IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 31st day of December, 2010
Filed on 24.6.09
Present
- Sri. Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. Shajitha Beevi (Member)
in
C.C.No.225/09
between
Complainant:- Opposite Party:-
Sri.M.P.Sreekumar, The Manager,
Mangalappallill, National Insurance Company,
Chathurthyakary at present residing at Alleppey Branch.
Paruthippallil, Karoor. (By Adv.C.Muraleedharan)
Ambalappuzha.P.O., Pin 688561 (By Adv.Azeem Mohammed)
O R D E R
SRI.JIMMY KORAH (PRESIDENT)
The case of the complainant is as follows: - The complainant is the registered owner of the Wagon RLXI bearing No. KL4 L 9578. The complainant is the administrative officer at United India Insurance co. Ltd. He purchased the said car from M/s New mobile cars now known as M/s Hercules Automobile Int'l Pvt. Ltd, Alappuzha. The maintenance of the said car was being carried out in the said dealer workshop. On 25th July 2007, during a ride, a smoke came out of the car from the switch unit attached to the steering column. The complainant informed the dealer and the same was got repaired therein. The complainant was impressed upon that the smoke was the result of some sparking inside the switch. A few months later, the same thing was repeated, and the car was repaired similarly by the same dealer. The complainant was advised to replace the switch unit once the identical problem reoccurs. When matters stood thus, on 3rd January 2008, at 7.30 AM the complainant noticed smoke emerging out from the car. On examination it was found that the car caught fire causing heavy damages to the car. The timely intervention of the complainant reduced further damage to his vehicle. The vehicle was remaining idle in the complainant's residence since the previous day. The said accident was duly informed to the opposite party and the dealer. An estimate of Rs.75000/-(Rupees seventy five thousand only) was served by the dealer. However on completion of the repair work, the delivery of the car was effected on 23rd January 2008. The dealer workshop issued a bill of Rs.38035/-(Rupees thirty eight thousand thirty five only). Taking into account the survey report and the depreciation of spares the complainant paid Rs.20500/-(Rupees twenty thousand five hundred only). The complainant paid the said amount on the assurance tendered by the opposite party to the effect that the balance amount of Rs.17535/- (Rupees seventeen thousand five hundred and thirty five only) would be paid by the opposite party. But the opposite party on 21st October 2008 repudiated the complainant’s claim of the said amount. The complainant was constrained to pay the said amount as well. The opposite party is liable to indemnify the loss sustained by the complainant. The complainant sustained monetary as we11 as mental woes at the hands of the opposite party. Got aggrieved on this, the complainant approached this Forum for compensation and other relief.
1. On sending notice, the opposite party turned up and filed version. The contention of the opposite party is that the complainant lodged a complaint before this Forum as CC No.100/2008 on an earlier occasion on the basis of the same cause of action. That apart, he preferred a complaint before the insurance Ombudsman. In view of this the present complaint is not maintainable, the opposite party asserts. The complainant suppressed the real facts. The complainant was using domestic LPG in the car. The story of spontaneous fire is false. The conversion of fuel without permission is illegal. The vehicle caught fire consequent to the illegal fitting of LPG in the car. The independent surveyors appointed by the opposite party placed report to the effect that the loss sustained by the Vehicle is mere RS.17500/-(Rupees seventeen thousand and five hundred only). That too is not payable by the opposite party, given the nature and source of the accident, the opposite party alleges. The complaint has no merit. The complaint has no cause of action. The complaint is only to be dismissed with cost, the opposite party fervently contends.
2. The complainant evidence consists of the testimonies of the complainant and the proprietor of Auto city car as PW1 and PW2 respectively, and the documents Exts A1 to A3 were marked. Ext.A1 is the copy of the RC Book, A2 is the claim repudiation letter and A3 is the receipt of payment made by the complainant. On the side of the opposite party, the Asst. Manager of the opposite party was examined as RW1 and the documents Ext.B1 to B10 were marked. Ext.B1 is the copy of the policy, B2 is the claim form, B3 is the surveyor report, B4 is the final surveyor report, B5 is the repudiation letter, B6 is the 2nd repudiation letter, B7 is the copy of the RC Book, B8 is the letter of the complainant, B9 is the copy of the order of Ombudsman, B10 is the copy of the complaint in CC No.100/2008.
3. Bearing in mind, the contentions of the party, the questions come up for consideration are :-
(1) Whether the complaint is maintainable?
(2) Whether the fire took place consequent to the inadequate and illegal fitting of the LPG?
(3) Relief and cost?
4. Admittedly, the fire took place in the car. The contention of the opposite party is that the tire was an inevitable consequence of the unlawful fitting of the LPG in the car. Before delve deep into the reason for the unusual flames in the car, we feel it apposite to look first into the dispute with regard to the maintainability of the instant complaint. The contention of the opposite party is that the complainant, prior to instant complaint, approached the insurance Ombudsman, and earlier filed a complaint before this Forum as 100/2008. According to the complainant he approached the Ombudsman consequent to the conspicuous non-response from the opposite party. The complaint CCNo.100/2008 was against the manufacturer for realizing the total amount for not maintaining the quality of the component that caused the material accident. The complainant vehemently argues that, on the other hand, the instant complaint has been filed seeking remedy for the deficiency of service on the part of the opposite party. We anxiously went through the complaint so filed. The allegations in the complaint manifestly constitute deficiency of service. To seek remedy for the deficiency of service, the proper authority is therefore, if we may say so "With respect not Ombudsman but this Forum. And the previous complaint CC No.100/2008 appears to have been filed seeking remedy against the manufacturer, not for the deficiency of service allegedly committed by the opposite party. Needless to elaborate, we have no hesitation to hold that the instant complainant is maintainable before this Forum.
5. Coming down to the question of fire in the car, the case of the opposite party is that the complainant fitted the LPG in the car without the prior permission of the RTO. The opposite party was not informed. According to the opposite party the accidental arson was an aftermath of the inadequate fixing of the LPG in the car. In view of this contention, we feel that the immediate short question to be analyzed is whether the fire in the car was the direct consequence of the ineffectual LPG fitting. The issue of LPG if being fixed as per law or otherwise, crops up only thereafter. The definite case of the complainant is that only the solenoid and bi-fuel control switch were fixed in the car. The suitable tank was unavailable, and hence the process of fixing the LPG was incomplete. With the result the same was not connected to the electric supply of the car. In this circumstance, the allegation of the opposite party that the fire was the result of the LPG connection in the car is absolutely baseless, the complainant emphatically contends. As per the opposite party, the fire might have caused while checking the ignition upon replacing the refilled domestic cylinder. We meticulously perused the entire materials available on record. It appears that barring hare statements the opposite party does not make it a point to move further to fortify its contention based on mere conjecture. It is true that the opposite party filed the report of two surveyors. Merely enquiring by a surveyor cannot take place of proof. Even the affidavits of the surveyors have not been filed in the present case. That apart, on the side of the complainant PW2 who was fixing LPG in the complainant’s car was examined. PW2 asserted in the box that the gas kit partly fitted had no connection with the combination switch in the car. It is more significant to note that, though PW2 was cross examined not a single question as to this point was put to him by the opposite party. Therefore, there is no evidence worth the name seemed to have been let in by the opposite party to rebut the case advanced by the complainant. In contrast, the complainant case that the fire was spontaneous appears to be more specific and definite. In the light of this, we regret, we are unable to accept the contentions advanced by the opposite party. To put it clearly, the version put forth by the opposite party does not merit acceptance. As such, the complainant case stands established.
For the aforesaid facts and findings, the opposite party is directed to pay to the complainant an amount of Rs.17535/-(Rupees seventeen thousand five hundred and thirty five only) with 09% interest from the date of filing of the present complainant till its realization. The opposite party is further directed to pay a compensation of Rs.15000/-(Rupees fifteen thousand only) to the complainant. The opposite party shall comply with the order within 30 days of receipt of this order.
The complaint is allowed accordingly. No order on cost.
Pronounced in open Forum on this the 31st day of December, 2010
Sd/-Sri. Jimmy Korah
Sd/-Sri. K. Anirudhan
Sd/-Smt. N. Shajitha Beevi
Appendix:-
Evidence of the complainant:-
PW1 - M.P.Sreekumar (Witness)
PW2 - Varghese.C.J (Witness)
Ext. A1 - The copy of the RC Book
Ext. A2 - The Claim Repudiation Letter
Ext. A3 - The Receipt of payment made by the Complainant
Evidence of the opposite party:-
RW1 - Parameswaran Nair.N (Witness)
Ext. B1 - The copy of the Policy
Ext. B2 - The Claim Form
Ext. B3 - The Surveyor Report
Ext. B4 - The Final Surveyor Report
Ext. B5 - The Repudiation Letter
Ext. B6 - The 2nd Repudiation Letter
Ext. B7 - The copy of the RC Book
Ext. B8 - The Letter of the Complainant
Ext. B9 - The copy of the Order of Ombudsman
Ext. B10 - The copy of the Complaint in CC No.100/2008
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite Parties/S.F.
Typed by:- k.x/-
Compared by:-
