Kerala

Idukki

CC/152/2019

Joseph T J - Complainant(s)

Versus

Conconrde Tata Moters - Opp.Party(s)

22 Feb 2023

ORDER

DATE OF FILING : 20/08/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 22^nd day of February 2023

Present :

SRI.C.SURESHKUMAR PRESIDENT

SMT.ASAMOL P. MEMBER

SRI.AMPADY K.S. MEMBER

CC NO.152/2019

Between

Complainant : Joseph T.J., S/o Joseph,

Thekkekkuttu House, Nedumkandam P.O.,

Chakakanam, Idukki District, Pin – 685 553,

Now residing C/o Study Analytics No.67,

3^rd Floor, Jyothi Nivas College Road,

Koramangala, Bangalore,

Karnataka, Pin – 560 034.

(By Adv.Shiji Joseph)

And

Opposite Party : 1 . Concorde, Tata Motors,

#10,256/C, Survey No.1562/1, Nettoor,

Maradu Muncipality, Kochi, Ernakulam,

Kerala, Pin – 682 040,

Represented by the Managing Director.

(By Adv.Sibi Thomas)

2 . Royal Sundaram, General Insurance

Company Ltd.,Service Branch No.18 & 20,

Number for B, 4^th Floor, A Block, Mena

Kampala Arcade, Sir Theyagaraya Road,

T-Nagar, Chennai- 17, Representing by

the Managing Director.

(By Adv.K.Pradeepkumar)

 

 

(Cont......2)

 

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O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant filed this complaint raising the following allegations against opposite parties and prayed for the reliefs hereinafter mentioned.

 

1 . The complainant purchased a Tata Indigo Manza (diesel) Car (Dew White in colour) from R.F.Motors Pvt Ltd., Edappally, Kochi, Kerala. The said car bears Registration No.KL05-AA-7369 and is a 2010 Model Car. The said vehicle is registered in the name of the complainant and is having hypothecation with effect from 02/12/2013 with H.D.F.C.Bank, Shastri Bank, Kottayam. The said vehicle is insured with the 2^nd opposite party The Royal Sundaram General Insurance Company with insurance Policy No.VPN0027083000103 having IDV Value of Rs.3,50,000/-.

2. The above mentioned car of the complainant met with an accident on 20/06/2018 while the complainant’s son was driving the car from Karimanoor to Nedumkandam and the accident took place at Cheenikuzhi as the car fell headlong into the gutter on the road and hit the sidewall of the road, thereby causing severe damage to the front portion of the car. The said matter was intimated to the police and it was entered in the General Diary Abstract of Karimanoor Police Station. On the very next day the car was towed to Tata Motors Official Service Centre of the 1^st opposite party and the 1^st opposite party issued an invoice for a total sum of Rs.4,75,577/- (Rupees Four Lakh Seventy Five Thousand Five Hundred and Seventy Seven only) as being the repair estimate for the vehicle.

3 . The complainant was intimated with the assurance that the claim would be settled within 3 days and that the Insured Declared Value (IDV) could be renewed. It is based on this assurance that the complainant

(Cont......3)

 

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proceeded with the repair of the vehicle. There was undue delay in the matter. Despite repeated email communications and personal visits and negotiations with the 1^st and 2^nd opposite parties the vehicle is lying idle and gathering rust in the service centre of the 1^st opposite party. Due to the natural weather and climatic conditions and the natural wear and tear the value of the vehicle has depreciated considerably. The 2^nd opposite party is purposefully delaying the matter and not settling the claim as assured. It is with the utmost reassurance on the part of the 1^st opposite party that the complainant decided to give the vehicle for repair to the 1^st opposite party as they had said that the car would be reusable after repair. The complainant would have settled the matter at the outset itself otherwise, but the 1^st opposite party said that if the estimate was approved and paid by the 2^nd opposite party it would be done. The lapse on the part of the 2^nd opposite party is causing the complainant great grievance and hardship for no fault of his own. The complainant has sent many email messages but in vain as no proper answers are being given to the complainant. It is most pertinent to note that the complainant has been spending a lot of money from August 2018 for travel to the insurance office from Bangalore to Kochi and was told that due to the floods more time was required to settle the issue. The Manager of the 2^nd opposite party was giving the complainant a lot of excuses and flimsy reasons thereby delaying the settlement further in the above said matter, the numerous visits to the manager of the 2^nd opposite party was totally a futile waste of time, money and energy. The complainant was totally defeated and emotionally drained at the careless attitude of the 2^nd opposite party.

4 . Later in January 2019 the 2^nd opposite party assured that a sum of Rs.2,10,000/- (Rupees Two Lakh and Ten Thousand only) would be paid to the complainant towards the insurance settlement on cash loss and sent the complainant the form required for the purpose and asked the complainant to

(Cont......4)

 

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send back the form duly filled. This was only an eyewash and nothing of the same happened.

5 . Since the settlement had been delayed and the 2^nd opposite party had not adhered to the promise made to the complainant, the complainant communicated to the 2^nd opposite party and team vide emails to cancel the cash loss settlement and settle the same vide work order to get the car into its original condition as the vehicle was damaged due to its idle state or settle it by paying IDV value of Rs.3,50,000/-. More particularly the buyers arranged did not buy the same from the complainant as scrap due to further wear and tear and related damages. The 1^st opposite party due to the lapse of time to act quickly has caused the complainant irreparable injury and hardship. The 1^st opposite party is not giving full assurance whether the vehicle will be road worthy after repair as the impact of the accident caused to the front portion of the vehicle could have cause alignment problem. It is also pertinent to note that both 1^st and 2^nd opposite parties are dragging the matter and both are collaborating with each other going hand in hand and making a fool out of the complainant. The reason that was informed to the complainant is that the approval of the 2^nd opposite party is required for reassessment of the vehicle due to wear and tear which may cause the 2^nd opposite party to reject the claim.

6 . Both the 1^st and 2^nd opposite parties have dealt with the matter of the complainant in a haphazard and shabby manner without any ethics. One year has passed after the accident and the car is lying idle and deteriorating to iron rust. As per an inspection of vehicle conducted recently on it is pertinent to note that till this date no repair work was initiated. The car has rusted and has lost its pristine quality. Hence the complainant had requested the 2^nd opposite party to settle the matter in a fair manner by giving him IDV value and this also has not been complied with.

(Cont......5)

 

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7 .The complainant was compelled to initiate and take a legal action against both the opposite parties by sending a legal notice dated 12/06/2019. After receiving the legal notice, the 1^st opposite party replied by stating untrue facts and had the audacity to ask the complainant to pay a sum of Rs.40,000/- (Rupees Forty Thousand only) and has asked to take the vehicle from the service station where it has been stored. It is also to be noted that the 2^nd opposite party paid a sum of Rs.2,09,000/- by cash after receiving the notice and are insisting that the complaint be settled in total without issuing a reply notice for which the complainant is not prepared. The complainant is entitled to seek damages and compensations for the loss caused to him on account of the deficiency in service on the part of both the 1^st and 2^nd opposite parties.

8 . The insurance company the 2^nd opposite party is responsible to indemnify the complainant as per the insurance policy. Failure to do the needful and thereby cause untold hardship and loss to the complainant amounts to deficiency in service and dereliction of duty warranting legal action against both parties both jointly and severally for redressing the grievances of the complainant and adequately to compensate the complainant for losses suffered by him on account of the deliberate acts of the opposite parties.

9 . The complainant is entitled for repair cost which he now chooses not to accept and just the amount of insurance claim entitled together with compensation, demurrage in value caused to the vehicle, inconvenience and damages, cost to the complainant on not being able to use his vehicle for a long time as detailed below.

Particulars of damages and compensation

1 . The vehicle fetches a value of Rs.6,50,000/- at the time of accident. The estimated repair cost as intimated by 1^st opposite party on 22/06/2019 is

(Cont......6)

 

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Rs.4,75,577/-. IDV value of the vehicle is Rs.3,50,000/-. In such circumstances as on the date of accident the complainant valued the vehicle at Rs.6,00,000/-. If the vehicle was sold at the relevant time in as is where is condition it would have fetched Rs.2,50,000/- in addition to the balance insured sum. Now the vehicle fetches only Rs.30,000/- as scrap value. Therefore by virtue of delay caused by opposite parties the vehicle sustained a demurrage and diminished book value of Rs.2,20,000/-, that amount the opposite parties are liable to reimburse. The diminishing book value of the vehicle for the last one year amounting to 10% and more of the total value of the vehicle estimated as Rs.65,000/-. The loss inconvenience and hardship cause to complainant for follow up on the vehicle, correspondences and for non-usage of vehicle and alternative travel arrangements for the last one year Rs.1,00,000/-. Total amount due to complainant by way of balance insurance amount of Rs.1,41,000/- and total amount of damages compensation and diminishing book value of Rs.3,50,000/-.

10 . The cause of action of this complaint arose within the territorial and pecuniary jurisdiction of this Hon’ble Forum. On 20/06/2018 the date on which the accident occurred and on varied dates when the communications were sent, personal visit done and calls made.

11 . The vehicle has been lying idle in the workshop of the 1^st opposite party subject to wear and tear and the complainant has now reimburse the garage charges as demanded by the 1^st opposite party which has to be borne by the 2^nd opposite party. Since the 2^nd opposite party had insured the vehicle they are liable to indemnify the complainant. Rejecting the claim of the complainant and forcing him to settle for Rs.2,09,000/- paid cannot be justified and is illegal, unjust and improper amounting clear to deficiency in service and cheating warranting the interference of this Hon’ble Forum.

(Cont......7)

 

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12 . The 2^nd opposite party insured the vehicle to indemnify the complainant as the policy coverage is vide and encompasses and therefore rejecting the claim of the complainant cannot be justified and is illegal, unjust and improper amounting to clear deficiency in service. Likewise the 1^st opposite party who caused inordinate delay in attending the vehicle amounts to unnecessary loss of damages and compensation as claimed above. Their acts also amounting to deficiency in service.

It is most humbly prayed that this Hon’ble Forum be pleased to direct the opposite parties to pay the balance arrears of insured sum of Rs.1,41,000/- and further direct the opposite parties to pay damages and compensation totalling a sum of Rs.4,91,000/- (Rupees Four Lakhs and Ninety One Thousand only) (ie Rs.1,41,000/- +Rs.3,50,000/-) together with interest and cost of the complaint.

1^st Opposite party filed version in the following manner.

1 . It is submitted that the above complaint is not maintainable either in law or on facts.

2 . This Hon’ble Forum does not have the territorial jurisdiction to entertain the above complaint. A reading of the complaint will disclose that the grievance of the complainant is with respect to the alleged delay on the part of the second opposite party which is based in Chennai in according its approval for the estimate for repairs on the car of the complainant provided by this opposite party which is based in Kochi. This opposite party is further advised to state that the alleged accident cannot by any stretch of imagination be treated as a cause of action as the entire grievance alleged in the complaint is after entrustment of the vehicle in the workshop of this opposite party at Kochi. As the opposite parties are not based within the territorial jurisdiction of this Hon’ble Forum and as no part of the alleged cause of action has arisen

(Cont......8)

 

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within the jurisdiction of this Hon’ble Forum, it is submitted that the above complaint is liable to be dismissed for want of territorial jurisdiction.

3 . Assuming without admitting and for the sake of argument that this Hon’ble Forum has the jurisdiction to entertain and the above complaint, this opposite party does not admit that the complainant is a consumer as defined under S.2 (1) (d) of the Consumer Protection Act, 1986.

4 . A further reading of the complaint will disclose that the complainant has no case there has been any deficiency in service on the part of this opposite party. This opposite party has unnecessarily been made a party to the proceedings. Hence the above complaint is liable to be dismissed for misjoinder of unnecessary party.

5 . The vehicle of the complainant was brought to the workshop of this opposite party on 22/06/2018 for attending to certain accident repairs with further specific instructions that the necessary repairs was to be carried out under insurance coverage. Based on such entrustment the service personnel in the workshop had after conducting an inspection of the vehicle provided the complainant with the initial estimate for the repair works so as to enable him to get the necessary approval from the insurance company with which his vehicle was insured.

6 . There is no merit or basis in the allegation of the complainant regarding the alleged delay in carrying out the repairs on his vehicle. It is submitted that this opposite party had at no point of time been the cause for the alleged delay in carrying out the repairs on the vehicle of the complainant. In spite of providing the complainant with the estimate as early as in June 2018, he had not been able to obtain the approval from the insurance company for carrying out the repairs nor had he accorded permission to carry out the repairs on payment basis and hence it is that the vehicle has been lying idle in the workshop without commencement of the

(Cont......9)

 

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repairs. This opposite party is in no way liable or responsible for the damages if any caused to the vehicle on account of its exposure to the vagaries of nature. Obtaining approval for the repair works from the insurance company was the sole liability of the complainant, this opposite party is in no way liable or responsible for the delay caused in obtaining the necessary approval. This opposite party is not in the knowhow of the various alleged transactions/correspondences the complainant is stated to have had with the insurance company and hence the various allegations raised in that regard are not admitted and the complainant is put to strict proof of the same.

7 . As the vehicle of the complainant had been lying idle in the workshop occupying valuable space, the complainant had time and again been requested to take delivery of his vehicle in “as is where is condition” after paying the necessary garage rent. The complainant however for reasons best known to him has not responded to the various email correspondences sent to him in that regard.

8 . The complainant admits that he has received an amount of Rs.2,09,000/- from the second opposite party. However, inspite of receiving the said amount he has neither accorded approval for carrying out the repairs on payment basis nor has he removed his vehicle after paying the amount towards garage rent as demanded by this opposite party as per an email dated 15/06/2019. It is submitted that the vehicle of the complainant has been occupying valuable space in the workshop of this opposite party for the past over one year and hence this opposite party is entitled in law and on facts to be compensated for the same towards garage rent.

9 . This opposite party does not admit any of the claims made in para 8 of the complaint. The complainant is put to strict proof of the same.

(Cont......10)

 

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10 . This opposite party has in no way caused any loss to the complainant it is in no way liable or responsible to compensate him. Further the complainant is not entitled either in law or on facts to seek any amount towards compensation from this opposite party.

11 . It is submitted that this opposite party has in no way caused any loss to the complainant nor has there been any deficiency in service, cheating or unfair trade practice on the part of it as alleged. This opposite party is in no way liable or responsible to compensate the complainant. He is not entitled either in law or on facts to any amount towards compensation.

1^st opposite party prayed for dismissal of complaint with costs.

Second opposite party filed written version as follows.

1 . Hon’ble Forum does not have the jurisdiction to take up the present complaint as the cause of action did not arise within jurisdiction. The answering 2^nd opposite party do not have a branch office nor does it reside within the jurisdiction of the Hon’ble Forum. Hence the Hon’ble Forum lacks the jurisdiction to preside over the matter and the complaint is liable to be dismissed for lack of jurisdiction.

2 . That the complaint is unwarranted, un-tenable and liable to be dismissed as the complainant has approached the Hon’ble Forum with unclean hands. The claim of the complainant was duly settled by the answering 2^nd opposite party for Rs.2,09,000/- (after deducting the policy excess) on cash loss basis as full and final settlement and the vehicle was retained in “as where is condition”.

3 . A Private Car Package Policy for vehicle bearing Registration No.KL-05-AA-7369 was obtained by the complainant. The said vehicle was insured vide Policy Certificate No. VPN 0027083000103 for an insured declared value of Rs.3,50,000/-, subject to the terms and conditions therein.

(Cont......11)

 

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4 . That a claim was intimated on 22/06/2018 alleging loss caused to the vehicle due to its involvement in an alleged accident on 20/06/2018. The claim was intimated with a delay of 2 days which was in clear violation of Condition No.1 of the policy terms and conditions which provide for immediate intimation to the insurer upon any damage caused to the insured vehicle. A copy of the claim form is annexed as Document No.2.

5 . That upon receipt of the claim intimation 2^nd opposite party appointed IRDA licensed surveyor to conduct the survey and assess the damages. The surveyor conducted the survey and assessed the loss for Rs.2,10,000/- on salvage loss basis.

6 . That upon receipt of the claim documents and the report of the surveyor the claim was scrutinized and it was decided to settle the claim for cash loss basis. The complainant too had given his consent for the same and agreed to retain the damaged vehicle in “as where is condition”. The answering 2^nd opposite party had paid the claim as per the surveyor’s assessment after deducting the policy excess amount of Rs.1,000/-. The complainant has admitted the same in their complaint.

7 . That the complainant has now filed a false and frivolous complaint to harass the answering 2^nd opposite party and to obtain unlawful gains by abusing the process of law.

8 . The contract of insurance is based on the principle of indemnity. The complainant had declared the value of the vehicle at the time of taking the policy from the answering 2^nd opposite party. Subsequently a claim was made and the same was paid as per the terms and conditions of the policy and with the consent of the complainant. That complainant’s consent was free and the claim was duly settled as per the consent letter issued by the complainant and the vehicle was retained by the complainant. However, the

(Cont......12)

 

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complainant has approached the Forum asking the Forum to direct the answering 2^nd opposite party to pay the remaining amount for the wreck which has been retained by the complainant after duly agreeing with the mode of settlement. The complainant is seeking profits out of the contract of insurance which is against the principle of indemnity.

9 . As per policy condition No.3, the insurance company is entitled to deduct the value of the wreck in cases of Constructive Total Loss if the insured retains the vehicle. The said condition is reproduced hereunder for the kind reference of the Hon’ble Forum.

(3 ) . The company may as its own option repair reinstate or replace the Private Car or part thereof and/or its accessories or may pay in cash the amount of the Loss or Damage and the liability of the company shall not exceed.

1. . For Total Loss/Constructive Total Loss of the Private Car- the Insured’s Declared Value (IDV) of the Private Car (including accessories thereon) as specified in the Schedule less the value of the wreck.

10 . The complainant is not entitled to any sum from the answering 2^nd opposite party. There arises no liability on the part of the answering 2^nd opposite party towards the complainant as the claim had been rightfully settled and the payment was made by the answering 2^nd opposite party.

11 . From the submissions made it is clear that there is no deficiency in services provided by the answering 2^nd opposite party and the present complaint is false and frivolous and deserves to be dismissed.

2^nd opposite party prayed for dismissal of complaint with costs.

(Cont......13)

 

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Complainant's power of attorney holder filed proof affidavit and read in evidence. He was examined as PW1 and Exts.P1 to P11 were marked. First opposite party filed proof affidavit and read in evidence. No documents were filed by first opposite party and its power of attorney was examined as RW1. No proof affidavit was filed by second opposite party and no documents were also filed. On the date of final hearing, there was no representation for second opposite party. Complainant and 1^st opposite party was heard. Exhibits marked on the side of complainant are as follows:-

Ext.P1 – Copy of registration certificate in respect of vehicle

KL-05-AA-7369.

Ext.P2 – Copy of policy

Ext.P3 – Copy of claim form

Ext.P4 – Copy of GD entry.

Ext.P5 – Copy of estimation report dated 22/06/2018 issued by

1^st opposite party.

Ext.P6 – E-mail communication between complainant and service centre

of 1^st opposite party and vice versa.

Ext.P7 – Copy of advocate notice dated 12/06/2019 issued on behalf of

complainant to opposite parties 1 and 2.

Ext.P8 – Postal receipts (Original)

Ext.P9 series (2 in Nos.) – Postal A/D (original)

 

(Cont......14)

 

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Ext.P10 – Reply notice dated 27/06/2019 sent by counsel for

1^st opposite party.

Ext.P11- Power of attorney dated 22/11/2019 executed by complainant in

favour of son of complainant.

We have examined the pleadings of complainant and opposite parties and proof affidavit filed by complainant and 1^st opposite party and oral testimony of complainant and 1^st opposite party. Besides, documents marked on the side of complainant were also examined. On a perusal of the same, following points arise for consideration.

1 . Whether this Commission has territorial jurisdiction to try this complaint?

2 . Whether there is deficiency in service on the part of opposite parties?

3 . If so, for what reliefs the complainant is entitled to?

4 . Litigation costs.

Point No.1.

Both opposite parties contended that this Commission has no territorial jurisdiction to try the complaint. As per S.11(2) of Consumer Protection Act, 1986, a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:-

(a) the opposite party or each of the opposite parties at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain.

(b) any of the opposite parties where there are more than one, at the time of institution of the complaint, actually and voluntarily resides, or carries on

(Cont......15)

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business or has a branch office, or personally works for gain subject to certain conditions and

 

(c ) the cause of action, wholly or in part, arises.

On going through the cause title of complaint, it is seen that address of both opposite parties are outside the territorial jurisdiction of this Commission as contended by opposite parties. Besides, on a reading of the pleadings of complainant, it is seen that no part of cause of action has arisen within the territorial jurisdiction of this Commission. In these circumstances, this Commission has no territorial jurisdiction to try the matter. Complainant has to file complaint before the District Commission having territorial jurisdiction to try the same. Hence Point No.1 is answered in the negative.

Point Nos.2 to 4

In the light of our findings on Point No.1, there is no need to decide the other points. Hence we are not entering upon any decision on the same. So, Point Nos.2 to 4 are answered as above.

In the result, we find that complaint is not maintainable before this Commission due to lack of territorial jurisdiction.

Therefore, the complaint is returned to complainant for filing the same before District Commission having territorial jurisdiction.

Parties shall take back extra copies filed without delay.

Pronounced by this Commission on this the 22^nd day of February 2023.

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SRI.C.SURESHKUMAR, PRESIDENT

Sd/-

SMT.ASAMOL P., MEMBER

(Cont......16)

 

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 – Soni Joseph

On the side of the Opposite Party :

RW1- Sushil Todankar

Exhibits :

On the side of the Complainant :

Ext.P1 – Copy of registration certificate in respect of vehicle

KL-05-AA-7369.

Ext.P2 – Copy of policy

Ext.P3 – Copy of claim form

Ext.P4 – Copy of GD entry.

Ext.P5 – Copy of estimation report dated 22/06/2018 issued by

1^st opposite party.

Ext.P6 – E-mail communication between complainant and service centre

of 1^st opposite party and vice versa.

Ext.P7 – Copy of advocate notice dated 12/06/2019 issued on behalf of

complainant to opposite parties 1 and 2.

Ext.P8 – Postal receipts (Original)

Ext.P9 series (2 in Nos.) – Postal A/D (original)

Ext.P10 – Reply notice dated 27/06/2019 sent by counsel for

1^st opposite party.

Ext.P11- Power of attorney dated 22/11/2019 executed by complainant in

favour of son of complainant.

On the side of the Opposite Party :

Nil

 

Forwarded by Order

 

 

ASSISTANT REGISTRAR