IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 10th day of January, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member,
C C No. 47/2017 (filed on 17-02-2017)
Petitioner : Joychen T.C.,
S/o Chacko,
Thoppil House,
Mutholy P.O.,
Pala, Meenachil Taluk, Kottayam-686573.
(Adv. C.J. Jomi, Adv.Akash K.R.)
Vs.
Opposite parties : (1) M/s T.V. Sundaram Iyer and
Sons Pvt. Ltd.,
Nattakom Panchayath, VII/476 C Nattakom Village, Kottayam Taluk, Kottyam District represented by its Manager.
(Adv.Abraham Markose, Adv.Mary John, Adv.Sony Sebastian)
(2) New India Assurance Co.Ltd., 1st Floor,
Municipal Shopping Complex, Pala-686575
represented by its Divisional Manager.
(Adv.P.G. Girija)
(3) T.S. Biju, Surveyor/Loss Assessor/valuer,
IInd Floor, Puthenparambil Buildings,
Opp.Federal Bank, K.K. Road, Kanjikuzhy,
Kottayam-04.
(4) Mahindra and Mahindra Ltd, Gateway
Buildings, Appollo Bunder, Mumabai-
400001 represented by its
Managing Director.
(Adv.Raju K. Mathews, Adv.Jacob George.)
(Adv.Saji Mathew, Adv.Denu Joseph,
Adv.George Itty, Adv.Bibin Babu)
O R D E R
Sri. Manulal V.S. President
Filed under Section 12 of the Consumer Protection Act, 1986.
The case of the complaint is as follows. The complainant is a builder and the owner of a 2013 model Mahindra made Mahindera Bolero Camper Gold vehicle, bearing Registration No. KL-35-E-4892. The complainant insured the said vehicle with the second opposite party vide policy No.76011031150100002285. The 4th opposite party is the manufacture of the said vehicle and the first opposite party is the authorized service centre of the 4th opposite party. The vehicle of the complainant met with an accident in the month of May 2016 and due to the said accident severe damages sustained to the vehicle. On 27.05.2016 the vehicle was entrusted with first opposite party for repair. The complainant intimated the factum of accident to the 2nd opposite party and the 2nd opposite party appointed the 3rd opposite party, the surveyor and loss assessor for assessing the damages. As per the request of the 2nd opposite party the 1st opposite party prepared a service quotation for an amount Rs.3,69,599.95/-At the time of entrustment the first opposite party made believe the complainant that they will repair the vehicle within three weeks. It is averred the complaint that even after the expiry of five weeks from the date of entrustment the first opposite party seeks time for complete the repair works. In the month of September 2016 when the complainant reached the first opposite party service centre he saw that his vehicle left idle, unattended, without carrying out any of the works, without any shelter, open to blazing sun and heavy rain. On inspection it is found that the heavy rain has damaged the vehicle, the most of the parts took rust, battery, music system and power window were also damaged. On enquiry, the technicians of the first opposite party assured that they will shift the vehicle to a sheltered place and all the damages would be rectified free of cost and would deliver the vehicle in good condition before September 2016. The first opposite party has not cared to repair or to deliver the vehicle as assured even at the expiry of year 2016. Then the complainant issued a lawyers notice to the first opposite party which the first opposite party through the reply notice informed that they have repaired the vehicle and repair charges would come to Rs.4,21,886/- and the vehicle is ready for delivery.
When the complainant inspects the vehicle it was noticed that no repair works to the engine is carried out by the first opposite party. The gear box is not even opened, uneasiness is there on moving and unnecessary sounds of trouble are heard on starting. The first opposite party has not replaced any of the spare parts mentioned in the retail invoice. The some of the spare parts were removed and some complaints are not rectified.
It is alleged in the complaint that the 3rd opposite party extend every help to the first opposite party for carrying on with the adopted unfair and deceptive practices. The third opposite party violated the rules and regulations of IRDA in conducting a survey. The first opposite party made believe on false representation that they have prepared and renovated the vehicle with new parts. Realizing this facts the complainant submitted a petition to the SHO Chingavanam Police Station on 02.02.2017. It is alleged in the complaint that the act of the first opposite party in not repairing the vehicle to the satisfaction of the complainant with motive to get enriched unlawfully and act of the third opposite party in aiding in the same amounts to deficiency in service and unfair trade practices.
The vehicle is insured covering own damages for an insured declared value of Rs.5,00,000/- and the 2nd opposite party is liable to indemnify the damages of Rs.5,00,000/- The deficiency in service and unfair trade practice committed by the first and second opposite parties have put the complainant through much mental agony, loss, injury and hardships for the complainant is to be compensated. Hence, this complaint is filed praying for an order direct the first opposite party to repair the vehicle to the satisfaction of the complainant and direct the second opposite party to indemnify the complainant, considering the loss sustained as total loss and pay the entire bill amount to the first opposite party and for the compensation.
Upon receipt of the notice of opposite party appearing before the Commission, though the notice was duly served to the 3rd opposite party he did not care to file the version and hence 3rd opposite party declared as Ex-parte. Other opposite parties filed separate version.
The first opposite party filed version contenting as follows:
The complainant has no cause of action against the first opposite party. The complainant’s vehicle is brought to the first opposite party for repairs. The body shell and cargo body had got completely damaged and had to be replaced. The first opposite party at the time of taking the vehicle for repairs duly intimated to the complainant that being major accident repair, many major parts and accessories including the body and cargo body which were not in regular stock would have to be ordered from the manufacturer of the vehicle and the delivery of the vehicle after repair would depend on availability of parts from the manufacturer. The insurance policy of the vehicle is not being a tie up policy. The insurance claim as well as survey by the surveyor was arranged by the complainant himself. A preliminary estimate for an amount of Rs.3,69,599/- was issued to the complainant. Thereafter at the instance of the complainant, the surveyor of the 2ndopposite party carried out the survey and gave approval for carrying out the repair works and immediately thereon 25.06.16, orders for the parts were placed with manufacturer. After dismantling of the vehicle, more intrinsic damage was noted and a supplementary estimate was given to the complainant. While the repair works were being carried out by this opposite party, the complainant visited the service centre and insisted that many of the parts which were not approved by the surveyor should also be replaced. When the first opposite party informed the complainant that the insurance would cover only parts approved by the insurance company, the complainant insisted that those parts which are not approved by the insurance company also be replaced at his cost. Since the complainant insisted, the first opposite party placed order for such parts also which were not approved by the insurance company. In December 2016 upon the receipt of the same the works were duly carried out and the vehicle was kept ready for delivery since 13th January 2017. Instead of paying the bill and taking delivery of vehicle and complainant sent a notice alleging that the repair works were not carried out and there was deficiency in service on the part of the first opposite party.
At the time of entrusting the vehicle to the service personnel of the first opposite party had duly informed the complainant that the delivery of the vehicle after carrying out the accident repairs would depend upon availability and supply of parts from the manufacturer. The complainant’s vehicle was neither left in a non-sheltered place nor had any of the parts would damage as alleged in the complaint. The vehicle of the complainant was purchased on 11.06.2013 and which had covered more than 80,000 kms. The complainant had required first opposite party carried out only the accident repairs which were duly covered by the insurer of the first opposite party. The complaint had not made any representation or complaint with regard to the mechanical condition of the vehicle and the same has not been attended in the absence of any instruction from the complainant. The lawyers notice issued by the complainant stating baseless allegation was duly replied by the first opposite party with a direction to take delivery of the vehicle after paying the bill amount. The complainant, however, has neither taken the delivery of the vehicle nor paid the bill amount. The first opposite party has replaced all the parts mentioned in the retail invoice and has not removed any of the item stated by the complainant in the complaint. The first opposite party has not indulged in any unfair trade practice or deficiency in service and has not made any false representation regarding the accident repairs of the vehicle and replacement of the necessary parts. The SHO Chingavanam Police Station being duly convinced that there was no unfair trade practice or deficiency in service refused to intervene in the matter. The first opposite party is not liable to pay any amount to the complainant as compensation or other ways. It is averred in the version that the complaint has been filed is an attempt to evade the payment of amount due to the opposite party.
The contention of the 2nd opposite party is as follows. The 2nd opposite party is unnecessarry impleaded in this complaint and hence the complaint is bad for misjoinder of parties. The vehicle of the complainant bearing No.KL-35E-4892 was insured with the 2nd opposite party vide private car package policy for a period from 11.06.2015 to 10.06.2016. It is submitted in the version that the complainant intimated the accident to the 2nd opposite party and on receipt of such intimation the third opposite party was appointed to assess the loss sustained to the vehicle.
The second opposite party is not liable for the damages caused to the vehicle due to the negligence of the first opposite party. The allegation that 3rd opposite party violated the rules and regulations of IRDA in conducting the survey is false. The 2nd opposite party had no occasion to process any claim with regard to subject vehicle. Therefore, the second opposite party is not bund to pay any bill or amount as total loss or any other head either to the first opposite party or the complainant.
Version of the 4th opposite party is as follows:
Complaint pertains to a vehicle which was purchased for commercial purpose and therefore the complaint is not maintainable. The transaction between the 4th opposite party and the 1st opposite party are on principle to principle basis. The 4th opposite party never had any transactions with the complainant and there is no privity on the complaint and the 4th opposite party. It is proved that the complainant vehicle met with an accident on 25.05.2016 and was entrusted with workshop of the first opposite party on 27.05.2016. It is submitted that to the knowledge of the fourth opposite party, first opposite party had issued the quotation for the repair works on 28.05.2016 and the surveyor inspected the vehicle on the same date. It is averred in the version that the estimate given by the first opposite party was approved on 17.06.2016 and the first opposite party placed an order for spare parts on 25.06.2016. The spare parts supplied without any delay and works started before the end of June 2016 and completed on 14.01.2017. It is further submitted in the version that the resurvey was done on 06.01.2017 and the final bill was raised on 13.01.2017. The battery, music system and power window are in perfectly good condition and the allegation to the contrary is false. The engine of the vehicle is clean and tiny and there is no unusual noise emanating from the gear box. There is no deficiency in service and unfair trade practice from the side of the 4th opposite party.
Evidence parts of the case consist of deposition of PW1 and PW2 and Ext. A1 to A8 from the side of the complainant. The divisional manager of 2nd opposite party filed proof affidavit in lieu of chief examination. DGM Customer care of the 4th opposite party filed proof affidavit in lieu of chief examination. No document evidence is produced from the side of 2nd and 4th opposite parties.
On evaluation of complainant, version and evidence from the court we would like to consider the following points.
- Whether there is any deficiency in service and unfair trade practice on the side of the opposite party?
- If so what are the reliefs?
Before analysis of the evidence, we would like to state that, during the pendency of the complainant dispute between the complainant and first opposite party has been settled among them. The council for the complainant submitted that they are not pressing the relief against the first opposite party. We are not inclined discuss the allegation against the first opposite party.
Point No.1
There is no dispute to the fact that the vehicle of the complainant bearing Register No. KL-35-E-4892 is insured with the 2nd opposite party on private car package policy for a period 11.06.2015 to 10.06.2016. Ext.A1 is the certificate of insurance and Ext.A1 proves that the insurance value of said vehicle is Rs.5,00,000/- It is also admitted by 2nd opposite party that the accident was duly intimated to them by the complainant. It is further admitted that on receipt of such intimation the 2nd opposite party appointed the 3rd opposite party who is a surveyor to assess the loss sustained to the vehicle. Ext.A2 which is the service quotation dated 11.06.2013 proves that the first opposite party has issued a service quotation for an amount of Rs.3,12,349/- for repairing the vehicle of the complainant. According to the complainant though the 2nd opposite party appointed the 3rd opposite party to assess the loss sustained to the vehicle due to the accident they did not indemnify the complainant as per the terms of contract of insurance.
Ext.A7 is the survey report filed by the 3rd opposite party on 13.04.2017. It is proved by Ext.A7 that the said vehicle met with an accident on 25.05.2016 near Poovarani Church, Pala. It is further stated in A7 that 3rd opposite party is appointed to conduct the survey and he had done the same on 28.05.2016 and 07.10.2016. The 3rd opposite party vide Ext.A7 assess the loss for an amount Rs.3,16,231.84 to the vehicle due to the accident. On reading of Ext.A7 (a) it can be seen that the 3rd opposite party had again inspected the vehicle on 15.03.2017 as per for instruction of 2nd opposite party. It is further certified in Ext.A7(a) that the vehicle was repaired as road worthy and the parts which was stated are replaced with new one. The complaint was resisted by the second opposite party that they had no occasion to process any claim with the alleged accident.
Insurance Regulation Regulatory and Development Authority (Protection of Policyholders) interest regulation 2002 speaks about the procedure which is to be followed. In respect of a claim of general Insurance policy clause 9 (1) of the Regulation says, an insured or the claimant shall give notice to the insurer of any loss arising under contract of insurance at the earliest or within such extended time as may be allowed by the insurer. On receipt of such a communication, a general insurer shall respond immediately and give clear indication to the insured on the procedures that he should follow. In cases where a surveyor has to be appointed for assessing a loss/claim, it shall be so done within 72 hours of the receipt of intimation from the insured.
(2) Where the insured is unable to furnish all the particulars required by the surveyor or where the surveyor does not receive the full cooperation of the insured, the insurer or the surveyor as the case may be, shall inform in writing the insured about the delay that may result in the assessment of the claim. The surveyor shall be subjected to the code of conduct laid down by the Authority while assessing the loss, and shall communicate his findings to the insurer within 30 days of his appointment with a copy of the report being furnished to the insured, if he so desires. Where, in special circumstances of the case, either due to its special and complicated nature, the surveyor shall under intimation to the insured, seek an extension from the insurer for submission of his report. In no case shall a surveyor take more than six months from the date of his appointment to furnish his report.
(3) If an insurer, on the receipt of a survey report, finds that it is incomplete in any respect, he shall require the surveyor under intimation to the insured, to furnish an additional report on certain specific issues as may be required by the insurer. Such a request may be made by the insurer within 15 days of the receipt of the original survey report.
Provided that the facility of calling for an additional report by the insurer shall not be resorted to more than once in the case of a claim.
(4) The surveyor on receipt of this communication shall furnish an additional report within three weeks of the date of receipt of communication from the insurer.
(5) On receipt of the survey report or the additional survey report, as the case may be, an insurer shall within a period of 30 days offer a settlement of the claim to the insured. If the insurer, for any reasons to be recorded in writing and communicated to the insured, decides to reject a claim under the policy, it shall do so within a period of 30 days from the receipt of the survey report or the additional survey report, as the case may be.
(6) Upon acceptance of an offer of settlement as stated in sub-regulation (5) by the insured, the payment of the amount due shall be made within 7 days from the date of acceptance of the offer by the insured. In the cases of delay in the payment, the insurer shall be liable to pay interest at a rate which is 2% above the bank rate prevalent at the beginning of the financial year in which the claim is reviewed by it.
On mere reading of clause 9 (1) of Regulation it is a boundan duty of the insurer to appoint a surveyor within 72 hours on the receipt of intimation from the insured. The regulation casts a legal duty on surveyor to file a report after conducting the survey, to the insurer with 30 days on appointment and if the surveyor needs any more time that shall not be more than the 6 months from the dated of appointment to furnish his report. Sub Clause 3 of Regulation Act states that if any additional repair is required by the insurer, the insurer shall made a request to the surveyor within 15 days from the date original survey report. Herein case on hand Ext.A7 proves that though the survey was conducted by the 3rd respondent on 07.10.2016 the report filed by him to the 2nd opposite party was only on13.04.2017. The non filing of survey report within 6 months from the date of appointment of surveyor amount deficiency in service from the 3rd opposite party who is an employ of the 2nd opposite party. Moreover, it is clear from the Ext.A7(a) the 2nd opposite party had instructed the 3rd opposite party to inspect the vehicle again. The 2nd inspection was conducted on 15.03.2017. It is pertinent to note that the 2nd opposite party neither disclose the date of first report nor the receipt of final report of survey before the Commission. The 2nd opposite party did not disclose the date on which the instruction for the subsequent inspection was given to the third opposite party and the date on which they received the final report. Ext.A7(a) proves that the 2nd opposite party has initiated the proceedings to process the claim of the complainant. Nether in the version nor in the proof affidavit the 2nd opposite party stated the reason as how they are unable to process and settled the claim of the complainant.
Sub clause 5 of the IRDA Regulation 2002 casts a duty on the 2nd opposite party to offer settlement of a claim to an insurer or communication of the rejection of the claim within 30 days from the receipt of survey report. Here in case in hand the 2nd opposite party did not produce any evidence to show that they neither offered nor rejected the claim of the complainant and communicate the same to the complainant within 30 days of receipt of final survey report. The act of the 2nd opposite party amounts to imperfection and inadequacy in service which they are bound to maintain as per the contract of insurance.
It is proved by Ext.A7 that the complainant had suffered the damage of Rs.3,16,231.84/- due to the accident. During the pendency of the complaint the matter has been settled by the first opposite party and complainant and memo is filed by both parties and the complainant took delivery of the vehicle after paying the repairing charges. As per Ext.A1 the 2nd opposite party is bound to indemnify the complainant for own damages of the vehicle during the policy period. No doubt the complainant suffered much loss and sufferings due to the deficient act of the 2nd opposite party. Sub clause 6 of the clause 9 of IDRA Regulation, 2002 states that the insurer shall pay the amount offered by them within seven days from acceptance by the insured the offer made by insurer. It further seek that if insurer made any delay in payment, the insurer shall liable to pay interest at a rate which is 2% above bank rate. As discussed above the 2nd opposite party neither offered the claim of settlement to the complainant nor informed the complainant that his claim had rejected on valid grounds. Without receiving an offer letter the complainant cannot accept or reject the same. The act of the 2nd opposite party amounts to denial of the right of the complainant either to accept or reject the offer which ought to have made by 2nd opposite party. On the evaluation of the evidence on record we are the opinion that the official of the 2nd opposite party had committed gross negligence to act as per the terms and condition of contract of insurance and in accordance with the provisions of law. After receiving on premium from the general public adopting such a practice by the officials of an insurance company could cause loss of credibility of the public insurance sector.
Considering the nature and circumstances of the case and for the ends of justice we allow the complaint in part and pass the following order.
- We hereby direct the second opposite party to pay Rs.3,16,231/- to the complainant with an interest of 6% from 13.04.2017 that the date on which the surveyor had filed his final report, till realization.
The order shall be complied within 30 days from the date of receipt of order. If not complied as directed, the amounts will carry interest further 9% from the date of order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 10th day of January, 2022.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Witnesses from the side of the complainant
PW1 –Joychen T.C.
PW2 - Arun Chand
Exhibits marked from the side of complainant
A1- Policy schedule cum certificate of insurance
A2- Service quotation dated 28.05.2016 filed by the complainant
A3- Repair Order dated 27.05.2016 filed by the complainant
A4- Lowers Notice 30.12.2016 filed by the complainant
A5- Reply Notice dated 21.01.2017 filed by the complainant
A6- Retail invoice dated 13.01.2017 filed by the complainant
A6(a)- Retail invoice of Rs.57,422.96
A7- Survey Report on 13.04.2017 issued by the opposite party
A7(a) – Re-Inspection report on 15.03.2017 issued by the opposite party
Exhibits marked from the side of opposite party
Nil
By Order
Senior Superintendent
