D.O.F. 15.07.2010
D.O.O. 17.12.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 17th day of December, 2011.
C.C.No.180/2010
Joseph K.J.,
Kaniparambil House, : Complainant
Kottiyoor P.O.,
Kannur Dist.
(Rep. by Adv. Jaison P.)
1. HDFC ERGO General Insurance Co. Ltd.,
6th Floor, Leela Business Park,
Andheri-Kurla Road, Andheri,
Mumbai – 400 059
2. The Manager,
HDFC ERGO General Insurance Co. Ltd.,
Ground Floor, Charishmach Building,
Opp. ICICI Bank Ltd., : Opposite Parties
Kannur Road, Kozhikode.
(Rep. by Adv. C.K. Sreekumar)
3. M.T. Prakasan,
Room No.2, 1st Floor,
Citizen Complex,
Opp. Training School,
Kannur – 6.
O R D E R
Sri. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection
Act for an order directing the opposite party to pay an amount of ` 3,27,144 as compensation with 12% interest and cost.
The case of the complainant in brief is as follows. The complainant purchased goods vehicle (KL 58 B 3790) in the year 2009. It is insured with 1st opposite party on 01.01.09 by remitting a premium of ` 18,855. The vehicle is having a comprehensive policy and the same was insured with 2nd opposite party. The vehicle met with accident on 15.05.09 causing serious damages. Police registered case. Accident was immediately reported to 2nd and 3rd respondent, the official surveyor of 2nd respondent and the vehicle was taken to the authorized work shop namely Sakthi Automobiles, Thottada, Kannur on 19.05.09. The manager of the work shop inspected the vehicle and estimated that parts for an amount of ` 1,55,325 including the chassis have to be replaced and they prepared estimate and handed over to the complainant. Complainant handed over the same to 3rd opposite party on 22.05.09 for presenting it before the 2nd respondent. 3rd opposite party also inspected the vehicle and prepared report. But 3rd opposite party did not issue work order to manager of workshop. Complainant gave a letter to Manager asking the reason for not repairing. Manager, Shakti Auto Mobiles replied that he could not do repairs since he has not received work order from opposite parties. It is also informed that the complainant has to pay ` 100 per day if no work order is received within 7 days. Complainant sent notice to issue work order. But no action has been taken and thereby complainant sustained serious damages. So complainant filed complaint before Insurance Ombudsman against opposite parties for a direction to issue work order. Company has repaired the vehicle after filing the complaint. So the complainant filed memo on 22.12.09 to withdraw the complaint with a liberty to approach appropriate Forum to get damages. The repair charge was ` 1,32,134. But 1st opposite party paid only ` 98,990.00. The complainant has paid the balance amount of ` 33,144. Opposite party repaired the vehicle only after a long period of 7 months. The vehicle was kept idle. 15 days time is sufficient to repair the vehicle. The willful negligence on the part of opposite party has caused huge damage to complainant. The vehicle is absolutely necessary for the supply of laterate stones from the quarry to his customers. He is doing supply of laterate stone. The vehicle is not using for hire or any other purpose.
Pursuant to the notice 1st and 2nd opposite party appeared and filed version jointly. 3rd opposite party though served properly remained absent and version also not filed. The brief contents of the version of 1st and 2nd opposite party are as follows : The complaint is filed suppressing the material facts. Complainant filed a complaint before the Insurance Ombudsman, Ernakulam with the same set of facts and pleadings. The matter was settled by both parties before Insurance Ombudsman and the opposite party had paid ` 98,900, the actual repairing charge of the vehicle according to the final bill produced by the complainant. The vehicle has suffered damage in the accident on 15.05.09. It was taken to Sakthi Automobiles and estimated ` 1,55,325 by their mechanic. The independent surveyor inspected the vehicle and reported that the chassis has to be replaced only after ascertaining, the extent of damage caused to the chassis by the accident. Then the Surveyor issued a letter on 03.10.2009 demanding the dismantling the vehicle to the complainant and the Manager Sakthi Auto mobiles. But the same was not accepted by the complainant. The Mechanic Manager,Sakthi Authomobiles estimated for replacement of RH side door and chassis. The Surveyor recommended for repair of RH side door and chassis frame. The extent of damage of chassis can ascertain only by dismantling the vehicle which was rejected by the complainant. Relief sought before the Ombudsman by the complainant for directing the opposite parties to issue work order to the Manager of Sakthi Auto Mobiles and for an amount of ` 89,600 being the EM1 for 4 months and tax of ` 2,800. The final bill would show that the opposite party is liable to pay only ` 98,990. As per the final bill the total repair charges are to the tune of ` 1,07,567 of the amount the salvage to the tune of ` 8,000. The excess deductable was to the tune of ` 1,000. Settlement was arrived at by both parties and paid ` 98,990 towards claim. The allegation that he had paid balance repair charge ` 56,335 is false, fabricated and incorporated with an ulterior motive. The final bill issued by Sakthi Automobile is only ` 1,07,565 and the opposite party is liable to pay only the final bill after deducting salvage. Delay caused due to laches and negligence on the part of the complainant. Complainant has not dismantled the vehicle as requested by the surveyor even after receipt of letter dated on 03.10.09. The letter of the complainant dated 13.07.09 was replied. Complainant before Insurance Ombudsman was on counts of delay in repair and financial loss. But complainant has agreed to settle the case in all counts. Complainant is estopped from filing case on the same cause of action. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether dispute between the parties settled before Ombudsman?
2. Whether there is any deficiency on the part of opposite party?
3. Whether the complainant is entitled for the remedy as prayed in the complaint?
4. Relief and cost?
The evidence consists of the oral testimony of PW1, PW2, DW1. Ext.A1 to A23, Ext.B1 and B2.
Issues 1 to 4 :
Admittedly complainant purchased the subject matter vehicle in the year 2009 and the same was insured with 1st opposite party upto 31.01.2010. The vehicle is having a comprehensive policy and the same was insured in the office of 2nd opposite party. Heavy damage was sustained to vehicle by an accident taken place on 15.05.09. Vehicle was handed over to 2nd opposite party on 22.05.09 but it was not repaired since no work order was given. Complainant sent notice to issue work order but no action was taken bywhich complainant approached Ombudsman to direct opposite parties to give work order. After filing the complaint opposite party repaired the vehicle. So complainant filed memo before the Ombudsman to withdraw the complaint with a liberty to approach appropriate Forum for Damage. It took 7 months to release the vehicle. Complainant was using the vehicle for his job to supply laterite stone whereby complaint lost in daily income at the rate of ` 5,500. The main case of the opposite party on the other hand is that the matter was settled by both parties before Insurance Ombudsman and opposite party paid 98,000, the actual repairing charge according to the final bill.
The first important point that has to be discussed from the very outset is the question whether there is any sort of settlement before Ombudsman or not. The evidence goes to show that complainant filed complaint before Ombudsman for directing the opposite party to issue work order. He has further stated in the complaint that the vehicle was repaired after filing the said complaint before the Ombudsman and hence withdrawn the complaint by filing memo to withdraw the said complaint with liberty to approach appropriate Forum to get damages. He has also adduced evidence to this effect by affidavit evidence. The condition of opposite party is that the matter was settled by both parties before Ombudsman.
Complainant filed documents in connection with the complaint before the Ombudsman. Ext.A15 is the true copy of the complaint. Ext.A18 is the letter dated 25.03.2011 issued by Public Information Officer, O/o. Insurance Ombudsman, Cochin, which is stated categorically thus: “As the complaint was withdrawn by the complainant, no formal order was passed by the Hon. Ombudsman. Accordingly the case was closed at our end”. This is a clear evidence that shows complainant has withdrawn the complaint and the same was closed without any formal order. Ext.A6 is the true copy of the memo filed by the counsel for the complainant for the purpose of withdrawing the case. The memo stated as follows. “After the filing of the complaint before this Hon’ble Ombudsman, the Insurance Company has repaired the vehicle. Hence as instructed by the complainant, the above complaint is withdrawing with liberty to initiate appropriate proceedings for getting damages caused to the complainant on account of the inaction of the Insurance Company, before appropriate forum”. It is undoubtedly clear that there is no joint memo filed before the Ombudsman. The memo filed by the complainant has made it clear that the Insurance Company has repaired the vehicle after lodging the complaint and hence complaint was withdrawn with liberty to initiate appropriate proceeding for getting damages. In the cross examination PW1 deposed that “Insurance companybn \n¶v ]Ww hm§n hopw tIkv \ÂIn-b-Xm-sW¶p ]d-ªm icn-b-Ã. C§s\ case sImSp-¡m-\p-ff Ah-Imiw Cà F¶p ]d-ªm icn-b-Ã.” The oral evidence of DW1 or the documents Ext.B1 and B2 marked on the side of opposite parties does not prove that the matter was settled before Ombudsman. Opposite party failed to produce any material to prove that the withdrawal of case was as a result of compromise or settlement between complainant and opposite party. Since the oposie party is not able to establish with cogent evidence that matter was settled between the parties there is no substance in the contention that the dispute between complainant and opposite party has been settled before the Ombudsman. Complainant has successfully proved that the parties did not arrived at settlement before the Ombudsman. Complainant has successfully proved that the parties did not arrived at settlement before the Ombudsman but complainant withdrawn the case with liberty to approach appropriate Forum for damages.
So the real question that is to be answered is whether there is deficiency on the side of opposite parties or not. It is a fact that the vehicle was purchased in the year 2009. Accident took place on 15.05.2009 that within six months of purchase. Vehicle was taken to workshop on 19.05.2009. The estimate was prepared and the same was handed over to 2nd opposite party on 22.05.2009. 3rd opposite party inspected the vehicle. But he did not issue work order to Manager for repair of his vehicle. Complainant says that he gave letter to Manager asking the reason why the vehicle was not repaired. The Manager replied that he could not repair the vehicle since no work order has been issued by the opposite parties. Ext.A2 letter sent by Sakthi Automobiles to complainant shows that they had received the letter dated 11.07.09 sent by complainant. It is specifically stated therein that they haven’t received any work order or verbal instruction from the opposite parties to carry out the work. It is also informed by them that they would be forced to charge a garage charge of ` 100 per day if no instruction received within seven days of receipt of the reply. Ext.A8 dated 13.07.09 is the letter by the complainant to the Manager, HDFC EGIC Ltd., Kannur informing the above said content of Ext.A21 and requesting them to issue work order to the Manager, Sakthi Automobiles. Complainant adduced evidence by way of affidavit evidence that even after receiving the registered letter of 13.07.09 by the complainant requesting to issue work order to Manager, Shakthi Automobiles no action has been taken by the opposite party. Complainant further added that because of this negligence he has suffered great mental agony and loss. Complainant adduced evidence that the repair work could have been done within two weeks but opposite party took 7 months to repair the vehicle. Complainant was elaborately cross examined. But nothing was brought out in favour of opposite party. It is brought out in cross examination that he has sent letter to opposite party on 13.07.09 and the AD card produced. Ext.A10 AD card proves that the Manager, HDFC received letter from complainant. With respect to the delay the witness on the side of opposite parties DW1 deposed in cross examination thus “Insure sNbvX hn-bpsS work sN¿p-¶Xv R§-fpsS \nÀt±I {]Im-c-am-Wv. Authorised Service Center tFÂ]n-¨n«pw work order issue sN¿m-¯-Xp-sImv Ombudsman lcPn sImSp-¡m³ \nÀ_-Ôn-X-\m-b-XmWv F¶p ]d-ªm F\n-¡-dn-bn-Ã. Insurancesâ `mK¯p \n¶v kw-`-hn¨ Ime-Xm-a-k-¯nsâ _m[-y-X-b#n \n¶v Hgn-hm-Im³ If-hmbn samgn sImSp-¡p-¶-Xm-sW¶p ]d-ªm icn-b-Ã.” Opposite parties did not give reasonable explanation for such a long delay in repairing the vehicle. Opposite parties repaired the vehicle later on after filing the complaint but they did not raise any condition to be fulfilled on the part of complainant. That means there was no reason for the long delay to repair the same. DW1 also deposed the he has inspected the vehicle on 23.05.2009. He has also admitted that as per the letter of 17th July, 2009 the vehicle was reached in authorized service station on 17.05.2009. Opposite party has not produced any evidence to show that there is justifiable reason for the delay of 7 months time to repair the vehicle.
The entirety of the facts and circumstances of the case together with the available evidence makes it clear that there is no justifiable reason on the part of opposite party for taking such a long period of repairing of the vehicle, the subject matter, which happened to meet with the accident within a period of less than six months of purchase. Hence we have no hesitation hold that there is negligence tantamount to deficiency in service on the part of opposite party.
It is seen 7 months delay in repairing the vehicle without justifiable reason. This is a vehicle met with the accident within a short period of purchase. It is an admitted fact that the vehicle was purchased in the year 2009 and the vehicle met with the accident on 15.05.2009. Complainant adduced evidence by way of affidavit evidence that the expense for repair charge was ` 1,32,134 and Insurance Company paid only ` 98,990. The balance amount 33,144 has been paid by complainant to workshop. DW1 in cross examination deposed that “Fsâ \nÀt±i chassis amän-bXv F¶p ]d-ªm amäm³ thn ]d-ªn-cp-¶p. Ext A19 {]Imcw chassis\v ` 75,100 BWv. Labour charge ImWn-¨Xv ` 28,750 BWv. Ext.A19 {]Imcw grand total ImWn-¨Xv ` 1,32,134 BWv.” Ext.A19 is a marked document which shows the total amount ` 1,32,134. The evidence of Assistant Manager of Shakthi Automobiles, Thottada adduced oral evidence and stated that Ext.A19 issued by Sakthi Automobiles and as per A19 the repair charge was ` 1,32,134. So it is quite evident that the grand total for the repair charge is ` 1,32,134. So the excess charge paid by the complaint has to be refunded deducting the salvage value. The evidence of DW1 shows that salvage value is ` 5,000. Salvage value if deducted the total amount liable to pay come to ` 28,144. Hence we hold that opposite party is liable to pay this amount.
The vehicle was issued by complainant for supply of laterate stone to his customers. Since it is not issued for any other purpose the delay caused would certainly affect the income of the complainant. Opposite party has no case that the complainant has any other source of income. Hence the complainant is entitled for a compensation and we are under the impression that an amount of 10,000 as compensation will meet the end of justice.
In the result, the complaint is allowed directing the 1st and 2nd opposite party to pay an amount of ` 28,144 (Rupees Twenty Eight Thousand One Hundred and Forty four only) towards repair charges and a sum of ` 10,000 (Rupees Ten Thousand only) as compensation together with ` 1000 (Rupees One Thousand only) as cost of this litigation within 30 days from the date of receipt of this order, failing which complainant is entitled for interest at the rate of 12% from the date of filing of this complaint. Complainant is at liberty to execute the order after the expiry of one month as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Cover note issued by the HDFC Insurance Company.
A2. Copy of R.C.
A3. Original policy.
A4. True copy of FIR.
A5. Report of A.M.V.I.
A6. Copy of estimate.
A7. Copy of letter sent by Sakthi Automobiles.
A8. Copy of letter sent by complainant dated 13.07.09.
A9. Acknowledgment dated 20.07.09.
A10. Acknowledgement dated 16.07.09.
A11. True copy of letter by 3rd opposite party dated 22.08.09.
A12. Repayment schedule.
A13. Account statement from NMGB to complainant.
A14. Account statement from NMGB to the wife of complainant.
A15. True copy of complaint submitted to Insurance Ombudsman.
A16. True copy of memo filed before Ombudsman.
A17. Letter issued by Insurance Ombudsman dated 10.12.10.
A18. Letter issued by Insurance Ombudsman dated 25.03.11.
A19. Tax invoice.
A20. Tax invoice.
A21. Letter dated 11.07.2009.
A22. Letter dated 30.09.1981.
A23. Letter dated 04.07.2009.
Exhibits for the opposite party
B1. Letter dated 03.10.2009.
B2. Motor Preliminary Survey Report.
Witness examined for the complainant
PW1. Complainant.
PW2. Sankara Narayana Variar.
Witness examined for opposite party
DW1. M.T. Prakashan.
/forwarded by order/
SENIOR SUPERINTENDENT
