicle was entrusted for repairs with the 2^nd opposite party M/s Popular Mega motors Pvt. Ltd and Rs.19,964.97/-  was  given for repairs..

2.       Complainant sent a  notice to the 1^st opposite party claiming Rs.60,965/- . Though a reply notice was sent with false contentions amount was not paid.   The 1^st opposite party insurance company had not given proper service to the complainant and hence there is deficiency of service on their part.   Complainant is entitled to realize  Rs. 60,965/- from the opposite parties. Hence the complaint is filed to realize the said amount along with interest.

3.    1^st opposite party filed a version mainly contenting as follows:-

 There is no deficiency of service on the part of this opposite party. This opposite party issued a package policy to the vehicle of the complainant for the period from 5/9/2021 to 4/9/2022 subject to  terms, conditions, exclusion clause to the policy. On 15/9/2021 a claim form was submitted for the  damage sustained  to the vehicle on 11/9/2021.  A surveyor was deputed and after inspecting the vehicle  he  assessed the damages to Rs. 19,964/- and Rs. 19,825/- was paid  to the 2^nd opposite party dealer on 30/9/2021. Amount paid by the complainant  to the  KSEB  which is a 3^rd party property damage was made without consent and concurrence of the 1^st opposite party and so   as per policy condition no.2 it is violation.  There is absolutely no delay in paying the amount. The complaint is  silent about the  payment made by the 1^st opposite party.  The complainant is not entitled to realize any amount since there is no deficiency of service. Hence the complaint  may be dismissed with compensatory cost.

4.       2^nd opposite party filed a version mainly contenting as follows:-

 This opposite party is not a necessary party in the proceedings and so there is misjoinder. There is no specific allegation against this opposite party. The accident dtd. 11/9/2021 sustained to the vehicle was duly covered by the 1^st opposite party insurance company.  There is no deficiency of service alleged against 2^nd opposite party.

5.       2^nd opposite party is one of the  reputed dealer  cum service personal of TATA Motors and they have no business of insurance.  This opposite party  is  not a party to the  insurance contract and so  they are not liable to compensate the complainant.

6.       The vehicle was produced before the 2^nd opposite party on 20/9/2021  for  accidental repair.  After repairs  the vehicle was released to the complainant on 28/9/2021  under an invoice  for Rs. 27,590/-  the contention of the complainant that he had taken delivery of the vehicle after  remitting Rs. 19,964.97/- is factually untrue. The insurance company had settled the claim for Rs.19,965/- including  TDS amount of Rs.140/-.   Complainant had only remitted an amount of Rs.7,600/-  to the 2^nd opposite party.  There was no allegationsregarding repairs or service provided by this opposite party.  Hence the complaint filed against this opposite party  on an experimental basis  may be dismissed with cost.

7.       On the above pleadings following points were  raised for consideration:-

1.Whether there is  any deficiency of service from the part of opposite parties as alleged?

2. Whether the complainant is entitled to realize an amount of Rs. 60,965/- along with interest from the opposite parties as prayed for?

3.  Reliefs and costs.

8.   Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A13 from the  side of complainant  and the oral evidence of RW1 and   Ext.B1 to  B7  from the side of the opposite parties.

9.   Point No.1 and 2:-

 PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A13. 

10.     RW1 is the  Senior Manager of 1^st opposite party. He filed an affidavit in tune with the version and marked Ext.B1 to B7.

11.     PW1, the complainant is the registered owner of  motor cab  bearing Reg. No. Kl29-P-5286.   It was insured with the 1^st opposite party M/s Cholamandalam  MS General Insurance Co Ltd. through the 2^nd opposite party M/s Popular Mega Motors India Pvt. Ltd.   On 11/9/2021 while he was driving  the vehicle from west to east though the National Highway – Harippad Railway station road it hit on a electric post while  trying to save a dog.   Though the matter was informed to  the 1^st opposite party since there was no response he paid an amount of Rs. 9672/- to the KSEB being the  price of the electric post and labour charges.  It was entrusted with the 2^nd opposite party for  repairs and Rs. 19,964.97/- was paid by him being the repair charges.  The complaint  is filed for realizing an amount of Rs. 60,965/-  being the amount paid to the KSEB,  the amount paid to the 2^nd opposite party and Rs.36,000/- being the  loss sustained by him  since he was unable to ply the vehicle for 18 days. 1^st opposite party filed a version admitting the policy but according to themthe  contention  that Rs.19,964.97 /- was paid by the  complainant is false.  They transferred an amount of Rs. 19,825/-   to the 2^nd opposite party being the repair charges.  It was contented that the amount  paid to the electricity board was not  with the consent  and concurrence  and so they are not liable to  pay this amount.   When the matter was informed to  them they deputed a surveyor  to assess the damage.  2^nd opposite party filed a version admitting that the  vehicle was entrusted for repairs and it was returned after repairs.  The  total repair charges was Rs. 27,590/- and out of which Rs. 19,965/- including TDS amount of Rs. 140/- was paid by the 1^st opposite party  and the remaining amount of Rs. 7,600/- only  was paid by the 2^nd opposite party  According to them since there is no averment/ allegation against them, the complaint against them is only to be dismissed.  Complainant got examined as PW1 and marked Ext.A1 to A13.  The Senior Manager of the  1^st opposite party was examined as Rw1 and Ext.B1 to B7 were marked.

12.     The  fact that PW1 is the registered owner/driver of taxi bearing Reg.No.Kl-29-P-5286 is not in dispute.  It is also an admitted case that on 11/9/2021 the vehicle met with an  accident and sustained damage.   Ext.A1 is a copy of general diary of Harippad Police Station certifying the accident.   The contention of PW1 is that though the matter was informed  to the 1^st opposite party there was no positive response.  He had to deposit an amount of Rs. 9672/-  being the value of post + labour charges.  Further Rs.19,964.97/-  was paid to the 2^nd opposite party being repair charges. Since the  vehicle was at the workshop of the  2^nd opposite party for  18 days  he  is claiming Rs.36,000/- being the loss sustained by him.  Along with the same he is also claiming an amount of Rs. 5000/- being other incidental expenses such as advocate fee, Notice fee etc. and the total  claim is Rs. 60,965/-.     1^st opposite party admitted the policy but according to them on getting information the surveyor was deputed and  after repairs Rs. 19,965/- including TDS was paid to the 2^nd opposite party through NEFT.  The contention in the complaint as well as in the chief affidavit  is that complainant paid Rs.9672/- to the KSEB and Rs. 19,964.97/- to the 2^nd opposite party. RW1 produced Ext.B7 which shows that  Rs. 19,965/- was paid by 1^st opposite party to the 2^nd opposite party directly through NEFT.  So the contention of PW1 that he paid Rs.19,965/-  being the repair charges is  absolutely false. In fact complainant paid  only an amount of Rs. 7,600/- to the 2^nd opposite party.  It is noted  from Ext.A2 policy that the policy is passenger carrying  vehicle package policy.    In other words it is not a bumper to bumper policy. So as per terms and conditions of the policy complainant had to bear remaining expenses of wear and tear and value of consumables.  Hence Rs. 7,600/- was collected from the complainant being the balance amount.  So the contention of PW1 that Rs.19,965/- was paid by him is absolutely false and he is liable to pay the  remaining amount  of Rs. 7,600/-.  The 2^nd contention is that he had to pay  an amount of Rs. 9672/-  to the KSEB  being the value of electric post. + labour charges.  PW1 relied upon Ext.A9 for claimingthe  amount.  But it is noticed that Ext.A9  is only an estimate and PW1 had paid only Rs. 4254/- which is revealed from Ext. A8 receipt issued by the KSEB.  The learned counsel appearing for the  1^st opposite party contented that the matter was not informed to the 1^st opposite party promptly and  without their consent amount was paid by Pw1 and so they are not liable to compensate the complainant.  However during cross examination Rw1 admitted that   the insurance company  is bound to  indemnify 3^rd party damage also.  So Pw1 is entitled  to claim Rs.4254/- which was paid to the KSEB Ltd. being the expenses incurred as labour charges and value of electric post.  The 3^rd claim of complainant is regarding Rs. 36,000/-, being the loss sustained by him since he could not ply the vehicle for  18 days. The accident occurred on  11/9/21.  From Ext.B4 it is seen that Surveyor was appointed on 15/9/21. From  Ext.A7 (B5) it is seen that  job card was prepared on 20/9/21 and on 28/9/21 tax invoice was generated.   It is true that the vehicle was in the custody of 2^nd opposite party for repairs and it was an accident repair.  When an accident occurs  some time will take to  appoint the surveyor to  consider  the estimate prepared by the   workshop and  to approve the same.  Moreover  except the interested  oral testimony of PW1 no evidence is available in support of the case that PW1 sustained a loss of Rs.36000/-.  The learned counsel appearing for the 2^nd opposite party contented that except the bald allegation in the complaint that the insurance policy was  availed through  the 2^nd opposite party, there is no averments against  2^nd opposite party.  Only at the time of cross examination PW1 stated that  2^nd opposite party is also liable to compensate him.  As a matter of fact evidence adduced without pleading cannot be looked into.  Since  there is no averment against 2^nd opposite party the contention  taken  by PW1 at the time of examination  that  2^nd opposite party is also liable to compensate him is  unsustainable.  It was held by the Hon’ble Supreme Court in   Ram Sarup Gupta (dead) by LRs,  Vs. BishunNarain Inter College [AIR 1987 SC 1242]

“  It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered.  It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.  The object and purpose of pleading is to enable the adversary party to know the case it has to meet.  In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.”

13.     So as rightly pointed out by the learned counsel appearing for the 2^nd opposite party since there is no averments/ allegations against 2^nd opposite party they are not liable to compensate the complainant. Hence   considering the evidence as a whole  it can be seen that complainant is entitled to realize an amount of Rs. 4254/- which was paid by him to the KSEB Ltd. as per Ext.A8 receipt and he is not entitled for any other relief.  These points are found accordingly.

14.     Point No.3:-

In the result complaint is allowed in part.

a) Complainant is allowed to realize an amount of Rs.4254/- (Rupees Four thousand two hundred and fifty four only) from the 1^st opposite party  along with interest @ 9% per annum  from the date of complaint ie, on 2/11/2021 till realization.

b) Complainant is allowed  to realize an amount of Rs.1000/- (Rupees Ten thousand only) as cost from the  1^stopposite party.

The order shall be complied within one month from the date of receipt of this order

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 8^th    day of June, 2022.                                         

Sd/-Sri.S.SanthoshKumar(President)

Sd/-Smt. Sholy.P.R(Member)

       Appendix:-Evidence of the complainant:-

PW1                      -  Unnikrishnan Nair  (Complainant)

Ext.A1                -  Copy of General Diary of Haripad Police Station

Ext.A2                 -    Copy of Policy Certificate –cum - Policy Schedule.

Ext.A3                  -    Copy of Form 38(certificate of fitness)

Ext.A4                  -    Copy of Certificate of Registration.

Ext.A5                  -    Copy of Contract Carriage Permit (Form P.Co)

Ext.A6                  -    Copy of DO/Liability letter dt.29 Sep. 2021.

Ext.A7                  -    Copy of Tax Invoice

Ext.A8                  -    Copy of Receipt of KSEB, Haripad Section

Ext.A9                  -    Copy of Estimate of renewal of damage post due to dashing

     of vehicle  at Karimbalil

Ext.A10                -    Copy of Legal Notice

Ext.A11                -    Postal Acknowledgement card

Ext.A12                -    Postal receipt

Ext.A13                -    Receipt – Cash Voucher

Evidence of the opposite parties:-             

 RW1                     -    Anish Varghese (Senior Manager of  O.P1)

Ext.B1                   -    Copy of Motor policy schedule cum Certificate of Insurance

Ext.A2                   -    Copy of Motor Claim Notification Details.

Ext.B3                   -    Copy of Motor Insurance Claim Form

Ext.B4                   -    Copy of Motor Final Survey Report – Private.

Ext.B5                   -    Copy of Tax Invoice

Ext.B6                   -    Copy of DO/Liability letter.

Ext.B7                   -    Copy of Payee Advice.

///True Copy ///

To     

          Complainant/Oppo.party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Br/-

Comp.by: