This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to return a sum of `9,095 collected by the opposite party in additional to the amount sanctioned by Insurance company together with 12% interest and also to pay  `10,000 as compensation.

          The brief facts of the complaint are as follows:  The vehicle of the complainant KL.58.B2582 met with an accident on 17.7.10. Complainant sustained grievous injury. The motor cycle also damaged fully. Vehicle was shifted to opposite party’s workshop. It was insured with National Insurance Company limited. The accident was duly intimated to the company. Detailed estimate was prepared by the opposite party and handed over to the insurance company. Repair work was completed on 27.1.11 by the opposite party and final bill was prepared and handed over to the Insurance Company. Company sanctioned a sum of `21,000 towards the total accident damages which includes the labour charges as well as the spare parts bills. But the opposite party issued bill for `30,095 to the complainant towards the entire work. There is a difference of `9,095. This difference has come only due to the negligence of opposite party while submitting the total bills to the Insurance Company. Insurance company might have been allowed `30,095 if 1^st opposite party had sent the bill for `30,095. The complainant took delivery of the vehicle by paying an additional sum of `9,095 to opposite party. Complainant issued a registered lawyer notice dated 1.4.11 to the opposite party calling for returning the additional amount collected by opposite party. No reply notice has been sent. Hence this complaint.

          Pursuant to the notice 1st opposite party entered appearance and filed version contending that opposite party was unaware as to whether the vehicle met with an accident and the complainant sustained injuries and the motor cycle was damaged. After the repair the vehicle was handed over to the complainant by collecting the bill amount. It is false to say opposite party showed negligence while submitting the total bill to company. Reasonable including labour charges for taking the vehicle to RTO. The bill submitted to 2^nd opposite party by the 1^st opposite party is `30,095. But opposite party approved only `21,000 after depreciation. It is the usual practice by the insurance company to approve a bill after depreciation and balance to be borne by the party himself. There is no negligence on the part of this opposite party. If complainant sustained any loss it is the Insurance Company liable for the same. Hence to dismiss the complaint.

On the basis of the version 2^nd opposite party has been impleaded and this 2^nd opposite party appeared and filed version contending as follows: Complainant has no grievances against 2^nd opposite party. On 16.08.2010 complainant submitted claim.  The quotation for the work estimate for `28,349 towards repair was issued by 1<sup>st</sup> opposite party the authorized service centre. The net loss and liability of the company was assessed by Insurance surveyor and loss assessor on the basis of the actual cash bills issued by 1<sup>st</sup> opposite party for a sum of `22,612 and labour charges `827.the surveyor in his final report assessed a total sum of `22,612 as the total loss. But as per the policy conditions a sum of `50 was deducted as policy excess and also salvage value of `1,134 was also deducted and net loss assessed   as `21,000. Complainant received the same. Hence 2<sup>nd</sup> opposite party is not liable to pay any further amount. The bill issued by 1<sup>st</sup> opposite party towards spare parts including labour changes for `23,439 alone was submitted before this opposite party. If 1^st opposite party has received  an amount of `9,095 from the complainant in addition to the actual cash bill towards the repair of the motor cycle as alleged in the complaint; the liability to repay the same is with 1^st opposite party alone.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties? If so who is liable for deficiency in service?

2. Whether the complainant is entitled for any relief?

3. Relief and cost.

The evidence consists of the oral testimony of PW1, DW1, Exts.A1 to A4 B1 and B2.

Issue Nos.1 to 3

          Admittedly complainant’s vehicle was repaired by 1^st opposite party. 1^st opposite party submitted the bill to Insurance company. After approval of the bill 2^nd opposite party/Insurance company paid `21,000 to complainant.

          The case of the complaint is that the 1^st opposite party obtained from complainant `9,095 over and above the sum paid by the Insurance Company. This difference resulted due to the negligence on the part of 1<sup>st</sup> opposite party in sending the bill to Insurance Company. The Insurance Company might have been allowed `30,095 if 1^st opposite party had sent the bill for `30,095.

          1^st  opposite party pleaded that they submitted bill before 2^nd opposite party for an amount of `30,095 and Insurance Company approved only `21,000 after depreciation 1^st opposite party contended that it is the usual practice of the insurance company to approve the bill after depreciation and the balance amount would be bone by the party himself.

          DW1, witness of 1^st opposite party adduced evidence by way of chief affidavit that complainant brought his vehicle to him for repair and after repair vehicle was returned to complainant collecting a reasonable bill which includes labour charge. He has also stated that he has given a bill for `30,095 to complainant. But he did not say amount of bill that he had submitted before Insurance Company. It can be seen that Insurance company/2<sup>nd</sup> opposite party in their version specifically stated that 1<sup>st</sup> opposite party issued the actual cash bill for a sum of `22,612 whereas the complainant submitted claim for `28,349. 2<sup>nd</sup> opposite party also stated that 1<sup>st</sup> opposite party if received an amount of  `9,095 from the complainant in addition to the actual cash bill towards the repair of motor cycle as alleged in the complaint the liability to repay the same is with the  1^st opposite party alone. DW1, witness of 1^st opposite party deposed in cross examination that “ hml-\T ]qÀ¯o-I-cn-¨m 2^nd opposite party¡v  bill sImSp-¡p-¶Xp R§-fm-Wv. B BilllmP-cm-¡n-bn-«p-­v. B BillpI-fmWv Fs¶ ImWn-¨Xp”. 1^st opposite party did not adduce evidence with respect to the bill issued to 2^nd opposite party/Insurance company. It is an admitted fact that it is 2^nd opposite party who had submitted the actual bill to 1^st opposite party. Ext.B2 proves that opposite party assessed the amount by adding Net Labour charges `827 with Net cost of parts `21,357 less excess `50 and less salvage `1,134. It proves the fact that 2^nd opposite party/Insurance company allowed the entire amount of cost of parts and labour charges. Excess and salvage amount is only deducted. Observing the facts itself it is quite understandable that if actual labour charge and full amount of cost of parts had been given that would have been allowed by 2^nd opposite party.

On going through the evidence we are fully convinced that the full amount deducting an amount of `1184 which is the amount of Excess and salvage might have been sanctioned by Insurance company if it was issued by 1<sup>st</sup>  opposite party to 2<sup>nd</sup> opposite party. The negligence on the part of 1<sup>st</sup> opposite party is apparent. Complainant sustained a loss of `28911-`21000 = `7911. The method of calculation is proved by Ext.B2. Hence it can be said that as per the calculation method followed by 2^nd opposite party complainant happened to suffer a loss of `7911. Hence we are of opinion that 1<sup>st</sup> opposite party is liable to return the amount of loss `7911 to complainant since the  loss caused due to the negligence on the part of 1^st opposite party. 1^st opposite party is also liable to give `1000 as compensation together with `1000 as cost of this proceedings. Thus the issues 1 to 3 are answered infavour of complainant and orders passed accordingly.

          In the result, the complaint is allowed directing the 1^st opposite party to return `7911(Rupees Seven Thousand Nine hundred and Eleven only) as excess amount together with `1,000 (Rupees One thousand only) as compensation and  `1000 (Rupees One Thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which complainant is entitled to get 10% interest for the entire amount of award from the date of order.  The complainant is also entitled to execute the order after the expiry of one month as per provisions of consumer protection Act.

   Sd/-                        Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Bills

A2. Copy of the cheque issued by 2^nd OP

A3.Copy of the lawyer notice sent to OP

A4. Postal AD card.

Exhibits for the opposite party:

B1.Cash bills issued by 1^st OP dt.25.1.11

B2.Insurance survey report of Pramod.P

 Witness examined for the complainant

PW1Complainant

Witness examined for the opposite parties:

DW1. Padmarajan.K.

                                                 / forwarded by order/

                                                                                                                                           Senior Superintendent