IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of September, 2013.
Present : Sri. Jacob Stephen (President)
Smt. K.P. Padmasree (Member)
C.C.No. 70/2013 (Filed on 04.06.2013)
Between:
Adv. A.C. Eapen,
Eluvelil New Bunglow,
Manthuka, Kulanada.
(By Adv. A.C. Eapen) …. Complainant
And:
1. M/s. National Insurance Co.,
Pathanamthitta.
(By Adv. P.D. Varghese)
2. M/s. AVG Motors,
Thiruvalla, rep. by its Manager.
(By Adv. G.M. Idiculla) …. Opposite parties
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. Complainant’s case is that he is an advocate by profession and is the registered owner of a Maruti Swift Desire car bearing Reg.No.KL-03V 4555 purchased from 2nd opposite party on 29.02.2012 and the said car is having an insurance policy of the 1st opposite party valid from 13.03.2012 to 12.03.2013. While so on 25.02.2013 at about 8.30 p.m. the said car met with an accident and sustained heavy damages to the car. The car was taken to the 2nd opposite party for repairs who is the authorized service centre after giving intimation to the 1st opposite party. The 2nd opposite party estimated the cost for the front repairing as Rs. 43,595.48 and the total estimated cost for right hand side door repairing and painting as Rs. 2,793/- and the grand total cost estimated for the entire repairs was Rs. 46,388.48. Out of the total estimate cost, the 1st opposite party deducted an amount of Rs. 6,134/- and the balance amount was paid to the 2nd opposite party. Thereafter the 2nd opposite party realized the above said deducted amount of Rs.6,134/- from the complainant of 09.03.2013. The 1st opposite party has no right to deduct any amount from the said estimated amount. The above said acts of the 1st opposite party is a clear deficiency in service which caused financial loss and mental agony to the complainant and the 1st opposite party is liable to the complainant for the same. Hence this complaint for the realization of the deducted amount of Rs. 6,134/- with 12% interest along with compensation of Rs.25,000/- with 12% interest and cost of this proceedings.
3. Both opposite parties entered appearance and filed separate versions.
4. The main contentions of the 1st opposite party is as follows:- It is false to say that the complainant had submitted a claim for Rs. 43,595.48 before the 1st opposite party. The original estimate is only Rs. 34,791.48. That apart complainant had submitted a claim for a further amount of Rs.2,793/- for the repair of the right hand side door. The surveyor deputed by the 1st opposite party assessed the loss and submitted his survey report on 13.03.2013 and on the basis of the survey report the 1st opposite party paid an amount of Rs.20,364/- after deducting the allowable depreciation as per the policy conditions, as the complainant’s vehicle is within the age between 6 months and one year. So the amount of Rs.20,364/- allowed is as per the terms and conditions of the policy. The complainant’s claim for Rs. 2,793/- is not allowable as the surveyor has not seen such a damage in the vehicle at the time of his assessment. Thus the allowable claim was allowed to the complainant and hence the 1st opposite party has not committed any deficiency in service. With the above contentions, 1st opposite party prays for the dismissal of the complaint.
5. The contentions of the 2nd opposite party is that, 2nd opposite party is not a necessary party to this proceedings and the complainant’s grievances is against 1st opposite party and the 2nd opposite had no role in the dispute between the complainant and the 1st opposite party. The 2nd opposite party had completed the works of the car as entrusted by the complainant and they have collected the amount entitled by them for their work. As the reliefs prayed for by the complainant is only against the 1st opposite party and hence the 2nd opposite party is no way liable to pay any amount to the complainant. 2nd opposite party being an unnecessary party, there impleadment caused loss and damages to them and the complainant is liable for the same. With the above contentions, 2nd opposite party also prays for the dismissal of the complaint against them with compensatory cost.
6. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
7. The evidence of this complaint consists of the oral deposition of PW1 and Exts.A1 to A5 and B1 to B3 series. After closure of evidence, both sides were heard.
8. The Point:- The complainant’s allegation is that the car owned by him has a valid comprehensive insurance policy of the 1st opposite party on 25.05.2013, the date on which an accident occurred and due to the said accident the said car sustained damages. The damages was assessed by the 2nd opposite party as Rs 46,388/-. The matter was intimated to the 1st opposite party who had conducted a survey. Thereafter the 2nd opposite party repaired the car. The claim of the complainant for Rs.46,388.48 was not fully allowed by the 1st opposite party. Out of the total repairing costs, the 1st opposite party deducted an amount of Rs.3,341/- as 20% depreciation for the spare parts and Rs.2,793/- towards the repairing, denting and painting charges of the front right hand side door. The disallowed amount of Rs.3,341/- and Rs.2,793/- was collected by the 2nd opposite party from the complainant. As the age of the complainant’s car is less than one year the deductions and depreciations made by the 1st opposite party is illegal and they are liable to pay the said amount to the complainant along with compensation and cost for their deficiency in service in disallowing the claim of the complainant in full.
9. In order to prove the case of the complainant, he had filed a proof affidavit in lieu of his chief examination along with 5 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A5. Ext.A1 is the insurance policy certificate of the vehicle in question. Ext.A2 and A3 are the estimates prepared by the 2nd opposite party for the accident of repairs. Ext.A4 is the cash receipt for Rs.2,793/- dated 02.03.2013 issued by the 2nd opposite party in the name of the complainant. Ext.A5 is another cash receipt dated 09.03.2013 for Rs.3,341/- issued by the 2nd opposite party in the name of the complainant.
10. On the other hand, the contention of the 1st opposite party is that on getting the accident intimation they had deputed a surveyor for inspecting the vehicle and assessing the damages who filed his report on 13.03.2013. On the basis of the survey report an amount of Rs.20,364/- was given to the 2nd opposite party after deducting the allowable deductions as per the terms and conditions of the policy and the complainant is entitled only to get the said amount. The claim for Rs.2,793/- for the repairs of the right hand side front door is not allowable as the said damages are not occurred due to the reported accident. So they argued that they have not committed any deficiency in service.
11. In order to prove the case of the 1st opposite party, they have cross-examined PW1 and marked 3 documents as Exts.B2, B3 and B3(a) through PW1. Ext.B2 is the survey report dated 13.03.2013 prepared and submitted by the insurance surveyor. Ext.B3 is the copy of the policy certificate. Ext.B3(a) is the terms and conditions of the private car package policy.
12. At the same time, the contention of the 2nd opposite party is that 2nd opposite party being the authorized service centre of Maruti vehicles has repaired the complainant’s vehicle perfectly and without any complaints and they have collected their charges from the 1st opposite party and from the complainant. The complainant has not raised any allegations against the 2nd opposite party and he had not sought any relief from the 2nd opposite party. So the impleadment of the 2nd opposite party in this case put them to losses and sufferings. So, 2nd opposite party argued for dismissing the complaint against them and for allowing compensatory cost for the unnecessary impleadment.
13. In order to prove the contentions of the 2nd opposite party, the counsel for the 2nd opposite party cross-examined PW1 and marked one document as Ext.B1 through PW1. Ext.B1 is the copy of the notice issued by this Forum in the name of the 2nd opposite party for their appearance.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the validity of the policy, the accident and its repairs. The only dispute of the complainant is that the 1st opposite party illegally deducted an amount of Rs. 6,131/-. According to the 1st opposite party, the said deduction is legal as they are entitled to deduct certain amount by way of depreciation as the vehicle is not a brand new vehicle and as certain amount in the estimate is not connected with reported accident. However, during cross-examination complainant had given up his claim for Rs.3,341/- deducted by the 1st opposite party on account of depreciation as he admitted the right of the 1st opposite party in this regard. So the remaining claim is with regard to the repairing costs of Rs. 2,793/- spent by the complainant for the repairs of the front right hand door. According to the complainant, the said damages are occurred due to the accident in question, so the 1st opposite party is liable to pay the said amount. But according to the 1st opposite party, the said damages are not occurred in the reported accident. But it is pertinent to note that though the 1st opposite party has raised such a contention, they have not adduced any evidence for supporting their contention. So we find no reason to disbelieve the complainant’s contention that the said damages also occurred in the reported accident. So we find that the complainant is entitled and the opposite party is liable for the same. The non-payment of the said claim is a clear deficiency in service and hence the complainant’s claim for the said amount of Rs.2,793/- is allowable.
15. Then comes the question of compensatory cost claimed by the 2nd opposite party for the alleged unnecessary impleadment of them in this complaint by the complainant. But we find no reason to accept the contention and claim put forward by the 2nd opposite party as the impleadment of the 2nd opposite party is necessary and warranted in the nature and circumstances of this complaint and hence the claim of the 2nd opposite party is not allowable.
16. In the result, this complaint is allowed thereby the 1st opposite party is directed to pay Rs.2,793/- (Rupees Two Thousand seven hundred and ninety three only) less allowable deductions to the complainant, along with compensation of Rs.1,000/- (Rupees One Thousand only) and cost of Rs. 500/- (Rupees Five hundred only) within 15 days from the date of receipt of this order, failing which the complainant allowed to realize the whole amount ordered herein above with 10% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 28th day of September, 2013.
(Sd/-)
Jacob Stephen,
(President)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Adv. A.C. Eapen
Exhibits marked on the side of the complainant:
A1 : Insurance policy certificate of the vehicle.
A2 & A3 : Estimates prepared by the 2nd opposite party.
A4 : Cash receipt dated 02.03.2013 for Rs.2,793/- issued by
the 2nd opposite party in the name of the complainant.
A5 : Cash receipt dated 09.03.2013 for Rs.3,341/- issued by the
2nd opposite party in the name of the complainant.
Witness examined on the side of the complainant: Nil.
Exhibits marked on the side of the complainant:
B1 : Copy of the notice issued by this Forum in the name of the 2nd
opposite party.
B2 : Survey report dated 13.03.2013 prepared and submitted by the
insurance surveyor.
B3 : Copy of the policy certificate.
B3(a) : Terms and conditions of the private car package policy.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Adv. A.C. Eapen, Eluvelil New Bunglow, Manthuka,
Kulanada.
(2) M/s. National Insurance Co., Pathanamthitta.
(3) Manager, M/s. AVG Motors, Thiruvalla.
(4) The Stock File.
