CC No.893.2014

Filed on 16.05.2014

Disposed on.30.01.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 30^th DAY OF JANUARY 2017

CONSUMER COMPLAINT NO.893/2014

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                              V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 16.05.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay claim of Rs.99,047/- along with 12% interest, to pay compensation of Rs.10,000/- , to pay cost of Rs.5,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that he had availed Insurance Policy for his vehicle Toyota Innova 2.5 GX from the 1^st Opposite Party which was serviced through the 2^nd Opposite Party under policy No.2013-V2638806-FCV.  The said policy was valid for 10.10.2013 to 09.10.2014.  The Complainant vehicle met with an accident on 19.01.2014 in this regard the complainant had communicated the same to the 1^st and 2^nd Opposite Parties and also claimed for the benefits under the policy, having left his vehicle for suitable repairs at Nandi Toyota, Talaghatapura, Bangalore being he Authorized Service Centre of the vehicle purchased by the Complainant.  An invoice came to be extended by the said Nandi Toyota for Rs.2,68,564/- which was intimated to the 2^nd Opposite Party Company which in turn through their surveyor valuations assessed the damages and replacements of spares at Rs.1,69,517/- with deduction on certain parts which under the policy the Complainant was lawfully entitled for full reimbursement. The 2^nd Opposite Party honored the aforementioned sum favouring the service station and the balance sum of Rs.99,047/- was constrained to be paid by the Complainant to secure release of his vehicle.  The claim for reimbursement as against the replacement of parts under partial loss claims came to be declined by the Opposite Parties on vague and untenable reasons.  The depreciation has also been erroneously computed by the Opposite Parties without taking into consideration that the vehicle was only three months old.   In spite of repeated requests and demands made by the Complainant, the Opposite Parties failed to release the amount nor have made any effort towards the same.  Fed up with such callous attitude the Complainant has got issued a legal notice through his counsel to the Opposite Parties to pay the sum of Rs.99,047/- along with interest since the Opposite Parties had unlawfully retained the amount with a malafide intention to cheat and defraud the Complainant and to make wrongful gain to themselves and wrongful loss to the Complainant.  The Opposite Party No.2 has received the Legal Notice.  No communication has been extended to the Complainant by the Opposite Parties as to the reason for such repudiation.  Hence, this complaint.

3. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their version.  In the version pleaded that the claim of the Complainant is not maintainable.  The complaint is totally is misconceived and is based on erroneous assumptions of facts and in law while making the complaint.  The policy issued is subject to various terms, conditions, exceptions, limitations.  The present complaint is false, vexatious, frivolous, the policy of insurance was issued in the name of the Complainant, the registered owner of Toyota Innova Maxi Cab bearing No.KA-02/AD-7371, of Model 2013 and was insured with this Opposite Party for the period from 18 hrs of 10.10.2013 to 09.10.2014, vide policy bearing No.2013-V2638806-FCV, Rs.12,63,000/- being the Total value, with hypothecation in lien with Magma Fincorp Limited.  The insured vehicle having met with an accident on 19.01.2014 and was extensively damaged, are not within the knowledge of the Opposite Parties, and is based on document, in view of the fact that it was only on 20.01.2014, the Complainant had intimated about the vehicle having met with an accident and sustained damages, as also had submitting the claim form on 21.01.2014, along with vehicle documents, Towing charge Bill Permit, DL, Smart Card, Estimate dt.21.01.2014 of Toyota Motor World Private Limited, the Complainant ought to have intimated about the same, to Opposite Parties immediately after the loss or damage caused to the insured vehicle, the vehicle is subject to Hypothecation Agreement with Magma Fincorp Ltd, and that financial interests of financer being involved, it is proper and necessary party to the proceedings, the vehicle met with an accident on 19.01.2014, resulting in causing damages and that the Complainant has intimated the same to the Opposite Parties only on 20.01.2014 by intimation to the Call center of Opposite Parties and that only after shifting the insured vehicle to the garage on 21.01.2014 has submitted the claim form,  resulting with the fact that Opposite Parties have been deprived of appointing an approved IRDA surveyor so as to assess the loss immediately after the accident by submitting the spot inspection/preliminary survey report. The Complainant having shifted the insured vehicle Garage and having so obtained an Estimate, had submitted the claim form along with vehicle documents, Estimate of Toyota Motor World Private Limited, for Rs.3,25,403/-to the Opposite Parties only on 21.01.2014, the Opposite Parties were being informed about the damage caused to the insured vehicle and that being stationed at garage, and IRDA licensed approved surveyor being appointed, had visited the garage and inspected the vehicle and has submitted his report assessing the loss at around Rs.1,69,517/-.  As well, it is true to the fact that repairer had issued Invoice for an amount of Rs.2,68,564/-.  The Opposite Parties being intimated about the insured vehicle being damaged in a RTA, an IRDA licensed approved surveyor was appointed by the concerned office as to inspect the vehicle, assess the loss and to submit the report, as well that the Opposite Parties on the basis of the survey report and as well considering the terms and conditions of the policy, had assessed the loss caused due to damage and had so estimated the same at Rs.1,69,517/- being payable.  As well, the Complainant had also executed Full and final/Satisfactory/Discharge Voucher agreeing to settled the claim as per the Surveyor’s Report since assessed by the IRDA licensed approve Surveyor at Rs.1,69,517/-.  The Opposite Parties are not aware as to the fact whether the Complainant had paid the balance amount since being liable to be paid, i.e., Rs.99,047/- since being constrained to be paid by the Complainant to secure the release of the vehicle, since no documents are produced by the Complainant, as to prove the same.  Hence, the Complainant is put to strict proof of documentary evidence of the same.  The claim for reimbursement as against the replacement of parts under partial loss claims came to be declined by the Opposite Parties on vague and untenable reasons.  Further the depreciation has also been erroneously computed by the Opposite Parties without taking into consideration that the vehicle was only three months old” and that the same are denied as false and baseless, in view of the fact that the repair estimate and the Invoice provided by the repairer and submitted by the insured/Complainant, the claim of the Complainant was considered and arrived at Rs.1,69,517/- and based on the terms and conditions of the policy, as well considering the IMT 21 and IMT 23 applicable to the present case, relating to damages caused to insured vehicle and as well based on the surveyor’s report.  The relevant clause IMT 21, being applicable to the present case.  In spite repeated requests and demands made by the Complainant, the Opposite Parties failed to release the amount nor have made any effort towards the same” are all false and baseless.  The Opposite Parties that after the claim form being submitted to the Opposite Parties on 21.01.2014, an IRDA Surveyor being appointed, based on the said report and as well considering the policy terms and conditions, the claim of the Complainant was settled at Rs.1,69,517/-.  At no stretch of imagination there is delay, laches of deficiency in service on the part of the insurer, as could be seen from facts, circumstances of the case.  Hence prays to dismiss the complaint.
4. The Complainant, Sri.Jayaram filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Sri.R.Yegnanarayana, has been filed. Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):- Negative

POINT (2):-As per the final Order

REASONS

7.     POINT NO.1:- As looking into the averments of the complaint and also the version filed by the Opposite Parties, it is not in dispute that the Complainant is the R.C.Owner of the Toyota Innova 2.5 GX and the said vehicle was insured with the Opposite Party No.2 bearing policy No.2013-V2638806-FCV from 10.10.2013 to 09.10.2014.  Further in order to establish the same, the Complainant in his sworn testimony, he has reiterated the same and produced the copy of the Insurance Policy.  As looking into this document, it is very clear that the Toyota Innova 2.5 GX, Engine No.2KDU375070, Chassis No.MBJ11JV4007423719  insured with Opposite Party No.2 bearing policy No.2013-V2638806-FCV from 10.10.2013 to 09.10.2014.  This evidence of the Complainant remains unchallenged.  Thereby there is no contra evidence, to discard the evidence of the Complainant, therefore, it is proper to accept the contention of the Complainant that the Complainant is the R.C.Owner of the Toyota Innova 2.5 GX and it was insured with the Opposite Party No.2 bearing policy No.2013-V2638806-FCV from 10.10.2013 to 09.10.2014.

8. It is further case of the Complainant that on 19.01.2014 the vehicle met with an accident, in this regard the complainant had communicated the same to the 1^st and 2^nd Opposite Parties and also claimed for the benefits under the policy, having left his vehicle for suitable repairs at Nandi Toyota, Talaghatapura, Bangalore being the Authorized Service Centre of the vehicle purchased by the Complainant.  An invoice came to be extended by the said Nandi Toyota for Rs.2,68,564/- which was intimated to the 2^nd Opposite Party Company through their surveyor valuations assessed the damages and replacements of spares at Rs.1,69,517/- with deduction on certain parts which under the policy the Complainant was lawfully entitled for full reimbursement. The 2^nd Opposite Party honored the aforementioned sum favouring the service station and the balance amount of Rs.99,047/- was constrained to be paid by the Complainant to secure release of his vehicle. In support of his contention the complainant in his sworn testimony, he has reiterated the same and produced the copy of the Invoice.  As looking into this Invoice, it is clear that the Nandi Toyota, Talaghatapura raised the Invoice for a sum of Rs.2,68,564/- regarding the repair of Toyota Innova bearing registration No.KA02AD7371, Engine No.2KDU375070 under this Invoice is in the name of the Complainant and out of Rs.2,68,564/- the Opposite Party No.2 released only Rs.1,69,517/- and also the Complainant by paying balance amount of Rs.99,047/- took the delivery of the car.  From this evidence, it is very clear that the Complainant vehicle met with an accident, as a result due to which sustained loss, for that reason the Complainant got it repaired the damaged vehicle through Authorized Service Center i.e., Nandi Toyota Talaghatapura raised the Invoice for a sum of Rs.2,68,564/- out of which the Opposite Party No.2 released only Rs.1,69,517/- and the balance amount has paid by the Complainant himself. 

9.  The defence of the Opposite Parties is that the Opposite Parties were being informed about the damage caused to the insured vehicle and that being stationed at garage, and IRDA licensed approved surveyor being appointed, had visited the garage and inspected the vehicle and has submitted his report assessing the loss at around Rs.1,69,517/-.  On the basis of the survey report and as well considering the terms and conditions of the policy, had assessed the loss caused due to damage and had estimated the same at Rs.1,69,517/- being payable.  As well, the Complainant had also executed Full and final/Satisfactory/Discharge/Voucher agreeing to settle the claim as per the Surveyor’s Report since assessed by the IRDA licensed approve Surveyor. In support of this defence, Sri.Yagnanarayan, Authorized Signatory of the Opposite Parties, in his sworn testimony, he reiterated the same and produced the Survey Report.  As looking into this document, after the Complainant filing the claim petition the Opposite Parties have appointed Sri.K.Narayana Rao licensed IRDA Surveyor, after inspected the vehicle submitted his report assessing the loss for a sum of Rs.1,69,517/-.  Accordingly, the Opposite Parties settled the claim of the Complainant this is further clear as per the Discharge Voucher dt.21.01.2014.  As looking into this Discharge Voucher the Complainant by receiving a sum of Rs.1,69,517/- executed the satisfactory Discharge Voucher.  Thereby, it is proper to accept the defence taken by the Opposite Parties.  Now the Complainant in support of his contention that he is entitled for entire claim of Rs.2,68,564/- and he is entitled for balance amount of Rs.99,047/-.  In support of this, he has not placed any evidence to show that the complainant fails to establish that there is deficiency of service on the part of the Opposite Parties. On the other hand, the Opposite Party No.1 & 2 after receiving the claim of damage caused to the Complainant, the Opposite Parties have appointed an IRDA licensed Surveyor conducting the survey submitted the report the loss is about Rs.1,69,517/-.  The Opposite Parties No.1 & 2 released that amount received by the Complainant as a Satisfactory and executed the Satisfactory Discharge, now the Complainant give with false allegation that there is deficiency of service but the complainant fails to establish that the Complainant fails to prove the alleged deficiency of service by the Opposite Parties.    Hence, this point is held in the Negative. 

10. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is dismissed. No cost.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 30^th day of January 2017)

        MEMBER                                              PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Jayaram, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of the Communication dt.15.10.2013
2. Copy of the Insurance Policy dt.15.10.2013
3. Copy of the terms of the policy dt.15.10.2013
4. Copy of the Invoice of Nandi Toyota
5. Copy of the Calculation Sheet
6. Office copy of the Legal Notice
7. Postal Receipts.

Witness examined on behalf of the Opposite Parties:

1. Sri.R.Yegnanaranana, on behalf of the Opposite Parties by way of affidavit.

List of documents filed by the Opposite Party:

1. Claim intimation to Call center of Opposite Party
2. Original Claim Form received on 21.01.2014
3. Copy of vehicle document duly verified permit
4. Copy of Driving license duly verified
5. Road Tax paid receipt of RTO, duly verified
6. Smart card Registration Certificate verified
7. Towing charges receipt dt.21.01.2014
8. Estimate issued by Toyota private Limited,
9. Tax Invoice dt.29.01.2014 of Toyota Private Limited,
10. Surveyor’s Report
11. Satisfaction/Discharge Voucher
12. True copy of the policy
13. Terms and conditions of policy

          MEMBER                                                                   PRESIDENT