DATE OF FILING : 26.2.2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 23^rd day of May, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

C.C No.48/2011

Between

Complainant : K.C. Devassia,

Kannezhathu House,

Chempakappara P.O.,

Kochukamakshi, Idukki District.

(By Adv: Aneesh George)

And

Opposite Parties : 1. S.M.L. Motors,

Vellayamkudi P.O.,

Kattappana, Idukki District.

2. The Manager,

Oriental Insurance Company Ltd.,

Divisional Office, Jyothi Super Bazar,

Thodupuzha P.O.,

Idukki District.

(By Adv: K.Pradeep Kumar)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant who is a farmer is winning his daily bread by selling milk from his farm to the Malanadu Milk Producers Soceity. So the complainant purchased a goods autorickshaw manufactured by Piaggio Vehicles Pvt. Ltd. Company, in order to purchase the cattle feed and other necessary items for his dairy farm. The said autorickshaw met with an accident on 20.6.2010 and the vehicle was entrusted to the authorised service and sales centre of Piaggio Vehicles at Kattappana, named SML Motors. Eventhoug they have promised to deliver the vehicle after repairing within 2 days and it was delivered only after 6 days. So the complainant was constrained to hire another autorickshaw for selling the milk from the dairy farm. It caused a heavy loss to the complainant. After the repair, the opposite party received an amount of Rs.12,492/- from the complainant. The opposite party told that the vehicle is covered with the full coverage of insurance policy and it would take time for getting the amount from the insurance company, so the option was to pay the entire amount to the complainant. So the complainant paid the entire amount to the opposite party and got delivered the vehicle. But after 6 months of the accident, the 2^nd opposite party disbursed an amount of Rs.4,775/- only to the complainant through the 1^st opposite party without paying the entire repair charge. The complainant who is entitled to get the balance amount Rs.7,717 to the complainant and the non-denial of the amount is a gross deficiency from the part of the opposite party. So the petition is filed for getting the entire amount including the labour charge and cost of the spare parts.

2. As per the written version filed by the 1^st opposite party, it is admitted that the complainant entrusted the vehicle to the opposite party for repair because it was caused severe damage. The vehicle was having serious damage, patches and painting works and the opposite

party had returned the vehicle as early as possible after finishing the work. It is also admitted that the opposite party charged Rs.12,492/- from the complainant and a bill was issued for the same. The amount includes the spare amount of Rs.3,660/- and labour charge of Rs.8,832/- which includes Rs.1,932/- labour charge of first opposite party and Rs.6,900/- towards the patch work and painting work done outside. The complainant is only entitled for the amount as per the terms and conditions of the policy. When the complainant entrusted the vehicle for repair, the opposite party informed the same to the 2^nd opposite party and the surveyor of the 2^nd opposite party also came and surveyed the loss sustained by the vehicle. Since there is delay in payment from the insurance company usually the amount will be paid by the customer to the first opposite party and the customer will get the claim amount subsequently. The allotment of claim amount is as per the agreement between the complainant and the 2^nd opposite party and the 1^st opposite party further not having any connection with respect of the same and no liability with respect of the insurance policy. So the complaint has been filed by suppressing the truth and facts and hence the petition is not at all sustainable.

3. The 2^nd opposite party filed the written version stating that immediately on receipt of the claim, this opposite party deputed an independent surveyor Mr. Hassan V.N to assess the loss. The surveyor conducted the survey on 16.6.2010 and filed his report assessing the net loss as Rs.4,775/-. The head light assembly and front mudguard replaced by the insured is not payable as per IMT endorsement No.21 of the policy. Further the other parts which have been replaced are not damaged in this accident and hence this opposite party is not liable to indemnify the applicant. As per the survey report and contract of insurance, this opposite party is liable to pay only Rs.4,775/- for the damages caused to the complainant’s vehicle. In fact, the claim filed by the complainant was settled with him for Rs.4,775/- only. The settlement was arrived as full and final, and the complainant has collected the amount also. Hence the complainant is estopped from making any further claim for the same loss. So the complainant is not at all entitled to get any amount from this opposite party.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainants are entitled to?

5. No oral evidence adduced by both the parties. Heard. Exts. P1 to P4 marked on the side of the complainant and Exts. R1 to R6 marked on the side of the opposite parties.

6. The POINT :- As per the complainant, he is a farmer who is conducting a dairy farm and the only income for his livelihood is from the milk society. And for the purpose of selling the milk he purchased a goods autorickshaw from the opposite party. Unfortunately it met with an accident and while it was entrusted for repairing at the 1^st opposite party, they promised to deliver the vehicle after 2 days. But they deliberately made delay of 4 days for the delivery of the vehicle. So the complainant constrained to hire a taxi for selling milk and purchasing feeds for the dairy farm. Ext.P1 is the pass book issued from the Malanadu Milk Producers Society to show that he is selling milk to the society. The repair charge for the vehicle was Rs.12,492/- at the opposite party, and Ext.P3(series) is the bill issued from the opposite party for the repair of the vehicle. Eventhough the amount for the repair was Rs.12,492/-, the 2^nd opposite party disbursed only Rs.4,775/- as the insurance amount of the vehicle and the complainant is entitled to get the balance amount Rs.7,717/-. Ext.P2 is the copy of the letter issued by the 2^nd opposite party to the 1^st opposite party stating that they are enclosing the cheque for Rs.4,775/- dated 3.12.2010 to the complainant as the full and final settlement. It is also argued by the complainant that the cheque was issued through the 1^st opposite party, by the 2^nd opposite party and that clearly proves that there is collusion between both the parties.  

As per the 1^st opposite party, they have repaired the vehicle, but the repair of patch and painting works of the vehicle were done outside. The repair charge is Rs.12,492/-, the amount for the repair of spare parts is Rs.3,660/- and labour charge is Rs.8,832/-. Rs.1,932/- is the labour charge of the 1^st opposite party and Rs.6,900/- is the amount towards the patch work and painting works done outside of the workshop of the 1^st opposite party. Ext.R1 is the bill issued from Kunnel Automobiles for Rs.6,900/- for the repair of the vehicle eventhough the said bill was objected by the complainant. The voucher issued by the 1^st opposite party with stamp and signature is marked as Ext.R2. So the total bill issued from the 1^st opposite party is produced and it is marked as Ext.R3. The vehicle was having serious damages, patch works and painting work of the vehicle were done and the opposite party returned the vehicle as early as possible after finishing the work, there is no delay caused from their part. The patch works and painting work are not done at the 1^st opposite party’s workshop and they entrusted the vehicle outside for the repair. The bill for the same also produced. While the vehicle was entrusted by the 1^st opposite party they informed the same to the 2^nd opposite party and the surveyor of the 2^nd opposite party also came and assessed the loss caused to the vehicle. As per the 2^nd opposite party, they had appointed an independent surveyor for assessing the loss of the vehicle immediately after the receipt of the claim and the survey report filed by the independent surveyor Mr. Hassan V.N is produced and marked as Ext.R4. As per the survey report, the total cost for the repair of the damage of the vehicle is Rs.4,775/-. The surveyor has deducted some amount as per IMT endorsement No.21 of the policy. The policy and its conditions are produced and marked as Ext.R6. So the complainant received an amount of Rs.4,775/- from the opposite party as full and final settlement of the claim under his policy No.442600/31/2010/6251 on 22^nd day of November, 2010 and the original receipt and voucher with the signature of the complainant is marked as Ext.R5. The learned counsel for the 2^nd opposite party argued that if the complainant was having a dispute regarding the final settlement of the amount, he ought to have made complaint to the higher authorities. There is no complaint or allegation raised by the complainant and Ext.R5 was received by the complainant without any coercion or undue influence. The complainant himself received the amount with full and final settlement and not with the impulse of any others.

It is admitted by both the parties that the amount for repair of the vehicle was Rs.12,492/-. As per the 1^st opposite party, it is the amount including the spare parts amount Rs.3,660/- and labour charge Rs.8,832/- and the amount for repairing patch work and painting work is Rs.6,900/- and its labour charge is Rs.1,932/- the vehicle delivered as early as possible after finishing the work. It is admitted by the complainant that the vehicle has been delivered within 6 days. As per the 2^nd opposite party, they have assessed the loss by a surveyor and as per the survey report, the loss sustained for the repair of the vehicle is Rs.4,775/- and it is disbursed to the complainant and the complainant received the same without any dispute as full and final settlement. No complaint or dispute raised by the complainant stating that it was received by undue influence and coercion. As per the IMT Endorsement produced with the Commercial Vehicles Package Policy which is marked as Ext.R6(series), it is stated as IMT.21.Special Exclusions and Compulsory Deductible:

Notwithstanding anything to the contrary contained herein it is hereby understood and agreed that:

(a) Special Exclusions: except in the case of Total Loss of the vehicle insured, the insurer shall not be liable under section 1 of the policy for loss of or damage to lamps tyres tubes mudguards bonnet side parts bumpers and paint work.

(b) Compulsory Deductible : In addition to any amount which the insured may be required to bear under para (a) above the insured shall also bear under Section 1 of the policy in respect of each and every event (including event giving rise to total loss / constructive total loss) the first Rs.500/- of  any expenditure (or any less expenditure which may be incurred) for which provision is made under this policy and / or of any expenditure by the insurer in the exercise of its discretion under Condition No.4 of this policy.

If the expenditure incurred by the insurer shall include any amount for which the insured is responsible hereunder such amount shall be repaid by the insured to the insurer forthwith.

Certain works and parts are excluded as per the IMT Endorsement No.21 of the policy and so the complainant is entitled to get Rs.4,775/- as the policy amount and that amount is received by the complainant without any dispute. So we think that the complainant already received the amount from the opposite party without any dispute as full and final settlement of the claim. The complainant never produced evidence to show that he had hired any vehicle in that period for his use and no complaint has been filed to any supreme authorities of the 2^nd opposite party regarding the full and final settlement of the claim. No complaint filed towards the undue influence or coercion regarding the settlement of the claim. With full satisfaction, the complainant received the amount and as per the IMT endorsement No.21 of the policy condition, certain parts of the vehicle are excluded tire, mud guard, bumpers etc., are excluded and the opposite party are so not bound to pay the amount. Depreciation is also made in the report of the surveyor according to the use of the vehicle. But the opposite party serviced the vehicle, its painting, patch works etc., were done outside their workshop and bill for the same is also produced. So there is no deficiency proved by the complainant against the opposite party. The learned counsel for the complainant argued that they have entrusted the vehicle to the 1^st opposite party to repair the vehicle, but the opposite party repaired the vehicle outside the company workshop so that 4 days delay has been caused to deliver the vehicle. But as per the opposite party, they have not doing the painting and patch works, so they repaired the vehicle outside the workshop and bill for the same also produced. There is no contention of the complainant that the vehicle is not having any patch and painting work at the time of entrusting the same at the 1^st opposite party. There is no technical expert or no commission report produced by the complainant to prove that the bill for the repair of the vehicle is very high as per the argument of the learned counsel for the complainant. As per the complainant, he hired another vehicle for transporting the products, cattle feed and other materials for his dairy farm because of the delay caused in the workshop of the 1^st opposite party. But the complainant never produced evidence to show that he hired such and such vehicle and paid the amount to the vehicle for his daily work. The only delay caused by the 1^st opposite party is 4 days. On perusing the bill produced by the opposite party and the complainant, the works done for the vehicle are painting and patch work etc., and we think that 4 days delay is not at all a long one for the repair of the vehicle. So we think that the complainant never proved deficiency in service against the opposite parties.

Hence the petition dismissed. No cost is ordered against the complainant.

Pronounced in the Open Forum on this the 23^rd day of May, 2011

 Sd/-

SRI.LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1 - The pass book issued from the Malanadu Milk Producers Society.

Ext.P2 - Copy of the letter issued by the 2^nd opposite party to the 1^st opposite party

dated 7.12.2010.

Ext.P3(series) - The bill issued from the opposite party for the repair of the vehicle.

Ext.P4 - Copy of the RC Book of the vehicle.

On the side of the Opposite Parties :

Ext.R1 - The bill issued from Kunnel Automobiles dated 25.6.2010.

Ext.R2 - The voucher issued by the 1^st opposite party dated 25.6.2010.

Ext.R3 - The bill issued from the 1^st opposite party dated 25.6.2010.

Ext.R4 - The survey report filed by the surveyor Mr. Hassan V.N dated 23.6.2010.

Ext.R5 - The voucher of the opposite party for the insurance claim settlement.

Ext.R6(series) - Motor Insurance Certificate cum Policy Schedule, Commercial Vehicles

Package Policy and IMT Endorsements.