By: Smt. R.K.Madanavally, Member
Brief facts:-
The complainant is the RC owner of the vehicle bearing No.KL -55-L 5876. It was purchased with the financial assistance of Tata Finance and he had regularly paid Rs.20650/- (Twenty thousand six hundred and fifty only) per month. While so, on 1/12/14 the above said vehicle met with an accident and since there was heavy traffic block the fire force and the neighbouring people removed the vehicle from the spot. All matters were informed to Thanoor Police. As per the direction from the police, the vehicle was taken to the workshop by using crane with the complainant's own expenses . The opposite party No.1 had submitted an estimate of Rs.2 lakhs and promised the complainant that he will get insurance benefit from the company.
Thereafter the insurance surveyor informed the complainant that the damages were caused only because of the negligent use of the vehicle by the complainant himself. He had run the vehicle with out any engine oil and so the defects were occurred. Since the defects were caused during the period of warranty, they approached opposite party No.2 and opposite party No.2 informed the complainant that , since the defects were caused to the engine, they will not provide the warranty.
The complainant submitted that, there was no occasion to use the vehicle without engine oil. The vehicle was properly maintained through the regular service.
The total repair charge caused to the vehicle except to the engine works were Rs.101555/- (One lakh one thousand five hundred and fifty five only) and for crane service, Rs.10,000/-(Ten thousand only). Out of which the opposite party had paid only Rs.59923/-( Fifty nine thousand nine hundred and twenty three only) to the complainant. Though the chase bend , they repaired it instead of replacing the same with huge labour charge. Though the complainant had spent Rs.32000/-(Thirty two thousand only) towards labour charge, the opposite party had paid only Rs.3500/- (Three thousand and five hundred only). For the engine works in addition to the above amount of Rs.1,11,555/-(One lakh eleven thousand five hundred and fifty five only) the complainant had to pay additional amount which was calculated by opposite party No.2. Since the complainant bargained with opposite party No.2, the said amount was reduced to Rs.95925/- (Ninety five thousand nine hundred and twenty five only). On 7-7-15, the above amount was paid by the complainant and the vehicle was released . According to the complainant opposite party is responsible to pay the amount towards the above said amount, they had only paid Rs.59923/-( Fifty nine thousand nine hundred and twenty three only) and the complainant is entitled for the balance amount of Rs.36002/- (Thirty six thousand and two only). The non payment of the repair charge and delay caused in the repair amounts to the consumer exploitation.
The complainant was not in a position to run the vehicle from 1/12/14 to 7/7/15. Even after repairing of the vehicle , the opposite party demanded huge amount from the complainant and thus a long delay was occurred for delivering the vehicle. Hence the complainant sustained huge loss and the opposite parties are responsible for the same and hence caused this complaint.
The allegations raised by the complainant was disputed by the opposite parties in their written version. The policy with respect to the vehicle bearing No. KL – 55-L 5876 was admitted by opposite party . As soon as the opposite party No.1 got the information regarding the accident, they appointed an independent surveyor Mr. V.K.Saboo who was holding IRDA license. On his first inspection, the repairer had not claimed any repair of engine. The engine assembly had no external damage on his inspection . Thereafter one month ie on 2/1/15 the repairer informed the surveyor that the engine portion had sound and it was damaged.
The surveyor again inspected the vehicle and found that the engine was over heated and due to the lack of lubrication all bearings over heated and partially melted, crank shaft bearing surface had rubbing and over heating marks, the copper colour of bearings after over heating was visible and there was no lubrication oil on its surfaces and piston rings set distorted due to the over heating , three connecting rods were bent and this too confirms bent due to seizer during running and oil pump was not good condition and no leakage as oil sump, front side was intact and all hoses and pipe were intact, engine valves were damaged etc. In brief according to the surveyor, all those damages were caused because the engine had run after the accident. The report of the Motor vehicle Inspector also does not specify any external engine damage.
According to the surveyor the vehicle had run after the accident and mere collision with car would not over heat of the engine. Due the damage to the radiator over heating rate had been faster and it needs minimum 10 to 15 minutes time to over heat, seize and cause these types of damages. The internal damages caused to the engine were not directly caused by the accident. It is due the subsequent running of the vehicle. The damages to internal components of engine were a consequential loss and it was not covered by the policy. So the surveyor had not allowed the damages to the engine since the loss occurred after the accident.
After receiving the survey report, with the consent of the complainant the opposite party had given Rs.59,923/- (Fifty nine thousand nine hundred and twenty three only) towards the full and final settlement.
So the complainant is not entitled to get a further amount of Rs.36002/-(Thirty six thousand and two only) from opposite party, as pleaded in the complaint. The prayer under the different heads in the complaint is without any basis and so , the complaint has to be dismissed with cost.
The opposite party No.2 also disputed the averements in the complaint . They never informed the complainant that he would not get warranty since the accident was caused to the engine. The vehicle was taken before them after and accident which was caused because of the running of the vehicle without any engine oil. Hence opposite party No.2 informed the complainant that they would not provide the warranty. This facts were specifically included in the manual of Tata Company. The survey of the vehicle , its compensation etc can only be fixed by opposite party No.1. The opposite party No.2 has no role in all these proceedings. They don't know how much amount was paid by the opposite party No.1 to the complainant. They never collected additional labour charge. The allegations raised in respect of the chassis also disputed by opposite party No.2 .
They had never colluded with opposite party No.1 or never offered any warranty coverage to the complainant. The engine was damaged since the vehicle was running without the engine oil. After receiving the survey report and estimate from opposite party No.1 they started the work and completted it with out any delay. Since the complainant was not ready for taking back the vehicle even after completion of the work, opposite party No.2 sent notice to the complainant and the complainant took the delivery of the vehicle after 4 months of the receipt of the notice. So no deficiency was committed by opposite party No 2 and the complainant is not entitled to get any relief as prayed for.
Now the issues arises for our consideration here in are;
(1) Whether the opposite party is deficient in service?
(2) Relief and cost.?
Point No.1
The complainant filed chief affidavit and Ext. A1 to A7 are marked. Ext. A1 is the tax invoice dated 20/2/15, Ext. A2 is the cash receipt voucher dated 7/7/15 for an amount of Rs.95925/-(Ninety five thousand nine hundred and twenty five only), Ext. A3 is the policy copy, Ext. A4 is the copy of the RC, Ext. A5 is the cash bill for an amount of Rs.4000/-(Four thousand only) dated 1/12/14, Ext. A6 is the cash bill for Rs.6000/- (Six thousand only) dated 23/2/15 and Ext. A7 is the copy of the survey report dated 30/1/15.
The documents belonged to the opposite party are also filed with their counter affidavit which are marked as Ext. B1 to B3. Ext. B1 is the copy of policy, Ext. B2 is the survey report dated 30/1/15 and Ext. B3 is the discharge voucher. Opposite party No.1, though filed affidavit, no documents produced.
Heard both sides and perused the entire records. The policy , period of insurance , the alleged date of accident etc were admitted by the opposite parties. After getting the summary report, the opposite party had paid Rs.59,923/-(Fifty nine thousand nine hundred and twenty three only) towards the complainant, which according to them, is the full and final settlement. The amount was received by the complainant also.
According to opposite party No.1, the surveyor had conducted proper and genuine inspection and the amount awarded by him is reasonable. On the other hand, the complainant had paid Rs.95,925/- (Ninety five thousand nine hundred and twenty five only) towards the entire repair charge. So after deducting the above said amount of Rs.59923/- (Fifty none thousand nine hundred and twenty three only) he is entitled to get Rs. 36002/- (Thirty six thousand and two only) from opposite parties.
The payment of Rs.95925/- (Ninety five thousand nine hundred and twenty five only) by the complainant is proved by Ext. A2. The learned counsel for opposite party submitted that they had paid the amount towards the full and final settlement. On going through the documents ie Ext. B3 the complainant had signed in the document . The B3 clearly shows that the cash was received in discharge of full and final settlement. Admittedly after signing the discharge voucher, the complainant can not demand any further relief. They even not sent any notices to opposite parties after accepting the above amount.
How ever, we have perused the Ext. B2, survey report. The surveyor is an independent surveyor who was appointed by the opposite party No.1. Hence there is a chance of showing partial consideration towards the opposite party. It is clear and undisputed fact that the complainant had paid Rs.95,925/- (Ninety five thousand nine hundred and twenty five only). Hence ,we feel that demanding the balance amount by the complainant is reasonable. As far as the damages caused to the vehicle , the amount calculated by the complainant is not at all exorbitant. So the denial of reasonable repair charge amounts to the deficiency of service, since the accident and damages were caused during the period of existence of the policy . As a policy holder the complainant is eligible to get reasonable benefit from opposite party No.1. The delay caused for repair by the opposite party is not proved by the complainant and so opposite party No.2 is exonerated from liability. The opposite party No.2 had sent notice to the complainant regarding the completion of the repair. Though the said notice is not produced , the complainant is admitted the same. As soon as the repair is over , they had intimated the same to the complainant and we find no deficiency on the side of the opposite party No.2. The first point is answered accordingly.
Point No.2
In view of the above discussion and findings , we direct the opposite party No.1 that, they shall pay Rs.36002/-(Thirty six thousand and two only) to the complainant being the balance of repair charge, Rs.5000/- (Five thousand only) as compensation for the deficiency of service committed by them and Rs.5000/ (Five thousand only)- as cost of this proceedings.
This order shall be complied within one month from the date of receipt of the copy of this order, failing which, the complainant is entitled to get 12% interest upon the said amount from the date of receipt of the copy of this order.
Dated this 31st day of May, 2017.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A6
Ext.A1 : Tax invoice dated 20/2/15.
Ext.A2 : Cash receipt voucher dated 7/7/15 for an amount of Rs.95925/.
Ext A3 : Policy copy
Ext A4 : Copy of the RC.
Ext A5 : Cash bill for an amount of Rs.4000/- dated 1/12/14.
Ext A6 : Cash bill for Rs.6000/- dated 23/2/15
Ext A7 : Copy of the survey report dated 30/1/15.
Witness examined on the side of the opposite party :
Documents marked on the side of the opposite party : Ext. B1 to B3
Ext.B1 : Copy of policy.
Ext.B2 : Survey report dated 30/1/15
Ext.B3 : Discharge voucher.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
