By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
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2. The complainant’s case in brief is as follows:-
The complainant is the RC owner of the vehicle innova crysta bearing Reg. No.KL-12-L-5434. He purchased it from the second opposite party on 14.11.2017. Then, he registered the vehicle and obtained a Contract Carriage Permit. Thereafter, he insured it as per enhancement cover policy with the first opposite party believing the assurance of the first opposite party and their agent that the said policy is bumper to bumper policy which offers complete coverage to the vehicle irrespective of depreciation of it’s parts. While so, on 25.11.2017, the vehicle met with an accident and got damaged. It was repaired by the second opposite party and both doors of right side were changed. They charged Rs.77,442/- for the repair. So, the complainant put a claim before the first opposite party. But the first opposite party had given only Rs.51,884/- to him. They had to pay Rs.25,558/- also towards the balance cost of repair. So, the attitude of the first opposite party is cheating, fraud, criminal breach of trust and unfair trade practice. Hence, this complaint against both opposite parties to get the balance repair charge, compensation and cost.
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3. The first opposite party filed version contenting as follows:-
They admitted that the complainant had insured his vehicle innova crysta bearing Reg. No. KL-12-L-5434 with seating capacity of 8 with them as per commercial vehicle enhancement cover policy. As per Indian Motor Tariff 21, there are special exclusions and compulsory deductions applicable to all commercial vehicles excluding taxis and motorised two wheelers carrying passengers for hire or reward. IMT 21 Para (a) contains special exclusions which provides that except in the case of total loss of the vehicles insured, the insurer shall not be liable under section 1 of the policy for loss or damage to the lambs, tyres, tubes, mud guards, bonnet, side parts, bumpers and paint work. IMT 21 Para (b) contains compulsory deductions which provides that in addition to any amount which the insured may be required to bear under Para (a) above, the insured shall also bear under section 1 of the policy in respect of each and every event, the first Rs.3,500/- of any expenditure for which provision is made under this policy and or of any expenditure by the insurer in the exercise of its discretion under condition No. 4 of this policy, if the expenditure incurred by the insurer shall include any amount for which the insured is responsible hereunder, such amount shall be repaid by the insured to the insurer forth with. Therefore as per
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the policy conditions, bumper and retainer of the bumper was excluded. They calculated Rs.7,789/- towards labour charge and Rs.48,375/- towards other works without deducting anything towards depreciation. From this, they deducted Rs.500/- towards policy excess, Rs.3000/- as an excess from the claim amount and Rs.780/- towards salvage value. Thus they paid Rs.51,884/- to the complainant. The complainant accepted this amount as final and full satisfaction of the claim. It is true that as per the enhancement cover policy, nil depreciation is applicable. But exclusion as per IMT 21 will be deducted as vehicle is above seating capacity of 6+1. Therefore there is no breach of trust, fraud, cheating or unfair trade practice. Thus, the complainant is not entitled to get anything more and so, complaint is to be dismissed with compensatory cost of this opposite party.
4. The second opposite party filed version contenting as follows:-
They admitted that the complainant had purchased an innova crysta 2017 model vehicle from their show room and it was brought to their service station for repair on 25.11.2017 following an accident. They repaired the vehicle to the satisfaction of the complainant and the complainant paid the bill amount for Rs. 77,442/-. This opposite party has nothing to do with the settlement made by the first opposite party in the insurance claim. So, this opposite party has no role in
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giving the insurance claim. There is no such allegation against this opposite party. Thus this opposite party is an unnecessary party. Therefore there is no deficiency in service on the part of this opposite party. Hence the complainant against this opposite party is to be dismissed.
5. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency in service on the part of the opposite parties?
2. Reliefs and Cost.
6. The evidence in this case consists of oral testimonies of PW1, OPW1, Ext. A1 to A3 and Ext.B1. Heard both sides.
7. Point No.1:- It is an admitted fact that the complainant is the owner of the vehicle innova crysta bearing Reg. No. KL-12-L-5434 and it met with an accident on 25.11.2017. It is also an admitted fact that the second opposite party repaired it and complainant directly paid Rs.77,442/- to them towards the repair charge. Admittedly, the complainant had availed an enhancement cover policy from the first opposite party and so he submitted an insurance claim before them for getting Rs.77,442/-. It is evident that the first opposite party, insurance
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company allowed only Rs.51,884/- and the complainant received it. The complainant then filed this complaint to get the balance amount of Rs.25,558/- with compensation and cost alleging mainly deficiency in service on the part of both opposite parties.
8. From the facts of this case, it can be seen that here, the dispute is between the complainant and first opposite party alone. The grievance of the complainant is that the first opposite party has not given the full amount which he has given to the second opposite party for the repair of his vehicle following an accident, even though, he availed an enhancement cover policy. So, the second opposite party has no role in this dispute. So also, complainant has no complaint against the second opposite party who done the repair work and the complainant does not want to get an order against second opposite party. So it is to be held that there is no deficiency of service on the part of the second opposite party.
9. The complainant’s case is that he took an enhancement cover policy which according to him is a bumper to bumper policy and so, the first opposite party has no right to deduct any amount from the amount which he claimed as the cost of the repair. The claim of the complainant is to get Rs.77,442/-and the
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first opposite party, insurance company allowed only Rs.51,884/- after deducting Rs.25,558/-. On the other hand, the counsel for the first opposite party argued that the complainant availed a commercial vehicle enhancement cover policy by which the complainant is only entitle to get the amount without deducting anything towards depreciation. According to him, it does not mean that first opposite party, insurance company is preventing from deducting the amount under special exclusions and amount which is compulsory deductable as per IMT No.21 incorporated in the terms and conditions of the policy. So, he affirmed that complainant is not entitled to get the full amount claimed.
10. To prove the case of the complainant, he has given evidence as PW1 and marked Ext.A1 to A3. Ext.A1 is the copy of the policy certificate. Ext.A2 and A3 are the Receipt Vouchers given by the second opposite party which show that ‘the second opposite party had obtained Rs.77,442/- from the complainant towards the repairing charge.
11. The case of the first opposite party as argued by their council is that IMT No.21 is applicable, even if, the policy is a commercial vehicle enhancement
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cover policy. To prove it, OPW1 was examined and marked Ext. B1. OPW1 is the Divisional Manager of New India Assurance Company, Kalpetta. Ext.B1 is the policy certificate with terms and conditions. As per IMT 21 seen in Ext.B1, the first opposite party is entitled to deduct the amount under special exclusions and compulsory deductions. IMT 21 (a) provides that except in the case of total loss of the vehicle insured, the insurer shall not be liable under Section 1 of the policy for loss of or damage to the lamps, tyres, tubes, mudguards, bonnet side parts, bumpers and paint work. OPW1 deposed that they deducted the cost of the bumper and paint work. According to him, first opposite party is entitled to deduct those amount. IMT 21 though applicable to all commercial vehicles, evidently it excludes taxis and motorised two wheelers carrying passengers for hire or reward. The counsel for the complainant contented that his vehicle is having a contract carriage permit. But, the council for first opposite party challenged it and submitted that the complainant has not produced the permit to prove that his vehicle is having contract carriage permit. But, Ext.B1 clearly shows that the vehicle of the complaint was registered as passenger carrying vehicle.
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12. Section 2 (7) of the Motor Vehicles Act defines a contract carriage as a motor vehicle which carries a passenger or passengers for hire or reward. As per Ext. A1/B1 evidently, the vehicle of the complainant is a passenger carrying commercial vehicle. As per IMT 21, commercial vehicles include taxis. Dictionary meaning of taxi is a motor vehicle on hire. Thus, definitely, the vehicle of the complainant is a taxi. So, IMT No.21 is not applicable in the present case. Then the counsel for the first opposite party contented that they deducted this amount from the claim amount of the complainant as per IMT 21 as the vehicle of the complainant is above seating capacity of 6+1. Admittedly, the vehicle of the complainant is having seating capacity of 7+1. But nowhere in IMT 21, it is stated that the amount under exclusion clause as per IMT 21 will be deducted if a vehicle is above seating capacity of 6+1. IMT 21 is applicable to all commercial vehicles except taxis and motorised two wheelers carrying passengers for hire or reward irrespective of seating capacity. So, no doubt, the vehicle of the complainant is to be excluded from the purview of IMT 21. Hence, it is to be held that as per IMT 21, the first opposite party is not entitle to deduct the amount coming under the head special exclusion and compulsory deductable because this is not applicable to taxis and motorised two wheelers carrying passenger for hire or reward. So,
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we hold that the first opposite party is not entitled to deduct the amount coming under IMT 21 from the claim amount of the complainant.
13. Evidently, first opposite party has also deducted Rs.500/- towards policy excess, Rs.3000/- as excess from the claim amount payable under add on cover and Rs.780/- towards salvage value. Ext.B1, policy shows that the insurance company is entitled to deduct Rs.3,000/- as an excess from the claim amount under add on cover. So first opposite party is entitle to deduct Rs.3,000/- as an excess from the claim amount of the complainant. Though, Ext. B1, policy further shows that all other terms and conditions within the policy shall remain unaltered, no conditions seen in Ext. B1, policy to show that first opposite party is entitle to deduct Rs.500/- towards policy excess and Rs.780/- towards salvage value. Therefore the first opposite party is not entitled to deduct Rs. 500/- as policy excess and Rs. 780/- as salvage value from the claim amount of the complainant. Therefore, the first opposite party is only entitled to deduct Rs.3,000/- only from the claim amount of Rs.77,442/-. So, actually, they bound to give Rs.74,442/- to the complainant. Then, the council for first opposite party argued as a last resort that since the complainant accepted Rs. 51884/- as final and full satisfaction of the claim, he is precluded from claiming anything more.
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PW1 has not denied his signature and endorsement that he received Rs. 51884/- as final and full satisfaction of the claim. Let us assume that PW1 made such an endorsement. Is it gives a right on first opposite party to deny the legal right of the complainant?. They are bound to give the balance amount if any which the complainant legally entitled, even if, they got such an endorsement. Actually, they are not entitled to get such an endorsement from their customers. They have only a right to get an endorsement from the customers that they received such and such amount. In this circumstance, the complainant is entitled to get the balance amount of Rs. 22558/-. Since, first opposite party unnecessarily denied this amount, there is deficiency of service on them. So the complainant is entitled to get Rs.10,000/-as compensation and Rs.1,000/- towards litigation expenses. Thus the point is answered accordingly.
14. Point No.2:- Since Point No.1 is found as discussed, the complainant is entitled to get the balance amount with compensation and cost as stated above.
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In the result, the complaint is allowed. The first opposite party is directed to pay Rs.22,558/- (Rupees Twenty Two Thousand Five Hundred and Fifty Eight Only) towards repair expenses and Rs.10,000/- (Rupees Ten Thousand Only) as compensation and Rs.1,000/- (Rupees One Thousand Only) as cost of this litigation to the complainant within 30 days from date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 4th day of February 2021.
Date of Filing:-18.04.2018.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Basheer. Agriculture.
Witness for the Opposite Party:-
OPW1. K. Somanathan. Divisional Manager.
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Exhibits for the complainant:
A1. Copy of Policy Schedule Cum Certificate of Insurance for the period
14.11.2017 to 13.11.2018.
A2. Bank Receipt Voucher. Dt:13.12.2017.
A3. Manual Receipt Voucher. Dt:13.12.2017.
Exhibits for the opposite party:-
B1. Copy of Policy Schedule Cum Certificate of Insurance for the period
14.11.2017 to 13.11.2018.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRC, WAYANAD.
