KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 611/2010
JUDGMENT DATED 27.08.2011
PRESENT:-
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
Managing Director,
M/s. K.K.J Group International
(India) Pvt. Ltd.
Rep. Mr. Joy Varghese
( Rep. by Adv. M/s. Manuel Thomas)
Vs.
RESPONDENTS
1. The Oriental Insurance Company Ltd.
Division Office, IV, Palakkatt Buildings,
Market Jn. Thripunithura, Cochin – 682 301
( Rep. by Adv. Varkala B. Ravikumar)
2. M/s. Popular Mega Motors India Ltd., KMC/X/259,Opp.
Plantation Corporation Ltd. Collectorate P.O., Kottayam
District, Kerala 682 002
( Rep. by Adv. Smt. R. Suja & Sri. Lal K.Joseph)
3. M/s. Tata Motors, Ltd.14th Floor, Canbera Block,
U.B. City, 24, Vittal Mallya Road, Bangalore – 560 00.
(Rep. by Adv. M/s. Menon & Menon)
JUDGMENT
M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant is the complainant and respondents 1 to 3 are the opposite parties in C.C. No. 399/08 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency in service on the part of opposite parties 1 and 2 in their failure to make the damaged vehicle in a road worthy condition. It was alleged that the first opposite party, Oriental Insurance company Limited , the Insurer of the vehicle is not permitting to replace the defective chasis of the vehicle. Thus, the complainant prayed for getting the vehicle repaired by replacing the defective chasis and also for compensation @ Rs. 3,500/- per day.
2. The first opposite party entered appearance and filed written version denying the alleged deficiency in service. They took the contention that the insured vehicle has been repaired and the vehicle has become mechanically roadworthy. Thus, the first opposite party prayed for dismissal of the complaint.
3. The second opposite party entered appearance and filed written version denying the alleged deficiency on their part. It was contended that the second opposite party carried out repairs in an effective manner and that the approved surveyor and authorized surveyor permitted to effect repair the chasis of the vehicle. The second opposite party expressed their readiness to replace the chasis if second opposite party is advised to that effect. Thus, the second opposite party requested for dismissal of the complaint filed against them.
4. Third opposite party, the manufacturer of the vehicle entered appearance and filed written version stating that the 3rd opposite party is an unnecessary party and the complaint filed against the 3rd opposite party is to be dismissed.
5. Before the Forum below the complainant was examined as Pw1 and witness on his side was examined as Pw2 . Exts. A1 to A 46 documents were also marked on the side of the complainant. From the side of the second opposite party their Deputy Manager(Service) was examined as Dw1. Ext. B1 and B2 documents were marked on the side of opposite parties 1 and 2. The Expert Commissioner who filed the Commission Report which was marked as Ext. C1.
6. On appreciation of the evidence on record, especially Ext. C1 Expert Report, the Forum below allowed the complaint in part by finding deficiency in service on the part of the opposite party 1 and 2 and thereby the opposite parties 1 and 2 were directed to replace the defective chasis of the insured vehicle so as to make the vehicle roadworthy. The claim for compensation was disallowed by the Forum below. Aggrieved by the order not allowing compensation, the complainant preferred the present appeal. The opposite parties have not filed any appeal from the impugned order dated 16.9.2010 passed by CDRF, , Ernakulam in C.C. No. 399/08.
7. We heard the learned counsel for the appellant/complainant and the respondents 1 and 2 (Opposite parties 1 and 2). The counsel for the appellant vehemently argued for granting compensation for the financial loss and inconveniences suffered by the appellant/complainant in keeping the vehicle for a period of 33 months. He pointed out the fact that the appellant/complainant incurred amounts covered by the A13 document. Thus, the appellant prayed for allowing compensation for the deficiency in service on the part of opposite parties 1 and 2. On the other hand, the counsel for the respondents 1 and 2 supported the impugned order passed by the Forum below and argued for the position that there was no deficiency in service on their part and so the claim for compensation can not be allowed.
8. The issues that raise for consideration in the present appeal are:
1) Whether the claim preferred by the appellant/complainant for compensation for the loss suffered by him can be upheld?
2) Whether the Forum below can be justified in not allowing the compensation for the alleged financial loss and inconvenience suffered by the appellant/complainant?
9. Points 1 and 2 : There is no dispute that the appellant/complainant purchased a brand new 2007 model Tipper lorry and the same was insured with the first respondent/first opposite party, Oriental Insurance Company Ltd. The said insurance policy was valid for the period from 16.8.2007 to 15.8.2008. Admittedly, the insured vehicle met with an accident on 16.6.2008 and the matter was informed to the first opposite party, Insurance Company. The insurer of the vehicle (first opposite party) deputed an approved Insurance Surveyor and he directed to repair the damaged vehicle. The appellant/complainant was of the view that replacement of the damaged chasis was required for making the vehicle roadworthy. Admittedly, the insurer, Oriental Insurance Company and the Insurance Surveyor were not prepared to allow the request of the complainant to get the damaged chasis replaced. It is because of the aforesaid adamant stand taken by the first opposite party, Oriental Insurance Company and its Insurance surveyor the complainant filed the complaint in C.C. No. 399/08.
10. From the forum below, an expert Commissioner was deputed to examine the vehicle and to report as to whether replacement of the damaged chasis was required. The expert submitted his report which has been marked as Ext. C1. It is pertinent to note at this juncture that the opposite parties have not filed any objection to C1 Commission Report . The Forum below has rightly accepted the findings and observations made by the expert Commissioner. Ext. C1 Expert Report would make it abundantly clear that replacement of the damaged chasis is very much required for making the insured vehicle roadworthy. Thereby, the Forum below directed replacement of the chasis. The aforesaid direction given by the Forum below would make it crystal clear that the First opposite party, Oriental Insurance Company was at fault, in not allowing the repairer to replace the damaged chasis. In effect, the first opposite party was deficient in rendering service to the complainant because they failed to indemnify the complainant/insured by making the vehicle in a road worthy condition. It can very safely be concluded that there was deficiency in service on the part of the first opposite party/ Oriental Insurance Company Ltd. The very direction given by the Forum below directing replacement of the damaged chasis would make it abundantly clear that the damaged chasis could not be made perfect by the repairer only. It could not be done because of the adamant stand taken by the first respondent/ first opposite party. The aforesaid direction was given only because of the deficiency in service on the part of the first respondent/first opposite party.
11. The second respondent/second opposite party is only the repairer of the vehicle. The second opposite party effected repairs to the damaged vehicle without replacing the damaged chasis only because of the fact that the insurance surveyor and the Oriental Insurance Company Ltd, did not allow the repairer for replacement of the damaged chasis. It is to be noted that the insurance company (insurer) and the Insurance surveyor directed the repairer only to repair the damaged chasis . So, no deficiency in service can be found against the second opposite party. It is true that the Forum below has rightly directed the second opposite party to replace the damaged chasis. So, the aforesaid direction given by the Forum below is to be confirmed. This Commission is pleased to endorse that finding and direction.
12. The appellant/complainant has claimed compensation for the loss and inconveniences suffered by keeping the vehicle for a pretty long period of 33 months. But the claim for compensation against the second respondent/second opposite party can not be considered as reasonable. So, the prayer for getting compensation from the second respondent/second opposite party can not be allowed.
13. The first respondent/first opposite party, the insurer of the insured vehicle was deficient in rendering effective service to the appellant/complainant. The vehicle could not be used for a period of 33 months only because of the adamant stand taken by the first respondent/first opposite party, Oriental Insurance Company Limited. The appellant/complainant is to be adequately and reasonably compensated for the financial loss and inconveniences suffered by the complainant/insured.
14. The appellant/complainant has claimed compensation @ Rs. 3,500/- per day. But in the present appeal the claim is restricted to Rs. 4,75,000/-with future interest @ 12% per annum. The complainant produced Ext. A13 document stating the details of the hire charges paid by the complainant for hiring a Tipper Lorry. The complainant had also produced vouchers for payment of hire charges. But, only copies of those vouchers were produced and marked. A witness was also examined as Pw2 to substantiate the case of the complainant that the complainant incurred expenses for hiring Tipper Lorry during the aforesaid period of 33 months. The complainant miserably failed in producing the original vouchers. It is further to be noted that the complainant is a private limited company maintaining proper and audited accounts. In fact, if the appellant /complainant had incurred so much of amounts by way of hire charges for Tipper Lorry, that could be found a place in the audited accounts. The non production of the audited accounts can be taken as a ground to doubt the genuineness and correctness of A13 document and copies of the vouchers. It is further to be noted that the appellant/complainant is a company engaged in construction works. The hire charges were incurred for the purpose of constructing a multi specialty hospital. It can be seen that the expenses were incurred for commercial purpose. So, the claim for such a huge amount by way of compensation can not be allowed. At any rate, the amount of compensation claimed is very much on the higher side. This State Commission is of the view that a sum of Rs. 1,00,000/- will be sufficient to meet the ends of justice. The aforesaid compensation of Rs. 1,00,000/- is sufficient to compensate the loss and inconveniences suffered by the appellant/complainant. The impugned order passed by the Forum below not allowing the compensation is modified and thereby the first respondent/first opposite party is directed to pay compensation of Rs. 1,00,000/- to the appellant/complainant for the deficiency in services on the part of the first respondent/opposite party/ Insurance Company. In all other respects, the impugned order passed by the Forum is confirmed. These points are answered accordingly.
In the result, the appeal is allowed to the extend as indicated above. Thereby, the first respondent/first opposite party M/s. Oriental Insurance Company Limited is directed to pay compensation of Rs. 1,00,000/- (One lakh) to the appellant/complainant, for the financial loss and inconvenience suffered by the appellant/complainant. The second respondent/second opposite party is exonerated from the liability to pay compensation to the appellant/complainant. The 3rd respondent is not burdened with any liability in this case.
The present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
ST
