BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 18th February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.149/2014
(Admitted on 29.04.2014)
Mr. Ambika Prasad N.P,
S/o Padmanabha Gowda,
Aged about 28 years,
R/at # 768, 5th Main,
Near Pipeline, ISRO Layout,
Bangalore 78,
Rep. by G.P.A. Holder,
Padmanabha Gowda,
S/o N. Kukkanna Gowda,
Aged 60 years,
R/at Nooalu House,
Ivarnadu Post & Village,
Sullia Taluk, D.K.
….. COMPLAINANTS
(Advocate for the Complainants: Sri SD)
VERSUS
Manager,
The Oriental Insurance Co. Ltd,
Door No.VIII, D.v.G. Road,
Basavanagudi,
Bangalore 04.
…..........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri AKK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he insured his vehicle No.KA.05.MF.9416 with opposite party for the period from 13.10.2011 to 12.10.2012 for Rupees 3,00,000/. The vehicle met with an accident on 16.03.2012 and the surveyor appointed by opposite party assessed the cost of repairs. As per the surveyor’s instructions repairs were carried out at the cost of Rs.1,72,710/. Even though complainant furnished clarifications and opposite party sanctioned only Rs.1,10,000/ towards repairs. Even after legal notice opposite party did not explain why Rs.72,710 deducted and did not supply initial survey report and final survey report to complainant. Alleging deficiency in service for non payment of the claim seeks the relief claimed in the complaint.
II. Opposite party in the written version admits the insurance coverage to the vehicle covering the period of the accident. The vehicle got surveyed and even assessed actual loss at Rs.1,15,943.61 minus the salvage charges of Rs.5,943.61 and Rs.1,10,000/ was credited to complainants account by NEFT. Alleging entitlement for the claim amount and deficiency in service by opposite party are denied. The estimation prepared by the said repairs is too early to assess the exact loss unless it is authenticated by the surveyor who was deputed to assess the exact loss. Hence seeks dismissal of the complaint.
2. In support of the above complainant Mr. Padmanabha Gowda filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C9 as detailed in the annexure here below. On behalf of the opposite parties Mr. Raghu Naik (RW1) Assistant Manager, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 to R3 as detailed in the annexure here below. Mr. P Krishna Murthy (RW2), Engineer, General Insurance, Surveyor and Loss Assessor also filed affidavit evidence and answered the interrogatories served on him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i) : Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No.(i): The policy coverage of the risk to the complainant’s vehicle and the policy issued by the opposite party to the complainant is admitted by opposite party. However the claim of the complainant at the estimate value of the repairs was refuted by the opposite party. Hence there is dispute between the parties the complainant the consumer and opposite party the service provider as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): The vehicle of complainant as seen from the Ex.C1 is of 2008 model. The total value assessed at the time of covering risk is assessed at Rs.3,00,000/ Ex.C2 is the repair estimate issued by Automatrix, Mangalore for the repairs of the complainants vehicle. It mentions total of the estimated expenses at Rs.3,69,125/ The invoice issued by the Automatrix towards repairs of the complainants vehicle showing final amount at Rs.1,72,710/
2. Ex.R1 is the survey report of One Mr. Jayarama Gowda H Surveyor and Loss Assessor in the respect of the complainant’s vehicle. In fact Ex.R1 is the verification report and the date of the survey is on 21.03.2012. Ex.R2 is the final survey report issued by one Mr. P Krishna Murthy, Engineer Surveyor & Loss Assessor this dated 15.06.2012. He assessed the total charges at Rs.1,15,943.61 and by deducting towards salvage amount of Rs.5,943.61 total amount of Rs.1,10,000/ was assessed. Since the vehicle is of 2008 model 25% of depreciation has been deducted on all parts except on rubber parts, 50% deducted on the rubber parts & the same has been waived on glass and noted salvage to be recovered.
3. This surveyor is an expert and there is no evidence tendered by complainant as to why and how this expert report is to be overcome. In fact opposite party tendered the evidence of Mr P Krishna Murthy the surveyor who issued the surveyor report. Except Ex.R2 nothing is elicited in his cross examination and interrogatories served on RW2 and furnished the reply of the affidavit to describe this expert report of Ex.R2. Hence we are of the view that considering the vehicle of complainant of 2008 the deductions made as per terms and conditions of the policy claimed of the complainant that the deductions made by the complainant as justified is not at all tenable. Hence complainant failed to prove the deficiency in service on the part of the opposite party. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 18th February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Padmanabha Gowda
Documents marked on behalf of the Complainants:
Ex.C1: 12.10.2012: Copy of Insurance Policy issued by the O.P
Ex.C2: 19.03.2012: Copy of the estimation
Ex.C3: 16.03.2012, 21.05.2012, 09.04.2012 and 18.05.2012 Copy of the bills (5)
Ex.C4: 04.05.2012: Copy of the Pass Book
Ex.C5: 04.10.2012: O/c of Regd. Notice
Ex.C6: 30.10.2012: Reply of the O.P
Ex.C7: 22.11.2012: O/c of Regd. Notice
Ex.C8: 29.11.2012: Unserved postal cover
Ex.C9: 20.08.2012: Notarized Copy of the GPA
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Raghu Naik, Assistant Manager
RW2 Mr. P Krishna Murthy, Engineer, General Insurance, Surveyor and Loss Assessor
Documents marked on behalf of the Opposite Party:
Ex.R1: Spot Survey of Jayarama Gowda H
Ex.R2: Final Survey Report of Mr. P. Krishna Murthy
Ex.R3: Re inspection Report of Mr. P. Krishna Murthy
Dated: 18.02.2017 PRESIDENT
