BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 10th April 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.238/2010
(Admitted on 28.08.2010)
Mrs. Aysha Ibrahim,
Wo Mr. P.B. Ibrahim,
Bolangady, Panemangalore,
Bantwal Taluq,
Dakshina Kannada District. …….. COMPLAINANT
(Advocate for the Complainant: Sri. K.P.A. Shukoor)
VERSUS
1. Ms Cholamandalam MS General
Insurance Company Limited,
Represented by its Branch Manager,
Branch Office, 1st Floor,
S.R. Complex, Bendoorwell,
Mangalore.
2. M/s United Cars Private Limited,
Represented by its Manager,
United Towers, Kadri Road,
Mangalore – 575 003. …..OPPOSITE PARTIES
(Advocate for the Op.Party No.1: Sri Hemalatha Mallya)
(Advocate for the Op.Party No.2: Sri Venugopal V.S.)
* * * *
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, she is the registered owner of the Toyota Innova Vehicle bearing Registration No.KA-19-Z-3054 and the same is 2007 model. The above said vehicle was insured with the opposite party under comprehensive insurance bearing certificate No.3362/00047123/000/02 on 27.06.2009, and the same is valid up to 25.06.2010. It is stated that, the above said vehicle was proceeding from Hubli towards Belgaum, and when the vehicle reached near M.K. Hubli, a bullock cart suddenly entered the main road from the cross road, on account of which the driver Mr. Shabir Ahamed lost control over the vehicle and dashed against bullock cart and afterwards the vehicle hit the left side road guard and on account of the terrific impact the aforesaid vehicle has been severely damaged.
It is stated that, the complainant had entrusted the vehicle for repair to the opposite party No.2. The opposite party No.2 had prepared the service estimate of Rs.1,24,304/- on 22.03.2010 after consulting the complainant. Thereafter, the surveyor and officials of the opposite party No.1 visited the above said workshop and assessed the damage and verified the service estimate prepared by the opposite party No.2 and requested the complainant to carry out the repair work as per the service estimate. It is stated that, the opposite party No.1 has colluded with the opposite party No.2 and asked them to repair the vehicle as per the direction of opposite party No.1 without informing the complainant or taking the approval or consent of the complainant for the repair work. The opposite parties have not taken necessary instructions or approval before commencing the repair work. It is stated that, the opposite party No.2 has not repaired the vehicle as per the direction of the complainant, but they have raised a bill for a sum of Rs.69,855/- without properly carrying out the repair work as directed by the complainant and asked her to pay a sum of Rs.34,542/- and informed that the balance amount would be paid by the opposite party No.1. Thereafter, the complainant wrote a letter dtd.24.04.2010 to recover the actual loss but the opposite party not paid the same and thereafter, under protest a sum of Rs.34,542/- paid by the complainant.
It is stated that, the vehicle in question was severely damaged, as per the policy condition, the opposite parties No.1 and 2 are liable to reimburse the damages and also carry out the repair work, but the opposite parties failed to do the same. Hence, the above complaint came to be filed, under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from the Opposite Parties to pay a sum of Rs.1,28,991/- towards the monetary loss, compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Parties by R.P.A.D. The opposite parties No.1 and 2 appeared through their counsel and filed separate versions.
The opposite party No.1 stated that, the complainant’s vehicle insured with the opposite party and the same was valid up to 26.06.2010. It is stated that, the alleged accident dtd.15.03.2010 was not within the knowledge of this opposite party, on intimation of the claim dated.22.03.2010, the opposite party has appointed a surveyor to assess the loss and damages incurred to the above said vehicle. The surveyor assessed the loss at Rs.35,313/- after necessary deductions i.e., excess and salvage. It is stated that, as per the policy condition, the company may at its own option repair, reinstate or replace the vehicle or part thereof and / or its accessories or may pay in cash the amount of the loss or damage.
It is stated that, the opposite party is not liable to reimburse any amount as stated in the complaint. The claim of the complainant is Rs.35,313/- was paid to the repairer as full and final settlement and discharged their liability and stated that there is not deficiency of service and prayed for dismissal of the complaint.
The opposite party No.2 also appeared through their counsel filed version stated that, the complainant had handed over the vehicle to the opposite party No.2 and asked to prepare the service estimate, thereby, the opposite party No.2 after inspection of the vehicle prepared the estimation of Rs.1,24,304/-. It is stated that, the service station will prepare the estimation based on superficial inspection of the vehicle and not by removing all the parts or damaged parts of the vehicle. The service estimate consists of multiple parts and also includes parts even if there is suspect of damage in the parts. It is stated that, there will be always difference between service estimation and final bill. The complainant has given permission to opposite party No.1 to carry out the repair of the vehicle. Accordingly, the opposite party No.2 repaired the vehicle. It is stated that, there is no deficiency whatsoever and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mrs. Aysha Ibrahim, (CW1), filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Exs.C1 to C8 were exhibited for the Complainant as listed in the annexure in detail. One Mrs.Chitrabharathi, (RW1) Manager legal of O.P.No.1 and one Mr.Sadananda, (RW2) Manager of O.P.No.2 and One Sri Raghavendra Prasad (RW3) – Surveyor, Loss Assessor and Valuer filed counter affidavit answered the interrogatories served on them. Exs.R1 to R7 were exhibited for the Opposite Parties as listed in the annexure in detail. Both the parties have filed written notes of arguments.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii):As per the final order.
REASONS
IV. 1. Points No. (i) to (iii):
In the instant case, the facts which are admitted is that, the complainant is the registered owner of the Toyota Innova vehicle bearing Registration No.KA-19-Z-3054 and the above said vehicle was insured under the comprehensive insurance policy bearing No.3362/000/47123/000/02, the said policy was valid from 27.6.2009 to 26.6.2010 as per Ex.R1. It is also admitted that, the above said vehicle while proceeding towards Hubli to Belgaum met with an accident and sustained certain damage.
Now the point in dispute between the parties before this FORA is that, the complainant stated that, the above said vehicle met with an accident and sustained damage to the tune of Rs.1,24,304/- but the Opposite Party No.1 visited the work shop and assessed the damage and verified the service estimate and requested the complainant to carry out the repair work as per the service estimate but not paid the entire amount i.e. Rs.1,24,000/- spent by the complainant. Hence came up with this complaint.
The Opposite Party No.1 on the other hand contended that, the surveyor has assessed the loss at Rs.35,313/- after necessary deductions and the above said amount was paid to the repair as full and final settlement and there is no deficiency.
The Opposite Party No.2 who is a repairer also appeared before the FORA and stated that, the complainant entrusted the vehicle for repair and they have prepared service estimation of Rs.1,24,304/- on 22.3.2010 and stated that the service estimation is only an estimation based on superficial inspection of the vehicle but the actual bill claimed is of Rs. 69,855/- and not Rs.1,24,304/- as claimed by the complainant.
On perusal of the evidence available on record, we find that, the vehicle in question admittedly insured with the Opposite Party No.1 and on the date of accident the vehicle was insured in other words the insurance was in force. It is admitted by the Opposite Parties before the FORA that after the accident the damage caused to the vehicle has been assessed by the surveyor and prepared the survey report as per Ex.R2. The Surveyor Report i.e. Ex.R2 produced before the FORA, wherein, one Raghavendra Prasad, Surveyor and Loss Assessor conducted spot survey and submitted motor survey report assessment sheet, it is in printed format it contains no reasons but under the column ‘description of the spare parts’, the surveyor discussed the following spares i.e. Item No.1 to 13 as follows:-
“1. RH rear door skin outer, 2. RH outer view mirror, 3. Name board fender, 4. Cover assy front bumper, 5. Support bumper side RH, 6. Lamp side turn RH, 7. Panel fender RH, 8.Head lamp unit RH, 9. Shield splash RH FR, 10. R/R grill for job, 11. R/R hood & repair, 12. To repair quarter panel, 13. R/R rear bumper.”
But the Complainant claimed Rs.65,133.11 which includes the price of the spare parts, vat, labour and painting charges, tinkering charges etc. But the surveyor in this case made some depreciation at 15% for metal parts and 50% for plastic parts. Except mentioning in the format, no terms and conditions produced along with the survey report or the motor policy i.e. Ex.R1 before this FORA. In the absence of any terms and conditions in support of the depreciation, we are declined to consider the depreciation in this case. Further the surveyor appointed in this case not divided the metal parts and plastic parts by mentioning the same in front of the spare parts replaced to the vehicle in question. In the absence of the same, one cannot blindly accept the surveyors report without their being any endorsement in support of the same. It is a settled position of law that, the surveyor appointed in any cases cannot sit as a court of law but their bounden duty to assess the loss basing on the terms and conditions of the policy produced before them without bias. Further in case of partial losses, i.e losses other than total loss/constructive total loss of the vehicle, actual and reasonable cost of repair/or replacement of parts lost/damage subject to depreciation shall be paid. But the insurance company though produced the policy but failed to produce the terms and conditions in order to substantiate the depreciation of the spare parts. The terms and conditions always a part and parcel of the insurance policy, but the same is not produced before the FORA. On the other hand, the Complainant produced the tax invoice issued by the Opposite Party No.2, wherein, it clearly shows that 17 spare parts were serviced and replaced. In order to remove, repair, refitting and refinishing, the Opposite Party No.2 charged and collected Rs.69,855/- from the Complainant. Under that circumstances, the Opposite Party shall pay the actual and reasonable cost for repair and replacement of the spare parts paid by the Complainant.
In the instant case, the claim lodged by the Complainant for the alleged accident dated 15.3.2010, the Opposite Party paid Rs.35,313/- to the Complainant towards full and final settlement to the repairer as against to the actual and reasonable cost of the repair charges received by the Opposite Party No.2 in this case, which is not justifiable. Just because the Opposite Party No.2 received Rs.35,313/- towards repair charges cannot be considered as a full and final settlement until and unless the actual and reasonable cost of the repair is paid. But it is seen on record that, the Opposite Party paid only Rs.35,313/- as against the actual and reasonable cost of Rs.69,855/- paid to the Opposite Party No.2 towards the repair which amounts to deficiency in service on the part of the Opposite Party Company.
In view of the foregoing discussion, we hold that, the Opposite Party Company i.e. M/s Cholamandalam MS General - Insurance Company Limited, represented by its Branch Manager/authorized signatory is hereby directed to pay Rs.69,855/- (less Rs.35,313/- already paid to the repairer) along with the interest at 12% per annum from the date of accident till the date of payment. And further pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.1 i.e. M/s Cholamandalam MS General - Insurance Company Limited, represented by its Branch Manager/authorized signatory is directed to pay Rs.69,855/- (Rupees Sixty nine thousand eight hundred fifty five only) to the complainant by deducting the paid amount if any along with the interest at 12% per annum from the date of accident till the date of payment. And further pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 12 dictated to the Stenographer typed by him, revised and pronounced in the open court on this 10th day of April 2012.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs. Aysha Ibrahim – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – Notarized copy of the Registration Certificate of the vehicle bearing registration NO.KA 19 Z 3054.
Ex C2 – 22.3.2010: Notarized copy of the Service estimate issued by United Cars Pvt. Ltd., Mangalore.
Ex C3 – 12.4.2010: Bills issued by the United cars Pvt. Ltd.,
Ex C4 – 24.4.2010: Original Receipt amounting to Rs.34,542/-
Ex C5 – 27.5.2010: Office copy of the legal notice sent to the OP.
Ex C6 – 29.5.2010: Postal Acknowledgement for having received the legal notice.
Ex C7 – 24.4.2010: Original pretest letter issued to the OP.NO.2.
Ex. C8 –30.7.2010: Reply letter issued by O.P.No.1.
Witnesses examined on behalf of the Opposite Parties:
RW-1 : Mrs.Chitrabharathi, Manager Legal of OP.No.1.
RW-2 : Mr.Sadananda, Manager of OP No.2.
RW-3: Mr.Raghavendra Prasad, Surveyor, Loss Assessor and Valuer.
Documents produced on behalf of the Opposite Parties:
Ex R1:Policy copy along with certificate.
Ex R2: Bill along with Survey Report and enclosures.
Ex R3: 20.4.2010: Letter issued to the OP.No.1.
Ex R4: 15.3.2010: Motor Loss Voucher.
Ex R5: 30.7.2010: Reply notice.
Ex R6: 22.3.2010: CRM Motor Claim Intimation Form.
Ex R7: 22.3.2010: Appointment and Walk Around check Sheet.
Ex R8: 25.3.2010: Repair order.
Dated:10-04-2012 PRESIDENT
