IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 116/09 DATED 29.10.2009<br /> ORDER<br /> <br /> Complainant Smt.Sithe Fathima, <br /> W/o M.A.Ayub Khan, R/at No.283, 6th Cross, Siddiqui Nagar, Mysore.<br /> Office situated at S.A.Transport, Head Office, at No.113, 7th Cross, Siddiqui Nagar, Bannimantap B Layout, Mysore.<br /> <br /> (By Sri. B.G.S., Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager,<br /> New India Assurance Co.Ltd.,<br /> R.P.Road Extension,<br /> Nanjangud-571301, Mysore Dist.<br /> <br /> (By Sri. Jaganath Suresh Kumar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.03.2009<br /> Date of appearance of O.P. : 29.04.2009<br /> Date of order : 29.10.2009<br /> Duration of Proceeding : 6 MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking a sum of Rs.3,77,493/- towards damage caused to her lorry in the accident from the opposite party with interest thereon.<br /> <br /> 2. Amongst other facts in the complaint, it is alleged that, the complainant is the owner of lorry No.KA-09-A-5667 insured with the opposite party under policy No.671005-31-07-01-782, valid from 01.06.2007 to 31.05.2008. On 23.02.2008 at 4.00 am near Krishnagiri, the vehicle met with an accident. Severely, it was damaged. Incident was reported to police, as well as to the opposite party. Surveyor employed by the opposite party made spot survey. The vehicle was shifted to garage of TV Sundaram Iyenger and Sons, who issued estimation of the repairs. As per the estimation of the surveyor, and the estimation given by the workshop amounting to Rs.4,10,000/-, complainant submitted claim petition to opposite party. Then, opposite party appointed P.Ravikumar, Surveyor and Loss assessor, who conducted the survey on 03.03.2008 and submitted final report. The complainant was directed to proceed with the repairs of the vehicle. The complainant took possession of the vehicle from the garage making payment of in all Rs.3,39,993/-. Complainant sent all the bills on 10.07.2008 to the opposite party. The opposite party had promised to pay the compensation. The opposite party called upon the complainant, stating that Surveyor has not submitted all bills of repairs and the complainant wrote to the surveyor in the matter. The opposite party did not settle the claim. On 14.10.2008, legal notice was sent to opposite party. On 17.11.2008, complainant received letter with voucher from opposite party, stating that they enhanced the compensation of Rs.1,57,000/-, but it is not settled the genuine claim of the complainant. Again, legal notice was sent, which has not been complied and hence, the present complaint.<br /> 3. The opposite party in the version, has admitted the fact that the lorry of the complainant was duly insured, which met with an accident and damaged and on the said date, there was valid insurance policy. However, it is stated that, the liability is in accordance with terms and conditions of the policy. It is stated that, K.S.Ravichandran conducted spot survey on 23.02.2008 and submitted his report on 01.03.2008. Then, complainant submitted claim form along with estimate issued by the garage, which includes cost of spare parts, labour charges and painting. It was on higher side. Then, opposite party arranged for detail survey and assessed the actual loss appointing M/s Welldone Associates licensed surveyor and loss assessor, who has assessed the loss at Rs.1,53,838/-. Another Surveyor reinspected the vehicle and submitted report. It is stated that, the complainant has escalated the bills in order to make higher claim. Also, it is stated that, the complainant further submitted certain bills on which, claim was enhanced to Rs.1,57,000/-. That has not been accepted by the complainant. It is stated that, the complainant did not submit the bills immediately. Certain bills were not acceptable. Also, complainant did not surrender the whole parts of the vehicle in spite of the requests. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the claim, the complainant has filed her affidavit and has produced several documents. Further, for the complainant, the surveyor P.Ravikumar has been examined for the complainant. On the other hand, for the opposite party Assistant Manager has filed his affidavit, wherein certain facts with reference to the version are stated. For the complainant also, certain documents are produced. Advocate for opposite party has filed written arguments. Also, we have heard him and the learned advocate for opposite party and perused the material on record.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that she is entitled to any reliefs?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- Without repeating the facts and the contentions of the parties, straight away, we may proceed to consider the loss caused to the lorry of the complainant and the compensation that she is entitled to.<br /> <br /> 8. On the basis of the report submitted by the surveyor and loss assessor, the opposite party settled the claim of the complainant at Rs.1,57,000/-. That has not been accepted by the complainant. On the basis of the estimate, supported by the bills, the complainant has claimed Rs.3,77,493/-.<br /> <br /> 9. The Assistant Manager of the opposite party in his affidavit has stated that, on the basis of the survey report, they have assessed the loss at Rs.1,57,000/-. Said surveyor has been examined for the complainant. In the chief-examination, this witness P.Ravikumar states that, his report does not contain entire repair charges. It is stated, the primary estimation was Rs.4,10,000/-. Further, he states, total estimation is correct. So also, the damages found are correct. Hence, amongst other facts on the basis of the statement of this surveyor, the complainant claims, the claim that she had made is correct.<br /> <br /> 10. But, the said surveyor in the cross-examination amongst other facts has admitted that in the preliminary estimation, unwanted items were included and charges were inflated. Hence, he states taking into account of those aspects, he arrived at Rs.1,53,886/-. Also, he states, after dis-mantling the vehicle, he has not seen supplementary estimation. However, he admits while he submitted the report, vehicle was dismantled. He admits and states, after vehicle was dismantled, he has taken photographs. Also, he states, he has mentioned in the report whatever the damages after dismantling the vehicle. Ultimately, the witness states whatever report he had given is correct.<br /> <br /> 11. Thus, safely, we can conclude that the said surveyor in the chief-examination fully supports the complainant. Whereas in the cross-examination has sticked up to his report, supporting the opposite party. Advocate for the complainant re-examined the witness, who has stated his report is not complete assessment of the damage. Then, with permission, witness was further examined by the learned advocate for opposite party and he admits, in his report he has not stated that, it is incomplete. Under the circumstances, we are of the opinion that, the said report as well as the evidence of the witness needs strict scrutiny and safely, it cannot be believed and accepted.<br /> <br /> 12. Since, the affidavit evidence of the Assistant Manager of the opposite party is mainly based on the surveyor report of the witness noted above, is of not much relevant to assess the loss. On the other hand, the complainant has narrated all facts regarding the loss and damage and she has produced several bills and receipts and the amount paid to the garage.<br /> <br /> 13. The surveyor in the cross-examination has stated that, normally in the estimation, the repairers quote higher charges and certain parts not required to be replaced. In this case, the estimation was for Rs.4,00,000/-. The statement of the witness that the repairers quote higher charges or that certain parts not required to be replaced will be included, cannot be brushed aside. Hence, taking into consideration of the said estimation, as well as other facts, and material on record, under the circumstances, we feel it just to assess the loss at Rs.2,50,000/-. <br /> <br /> 14. Learned advocate for the opposite party submitted that opposite party is not liable to pay interest since the complainant did not receive the amount offered. In this connection, it is relevant to note that, the complainant had several correspondence with opposite party and there is lot of delay in getting the survey report from the surveyor by the opposite party and not only that in spite of several requests made by the complainant including the legal notice, the opposite party did not come forward to pay any amount and the said offer was made only after the complainant had sent legal notice. Under the circumstances, we are of the opinion that, the opposite party is liable to pay interest.<br /> <br /> 15. Accordingly we answer the point partly in affirmative.<br /> <br /> 16. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.2,50,000/- compensation to the complainant along with interest at the rate of 12% p.a. from the date of the claim made by the complainant, till entire amount is paid or realized.<br /> 3. The opposite party is hereby directed to pay the said amount within a month from the date of this order.<br /> 4. Further, the opposite party is hereby directed to pay a sum of Rs.2,000/- to the complainant towards cost of the proceedings.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 29th October 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />