IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA Dated this the 23rd day of June, 2010. Present : Sri. Jacob Stephen (President). Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No. 31/08 (Filed on 16.04.2008) Between: John Varghese, Thengumtharayil House, Pathanamthitta. (By Adv. K. Sreelal) .... Complainant. And: 1. National Insurance Company represented by its Regional Manager. 2. The Branch Manager, National Insurance Company Ltd., Pathanamthitta. (By Adv. Sam Koshy) 3. P.S. Suresh Babu, Insurance Surveyor, 112 Gandhi Nagar, Vazhuthacaud, Thiruvananthapuram. 4. The Manager, Popular Vehicles and Services Ltd., Karamana, Thiruvananthapuram. (By Adv. George Mathew) .... Opposite parties. ORDER Sri. Jacob Stephen (President): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The complainant’s case is that he is the registered owner of the 2005 model Maruti Baleno Car bearing register No.KL-01/AH-5061. The above said vehicle is insured with the second opposite party vide policy No..570204/31/06/6100024154 for the period from 02.05.2007 to 04.01.2008, which is a comprehensive insurance policy. The said insured vehicle met with an accident at Vamanapuram junction, Thiruvananthapuram District on 07.11.2007. The accident was intimated to Venjaramoodu Police Station and after making G.D. entries, the vehicle was entrusted to Popular Vehicles and Services Ltd. who is the authorised workshop. The matter was intimated to National Insurance Company, Thiruvananthapuram office who deputed a surveyor for ascertaining the damages of the vehicle. After the survey, the 4th opposite party started the repairing works and returned the vehicle after completing the works. The 4th opposite party issued a bill for Rs.2,38,270/- for the repairing works and the complainant paid the same. But the insurance company paid Rs.1,55,964/- after deducting an amount of Rs.82,306/- from the bill of the 4th opposite party. The complainant informed the matter to the insurance company, but unfortunately they gave unreasonable answers to the complainant. The insurance company disallowed expenses for replacing switch assembly combination and receiver dryer which costs Rs.4,091/- and Rs.2,417/- respectively. The insurance company also deducted 50% of the cost of some items saying that such items are plastic items. But in fact, the above said items are not plastic items. Similarly, they have wrongfully deducted the damage amount of several items also. Considering the model of the complainant’s vehicle, only 15% is to be deducted from the total value of the damaged parts. But they have deducted 50% of value of several items. 3. The 4th opposite party’s officials informed that if the complainant had taken the policy through the Maruti tie-up national insurance policy, the vehicle would have been released to the complainant by paying only 15% of the total values. The above said acts of the opposite parties is a deficiency in service. So the complainant sent a legal notice to the second and third opposite parties on 06.02.2008 for settling the claim. But there was no reply from the insurance company. Apart from the above deficiency of the first and second opposite parties, the 4th opposite party delayed the delivery of the vehicle for 45 days irrespective of their assurance saying that the G.D. entry was lost. They have also charged Rs.2,303/- for external beatification, upholstery clearing and gate pass without the complainant’s authorisation. Due to the wrongful act of the 4th opposite party, the complainant has sustained huge financial loss for hiring vehicles for his personal use. Hence this complaint for the realisation of Rs.82,306/- with 12% along with Rs.25,000/- as compensation from the insurance company and the taxi charges for the vehicles hired by the complainant for 45 days from the 4th opposite party and for realisation of the cost of this proceedings from the opposite parties. 4. The opposite parties 1 and 2 filed their version with the following contentions: They admitted the validity of the policy and the accident of the vehicle. They also admitted that, on getting the information about the accident, they have deputed a surveyor who assessed the damages of the vehicle and submitted his report. On the basis of the report, the complainant’s claim was settled for Rs. 1,55,964/-. The complainant without any protest accepted the said amount by executing the discharge voucher treating the amount as full and final settlement of his claim. He had not lodged any protest immediately after the receipt of the amount. There was no compelling or coercive circumstance so as to receive the money. Since the complainant had accepted the said amount, the complainant is not entitled to claim any further amount. The complainant’s allegation is that the opposite parties have deducted 50% of the value of the spare parts. The said allegation is incorrect. The opposite parties have not deducted 50% depreciation for the entire spare parts. Out of the total number of spare parts, 15% of depreciation was applied to 22 numbers of spare parts and 50% depreciation was applied for 25 items and depreciation was not applied to one item since the vehicle is 2005 model. The vehicle was 2 ½ years old on the date of accident; the depreciation was applied as per the terms and conditions of the policy. The claim was processed with reference to the terms and conditions of the policy, age of the vehicle, survey report and bills produced by the complainant, the amount payable is Rs.1,59,216/- and it was paid to the complainant. With the above contentions, the first and second opposite parties pray for the dismissal of the complaint as there is no deficiency of service from their part. 5. The third opposite party was declared as exparte. 6. The 4th opposite party filed version with the following main contentions: The 4th opposite party admitted the repair of the complainant’s vehicle. They have completed the work on 30.11.2007 and given bill for Rs.2,38,270/-. The complainant had taken delivery of the vehicle only on 28.01.2008 for which the 4th opposite party is no way responsible. The receiver dryer and switch assembly combination were damaged in the accident beyond repairs and were shown to the insurance surveyor. They denied that they have informed that if the complainant takes the policy through the Maruti tie up national policy, the vehicle would have been released to the complainant by paying only 15% of the total cost of repairs. They also denied that they have not done any work without the authorisation of the complainant. The delay in taking the delivery of the vehicle by the complainant was due to the reason best known to him only as they have completed the repairs on 30.11.2007. The complainant is not entitled to get any relief against the 4th opposite party, as they have not committed any deficiency of service to the complainant. With the above contentions, 4th opposite party also prays for the dismissal of the complaint. 7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint is allowable or not? 8. The evidence of this complaint consists of the proof affidavit of the complainant in lieu of chief examination and the oral deposition of the complainant who was examined as PW1 based on his proof affidavit and Exts.A1 to A7 and the proof affidavit of second opposite party and Exts.B1 and B2. After closure of evidence, both sides were heard. 9. The Point: The complainant’s allegation against the first and second opposite parties is that the vehicle owned by the complainant which is insured with the first and second opposite parties met with an accident during insurance coverage is in force. For repairing the vehicle, he had spent an amount of Rs.2,38,270/- and he claimed the said amount after complying all the formalities. But the opposite parties paid only Rs.1,55,964/- after deducting an amount of Rs.82,306/- for various reasons. But according to the complainant, he is entitled to get the entire amount spent by him as per the terms and conditions of the policy and the opposite parties 1 and 2 are not entitled to deduct any amount from the actual repairing expenses which is a deficiency in service and the opposite parties 1 and 2 are liable to pay the balance amount with interest along with compensation for the mental agony. 10. Apart from the deficiency of service from the part of the first and second opposite parties, the complainant had an allegation of deficiency of service against the 4th opposite party also. The allegation against the 4th opposite party is that the 4th opposite party had delayed the delivery of the vehicle after completing the repairs irrespective of the date of delivery assured by the 4th opposite party and due to the said delay, the complainant was compelled to hire other vehicles for his personal use. Moreover, the 4th opposite party charged an amount of Rs.2,303/- from the complainant for certain repairing works done without the consent of the complainant. The complainant is also entitled to get compensation from the 4th opposite party for the above said deficiency. 11. In order to prove the case of the complainant, the complainant had filed a proof affidavit in lieu of chief examination. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A7. Ext.A1 is the photocopy of the Certificate of Registration of the complainant’s vehicle. Ext.A2 is the photocopy of the insurance policy certifiate. Ext.A3 to A3(c) are the bills dated 30.11.2007 for Rs.2,38,270/- issued by the 4th opposite party in connection with the repairs of the complainant’s vehicle. Ext.A3(d) is another bill for Rs.2,303/- dated 28.01.2008 issued by the 4th opposite party to the complainant. Ext.A4 is the photocopy of the lawyer’s notice dated 06.02.2008 issued by the complainant to the second and third opposite parties. Ext.A5, A5(a), A6 and A6(a) are the postal receipts and acknowledgment cards of Ext.A4 lawyer’s notice. Ext.A7 is the photocopy of the G.D. entry dated 07.10.2007 of Venjarammoodu Police Station. PW1 was cross-examined by the learned counsel for the opposite parties 1, 2 and 4. 12. At the same time, the contention of the opposite parties 1 and 2 is that on getting the claim form from the complainant with regard to the damages sustained to the complainant’s vehicle, they have processed the claim form properly as per the terms and conditions of the policy and have paid an amount of Rs.1,55,964/-. The said amount was also accepted by the complainant without any objection. Though the complainant claimed an amount of Rs.2,38,270/-, the complainant is entitled to get only Rs.1,55,964/- as per the terms and conditions of the policy. As per the terms and conditions of the policy, the age of the vehicle will be considered for applying the rate of depreciation of spare parts. Accordingly, they have applied depreciation of 15% to 50% for its spare parts and on the basis of the said calculations, they have assessed the loss as Rs.1,55,964/- and the said amount was given to the complainant. According to the opposite parties, the complainant is entitled only to get Rs.1,55,964/- as per the terms and conditions and thereby they have not committed any deficiency in service. 13. In order to prove the contentions of the first and second opposite parties, the second opposite party filed a proof affidavit along with 2 documents. The documents produced were marked as Exts.B1 and B2 on the basis of the proof affidavit. Ext.B1 is the discharge voucher for Rs.1,55,964/- dated 30.01.2008 executed by the complainant in favour of the first and second opposite parties. Ext.B2 is the survey report dated 10.12.2007 prepared by the surveyor. The 4th opposite party has not adduced any oral or documentary evidence, but they have cross-examined the complainant. 14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute regarding the validity of the policy and the damages of the vehicle. The only dispute between the complainant and the first and second opposite parties is with regard to the assessment of the loss. According to the complainant, he had a loss of Rs.2,38,270/- due to the accident and he is entitled to get the same from the first and second opposite parties. But according to the first and second opposite parties, though the complainant had claimed an amount of Rs.2,38,270/-, he is entitled to get Rs.1,55,964/- only as per the terms and conditions of the policy. 15. In this case, the complainant has not adduced any evidence to show that the assessment made by the opposite parties 1 and 2 is not correct. Moreover, the complainant had no case that the rate of depreciation and deductions applied by the first and second opposite parties are against the terms and conditions of the policy. It is clear from the deposition of PW1 which is as follows:- Rm³ depreciation\ kw_¨v dispute sNbvXn«nÃ. If the complainant has no case against the depreciation rate, how can the complainant make a claim for an amount higher than the amount assessed by the first and second opposite parties as per the terms and conditions of the policy. In the circumstance, we find no reason to allow the complainant’s prayers in the complaint as such against the first and second opposite parties. With regard to the reliefs against the 4th opposite party, the complainant has not adduced any evidence supporting his grievances against the 4th opposite party. So we find no deficiency from the part of the 4th opposite party. However, the proof affidavit filed by the second opposite party shows that they have assessed the loss of the vehicle as Rs.1,59,217/-. But as per the version and Ext.B1 discharge voucher, the first and second opposite parties have paid only Rs.1,55,264/-. The difference between the assessed loss and the actual payment is Rs.3,253/-. But first and second opposite parties have not adduced any evidence to show the reason for the non-payment of the above said Rs.3,253/-. As per the proof affidavit of the first and second opposite parties, the assessed loss is Rs.1,59,217. But they have paid only Rs.1,55,264/-. So in our opinion, the non-payment of the above said amount of Rs.3,253/- is a deficiency of service. In the circumstance, we find that the opposite parties 1 and 2 are liable to pay the above said amount of Rs.3,253/- to the complainant with interest, compensation and cost. 16. In the result, this complaint is allowed, thereby the first and second opposite parties are directed to pay Rs.3,253/- (Rupees Three thousand two hundred and fifty three only) with interest @ 9% per annum from the date of filing of this complaint along with compensation of Rs.1,500/- (Rupees One thousand five hundred only) and cost of Rs.1,000/- (Rupees One thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realise the aforesaid amounts from the first and second opposite parties with interest @ 10% per annum from today till the whole realisation. Pronounced in the Open Forum on this the 23rd day of June, 2010. (Sd/-) Jacob Stephen, (President) Smt. C. Lathika Bhai (Member) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainant: PW1 : John Varghese. Exhibits marked on the side of the complainant: A1 : Photocopy of the Certificate of Registration of the complainant’s vehicle. A2 : Photocopy of the insurance policy certificate. A3 to A3(c): Bills dated 30.11.2007 for Rs.2,38,270/- issued by the 4th opposite party to the complainant. A3(d): Bill for Rs.2,303/- dated 28.01.2008 issued by the 4th opposite party to the complainant. A4 : Photocopy of the lawyer’s notice dated 06.02.2008 issued by the complainant to the second and third opposite parties. A5 & A5(a): Postal receipts of Ext.A4 A6 & A6(a): Acknowledgment cards of Ext.A4 lawyer’s notice. A7 : Photocopy of the G.D. entry dated 07.10.2007 of Venjarammoodu Police Station. Witness examined on the side of the opposite parties : Nil. Exhibits marked on the side of the opposite parties: B1 : Motor O.D. loss voucher. B2 : Re-inspection report. (By Order) Senior Superintendent. Copy to:- (1) John Varghese, Thengumtharayil House, Pathanamthitta. (2) Regional Manager,National Insurance Company. (3) The Branch Manager, National Insurance Company Ltd., Pathanamthitta. (4) P.S. Suresh Babu, Insurance Surveyor, 112 Gandhi Nagar, Vazhuthacaud, Thiruvananthapuram. (5) The Manager, Popular Vehicles and Services Ltd., Karamana, Thiruvananthapuram. (6) The Stock File.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
