BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/10/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 579/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the owner of the Ford Ikon Car bearing Registration No. KL-08-AA-2222. The vehicle was insured with the 2^nd opposite party for the period from 15-12-2010 to 14-12-2011. While so, the car met with an accident and it was entrusted for repairing with the workshop of the 1^st opposite party. But the vehicle was totally destroyed due to the fire occurred in the workshop of the 1^st opposite party. The mishap occurred due to the purposeful omission and carelessness of the 1^st opposite party. Hence they are liable to compensate the complainant. The 2^nd opposite party being the insurer of the vehicle is also liable to compensate the complainant. Though claims were lodged with the opposite parties, no amount was paid by them to the complainant. The vehicle was purchased on 05-12-2003 for Rs. 5,03,600/-. Hence the market value at the time of the mishap was Rs. 2,00,000/-. The complainant is entitled for Rs. 2,00,000/- from the opposite parties along with interest at the rate of 15% per annum from the date of fire till realisation together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The vehicle was sold on 05-12-2013 and the value of the car shown by the complainant herself is Rs. One lakh as on 14-12-2010. Thereafter, the vehicle met with an accident and was badly damaged whereby the value of the vehicle had considerably been reduced. The opposite party received the vehicle in the workshop on 19-05-2011. As instructed by the complainant in consultation with the 2^nd opposite party, a preliminary estimate dated 19-05-2011 for Rs. 1,29,781.50 was prepared before dismantling the vehicle. The 3^rd opposite party is the insurer of the 1^st opposite party. A fire accident occurred at the service centre of the 1^st opposite party at about 24.00 p.m. On 19-05-2011, wherein 8 vehicles were destroyed. The security personnel informed the fire force and due to the efforts of the fire force the further fire damage was extinguished. There is no negligence on the part of the 1^st opposite party and the fire had occurred due to reasons beyond the control of the 1^st opposite party. The remedy of the complainant is against the 2^nd and 3^rd opposite parties and the complaint is not maintainable against the 1^st opposite party.

3. The version of the 3^rd opposite party is as follows :-

The 3^rd opposite party issued a Standard Fire and Special Perils Policy in favour of the 1^st opposite party for the period for 01-04-2011 to 31-03-2012. The complainant's 2003 model Ford Car bearing Registration No. KL-08-AA 2222 was covered under the package policy of the 2^nd opposite party from 15-12-2010 to 14-12-2011 with insured declared value of Rs. One lakh. The car was entrusted with the 1^st opposite party for accidental repairs and the 1^st opposite party prepared an estimate dated 19-05-2011 for Rs. 1,29,781.50. As the estimate for repair is more than the IDV, the complainant is entitled to get the claim under total loss basis from the 2^nd opposite party. In the mean time, the 1^st opposite party's garage caught fire and 8 cars including the complainant's car got damaged. In respect of the fire accident the 1^st opposite party submitted a fire claim before the 3^rd opposite party. In the fire claim form, itself out of the 8 vehicles burned in the accident, the 1^st opposite party limited their claim only to two vehicles bearing Registration No. KL-5V 2392 and KL5V 9596. The said claim was fully and finally settled for Rs. 2,03,871/-, the further claim if any by a 3^rd party is not sustainable in law.

4. At the instance of the complainant, the 2^nd opposite party was deleted from the party array vide order in I.A. No. 271/2012 dated 03-05-2012. No oral evidence was adduced by the complainant. Exts. A1 to A3 were marked on her side. The witness for the 1^st opposite party was examined as DW1 and Ext. B6 was marked on their side. No oral evidence was adduced by the 2^nd and 3^rd opposite parties. Exts. B1 and B2 to B5 were marked on their part respectively. Exts. X1 series (3 in number) also was marked. Heard the learned counsel for the contesting parties.

5. The points that came up for consideration are as follows :-

1. Whether the complainant is entitled to get Rs. 2 lakhs from the opposite parties being the price of her car with interest?

2. Whether the opposite parties are liable to pay costs of the proceedings to the complainant?

6. Point No. i. :- It is not in dispute that the complainant's car bearing Registration No. KL-8AA/2222 met with an accident and entrusted with the 1^st opposite party for its repairs. It is also not in dispute that while the vehicle was in possession of the 1^st opposite party on 13-05-2011, the same was destroyed in a fire accident. The 2^nd opposite party is the insurer of the complainant's car as per Ext. B1 private car package policy for the period from 15-12-2010 to 14-12-2011 with insured declared value of Rs. One lakh. Ext. X1 series goes to show that the complainant accepted a sum of Rs. 50,000/- from the 2^nd opposite party on 03-05-2012 towards insurance claim. The 3^rd opposite party is the insurer of the 1^st opposite party as per a Standard Fire and Special Perils Policy for the period from 01-04-2011 to 31-03-2012. Though 8 cars were damaged in the incident, the 1^st opposite party settled the insurance claim with the 3^rd opposite party by limiting their claim to 2 cars bearing Registration Nos. KL-5V 2392 and KL-5V 9596. Since the 1^st and 3^rd opposite parties amicably settled the insurance claim between them, the 3^rd opposite party cannot be held liable any further as far as this case is concerned.

7. According to the learned counsel for the complainant, the then market value of the vehicle was Rs. 2,00,000/- and the complainant is entitled to get the amount from the opposite parties. It is stated that the 1^st opposite party in I.A. No. 356/2012 categorically agreed to pay Rs. 75,000/- to the complainant and later they went back on their word. The learned counsel for the 1^st opposite party contended that the complainant has received the insurance claim of Rs. 50,000/- from the 2^nd opposite party towards full and final settlement of the claim and the further grievance, if any of the complainant is against the 2^nd opposite party. The 1^st opposite party maintains that the complainant is estopped from claiming any further amount from the 1^st opposite party.

8. It is to be noted that nothing is on record to show the market value of the vehicle. Admittedly as per Ext. B1 policy, the insured declared value of the vehicle is Rs. 1,00,000/-. Out of the said amount, the complainant accepted Rs. 50,000/- from the 2^nd opposite party. Though the complainant is entitled to get the balance amount of Rs. 50,000/- from the 2^nd opposite party, she accepted Rs. 50,000/- towards full and final settlement of the claim which is conspicuous. However, since the vehicle was totally damaged at the hands of the 1^st opposite party, they are liable to indemnify the loss suffered by the complainant. The complainant is entitled to get Rs. 50,000/- from the 1^st opposite party to redress her grievances fully treating the value of the vehicle at Rs. One lakh the IDV as per Ext. B1 as declared by the complainant.

8. Point No. ii. :- The primary grievances of the complainant having been met adequately as prayed for, no order as to costs of the proceedings is called for. Rejected hence.

9. In the result, we partly allow the complaint and direct that the 1^st opposite party shall pay Rs. 50,000/- to the complainant towards the price of the vehicle with interest @ 12% p.a. from the date of complaint till realisation.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 21^st day of December 2013.

Sd/-A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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