IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 116/10 DATED 28.05.2010<br /> ORDER<br /> <br /> Complainant Sri. P. Prabhuram, Managing Director, M/S Ekadantha Hotels Pvt., Ltd., No.L 17, Chandraguptha Road, Lashkar Mohalla, Mysore-570001.<br /> <br /> (By Sri. K.E.B., Advocate)<br /> <br /> Vs. <br /> Opposite Party 1. ICICI Lombard General Insurance Company Ltd., No.204, 2nd Floor Kantharaja Urs Road, Saraswathipuram, Mysore.<br /> 2. Dakshin Honda Elite Auto mobiles Pvt., Ltd., Katha No.2/97, Sy. No.97/1A, Singasandra village, Hosur Road, Bangalore. <br /> (By Sri. R.P.P, Advocate for O.P.1, O.P.2 is Exparte)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 05.04.2010<br /> Date of appearance of O.P. : 20.04.2010<br /> Date of order : 28.05.2010<br /> Duration of Proceeding : 1 Month 8 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> <br /> 1. This is the third complaint filed by the complainant against the opposite parties seeking direction to the first opposite party to pay the damages caused to the insured Car.<br /> <br /> 2. In the complaint, the complainant has alleged that, he is the owner of Honda Civic Car No. KA-09N9383, which was insured with the first opposite party under comprehensive policy valid from 05.09.2008 to 04.09.2009. On 14.09.2008 the vehicle met with an accident and has been damaged completely. The vehicle was shifted to the second opposite party for repairs. The second opposite party has made estimation at Rs.12,96,000/-. Insurance Policy amount is Rs.8,17,740/-. Complainant had issued notices on 03.01.2009 and 02.02.2009. But, there was no reply. Hence, there is deficiency in service on the part of the first opposite party. The second opposite party has been impleaded as a party to the complaint since the said vehicle is in their custody and the claim of the second opposite party towards repairs has to be satisfied by the first opposite party. The complainant being businessmen, is put to lot of inconvenience without having the vehicle, for his use and suffered loss to the extent of Rs.1,00,000/-. The complainant had filed CC-57/2007, which has been dismissed by this Forum on 28.04.2009 making an observation that, the complainant to submit proper claim petition to the first opposite party. <br /> <br /> 3. Then the complainant submitted Claim Form with required documents on 29.04.2009. The first opposite party appointed Insurance Surveyor and loss assessor by name Raghotham, for assessing the damages. The said surveyor by the letter on 20.05.2009 called upon the complainant to advise the second opposite party to send vehicle to the workshop for detailed inspection as it was parked in the open ground. The complainant replied the said letter. On 05.06.2009 again surveyor wrote to the complainant calling upon the second opposite party to dismantle the vehicle and accordingly in that connection complainant was advised and accordingly he has deposited a sum of Rs.25,000/-, as per the request of the second opposite party. The surveyor thereafter inspected the vehicle through bare eye and instructed to carry out the repairs. The surveyor in presence of the complainant has not made estimation. The estimation made by the second opposite party is Rs.13,00,000/-. In addition to it, the second opposite party is claiming parking charges amounting to Rs.1,00,000/-. It is highly excessive. The complainant sent repeated mails to opposite parties and also to the valuer calling upon them, for suggesting total loss assessment. None of them responded. The second opposite party sent E-mail to the complainant to deposited Rs.4,00,000/- but, it is the responsibility of the first opposite party. <br /> <br /> 4. Thereafter, the complainant filed the complaint on 26.08.2009 at CC-322/2009. On 17.11.2009, this Forum ordered and directed the first opposite party to give necessary consent or permission within a week to proceed with repairs of the vehicle and also to get the estimation done through the surveyor. The second opposite party was directed to carry out the repair works as per the procedure after getting consent from the first opposite party, if necessary from the complainant and repair at the earliest, giving liberty to file fresh complaint. <br /> <br /> 5. Thereafter, the first opposite party wrote letter dated 20.11.2009, stating that, surveyor Raghotham has been entrusted to make final loss assessment. Noting was taken place. Hence, the complainant wrote letter dated 16.12.2009 to the opposite parties and also to the surveyor, to send survey report. The surveyor sent a letter dated 21.12.2009 enclosing report dated 29.05.2009. Despite the Court order the surveyor has not made any fresh estimation. Only previous report was sent. Thereafter, nothing has taken place. The complainant sent two legal notices, one on 01.02.2010 and another on 02.03.2010. Opposite parties have not complied with the order of this Forum. On these grounds, it is prayed by the complainant to award a sum of Rs.9,47,240/-.<br /> <br /> 6. The first opposite party in the version has contended that, the estimation placed by the complainant is not in accordance with the conditions of the policy. It is stated that, as per earlier order of this Forum second opposite party was requested to carry out the repair works, but that has not been done. Further, it is contended that, the claim of the complainant cannot be entertained before the vehicle is repaired. Liability of making payment arises only vehicle is repaired. It is restricted to report of the surveyor. The order of this Forum to conduct fresh survey and to instruct the second opposite party to carry out the repairs has been complied with. There is no deficiency in service or non compliance of the order. The opposite party is always ready to make all those expenditure payable to the complainant as per the terms and conditions of the policy, provided the complainant produce all the bills after completion of the repair works. Hence, it is prayed to dismiss the complaint.<br /> <br /> 7. The second opposite party despite due service of the notice, has remained exparte.<br /> <br /> 8. The complainant has filed his affidavit and produced certain documents in support of his claim. On the other hand, one Chethan has filed his affidavit, for the first opposite party and produced certain documents. We have heard the arguments of learned counsel for the complainant and the first opposite party and perused the records. <br /> <br /> 9. Now the point arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of both or any of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> 10. Our findings are as under:-<br /> Point no.1 : Partly in affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> 11. Point no. 1:- The fact that, vehicle in question is insured with the first opposite party and the policy amount of Rs.8,17,740/- is admitted. So also during validity period of the policy, the vehicle met with an accident on 14.09.2008. The damaged vehicle was left for repairs with the second opposite party. It has made estimation at Rs.12,96,00/-.<br /> <br /> 12. Alleging that, the second opposite party has not repaired the vehicle and the first opposite party has not paid the damages. Complainant had filed CC-57/2009 before this Forum. By the order dated 28.04.2009 said complaint came to be disposed with a direction to the complainant to make proper claim along with required documents. Then on 29.04.2009 complainant submitted claim petition with documents, but no result.<br /> <br /> 13. Hence, the complainant filed another complaint at CC-322/2009 before this Forum. By the order dated 17.11.2009, said complaint came to be disposed giving direction to the first opposite party to give necessary consent or permission within a week to proceed with the repair work of the vehicle and also get the estimation done through the surveyor. Also, directed the second opposite party to carry out repairs, as per the procedure after getting the consent from the first opposite party and if necessary from the complainant also and complete the repairs at the earliest. Liberty was given to the complainant to file fresh complaint, if necessary.<br /> <br /> 14. Thereafter, by the letter dated 20-11-2009 addressed to the complainant the first opposite party requested to contact the surveyor stating that, matter has been discussed and the second opposite party has agreed to carry out the repairs and since the vehicle was not dismantled for final assessment, it was advised to attend the same enabling the surveyor to carry out the final loss assessment. By the letter dated 16.12.2009, complainant informed the first opposite party that, towards dismantling the car as directed a sum of Rs.25,000/- was deposited and the second opposite party dismantled to the car in July-2009 itself, which fact was informed through E-mail in the July, but the surveyor did not complete the survey. Also it is stated that, complainant contacted surveyor over phone and made request, for survey as per the order of the court, but the survey report has not been received. Also, it was requested to instruct the surveyor to carry out the survey and estimation done. By the letter dated 21-12-2009, the first opposite party wrote to the complainant that, surveyor has carried out the survey and the work order was given on 17-07-2009 and the complainant was further directed to request the second opposite party to carry out the repairs. By the letter dated 28-12-2009, complainant informed the first opposite party stating that, repeated requests were made to carry out the survey and also give direction to the second opposite party to repairs and as to whether it is agreeable to the estimation done by the second opposite party. Then the surveyor by name Raghotham by the letter dated 21-12-2009 addressed to the complainant enclosed copy of assessment, but the claim was not settled. Hence, again the complainant has filed the present third complaint.<br /> <br /> 15. Considering the fact and the material on record noted above, at the out set, we have to consider whether the first opposite party has complied with the order of this Forum passed in CC-322/2009. At the cost of the repetition, this Forum has directed the first opposite party to give necessary consent or permission within a week from the date of the order to proceed with the repair work of the vehicle to the second opposite party and so also to get the estimation done through the surveyor. Though the first opposite party in the version has contended that, the said order has been complied with, no cogent and acceptable evidence is placed on record to show that, the first opposite party gave necessary consent or permission to the second opposite party to proceed with the repair work of the vehicle. Then as regards getting the estimation done through the surveyor as noted above, by the letter dated 21-12-2009, the surveyor sent the copy of the estimation to the complainant and the date of said estimation is 29-05-2009. Hence, it is clear that, the said estimation is not done after order of the Forum and it is old survey report. So, safely we can conclude that, as per the order of this Forum, the first opposite party has not got surveyed the vehicle to assess the loss or damages. However, further it is pertinent to note that, for the first opposite party a letter of the surveyor dated 06-01-2010 along with survey report dated 06-01-2010 is produced. But, it is important to note that, the estimation done is also enclosed with the said report, wherein the date is mentioned as 06-01-2010, but the earlier assessment, which is produced by the complainant and the assessment referred to above produced by the first opposite party, are one and the same, except change of the date. Hence, prima-facie, it goes to show that, as per the order of this Forum, no fresh survey is conducted. Not only that, in the statement, date only is changed and scrutinizing the report that, the first opposite party has produced, further it makes clear that, the same has been created or concocted just to pretend that, the order of this Forum has been complied with. As noted above, the report is dated 06-01-2010, but in paragraph 7th date of survey is mentioned as 20-05-2009, but the survey statement produced by the complainant is dated 29-05-2009. If the said date of survey 20-05-2009 mentioned in the report has to be accepted then the report that was sent to the complainant dated 29-05-2009 must be second survey report. But it is not so. However, further if the statement of the first opposite party that, on 06.01.2010 surveyor has conducted the survey is to be accepted then the said report should be third one. That is also not correct. On keen observations of documents on record, only one survey was conducted on 29-05-2009 and to misguide the Forum, these documents are created by the first opposite party by just changing the date. So also it is important to note that, on the last sheet of the survey report produced by the first opposite party, there is mention that, towing charges be allowed, but in fact long long back damaged vehicle has been brought from accident spot to the Bangalore and admittedly it is in custody of the second opposite party. On the last page, at serial No.6, it is stated by the surveyor that, the complainant has not requested for spot survey. This observation of the surveyor is utterly false. All along after disposal of the first complaint by this Forum the complainant has made repeated requests not only to the first opposite party but, also to the surveyor to make estimation. There are letters written by the complainant not only the first opposite party but, copy of the same was sent to the surveyor. By these letters specifically request was made to make survey and assess the loss informing that, the vehicle is in custody of the second opposite party. Also, in this connection, it is relevant to note that, since the vehicle was not dismantled completely, complainant was directed to deposit a sum of Rs.25,000/-, for dismantling the vehicle and accordingly, complainant deposited the said amount and the second opposite party dismantled the vehicle and that, fact was brought to the notice of the first opposite party and also to the surveyor. In spite of it, the surveyor has stated in the report that, the complainant has not requested for spot survey. It is false and incorrect. Considering the entire fact, it is clear that, the surveyor has colluded with the first opposite party and created the report, which has been now produced by the first opposite party.<br /> <br /> 16. Now, coming to consid the loss, IDV is mentioned in the survey report at 8,17,740/-. The estimation done by the second opposite party is Rs.12,96,383/-. This fact is mentioned in the survey report that has been produced by the first opposite party. The surveyor has assessed the loss and mentioned the total amount payable to the complainant at Rs.4,83,846/-.<br /> <br /> 17. It is the contention of the first opposite party that, he is every ready to pay the loss or damage to the complainant provided the vehicle is repaired and the complainant produce the bills and receipts. In this connection, it is relevant to note that, the vehicle is left with second opposite party for repairs and the estimation done is nearly 13,00,000/-. The second opposite party has informed to the complainant to make initial payment of Rs.4,00,000/- to proceed with the repairs. The complainant claims that, he is unable to pay the said amount as it is for the first opposite party Insurance Company to make payment. Admittedly, no payment is made by the first opposite party either to the complainant or to the first opposite party. Under the circumstances, no payment having been made, the second opposite party may not proceed with the repair work unless it has assurance or guarantee of getting the amount either from the complainant or from the first opposite party Insurance Company. In view of these circumstances, we have to assess the loss or damage to the complainant. <br /> <br /> 18. As noted above, surveyor has assessed the loss at Rs.4,83,836/- but, for the reasons noted above, prima-facie, it is clear that, the said surveyor has colluded with the first opposite party. Hence, the said survey report is not free from doubt and under the circumstances, in the absence of other material on record, same cannot be accepted. At the same time, we do consider that, to substantiate the estimation done by the second opposite party at Rs.13,00,000/- no bills, vouchers or receipts are produced. Under the circumstances, the market value on the date of the accident or the insured amount, which ever is less can be awarded to the complainant. This observation has made by the Hon’ble National Commission in the ruling reported in I(2008) CPJ 188. The IDV shown in the survey report is Rs.8,17,740/- and that is the policy amount. Policy was valid from 05-09-2008 to 04-09-2009. Accident occurred on 14-09-2008 i.e., within 8-9 days from the date of issuance of the policy. Taking into consideration of these aspects, we feel it, just and proper to assess the loss and damage and to award a sum of Rs.8,00,000/- to the complainant.<br /> <br /> 19. Advocate for the complainant relying the ruling reported in 2010 (I) CPR 114 submitted that, insurance claim must be honestly settled without any delay. In this case as noted above by issuing notice, complainant had claimed damages, but was not paid and hence, the complaint was filed by the complainant before this Forum. On technical ground that, no claim petition was submitted, that complaint came to be dismissed giving liberty to the complainant to file fresh complaint in accordance with law. The complainant submitted claim petition along with required documents, but that was not honoured by the first opposite party. Then the complainant filed the second complaint, which also came to be disposed with certain directions, as noted earlier. The first opposite party did not comply the said directions and so also not settled the claim of the complainant. All along the first opposite party contended that,it is ready and willing to make payment of the expenditure incurred towards repairs, but the first opposite party has not made honest and sincere efforts either to get loss assessed or to settle it. On the contrary got created survey report as discussed here before. Hence, as rightly pointed out by the learned advocate and observed in the ruling cited, the dispute is like a game of snake and ladder.<br /> <br /> 20. Accordingly, our finding on the point is partly in affirmative.<br /> <br /> 21. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The first opposite party is hereby directed to pay damages of Rs.8,00,000/- to the complainant with interest at the rate of 12% p.a. from 29.04.2009, the date of claim, till realization. Said amount shall be paid within a month from the date of this order<br /> 3. Further, the first opposite party shall pay a compensation of Rs.25,000/- to the complainant towards mental agony and other inconvenience caused within a month, failing which the amount will carry interest at the rate of 10% p.a.<br /> 4. So also the first opposite party to pay a sum of Rs.5,000/- to the complainant towards cost of the proceedings.<br /> 5. The complaint against the second opposite party is dismissed with an observation that, the complainant may take appropriate action against it in accordance with law.<br /> 6. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 28th May 2010)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br />