IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Saturday the 30th day of April, 2016
Filed on 01.02.2005
Present
1. Smt. Elizabeth George (President)
2. Sri. Antony Xavier (Member)
3. Smt. Jasmine D (Member)
in
CC/No.20/2005
Between
Complainant:- Opposite parties:-
Sri. Pradeesh 1. Oriental Insurance Co. Ltd.
Othalasseril House Represented by its Divisional Officer
Muhamma P.O. Marthoma Building, T.K. Road
Alappuzha Thiruvalla
(By Adv. Vishnuraj Sugathan )
2. The Manager, Oriental Insurance Co.
Ltd., Annapurni Mandir
Cullen Road, Mullackal, Alappuzha
3. The Asst. Administrative Officer
-do- -do-
(By Adv. C. Muraleedharan – for
Opposite parties 1 to 3)
4. Sri. P.T. Babu, Insurance Surveyor
27/108, Aneppil, Thoppil Kadavu
Kollam
5. Sri. Johnson, Wreckbuyer
Kundukulangara, Adattu Panchayath
Pattalam Market Shop No.39
Corporation Building
Shakthan Thampuran Lane, Trichur
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
This is a remanded matter. The case was once heard and the President-in-charge of the then Forum passed an order on 29.09.2009 the complaint was allowed. Since there was no detailed order, Hon’ble State Commission suomoto taken up the matter and remanded the case for hearing for the purpose of passing a speaking order. After remanded, notices were issued to both parties for hearing the matter.
2. The case of the complainant is as follows:-
The complainant is the owner of the Tata Indica Car which he purchased on 7.3.2003 for a value of Rs.3,43,096/-. The said vehicle met with an accident on 14.7.2003. The vehicle was insured with the first opposite party for Rs/3,16,000/-. The 4th opposite party who is an insurance surveyor classified it as a total loss of vehicle. The complainant conducted mediation talks with the 2nd, 3rd and 4th opposite parties and at the instance of the 2nd, 3rd and 4th opposite parties the complainant agreed to settle the claim for Rs.2,85,000/-, taking into account the survey report submitted by the 4th opposite party, that the wreck is worth Rs.1,50,000/- and also taking into account the representation made by the 2nd, 3rd and 4th opposite parties that the vehicle would be disposed off at the risk of the 2nd, 3rd and 4th opposite parties for Rs.1,50,000/-. Believing the words of the 2nd and 3rd opposite parties, the complainant had given two blank signed papers with the office seal of the 4th opposite party stamped on it, to the 4th opposite party and the 4th opposite party made the complainant believe that it is to be made into a request letter, requesting the surveyor to sell the vehicle and to make an agreement with the wreck buyer which is to be kept at the office of the Insurance Company (first opposite party) of which the 2nd and 3rd opposite parties are they key officers. And as per the directions of the 2nd, 3rd and 4th opposite parties, the complainant entered into an agreement for sale of the said wreck with the 5th opposite party, who was introduced as the wreck buyer associated with the first opposite party to the complainant by the 2nd, 3rd and 4th opposite parties, for Rs.1,50,000/- on 10.10.2003 and received Rs.10,000/- as part payment and the true copy of the agreement for sale dated 10.10.2003 is produced herewith. Relying on the said agreement for sale dated 10.10.2003 and the assurance made by the 2nd, 3rd and 4th opposite parties regarding the sale of the said wreck, the complainant received Rs.1,34,500/- on 3.12.2003 in the name of M/s. Mahindra & Mahindra Financial Services Ltd. (which is Rs.2,85,000/- (settled claim amount) less Rs.1,50,000/- ie. the amount agreed with the wreck buyer less Rs.500/- (Policy excess). As there was no action from the part of the opposite parties in getting the said agreement for sale executed, the complainant had sent registered lawyer’s notice to all the opposite parties ie. on 4.5.2004 to 2nd, 3rd and 4th opposite parties and on 28.2.2004 to the 5th opposite party. Alleging deficiency in service on the part of the opposite parties, the complaint is filed for realizing an amount of Rs.3,57,354/- along with interest from the opposite parties and compensation of Rs.25,000/-.
2. The version of the opposite parties 1 to 3 is as follows:-
After the intimation of the claim a surveyor was deputed for spot inspection subsequently another surveyor was deputed for assessing the damage. The surveyor inspected the vehicle in the presence of the complainant and the repairer and assessed the damages in consultation with the repairer and the complainant was submitted a detailed report. The complainant himself submitted a letter that he is ready to settle the matter on salvage loss basis thereby the wreck will be retained by complainant and agreed to settle the claim for Rs.1,35,000/-. Since the salvage loss settlement is not against actual bills or documents to have more fairness on settlement an opinion of the second surveyor is also sought. Thus the company deputed another surveyor to assess the damage. The report submitted by that surveyor is also the same, hence an amount of Rs.1,35,000/- was paid to the financier duly counter signed by the complainant. All other allegations against the above facts are absolutely false and hence denied in toto. The opposite party never instigated influenced the complainant to settle the matter for Rs.2,85,000/- instead the complainant himself agreed to settle the matter for Rs.1,35,000/- on salvage loss basis. The company never obtained any blank singed paper from the complainant and there is no such practice and purpose also. It is quite surprise to note that the complainant being a literate and graduate simply submitted blank signed papers and put signature in paper without reading the same. The opposite parties 2 and 3 never represented that the wreck will be sold for Rs.1,50,000/- and it will be sold at the risk of the opposite parties. The complainant is not entitled to get any amount from the opposite parties.
3. The version of the 4th opposite party is as follows:-
This opposite party had never classified the damaged vehicle as a total loss. This opposite party had made a report to the Insurance Company dated 10.10.2003 making alternative suggestions for either considering it as a total loss or not of salvage basis or on repair basis. This report does not mean that there is a classification of damaged vehicle as a total loss. This opposite party had never received any such blank signed papers from this complainant. This opposite party did not give any direction to the complainant nor have an occasion to that, for entering to an agreement for sale or otherwise with the 5th opposite party. It is evident that the complainant had received Rs.10,000/- as advance, and as part payment from the 5th opposite party and the complainant had voluntarily entered into an agreement for a consideration of Rs.1,50,000/-. This opposite party is not in any way bound to take any action from for getting the agreement executed between the complainant and a stranger.
4. The version of the 5th opposite party is as follows:-
As a part of his business this opposite party was informed by one of his agents in Alappuzha about the vehicle in question that met with an accident. He obtained the details from reliable source and contacted the complainant and after necessary talks with him entered into an agreement on 10.10.2003 as stated in para No.3. It is admitted that an amount of Rs.10,000/- was paid by this opposite party to the complainant as an advance and the consideration to the agreement. This opposite party has no special interest with the opposite party No.1 to 4 and this 5th opposite party has no any particular association with them except that of business matters. To the extent of his knowledge this opposite party was never introduced by anybody to the complainant as an associate of 1st opposite party. He approached the complainant as an independent businessman. Here complainant was liable to act in obedience to the said agreement and this opposite party was ready to buy the wreck at any time during the validity of agreement. The reason whatever it may be, the complainant was directly liable to sell the wreck of Tata Indica Car bearing Regn.No. KL-04 M 5090 before the lapse of agreement that admittedly executed by both the complainant and the opposite party. In spite of repeated requests he failed to perform the said contract and he used to avoid this opposite party making baseless replies.
Complainant was examined as PW1. Documents produced were marked as Exts.A1 to A19. Two witnesses were examined as PW2 & PW3. Second opposite party was examined as RW1. 4th opposite party was examined as RW2, one witness was examined as RW3. The documents produced were marked as Exts.B1 to B6.
4. The points came up for considerations are:-
1) Whether there is any deficiency in service on the part of the opposite parties?
2) If so the reliefs and costs?
5. The complainant’s case is that he had insured his vehicle with the Insurance Company (first opposite party) for Rs.3,16,000/-. The vehicle met with an accident on 14.7.2003 and completely damaged. The claim settled between the complainant and the Insurance Company fixing salvage value at Rs.1,35,000/- and wreck value at Rs.1,50,000/-. As per Ext.B2 the complainant has received the salvage value to the tune of Rs.1,35,000/-. According to the complainant, at the instance of Insurance Company the 5th opposite party came forward and agreed to take the damaged vehicle by paying the balance amount towards the wreck value fixed as Rs.1,50,000/-. An agreement was entered into between the complainant and the 5th opposite party which marked as Ext.A6 and amount of Rs.10,000/- was admittedly received by complainant as advance towards the wreck value. Thereafter the 5th opposite party did not turn up. The vehicle was remained in the premises of the complainant and worn out. Now the complainant is claiming the wreck value from the opposite parties.
6. It has come out in evidence that by virtue of Ext.A6, even though the primary liability is with the Insurance company to discharge the entire insurance as fixed at Rs.2,85,000/-, the complainant entering into an agreement with a third party has in effect relinquished or waved against his claim the insurance company, especially when the Insurance Company is not a party to Ext.A6 and the Insurance Company has not indemnified the liability, in case of breach of contract with the 5th opposite party. More over the complainant has received an amount of Rs.10,000/- as part payment towards the wreck value from the 5th opposite party. While the said agreement was inforce the complainant entered into another agreement for the sale of the vehicle with one Pareethukunju, and the said agreement was later rescinded. Ext.A18 evidenced the same.
7. In the above circumstances the liability of the Insurance Company is absolved and the transaction and subsisting liability is with the 5th opposite party who has agreed to pay the balance amount and take the damaged vehicle. There is no evidence adduced by the 5th opposite party that he had ever approached the complainant with the balance amount to take the damaged vehicle. There is no case for the 5th opposite party that the complainant at any point of time refused to hand over the vehicle.
8. In the circumstances stated above, the Forum is of considered opinion that this is a clear case of breach of agreement and there is no consumer dispute in between the parties as envisaged under the Consumer Protection Act, and hence the remedy of the complainant is elsewhere.
In the result, the complaint is dismissed with liberty of the complainant to approach the proper authority.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 30th day of April, 2016.
Sd/- Smt. Elizabeth George (President):
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt. Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - Pradeesh O.S. (Witness)
PW2 - Anil (Witness)
PW3 - Subramanyadas (Witness)
Ext.A1 - True copy of the invoice cum delivery receipt
Ext.A2 - True copy of the certificate of registration of motor vehicles
Ext.A3 - True copy of the motor vehicle insurance
Ext.A4 - True copy of the commercial vehicles package policy
Ext.A5 - True copy of the receipt No.1883411
Ext.A6 - True copy of the agreement dated 15.10.2003
Ext.A7 - True copy of the cheque for Rs.1,34,500/-
Ext.A8 series - True copy of the bills (9 Nos.) of Benz Motors
Ext.A9 - True copy of the Labour receipt dated 13.8.2004
Ext.A10 - True copy of the premature termination calculation statement
Ext.A11 - True copy of the registered notice with a/d
Ext.A12 - True copy of the registered notice with a/d
Ext.A13 - True copy of the Advocate notice dated 4.5.2004
Ext.A14 - True copy of the registered notice with a/d dated 28.2.2004
Ext.A15 - True copy of the acknowledgement cards
Ext.A16 - True copy of the postal receipts
Ext.A17 - True copy of the registered letter
Ext.A18 - Receipt dated 2.11.2004
Ext.A19 - Photos (2 Nos)
Evidence of the opposite parties :-
RW1 - N.R. Parameswaran (Witness)
RW2 - P.T.R. Babu (Witness)
RW3 - Manu. N. (Witness)
Ext.B1 - Motor claim form
Ext.B2 - Receipt of cheque received by the complainant
Ext.B3 - Motor (final) survey report
Ext.B4 - Copy of the private car package policy conditions
Ext.B5 - Letter dated 10.10.2003
Ext.B6 - Certificate cum policy schedule
Ext.B7 - Motor (final) survey report dated 26.11.2003
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties /S.F.
Typed by:- pr/- Compared by:-
