BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.102/2008 Order dated this the 17th day of December 2008 COMPLAINANT/S Sri.Kempegowda S/o Devegowda @ Bokkegowda, R/o Uramarakasalagere Village, Kothathi Hobli, Mandya Taluk, Mandya District. (By Sri.M.C.Rajagopal., Advocate) -Vs- OPPOSITE PARTY/S The Branch Manager, National Insurance Company Limited, No.1576, 1st Floor, Visweswaraiah Road, Mandya City. (By Sri.S.Sudarshan., Advocate) Date of complaint 27.09.2008 Date of service of notice to Opposite party 13.10.2008 Date of order 17.12.2008 Total Period 2 Months & 4 Days Result The complaint is partly allowed directing the Opposite Party to pay Rs.50,000/- to the complainant within 6 weeks. There is no order as to costs. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, to direct the Opposite party Insurance Company to pay Rs.1,40,743/- being the cost of repairs of the tractor and damages of Rs.50,000/-. 2. The case of the complainant is that the complainant is the owner of the tractor and trailer bearing No.KA-11-T-1466/1467; said vehicle was insured with Opposite party Insurance Company on 01.03.2006 and the policy was in force from 02.03.2006 to 01.03.2007. The said vehicle met with an accident on 28.09.2006 near Uramarakasalagere Village and the vehicle was completely damaged. One injured Katharaju lodged a complaint before Mandya Rural Police in FIR No.387/2006 and later the police filed a charge sheet against the driver of the tractor. Soon after, the accident, complainant informed the Opposite party about the accident. The Opposite party Company sent one surveyor by name K.L.Srinivas to estimate the damages of the vehicle. Thereafter, the complainant took the vehicle to Mysore for repair and the vehicle was repaired in Shri Hari Tracto Tech, at No.73/1, 2nd Stage, Industrial Suburb, Mysore on 29.12.2006. The total cost of repair was Rs.1,40,743/-. After repair the complainant submitted all necessary records to Opposite party Company to settle the insurance claim. But the Opposite party required some more particulars to settle the claim as per letter dated 04.10.2007. The complainant submitted the particulars through RPAD and the same was served on 07.11.2007. Again the Opposite party sent another letter dated 15.02.2008 to furnish some particulars. Again the complainant submitted all documents as per letter dated 15.02.2008, but the Opposite party has not settled the insurance claim. Therefore, the Opposite party has committed deficiency in service as Opposite party has not settled the claim in spite of legal notice dated 09.06.2008. Therefore, the present complaint is filed. 3. The Opposite party has filed version admitting the insurance obtained by the complainant for the tractor and its validity. It is admitted that the complainant had reported about the accident of the vehicle on 28.09.2006 and filed a claim with Opposite party for insurance amount towards the damages. On receipt of the claim, the Opposite party arranged for spot survey and called for certain documents from the complainant requesting to submit the estimate of the repairs to arrange for final survey of the vehicle to assess the actual loss. But the complainant never allowed the Opposite party or his surveyors to inspect and assess the final damages caused to the vehicle in question. The complainant even failed to let the Opposite party know as to where the repair works were being done and kept silent about the details of spare parts that were replaced in clear contravention of the terms of the contract. The complainant failed to intimate the Opposite party about the details of the repairs and name of the workshop etc., thereby preventing the Opposite party to depute his surveyor to assess actual loss. Instead the complainant submitted the estimate along with the bills alleged to have been issued by M/s Sri Hari Tractor Tech, Mysore. The Opposite party further sought for correct address and location of the repairer to discuss with him before arriving any conclusion regarding the assessment vide letter dated 15.02.2008. But the complainant failed to comply with the request. But, the Opposite party appointed two independent surveyors Sri.Jayachandra Raje Urs and Sri.K.L.Srinivas to ascertain the address of the repairer shown in the estimate and bills and on verification by these surveyors, it was found that the address of the repairer furnished by the complainant is a false one and non-existing, but one M/s Indavara Engineering Company Ltd., is operating in the said address and the name of M/s Shri Hari Tracto Tech, Mysore was not found in any of the surrounding site numbers in the said area. Therefore, the estimate and bills furnished by the complainant are concocted and fraudulent with a motive to get unjust claim. Therefore, on due application of mind, Opposite party closed the file as no claim and repudiation was informed to the complainant. Therefore, there is no deficiency in service committed by the Opposite party and the complainant is not entitled to any relief and the complaint is liable to be dismissed with costs. 4. During trail, the son of the complainant as a power of attorney holder has filed the affidavit and examined and documents Ex.C.1 to C.15 are produced. On behalf of the Opposite party, 3 witnesses are examined and documents Ex.R.1 to R.6 are produced. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1) Whether the Opposite party has committed deficiency in service in not settling the claim? 2) Whether the complainant is entitled to the cost of repairs of the tractor as claimed? 3) Whether the complainant is entitled to the compensation of Rs.50,000/-? 7. Our findings and reasons are as here under:- 8. POINT No.1:- The undisputed facts are that the complainant is the owner of the tractor and trailer bearing No.KA-11-T-1466/1467 and the said vehicle was insured with the Opposite party having force from 02.03.2006 to 01.03.2007, the said vehicle met with an accident on 28.09.2006 near Uramarakasalagere, Mandya Taluk, and the police have registered the Crime as per Ex.C.6 FIR (Ex.R.5 also) and the incident of the accident was informed to the Opposite party Insurance Company as per Ex.C.4 on 29.09.2006. It is also admitted fact that the Opposite party deputed a surveyor for inspection of the vehicle at spot and the said surveyor i.e., Sri.K.L.Srinivas inspected the vehicle at spot and submitted the report dated 28.09.2007 along with bill Ex.R.4. It is also undisputed that the surveyor took the photos of the damaged vehicle as per Ex.C.16. It is also admitted fact that the complainant preferred claim form as per Ex.C.5 on 17.06.2007 and before that as per Ex.C.2 dated 18.04.2007, the Opposite party called upon the complainant to submit the estimate of the repairs with RC, DL, certified copy of the FIR and the complainant submitted the estimate Ex.C.7 to the Opposite party on 07.06.2007 as per Ex.C.7. According to the Ex.C.11, the complainant has submitted the cash bill on 07.06.2007 along with estimate issued by Sri Hari Tracto Tech, at No.73/1, 2nd Stage, Industrial Suburb, Mysore. According to the Opposite party, the claim was repudiated, on the ground that the complainant has furnished the concocted estimate and cash bill, because there is no guarage under the name Shri Hari Tracto Tech, in the address found in Ex.C.7 estimate and the bill Ex.C.11 and it has relied upon the evidence of RW.2 and RW.3 the surveyors. RW.2 Jayachandra Raja Urs has deposed that through phone he was informed the address of the workshop and he visited the address and enquired and found there was no workshop of the said address, but there was M/s Indavara Engineering establishment and even in the neighborhood there was no such workshop. RW.3 K.L.Srinivas who inspected the vehicle at spot has deposed that he could not carry out final survey of the damages, because the insured had filed the claim form estimate and bill after 8, 9 months and thereafter through phone the insurance company informed the address of the workshop and sent the documents given by the complainant. On that basis he went to the address, but there was no workshop in the address, but there was M/s Indavara Engineering Company Ltd., and he contacted the Manager of the said Engineering Company and obtained the visiting card Ex.R.6. 9. The complainant has disputed the evidence of RW.2 & RW.3 and according to the contention, he had furnished all the documents and the surveyor has not visited the address of the workshop and the son of the complainant has deposed that he requested the Opposite party Manager to send the surveyor along with him and he would show the workshop, but the surveyor did not come, though he was waiting on 3 days. According to the complainant, he had furnished estimate and later cash bill along with the bills of spare parts and he submitted the same to a madam of the Opposite party Company and in spite of it, they sent a letter to furnish the documents and so he furnished the Xerox copies. 10. The contention of the Opposite party is that the complainant did not follow the procedure and did not allow the surveyor to inspect the vehicle to ascertain the details of the repairs by furnishing the false concocted documents and estimate bills on the same day. 11. Now after intimation of the accident and spot inspection by the surveyor RW.3, the Opposite party wrote a letter Ex.C.2 dated 18.04.2007, as per Ex.C.2 to furnish the estimate of the repairs with RC, DL, FIR copy. So accordingly, the complainant has submitted the estimate dated 25.10.2006 as per Ex.C.7. According to the complainant that in the December itself he has furnished the estimate. Further, as per Ex.C.9 letter of the complainant submitted to the Opposite party Company on 07.11.2007, it is stated that after inspection by the surveyor at spot, he had submitted the DL, RC records, FIR copy, estimate and cash bill to Madam Hema and in spite of it, letter dated 04.10.2007 had been sent to the complainant to furnish the documents, therefore he submitted the Xerox copies. According to the complainant, he informed the address of the company where the tractor was left for repairs and not in writing. It appears that Ex.C.7, the estimate and the cash bill Ex.C.11 having different date were furnished to the Opposite party on 07.06.2007 as per seal of Opposite party Office and they are originals. The Opposite party has sent Ex.R.3 letter dated 04.10.2007 to submit the original bills for spare parts purchase, certified FIR and also final report issued by the police, stating that the complainant has not allowed them to inspect the damages at the workshop, but submitted the estimate along with the bills from Shri Hari Tracto Tech and also sought for a details of the repairs carried out and also produced damaged parts replaced. In this connection, the complainant has produced postal acknowledgement dated 07.11.2007 and according to the C.W.1, the son of the complainant has submitted the records, but the Opposite party has not produced any documents to show why it has issued the acknowledgement Ex.C.15 and what was the letter or documents sent to the Opposite party and it has suppressed the same. 12. It is admitted that at the time of repairs of the vehicle, the surveyor has not inspected the vehicle at the workshop and not assessed the cost of repairs and the Opposite party has disputed the estimate and the bill Ex.C.7 and C.11 as concocted documents and contended that there is no workshop by Shri Hari Tracto Tech at Mysore and relied upon the evidence of RW.2 and RW.3. As per Ex.C.11, the cash bill it is dated 29.12.2006. To prove that there was no such workshop in the address given by the complainant in the estimate and cash bill. Apart from the oral evidence of RW.2 & RW.3, RW.3 has produced the Ex.R.6 of Indavara Engineering Company, at No.73, 2nd Stage, Industrial Suburb, Mysore. There was no reason for the surveyors to depose that there was no such workshop of repairs of the tractors. So, the burden is heavy on the complainant to prove that there was workshop having name of Shri Hari Tracto Tech at the given address and actually the tractor was repaired there and it is also the burden to prove the details of the repairs and the cost of repairs by examining the owner of the said workshop or a mechanic, but the complainant has not taken any effort to examine the owner of the said workshop to prove that it was existent at the time of repairs in December 2006. It appears RW.2 & RW.3 visited the address in October 2007, whereas as per the cash bill Ex.C.7 it was in the month of December 2006. There is no evidence through the owner of the workshop that the said workshop was existing during 2006 and later in 2007 it was closed. 13. But, it is admitted fact that the vehicle was damaged in the accident and RW.3 inspected the vehicle and noted the damages, but the final surveyor was not made to ascertain the cost of repairs. It is pertinent to note that Opposite party has not made attempts to depute the surveyor to inspect the tractor near house of the complainant or near the office of the Opposite party. Though as per Ex.C.8 dated 15.02.2008, the Opposite party wrote a letter to furnish the details of repairs carried out and produced the damages parts replaced, there was no impediment for the surveyor of the Opposite party Company to inspect the vehicle on intimation to the complainant to verify the repairs carried out and assess the cost of repairs comparing with the bills submitted by the complainant. It is not the evidence that in spite of the instructions to produce the tractors after repairs, the complainant did not produce the vehicle to assess the cost of repairs. Therefore, even though the complainant has not established and proved the documents Ex.C.7 estimate and Ex.C.11 the cash bill by examining the owner of the said Shri Hari Tracto Tech workshop at Mysore, but the evidence of CW.1 reveals that since there was delay by the Opposite party Company to settle the claim, the workshop owner sold the parts that were replaced to the Gujari for Rs.13,000/- and adjusted towards the bill and therefore he could not produce the parts replaced to the insurance company. There is no evidence by the Opposite party side as to why after repairs of the tractor and submitting bill by the complainant, the Opposite party did not make efforts to depute the surveyor to assess the repairs done and the cost of repairs. It cannot be said that the complainant has not at all got repaired the vehicle, because admittedly RW.3 K.L.Srinivasa has inspected the damaged tractor at the spot and submitted the report as per Ex.R.4 and he has not noted the following damages 1) Front bumper bend and thrown out of shape along with support brackets. 2) Front LH wheel knuckle broken and wheel disc bend. 3) Front axle bend along with center pin. 4) Hood panel pressed and buckled, hinge and lock distorted. 5) Silencer assembly pressed and buckled. 6) Air filter assembly pressed and buckled. 7) Both rear fenders pressed and buckled. 8) Steering wheel folded and rod and box damage to be inspected. 9) Seat frame bend. 10) Right hand rear wheel disc bend and rear axle bend to be checked at final survey. 11) Internal damages if any to be checked at final survey. 14. On the basis of these damages pointed out by the surveyor, the insurance company should have examined the repairs said to be done as found in Ex.C.7 and whether the cash bill Ex.C.11 covers the repairs of damages noted by the surveyor. At least this could have been done by the Opposite party. Even though, as observed above, the complainant has not examined the author of the estimate Ex.C.7 and the cash bill is Ex.C.11 to prove the total cost of repairs and details of the repairs, the surveyor should have compared the cash bill Ex.C.11 and which of them are tallying with the damages noted by him in his report. Simply on the ground that the workshop mentioned in the cash bill Ex.C.11 was not found in the address at the time their visit, but the surveyors and the Opposite party have made delay to inspect the vehicle after repairs, because the estimate and bills were submitted in 07.06.2007 as per Ex.C.7 & C.11 and the report of RW.2 Jayachandra Raja Urs is dated 15.10.2007. There is no report by RW.3 the surveyor K.L.Srinivasa when actually he went to check the address of the workshop and he collected visiting card Ex.R.6. Therefore, in this way the Opposite party has not discharge the duty in assessing the cost of repairs, though admittedly the insured vehicle of the complainant was damaged in the accident. Hence, the Opposite party has committed deficiency in service in totally repudiating the claim. Therefore, we answer point no.1 in the affirmative. 15. POINT NO.2:- The complainant has sought for cost of repairs of Rs.1,40,743/- on the basis of the cash bill Ex.C.11 which is disputed by the Opposite party. Even though, as observed above the complainant has not at all proved Ex.C.11 by examining the proprietor of the workshop and the details of the repairs, the evidence of the complainant proves that the replaced parts were sold for Rs.13,000/- by the workshop owner and adjusted towards the bill amount as the insurance company committed delay in settling the claim. There is no reason to suspect this evidence of the complainant. Considering report of the surveyor about the damages and the negligence of the Opposite party in not inspecting the vehicle to assess the cost of repairs, we hold that the Opposite party should have settled the claim on non-standard basis and considering the circumstances of the case, it is reasonable to assess the cost of repairs atleast 50% of the bill Ex.C.11, therefore is comes to Rs.70,000/-. Since, the scrap of the replaced materials were sold by the workshop owner and adjusted towards the bill amount, it is just and proper to direct the Opposite party to pay Rs.50,000/- towards the cost of repairs of the tractor which was damaged in the accident, but the complainant is not entitled to any compensation as he has also committed delay in submitting the bills and the Opposite party could not got surveyed the vehicle damages in the workshop. 16. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite Party to pay Rs.50,000/- to the complainant within 6 weeks. There is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 17th day of December 2008). (PRESIDENT) (MEMBER) (MEMBER)
