SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order directing opposite parties to refund a) Rs.6471/- being the excess amount collected towards insurance premium, Rs.25,000/- the amount collected from the complainant by opposite party No.1 and also to pay Rs.15,000/- being the value of the damaged parts repaired b) direct opposite party No.3 to disburse Rs.19,586 to the complainant towards the amount with held towards repairing charges.  c) directing opposite parties to pay Rs.2,00,000/- to the complainant towards the compensation of the mental agony suffered by him together with cost of the proceedings.

The brief facts of the case are that the complainant is the Registered owner of the car Maruthi ALTO K10 bearing Registration No.KL 58 R 3998.  The vehicle was purchased from OP No.1, who is the authorized dealer Maruthi Suzuki India Ltd.  OP No.4 is the Head office of OP No.1.  The complainant purchased the vehicle by arranging loan from Federal Bank Ltd Iritty branch.  The vehicle was duly insured with OP No.3 vide policy No. 35101031156137510874.  The OP No.2 is engaged in the business of Insurance broking and the vehicle was insured through OP NO.2, who is in business tie up with OP NO.3. The insurance policy availed by the complainant is a bumper to bumper policy and the OP NO.1 had collected an amount of Rs.15,471/- from the complainant towards the amount to be paid towards insurance premium. As per the policy condition of the 1^st 2 claims is to be reimbursed on zero depreciation basis and a certificate was issued by the OP NO.3 to that effect to the complainant.  The validity of the insurance policy is from 09/11/2015 to 08/11/2016.  On enquiry with other insurance companies the complainant was informed that the actual Insurance premium to be paid is Rs.9,450/- for the particular policy availed by the complainant.  All of the OPs colluded each other and collected an excess amount of Rs.6,471/- from the complainant towards the insurance premium.  The act of the OPs amounts to unfair trade practice an cheating.  On 10/05/2016 the above said vehicle  KL 58 R 3998 dashed against the side fence as the complainant was trying to avoid a collision with another vehicle.  The car was capsized and rolled over 2 to 3 times and thus sustained extensive damages to the vehicle.  As instructed by the OP No.1 and 4 the vehicle was taken to their workshop.  The manager and technicians of OP No.1 and 4 contacted the OP No.2 and 3 over phone and accordingly the vehicle was entrusted to OP No.1 with instructions to repair the same and also entrusted to process the claim of damages from insurance company ie. OP No.3.  The OP No.1 had collected an amount of Rs.2,000/- from the complainant towards the processing charge of insurance claim.  As the insurance claim is to be done free of cost the OP No.1 had illegally collected Rs.2,000/- from the complainant towards processing charges, this amounts to unfair trade practice.  The OP No.1 agreed to repair the vehicle as early as possible.   Later the OP No.1 informed that since the chassis is to be replaced it will take one month time to repairing the same since the new chassis is to be provided by the manufacturer.  After one month when the complainant contacted the OP they informed that further 3 weeks is required to complete the reaping work.  Thereafter the complainant contacted the OPs on several occasions for the repair of the vehicle and also for the propose of insurance claim.  But the OPs evaded the completion of repair works on some or other pretext.  Later on 04/11/2016  the OP No.1 contacted the complainant and informed that the vehicle is ready for delivery when the complainant approached the OP NO.1 to take delivery of vehicle surprisingly they refused to give delivery of the vehicle.  The OP No.1 demanded Rs.25,000/- from the complainant, they further informed that if the said amount is not plaid they will not deliver the vehicle.  The complainant contacted the OP No.4 over telephone and they also informed that the said amount is to be paid towards depreciation and directed the complainant to pay the amount.  So the complainant was constrained to pay Rs.25,000/- to the OP NO.1 for getting delivery of the vehicle.  Since the vehicle having Bumper to Bumper policy the insurance company will reimburse the entire expenses incurred for repairing the vehicle.  So the Complainant need not pay any amount to the OP.  The OP No.1 and 4 illegally collected an amount of Rs.25,000/-from the complainant.  The total amount incurred for repairing the vehicle is Rs.2,25,154/-.  Since the vehicle is covered under the bumper to bumper policy the OP No.3 is illegally bound to reimburse the said amount. But on enquiry it is understood that the OP No.3 had reimbursed only Rs.2,05,568/-.  They had unlawfully withheld an amount of Rs.19,586.  This amounts to deficiency of service of OP No.3.  Even though the complainant taken delivery of the vehicle there are so many defects in the service of the OP No.1.  The audio system was not working even after the repair.  The central lock system was installed in the vehicle which was damaged in the accident.  The defect of the central lock system was not rectified.  So the complainant was constrained to install the central lock system from other workshop by spending Rs.10,500/-.  The seat cover of the vehicle was fully spreaded with fungus and even the colour of the seat cover could not be identified due to the spreading of fungus and foul smell of the same was emanated from it.  The OP No.1 has not cleaned the fungus on the seat cover even though it was specifically instructed to them.  Moreover the OP NO.1 has not returned the damaged parts of the vehicle to the complainant nor given the value of the scarps to the complainant.  Further the painting work was done in a shabby manner.  The colour used for paint the vehicle on different parts like front bumper mudguard are different, and seems to be ugly lock.  The complainant was constrained to pay the monthly installments to the bank without any utility from the vehicle due to the callous attitude of the OP.

Further alleged that the OPs had collected firstly an excess amount of Rs.6,471/- from the complainant towards the insurance premium, then the OP NO.1 had illegally collected Rs.25,000/- from the complainant.  The OP NO.3 had willfully not reimbursed Rs.19,586/- towards the repairing charges even though the vehicle had bumper to bumper insurance policy.  The OP is not entitled to deduct any amount from the repairing charges as depreciation of the vehicle is a brand new one.  As per the policy condition the 1^st 2 claims is to be reimbursed on zero depreciation basis.  Further the complainant estimates Rs.2,00,000/- as compensation for the mental agony suffered by him due to the deficiency in service and unfair trade practice of OPs.

            After receiving notices OPs 1 and 4 jointly filed version stating that this OP denies the allegation in the complaint that, he had collected an amount of Rs.15,471/- from the complainant towards the amount to be paid towards Insurance premium and allegation that, on enquiry with the other Insurance companies the complaint was informed that the actual insurance premium  to be paid is Rs.9,450/- for the particular  policy availed by the complainant and allegation that all the OPs colluded each other and collected an excess amount of Rs.6,471/- from the complainant and allegation that the act of OPs amounts to unfair trade practice and cheating are absolutely false.  This OP also submits that, on 10/05/2016, he received a phone call from the complainant to the affect that said vehicle has sustained heavy damages due to an accident and requested to bring the vehicle for repairing to the service centre of this OP.  Immediately, this OP has deputed their service engineers to the spot and they brought the vehicle to the service centre of this OP. At once, the service engineer of this OP had noted all the defects of the vehicle in the job order and each and every defect were brought to the attention of the complainant and he was fully convinced with the repairing work and replacement of parts required.

This OP submits that, due to the accident, the chassis of the said car was fully damaged and the service engineer noted that the chassis is to be replaced with a new one and the same was also brought to the notice of the complainant.  Since new chassis is not available in the Service centre of this OP, he told the complainant that same has to be brought from the manufacturer of the car, namely Maruthi Udyog Ltd and for this at least a minimum of 6 months time is required for getting the new chassis.  Then and there the complainant agreed for the same and told the service engineer of this OP is that, time is not the problem, he needed perfection.  This OP submits that, since the vehicle is validly insured with the 3^rd OP, they deputed their surveyor M Raveendran to assess the damages of the vehicle.  Mr. Raveendran inspected the vehicle and filed his report after assessing the damages.  He estimated an amount of Rs.2,05,568.40/- for repairing the vehicle and filed his report to the insurance company.  This OP submits that, on receipt of new chassis from the Manufacturer, this OP has carried out the repairing work of the vehicle on a war foot level and he has completed the repairing work by 04/11/2016.  On the same day ie on 04/11/2016 this OP called the complainant and requested him to take delivery of the vehicle after clearing the balance amount due to this OP.  This aOP further submits that, the 3^rd OP, National Insurance company did not fully accept the report of their surveyor.  They sanctioned only Rs.2,05,563/- to this OP towards the charge of repairing the vehicle and price of replaced spare parts.  As per the bill of this OP, the total amount payable by the complainant is Rs.2,30,563/-.  After adjusting the amount paid by the National Insurance company, the balance amount payable by the complainant is Rs.25,000/-.  This OP submits that , he has not collected any excess amount from the complainant.  Further stated that while delivery of the vehicle the audio and central lock system are perfectly working and the complainant took delivery of the vehicle after fully satisfying its working condition.  There was no fungus or foul smell to the Seat Cover, while delivery of the vehicle.  The Seat cover was perfectly cleaned and there was no foul smell and fungus on ay parts of it.  The staff of this OP has painted the care in a most attractive way and the complainant has not raised any objection of the same, while delivery of the vehicle.  This OP submits that, the complainant himself drove the vehicle without any complaint and later issued a lawyer notice to the OPs on a wrong presumption.  On receipt of lawyer notice, this OP personally contacted the complainant by phone and enquired the matter and at that time he told that, he has no grievance against this OP and believing this, OP has not sent any reply.  This OP submits that there is no deficiency of service on the part of this OP.  There was no willful delay or latches on the part of this OP.  This OP has not played any unfair trade practice on the complainant. Hence prayed to dismiss the complaint.

            2^nd OP filed version stating that OP2 is a mere facilitator of insurance who is licensed with Insurance Regulatory and Development Authority of India (IRDAI) as an insurance broking company.  It’s role is to appraise the customers about the features and benefits of motor insurance products offered by various Insurance companies.  After this facilitation, the role of answering OP ends and thereafter the customers buy insurance as per their own will and volition.  In case of any claim on that insurance, the insurance companies are ultimately accountable to the insured for claim settlement.  Admittedly, in this instant complaint, accidental repairs are carried out by OP No.1 and claim has been settled by OP No.3 and in both these processes the answering OP had no role to play.  Hence prays for dismissal of complaint against them.

            3^rd OP the insurance company also filed separate version contended that

This OP admits the insurance of the car KL 58/R 3998 with them at the time of the alleged accident.  The insurance premium of Rs.15,471/- was collected on the basis of the IDV to cover the risk of own damage also, as per the schedule of premium permitted by the insurance Regulatory Authority.  It is also true that the vehicle met with an accident on 10/05/2016 and was damaged and the same was taken to the 1^st OP for repairing and the vehicle was repaired by the 1^st OP on the basis of the assessment made without any depreciations and on the recommendations made by the insurance surveyor and loss assessor.  Mr. M Raveendren.  Hence the 3^rd OP had paid Rs.2,09,744/- to the 1^st OP on behalf of the complainant.  The allegations in the complaint that all the OPs has colluded and has collected a sum of Rs.6,471/- in excess to the  actual insurance premium, which amounts to unfair trade practice, etc are is not true and correct.  As per the survey report and the re-inspection reports, the surveyor has assessed as Rs.2,09,745.38 as the net loss and accordingly the 3^rd OP has disbursed the same to the OP NO.1, towards the full and final settlement of repair charges of the vehicle.  Hence any further claim against the 3^rd OP is not maintainable.  The re-inspection of the surveyor shows that the 1^st OP has executed the repair work to complainant full satisfaction as recommended by him in his earlier report.  Hence, the 3rd OP cannot accept any further expenses said to have been incurred by the complainant towards the repair of the vehicle.  The averments in the complaint that the complainant is entitled for the refund of the salvage value of Rs.15,000/- of the vehicle, since the salvage was not handed over to him by the 1^st OP is not correct.  The 1^st OP specifically contents that they have handed over the salvage to the complaint at the time of the delivery of the vehicle itself.  Hence the complainant must be put to strict proof regarding the same.  The complainant is not entitled for any further amount apart from the amount assessed by the surveyor towards the repair of the vehicle, hence the 3^rd OP is not liable to pay Rs.19,586/- to the 1^st OP or to the complainant.  Hence the complainant is not entitled for such unlawful claims. Hence prayed of the dismissal of complaint.

            After taking the evidence none of the parties filed argument note or made oral argument before us.  We have perused the material evidence and considered the contentions of the parties.

            The undisputed facts in this case are that the complainant is the Registered owner of the car Maruti Alto K10 bearing Registration No: KL 58 R 3998.  Further the vehicle was purchased from OP No.1 who is the authorized dealer Maruthi Suzuki India Ltd.  Further the admitted fact that the vehicle was duly insured with OP No.3 vide policy No.35101031156137510874.  Further the Insurance policy availed by the complainant is a bumper to bumper policy and OP No.1 collected an amount of Rs.15,471 from the complainant towards the amount to be paid towards insurance premium.  The validity of the insurance policy is from 09/11/2015 to 08/11/2016.  Further the subject vehicle dashed against the side fence and thus sustained extensive damages to the vehicle on 10/05/2016.  Further the accident was informed to the OPs and the vehicle was entrusted to OP No.1 with instruction to repair the same and also entrusted to process the claim of damages from insurance company.  The other admitted fact is the repair work includes replacing the chassis with new chassis and on 04/11/2016, OP No.1 delivered the repaired vehicle to complainant after receiving Rs.25,000/- from the complainant.  Further there is no dispute that Insurance company has to assess the loss of the vehicle and actual repair work after the vehicle got repaired on verifying the repair bill.

            Complainant’s 1^st allegation is that OP No.1 had collected an amount of Rs.15,471/- from the complainant towards the amount to be paid towards insurance premium.  According to complainant actually Insurance premium to be paid is Rs.9,450/- for the particular policy availed by the complainant.  Complainant alleged that all the OPs colluded each other and collected an excess amount of Rs.6,471/- from the complainant towards the insurance premium and the said acts of OPs amount to unfair trade practice and cheating.

            All the OPs opposed the said allegation of the complainant.  Here on perusal of      Ext. A6 Insurance certificate cum policy schedule, it is clearly seen that the total amount of premium collected from the complainant was Rs.15,471/-.  Hence from Ext.A6, we are of the opinion that the 1^st OP submits that, the 1^st allegation raised by the complainant is not sustainable.

            Another allegation of complainant is that after the accident he had entrusted the vehicle to OP NO.1 as per the instruction of Insurance company(OP3).  The vehicle was entrusted on 10/05/2016 but it was returned after repair work only after 6 months and also alleged that the OP No.1 had demanded Rs.25,000/- and only after paying the said amount, OP1 had delivered the vehicle.  According to complainant, OPs1 and 4 illegally collected the said amount Rs.25,000/- from him.

            On the other hand OPs1 and 4 contended that the National Insurance company OP  No.3 did no fully accept the report of their surveyor.  They sanctioned only Rs.2,05,563/- to OP1 towards the charge of repairing the vehicle and price of replaced spare parts.  As per the bill of this OP1 the total amount payable by the complainant is Rs.2,30,563/-.  After adjusting the amount paid by the OP No.3, the balance amount was to be payable by the complainant.  So they received Rs.25,000/- from the complainant.  According to OP NO.1 complainant is bound to pay the balance amount of repairing expenses to them.

            Here the question to be decided is whether the amount Rs.25,000/- collected by OPs 1 and 4 from the complainant is legally?  Complainant contended that since the vehicle is having Bumper to Bumper policy, the insurance company will reimburse the entire expense for repairing the vehicle.  For that point the Insurance surveyor (Dw2) has given an explanation during deposition that in case of Bumper to Bumper policy, company is giving full amount to the replacing parts and repair charge will give for the repairing parts.  According to OP No.3, OP No.1 had given bill for Rs.1,92,284/- as repairing expense and in addition Rs.32,900/-  and 1,035/- ie in total 2,30,000/-.  Dw2 further deposed that the bill might have include other charges for repairing the parts which were not included in the accident.  Any way neither the complainant nor the OPs 1 and 4 could not succeed in proving the that  surveyor assessed amount is not correct.  Complainant and OP was under an obligation to file documents to rebut survey report otherwise the survey report being an authentic documents is to be relied.  On perusal of the survey report reveals that, total cost on parts, labour charge, towing repairs and included.  Further surveyor has deducted policy excess Rs.1,000/- salvages cost Rs.16,722/- and thus arrived Net total Rs.2,05,568/-. OP No.3 and Dw3 submitted that in total they have remitted Rs.2,09,744/- to the account of OP No.1 as assessed amount.  OP No.1 claimed that OP No.3 transferred only Rs.2,05,568/- as loss assessed amount with repairing expense.  But neither OP No.1 nor OP NO.4 provided the said contention by submitting any material evidence.  Hence we also accept the contention of OP No.3 that they have transferred a Rs.2,09,744/-  to the account of  OP No.1 for total cost of parts, labor charges etc.

            Here complainant produced Ext.A3 and Ext.A4 for proving their contention that OP No.1 had collected RS.25,000/- from him at the delivery time of the vehicle, illegally.  Ext.A3 shows that a) policy excess Rs.1,000/- b) Non sanction amount Rs.8,000/- salvage amount Rs.14,965/+Rs.1035(ie total Rs.16,000/-). On comparing with Ext.B2 survey report, the surveyor also assessed Rs.1,000/- as policy excess and Non-sanctioning amount Rs.8,000/-, salvage amount Rs.14,965+Rs.1,035(ie total Rs.16,000/-).  On comparing with Ext.B2 survey report, the surveyor also assessed Rs.1,000/- as policy excess and Rs.16,722/- as salvage amount.  Further Ext.A4 reveals that OP No.1 had collected Rs.15,000/- as advance payment from the complainant.  It is seen that the said advance amount already collected at the initial stage of entrusting the vehicle to OP No.1did not adjusted in further by OP No.1 during the delivery time of the vehicle.  Complainant contended that the said action of OPs 1and 4 also amounts to unfair trade practice.  Ext.A11 shows that Rs.32,900/- was incurred for painting charges.  Ext.A5 shows that OP No.1 received Rs.9,600/- as policy excess from complainant instead of Rs.1,000- as assessed by the Insurance surveyor.  Ext.A3 also shows that Rs.8,000/- collected by OP No.1 without any account.

            It is pertinent to be noted that OP Nos. 1 and 4 have not opposed in marking the bills and job card detail invoice produced from the side of complainant (Ext. A2 to A5 and Ext.A9 to A11).  Hence from the above said documents, OPs Nos. 1 and 4 collected Rs.15,000/- (Ext.A4), Rs.8,600(Ext.A5) from the complainant illegally.  Further Dws 2 and 3 deposed that the salvage amount Rs.16,722.70 by the surveyor (Dw3) is to be paid by OP No.1 to complainant.  OP No.1 claimed that they had given the salvage parts to complainant at the time of taking back the repaired vehicle which contention is strongly opposed by the complainant.  In such a situation, OP No.1 will have to prove their contention by substantive material evidence.  Here OP No.1 failed to produce any receipt obtained showing the receipt of salvage parts from the complainant.  Mere contention in the version, without any evidence is not sufficient to prove the said contention.  Hence from the above said facts, OPs 1 and 4 shall repay the salvage amount Rs.16,722.70 (16,733/-) assessed by the surveyor to the complainant.

            Further with regard to the allegation of the complainant that he had constrained to install the central lock system from other workshop by spending Rs.10,500/-, further the seat cover of the vehicle was fully spread with fungus and foul smell of the same was emanated from it, audio system was not working, there is no material evidence is available before us.  Hence we cannot consider those facts without evidence. 

Based on the above discussion, we are of the view that there is clear deficiency in service and unfair trade practice on the parts of the OPs 1 and 4.

   As far as OPs 2 and 3 are concerned we cannot find any deficiency in service in collecting the premium amount, issuing policy certificate, in assessing the net loss sustained to the vehicle in dispute and in disbursing the assessed amount to the work shop (OP No.1).  Hence OPs 2 and 3 are exempted from the liability.

            In the result complaint is allowed in part.  Opposite parties 1 and 4 are directed to refund Rs.15,000/- (advance amount received Ext.A4)+ Rs.16,722/- (scrap value, salvage amount Ext.B2) + Rs.4,176(Ext.B2) Rs.8,000 (Non-sanctioned amount Ext.A3) ie Rs.45,898/- to the complainant together with Rs.10,000/- towards compensation within one month from the date of receipt of this order.  Failing which Rs.45,898/- carries interest @7% per annum from the date of complaint till the date of realization of the amount.  Complainant is at liberty to file execution application against opposite parties 1 and 4 for realization of the amount as per the provision of Consumer Protection Act 2019.

Exts.

A1- Copy of RC

A2 to A5- Bills (in different dates)

A6- Insurance policy

A7-Zero depreciation certificate

A8- Request letter of Surveyor to RTO

A9-Job slip

A10&A11-Job card retail invoice

A12-Copy of Lawyer notice

A13 (series)- Postal receipt ( 3 in numbers)

A14- AD Card of OP No.1

A15-Reply notice of OP No.3

B1-Insurance policy

B2-Surveyor report

Pw1-Complainant

Dw1-OP1

Dw2-OP No.3

Dw3-Surveyor

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar