IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 29^th day of October, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

Sri.K.M.Anto, Member

C C No. 17/2024 (Filed on 18.01.2024)

O R D E R

Sri. Manulal V.S. (President)

The complaint is filed under Section 34 & 35 of the Consumer Protection Act 2019.

The case of the complaint is as follows:

The complainant is the owner of a light motor vehicle bearing number KL-43M4000, an Audi A3 Limo make, and BSIV/A3-35 TDI Model car registered in the name of the complainant and got insured under comprehensive (Package) Insurance policy No 1013013122P102709032 by the 3^rd opposite party.

On 12.02.2023 at about 10 PM, the complainant's vehicle, KL-43M-4000, met with an accident at Delux Padi Junction between Kunnamthanam and Thengana due to the negligent driving of the car KL-33-F-4900. The complainant intimated the accident at the Thrikodithanam police station and registered a GD entry No. 9 on 17.02.2023. This incident was informed to the second opposite party, who is giving assistance and consultation for the upkeeping of the complainant's vehicle. Considering the gravity of the loss and damages, the second opposite party took the aid of the first opposite party to get the damages repaired under the coverage of the Own Damage Insurance (Package Policy) issued by the third opposite party.

The complainant was advised and informed by the first and second opposite parties, who explained the procedure and assured that the best service would be provided within the amount approved or settled by the third opposite party insurer. Consequently, the first and second opposite parties were directed to carry out the repairs in consultation with the third opposite party.

The first and second opposite parties persuaded the complainant to make an advance payment, claiming that completing the work would be impossible due to anticipated delays in the insurer's payment. Since the complainant's own damage insurance policy was valid and active, he was unwilling to make an advance payment as requested by the first and second opposite parties and, therefore, rejected their demand.

In response, the first and second opposite parties assured the complainant that they would prepare the claim form to ensure the third opposite party would make the final payment directly to the complainant. On this basis, the first and second opposite parties collected a total of ₹ 3,00,000/- (Rupees three lakh only) on 02.03.2023 and ₹ 1,50,000/- (Rupees one lakh fifty thousand only) on 12.03.2023, credited to the account of the first opposite party, with a promise that the final payment would be made following claim settlement by the third opposite party.

The first and second opposite parties completed the repair and painting work and handed over the vehicle to the complainant on 21.05.2023. The complainant was waiting for the third opposite party to settle the account. The opposite parties prepared the final bill and submitted the same along with the salvages to the insurer and got the payment deceiving the complainant and against the assurances, settled the own damage claim for the complainant's vehicle on 04.09.2023 at ₹ 6,27,793/- (Rupees six lakh twenty seven thousand seven hundred and ninety three only) and received the entire payment by the first opposite party without complainant's knowledge. The complainant, on information, demanded the advance payment made by the complainant but they persuaded many ways to delay. On receipt of the insurance amount, the first opposite party has not repaid the amount of ₹ 4,50,000/- (Rupees four lakh and fifty thousand only) to the complainant. The complainant regularly contacted the opposite parties 1 and 2 to refund the said amount to the complainant but they did not heed to the request of the complainant. The acts of the first and second opposite parties were negligent & deficient service, and unfair trade practices.

There is an inordinate delay in repaying the amount of          ₹ 4,50,000/- (Rupees four lakh and fifty thousand only) to the complainant by the first opposite party. The act of opposite parties 1 and 2 amounts to a deficiency in service and unfair trade practice. The complainant had sustained heavy losses besides the costs, mental strain and agony due to the deficiency in service of the first opposite party.

Hence, this complaint is filed by the complainant praying for a direction to the first opposite party to pay an amount of ₹ 4,50,000/- (Rupees four lakh and fifty thousand only) to the complainant along with interest and to direct the first and second opposite parties to pay a compensation of ₹ 2,00,000/- (Rupees two lakh only) and ₹ 10,000/- (Rupees ten thousand only) towards the cost of preparation of paper communication, photostat copies, typing, and stationery, along with ₹ 50,000/- (Rupees fifty thousand only) towards the cost of this complaint.

Upon notice from this commission, opposite parties appeared before the commission and filed separate versions.

Version of the first opposite party is as follows.

The complaint is not maintainable either on law or on facts. The complainant is not a consumer of the first opposite party as per the provisions of the Consumer Protection Act.

The complainant is the owner of a light motor vehicle bearing no KL-43- M-4000, an Audi A3 Limo make and BSIV/A3-35 TDI. The car is insured with the third opposite party vide comprehensive (Package) Insurance Policy No.1013013122P102709032. The complainant took the assistance of the first opposite party under the insurance issued by the third opposite party.

The complainant himself approached the first opposite party and availed the service. The first opposite party explained the procedure and assured the best service at the amount sanctioned or settled by the third opposite party. After that, the complainant directed the first opposite party to carry out the repair work. The complainant persuaded the first opposite party to receive the advance payment of ₹ 4,50,000/- (Rupees four lakh and fifty thousand only) and start the repair work as soon as possible without waiting for the third opposite party to sanction the claim amount. The complainant insisted that the first opposite party to start the work immediately after the surveying of the damages by the third opposite party and made the claim amount to be sanctioned to this first opposite party so that the balance repair charges shall be received by the first opposite parties directly from the third opposite party. The complainant himself had made the third opposite party pay the claim amount to the first opposite party. The first opposite party has never persuaded or requested the complainant to do anything as alleged.

The first opposite party completed the work and handed over the vehicle back to the complainant. The claim amounts were paid to the first opposite party with the knowledge of the complainant. Since the third opposite party had sanctioned the entire amount the first opposite party incurred, the first opposite party returned the advance amount of ₹ 4,50,000/- (Rupees four lakh fifty thousand only) in cash to the complainant without delay.

After receiving the entire amount, the complainant makes false allegations against the first and the second opposite parties with ulterior motives. The complainant had some weird demands regarding surveying the vehicle, believing it was for his benefit, and this first opposite party did not heed to them. The complainant alleges the first opposite party colluded with the third opposite party and the first opposite party has worked for the benefit of the third opposite party and has threatened to sue the first opposite party for causing harm to the goodwill and reputation of the first opposite party. It is with this intention that this false complaint is filed. In fact, the issue raised by the complainant is regarding the realization of money and the settlement of the account. The alleged dispute is a civil dispute that should be tried by a civil court. It is submitted that the District Commission lacks jurisdiction as far as issues of settlement of accounts and realization of money are concerned. The complainant never sustained any deficiency in service or unfair trade practice from the hands of the first opposite party.

The second opposite party filed version contenting as follows:

The complaint is not maintainable as the complainant is not a consumer of the second opposite party.

        The second opposite party is not connected with the first opposite party. The second opposite party has never advised or persuaded the complainant to avail the service of the first opposite party. The complainant voluntarily approached the first opposite party and availed his service.

The second opposite party has nothing to do with the business of the first opposite party. The second opposite party has not agreed to repair the complainant's vehicle. The second opposite party has not persuaded the complainant to make any advance payment and he has not received any such amount from the complainant. The opposite party has not done any work on the complainant's vehicle and he has not filled out any claim form or submitted any claim with the third opposite party. The second opposite party has also not received any such claim amount from the third opposite party. The second opposite party has also not agreed to make any payments to the complainant. The complainant has not demanded any payments from the second opposite party. The complainant had not sustained any negligent or unfair trade practice at the hands of the second opposite party. The second opposite party has no transactions with the complainant and he has never adopted any deficient service towards the complainant.

Version of  the third opposite party  is as follows:

The complainant has insured his motor vehicle bearing Reg. No. KL-43-M-4000 with this opposite party vide a package insurance policy referred to in the claim petition. When the claim intimation regarding the accident was informed to the third opposite party, it arranged for an Investigation and Survey and the surveyor submitted his report and based on the Surveyor's Report, after deducting policy excess, salvage value etc, the claim petition was settled for ₹ 6,27,793/- (Rupees six lakh twenty seven thousand seven hundred and ninety three only) and the amount was paid to the first opposite party, the repairer on 04.09.2023 as they submitted the repair bill to this opposite party. This opposite party is unaware of any understanding or payment made between the complainant and the first opposite party. The matter of payment, if any, made by the complainant to the first opposite party was not informed to the third opposite party also, by the complainant. So, as per the usual practice, the payment was made to the repairer as they have repaired the vehicle as per the recommendation made by the surveyor and as the car was handed over to the complainant fully repaired.

Moreover, on receipt of the amount, the first opposite party the repairer also executed a discharge voucher in favour of the third opposite party. So, the third opposite party has cleared all its liabilities in favour of the complainant in connection with the damage caused to the vehicle bearing Reg. No. KL-43-M-4000. There is no cause of action against this opposite party, as alleged in the complaint.

Evidence of this case consists of deposition of PW1 and Exhibits  A1 to A10 from the side of the complainant. Sunil Jhon, who is the Manager of the third opposite party, filed a proof affidavit in lieu of chief examination. There is no oral or documentary evidence from the side of the first and second opposite parties.

We would like to consider the following points on evaluation of the complaint, version, and evidence on record.

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
3. If so, what are the reliefs and costs?

For the sake of convenience, we would like to consider point number 1 to 3 together.

There is no dispute on the fact that the complainant owns an Audi A3 Limo make and BSIV/A3-35 TDI Model car bearing registration number KL-43-M-4000 and was insured vide exhibit A3 Insurance policy by the third opposite party. The specific case of the complainant is that on 12.02.2023, the vehicle met with an accident and was entrusted to the first and second opposite parties to carry out the repair works. Believing the assurance given by the first and second opposite parties that the final payment could be made after the settlement of the claim by the 3^rd  opposite party, the complainant paid an advance amount of ₹ 4,50,000/- (Rupees four lakh and fifty thousand only) to the first and second  opposite parties. However, though the first opposite party received an amount of ₹ 6,27,793/- (Rupees six lakh twenty seven thousand seven hundred and ninety three only) from the third opposite party, being the insurance claim, the first opposite party did not repay ₹ 4,50,000/- (Rupees four lakh fifty thousand only) to the complainant.

The complaint was resisted by the first and second opposite parties, contending that the complaint is not maintainable before this Commission as the complaint for realizing money and settlement of the account.

It is admitted by the first and second opposite parties that the complainant himself approached the first opposite party to get his vehicle repaired. It is further admitted by the first opposite party that they have received an amount of ₹ 4,50,000/- (Rupees four lakh fifty thousand only) from the complainant as an advance amount for the repair works. The third opposite party also admitted that the vehicle of the complainant was duly insured with them. Therefore, availing this service of repair from the first opposite party and the insurance service from the 3^rd opposite party, the complainant is a consumer of the first and third opposite parties as envisaged in the Consumer Protection Act 2019.

Another contention of the first and second opposite parties is that the complaint is for realisation of money and settlement of account. It is pertinent to note that the complainant alleges that the first and second opposite parties have committed unfair trade practice by not refunding the amount, which the first and second opposite parties received from the 3^rd opposite party as the own damage insurance claim of the vehicle due to the accident. A consumer dispute alleging the unfair trade practice by the seller, manufacturer, or service provider is maintainable before the District Consumer Dispute Redressal commissions. Therefore, we are of the opinion that the complaint is maintainable before this Commission. Point number one answered in favour of the complainant.

It is proved by Exhibit A4, which is the extract of the general diary dated 17.02.2023 of  Trikkodithanam Police Station, that on 12.02.2023, the vehicle bearing registration number KL-43-M-4000 had collided with a vehicle bearing registration number KL-33-F-4900. Admittedly, the car was entrusted to the first opposite party, who is the proprietor of the Tuffline Garage and spare parts to carry out accident repair works. PW1, who is none other than the complainant, deposed before this Commission that he had transferred an amount of ₹ 4,50,000/- (Rupees four lakh fifty thousand only) to the account of Tuffline Garage as directed by the second opposite party. It is proved by Exhibits A5 statement of account of the complainant that on 02.03.2023,  ₹ 3,00,000/- (Rupees three lakh only) and on 12.04.2023 another amount of ₹1,50,000/- (Rupees one lakh fifty thousand only) had transferred by him to the account of Tuffline Garage. It is admitted by the third opposite party that the vehicle of the complainant was insured with them. It is further admitted by the third opposite party that on receiving an intimation regarding the accident, the third opposite party appointed a surveyor and after receiving the report of the surveyor, the claim was settled for an amount of        ₹ 6,27,793/- (Rupees six lakh twenty seven thousand seven hundred and ninety three only) and the amount was paid to the first opposite party by the third opposite party. According to the first opposite party, since the third opposite party had sanctioned the entire repair amount, the first opposite party returned the advance amount of ₹ 4,50,000/- (Rupees four lakh fifty thousand only) in cash to the complainant without any delay. However, they did not disclose the date on which the amount was returned to the complainant.

Moreover, the first opposite party did not adduce any evidence to prove that they had carried out repair works other than the damages caused in the accident. The first opposite party had no case that they had incurred more than the amount sanctioned by the third opposite party for carrying out the repair works of the complainant's vehicle. Based on the above discussed evidence we are of the opinion, that the first opposite party had not returned the advance amount to the complainant. The act of the first opposite party amounts to a deficiency in service. No doubt, the complainant had suffered much mental agony and hardship due to the deficiency in service on the part of the first opposite party. Though the complainant alleges that he had paid the advance amount to the first opposite party as directed by the second opposite party, the complainant did not adduce any evidence to prove this allegation. As a result, we allow this complaint against the first opposite party and pass the following order:

1. We hereby direct the first opposite party to pay ₹ 4,50,000/- (Rupees four lakh fifty thousand only) to the complainant with interest @9% from 12.04.2023 till the date of realization.
2. We hereby direct the first opposite party to pay the complainant ₹ 30,000/- (Rupees thirty thousand only) as compensation to the complainant for the deficiency in service on the part of the first opposite party.
3. We hereby direct first opposite party to pay ₹ 5,000/- (Rupees five thousand only) of the cost of this litigation.

The first opposite party is directed to pay the amounts to the complainant within 30  days from the date of receipt of a copy of this Order, failing which, the compensation amount shall carry interest  @ 9% p.a. from the date of this order till its realization.

Pending Application(s), if any, automatically stand disposed of as having been rendered infructuous.

Pronounced in the Open Commission on this the 29^th day of October, 2024

Sri. Manulal V.S, President  Sd/-

    Smt. Bindhu R.  Member     Sd/-

Sri. K.M. Anto, Member        Sd/-

APPENDIX :

Witness from the side of the complainant:

PW1 -       Dr. Satish K Joseph

Exhibits from the side of the Complainant :

A1    -       Copy of certificate of registration

A2    -       Copy of Driving License

A3    -       Copy of insurance package policy

A4    -       Copy of General Diary dated 17.02.2023.

A5    -       Copy of statement of account period from 01.03.2023     

                to 27.11.2023.

A6    -       Copy of invoice dated 26.06.2023.

A7    -       Copy of settled claims from 12.05.2023 to 12.05.2023.

A8    -       Copy of print out of whatsapp chat with opposite party.

A9    -       Copy of print out of whatsapp chat with opposite party.

A10  -       Copy of pendrive

Exhibits from the side of the Opposite Parties :  Nil

By Order,

sd/-

                                                                                                 Assistant Registrar