IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<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 /> CC 377/09 DATED 16.12.2009<br /> ORDER<br /> <br /> Complainant Fairoz Ahmed,<br /> S/o Mohammed Abdul Jaleel, Timber Merchant, K.P.Mohalla, Chamarajanagara.<br /> (By Sri. N.Mudduraja, Advocate)<br /> Vs. <br /> Opposite Parties 1. The Divisional Manager, <br /> Oriental Insurance Co.Ltd., Divisional Office, New Muslim Hostel Complex, 1st Main Road, Saraswthipuram, Mysore.<br /> 2. The Oriental Insurance Co.Ltd., DO 10, Dwaraka, 2nd Floor, 79, Uttamar Gandhi Salai, Chennai (TN) – 600034.<br /> 3. Shri Ram Transport Finance Co.Ltd., No.133, 2nd Floor, Shika Towers, Ram Vilas Road, Mysore.<br /> (By Sri.Jaganath Suresh Kumar, Advocate for O.P.1 and 2<br /> and O.P.3 - Deleted)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 12.10.2009<br /> Date of appearance of O.P. : 27.10.2009<br /> Date of order : 16.12.2009<br /> Duration of Proceeding : 1 MONTHS 19 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint against the opposite parties, seeking direction to pay in all Rs.1,83,000/- towards cost of the repairs of the vehicle as well as compensation with interest.<br /> <br /> 2. In the complaint, it is alleged that, the complainant was owner of the goods carrier No.KA-10-B-1566. It was insured with opposite parties under policy NO.412000/31/2007/21640, valid from 11.02.2007 to 10.02.2008. On 02.07.2007, the vehicle met with accident within the limits of Kolattur police station. The crime was registered with the police. Accident and the damage to the vehicle was informed by the complainant to opposite parties. The authorized surveyor of the opposite parties inspected the vehicle and assessed the damage. The vehicle was left for repairs at National Went Top Garage, Bangalore. They estimated the cost of the repairs at Rs.1,23,000/-. Along with claim form, said estimate was submitted to opposite parties. In spite of requests made by the complainant, claim has not been settled. It is stated that, the complainant availed loan from Sriram Transport Finance Company Ltd., on the vehicle and because, the opposite parties delayed payment of the damages, the vehicle remained in the garage and hence, the complainant sustained loss etc., Hence, it is prayed to allow the complaint.<br /> <br /> 3. The opposite parties in the version, admitted that, the vehicle in question was insured and that it met with an accident. It is stated that in the regular course of business, claim form was issued enabling the complainant to submit it. On 25.07.2007, along with estimate, claim form was submitted. The estimate included cost of spares, labour charges, painting etc., It was on higher side. The opposite parties arranged for detailed survey and assessment of the actual loss by appointing the surveyor. Accordingly, surveyor surveyed and assessed the loss of the vehicle, which was lying in a garage at Mysore at Rs.71,500/- as per report dated 29.10.2007. The complainant decided to get the vehicle repaired at Bangalore instead of Mysore. On 29.10.2007, the surveyor submitted re-inspection report after inspecting the vehicle after the repairs were carried out. The actual loss was calculated at Rs.53,089/-. Further, it is stated that, the complainant executed no objections letter to the opposite parties to settle the claim in favour of the financier. Accordingly, the amount has been paid. Other allegations in the complaint are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and certain documents are produced. On the other hand, for the opposite parties an officer has filed his affidavit and certain documents are produced. We have heard the advocates for complainant and opposite parties and perused the records.<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 parties and that he is entitled to the reliefs sought?<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:- Most of the facts are admitted. The complainant claims actual loss to the vehicle at Rs.1,23,000/-, whereas the opposite parties contend that surveyor has calculated and arrived the actual loss at Rs.53,089/-.<br /> <br /> 8. In support of the claim made in the complaint, the complainant has produced Xerox copy of certain bills issued by National Went Top Garage, Bangalroe as well as Sri Vinayak Body Labour Works and towards purchase of some spare parts. In this regard, advocate for the opposite parties submitted that, those bills were taken into consideration and the surveyor has considering the cost as per the bill and the amount allowed, assessed the loss at Rs.53,089/-. The learned counsel with reference to said calculation made in this scrutiny form made detail submission.<br /> <br /> 9. However, it is relevant to note that, earlier, the vehicle was left for repair in a garage at Mysroe and the estimation was submitted for more than Rs.3,00,000/-. At that time, the authorized surveyor and loss assessor of the opposite parties inspected the vehicle and submitted the estimation at Rs.71,500/-. Thereafter, from Mysore, the vehicle was shifted to Bangalore and it was repaired there.<br /> <br /> 10. Advocate for the complainant submitted that, even as per the survey report of the opposite parties, the loss was assessed at Rs.71,500/-. But, later it has been reduced to Rs.53,089/- only. The survey report which is on record is not disputed. In the third paragraph of the version, it is stated that, the surveyor has assessed the loss at Rs.71,500/- by discussing with the repairer and the insured and has given detail report after considering the actual spares to be replaced and the actual repairs that was necessary taking into consideration, the price quoted by the dealer and the parts required and so also, maximum labour charges, after discussion, recommended settling the matter on repair basis. Considering this and other material on record, the said survey report shall have to be accepted.<br /> <br /> 11. As regards, payment of the amount to the financier, in fact, the complainant has given no objection letter and hence, the complainant may not have any grievance in this regard. It is true, that as admitted by the opposite parties, claim was made on 25.07.2007 and there is inordinate delay in settling the claim. Though certain reasons are assigned that in the accident the travelers sustained injuries and that there was investigation etc., that cannot be a ground for delay in settling the claim. Hence, as per the survey report, the loss is assessed at Rs.71,500/-. Whereas the opposite parties made payment of Rs.53,089/- only and thus a sum of Rs.18,411/- remains unpaid. The opposite parties are laible to pay this amount with interest. As regards, the claim of the complainant that he sustained loss on account of the vehicle remained in garage as the opposite parties did not settle the claim, is not substantiated with evidence.<br /> <br /> 12. Learned advocate for the complainant relied on the ruling reported in II (1991) CPJ 6). The Hon’ble Gujarath State Commission in this case has held that, on account of delay in settling the claim, the complainant was entitled for compensation with interest. In that case, the loss was assessed on the basis of total loss and hence, the it was found, why the insurance company took long time to settle the claim. But, in the case on hand, loss is assed on total loss basis. However, as considered here before, for delay in settling the claim, we are awarding the interest. One more ruling reported in I (2008) CPJ 188 is relied upon. In this case, Hon’ble National Commission has held that, market value or insured amount, whichever is less only can be awarded. It was the case of total loss. Such are not the facts of the case on hand. Hence, this ruling will not help the complainant.<br /> <br /> 13. Considering the facts and the discussion made here before, our finding on the point is partly in affirmative.<br /> <br /> 14. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite parties jointly and severally are hereby directed to pay Rs.18,411/- with interest at the rate of 12% p.a. from date of claim, within a month from the date of this order.<br /> 3. Further, opposite parties are jointly and severally directed to pay a sum of Rs.2,000/- to the complainant towards cost of this proceedings.<br /> 4. 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 16th December 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 />