The complaint U/s 12 of the Consumer Protection Act 1986.

1.The complaint in short is as follows: -

             The complainant is the registered owner of Motor bike No. KL-71-F-8193. On 07/09/2019 the motor vehicle collided with a Maruthi car at Karinkallathani and the Motor bike damaged.  On 16/09/2019 the complainant took the motor bike to the first opposite party for repair and from there it was told that within 15 days vehicle can be repaired.    After 15 days while the complainant contacted the opposite party, he was informed that no insurance approval obtained and so there is delay.  There after two days while the complainant called opposite party it was told that approval obtained and they have to place order for spare parts and on receipt of the parts work can be started.  The opposite party demanded Rs.  5000/- as advance, but the complainant refused the same stating that the vehicle is worth Rs. 76000/- and so it has to be repaired without advance.  Then it was told that they can repair the motor cycle without advance but there will be a delay of one month.  This dialogue was after expiry of 18 days after the entrustment of motor vehicle with the opposite party.  The complainant stated that she is entitled for the claim amount and also third free service.  Then the complainant demanded opposite party to complete the work on or before 18/10/2019.  On 16/10/2019 complainant was called by opposite party and told that the vehicle will be released on 19/10/2019.  On 19/10/2019 complainant again called opposite party and then it was told the vehicle will be released on 21/10/2019.  Accordingly, on 21/10/2019 opposite party called the complainant and told the repair cost as Rs. 14,894/- and free service cost as Rs. 391/-.  The complainant requested to know what is the exact amount he will get as per the policy, but there was no proper answer. The complainant directed to pay the bill amount and sent the copy to the opposite party insurance company and then the insurance company will make payment within 7 days thereafter. Accordingly, complainant contacted the insurance company and issued the bill to the company. The insurance company said that they will intimate the result within two days and on 22/10/2019 complainant was told that they are pleased to allow Rs. 12315/- as per the claim, though complainant demanded the entire amount since the vehicle has got bumper to bumper insurance. On 24/10/2019 the complainant again approached 1^st opposite party and remitted the bill amount.  But they only after one hour the vehicle was released in dirty condition of rust and dust.  It was also noted that the seat cover had been damaged.  The complainant demanded to rectify the issues and then the opposite party said that the vehicle had kept outside the work shop and due to rain water the problem arisen.  They were prepared to attend the vehicle on payment.  Then the complainant received the vehicle stating that he is prepared to agitate with law.  The complainant also prays Rs. 2575/- towards the deducted amount from the repair cost.  On 07/02/2019 while releasing vehicle to the complainant, there was a defect to the lock shutter and it was brought to the notice of salesman Murshid and then it was told that it will be rectified during the service, but not done.  The opposite party demanded payment for the rectification of the defect.  Aggrieved by the act of opposite parties approached this Commission claiming compensation of Rs. 1,00,000/- and also to direct rectification of the defect or to refund value of the vehicle Rs. 76,000/- and also direct the Insurance company the repair cost Rs. 2575/-, the deducted amount from the total bill issued by the first opposite party. 

2.         On admission of the complaint notice was issued to the opposite parties and they

entered appearance. Both opposite parties filed detailed version denying the entire averments and allegations contained in the complaint. 

3.     The first opposite party stated the vehicle No. KL-71-8193 is not the number of the vehicle, but KL-71-F-8397 is the vehicle produced before the opposite party to repair work.  The opposite party submitted that the complainant Thasani. T never turned to the opposite party and never entrusted the vehicle or contacted any person related to the opposite party and so the complainant is totally ignorant of the facts   which she has no direct knowledge.  The opposite party admitted that on 16/09/2019 the vehicle was entrusted with the opposite party by a person claimed to be the husband of the complainant.  But there was no undertaking to give back the vehicle within 15 days after completion of service.  The opposite party representative was never entrusted the vehicular documents required for claiming insurance coverage.  Then the opposite party contacted the complainant again and asked to produce documents and also it was found surveyor has to assess the damage and accordingly on the same day the surveyor issued a work approval to the opposite party.  Then the representative of the opposite party contacted the complainant and demanded Rs. 5000/-as advance for purchase of spare parts or issue a signed satisfactory voucher, but the complainant refused to issue the same and sticked on the stand that complainant will issue the entire amount after completing the repair work.  Then the opposite party ordered for spare parts and made to deliver the vehicle on 24/10/2019 and also entrusted vehicle to the representative of the complainant.  At that time Rs. 14,894/- was paid to the opposite party and the representative of the complainant issued signature on job card endorsing the satisfaction of the work.  The opposite party also submitted that the allegation of the complainant that while giving back the vehicle, rust and dust was there on the vehicle and also seat cover damaged is false allegation and it is made for the purpose of filing this complaint. The opposite party admitted that the Insurance company deducted Rs.2575/- from the total amount is correct.  The insurance company deducted the said amount according to policy condition since certain items are exempted from the insurance coverage and also considered cost of lubricants used at the service and also the salvage value.  The first opposite party submitted that the difference in insurance payment is to be settled with insurance company. The statement of the complainant the   lock shutter of the vehicle was defective on 07/02/2019 and sales man Mr. Murshid agreed to repair the same during the service is a false statement and so the opposite party denied. 

4.      The opposite party doing sales and service, the opposite party did the repair work in time at the cost of opposite party and delivered the vehicle after examining the vehicle by the delegate of the complainant, full satisfaction recorded and accordingly vehicle released.  The opposite party has done everything to avail the insurance and also provided service without any default and deficiency. The difference of insurance amount is beyond the scope of first opposite party and so there is no cause of action against   the first opposite party and so the complaint is liable to be dismissed with cost.

5.         The  second opposite party also filed detailed version and stated that the correct

vehicle No. is KL/71/F/8397 and the vehicle stands insured with second opposite party vide policy No. P0019300027/4113/111114  in favour of the complainant covering the own damage claim of the vehicle for one year from 07/02/2019 to 06/02/2020 and act only liability for 5 years from 07/02/2019 to 06/02/2024.  The policy issued was a depreciation reimbursement policy and as per the policy for each claim the insurance company is entitled for a compulsory excess of Rs. 100/-.  The second opposite party denied the enter averments regarding the transaction between the complainant and first opposite party since the second opposite party is not party to the transactions.    The second opposite party got information regarding the accident only on 20/09/2019 when the complainant submitted a motor claim.  On that day itself the second opposite party appointed a surveyor by name Sreejith A.P. to conduct survey and to submit report regarding the damages sustained and to assess the damage.  The surveyor inspected the motor cycle from the premise of first opposite party on the same day of allotment and filed a report to the second opposite party on 22/10/2019.  The surveyor recommended for replacement of 10 parts with total cost of Rs. 10289.66/-.The surveyor assessed labour charges including tax as Rs. 2773/-.  The surveyor assessed salvage value as Rs.648/-.  The total value then assessed as Rs. 12414.66/- and also compulsory excess amount of Rs. 100/-.  As per the bill issued the first opposite party item numbers 1,2,3,4,5,7,8,9 and 10 in the bill or Rs. 806.46/- is not recommended by the surveyor either for repair or replace and does not find a place in the survey report.  The labour cost assessed by first opposite party is Rs. 3200/- whereas the surveyor has only recommended Rs. 2773/-.  The second opposite party admit that there is a difference between the bill issued by the first opposite party and the expense assessed by the survey report.  The second opposite party also admit that, the first opposite party carried out some repairs on the instruction by the complainant for which the second opposite party is not liable to pay.  It is also submitted that there is difference in the tax invoice of Kambra Motors on the parts purchased for replacement which is forwarded to the second opposite party.  The second opposite party mentioned that the tax invoice in item No. 5 the spare part value is 5343.75/-, but the corresponding spare parts cannot be seen in the bill issued by the first opposite party or in the survey report. Likewise, item No. 9 in the tax invoice, the spare part value is 1040.63/- but the corresponding spare part cannot be seen in the bill issued by the first opposite party or the survey report.  The second opposite party placed some serious doubts regarding the tax invoice of the first opposite party. The second opposite party content that they have got suspicion that some of the spare parts are not connected to the accident or even to the vehicle are included in the tax invoice making the calculation messy. The opposite party submitted that; they have not deducted any amount towards depreciation.   According to them, there is depreciation reimbursement as per the policy. The surveyor while calculating the liability has added the depreciation amount along with assessed amount and so compensation for own damages is worked out with Nil depreciation.  The opposite party credited an amount of Rs. 12315/- to the account of the complainant on 24/10/2019 itself.  The opposite party received claim information on 20/09/2019.  The surveyor was appointed on the same day, filed his report on 22/10/2019 and the claim was settled within two days of survey report.  So, it cannot be alleged any sort of deficiency on the part of second opposite party and the claim was settled on the basis of survey report.  The opposite party submitted that the allegation of the complainant that some parts of the vehicle were rusted and seat cover was damaged are all matters between the first opposite party and the complainant.  Since in this complaint the complainant never disputed the report of the surveyor and so the settlement of amount by the second opposite party cannot be challenged by the complainant.  Hence the prayer is to dismiss the complaint with cost of the opposite party. 

6.         The complainant and opposite parties filed affidavit and documents.  Documents on the side of complainant marked as Ext. A1 to A4.  Ext. A1 is   the copy of RC of Vehicle No.KL/71/F/8197. Ext. A2 is copy of Pass book of complainant maintained with Bank of Baroda, Ext.A3 is the Certificate of insurance with policy No.P0019300027/4113/111114

valid from 7/2/2019 to 6/2/2019, Ext. A4 series is copy of Tax invoice.  Documents on the side of first opposite party marked as Ext. B1 to B7.  Ext. B1 is the copy of driving license of Mr. Niyas, No.23/7520/2010 dated 17/12/2010.  Ext. B2 is copy of front page of SB account passbook of complainant maintained with Bank of Baroda, Ext. B3 is Job card issued to complainant, Ext. B4 is the Certificate of insurance with policy No. P0019300027/ 4113/111114valid from 7/2/2019 to 6/2/2019, Ext. B5 is the copy of final survey report, Ext. B6 is copy of Tax invoice, Ext. B7 is copy of Tax invoice.

7.    The complainant and opposite parties heard, perused affidavit and documents.  The following points arise for consideration: -

1. Whether there was deficiency in service on the part of opposite parties?
2. Relief and cost?

8.    Point No.1 & 2: -

         The complainant’s vehicles entrusted with first opposite party on 16/09/2019 due to damage sustained in a motor vehicle accident occurred on 7/09/2019 at Karinkallathani. The vehicle repaired and delivered to the complainant after giving signed job card endorsing the satisfaction of the work.  The complainant vehicle has got bumper to bumper insurance but the insurance company allowed insurance claim amount of Rs. 12315/- after deducting an amount of Rs.2575/- from the repair cost paid to the first opposite party.  The complainant submits that there is bumper to bumper insurance and so there is no question of deducting any amount from the bill issued by the first opposite party.  Moreover, while the vehicle was originally delivered to the complainant on 07/02/2019 there was defect to the lock shutter and the same was brought to the notice of the salesman Mr. Murshid and it was told that will be rectified during the service.  But the same stands not rectified.  Hence the complainant prays for compensation of 1,00,000/- rupees and also to refund of Rs.76000/-, the value of the vehicle. 

9.       The first opposite party submitted that   while the complainant entrusted vehicle, the vehicular details were not furnished along with claim application to be submitted before the Insurance Company and on production of the same, the first opposite party immediately approached the second opposite party insurance company.  The second opposite party submitted that immediately on receipt of claim on 20/09/2019 from the side of complainant appointed the surveyor and he assessed the damages.  The surveyor assessed and recommended for replacement of 10parts with total cost of Rs10,289.66/-.  The surveyor assessed labour cost including tax as rupees 2773/-. Considering the entire aspects, the second opposite party allowed the bill on the basis of recommendation of the survey.  So second opposite party is concerned there is no deficiency of service on their part.  He has explained that there is difference in between surveyor assessment and the bill issued by the first opposite party.  The surveyor has not recommended the items 1,2,3,4,5,6,7,8,9 and 10 in the bill worth Rs.806.46/-.The second opposite party also pointed out labour cost also there is difference as Rs.3200/- and Rs.2773/-.  The second opposite party submitted that it appears from the document issued by the first opposite party there are some extra repair works has done to the vehicle upon the instruction by the complainant and so they are not liable to pay for the same.  The second opposite party mentioned that there is some difference in cost of the spare parts and tax invoice item No.5 is evident for that.  The second opposite party expressed suspicion that some of the spare parts are not connected to the accident or even to the vehicle are included in the tax invoice making the calculation messy. It is also submitted that   they   have   not   deducted   any amount   towards depreciation.   Considering the

contentions of the second opposite party it can be seen that there was no negligence or

any sort of deficiency on the part of the second opposite party. 

10.          The allegation of against the first opposite party that, he was entrusted the vehicle to carry out the repair work on the basis of insurance survey report and the reimbursement which the second opposite party allows as per the claim application. In this case considering the time taken for the repairing the vehicle and giving back to the complainant there cannot be find any delay.  But the issue is that whether the first opposite party was correct in doing certain work which was not authorised   by the complainant. The second opposite party has expressed the credibility of the bills including the parts mentioned in the document.  But the first opposite party in the version or in affidavit has not explained how the discrepancy crept in to the documents.  In the absence of proper explanation for the discrepancies it will not be proper to accept the document Ext. A4. So,complainant is right in holding that he is entitled the entire amount as per Ext. A4. In the absence of proper explanation from the side of first opposite party for the discrepancies in the document we find the first opposite is bound to refund the excess amount collected against the surveyor’s recommendation.  There is no explanation from the side of first opposite party that whether the complainant was demanded any additional work against recommendation of insurance surveyor.  On the other hand, the complainant has got a specific contention that the vehicle was entrusted to the first opposite party to carry out repair work to the extend   which the second opposite party assessed.   In the above facts and circumstances first, opposite parties directed to pay Rs.2575/- to the complainant as the denied amount of the Insurance company.

11.            There is no evidence to establish there was a defect to the lock shutter and it was brought to the notice of Mr. Murshid the salesman and it was told the rectified during the service.  So, there is no sufficient ground to the claim compensation of Rs. 1,00,000/- and also refund of the value of the vehicle.  There is no allegation against the service effected from the first opposite party or against the condition of the vehicle. In the absence of sufficient evidence, we do not consider that there is merit in the claim for the compensation. 

12. In the light of the above facts and circumstances we allow the claim partly as follows: -

1. The first opposite party directed to pay Rs. 2575/-(Rupees Two thousand five hundred and seventy five only) to the complainant as the deducted amount from the repair bill.
2. The first opposite party is also directed to pay cost of Rs. 2000/-(Rupees Two thousand only) to the complainant.

           The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled for 12% interest on the above entire amount from the date of receipt of copy of this order till realisation.

             Dated this 23^rd day of March, 2022.