Sri. P. Satheesh Chandran Nair (President):
The complainants filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.
2. The case of the complainant is stated as follows: The complainant is the owner of vehicle bearing No.KL-03-V-6566 Mahindra Xylo of 2012 make and the complainant is having a valid insurance policy with opposite party 1 vide policy No.571402/31/14/6100002752 dated 30.04.2014. On 21.08.2014 the said vehicle met with an accident and the accident was reported to 3rd opposite party in time. The complainant entrusted the vehicle at Mallassery, Kumbazha showroom of TVS on the next day on instruction of opposite party 3. It is contended that though the vehicle was entrusted as stated above the complainant was not informed about further action with regard to the vehicle by the opposite parties. Even though the complainant contacted opposite parties through e.mail about the status of the claim opposite parties did not show any response to his contact. It is contended that the service engineers of the workshop informed that the entire shell of the vehicle has been damaged irrecoverably and the only remedy is to replace the entire body shell of the vehicle. Therefore, the complainant sent so many communications to opposite parties demanding the replacement of the body shell of the vehicle. But none of them initiated any steps for the replacement of the body shell. According to the complainant, the opposite parties purposefully evading the replacement of the body shell of the vehicle and their act is totally illegal and it comes under unfair trade practice and deficiency in service on their side. On 20.11.2014 the complainant has issued a legal notice to opposite parties through his counsel in which no response from the opposite side. Hence this complaint to replace the vehicle body shell within a specific time, compensation for Rs. 10 lakhs, cost etc. etc.
3. This Forum entertained the complaint and issued notice to opposite parties for their appearance. All the opposite parties appeared before the Forum and filed a joined version as follows: According to the opposite parties, this complaint is not maintainable either in law or on facts. It is admitted that the complainant is the registered owner of the above referred vehicle and he availed an insurance policy through opposite party 3 as stated in the complaint. The validity of the said insurance policy was from 30.04.2014 to 29.04.2015. According to the opposite parties, it is the duty of the insured to inform the insurer with regard to the spot survey for the vehicle. In the instant case the complainant informed about the accident to the insurer only on 29.08.2014. It is contended that the complainant submitted a claim of Rs.4,35,279.82 to the opposite parties since the estimate amount is exceeded the financial authority of Branch and Division of the opposite parties the 3rd opposite party requested for appointment of a surveyor to be appointed by the regional office. As such the surveyor one Suresh Babu visited the workshop and commenced assessment of the loss on the next day itself. As per his assessment since the damage of the body was easily repairable in nature he recommended for a repair of body shell. According to this opposite parties the complainant was not amenable for the repair of the body shell as per the assessment of the surveyor and insisted for the replacement of the body shell. It is contended that the repair of the vehicle delayed due to the non consent of the complainant for the said purpose. It is further contended that the complainant made so many problems including the intimidation of opposite party 3 for the purpose of replacement of the body shell. When the complainant sent e.mails to regional office regarding this matter they appointed the 2nd surveyor one V.N.S. Pillai for a further opinion about the replacement of the body shell. He also reported that the body shell can be easily repairable and there is no need of replacement. When the complainant is again not convinced with this regional office sent their administrative officers to opposite party 3’s workshop for their technical advice. They also recommended for the repairment of the body shell instead of a replacement. Again it is contended that the complainant approached before the Hon’ble Insurance Ombudsman, Ernakulam on 28.10.2014 for the same relief. According to opposite parties, the pendency of the Ombudsman complaint is an estoppels against the complainant from proceeding with this case. According to the opposite parties, there is no deficiency in service on the part of opposite parties and they are ready and willing to repair the vehicle as per the survey report. Therefore, the opposite parties prayed to dismiss the complaint with cost.
4. On the basis of the complaint, versions and records before us and we framed the following issues:
- Whether the complaint is maintainable before the Forum?
- Whether the opposite parties are committed any deficiency in service as alleged by the complainant?
- Regarding relief and costs?
5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of his chief examination and he is examined as PW1. Through PW1 Ext.A1 to A6 were also marked. Ext.A1 is the legal notice dated 20.11.2014 sent by complainants counsel to opposite parties. Ext.A2 is the postal receipts of Ext.A1. Ext.A3 is the copy of certificate of insurance cum-policy schedule. Ext.A4 is the Service Quotation dated 20.08.2014. Ext.A5 is the copy of Registration Certificate. Ext.A6 is the letter dated 27.10.2014 sent by TVS Sundram Iyengar & Sons Ltd. to the complainant. PW2 and PW3 also examined in favour of complainant’s case. Ext.A7 is marked through PW3. Ext.A7 is the attested copy of Ext.A6 letter. On the other side, opposite parties examined DW1 to DW4 to establish their case. DW1 is the Branch Manager of opposite party 3 he who filed the proof affidavit in lieu of his chief examination. DW2 is an approved value assessor of IRDA and through him Ext.B1 to B4 were also marked. Ext.B1 is the Technical Opinion – Motor dated 30.11.2014. Ext.B2 series are the photos (10 Nos.) of the vehicle. Ext.B3 series are the photocopy of the vehicle (7 Nos.) and Retail invoice dated 29.08.2014. Ext.B4 series are the photocopy of the vehicle (4 Nos.) and Original pre-invoice dated 30.09.2014. DW3 P.S. Suresh Babu is an IRDA approved licensee surveyor through him Ext.B5 to B8 and Ext.B11 were also marked. Ext.B5 is the letter dated 10.10.2014 sent by insurance surveyor to the Works Manager, TVS & Sons, Pathanamthitta. Ext.B6 is the letter dated 06.02.2015 sent by the insurance surveyor to the complainant. Ext.B7 is the acknowledgment card. Ext.B8 (subject to proof) is the copy of Form IRDA-7-LF. DW4 is the Divisional Administrative Officer of opposite party 1 through him Ext.B9 was marked. Ext.B9 is the inspection report dated 15.10.2014. Ext.B10 (subject to proof) is the renewal surveyor licence of IRDA (suo-moto marked). Ext.B11 is the details of parts and labour recommended for body shell repair dated 27.12.2016. After closure of evidence, we heard both sides.
6. Point No.1:- The opposite parties mainly contended that this case is either maintainable in law or on facts. When we peruse the evidence adduced by both parties in this case, we can see that the complainant availed valid vehicle insurance from opposite parties and the said insurance was inforce at the time of incident. Therefore, we can find that the insured availed the insurance from the insurer opposite parties for getting insurance service as per the terms and conditions of the said insurance. Moreover, for the said insurance the complainant paid the premium amount to the insurer opposite parties in time. It can be inferred that the complainant herein is a consumer and the opposite parties are service providers of the complainant as per the definition of C.P. Act 1986 hence Point No.1 found n favour of the complainant.
7. Point Nos.2 and 3:- For the sake of convenience we would like to consider Point No.2 and 3 together. When we appreciate the evidence of this case and the issues raised for consideration the question to be answered is whether the opposite parties committed any deficiency in service against the complainant. In order to substantiate the contention of the complainant, the complainant examined PW1 to PW3 on their side. As discussed earlier, the complainant is examined as PW1 and through him Ext.A1 to A6 were also marked and through PW3 Ext.A7 also marked. When we refer Ext.A1 and A2, it is revealed that the complainant issued a legal notice against the opposite parties with regard to the deficiency in service of the reimbursement of insurance claim in favour of the complainant. It is also proved that the complainant PW1’s insurance policy was inforce at the time of incident as per Ext.A3. The complainant PW1 mainly relying Ext.A4 the service quotation issued by the repairer of the vehicle for an amount of Rs.2,22,266.38. As per this Ext.A4 quotation the repairer concerned recommended for the replacement of the body shell. When we go through Ext.A4 nothing to show that on what reason the surveyor recommended the replacement of the body shell. On the basis of Ext.A4 report we are not in a position to arrive a conclusion to the effect that the replacement of the body shell is inevitable. When we refer Ext.A6 and A7, it can be seen that both these documents are one and the same. As per these Ext.A6 and A7, it is to be understood that the TVS Company recommended for the replacement of the body shell instead of repairing. In order to substantiate the contention of PW1 he examined PW2 and PW3 the TVS body shop advisor and TVS service head respectively. When we examine the deposition of PW2, it is to see that he prepared Ext.A4 service quotation which recommended the replacement of body shell. In cross-examination he answered, “body shell- ൻറെ damage- ൻറെ gravity അനുസരിച്ചാണ് repair ചെയ്യണോ replace ചെയ്യണോ എന്ന് തീരുമാനിക്കുന്നത്. ടി gravity A4þ ൽ വിവരിച്ചിട്ടില്ല”. In cross-examination PW3 answered, “Ext. A4 തയ്യാറാക്കിയത് ആണ് service manager ആണ്. Ext.A4 major estimate ആയതിനാൽ എനിക്ക് 4 ദിവസം കഴിഞ്ഞ് അയച്ചു തന്നു. Ext.A4þലെ item No. 66þൽ നിന്ന് estimate സംബന്ധിച്ച് customer-þ- ഉം insurance company- യും തമ്മിൽ തർക്കം ഉള്ളതായി മനസ്സിലാക്കി Body shell പൂർണ്ണമായി മാറ്റേണ്ടതില്ല എന്നതായിരുന്നു insurance Co.þ þയുടെ നിലപാട് Item No.66þ ൻറെ വിവരണം body shell സംബന്ധിച്ചാണ് Body shell-þ ൻറെ damage ൻറെ gravity നിങ്ങളോ, TVSþ ലെ കീഴ്ജീവനക്കാരോ രേഖപ്പെടുത്തിയിട്ടില്ലല്ലോ? (Q) ഇല്ല (A)”. On the basis of the above deposition of PW2 and PW3 it can be inferred that the actual dispute between the complainant and opposite parties is with regard to the replacement of the body shell. The complainant PW1 demanded the replacement but the other side stick on the repairment of the body shell. It is to be understood that though Ext.A4 recommending for the replacement of body shell in that report there is no explanation with regard to the gravity of the damages caused to the vehicle. As per the opinion of PW2 and PW3 the replacement can be recommended only on the basis of the gravity of the damage caused to the vehicle.
8. When we evaluate the pleadings and evidence adduced by the opposite parties 1 to 3, it is clear that opposite parties 1 to 3 would not allow the replacement of the body shell even if it is demanded by the complainant PW1. The next question to be considered is who is responsible for the delay of the repairment of the vehicle. When we evaluate the evidence before us, it is to be noted that on 21.08.2014 the accident happened to the vehicle and on 26.08.2014 as per Ext.A4 the TVS Company recommended for the replacement of the body. It is true that the authorised technician of the opposite parties did not prepared any estimate for this vehicle and it is noted that Ext.A4 estimate is prepared by the authorised technicians of TVS Co. In this aspect opposite parties 1 to 3 mainly relying Ext.B1 report prepared by DW2 in this case. When we examine this Ext.B1 report, that report is a self explanatory report with regard to the details of the damages caused to the vehicle and the said report contains observation and opinion of their finding. Ext.B1(a) is the details of the damage caused to the vehicle it says, “Front end structure of body shell which includes the dash panel, cowl panel, fire wall, apron panels, front panel, etc. where the engine transmission, front suspension, steering assy, etc. mounted are quite intact. Rear portion of bare body shell alone sustained damages and in future there would not be any impact on the operational performance of vehicle by repairing the body shell”. As per Ext.B1(a) the damages caused to the vehicle is clearly mentioned and moreover it is observed that body shell alone sustained damages and there would not be any impact on the condition or performance of the vehicle by repairing the body shell. Ext.B2 and B3 series are photographs related to the damages caused to the vehicle. These photographs are also help us to come to a conclusion that the vehicle caused damages mostly on the rear portion of the vehicle and the front side of the vehicle are quiet intact. The opposite parties 1 to 3 produced and marked Ext.B3 and B4 through DW2 for the purpose of convincing this Forum by showing two similar case status of similarly damaged vehicles in which cases the body shell were repaired and not replaced. The learned counsel appearing for the opposite parties also suggested that Ext.A4 survey report has no authentication since there is no signature of the authorised signatory and the person who alleged to be prepared Ext.A4 has not been examined. Anyway, considering the nature and circumstances of this case we are not giving much important to that kind of suggestions.
9. It is to be noted that the vehicle is still in the workshop of TVS Company for its maintenance. It is come out in evidence to show that there is a dispute existing between the complainant and opposite parties with regard to the nature of work which is to be adopted for the vehicle. In reply to Ext.A4 dated 26.08.2014 service quotation for replacement of the body shell the opposite parties sent a letter to start repair work and recommended spare parts only on 10.10.2014 to TVS Company. The complainant has got knowledge about the nature of the work only on 06.02.2015 from DW3. No doubt, the opposite parties are responsible for the inordinate delay which happened for the intimation of the repair work. It is also to be noted that as per Ext.B6 letter addressed to the complainant DW3 the insurance surveyor and loss assessor of opposite parties 1 to 3 informed the complainant that there is no need of replacement of the body shell and instead it can be repaired by replacing the individual body parts supplied Mahindra Co. As per this letter, DW3 also requested for the continuance of the work by the interest of this Ext.B3. Anyway, it can be inferred that to any extent the complainant was not willing or ready for the continuance of the work without the replacement of the body shell. Therefore, it is also find that the delay caused for the repairment of the vehicle is due to the irresponsibility or baseless demand of the complainant PW1. As per Ext.B9, ‘the inspection of the accident and damage’ dated 15.10.2014 the administrative officer of the opposite parties recommended only a repairment of the body shell and observed that ‘body shell does not warranty replacement. Damages seen on the flow panel can be repaired’. Ext.B10 is a document to show that DW2 Sivan Pillai is a licensed surveyor who is approved by the IRDA. Ext.B11 is the details of the parts and labour recommended for body shell repair for the vehicle in question. As per this report an amount of Rs.94,534.72 is sufficient for the repairment of the vehicle. It is true that the learned counsel appearing for the complainant argued that the repairing of the body shell will highly affected the performance of the vehicle and the repair work of the vehicle may cause future accident and other kinds of damage to the vehicle. Anyway, we are not agreeing with the argument of the complainant’s learned counsel with regard to this issue. However, we find that the inordinate delay caused by opposite parties 1 to 3 with regard to the non intimation of their clear stand caused much inconvenience and difficulty to the complainant. It can be treated as a deficiency in service on their side. But on the other side, we are not agreeing with the complainant for their demand for the replacement of the body shell. In the light of the above discussion and findings, we are of the view that this complaint can be partly allowable. Considering the nature and evidence of the case opposite parties 1 and 3 are subordinate officers of opposite party 1. Therefore, opposite parties 1 to 3 are also jointly and severally liable to the complainant. Hence Point Nos.2 and 3 are found accordingly.
10. In the result, we pass the following orders:
- The opposite parties 1 to 3 are directed to reimburse an amount of Rs.94,534.72 (Rupees Ninety Four Thousand Five hundred and thirty four and seventy two paise only) to the complainant as the insurance coverage of the vehicle bearing Reg.No.KL-03-V-6566 of the complainant with 10% interest from the date of filing of this complaint onwards, i.e. on 02.12.2014.
- Opposite parties 1 to 3 are also directed to pay a compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) and a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of order onwards.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 27th day of June, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member) : (Sd/-)
Appendix
Witness examined on the side of the complainant:
PW1 : Sajan Varghese
PW2 : Sumesh G. Vijayan
PW3 : V.S. Manoj
Exhibits marked on the side of the complainant:
A1 : Legal notice dated 20.11.2014 sent by complainant’s counsel
to opposite parties.
A2 : Postal receipts of Ext.A1.
A3 : Copy of certificate of insurance cum-policy schedule.
A4 : Service Quotation dated 20.08.2014.
A5 : Copy of Registration Certificate.
A6 : Letter dated 27.10.2014 sent by TVS Sundram Iyengar & Sons Ltd.
to the complainant.
A7 : Attested copy of Ext.A6 letter.
Witness examined on the side of the opposite parties:
DW1 : Suresh Babu
DW2 : V.N. Sivan Pillai
DW3 : P.S. Suresh Babu
DW4 : Praseel S.
Exhibits marked on the side of the opposite parties:
B1 : Technical Opinion – Motor dated 30.11.2014.
B2 series : Photos (10 Nos.) of the vehicle.
B3 series : Photocopy of the vehicle (7 Nos.) and Retail invoice
dated 29.08.2014.
B4 series : Photocopy of the vehicle (4 Nos.) and Original pre-invoice
dated 30.09.2014.
B5 : Letter dated 10.10.2014 sent by insurance surveyor to the Works Manager,
TVS & Sons, Pathanamthitta.
B6 : Letter dated 06.02.2015 sent by the insurance surveyor
to the complainant.
B7 : Acknowledgment card.
B8 (subject to proof) : Copy of Form IRDA-7-LF.
B9 : Inspection report dated 15.10.2014.
B10 (Subject to proof) : Renewal license of the surveyor DW2
(suo-moto marked).
B11 : Details of Parts and Labour recorded for body shell repair
dated 27.12.2016.
(By Order)
Copy to:- (1) Sajan Varghese, Kadavil Padinjattethil, Kumbazha,
Kumbazha P.O., Pathanamtmhitta Dist.
Pin – 689 653.
(2) General Manager, National Insurance Co., 3, Middleton Street,
P.O. Box – 9229, Kolkatta – 700 071.
(3) The Chief General Manager, National Insurance Co.,
1st & 2nd Floor, Omana Building, Jew’s Street,
Kochi – 682 035.
(4) The Branch Manager, National Insurance Co.,
Near Govt. Hospital, Pathanamthitta – 689 645.
(5) The Stock File.
