By Sri. MOHAMED ISMAYIL.C.V, MEMBER
The grievance of the complainant are in brief:-
1. The complainant was conducting a shop in the name and style of NR Bakery for his livelihood. The complainant had purchased an electric scooter from the first opposite party for delivering bakery products as well as his personal use. The vehicle number is KL-53 T-2011 and the same was insured with the opposite parties 2 to 4 and valid period of insurance coverage was from 20/04/2022 to 19/04/2027. On 30/03/2023 at about 8.PM while riding to his home from Ramapuram a sudden turn to avoid a pot hole on the road resulted overturning of vehicle which caused heavy damage to the vehicle. The complainant escaped from the accident without affecting any serious injuries. Hence he had not availed any medical treatment.
2. On the basis of advice given by the first opposite party, damaged vehicle was taken to service centre of the first opposite party for repair work. The incident was duly reported with 2 to 4 opposite parties. Consequently, surveyor of the opposite parties had inspected the vehicle and prepared an estimate for Rs.34,077.76/-. The complainant submitted a claim application through second opposite party. On the basis of letter issued by the third opposite party, the complainant also submitted relevant records pertaining to the vehicle. But even after one month of period the complainant could not get back his vehicle as the opposite parties 2 to 4 did not disburse insurance benefit. The complainant had contacted second and fourth opposite parties for many times to release the amount under policy coverage. But they evaded from their responsibilities on the basis of frivolous excuses. On 17/05/2023, the opposite parties 2 to 4 were issued a repudiation letter by stating that cause of loss in the claim form does not tally with nature and extent of damage. According to the complainant, tyre disk and its motor had suffered serious damage in the accident and those facts were convinced by the surveyor of the opposite parties. Later, the complainant issued a letter to first opposite party demanding to repair the damage of the vehicle under warranty but the same was denied by stating that damage due to accident does not cover warranty. It is averred that vehicle is remained unused for a long time. The opposite parties are liable to rectify all damages of the vehicle. But they turned down. So denial of service repair work by the opposite parties are amounted to deficiency in service. The act of the opposite parties caused financial loss of Rs.1,00,000/- and the same is to be refunded by the opposite parties. The opposite parties are also liable to pay Rs.2,50,000/- as compensation for suffering of mental agony and also cost of the proceedings. The complainant further prayed for a direction to the opposite parties to rectify all defects either under warranty or under insurance coverage.
3. The opposite parties appeared and submitted written versions.
4. The first opposite party denied averments made in the complaint and the
complainant is not entitled for any relief from the first opposite party. According to the first opposite party, all warranty details are disclosed at the time of purchase itself. The motor and charger of the vehicle are availed with one year service warranty and 2 years warranty for the battery. Hence the manufacturer of the vehicle is a necessary party. But the complainant failed to incorporate the manufacturer as a necessary party in this proceedings. Hence the complaint is bad for non –joinder of necessary party. It is admitted by the first opposite party that they had made arrangements for availing insurance benefit from the other opposite parties for rectifying the damage and all these steps were taken as part of rendering service as a responsible dealer. According to the opposite party, they are not bound to do repair work without getting assurance of the insurer on payment of expense and same was well known to the complainant also. The first opposite party could not rectify damage of the vehicle due to non-availability of insurance benefit from the insurer. There is no role to the first opposite party in the matter of repudiation of claim. Hence the first opposite party prayed for dismissal of complaint.
5. The opposite parties 2 to 4 submitted written version jointly and denied allegations raised by the complainant. According to the opposite parties they had issued an insurance policy to the complainant. The policy number is MO908433 and it covered the period 20/04/2022 to 19/04/2023. It is also admitted that a claim application was received from the complainant. It is contented that parties in the policy coverage are bound by terms and conditions of policy. As per condition No.5 of the policy the insured shall take all reasonable steps to safeguard the vehicle for loss or damage and to maintain it in efficient condition. After accident, the surveyor of the second opposite party had inspected the vehicle and found that damage to rear wheel assembly was due to driving without maintaining proper air pressure in the rear tyre and the same is amounted to gross negligence on the part of the complainant. If the complainant had taken reasonable care and maintained proper air pressure the rear wheel assembly would not have sustained any sort of damage. The second opposite party had expressed willingness to reimburse the expenses of repair of other damage which was caused due to the fall. But the complainant had disagreed with it. The opposite parties are also admitted issuance of repudiation letter. It is further admitted that they are ready to reimburse Rs. 11,678/- which was the amount for repair of damages sustained to other parts of the vehicle due to fall on the road. The opposite parties prayed for dismissal of the complaint.
6. The complainant and the opposite parties have submitted affidavits as part of their respective evidence. The documents on the side of the complainant are marked as Ext.A1 to A7. Ext.A1 document is copy of certificate of registration of vehicle numbered as KL-53-T-2011 in favour of the complainant. Ext. A2 document is the copy of Certificate of Insurance policy issued by the opposite parties 2 to 4 in favour of the complainant. Ext.A3 document is the copy of estimate issued by the first opposite party. Ext. A4 document is the copy of letter issued by the opposite parties No.2 to 4 demanding to produce documents pertaining to disbursement of insurance amount. Ext.A5 document is the copy of letter issued by the complainant to the opposite parties 2 to 4. Ext. A6 document is the copy of repudiation letter dated 17/5/2023 issued by the opposite parties 2 to 4 to the complainant. Ext.A7 document is the copy of letter dated 03/06/2023 issued by the first opposite party to the complainant. The documents produced by the opposite parties 2 to 4 are marked as Ext. B1 and Ext.B2. Ext.B1 document is the copy of Policy certificate issued by the opposite parties 2 to 4 in favour of complainant. Ext. B2 document is the copy of surveyor report along with photographs.
7. The complainant have submitted an interim application to appoint an Advocate Commissioner to inspect the condition of the vehicle kept in the premise of the first opposite party. The Commission allowed the application and appointed Mr. Adv. Anwar Sadique T.T as Commissioner. The report submitted by the Advocate Commissioner is marked as Ext. C1 document.
8. Heard both sides in detail. Perused documents on the file and also examined Notes of Arguments submitted by the opposite parties 2 to 4. The Commission considered following points to adjudicate the matter:-
- Whether the opposite parties are answerable to the allegations of deficiency in service?
- If yes, Relief and cost?
Point No.1:-
9. The grievance of the complainant is that, he is owner of vehicle numbered as KL-53-T-2011 and the same was damged due to a fall on the road while attempting to avoid a pot hole, but the opposite parties did not repair the damages even though the same was occurred during the validity period of policy. The complainant alleged deficiency in service against the opposite parties and he is entitled for reliefs as sought for in the complaint.
10. The complainant has produced Ext. A1 document to prove ownership of vehicle No. KL-53 T-2011. It has come out in evidence that the complainant had purchased vehicle from the first opposite party. This fact is not disputed by the opposite parties. The complainant has also produced Ext.A2 document to show that he had purchased insurance policy from the opposite parties 2 to 4. Ext.A2 document would show that the policy was valid from 20/04/2022 to 19/04/2023. It is admitted fact that accident was occurred on 30/03/2023 which was during the validity period of the policy. It is also admitted by the opposite parties that they had received a claim application from the complainant.
11. It is argued by the complainant that the opposite parties are liable to disburse insurance benefit under Ext. A2 document. According to the complainant an estimate was given as per Ext. A3 document by the first opposite party for repair of damages occurred in accident. As per Ext.A3 document Rs. 34,077.76/- was the required amount for repair work. But even though repeated request made by the complainant for releasing insurance benefit and get the vehicle repaired, but the opposite parties denied services without any basis. Finally, the opposite parties 2 to 4 were issued Ext. A6 document and thereby repudiated the claim. The complainant has produced Ext. A5 document to show the request made by him for availing insurance benefit.
12. On the other hand, first opposite party argued that they are not bound to repair the damage without payment either from the complainant or from the opposite parties 2 to 4. It is admitted that the surveyor of the opposite parties 2 to 4 contacted and assessed the damages, but insurer failed to disburse the amount. Hence there is no deficiency in service from the side of the first opposite party. Moreover, it is further argued that the complainant is not entitled for warranty service as damage was occurred due to an accident.
13. According to the opposite parties 2 to 4, the report of the surveyor does not disclose a favourable case for the complainant. The opposite parties produced the report of the surveyor and the same is marked as Ext. B2 document. It is argued that damage to the rear wheel assembly was not caused due to any accident but due to negligence of the complainant by driving the vehicle with low air pressure. As per condition No. 5 of policy, complainant shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in efficient condition. Moreover, if the vehicle be driven before necessary repairs are effected any extension of damage or any further damage to the vehicle shall be entirely at the risk of the complainant. Hence they are issued Ext. A6 document to the complainant and repudiated the claim.
14. In the analysis of records availed for scrutiny, it can be seen that the opposite parties 2 to 4 admitted that they had offered to pay Rs. 11,678/- to the complainant on the basis of Ext. B2 document. According to the opposite parties 2 to 4, damages to the rear wheel assembly was caused by driving the vehicle without proper air pressure in the rear tyre. Hence the complainant is not entitled for repair work of damages to the rear wheel assembly. In the examination of Ext.B2 document, nothing can be elucidated to draw a conclusion that damage caused to rear wheel assembly was due to low air pressure. Ext.B2 document explicitly show that cause and nature of loss had tallied with the claim form and insured vehicle was damaged due to a fall in gutter. It can be also seen from Ext. B2 document that cause of loss as per claim form appears to be genuine and the damage sustained to the vehicle are compatible with the incident. It has come out in evidence that damage was occurred to rear wheel assembly due to accident. It can be seen that Ext. B2 document is silent on that aspect. In addition as per Ext. C1 document, wheel rim of the vehicle was in damaged condition. Hence the Commission find that the opposite parties 2 to 4 are liable to reimburse the expenses of the repair work as per Ext. A3 document. It can be also seen that the opposite parties 2 to 4 did not challenge veracity of Ext.A3 document before this Commission. So, the act of repudiation of claim as per Ext.A6 document is amounted to deficiency in service on the part of opposite parties 2 to 4. The Commission also find that there is no evidence from the side of the opposite parties 2 to 4 to show that the complainant had acted negligently and failed to take steps to safeguard the vehicle from loss or damage. Hence issuance of Ext. A6 document is without any basis.
15. In the examination Ext.C1 document, it can be seen that vehicle was kept in idle condition by the first opposite party. But there is no evidence before the Commission to show that idle condition of the vehicle for a long period of more than 18 months would cause further damage to it. At the same time the first opposite party is not liable to repair the vehicle under warranty service. Therefore the Commission find that the vehicle was kept without use solely due to the deficient service of the opposite parties 2 to 4 causing inconvenience to the complainant. So the first opposite party is exonerated from liability.
16. Point No. (ii):-
The Commission find that the complainant had suffered mental agony and inconvenience due to the idle condition of the vehicle. It is find that unjustifiable act of repudiation has been caused unreasonable delay in carrying out repair work of the vehicle. Hence the Commission find that the opposite parties 2 to 4 are liable to pay Rs. 50,000/- to the complainant as compensation for the act of deficient service. The opposite parties 2 to 4 are also liable to pay Rs.34,077.76/-to the complainant as cost of repair work as per Ext.A3 document. The complainant is at liberty to select any service centre other than first opposite party if the first opposite party is failed to repair the damages. The Commission also consider the circumstances that the complainant was forced to adopt legal action to redress his grievances, hence opposite parties 2 to 4 are liable to pay Rs.15,000/- to the complainant as cost of proceedings. On the basis of discussion made above the complaint is allowed in the following manner:-
- The opposite parties 2 to 4 are directed to pay Rs. 50,000/- (Rupees Fifty thousand only) to the complainant as compensation for the act of deficient service.
- The opposite parties 2 to 4 are also directed to pay Rs.34,077.76/-(Rupee Thirty four thousand and seventy seven and seventy six paisa only) to the complainant as cost of repair work .
- The opposite parties 2 to 4 are directed to pay Rs. 15,000/- (Rupees Fifteen thousand only) to the complainant as cost of proceedings.
The opposite parties 2 to 4 are shall comply this order within 30 days from the date of receipt of copy of this order otherwise entire amount shall carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 30th day of October, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A7
Ext. A1: Document is copy of certificate of registration of vehicle numbered as KL-
53-T 2011 in favour of the complainant.
Ext. A2: Document is the copy of Certificate of insurance policy issued by the
opposite parties 2 to 4 in favour of the complainant.
Ext. A3: Document is the copy of estimate issued by the first opposite party.
Ext. A4: Document is the copy of letter issued by the opposite parties No. 2 to 4
demanding to produce documents pertaining to disbursement of insurance
amount.
Ext. A5: Document is the copy of letter issued by the complainant to the opposite
parties 2 to 4.
Ext. A6: Document is the copy of repudiation letter dated 17/5/2023 issued by the
opposite parties 2 to 4 to the complainant.
Ext. A7: Document is the copy of letter dated 03/06/2023 issued by the first opposite
party to the complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 & B2
Ext. B1 : Document is the copy of Policy certificate issued by the opposite parties 2 to
4 in favour of complainant.
Ext. B2: Document is the copy of surveyor report along with photographs.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
