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 322/09 DATED 17.11.2009<br /> ORDER<br /> <br /> Complainant P.Prabhuram, Managing Director, M/s Ekadantha Hotels Pvt. Ltd., No.L 17, Chandraguptha Road, Lashkar Mohalla, Mysore-570001.<br /> (By Sri. K.Ishwar Bhat, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Branch Manager, ICICI Lombard General Insurance Company Ltd., No.204, 2nd Floor, Kantharaja Urs Road, Saraswathipuram, Mysore.<br /> 2. Branch Manager, Dakshin Honda, Elite Auto Mobiles Pvt. Ltd., Kathal No.2/97, Sy.No.97/1A, Singasandra Village, Hosur Road, Bangalore.<br /> (By Sri. R.P.Poornachandra, Advocate for O.P.1 <br /> and O.P.2 - EXPARTE)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 28.08.2009<br /> Date of appearance of O.P. : 15.09.2009<br /> Date of order : 17.11.2009<br /> Duration of Proceeding : 2 MONTHS <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. The complainant has filed the complaint under section 2 of the Consumer Protection Act, directing the opposite party to pay a sum of Rs.9,20,240/-, the compensation towards loss regarding damage caused to the vehicle in the accident along with interest and cost.<br /> <br /> 2. In the complaint, it is alleged that, the complainant is owner of Honda Civic Car No.KA-09, N-9383. It is insured with the first opposite party with comprehensive insurance policy No.3001/5246/ 7226/01/000 valid from 05.09.2008 to 04.09.2009. On 14.09.2008 at about 5.30 am, the vehicle met with an accident near Chamundi Hill view point and has been completely damaged. A complaint with the police has been lodged. The vehicle was shifted to second opposite party who has given an estimation for repairs in a sum of Rs.12,96,000/-. This fact was brought to the notice of first opposite party with a request to pay the insured amount. The first opposite party came forward with an offer to pay Rs.4,00,000/- as OD full and final settlement. Complainant was not agreeable for the said offer. The complainant claimed the total insurance amount of Rs.8,17,740/- or to get it repaired at their cost with second opposite party. Complainant sent notices to the first opposite party. First opposite party has not come forward to pay the claim made by the complainant. There is no reply to the notices. Hence, there is deficiency in service on the part of the first opposite party. Second opposite party is impleaded, since the vehicle in it’s custody. The complainant being businessmen put to lot of inconvenience without having vehicle and he suffered loss to the extent of Rs.75,000/-. The first opposite party has caused inconvenience as well as mental agony without rendering service and paying the insured amount, even though five months lapsed as complaint was lodged on 15.09.2008. Further, it is stated, complainant had filed C.C. No.57/09 before this Forum, which came to dismissed with an observation that, the complainant did not submit proper claim before the first opposite party. Thereafter, the complainant submitted claim form with first opposite party under claim No.MOTO 0891392 with required documents, on 29.04.2009. Subsequently, first opposite party has appointed insurance surveyor by name Ragotham, who called upon the complainant to advice second opposite party to shift the vehicle to the workshop for further inspection, as the vehicle is parked in the open ground. Complainant wrote to both opposite parties and also to the surveyor. Then, surveyor on 05.06.2009, called upon the second opposite party to dismantle the vehicle and instructed to carry out the repairs to the second opposite party. The said surveyor ought to have inspected each and every damaged part of the vehicle and estimated damage in presence of the complainant. He has not done so. Second opposite party has estimated the damage and repair charges around Rs.13,00,000/-. The second opposite party is making claim of parking charge of Rs.300/- per day in all amounting to Rs.1,00,000/-. The complainant sent to repeated mails to the opposite parties and to settle the claim of Rs.8,17,740/-. The first opposite party has not complied with it. The second opposite party has sent mail claiming Rs.4,00,000/-. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version, has stated that, IDV is at Rs.8,17,740/- for the purpose of policy. The accident and the validity of the policy, is admitted. It is contended that, earlier complaint of the complainant came to be dismissed for want of documents. There is no cause of action for the present complaint. Also as there is no deficiency in service. It is stated, the complainant produced estimation of Rs.12,96,000/- of the second opposite party and the estimation submitted by the surveyor is Rs.4,67,723/-. Now, the complainant is claiming insured amount. Hence, complainant was directed to completely dismantle the vehicle for estimation of the damages. Second opposite party charged for the same Rs.25,000/- and that has been remitted by the complainant. It is stated that, the complaint at this point of time is premature as the claim is only on the basis of estimation. The complainant has not placed any claim form before the first opposite party. Also, it is contended that, as per the procedure, the claim can be released only after complete repair and replacement of all parts of the vehicle. It is submitted that, this opposite party is ready to release the proper claim amount in favour of the complainant, if complainant placed proper claim. This opposite party has not refused any claim of the complainant. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. The second opposite party in spite of due service of notice, as remained exparte.<br /> <br /> 5. To prove the facts alleged in the complaint, for the complainant Managing Director has filed his affidavit and for the first opposite party, the Manager has filed his affidavit. Certain documents are produced by both the parties. We have heard the advocate for the complainant and the first opposite party. Also, we have perused the records.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the first opposite party and that it is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Negative, but certain observations made.<br /> Point no.2 : As per the order.<br /> <br /> <br /> REASONS<br /> 8. Point no. 1:- Certain admitted facts are not repeated here. Main contention of the first opposite party is that, the complaint is pre-mature. It is the contented that, complainant was directed to get the vehicle completely dismantled for thorough inspection and estimation of the damages to the vehicle. Also, it is stated that, only after estimation of the total damages, the opposite party can fix the amount that, the complainant is entitled to. The amount can be released in favour of the complainant only after complete repairs and replacement of the parts. So also, it is stated that, first opposite party is ready to release the estimated amount after the vehicle is completely repaired.<br /> 9. Considering the entire facts, prima-facie it appears that the both opposite parties atleast, the first opposite party are playing delaying tacties. Because, the vehicle met with accident on 14.09.2008 and as on today, more than one year elapsed and the records discloses, there are several correspondence between the parties and even, the complainant had filed earlier complaint, which came to be dismissed with certain observation and thereafter also, the complainant made repeated requests and even submitted the claim. But, the fact remains that for one or the other reason, repair of the vehicle has not been completed.<br /> 10. There are number of correspondence, particularly SMS between the parties and at this stage, we feel it not necessary to narrate the same in detail. However, the fact remains that the vehicle has not been repaired and the loss has not been yet assessed and determined by the first opposite party insurance company. It is true, unless the loss has been estimated and the repairs of the vehicle is done, the amount that the first opposite party is liable to pay, cannot be fixed. For this reason, we do consider that the present complaint is pre-mature. However, at the cost of repetition, in fact, the complainant had also filed earlier one more complaint and that also was dismissed under similar circumstances. Thereafter, there were many correspondence between the parties and even then, it appears opposite parties have not co-operated with the complainant to get the loss assessed in accordance with the procedure. Without making any further remarks, we feel it just to dispose off the complaint giving certain directions to the opposite parties in the interest of justice. Accordingly, we answer the point.<br /> 11. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> The complaint is disposed off with following observations:-<br /> 1. The first opposite party to give the necessary consent or permission within a week from the date of this order to proceed with the repairs of the vehicle and also, get the estimation done through the surveyor.<br /> 2. Further, second opposite party shall carry out the repairs of the work 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.<br /> 3. The complainant may pursue the claim already submitted to the first opposite party by producing necessary documents or else may submit fresh or further claim along with required documents.<br /> 4. The complainant is at liberty to file fresh complaint in accordance with law.<br /> 5. 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 17th November 2009)<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 />