SMT. RAVI SUSHA: PRESIDENT
Complainant field this complaint U/S 12 of Consumer Protection Act 1986 for getting direction to OP No.1 to release the repaired vehicle to the complainant and also direction to OPs to pay with Rs. 67,560/-, towards compensation for loss, deficiency in service together with cost of the proceedings of this complaint.
In nutshell, the facts in the complaint are that the complainant purchased Honda Active 125 Scooter on 22/01/2016 and the same was registered in the Transport Office, Kannur. Registration Number is K-13-AF-8832 and insured the vehicle with the New India Assurance Co.Ltd., (wholly owned by the Govt. of India), kannur. Period of coverage of the policy is 02/02/2018 to 01/02/2019. On 10/06/2018 while coming from Pappinissery the Scooter Honda Active 125 hit on an electric post near Valapattanam NH and the complainant was fallen from the vehicle and the vehicle got serious damages. The scooter was driven by her son Saifu Shafi. She was pillion rider. The vehicle was insured also for own damages as per policy No.7608013117240000 with OP No.2. On the next day the complainant entrusted the vehicle for the repair to the 1st OP, who is the authorized service centre of Honda. This fact was reported to the OP2. The insurance surveyor assessed the damages. Then the 1st OP started the repair works of the vehicle. The 1st OP completed the repair works and sent the petitioner the detailed estimate of the spare part used for the purpose to the tune of Rs.25,060/- and service charge of Rs.12,500/-. Thus a total of Rs.37,560/- is required for the repairs of the complaint’s vehicle. Only an estimate copy was sent to the complainant. The bill for the repair of the vehicle was not sent to this complainant by OP No.1. Hence bill payment could not be done. The vehicle is still in the custody of the 1st OP. The complainant demanded for the receipt so as to claim the amount from the insurer. Repeated reminders sent to the OP No.1 for the bill of the repair charges to claim the same from the insurance company. On 15/03/2019 the complainant sent a lawyer notice to the OP NO.1 demanding to issue bills to the complainant to claim the repair charges from the 2nd OP> No reply was sent by the 1st OP so far. The action of the 1st OP not issuing the bill of repair charges and spare parts used for repairing the scooter, the complainant could not claim the same from the insurance company. Hence this complaint.
The case of OP No.1 is that the complainant had purchased a new Honda Activa 125 scooter from this OP. Further the above vehicle was brought to the service centre of this OP on 11/06/2018 due to accidental damage. This OP prepared an estimate and informed the complainant that a total amount of Rs.37,560/- will be required towards the value of spare parts to be replaced and a s labour charges to make the vehicle road worthy. The complainant agreed and gave permission to start the work. When the work was completed and the complainant was informed that the final repair bill is Rs.36,545/-. But she insisted for issuing the cash bill for repair charges in advance without paying the amount and informed that she will pay the amount after the insurance company settles her own damage claim. This OP informed the complainant that the insurance company will pay the amount only to her directly and that too after deducting depreciation etc. as per the policy conditions and requested her to pay the repair charges and to collect the cash bill and to get the amount reimbursed from the insurance company. But she was not ready to pay the repair charges. Even though she was contacted several times, she was not ready to pay the amount and to take delivery of the vehicle. The repair bill was not issued to the complainant since she was not ready to pay the repair charges as promised by her before starting the work. There is no deficiency of service on the part of this OP is not liable to pay ay amount as compensation to the complainant. Hence prayed for the dismissal of this complaint.
2nd OP filed separate version stating that there is insurance of the Honda Activa Scooter KL13/AF8832 with them for the period from 02/02/2018 to 01/02/2019. But this respondent is not liable to pay any amount to the complainant towards the own damage to the vehicle, since the insured had not intimated the accident or submit any claim form along with the details of the damage and the work estimate from the workshop of r repairing the vehicle before the 2nd OP. The complainant had not produced the records from the police station n or intimation to the police to show the cause of the damage to the vehicle and has not produced the vehicular documents or the driving license of the rider of the scooter at the time of the accident, which the complainant is specifically bound to do as per the insurance policy and its conditions. Hence this OP specifically deny their liability to pay any amount to the complainant as per the terms and condition of the Insurance policy. Since the insured fails to comply with the said mandatory condition of the policy the insurer is not liable to pay the insurance amount to the insured as per the terms and conditions of the insurance policy. Therefore the 2nd OP also could not appoint their licensed surveyor to conduct a survey over the damaged vehicle immediately and conduct a preliminary survey and to assess the extend of damage and the approximate expenses which may incur to repair the vehicle. Therefore the claim against the OP2 is not maintainable. Hence prayed for the dismissal of complaint against OP No.2.
At the evidence time, complainant’s husband filed his chief-affidavit and was examined as Pw1. Ext.A1 to A10 marked. RC of vehicle Ext.A1, policy certificate Ext.A2, Estimate issued by OP No.1 dated 11/06/2018 Ext.A3, Legal notice issued by to OP NO.1 dated 15/032019. Ext.A4, acknowledgement card Ext.A5, intimation sent by OP No.2 to complainant dated 09/01/2020 regarding closing of complainants claim Ext.A6 Reply to A6 dated 01/07/2020 Ext.A7, acknowledgment card Ext.A8, letter sent by OP No.1 to complainant dated 22/09/2020 directing to take back the repaired vehicle after paying bill amount Rs.36,700/- Ext.A9, Reply to Ext.A9 as Ext.A10. The service manager of OP No.1, Mr. Srutheesh filed chief affidavit on behalf of OP No.1 and was examined as Dw1. From the side of OP No.2, no oral evidence was adduced. One document Insurance certificate issued to complainant produced by OP No. 2 which was marked as Ext.B1.
After that learned counsels of complainant and OP No.1 filed written argument notes.
We have gone through the available records brought before us, evidence and submissions of counsels.
In the instant case, the undisputed facts are 1) The purchase of Honda Active 125 scooter having Registration No.KL-13-AF-8832 by complainant from OP No.1 on 22/01/2016 and insured the vehicle with OP No.2. The period of coverage of policy is from 02/02/2018 to 01/02/2019. 2) On 10/06/2018, the said vehicle hit on an electric post and the vehicle became damaged. 3. On the next day itself the vehicle was entrusted to OP No.1’s service e centre for the repair and OP No.1 prepared estimate dated 11/06/2018 for an amount of Rs.37,560/-, including prices of spare parts and labour charges required for the work of the vehicle.
The case of complainant is that even after repeated request to OP1 to issue bill for repair work, after completing their accidental work of the vehicle, OP1 reluctant to issue bill to complainant. Hence he could not submit the bill before Insurance company (OP No.2) for getting claim. Complainant further alleged that due to the non-issue of repaired bill, he could not pay the repaid amount to OP No.1 for taking back the vehicle. So the vehicle is still in the custody of OP No.1.
On the other hand OP1’s contention is that complainant when the complainant brought the damaged vehicle to their service centre, they prepared on estimate of Rs. 37,560/- to be required towards the value of spare parts and labour charges to make the vehicle in a road worthy condition. Further after getting consent of complainant they started repair work and when the work was completed and informed to complainant that to pay final repair bill Rs.36,543/-. But complainant insisted for issuing the cash bill for repair charges in advance without paying the amount for submitting to Insurance company. OP further contended that complainant informed that she will pay the repaired amount after getting the own damage claim amount from Insurance company (OP No.2). According OP No.1, since complainant did not paying the repaired bill amount, they have not given cash bill and not returned the vehicle to complainant OP No.1 contended that so there is no deficiency in service on their side an stated that the insurance company will pay the amount only to complainant directly and pleaded that they are cheated by complainant by not paying the repaired to them.
Here, OP No.2 submitted that the complainant is not entitled to get own damage claim because she had not complied the mandatory terms and conditions stipulated in Ext.B1 policy schedule by not informing the event of damage caused to the insured vehicle, and not submitted the claim form along with all the documents pertaining to the claim immediately after the incident.
In the instant case, the points to be decided are whether complainant demanded original bill of the repair work of the vehicle or cash bill in advance from OP No.1 and whether complainant had submitted claim form and complied the mandatory provisions of policy conditions in order to get own damage claim? Further whether there Id is deficiency in service on the part of OPs?
On analyzing the available documents, Ext.A6 shows that Insurance company on 06/09/2019 to 09/01/2020 issued an intimation letter to the complainant stating the ”we are closing your claim form on account of the following reason. We didn’t receive the original bill of the repair work of above mentioned vehicle till date”. It is seen that OP No.2 received notice of this case from the commission on 06/09/2019 and filed vakalath on 21/08/2019. Then it is clear that Ext.A6 was issued on after thought and for the sake of OP NO.2 from their liability. From the facts stated in Ext.A6 also evident that complainant had complied all the mandatory provisions as stipulated in Ext.B1, for getting own damage claim except submitting original bill of the repair work of the insured vehicle.
The learned counsel of OP No.1 submitted that complainant insisted for issuing cash bill for repair charges in advance without paying the amount and informed that she will pay the amount after OP No.2 settles her own damage claim. Further submitted that even though she was contacted several times, she was not ready to pay the amount and to take delivery of the vehicle. The learned counsel further submitted that averment in para 6 l of the complainant also in Lawyer notice it is state that complainant demanded cash receipt. From the said facts it is clear that the complainant was issued invoice in respect of the accidental work which will show all the details and that what was demanded by the complainant was cash bill and receipt for payment of the same.
The fact to be noted that in Ext.A6 the intimation letter of OP No.2, they demanded original bill of the repair work, and not cash receipt for the payment. It is an undisputed fact that complainant demanded the disputed document from OP NO.1 in order to submit before the Insurance company for getting own damage claim. Then we can presume that complainant had demanded to OP No.1 only the original bill for the repair work and not cash receipt in advance. Further in the lawyer notice Ext.A4, in para 6, it is clearly mentioned that OP 1 was demanded to issue bill to the complainant so as to claim the repair charges from the insurance company. It is seen that Ext.A4 was issued prior to Ext.A6 ie closing the claim due to the lack of original bill. Here, there is no dispute that OP No.1 had issued estimate for the repair on the day of entrusting the vehicle to them. But Insurance Company was not amenable to indemnity the claim without submitting original repair bill. Then the complainant was constrained to submit original repair bill before Insurance company. Hence demanded repair bill to OP No.1.
From the facts and circumstances of this case, it is evident that the vehicle in dispute is still in the service centre of OP 1 due to the non-issuance of bill. We are of the view that this kind of non-0issuance of bill to customers, amount s to unfair trade practice on the part of OP No.1. Further the incident in this case happened on 2018. Since Ext.A6 does not show, that complainant did not intimate the incident and not submitted claim form at proper time, the delay from the side of OP No.2 for about 1 ½ years in intimating closing of claim, amounts to deficiency in service on the part of OP No.2. Hence both parties are liable to pay compensation to complainant for his grievance. Since complainant could not obtain the own damage claim from OP No.2 due to the unfair trade practice of OP No.1, complainant’s grievance should be redressed by OP No.1 by delivering the repaired vehicle in a road worthy condition without receiving any repair charges.
In the result, complaint is allowed in part opposite party No.1 is directed to release the repaired vehicle in a road worthy condition to the complainant free of cost and opposite parties 1 and 2 are directed to pay Rs.25,000/- as compensation and Rs.5000/- as cost to the complaint. Both opposite parties shall comply their part within one month from the date of receipt of this order. Failing which opposite party No.1 has to pay Rs.100/- per day onwards from the date of this order till compliance of order and also opposite parties have to pay interest @9%n per annum for Rs.25,000/- from the date of order till realization. Complainant is at liberty to file execution application against opposite parties as per the provisions of Consumer Protection Act 2019.
Exts.
A1 - Copy of R.C (KL-13-AF8832)
A2 - Policy Certificate (Photocopy)
A3 - Estimate dated 11/06/2018
A4 - Lawyer notice dated 15/03/2019
A5 - Acknowledgement card
A6 - Letter issued by OP2 to complainant dated 09/06/2020
A7 - Reply to OP dated 01/07/2020
A8 - Acknowledgement card
A9 - Letter sent by OP1 to complainant
A10 - Reply notice dated 30/10/2020
Pw1 -Complainant’s husband
Dw1 - OP1
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
