CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present:

Hon’ble Mr. Bose Augustine, President

Hon’ble Mr. K.N. Radhakrishnan, Member

Hon’ble Mrs. Renu P. Gopalan, Member

CC No. 05/2010

Tuesday, the 6^th day of January, 2015

Petitioner                                 :         Mrs. Rani George,

                                                          W/o George Mathew,

                                                          Anthariathu Kattayil House,

Chellackadu (P.O) Pazhavangadi Village,

Ranni Taluk, Pathanamthitta.

(Adv. Arun R  and Adv. K. Radhakrishnan)

       Vs.

Opposite parties                      :         1) M/s. Kairali Ford Kerala Cars Pvt. Ltd.

                                                              M.G.F. Building, M.C. Road,

                                                               Nagambadom, S.H. Mount (P.O)

                                                               Kottayam,

     Rep. by its    Managing Director.

                                                               (Adv. K. Anil Kumar)

                                                          2)  M/s. Oriental Insurance Co. Ltd.

                                                               Changanacherry ,

                                                               Rep. by Branch Manager.

                                                              (Adv. Agi Joseph)

O R D E R

Hon’ble Mr. Bose Augustine, President

          The case of the complainant filed on 22/12/2009 is as follows.

          Complainant purchased her car bearing Reg. No. KL-3/M -90 from the                     1^st opposite party and it was insured with the 2^nd opposite party.  On 19/04/2009,                  the said car met with an accident at Kodungoor and the matter was informed to the opposite parties.  And the car was brought to the office of 1^st opposite party.  On 20/04/2009, 1^st opposite party prepared an estimate of accident repair and assessed parts total is Rs.4,13,145.48 andRs.74,250/- as labour charges.  Thereafter, the 2^nd opposite party deputed Sri. K.J. Philip, official surveyor to assess the damages caused to the vehicle.  As per the said report, the approximate cost of parts is assessed at Rs.2,28,036.68/- and depreciated value is estimated at Rs.1,35,811.69/- and the approximate salvage value is Rs.3,500/-.  According to the complainant, 1^st opposite party prepared an invoice  dtd.14/09/2009, where with they have prepared the total bill in doing the repair work over the car at a cost of Rs.3,94,171/-.  And the Surveyor of the 2^nd opposite party checked the said bills and prepared a bill check report by which he has reduced the amount to be claimed.  Thereafter, the 2^nd opposite party rejected certain parts fitted by the 1^st opposite party and the value of such parts is Rs.38,058.69/-.  And the Surveyor of the 2^nd opposite party prepared an additional estimate, where in approved certain parts fitted by the 1^st opposite party.  In the said report, Surveyor has stated that the damage to the parts mentioned in the additional estimate were not shown to him at the time of dismantling or during the time of repairs and he found that such parts may be damaged during the course of use.  According to the complainant, he has to paid Rs.3,94,171/- as repair charges, but 2^nd opposite party has assured the loss to the tune of Rs.1,35,811.69.  So complainant is remitted Rs.2,58,459.31/-.  According to the complainant, the 1^st opposite party exaggerated the amount under their bill for making an accident repairs and 2^nd opposite party without lawful authority reduced the claim amount and subsequently enhanced the same.  And the said act of opposite parties amounts to deficiency in service.  Hence this complaint.

          First opposite party filed version admitting the entrustment of complainant’s vehicle for accident repair.  According to the 1^st opposite party, they inspected the vehicle and prepared an estimate of Rs.4,87,395.48/- and it was intimated to the complainant and 2^nd opposite party.  And after getting the approval of 2^nd opposite party and complainant, they started the repair works.  According to the 1^st opposite party, when the car was dismantled for repairs, some more damages were noticed.  And supplementary estimate was also prepared and handed over to the Surveyor of 2^nd opposite party.  The works were also completed with the Surveyor’s approval and a final invoice for Rs.3,94,417/- was prepared.  According to the 1^st opposite party, during the final survey of the vehicle, the Surveyor inspected and photographed all the replaced parts.  The 1^st opposite party has only followed the normal and accepted practice in effecting accident repair, where insurance is claimed.  And 1^st opposite party has no control over the calculations and disallowances made by the 2^nd opposite party.  The accident repair work was done by the 1^st opposite party in the absolute satisfaction of the complainant.                         And complainant has taken delivery of the vehicle after plying the vehicle and satisfying herself regarding the quality of repair.  And complainant has not so far intimated about any defect in the accident repair of the car by the 1^st opposite party. According to the 1^st opposite party, 2^nd opposite party has paid the accident repair charges of Rs.2,25,790/- to them only on satisfying the quality of the accident repair work carried out by them.  The alleged defects are minor in nature, if any defects in the accident repair, the 1^st opposite party is ready and willing to cure the said defects, on free of cost.  And there is no deficiency in service on the part of 1^st opposite party and they prayed for dismissal of the complaint with their cost.

          The 2^nd opposite party filed version contenting that the liability is only as per the terms and conditions of the policy.  According to the 2^nd opposite party, they had deputed an IRDA licensed surveyor for assessing the damages of the vehicle and surveyor assessed Rs.1,53,311/-. There after, the 1^st opposite party issued a letter stating that they had not included the value of some parts replaced by mistake.  So they deputed the Surveyor for assessing the value of additional estimate.  And 2^nd opposite party has assessed Rs.2,25,790/- and the said amount was paid to the complainant.  The complainant accepted the said amount as full and final settlement.  According to the 2^nd opposite party, the insured vehicle is a very old vehicle and liable to depreciation of 35% in metallic parts and 50% on non metallic parts.  And 2^nd opposite party is liable to pay the claim after deducting depreciation and policy excess.  The 2^nd opposite party had paid the amount assessed by the Surveyor as per the policy conditions.  And there is no deficiency in service on the part of 2^nd opposite party and they prayed for dismissal of the complaint with their cost.

Points for considerations are

1. Whether there is any deficiency in service on the part of opposite parties?
2. Relief and costs?

Evidence in this case consists of the proof affidavits, the complainant and 1^st opposite party.And Ext.A₁ to A₉ documents from the side of complainant and Ext.B₁ document from the side of opposite party 2.

Point No.1

          Complainant alleges deficiency in service on the part of opposite parties on the following aspects.

1. Even after repair by the 1^st opposite party, there were number of defects for the repaired car including fixing of the seat, the bumber fitted is not original, left front door pad was not working, left door glass channel is not properly fitted, unusual sound, while applying breaks, pulling power is less.
2. The second opposite party had not indemnified the complainant for the actual expenses incurred by him.  As such second opposite party is liable to pay an additional amount of Rs.1,68,417/-.

In order to prove the 1^st allegation, complainant as per IA No.613/11

seeks the direction to the Forum to appoint an expert to ascertain the defects of the disputed car, repaired by the 1^st opposite party.  The Expert commissioner filed a report noticing certain defects of the vehicle.  The complainant has not taken any steps to examine the expert commission or to mark the said documents.  Since the Consumer Protection Act is a welfare legislation for the protection of the consumer, we do not inclined to penalize the consumer for the negligence committed by the counsel for the complainant.  So in the lack of any objection on the side of the opposite parties, we are constrained to relay on the report of the Expert Commissioner.  In the said report, the following defects were noticed.

1. A/C of the car is not functioning.
2. Front left hand side seat trims found defective and adjuster not working.
3. Front left door lock not working.
4. Found gloss reduction on plastic and fabric trims of front left door.
5. Found gloss reduction on front grill and show beadings.
6. Water entering to cabin through front left door top portion.
7. Gloss reduction on four show beadings on doors.
8. Low engine pulling.
9. Both front seats back rest not working.

The act of 1^st opposite party in not properly repairing a vehicle entrusted to them amounts to deficiency in service.  In our view, the above defects are to be rectified.

          The second allegation of the complainant against the 2^nd opposite party is that the 2^nd opposite party has not tendered the actual expenses met by the complainant for repairing the complainant’s vehicle.  The report of the Surveyor deputed by the opposite party is produced by the complainant and the same is marked as Ext.A2.  In Ext.A2, the total loss assessed less depreciation and salvage is Rs.1,53,311.69/- .  Admittedly, 2^nd opposite party had given Rs.2,26,000/- to the complainant.  From Ext.A3, the invoice it can be seen that the total bill amount will come to Rs.3,94,417/-.  So it can be presumed that the balance amount of Rs.1,68,497/- was paid by the complainant from his pocket.  But no steps has been taken by the complainant to disprove Ext.A2 Survey Report by  examining the Surveyor.  In the lack of contra evidence, we are in a position only to believe the report submitted by the Surveyor. So in the lack of contra evidence, complainant is legally entitled for the loss assessed by the Surveyor.  Point No.1 find accordingly.

Point No.2

          In view of the findings in Point No.1, complaint is allowed in part.

1. Opposite party 1 is directed to rectify the defects of the complainant’s vehicle bearing Rs. No. KL-03 M 90, noticed by the Expert Commissioner Mr. Saji Prasad M VI RTO Office, Collectorate P.O., Kottayam in his report dtd.02/04/2012 filed in this case to the satisfaction of the complainant.  If not complied as directed, the 1^st opposite party is directed to pay Rs.25,000/- to the complainant as compensation.
2. Considering the facts and circumstance of the case, no separate cost and compensation is ordered.

The Order shall be complied with within 30 days from the date of receipt of a copy of this Order.If not as directed, the award amount will carry 15% interest from the date of Order till realization.

Pronounced Open Forum on this the 6^th day of January, 2015.

Hon’ble Mr. Bose Augustine, President             Sd/-

Hon’ble Mr. K.N. Radhakrishnan, Member     Sd/-

Hon’ble Mrs. Renu P. Gopalan, Member          Sd/-

Appendix

Documents of petitioner

Ext.A1:   Photocopy of estimate accidental repairs dtd20/04/09 of 1^st opposite party

Ext.A2  :  Copy of motor survey report dtd.19/06/2009

Ext.A3  :  Copy of tax invoice from 1^st opposite party dtd.17/09/09.

Ext.A4  :  Copy of pre-invoice from 1^st opposite party dtd.14/09/09.

Ext.A5  :  Copy of bill check report.

Ext.A6  :   Copy of estimate for Oriental Insurance company Rejected parts for

                  Rs.38,058.69/-

Ext.A7  :  Copy of estimate report dtd.21/10/2009

Ext.A8  :  Copy of letter from petitioner to 2^nd opposite party dtd.04/12/2009

Ext.A9   :  Acknowledgement card

Documents of opposite party

Ext.B1  :  Copy of private car package policy from the Oriental Insurance Co. Ltd.

                                                                                                By Order

                                                                                      Senior Superintendent