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 /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 99/2010 DATED 31.05.2010<br /> ORDER<br /> <br /> Complainant Huchappa,<br /> S/o Chennamallappa<br /> R/at Bachahalli Village, Gundlupet Taluk, Chamarajanagar District.<br /> (By Sri. T.N.Nagananda, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Divisional Manager, <br /> ICICI Lombard General Insurance Co.Ltd., 2nd Floor, SBR Complex, Hosur Main Road, Madivala, Bangalore.<br /> 2. The Branch Manager,<br /> ICICI Lombard General Insurance Co.Ltd., Mythri Arcade, Saraswathipuram, Mysore.<br /> (By Sri. R.P.Poornachandra, Advocate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 25.03.2010<br /> Date of appearance of O.P. : 09.04.2010<br /> Date of order : 31.05.2010<br /> Duration of Proceeding : 1 MONTH 20 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking direction to pay a sum of Rs.92,391/-, the balance repair charges of the Tractor, which had met with an accident, insured with the opposite parties, and compensation of Rs.50,000/- towards mental agony and inconvenience caused.<br /> <br /> 2. Amongst other facts, in the complaint it is alleged that, the complainant is a registered owner of the tractor and trailer No.KA-10-T-4623/4624 insured with opposite parties from 25.11.2006 (wrongly typed as 1996) to 24.11.2007. On 12.10.2007, the Tractor and trailer fell in to 65 feet deep open well and was badly damaged. It was informed to the opposite parties. The Tractor and trailer were left with authorized dealer for repairs. The dealer Nandi Tractors repaired the tractor and trailer, for which complainant paid Rs.1.59.124/- by raising loan and took possession of the repaired vehicle. Then, complainant approached the opposite parties for payment of the said amount. But, the opposite parties on 07.11.2008 through cheque paid only Rs.66,733/-. The complainant thereafter repeatedly approached the opposite parties for payment of balance amount. The opposite parties have not paid the said difference amount in spite of service of the notice.<br /> <br /> 3. The opposite parties in the version admitted certain facts stated in the complaint, but contended that, official surveyor and loss assessor estimated the loss to the tune of Rs.62,680/- on the basis of the terms and conditions of the policy. As per the terms and conditions of the policy, the company is liable to make good only those damages with respect to the metal parts and not non-metal parts. The loss assessed by the surveyor has been paid and after lapse about one year, the complainant issued notice and has filed the present complaint. The opposite parties are not liable to pay the amount claimed.<br /> <br /> 4. The complainant has filed his affidavit and produced certain documents. On the other hand, for the opposite parties, one Guru Prasad has filed his affidavit and produced certain documents. We have heard the arguments of both learned advocates for the complainant and opposite parties and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved that, there is deficiency in service on the part of the opposite parties and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- As mentioned at the beginning, admittedly during the validity period of the policy, the tractor and trailer met with an accident and that was given for repairs to the authorized dealer Nandi Tractors. Said dealer after repairing the tractor and trailer, collecting in all Rs.1,59,124/- and returned the tractor and trailer to the complainant. The cash memos issued by the Nandi Tractors, are produced by the complainant. Contention of the opposite parties is that, as per the terms and conditions of the policy, the liability of payment of damages is only in respect of metal parts and not in respect of non-metal parts. This is the main and material dispute between the parties. The opposite parties so contending, have claimed that, the surveyor assessed the loss or damage only to the extent of Rs.62,680/- and that has been paid. So far concerned to the payment of this amount, there is no dispute. The complainant claims, opposite parties are liable to pay the difference amount to the extent of Rs.92,391/-.<br /> <br /> 8. As noted above, contention of the opposite parties is that, they are liable to pay loss or damage only in respect of metal parts as per the terms and conditions of the policy. To substantiate this fact, the opposite parties have not produced copy of the policy. In the absence of proof of the same, said contention of the opposite parties, under the circumstances, cannot be believed and accepted. Further, it is relevant to note that, even though, the opposite parties have contended that, they are liable to pay damages only in respect of metal parts, in the survey report, some non-metal parts have also been taken into consideration. Considering this aspect also, the contention of the opposite parties that, they are liable to make good only in respect of damage to the metal parts of the vehicle, cannot be accepted.<br /> <br /> 9. Except, the contention considered above, opposite parties have not taken any other material defense. So also, issuance of cash memos by the authorized dealer who have repaired the Tractor and trailer in question, are not denied or disputed. In these memos, as many as 78 items are taken in to consideration, but in the assessment sheet printout produced for the opposite parties, less than half of the same, are mentioned. In respect of remaining damaged and repaired items shown in the cash memos produced by the complainant, nothing could be found in the survey report. Hence, firstly, opposite parties have not proved that their liability is only in respect of damaged metal parts of the vehicle and secondly, they have not denied and disputed the correctness of the cash memos issued by the authorized dealer. Under these circumstances, we are of the opinion that, the complainant is entitled to the balance amount that he has claimed.<br /> 10. Opposite parties in the version have contended that, after receipt of the amount assed by the surveyor, complainant kept quite for a period of about one year and then, issued a notice and filed the complaint. But all along the complainant has claimed that, the payment made to the authorized dealer in respect of repairs was brought to the notice of the opposite parties and in spite of it, opposite parties paid only Rs.66,733/- and even thereafter, for balance he made repeated requests etc., The cash memos are dated 31.05.2008 whereas opposite parties paid the amount through a cheque on 07.11.2008, nearly after about 5-6 months. Further more, the fact that after about a year, the complainant sent notice or filed complaint is no ground to deny the lawful claim. At the cost of repetition, the complainant has stated that, thereafter repeatedly he made requests for payment of balance amount. <br /> <br /> 11. The complainant has further claimed a sum of Rs.50,000/- compensation. Firstly, there is delay in making payment of the amount by the opposite parties even in respect of the damage assessed by the surveyor and moreover, claim of the complainant has been substantiated by the cash memos issued by the authorized dealer and under the circumstances, towards mental agony and other inconvenience caused, it is just to award a sum of Rs.10,000/-.<br /> <br /> 12. Accordingly, our finding on the above point is partly in affirmative.<br /> <br /> 13. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite parties jointly and severally are directed to pay a sum of Rs.92,391/- to the complainant with interest at the rate of 10% p.a. from the date of the claim made, within a month from the date of this order.<br /> 3. Further, opposite parties shall jointly and severally pay a sum of Rs.10,000/- compensation to the complainant towards mental agony and inconvenience caused, within a month from the date of this order, failing which the amount shall carry interest at the rate of 10% p.a.<br /> 4. So also, opposite parties to pay a sum of Rs.5,000/- to the complainant towards cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 31st May 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />