IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 28^th day of October, 2022

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 85/2018 (filed on 03/05/2018)

Petitioner                                          :         Shimmy C.R.

                                                                   D/o. Rajan,

                                                                   Chelackal (H)

                                                                   Mannamkandom P.O. 1000 Acre,

                                                                   Idukki Dt. Pin - 685561

                                                                   (Adv. P.K. Vinodkumar and

          Adv. V. Dhanush)                                                          Vs.    

    Opposite Parties                                     :  (1)  Manager,

                                                                   Indus Motors, Pala,

                                                                   Kottayam – 686575

                                                                   (Adv. Suresh Kumar C.R.)

                                                            (2)   Maruti Insurance

                                                                   Booking Pvt. Ltd.

                                                                   Nelson Mandela Road,

                                                                   Vasant Kunj,

                                                                   New Delhi- 110070

                                                                   (Adv. P. Jayabal Menon)

                                                            (3)   Iffco Tokio General

                                                                   Insurance Company Ltd.

                                                                   Plot No.3, Sector 29,

                                                                   Gurgaon, Hariyana – 122001

                                                                   (Adv. Agi Joseph)

O  R  D  E  R

Smt. Bindhu R. Member

The complaint is filed under Section 35 of the Consumer Protection Act, 2019.

The complainant’s case is that the Maruthi Swift car with Reg .no. KL-68-1253 purchased by him from the 1^st opposite party and insured with the 3^rd opposite party through the 2^nd opposite party met with an accident on 8.9.2017. After the accident the 1^st opposite party took the vehicle to their workshop and on 16-04-2018 the 1^st opposite party informed the complainant about the completion of the repair work and demanded to take delivery of the vehicle after paying the bill. Then only the complainant realised that the 3^rd opposite party had not processed his insurance claim. He had to pay Rs.2,55,160/- for the repair work. The complainant was entitled to get the reimbursement but the 2^nd  and 3^rd  opposite parties did not processed the claim yet. The inadvertent delay in processing the claim amounts to deficiency of service and hence this complaint.

Upon notice the opposite parties appeared before the Commission and filed

separate versions.

The 1^st opposite party in its version has contended that it is admitted that the complainant’s vehicle of the said description was taken to their workshop by the  1^st opposite party as per the request made by one Saji who brought the vehicle other than the owner. The complainant has never appeared in front of the opposite parties herself.  Thereafter he demanded over phone, the 1^st opposite party to carry out the work, claimed that he could process the insurance claim himself. The 1^st opposite party had completed the repair work on time and gave delivery of the vehicle on payment of the bill amount.

The person who brought the vehicle not being the owner refused to avail the insurance benefit. He did not present the appropriate documents necessary for processing the insurance claim and left the place without signing the documents.

The 1^st opposite party is only a service provider and it cannot process or forward a claim of insurance without the documents of the vehicle.

The 2^nd opposite party in its version contended that it is not a necessary party to the complaint for the alleged cause of action. The 2^nd opposite party is not an insurance company to indemnify the complainant for the alleged loss or damage to the vehicle under the insurance cover nor has received any consideration from the complainant with regard to the repair. The role of the 2^nd opposite party is to appraise customers about the features and benefits of motor insurance products offered by various insurance companies. After this facilitation, customers buy insurance as per their own will and volition and pay insurance premium which goes to the concerned insurance company only. In lieu of the premium received, insurance company insures the vehicle and issues insurance policy to the customers subject to their own terms and conditions/IRDAI guidelines. Policy issuance/cancellation, appointment of surveyors for claim investigation and assessment and acceptance or repudiation of claims is the sole prerogative of the Insurance Company concerned only. The complainant is not a consumer of the 2^nd opposite party. There is no privity of contract between the complainant and the 2^nd opposite party

The 3^rd opposite party filed its version through the General Manager, Head customer service that the details of the insurance policy and the vehicle number are not stated in the petition. Without knowing the details of the policy and vehicle number the 3^rd opposite party is unable to find out the details of the policy. Hence it denied the policy .The complainant has not submitted any insurance claim to the 3^rd opposite party. The amount claimed is exorbitant and not incurred to the petitioner. The claim can be allowed only on the basis of the report of the surveyor appointed by the insurance company. Here the insurance company has not got an opportunity to assess the damage of the vehicle through an IRDA licensed surveyor. So the 3^rd opposite party is not liable to pay compensation to the petitioner. There is no cause of action against the 3^rd opposite party and there is no deficiency of service on the part of the 3^rd opposite party.

The complainant filed proof affidavit through her power of attorney holder, one Saji N.R along with 4 documents which are marked as Exhibit A1 to A4.The 1^st opposite party filed proof affidavit with no documentary evidence and 3^rd  opposite party also filed proof affidavit along with Exhibit B1.

On a detailed perusal of the pleadings and evidence on record, we intend to fame the following points:

1. Whether there is any deficiency of service on the part of the opposite

parties?

2. If so what are the reliefs the complainant is entitled to?

Point No.1 and 2

The above points are considered in detail as per the undergoing discussion.

1. The complainant’s case is that the car purchased by her from the 1^st  

opposite party, insured with the 3^rd opposite party through the 2^nd opposite party met with an accident but she had to pay the entire amount for repair as no reimbursement was done by the 3^rd opposite party due to the deficiency in service of the opposite parties. The opposite parties objected these allegations that the 1^st opposite party contended that the vehicle was brought by one third person and he didn’t submit the required documents. The 2^nd opposite party contended that the policy was issued by the 3^rd opposite party and the 2^nd opposite party has no liability whereas the 3^rd opposite party has contended that they did not receive any claim regarding the accident and so they could not reimburse.

2. The date of accident was 08/09/2017. The complainant has produced 4 documents out of which Exhibit A2 is the insurance policy (original) which stipulates the procedures when the consumer’s car meet with an accident. Under the head “What to do if your car meets with an accident?” it is suggested that Simply inform Maruti Insurance at 33774477 (prefix 011/022/033/044) or visit the nearest Maruti Suzuki Dealer.  They will assist you with your claim intimation to us and will also help you with other formalities.  In case you intend to make a claim on your policy, please ensure that the claim is intimated to Maruti Insurance within 24 hours of accident or on the next working day”. Here the complainant, who is the owner of the impugned vehicle informed the 1^st opposite party and they took the vehicle from the accident site. The 1^st opposite party has not denied it.

3. The complainant has sought a direction from this commission directing the 1^st opposite party to produce the original of the accident job card sheet but the 1^st opposite party did not comply the said order as such. They did not produce the original but produced the Photostat copy of the same only for no reason. So due to the non-production of the required document by the 1^st opposite party,  we are constrained to take adverse inference against the 1^st opposite party raising veracity of its contentions.

4. The 1^st opposite party produced Exhibit A4 which is a photocopy of the accident job card sheet issued by the 1^st opposite party in which the name of the customer is written as Shimmy, who is none other than the owner of the vehicle, the complainant here in. Moreover, in the documents details column, the columns against the driving licence, RC book, Insurance policy are marked and the other documents columns are left unmarked.

This gives an inference that the marked documents were received by the 1^st opposite party.

DW1 deposed that “km[m-c-W-K-Xn-bn Op1  \n¶v hml\w hm§n-bm Op2   \n¶pw insurance FSp¯v sImSp-¡m-dp-ÅXv.” He was the works manager of 1^st opposite party. If Exhibit A2 and A4 are read together, we can see that the complainant/consumer had fulfilled the direction of the 2^nd opposite party that in the event of an accident the consumer shall approach the nearest Maruthi Suzuki dealer. From A4 document it is clear that the complainant herself had gone to the 1^st opposite party and admittedly she was the owner of the vehicle. The 1^st opposite party though contended that one Sijy had brought the vehicle to their workshop, they have failed to prove this. So the contention of the 1^st opposite party that the person who brought the vehicle to them was not the owner and so he refused to submit the documents.

5. Further in A4 itself it is noted that “Repairs under insurance would be started only after receipt of approval from the insurance company” “Estimate of repair is calculated approximately, the final bill is subject to the revision of estimate and surveyor approval during work in progress. So these are the                            pre-conditions for the repair work of a vehicle for accident repair. Though this is the position, the 1^st opposite party has not enquired whether there is any insurance policy for the vehicle either of maruti or of any other company. This itself indicates the lack of care and service the 1op has towards its consumers. Further, the 1^st opposite party has not satisfactorily explained how could they start the repair work without a surveyor report in such a heavily damaged vehicle?

6. DW1 has deposed that most often the company would forward the claim to the insurance company and start the repair only after getting approval. In forwarding cases the consumer would be informed about the approval or rejection as the case may be.” Moreover, the 1^st opposite party has not produced any consent letter from the complainant to start the repair work without insurance. So it can be inferred that the repairing work started by the 1^st opposite party without any approval from the 3^rd opposite party insurance company itself is improper.

7. In the proof affidavit the 1^st opposite party has admitted that the impugned vehicle was purchased from them and it was insured with the 3^rd opposite party through the 2^nd opposite party. So it is evident that the 1^st opposite party was well aware that the said vehicle was insured through the 2^nd opposite party and hence they were bound to inform the 2^nd opposite party and forward the claim of the vehicle owner. The 1^st opposite party therefore was under obligation to inform the owner of the vehicle to start the processing of the insurance in order to commence the repair work. The act of the 1^st opposite party by evading from their bounden duty to assist the owner/complainant as per Exhibit A2 is a grave negligence on the part of the 1^st opposite party. If it was insured with some other company, the contention of the 1^st opposite party would have been appreciated. So as the complainant being a consumer of the 1^st opposite party has reasonably expected a faithful service from the part of the 1^st opposite party, and when it was denied, she had to undergo severe mental agony which has to be compensated in terms of money. We find that with the ample knowledge of the complainant’s vehicle being insured with the opposite parties, the 1^st opposite party who is legally bound to serve the complainant to avail the benefits of the policy, has refrained from their duty and thus has committed deficiency in service.

8. The vehicle was repaired by the 1^st opposite party for a bill amount of Rs.2,55,160/- as per the Exhibit A3 series. The complainant had to pay the whole amount as the 3^rd opposite party has not reimbursed the amount. The 1^st opposite party who omitted to forward the claim of the complainant to the 3^rd opposite party insurance company causing huge loss is liable to refund the amount. The complainant who had to suffer a huge mental agony in the accident, had to suffer again due to the deficient act of the 1^st opposite party. So the 1^st opposite party has to compensate the complainant.

Hence we allow the complaint vide the following order

1. The 1^st opposite party is directed to repay Rs.2,55,160/- along with interest @6% p.a. from 16.04.18, the date of completion of repair work till realization.

2.The 1^st opposite party is directed to pay Rs.10,000/- as compensation to the complainant.

The order shall be complied within 30days from the date of receipt of Order, failing which the compensation amount shall carry 9% interest from the date of receipt of the order till realisation.

          Pronounced in the Open Commission on this the 28^th day of October, 2022

Smt. Bindhu R. Member                 Sd/-

Sri. Manulal V.S. President             Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Sworn statement from the side of opposite party

DW1 – Shameer M. Ismail

Exhibits marked from the side of complainant

A1 – Copy of registration certificate (KL-68-1253)

A2 – Copy of certificate cum policy schedule

A3 series – Copies of job card retail – tax invoice (4 nos)

A4 – Copy of accident repair job slip sheet

Exhibits marked from the side of opposite party

B1 – Copy of certificate cum policy schedule

                                                                                                          By Order

                                                                                                               Sd/-

                                                                                                      Assistant Registrar