KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO. 445/2011

JUDGMENT DATED: 15/12/2012.

PRESENT:

SMT. A. RADHA:                                                                  MEMBER

SHRI. K. CHANDRADAS NADAR:                   JUDICIAL MEMBER

M/s. Reliance General Insurance

Company Ltd., Trans Towers,

Vazhuthacaud,

Thiruvanananthapuram.                            :                   APPELLANT

(By Adv. Sri. Sreevaraham G. Satheesh)

Vs.

1.      Santhakumari

          9/168 A, K.S.K. bhavan, Vazhuthoor,

          Neyyattinkara,

          Thiruvananthapuram-695415.

2.      Kulathunkal Motors,

          Toll Junction, Bypass Road,

          Anayara, Trivandrum.                      :                   RESPONDENTS

(By Adv. Sri.V.K. Mohan Kumar R/by Rp.2)

JUDGMENT 

SMT. A. RADHA :        MEMBER

          Aggrieved by the order passed by CDRF Thiruvananthapuram  in C.C No. 445/11  2^nd opposite party came up  in this appeal.

2.      The facts of the case are that the complainant’s Indica car met with an accident on 13.12.2010 which was insured with the second  opposite party.  First opposite party repaired the vehicle and the tax invoice issued for Rs.85,636/- on 12.1.2010.   The  vehicle was not returned by the first opposite party as the amount was not paid.  Even after contacting first opposite party several times vehicle was not released stating that sufficient amount was not received in order to release the vehicle.  The allegation of the complainant is that due to the deficiency of service of the first and second opposite parties the vehicle was kept with the 1^st opposite party for more than a month which caused monetary loss.  It is also alleged that the first and second opposite parties colluded together for making unlawful gain. This act amounted to unfair trade practice and deficiency in service on the part of the opposite parties.  Hence filed   this complaint before the Forum Below.

3.       In the version filed by the first opposite party it is contended that the tax invoice was not paid by the complainant or by the  first opposite party until 24.2.2011.  The work was entrusted by the 2^nd opposite party on 15.12.2010 and repair was carried out on  12.1.2011.  Due to the non-payment of amount against the  tax invoice the vehicle was not released and kept in the custody  of the first  opposite party exercising their right of lien.  The non-remittance of tax invoice by the complainant caused the delay in the release of the vehicle and the 1^st opposite party is not liable for any loss alleged to be  caused by the complainant.

4.          It is contended in the version filed by the 2^nd opposite party that the claim was already settled from the part of the second opposite party and the complaint is filed without merits.  On receiving the claim form, the second opposite party arranged the surveyor to assess the loss and the independent surveyor assessed  the loss for an and amount of Rs.  68,410/-. The policy was not disputed.  The claim was settled as per the terms and conditions of the policy and the  non-release  of the vehicle was not aware to the second opposite party.  The actual loss was assessed by the surveyor as per the policy conditions.

 5.      The evidence consisted of the oral testimony of the complainant as PW1 and documents were marked as Ext.P1 to P5.  On the part of the opposite party DW1 and DW2 were examined and D1 was marked in evidence.  The Forum below came to the conclusion that   company had some responsibility to inform the progress of the repairing work of the vehicle.  It was not found on the part of the 2^nd opposite party and construed as deficiency in service.

 6.    The counsel for the appellant/2^nd opposite party submitted that the   vehicle was entrusted with the 2^nd respondent/first opposite party for repair of the work which was completed and paid the assessed amount.  The assessment was carried out by the surveyor of the second opposite party and assessment made was for an amount of Rs.68,410/-which was paid by  the 2^nd Respondent/ first opposite party.   The vehicle was assessed through an independent surveyor.  The assessment was carried out as per the terms and conditions of insurance policy.  The liability of the insurance company is limited as per conditions.  It is the first respondent/complainant who was at  fault for not enquiring about the progress of the repair work and failed to pay the balance amount of the repair charges.  The failure in  handing over the vehicle was due to the non-payment of the balance amount of the repair work.  The first respondent/complainant was  well aware of the  invoice as he was in constant contact  with 2^nd respondent/2nd  opposite party.  It is clear from the evidence and from the deposition of PW1  that the respondent was  aware of the bill  and  was well aware of the claim settlement.  He also pointed out that it is the responsibility of the complainant to get the bill paid by the insurance company. It is also evident from Exbt. P5 that the invoice was issued as early as on 12/10/2010.   As the bill was not paid fully the second respondent/first opposite party kept the car in the work shop. 

 7.                The counsel for second respondent/ first opposite party submitted that on receiving the claim form, the invoice was issued with intimation to the first respondent/complainant.  Though that invoice was for an amount Rs.85,636/- the appellant/2nd opposite party assessed the insurance  claim to the tune of  Rs.68,410/-.  The balance amount was not paid by the first respondent/complainant.   Even after the 1st respondent’s information had as early as on 12.10.2010, 1^st Respondent   was not willing to take back the vehicle.  Until the full payment is satisfied as per tax invoice, the allegation against the 2^nd respondent concocted one. No loss caused to the first respondent.  The complaint is filed merely to harass the opposite parties.  The delay in payment of the balance amount of tax invoice is the reason for non-release of vehicle.  The first respondent/the complainant suppressed the material facts and filed frivolous complaint before the forum below. 

8.        The arguments put fourth by the counsel for the 1^st Respondent/complainant are that the delay in releasing the vehicle caused due to unfair trade practice.  The vehicle was entrusted to the opposite party on 15.12.2010 and the tax invoice was for an amount of Rs.85,636/-.  It is also submitted that the 2^nd respondent/the 1^st opposite party never informed the first respondent/complainant regarding the payment made by them.  The bill was issued as on 12.1. 2011 and amount paid was Rs.65,410/- by the appellant/ opposite party  as per assessed amount.  The allegation made by the first respondent/complainant is that both the opposite parties never informed the amount that had to be paid by the 1^st respondent.  The first respondent/complainant was not aware of the payment of balance amount.  In the absence of information from none of the opposite parties the balance amount was not paid by the first respondent/ complainant and could not release the vehicle from 2^nd respondent/1^st opposite party.  The delay in payment caused loss to the 1^st respondent and 1^st respondent had to spend more than Rs.15,000/- for hiring vehicle for his personal use during that period.

9.      Heard the counsels for appellant and respondents.  We have gone through the documents and evidence adduced by the parties.  We are of the view that the complainant was aware of the tax invoice of the repair work as early as on 12.10.2010 regarding payment of

Rs.85,636/-.  The payment made by appellant/2^nd opposite party was not informed to the 1st respondent.  The 2^nd respondent had not released the vehicle as the insurance claim was settled as per the terms and conditions of the policy only.  It is also evident from the deposition of PW1 that he was aware of the bill dated 12.10.2010.  It is the prime duty of the complainant to enquire about the stage of repair work which was entrusted with the 2^nd respondent’s workshop.  The claim was settled as per terms and conditions of the policy.  There cannot be any dispute that 100% of the claim will be settled.  The depreciation will be calculated in all the   claim amount.  As the tax invoice is well within the knowledge of the complainant, a duty is cast upon him to enquire the details. The fault of the 1^st respondent/complainant cannot be attributed as deficiency in service on the part of the opposite parties.

  In the result appeal is allowed setting aside the order passed by the forum below.

     Office is directed to send’ a copy of the order with LCR to the Forum Below.

A. RADHA: MEMBER

            K. CHANDRADAS NADAR: JUDICIAL MEMBER

NB