D.O.F:26/03/2015
D.O.O:10/03/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.79/2015
Dated this, the 10th day of March 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M: MEMBER
SMT.BEENA.K.G : MEMBER
Muhammad.P.A aged 45 years
S/o Abbas,
Moonnamkadavu House, Periya village : Complainant
Hosdurg Taluk, P.O Periya – 671316
Kasaragod.
(Adv: P. K. Chandrashekaran Nair & Bindu.P)
And
1. The Manager,
Oriental Insurance Company Ltd
Branch Kottachery, P.O Kanhangad – 671315
Kasaragod District.
(Adv:. A.K.V. Balakrishnan) : Opposite Parties
2. M/S VPK Motors (P) Limited
Amana Toyotta
NH 17, P.O Periya , 671317
Periya Village , Hosdurg Taluk,
Represented by its Manager(Administration and purchase)
Mr. T. K. Shafi, 52 years, S/o Muhammed.O.C
R/at Periya, Periya Village
Hosdurg Taluk , Kasaragod.
(Adv: V.Mohanan)
ORDER
SRI.RADHAKRISHNAN NAIR.M: MEMBER
The complaint is filed under section 12 of the Consumer Protection Act, 1986 (as amended)
The facts of the case in brief is that the complainant is the owner of Toyotta Fortuner car bearing No - KL 18- F - 7009. The Vehicle was insured with the opposite party with policyNo.441669/31/2015/2566.
The car met with an accident and the same was taken to Toyotta service centre at Periya , where it was kept for repair. There after a claim petition is lodged with the opposite party and the opposite party entrusted the matter to an authorised surveyor, who assessed the damages. lt is submitted that a sum of Rs. 11,50,000/- was required for the repair as per the oral estimate given by the surveyor. The Toyotta work shop authorities informed the complainant that they have completed the repair work and demanded the charge amount , which is more than Rs.11,50,000/- including the rent of Rs.200/- per day for keeping the vehicle in their workshop .The complainant already paid Rs.20,000/- towards taxi charges for his travel. The complainant approached the opposite party several times and requested to settle his claim. The opposite party didn't come forward to settle the claim inspite of Lawyer's regd. notice. Hence this complaint is filed for a direction to the opposite party to pay the repair charge of 11,50,000/- and a compensation of Rs.25,000/- for mental agony and costs.
The opposite party No.1entered appearance through their counsel ,who filed written Version.
As per the version of the opposite party No.1 the complaint is unbelievable, false , and not maintainable either in law or on facts and made without any basis. The facts stated in the complaint is a created story only to get the claim amount. Actually the accident was occurred on 18. 09.2014 . There after the complainant fraudulently availed an insurance policy on 19.09.2014 and intimated the opposite party No .1 about the accident .The complainant didn't stated the date of accident and there is no deficiency of service on the part of opposite party No .1. As per the investigation conducted by the opposite party No .1 the vehicle met with accident on 18.09.2014 at Chedikkundu and it was removed from the place , to Toyotta work shop Periya , using crain , durig night.
At that time there was no insurance coverage. Without prejudice the opposite party No.1 submitted that the amount of damages shown in the complaint is highly excessive and unreasonable. Since the complainant had obtained the policy by suppressing the accident occurred on 18.09.2014 he is not entitled for any amount and the complaint is Iiable to be dismissed.
Originally there was only one opposite party and there after the opposite party No. 2 filed IA 155/2020 to implead themselves as supplemental opposite party No .2 , which was allowed.
The opposite party No. 2 filed version. As per the version of the opposite party No. 2 , the complaint is false frivolous vexatious and not maintainable in law . The complaint is filed with a created story standing behind the opposite party No. 2. The complainant entrusted his wholly damaged vehicle with opposite party No. 2 , for repair and accordingly the Vehicle was repaired. The total repair charge was Rs.10,95,119/- The Complainant failed to take back the Vehicle from the premise of opposite party No. 2 paying the repair charge inspite of repeated demands. Therefore the opposite party No. 2 was constrained to file OS No.3/2018 before Sub Court Hosdurg for recovery of money which was decreed as per the Judgment dated 20 08 2018 directing the complainant to pay Rs. 13,11,937/- with 10% interest on Rs.10,95,119/- from the date of suit till realisation from the defendant (complainant herein ) and his assets.
The opposite party No. 2 also filed IA 170 / 2018 for interim attachment of the above said vehicle before judgement , which was allowed. After the decree and Judgment opposite party No. 2 filed EP No.47 / 2018 for realisation of Rs.16,05,385/- with future interest .
The above said attached Vehicle of the complainant has been sold in public auction on 12 03 2020 and the opposite party No. 2 was the auction purchaser. The sale consideration was Rs.5,01,000/- . The sale was confirmed by the court on 18.03. 2020 and accordingly the EP was closed.
As such the opposite party No. 2, being the auction purchaser, is the present owner of the above mentioned Vehicle and also entitled to get the balance decree amount with interest from the complainant here in. So if at all this commission finds that the complainant is entitled for any amount, the same is Iiable to be paid over to the opposite party No. 2 alone.
The Complainant filed proof affidavit in Iieu of chief examination and marked documents as Ext. A 1 to Ext. A 8 and he was cross examined as PW 1. Another witness PW 2 was also examined from the side of the complainant. The Ext - A1 is a copy of the Copy of RC in the name of complainant, Ext A 2 is the copy of the Driving License, Ext. A3 is the copy of the Insurance Policy, Ext. A4 is the Receipt for Premium , Ext. A5 is the Bill Invoice dated 29.11.2014 issued by opposite party No.1, Ext. A6 is the copy of Lawyer's Notice issued to opposite party No.1 by the complainant, Ext. A 7 is the Postal acknowledgement. There after the complainant produced a document which is marked as Ext A8 subject to objection, the Ext A8 is a Job order dated: 18/09/2014inrespect of the vehicle of a person namely. Rajagopalan.
From the side of opposite party No.1, its Administrative officer is examined as DW-1 and Documents Ext. B1 to B10 are marked. Ext. B1 is the copy of Insurance Policy. Ext. B2 is the Report of Insurance investigator, Ext. B3 to B5 are the statements of witnesses recorded by Investigator, the Ext. B6 is the copy of the register showing the details of vehicles came to the opposite party No. 2 show room . The Surveyor is examined as DW 2 and the Survey Report is marked as Ext B7. An independent witness named Samseer is examined as DW3. The Manager of the opposite party No. 2 was examined as Dw 4 .The security guard of opposite party No. 2 was examined as DW - 5. The Opposite Party No:2 produced and marked documents Ext B8 to B11 Ext B8 and B9 are judgement and decree in O.S.No.3/2018 on the file of Sub Court Hosdurg and Ext B 10 is the CC of the E.P 47/2018 and Ext B 11 is the final order in EP 47/2018.
Based on the pleadings and evidence of the rival parties in this case the following issues are framed for consideration.
- Whether there is any service deficiency or unfair trade practice on the part of any of the opposite party
- Whether the complainant is entitled for the insurance amount?
- Whether the insurance amount can be paid to opposite party No. 2 as claimed?
For convenience, all the above issues are discussed together.
The specific case of the complainant is that his car met with an accident and the same was taken to Toyotta service centre at Periya , where it was kept for repair. There after a claim petition is lodged with the opposite party No.1 and the opposite party No.1 entrusted the matter to an authorised surveyor, who assessed the damages. lt is submitted that a sum of Rs. 11,50,000/- was required for the repair as per the oral estimate given by the surveyor. The Toyotta work shop authorities informed the complainant that they have completed the repair work and demanded the charge amount which is more than Rs.11,50,000/- including the rent of Rs.200/- per day for keeping the vehicle in their workshop . The complainant already paid Rs.20,000/- towards taxi charges for his travel. The complainant approached the opposite party several times and requested to settle his claim.
The opposite party No 1 contested the case on the ground that the facts stated in the complaint is a created story only to get the claim amount. Actually the accident was occured on 18. 09.2014 . There after the complainant fradulently availed an insurance policy on 19.09.2014 and intimated the opposite party No .1 about the accident .The complainant didn't stated the date of accident and there is no deficiency of service on the part of opposite party No .1.
As per the investigation conducted by the opposite party No .1 the vehicle met with accident on 18.09.2014 at Chedikkundu and it was removed from the place, to Toyotta work shop Periya, using crain, durig night. At that time there was no insurance coverage. Without prejudice the opposite party No.1 submitted that the amount of damages shown in
The complaint is highly excessive and unreasonable. Since the complainant had obtained the policy by suppressing the accident on 18.09.2014 he is not entitled for any amount and the complaint is Iiable to be dismissed.
So the main question is that whether the vehicle had a valid insurance at the time of the accident. The insurance policy Ext A3 (Ext. B1) is issued on 19-09-2014. As per the claim of the complainant the Vehicle met with accident on 05.10.2014. But the opposite party No.1 states that as per the investigation conducted by the opposite party No.1 the vehicle met with accident on 18.09.2014 at Chedikkundu and it was removed from the place, to Toyotta work shop Periya , using crain , durig night. At that time there was no insurance coverage.
The opposite party No. 1 could not prove this aspect by adducing reliable evidence. The investigator who prepared the Report document Ext. B 2 is not examined as he is no more. Independant witness DW - 3 who was alleged to be given statement to the investigator didn't support the version of opposite party No.1. The other witness DW3 and DW4 also didn't support opposite party No.1. Instead the DW - 3 who is the Service Manager of the work shop would depose that the Vehicle which was brought on 18. 09.2014 was taken out on the very same day. He would also depose that the Vehicle was again taken to work shop on 6.10.2014. The insurance policy Ext A3 (Ext. B1) is issued on 19-09-2014. The opposite party No.1 could not explain the circumstance as to how they issued an insurance policy on 19.09.2014 , for a completely damaged vehicle which was taken to the workshop using crain. The opposite party No.1 argue that the insurance policy was fraudulently obtained by the complainant by suppressing the accident. But the opposite party No.1 didn't cancell that fraudulently obtained Policy till date. Therefore this commission is of the view that the complainant is entitled for the insurance benefit for the repair of the Vehicle.
The complaint is filed for a direction to the opposite party to pay the repair charge of 11,50,000/- and a compensation of Rs.25,000/- for mental agony and costs. The work shop manager , the opposite party No. 2 here in states that the total repair charge was Rs.10,95,119/- As per the Ext. B7, the report of the surveyor who inspected the Vehicle assessed the total damages to the tune of Rs.9,09,796/- Considering the facts and circumstance of the case this commission is of the view that the complainant is entitled for the amount Rs.9,09,796/- as insurance benefit. Since that amount was not allowed to the complainant, it is clear that there is service deficiency on the part of opposite party No.1. due to which the complainant suffered great hardships and loss. The complainant estimates the loss to the tune of Rs. 25,000/- This is a reasonable amount.
Here the opposite party No. 2 states that the complainant entrusted his wholly damaged vehicle with opposite party No. 2 , for repair and accordingly the Vehicle was repaired. The total repair charge was Rs.10,95,119/- The Complainant failed to take back the Vehicle from the premise of opposite party No. 2, paying the repair charge inspite of repeated demands. Therefore the opposite party No. 2 was constrained to file OS No.3/2018 before Sub Court Hosdurg for recovery of money which was decreed as per the Judgment dated 20 08 2018 directing the complainant to pay Rs. 13,11,937/- with 10% interest on Rs.10,95,119/- from the date of suit till realisation from the defendant (complainant here in ) and his assets. The opposite party No. 2 also filed IA 170 / 2018 an for interim attachment of the above said vehicle before judgement which was allowed.
After the decree and Judgment opposite party No. 2 filed EP No.47 / 2018 for realisation of Rs.16,05,385/- with future interest .The above said attached Vehicle of the complainant has been sold in public auction on 12 03 2020 and the opposite party No. 2 was the auction purchaser. The sale consideration was Rs. 5,01,000/- The sale was confirmed by the court on 18.03. 2020 and accordingly the EP was closed. As such the opposite party No. 2 being the auction purchaser, is the present owner of the above mentioned Vehicle and also entitled to get the balance decree amount with interest from the complainant here in. So the opposite party No. 2 claims that if at all this commission finds that the complainant is entitled for any amount, the same is Iiable to be paid over to the opposite party No. 2 alone.
The reliefs under consumer protection Act are available to consumers at the event of any service deficiency or unfair trade practice by service providers or sellers .The CDRC is not supposed to order payment of any repair charges to a work shop manager.
The opposite party No. 2 correctly approached proper court to recover the repair charges from the Vehicle owner by filing OS No.3/2018 of the Sub court Hosdurg, which is decreed in their favour. The petition for execution of the above said decree & Judgment is also filed before the Sub court Hosdurg and partIy got executed by attachment and subsequent auction sale of the vehicle.
In the absence of any attachment order from the Executing court this commission is not in a position to order the payment of the compensation amount in favour of opposite party No. 2. in this stage. So this commission is not inclined to allow the prayer of the opposite party No .2.
In the result the complaint is allowed and the opposite party No.1 is directed to pay Rs.9,09,796/- to the complainant, with interest at the rate of 8% per annum from 26.3.2015 , the date of complaint, till the date of payment. The opposite party No.1 is also directed to pay Rs.25,000/- (Rupees Twenty Five thousand only) towards compensation and Rs. 5,000/- (Rupees Five thousand only) towards costs to the complainant.
The time for compliance is 30 days from receipt of the copy of this judgment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1- Copy of RC
A2-Driving license
A3- Insurance Policy
A4-Schedule of premium
A5- Bill invoice 29/11/2014
A6- copy of lawyer’s notice
A7- Postal Acknowledgment
A8- Job order
B1- Copy of insurance policy
B2- Report of insurance investigator
B3 to B5 – Statements of witness recorded by investigator
B6- Copy of the register showing the details of vehicles.
B7- survey report
B8 & B9 – Judgement and decree in O.S.No. 3/2018
B10- The CC of the EP 47/2018
B11- The final order in EP 47/2018
Witness Examined
Pw1- Mohammed.P.A
Pw2- Damodaran.P
Dw1- Thomas. P.D
Dw2- M. Raveendran
Dw3- Sameer
Dw4- Saneesh.
Dw5- Rajith.K
Dw6- Saneesh.K.V
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
