BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 9th of September 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.49/2010
(Admitted on 06.02.2010)
Mr.Udaya Kumar Shetty,
So. Sadiyanna Shetty,
Aged about 49 years,
Ro. Adi Marulu Chikka House,
28 Haladi Post, Kundapura Taluk,
Udupi District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.M.P. Shenoy).
VERSUS
New India Assurance Company,
II Floor, Sri Ram Arcade,
Head Post Office Road,
Udupi 576 101,
Represented by its Chief Manager.
(Advocate for the Opposite Party No.1: Sri.K.S.Udayanarayana).
2. Karnataka Agencies,
Mahendra
Kottara Chowki,
Mangalore
Represented by its Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.O.T. Bhat).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant is the registered owner of a Mahendra Scarpio Car of 2007 model bearing registration No.KA-20-N-5575. The said vehicle purchased from the 2nd Opposite Party. It is stated that, the above said vehicle insured with the Opposite Party No.1 bearing policy No.672201/31/08/01/00003198 and the said policy is valid from 14.09.2008 to 13.09.2009. On 14.04.2009, the above said vehicle met with an accident at a place called Shankarnarayana of Kundapur Taluk. Soon after the accident, the same was reported to the Opposite Party and the Opposite Party in turn deputed the Surveyor to inspect and assess the loss.
The allegation of the Complainant is that, the Surveyor deputed by the Opposite Party has not submitted the correct report.
The authorized dealer/repairer has prepared an estimation to make good the damaged vehicle roadworthy Rs.5,28,713/-. The Complainant further submits that, as per the estimate, the entire body of the vehicle shall be replaced by a new one. According to the technician attached to them, it is impossible to use the said vehicle with its damaged body or even by repairing the body. According to the opinion of the technician experts, the said body of the vehicle turtled and the same cannot be repaired, the only alternative is to replace the damaged body by a new one. Accordingly the dealer/repairer submitted an estimation for replacement of the damaged body at Rs.1,76,062/- and the same was communicated to the Surveyor but the Surveyor ignored the same.
According to the Complainant, to make the vehicle roadworthy, he has to spend Rs.5,28,713/-. The Complainant was anxiously waiting authorization from the Opposite Party to repair the said vehicle but the Opposite Party not communicated their decision and the vehicle has kept idle in the premises of the repairer.
It is further stated that, the Opposite Party wrote a letter in belated stage i.e., on 8.6.2009 has expressed their desire to pay Rs.32,286.86 and rest of the costs of repairs kept silent. Thereafter, having no other option the Complainant issued a legal notice dated 25.9.2009 and called upon the Opposite Party to settle the dues but the Opposite Party failed to comply the same.
It is further stated that, the vehicle is now being kept idle at the premises of the repairer. Apart from that the Complainant availed vehicle loan from the Corporation Bank, Vodera Hobli Branch, Kundapur and paying Rs.17,000/- per month to the loan installment to the said bank. It is stated that, the act of the Opposite Party amounts to deficiency. Hence the above Complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party No.1 to pay to the Complainant the following sums:
a) the value of repairs and costs of replacement of new shell i.e., Rs.5,28,713/-.
b) Damages at the rate of Rs.500/- per day from the date of the accident till the vehicle is made available to the Complainant after making it roadworthy.
c) Directing the Opposite Party No.1 to pay a sum of Rs.17,000/- per month which the Complainant has paid towards loan installments to the bank from 14.04.2009 till the vehicle is made available to the Complainant after making it worth to use.
d) And also claimed Rs.1,01,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 admitted the policy and denied the claim of the Complainant for a sum of Rs.5,28,713/-. The Opposite Party No.1 stated that, the claim made by the Complainant is not correct. The Surveyor who had visited and inspected the vehicle and submitted the report, as per the survey report the Opposite Party is liable to pay Rs.32,286.86 and not more and contended that there is no deficiency and prayed for dismissal of the Complaint.
Opposite Party No.2 who is the dealer of the above said vehicle. It is stated that, the Complainant had purchased the said vehicle from the 2nd Opposite Party, the said vehicle met with an accident and brought to the garage of the 2nd Opposite Party for repair and detailed estimate of the cost of the repairs including replacement of body shell and other related body parts had been prepared and given to the Complainant. It is stated that, this Opposite Party is an unnecessary party to the proceedings and there is no deficiency on the part of this Opposite Party and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Udaya Kumar Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C9 were marked for the Complainant as listed in the annexure. One Sri.Ramachandra D. Baliga (RW1), Senior Divisional Manager of the Opposite Party No.1 and one Sri.T.Dinakar Shanbhog (RW2) – Customer Care Manager of the Opposite Party No.2 filed counter affidavits and answered the interrogatories served on them. The Opposite Party No.1 produced 5 (five) documents as listed in the annexure. Both parties produced notes of arguments.
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) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
From the outset of the records available on the file before this Forum, it is admitted that, the Complainant is the registered owner of Mahendra Scarpio Vehicle of 2007 model bearing registration No.KA-20-N-5575 and the above said vehicle met with an accident on 14.04.2009 at a place called Shankaranarayana, Halady of Kundapura Taluk. The above said vehicle insured with the Opposite Party No.1 bearing policy No.672201/31/08/01/00003198 for a sum of Rs.6,98,477/-. The above said policy is valid from 14.09.2008 to 13.09.2009 (i.e., as per Ex C6). On the date of alleged accident, the above vehicle covered with the Insurance Policy issued by the Opposite Party No.1.
Now the point in dispute between the parties before this Forum is that, after the accident the vehicle was kept for repair with the Opposite Party No.2 who is an authorized repairer/dealer of the above said vehicle. The repairer i.e., Opposite Party No.2 estimated the repair work to make the vehicle roadworthy at Rs.5,28,713/- (i.e. as per Ex C5). It is stated that, the repairer/dealer of the above said vehicle recommended the Complainant for replacement of the damaged body of the vehicle by a new one and the value of the said body stated at Rs.1,76,062/-. The above said fact has been communicated to the Surveyor but the Surveyor ignored the same and the survey report is not correct. It is further contended that, the Opposite Party No.1 not recommended the repairer to repair the damaged vehicle, the vehicle kept unattended from 14.04.2009 till now. Further contended that, on 08.06.2009 Opposite Party No.1 expressed their desire to pay Rs.32,286.86 but they are silent about other repair cost, hence this Complaint.
On the contrary, the Opposite Party No.1 i.e., Insurance Company though admitted the policy but they contended that the Surveyor who had visited and submitted the report had opined that the damages alleged to be sustained to the insured vehicle can be repaired and the said damages are repairable and the replacement is uncalled for and contended that as per the survey report the Opposite Party has offered Rs.32,286.86 is correct and there is no deficiency.
The Complainant filed affidavit by way of evidence and produced Ex C1 to C9. Opposite Party No.1 and 2 also filed evidence by way of affidavit and produced five documents.
On careful scrutiny of the oral as well as documentary evidence available on record, we find that, the Complainant is the registered owner of the above said vehicle met with an accident on 14.04.2009. The above said vehicle was covered under the policy issued by the Opposite Party No.1 in this case. It could be seen that, one Sri.M.K.Vazhunnavar, Surveyor and Loss Assessor assessed the loss and submitted his report dated 21.09.2009 (i.e., document No.4) reveals that, the repairer i.e., the authorized repairer Karnataka Agencies issued an estimate for repair of the vehicle to make roadworthy condition estimated Rs.5,28,713/- in this case. The Surveyor appointed in this case observed the following damages as under:-
front bumper RH side corner suffered crack, bent and deep scratches. Fr.hood got offsetted/misaligned. Fender panel R.H.S got pressed offsetted. Door assly. Fr.R.H.S affected falling impact pressing, suffered bent of upper window frame and multiple dents at lower shielded portion. Door assly. Rear R.H.S severely got pressed at its full stretch, bent deshaped. Panel fr. “A” pillar R.H.S suffered deep pressing bent offset. Fr.windshield glass severely brittle cracked. Glass door windows fr. And rear R.H.S broken damaged. Panel “B” pillar middle R.H. side deeply pressed, bent offsetted. Panel rear qtr.R.H.S suffered pressing stretch and multiple dents. Panel roof top recognized as severely got notched at R.H side edge deeply stretched/bent deshaped. Lining roof recognized as bulged and developed multiple crack. Floor sill panel R.H side middle portion recognized as affected impact pressing, bent offsetted. Step body side R.H deeply pressed, severely bent offsettled.
Apart from the above observation, the surveyor also noticed/observed in his opinion in Page No.2 that the parts of the Body Shell Assly claimed for replacement as per the repairer’s estimate can be economically repaired/reinstated within the scope of terms and conditions of the policy and he has suggested with the repairer to repair and reinstate the Body Shell Assly claimed for replacement by using sub assly parts wherever available/supplied by the principle/manufacturer. Further observed that, the repairer refrain to engage the job due to pre-occupation and also want of advise from the insured to take up the repair job. And further in page No.3 the very same surveyor stated that, the repairer served a letter to the insured dated 9.5.2009 suggesting that the repair/reconditioning of the body Shell Assly will not retain the original shape/strength due to reworking with non-available parts of the Body Shell Assly as per the manufacturer’s parts catalogue. And further stated that, he had orally negotiated with the insured suggesting to advise the repairer to undertake repair of the Body Shell Assly with available parts approximately work out Rs.32,000/-. And finally he had opined that, it could be economically repaired/reinstated by using the available sub assly parts and estimated the other damage to the tune of Rs.1,39,160/-.
From the outset of the above stated survey report, it is amply clear that, the body shell assly of the vehicle was damaged in the above said accident and the repairer estimated the cost of the replacement of the Body Shell Assly to make the vehicle roadworthy condition and wrote a letter dated 9.5.2009 suggesting that the repair/reconditioning of the Body Shell Assly will not retain the original shape/strength due to reworking with non-available parts of the Body Shell Assly as per the manufacturer’s parts catalogue. When that being the case, the surveyor cannot compel the repairer to repair the Body Shell Assly with available parts and cannot suggest the insurer/insured/repairer to repair the Body Shell Assly to deprive the legitimate claim of the Complainant under the policy. When the repairer expressed his opinion by way of letter dated 9.5.2009, that the repair/reconditioning of the Body Shell Assly will not retain the original shape/strength, then what is the point in repairing/reinstating/reconditioning by using the available sub-assly. The opinion of the surveyor in this regard is suffers from surmises and not justifiable.
No doubt, the surveyor is an independent person shall issue a report without any bias, we mean to say that the survey report should not be one sided. In the instant case, the Opposite Party Company contended that, surveyor being an expert, his opinion is final on the subject which needs to be accepted by us. Invariably the Insurance Companies at the time of settlement of the claims take shelter of the report of the Surveyors taking a plea that they are experts and that whatever they have suggested is the last and final word. In fact, the Surveyors are neither experts nor the opinion recorded by them in their reports are final and binding on the insured. An Insurance Surveyor is required to give detailed reasons for disallowing or partly allowing the claim preferred by an insured.
In instant case, apart from the survey report, our attention was drawn towards the evidence led by the Opposite Party No.2 who is the repairer/dealer of the above said vehicle and also party to the proceedings in this case. The Opposite Party No.2 in answer to the interrogatories No.3 served by the Complainant categorically admitted that, as per the opinion of the technical experts damaged body cannot be repaired and the same should be replaced with a new one to make it roadworthy. That itself shows that, the body shell of the above said vehicle cannot be repaired as suggested by the surveyor/insurer in this case.
Under the above circumstances, we hold that, the surveyor appointed in this case is failed to consider the replacement of the body shell assly of the damaged vehicle shows that his report is not holds good in this regard. Rest of the spare parts are concerned, the surveyor assessed the loss by mentioning the itemwise spare parts and applying depreciation as per the policy condition is acceptable, in view of the above discussion we hold that, the report of the surveyor partly allowed. The Ex C5 is the estimate issued by the repairer shows that to replace the body shell the repairer estimated at Rs.1,76,062/- and labour charge estimated at Rs.8,500/-. The Ex.C7 is the letter written by the Opposite Party Company to the Complainant shows that the divisional office of the Opposite Party No.1 referred the matter with regard to the replacement of the body shell to their regional office but the same has been not considered by their regional office in this case. The act of the regional office of the Opposite Party company shows that without applying their mind, blindly rejected the claim and directed the Divisional Office to consider for repair of the body shell assly.
However, surveyor appointed in this case issued a clarification in respect of the above claim and clarified the difference of loss assessment on replacement of body shell or repair/reconditioning the same by using the sub assly parts available with the dealer, for replacement of the body shell assly considered Rs.1,68,359.28 after making depreciation at 15% and VAT at 12.5% as against Rs.1,76,062/- and for repair of the body shell assly considered Rs.32,286.86 after making depreciation at 15% (i.e., as per document No.3). It is pertinent to note that, while considering the above report, the Regional Office of the Opposite Party Company picked up to recommend the insured to go for repair/ reconditioning because the amount shown by the surveyor is Rs.32,286.86. The act of the officials of the Opposite Party Company is not correct and which amounts to deficiency in service.
In view of the above discussion, we hold that, the case of the Complainant appears to be genuine and the Opposite Party No.1 Company without considering the replacement of the Body Shell even though the repairer stated that it cannot be repairable, the Opposite Party No.1 not recommended for the repairer to replace the Body Shell by indemnifying the same amounts to deficiency and the offer made by the Opposite Party Company in this case is not legally justifiable.
We have further observed that, the Complainant availed bank loan from the Corporation Bank to purchase the vehicle. The above said vehicle admittedly met with an accident on 14.04.2009 and still the vehicle is lying with the repairer, it shows the act of the Opposite Party No.1. Since the vehicle lying with the repairer the Complainant is liable to pay demurrage charges to the repairer/dealer in this case is proved. By considering the case on hand, we find that, the Complainant is considerably compensated for the pain and mental agony apart from the financial loss suffered by him. The Opposite Party No.1 being an insurer cannot act according to their whims and fancies, they must consider the claim with honest approach. We further observed that, the Opposite Party Company not produced the interim survey report dated 20.5.2009 issued by the Surveyor which contains page No.1 of 12. The Opposite Party No.1 produced only 2 pages and concealed the rest of the pages and also the 3 number of photographs showing the extent of damage suffered to the vehicle. This act of the Opposite Party No.1 officials shows that they are concealing the documents before the Court of Law by producing two pages. Further the Surveyor who appointed in this case also not examined in order to substantiate their case before this Forum. In view of the above attitude of the officials of the Opposite Party No.1, we hold that, they are not honest while settling the claim of the Complainant.
In view of the foregoing reasons, we are of the considered opinion that, the Opposite Party No.1 i.e., New India Assurance Company represented by its Divisional Manager is hereby directed to pay the loss assessed by the Surveyor i.e., Rs.1,39,160/- towards the cost of the spare parts which includes labour charges. In addition to that, Rs.1,68,359.28 towards the cost of the replacement of the body shell assly plus labour charges Rs.8,500/- along with interest at 10% p.a. from the date of accident till the date of payment. Apart from the above, the Opposite Party No.1 is hereby directed to pay Rs.500/- per day towards the demurrage charges payable to the repairer by keeping the vehicle in repairer’s place from the date of accident till the date of repair i.e., as claimed by the repairer from the Complainant and also pay Rs.25,000/- as compensation towards the inconvenience, mental agony and financial loss suffered by the Complainant. And further Rs.1,000/- awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
Out of the above, the Opposite Party No.1 i.e., New India Assurance Company is at liberty to attach the compensation amount from the concerned erred official’s personal earnings because the Insurance Company should not be unnecessarily burdened for the lapse committed by the particular officer especially in this case and may be reported to the Head Office of the Company.
The Complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 i.e., New India Assurance Company represented by its Divisional Manager is hereby directed to pay a total sum of Rs.3,16,019.28 (Rupees three lakh sixteen thousand nineteen and paise twenty eight only) along with interest at 10% p.a. from the date of accident till the date of payment to the Complainant. Apart from the above, the Opposite Party No.1 is directed to pay Rs.500/- (Rupees five hundred only) per day towards the demurrage charges payable to the repairer by keeping the vehicle in repairer’s place from the date of accident till the date of repair i.e., as claimed by the repairer from the Complainant and also pay Rs.25,000/- (Rupees twenty five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses. The Opposite Party No.1 is at liberty to recover the above said compensation amount from the concerned officer’s earnings and report it to the Head Office of the Opposite Party Company. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.2 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 15 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9th day of September 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Udaya Kumar Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 25.09.2009: Lawyer’s notice sent to the Opposite Party No.1 on behalf of the Complainant.
Ex C2 – : Postal receipt.
Ex C3 – : Postal acknowledgement.
Ex C4 – 12.10.2009: Reply by the Opposite Party No.1.
Ex C5 – 21.04.2009: Estimation issued by Karnataka Agencies i.e., Opposite Party No.2.
Ex C6 - : Copy of the Insurance Policy bearing No.672201/ 31/08/01/00003198 for the period from 14.09.2008 to 13.09.2009.
Ex C7 – 16.06.2009: Notice issued by the Opposite Party No.1 to the Complainant.
Ex C8 – 09.05.2009: Letter addressed by the Karnataka Agencies to the Complainant.
Ex C9 – 28.05.2009: Letter addressed by the Corporation Bank to the Opposite Party No.1.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Ramachandra D. Baliga, Senior Divisional Manager of the Opposite Party No.1.
RW2 – Sri.T.Dinakar Shanbhog – Customer Care Manager of the Opposite Party No.2.
Documents produced on behalf of the Opposite Party No.1:
Doc. No.1: : Copy of the policy.
Doc. No.2: 20.05.2009: Copy of the Surveyor’s report.
Doc. No.3: 08.06.2009: Clarification by the Surveyor.
Doc. No.4: 21.09.2009: Final Motor survey report issued by Mr.M.K. Vazhunnavar, Surveyor and Loss Assessor.
Doc. No.5: 16.06.2009: Letter of the Opposite Party No.1 to the Complainant.
Dated:09.09.2010 PRESIDENT
