IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  31^st  Day of  May   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

         Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.280/2016

Renjith                                               :         Complainant

2/671

Ajith Bhavan

Palayamkunnu P.O

Thiruvananthapuram.

[By Adv.A.A.Savad]

V/s

1.          Manager                                        :         Opposite parties

Oriental Insurance Company Ltd.

Divisional Office

                  3^rd Floor,L.I.C Building

Residency Road, Chinnakkada

                   Kollam.

[By Adv.S.Dileep Kumar]

2.          Sujith 

                   (Proprietor)

Skiltech All Car Services And Dent Specialist

Kadappakkada, Kollam.

[By Adv.K.Harikumar]

FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

                This  is a case based on a complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          Hyundai I 10 ERA Car bearing Registration No.KL 16 G2 belongs to the complainant was insured with the 1^st opposite party.  The complainant has taken Bumber to Bumber insurance w.e.f  08.10.2014 till  07.10.2015.  However on 06.10.15 the vehicle met with an accident at the National Highway Thattamala.  Thereafter the complainant made a claim intimation and brought the vehicle to the Skiltech All Car  Services, Kadappakkada which is the approved work shop of the car for repairing the same.  Later the 1^st opposite party deputed the surveyor Sri.D.Prasad who came over at the work shop verified the vehicle and prepared a list of spare parts to be removed.  On the basis of the surveyor’s report the 2^nd opposite party carried out the repair work by removing the spare parts as suggested by the surveyor issued a bill dated 26.12.2015 for Rs.68798/- to the complainant.  The complainant produced the bill before the 1^st opposite party and claimed the amount but the 1^st opposite party refused to pay the bill amount by stating that they are not bound to sanction all the repair work carried out and further told that the complainant has to realize the amount from the 2^nd opposite party for the spare parts used which were not recommended by the surveyor and thereby the 1^st opposite party insurance company committed deficiency in service.  Thereafter on 23.08.2016 the complainant caused to send a lawyer notice to the 1^st opposite party demanding the entire amount spent by the complainant for repairing the vehicle involved in the accident,  for which the 1^st opposite party has sent a reply stating vague allegations to the effect that the net liability assessed by the surveyor amounts to Rs.38000/-  only,  which was communicated to the complainant and the same was approved by him.  The complainant has also caused to send a notice to the 2^nd opposite party narrating all these things and also stating that the 2^nd opposite party has caused unlawful loss by replacing spare parts which are not approved by the surveyor that the 2^nd opposite party has charged excessive price for several spare parts and also charged amount for spare parts which were not replaced and also charged Rs.1100/- for replacing charging gas to the AC.  But the AC has worked only for  one day.  The 1^st opposite party was ready to offer Rs.38000/- and express their unwillingness to sanction Rs.68798/- which was claimed by the complainant by stating that several spare parts used were not included in the list of spare parts suggested by the surveyor.   Hence the complainant filed the present complaint alleging deficiency in service against opposite party No.1&2 praying to allow him to recover loss caused to the complainant to recover compensation to the tune of Rs.50,000/- and costs from opposite party No.1&2.

          Opposite party No.1&2 contested the matter by filing separate version.  The contentions in the version filed by the 1^st opposite party in short are as follows.  The complaint is not maintainable either in law or on facts.  The complainant has no cause of action against the 1^st opposite party.  The claim of the complainant was promptly settled by the opposite party on repair basis after complying with all requirement and procedures as per the claim assessed by the surveyor appointed by the opposite party who inspected the damaged vehicle in the workshop of the 2^nd opposite party and prepared a detailed list of damaged spare parts.  The surveyor has assessed the extend of damage to the tune  of Rs.40306/- including cost of the spare parts, labour charges etc after deducting policy expenses and salvage value.  The surveyor has assessed the extend of damages in tune with terms and conditions of the policy without applying the depreciation clause as it is nil depreciation policy.  The opposite party thereafter settled the claim with the complainant for an amount of Rs.38000/- which is the eligible amount to the complainant after deducting the cost of spare parts which is not seen replaced by the repairer at the time of re-inspection conducted by the surveyor after completing the repair works, even though those parts were recommended and considered by the surveyor for replacement.  The assessment made by the independent surveyor is perfectly binding to this opposite party in the settlement of the claim, as per the statutory provisions of the Insurance Act.  The opposite party had already discharged its contractual obligation, on the basis of the assessment and re-inspection made by the surveyor for settling the claim with the complainant.  The complainant is estopped from raising any deficiency in service against the opposite party after receiving the claim amount from the opposite party towards full and final settlement of the claim.  If the complainant is not satisfied with the quantum of loss settled by the opposite party, the dispute regarding the quantum is not a matter to be adjudicated by the provisions of the Consumer Protection Act and it is not a dispute within the scope of  deficiency in service defined under the Act.  The complainant is not entitled to seek any relief against the 1^st opposite party for the excess amount compelled to pay to the 2^nd opposite party, who had submitted an inflated and fake bill towards repairing charges of the vehicle without any basis.  The surveyor appointed by the opposite party after detailed examination had specifically instructed the repairer the complete repair works on the basis of the work order issued by the surveyor.  The surveyor had issued the work order showing the spare parts allowed for replacement, those are damaged in the accident and the labour charges required for repairing the vehicle etc.  The repairer never raised any dispute in respect of the work order issued by the surveyor in completing the repair works  of the vehicle.  The 2^nd opposite party repairer had claimed an excess bill amount from the complainant including cost of spare parts those were not even damaged in the accident and not even replaced by the repairer.  The 2^nd opposite party repairer had claimed exorbitant amount as cost of spare parts against the prevailing market rate and unnecessarily claimed cost of many of the spare parts those were not even damaged in the accident, in the bills issued by the repairer.  The 2^nd opposite party/repairer infact given a bill to the complainant even claiming sale tax for the spare parts replaced, even though the 2^nd opposite party had not authorized to collect sale tax from the complainant, who was not permitted to conduct sale of  spare parts.  The 2^nd opposite party had issued a cash bill to the complainant claiming cost of unnecessary spares those were not required for repairing the vehicle and also by claiming cost of  spares those were not even replaced by the repairer in completing the repair works of the vehicle.  The repairer in fact raised a false and inflated bill against the complainant for making unlawful gain.  The complainant had also specifically pleaded in the complaint that the 2^nd opposite party repairer had many way cheated the complainant by claiming cost of the spare parts those were not even replaced by the repairer.  The complainant was forced to pay excess amount to the repairer due to the unfair trade practice committed by the 2^nd opposite party in this case.  Therefore the complainant’s cause of action is only against the 2^nd opposite party in this case who had realized excess amount from the complainant towards repairing charges of the vehicle by raising a fake repairing bill.  The 1^st opposite party is no way responsible for the excess amount realized by the 2^nd opposite party in this case from the complainant on the basis of an inflated bill. The 1^st opposite party further prays to dismiss the complaint against it with costs and compensatory costs.

          The main contention of the 2^nd opposite party are as follows.  All the allegations and averments raised in the complaint against the 2^nd opposite party are false hence denied.  The 2^nd opposite party is not  a necessary party for the just disposal of the case.  Hence the 2^nd opposite party pray to delete him from the party array.  However the 2^nd opposite party would admit that the complainant’s car met with an accident on 06.10.15 and was repaired at his work shop.  Apart from repairing the damaged vehicle work additional work was also done by the 2^nd opposite party.  It is further contented that the  accident was a major one and the vehicle was towed to the workshop and major repair works were done.  The bill was issued for the major work done and the spare parts replaced.  The complainant was not having objection and he was totally satisfied with the work done.  The allegations that repair was done as per the approved list of the surveyor is false.  In fact repair was done for rectifying the damage caused to the vehicle during the accident.  The surveyor does not have necessary qualification to survey the vehicle involved in the accident and assessed the damage. The complaint against the 2^nd opposite party is a clear abuse of the process of court and 2^nd opposite party further prays to dismiss the complaint with his costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of  opposite party No.1&2?
2. Whether the complainant is entitled to get the reliefs sought from opposite party No.1&2 as prayed for in the complaint?
3. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1&Ext.A1 to A5, A6 series, A7 to A10, A11 series and A12 series documents.  Evidence on the side of the 1^st opposite party consists of the oral evidence of DW1 and Ext.D1 to D3 documents.  The 2^nd opposite party has not adduced any evidence either oral or documentary.

The learned counsels appearing  for the complainant and the 2^nd opposite party have not filed any notes of argument.  The 1^st opposite party’s counsel filed notes of argument.  Counsels appearing for  both sides have not turned up and advanced any oral argument,  though sufficient opportunity was granted.

Point No.1&2

          For avoiding repetition of discussion of materials these two points are considered together.  The following are the admitted facts in this case.  The complainant is the registered owner of  Hundai i10 car  bearing Reg.No.KL 16 G2. The said vehicle was insured with the 1^st opposite party as per Ext.A2 insurance certificate cum policy.  It is a package policy.  The above vehicle met with an accident on 06.10.15 and that fact was reported to the 1^st opposite party and a claim was lodged while the vehicle was kept at the authorized workshop for effecting repair.  On getting information the opposite party issued a claim form to the complainant  and the complainant in turn has resubmitted the claim form duly filled up and signed him along with Ext.A10 estimate issued by the repairer.  On receipt of the above documents the opposite party deputed DW1 insurance surveyor Mr.D.Prasad inspected the damaged vehicle and assessed the extent of loss suffered to the vehicle on account of the accident.  DW1 in turn made a detailed verification of the damaged vehicle and issued  work order to the repairer showing the details of the damaged spare parts which are required to be replaced and also indicating labour charges requiring the damaged vehicle.  The surveyor assessed the extend of damages to the tune of Rs.40306/- only after deducting salvage value and policy excess.  At the same time the 2^nd opposite party service centre has issued Ext.A3 bill for Rs.68798/- as  service charges and cost of spare parts replaced.  However the opposite party settled the claim towards by releasing the amount of  Rs.38000/- as full and final settlement and release the amount to the account of the complainant.  Aggrieved by the above act of the 1^st opposite party the complainant caused to sent Ext.A4 lawyer notice demanding the balance amount of Rs.30798/- along with interest and cost.  The complainant also sent Ext.A5 lawyer notice to the 2^nd opposite party the proprietor of the service centre alleging that the 2^nd opposite party has carried out the repair work and replace several spare parts which are not recommended by the surveyor and without replacing front low assay he has charged the amount for the same and shown the same as item No.3 in the bill and also claiming to return the excess amount which was charged by the complainant in excess of the amount duly recommended by the insurance surveyor.

          The learned counsel for the 1^st opposite party has argued that the surveyor appointed by the insurance company after detailed examination of the damaged vehicle had specifically instructed the repairer to complete the repair work on the basis of the work order issued by the surveyor. It is an undisputed fact that DW1 surveyor had issued the work order indicating the details of the spare parts required for replacement on the damage during the accident and the labour charges required for repairing the vehicle etc.  The 2^nd opposite party repairer never raised any dispute in respect of the work order issued by the surveyor in completing the repair works of the vehicle.  In the circumstances the complainant is not entitled to seek any relief against the 1^st opposite party for the excess amount he compelled to pay and the 2^nd opposite party who had submitted an inflated and fake bill towards repairing charges of the vehicle without any basis.  In view of the evidence available on record it is clear that the 2^nd opposite party had claimed excess bill from the complainant including cost of spare parts those were not even damaged in the accident nor replaced by the repairer that the 2^nd opposite party had claimed exorbitant amount towards costs of spare parts against the prevailing market rate and unnecessarily claimed cost of many other spare parts those were not even damaged in the accident which is evident from Ext.A3 bill issued to the complainant.  In view of the above materials on record it is clear that the 2^nd opposite party has drawn Ext.A3 bill by showing an inflated amount for the purpose of unlawful gain.  According  to the complainant he was compelled to pay the excess amount shown in the bill to the 2^nd opposite party as he has to get released the vehicle from the repairer and he was not aware at that time that the 2^nd opposite party has cheated him by incorporating inflated charge for the work which were not even carried out.

  According to the 2^nd opposite party apart from replacing work additional work was also done by him.  According to him the bill was issued for major work done and spare parts replaced and also including toeing charge as the vehicle was involved in major accident and towed to the work shop for carrying out major works.  It is further contented that the complainant was not having any objection and he was totally satisfied with the work done.  It is also contented by the 2^nd opposite party that the surveyor does not have necessary qualification to survey the vehicle involved in the accident and to assess the damage.  However the 2^nd opposite party has not adduced any evidence either oral or documentary to substantiate that he has carried out the additional work apart to repair the damages caused to the vehicle due to the accident and the same was done with consent and concurrence  of the complainant who is the owner of the vehicle.  It is further to be pointed out that though the complainant has caused to sent Ext.A5 lawyer notice alleging that the 2^nd opposite party has cheated the complainant by issuing a bill indicating a huge amount and he was constrained to pay the bill amount without understanding that he was cheated by the 2^nd opposite party for the purpose of getting the vehicle released from the custody of the 2^nd opposite party and when the bill was presented at the insurance company along with claim form then only it was understood that the 2^nd opposite party has included value of spare parts in the bill which were not in the approved list of the surveyor and  therefore the insurance company has granted only an amount of  Rs.38000/- and  the claim for the remaining amount from Ext.A3 bill has been denied by the insurance company.  It is also stated in Ext.A5 notice that Item No.3  c 337þmw \¼-dmbn ImWn-¨n-cn-¡p¶ Front Lock Panel Assay amäp-I-t]mepw sN¿msX Fsâ I¿n \n¶pw Bb-Xnsâ XpI IqSn A\-ym-b-ambn ssI¸-än-b-Xmbn t_m[-y-s¸-«n-«p-Å-Xp-am-Wv.  Though the original of Ext.A5 lawyer notice alleging grave malpractice on the part of the 2^nd opposite party has been received as per Ext.A6 series postal acknowledgment cards   the 2^nd opposite party failed to sent any reply disputing the above grave allegations.  He has also not mounted the box and given evidence disputing the grave allegations stated in Ext.A5 lawyer notice.

Though the 2^nd opposite party would content that he has carried out work other than the repair work which was necessitated for the vehicle during the accident that fact  was not intimated to the complainant nor obtained his permission to carried out such work.  He has also not intimated the approximate amount required to carry  out the work other than the work recommended by DW1 surveyor.  In the circumstances the contention of  the 2^nd  opposite party that he has carried out the work other than the work recommended and suggested by the surveyor deputed by the insurance company is not believable and acceptable  at all.

  It is also brought out in evidence that the 2^nd opposite party has included Rs.5139.91 towards Sales Tax as per Ext.D3 reply issued by the 1^st opposite party , the 2^nd opposite party is not authorized to collect sales tax.  The above document is not seen challenged by the 2^nd opposite party nor produced any documentary evidence to prove that he had duly paid the sales tax collected from the complainant  to the Sales Tax Department.  In the circumstance the complainant is entitled to get back that amount also.  It is true that the 2^nd opposite party is entitled to get the toeing charges which was not considered in the final bill prepared by DW1.  It is contented in the written version filed by the 2^nd opposite party that the surveyor deputed by the 1^st opposite party is not a qualified person to assess the damage and to ascertain the expenses required for carrying out the repair works.  DW1 is the said surveyor.  The oral evidence of DW1 would indicate that he is having sufficient qualification and about 35 years IRDA experience and he has been engaged by as much as 4 companies included in IRDA.  In the light of the oral evidence of DW1 we find no force in the above contention of the 2^nd opposite party.

          On evaluating the entire materials available on record we come to the conclusion that there is no deficiency in service or any unfair trade practice on the part of the 1^st opposite party insurance company and at the same time there is clear deficiency in service and unfair trade practice on the part of the 2^nd opposite party in charging excess bill by including the amount for the spare parts which were not replaced at all.  In the circumstances the 2^nd opposite party is bound to return the amount charged in excess of the amount levied for the spare parts and service charges suggested by DW1 and towing charges spent by him to bring the vehicle to the workshop.    The  points answered accordingly.

Point No.3

          In view of our finding with regard to point No.1&2 we hold that the 2^nd opposite party has realized Rs.68798/- from the complainant as per Ext.A3 bill.  But as per Ext.D1 assessment sheet/check report the total liability towards the repairing charges is Rs.42306/-.  According to the 2^nd opposite party he spent Rs.2500/- as  toeing charges which is evident from Ext.A3 cash bill.  Hence the 2^nd opposite party is entitled to collect Rs.42306+2500=Rs.44806/- only and the remaining amount of Rs.23992/-(68798-44806) is liable to be refunded to the complainant.  It is brought out in evidence through PW1 that the complainant has sustained much mental agony apart from financial loss due to deficiency in service and unfair trade practice committed by the 2^nd opposite party.  Hence the complainant is entitled to get reasonable compensation and costs of the proceedings.

          In the result complaint stands allowed in the following terms:-

1. The 2^nd opposite party is directed to return Rs.23992/- as indicated above being the excess repairing charges collected from the complainant as per Ext.A3 cash bill.
2. The 2^nd opposite party is directed to pay Rs.10,000/- towards compensation and costs of the proceedings to the complainant.
3. The 1^st opposite party is exonerated from liability.
4. The 2^nd opposite party is directed to comply with direction No.1&2 within 45 days from today failing which the complainant is at liberty to recover the amount of Rs.33,992/- along with interest at the rate of 9% p.a from 12.10.2015 onwards till realization from the 2^nd opposite party and also from the assets of the 2^nd opposite party Skiltech All Cars Services.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 31^st day of  May  2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1  :         Chinthu

Documents marked for the  complainant

Ext A1:       Power of attorney.

Ext A2:        Oriental motor insurance certificate cum policy schedule dated 07.10.15.

Ext.A3:       True copy of cash bill dated 26.12.15.

Ext.A4:       Copy of advocate notice.

Ext.A5        :Copy of advocate notice.

Ext.A6 series: Postal receipts and acknowledgement card.

Ext.A7        :Copy of Complainant’s request letter to 1^st opposite party dated 23.06.2016.

Ext.A8        :  Copy of the letter issued by the Oriental Insurance Co. to the complainant.

Ext.A9        : Copy of the letter issued by the Oriental Insurance Co. to the complainant.

Ext.A10      : Copy of  Pothens Hyundai estimate cum assessment.

Ext.A11 series:  Photographs of  Hyundai  i 10 ERA car.

Ext.A12 series:     True copy of RC book and motor insurance certificate cum policy schedule.

Witnesses Examined for the opposite party:-

DW1 :         Prasad

Documents marked for the opposite party:-

Ext.D1        : Survey report prepared by Mr.D.Prasad in respect of the vehicle bearing Reg.No.KL-16 G/02.

Ext.D2        :         Copy of  the advocate notice issued by the complainant to the 2^nd opposite party.

Ext.D3        :         Copy of the letter issued by the Oriental Insurance Co. to the complainant.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent