BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM,   ADDITIONAL BENCH,                                                                                        MANGALORE

Dated this the 21^st November 2016

PRESENT

SRI. VISHWESHWARA BHAT D         : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : MEMBER

ORDER IN

C.C.No.88/2012

(Admitted on 1.03.2012)

M/s Karnataka State Road

Transport Corporation,

Represented by is Divisional Controller,

Mangalore Division, Bejai, Mangalore,

Dakshina Kannada District.

                                                                ….. COMPLAINANT

(Advocate for the Complainant: Sri KPAS)

VERSUS

 M/s United India Insurance Co. Ltd.,

 Represented by its Divisional Manager,

 Divisional Office 4, 2^nd floor,

 19.19/1, South End Road,

 Basavanagudi,

 Bangalore  56004.

                                    ….......OPPOSITE PARTY

 (Advocate for the Opposite Party: Sri. AKK)

ORDER DELIVERED BY HONBLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

The brief facts of the case are as under:

The undisputed facts are complainant had insured 2007 model Volvo B7R bus bearing registration No.KA.01F.8443 with opposite party for the period from 19.11.2007 to 18.11.2008.  On 29.05.2008 at 10 am it met with an accident within the limits of Khandala Police Station.  After minor break down repair as it was ghat section road. The complainant was compelled to remove out of the place of accident it was then towed down to Mangalore to avoid more damages by paying Rs.10,000/  minor repair was carried out by M/s Volvo India Pvt. Limited, Mumbai Nashik road,  at Bhiwandi, Thane and then it was towed down to KSRTC Mangalore depot.  One Praveen Chandra shetty inspected and surveyor the vehicle as per the instruction of the opposite party. The complainant filed estimated cost of repair issued by M/s Lathangi Automobiles Pvt. Ltd., Bangalore for of Rs. 5,13,786/   The claim was registered with opposite party at no: 7570/2008. As per opposite party’s direction the bus was entrusted to M/s Lathangi Automobiles Pvt. Ltd., Bangalore which carried out repairs including body repairs, labour charges etc., total Rs.2,86,027.68/.

     It is further contended by the complainant he suffered loss due to non availability severely damage the surveyor and the opposite parties. Colluded it and the surveyor issued a false, fake, bogus and sham surveyor report in order to avoid the payment of compensation amount. The contention of the letter issued by opposite party and the report issued by surveyor is contradictory.  Contending opposite party has no legal right to check the claim of complainant and allowing only Rs. 19,810/ towards the coverage.  Opposite parties have not settled the claim hence seeks direction against opposite party to pay Rs.2,86,027.68/ with interest at the rate of 18%, another Rs.2,00,000 with interest of 18% towards loss of income and hardship, Rs.50,000 expenses removing the vehicle to the garage and Rs.10,000/ cost of the complaint.

In the written version opposite party further contends the complainant is barred by limitation opposite party had not issued the policy in question the complainant is not maintainable in the want of jurisdiction and the complainant is not a consumer as defined u/s2(d) of C P Act.

In the additional written version filed by opposite party is further contended opposite parties D.O at Chennai received a claim in respect of the damages caused for this bus in the accident on 29.5.2008 the deputed surveyor Praveen Chandra estimated the net loss on repair basis at Rs.26,948.05 under his report dated 10.7.2008 the said report contains the estimate of loss only to mechanical components caused to the vehicle in accident based on the estimate of the repairer.  The surveyor has given the report with an observation that complainant’s representative Mr. Shrinivasa the Deputy Manager, Mangalore that the repairs to the bus body assembly and A.C Unit will be done in Bangalore as per the guidelines of Volvo Bus Technology and the surveyor had adviced the complainant for submitting for estimate repairs to bus body and A.C units to opposite party company and prior to dismantling of vehicle, to take approval from opposite party to any such other repairs/replacement.  The opposite party did not receive any intimation about the repair to the body and the A.C unit as directed by the surveyor.  Till opposite party proceeded to claim on 11.3.2009 hence the claim was settled for Rs.19,810/ on the basis of Survey Report of Praveen Chandra Shetty and re inspection report of Y Srinivas shetty after its repair.  Hence seeks dismissal by mention the liability if at all Rs.19,810 only.

          In support of the above complainant Mr. M.Ramesh, Divisional Controller KSRTC Mangalore filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C16 detailed in the annexure here below. Mr. Praveen Chandra Shetty, Insurance Surveyor, Cw2 appeared as witness. Mr.Sachin Kumar, Deputy Manger, Lathangi Automobiles Smt. Asha Jagadish Manager, JAJR Conditioner Mangalore appeared through Summons Witness.  On behalf of the opposite party Mr. Amar Kumar Sinha (Rw1) Senior Divisional Manager also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                 Point No.(i): Affirmative 

                 Point No.(ii): Affirmative

                 Point No.(iii): As per the final order.               

                                                                                         REASONS

IV.      POINTS No. (i):  As seen from the rival contentions complainant insured the vehicle in question with opposite party and thereby opposite party is a service provider and the complainant is customer is undisputed.  The bus in question met with an accident resulting in damages and this was intimated to opposite party and opposite party did not pay the entire claim laid with opposite party towards repair expenses of the bus as per the claim bill is not agreed to be paid by opposite party.  As such there is consumer dispute. The answer for point No.1 is in the affirmative.

POINTS No. (ii):  Ex.C2 report of the Motor (Final) Surveyor Loss assessor one Mr. Praveen Chandra Shetty in respect of the damaged bus of complainant.  As seen from Ex.C2 the assessor surveyor as detailed spare parts recommended as price list subject to depreciation. Page no.3 amounting to Rs.45,069.70 less depreciation total Rs.25,548.05/.  The next column in the same page contains in all 25 item valid at 3,28,869.04 under the heading the following spare parts are deleted for the reason mentioned against.  However in respect of these 20 items there is no mention has been made as to reason for deletion.  But in the remarks Colum the survey has mention at item no.2, 3, 5 & 6 as mentioned below:

Remarks:

1. In my opinion, the above assessed damage is attributable in the stated version of the accident.
2. The repairer anticipated the entry of dust particles inside the engine through the damaged air cleaner and hence was insisting for a major engine overhaul, so as to continue the warranty of engine life upto 7,00,000/ Kms. of running.  Please note that the engine was run with damaged air cleaner, subsequent to which the turbocharger is damaged due to entry of dust particles into its impeller. These damage fall under consequential damage and hence do not fall under the scope of terms and conditions of policy of insurance.  Hence they have not given the consent for the assessment.
3. 20 photographs snapped by me are enclosed along with the negatives herewith.
4. Duly attested photocopies of RC, FC and Permit and Insurance Certificate of the vehicle and the MDL of the driver, verified by the officer s of the insurers are produced for my verification.  The same are returned herewith.
5. This report contains the assessment of loss only to the mechanical components of the vehicle caused in the stated version of the accident, based on the submitted estimate of repairs.
6. Your insurd’s representative Mr. Shrinivasa (Depot Manager, Mangalore) informed me that the repairs to the bus body assembly and the AC unit will be attended in Bangalore as per the guidelines of Volvo Bus Technology. He has been advised to submit estimates of repairs to passenger bus body and AC Unit to your Bangalore D.O. No.4, prior to dismantling of the vehicle and to take the prior approval from the insurer to any repairs/replacements to avoid complications at a later end.

In fact this Praveen Chandra Shetty was examined on behalf of complainant as Cw2 in his evidence Cw.2 mention he had shown the damaged caused to the body parts, and other parts of the vehicle and the right side engine ventilator, back panel, LH corner strut and RH Side ventilator grill and inner support structure.  He did admitted that from the accident caused the vehicle was unable to move.  Cw3 the Deputy Manager, Lathangi Automobiles Pvt. Ltd., one Asha Jagadish JEGR Mangalore were also examined.

 The defence counsel for opponent wanted to take shelter for failure to pay the entire claim bill of the complainant  in view of the note to Ex.C2 at item 6 quoted above however even

though other of Cw2 as examine has Cw2 nothing was elicited in respect of this note.  Further even though Cw2 in the report as quoted above mentioned reason for disallowing claim in respect of 24 items listed by him he has not given any reason therein for disallowing the claim in respect of those 24 items.  In the circumstances.

The learned counsel for complainant to support his contention as to his damage caused to A.C unit while it was been towed to Mangalore from the accident spot argued that the Act of towing down from the spot is exercise an option only that of and that damaged to engine cannot be said as consequential loss.  In this connection reference was made to a reported judgment itself United India Insurance Co. Ltd. Vs. Seema Bhargav (2004)1 CPR 565 mention of Chhattisgarh State Consumer Dispute Redressal Commission, Raipur.

Consumer Protection Act, 1986 Section 15 Appeal Car

Accident-Damage to on chamber of engine, no consequential loss Accident took place at late hours of night on high way Plea of Insurance Co. That damage to engine caused at the vehicle was driven after the accident-Since complainants husband felt that a better alternative was a take back vehicle to Nagpur on finding no apparent damage to vehicle Option exercised by him was only that of a pruden man Damage to engine cannot be said as consequential loss.

In fact as can be seen from the Ex.C2 there was damage caused to the vehicle the bus and Cw2 did take photographs but these photographs were not produced by opposite party.  Instead the document produced by complainant Ex.C1 letter addressed to the from Divisional office Bangalore for opposite party with copy addressed to Mr Suresh Naik KSRTC Manager mentions the survey has not enclosed the photographs since same taken by him lost unfortunately.  However the Ex.C2 speaks otherwise Ex.C2 at point no 3 mentioned above the report of Cw2 specifically indicates of enclosing 20 photo Snapped along with negative to the report.  Thus we are of opinion the rejection of the claim in the circumstance mentioned above of complainant by restricting the compensation amount at Rs. 19,810 by opposite party is unjustified.  As such it is a fit case to direct opponent to pay the claimed amount of Rs. 2,86,027.68/ with interest at the rate of 10%  from the date of repudiation till the date of payment.  Opponent also directed to pay sum of Rs.1,00,000/ as compensation towards hardship another Rs. 10,000/ towards cost of the complaint.

In the respect the delay caused in the complainant as opponent the letter dated 11.03.2010 address to Senior Divisional Controller, KSRTC, Mangalore repudiated the claim 11.3.2010 is produced in the case which is in responsible to a letter 10.5.210.  The complainant lodged before Forum is on 01.03.2012.  Hence we are of opinion the objection on this count is rejected.

POINTS No. (iii): As per final Order:

ORDER

     The Complaint is allowed with cost.  The opponent are directed to pay 2,86,027.68/ (Rupees Two lakhs Eighty Six Thousand Twenty Seven and sixty eight paisa only) with interest at the rate of 10%  from the date of repudiation till the date of payment.  Opponent also directed to pay sum of Rs.1,00,000/ (Rupees One lakh only) as compensation towards hardship another Rs. 10,000/(Rupees Ten thousand only) towards cost of the complaint.     Payment shall be made within 30 days from the date of receipt of this copy of this order.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 10 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21^st November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. M Ramesh, Divisional Controller KSTRC Mangalore

Cw2  Mr. Praveen Kumar Shetty,  Insurance surveyor

Cw3  Mr. Sachin Kumar, Deputy Manager, Lathangi Automobiles

Cw4  Smt. Asha Jagadish, Manager, JNJR,

Documents marked on behalf of the Complainant:

ExC1: 29.05.2008     Xerox copy of the receipt issued by Volvo India Private Limited

ExC2: 10.07.2008     Xerox copy of the Survey report issued by Mr. Praveen Chandra Shetty, Surveyor and Loss Assesor.

ExC3:  06.06.2008     Xerox copy of the claim form submitted to the opposite party

ExC4: 04.06.2008     Xerox copy of the preliminary accident Repair estimate issued by Lathangi Automobiles Pvt., Limited

ExC5: 29.07.2009     Xerox copy of the letter issued by the Opposite party 

ExC6: 26.11.2009     Xerox copy of the letter issued by the Opposite party

ExC7: 05.03.2010     Xerox copy of the reply letter issued by the Complainant

Ex.C8: 11.03.2010     Xerox copy of letter issued by the Opposite party

Ex.C9: 10.05.2010     Xerox copy of the reply issued by the Complainant

Ex.C10: 18.05.2010    Xerox copy of the letter issued by the Opposite party

Ex.C11: 26.05.2010     Xerox copy of the letter issued by the Complainant

Ex.C12: 25.10.2013    Xerox copy of the officer order copy

Ex.C13:        Lathangi Automobiles Pvt Ltd customer copy of Invoice

Ex.C14:        Lathangi Automobiles Pvt Ltd customer copy of Invoice

Ex.C15:         xerox copy of J.A.G Airconditoners AND Refreezers Quotation

Ex.C16:         xerox copy of J.A.G Airconditoners AND Refreezers Quotation

Witnesses examined on behalf of the Opposite Party:

RW1: Mr. Amar Kumar Sinha, Senior Divissional Manager

Documents markedon behalf of the Opposite Party:

Nil 

Dated:  21.11.2016                             PRESIDENT