IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 21st day of August, 2020
Filed on 10.11.2016
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma.LLB(Member)
In
CC/No.362/2016
Between
Complainant:- Opposite parties:-
Smt. Kunjumol 1. Shriram General Insurance Co.ltd.
W/o Viswanathan 41/339/C1, 2nd Floor, Azad Tower
Vattaparambil Ammancovil Cross Road, Cohin.
Muhamma, Cherthala (Adv. Tony Antony)
(Adv. Vinoy Varghese)
Corporate Office
E-8, EPIDI, R11co. Industrial Area
Sitapur, Jaipur-302022
Rajasthan- India
2. Shriram Transport Finance Co. Ltd
AMEW-33/12
1st Floor
Thiruvambadi.Jn. Alappuzha
(Exparte)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
Complaint filed u/s 12 of the Consumer Protection Act. 1986.
The facts of the complainant’s case are as follows:-
The complainant is the registered owner of the vehicle bearing Reg.No.KL-6-E-2622, TATA INDIGO FACELIFT LS. She had purchased the vehicle for her livelihood, by availing a loan from the 2nd opposite party. The said vehicle was insured with the 1st opposite party. The policy was full cover insurance policy (Passenger carrying package policy) for a premium of Rs.15,839/- and the IDV Rs.2,12,959/- and the period of insurance from 2/3/2015 to 1/3/2016. On 3/7/2015 the complainant’s driver Sree Renjith got a trip to Munnar along with other passengers, the vehicle met with an accident and was totally damaged. The accident was intimated to the 1st opposite party as well as concerned police station. The vehicle was brought to the RF Motors(P) Ltd, Thodupuzha for repairing on 14/7/2015, from this date onwards the RF Motors is claiming an amount of Rs. 100/- per day as parking charges. The damaged vehicle was surveyed by the authorized surveyor appointed by the 1st opposite party, reported that it was total loss. But the opposite party did not settle the claim till date. Several times the complainant approached the 1st opposite party for the claim amount, but they said that the claim is in process. Moreover the employee of the 2nd opposite party threatened the complainant and on 20/6/2016 they initiated arbitration proceedings against the complainant. According to the complainant he could not repay the loan amount due to the dereliction of duty by the 1st opposite party. The said act leads the complainant to huge financial loss and mental agony. Hence the complainant approaches this commission for seeking following reliefs against the 1st opposite party.
(1) To direct the 1st opposite party to settle the claim and also give the parking charges claimed by service center, with interest to the complainant.
(2) To direct the 1st opposite party to pay compensation and litigation cost to the complainant.
2. Version of the 1st opposite party is as follows:-
The complainant is not a consumer since vehicle in question is being used for commercial purpose. Secondly the complaint is bad for non–jointer of necessary parties. Opposite party further contented that the surveyor was deputed immediately after the intimation of the accident and as per the report the assessment of loss was Rs.1,23,500/-(Rupees One lakh twenty three thousand five hundred) the matter is settled for Rs. 1,00,000/-(Rupees One lakh) in full and final settlement between the complainant and opposite parties. The settlement voucher signed by the complainant. The said amount was transferred to 2nd opposite party and had credited in her loan account. Thus the question of deficiency in service is not arising. Opposite party further contented that they are not liable to pay parking fees to the service centre since it is the fault of the complainant the vehicle is keeping the yard without conducting repairs. Thus the complainant is liable to pay the said amount due to the above circumstances. The service center is also a necessary party to the proceedings. The aforementioned reasons, there is no willful laches or negligence from the part of the 1st opposite party hence the allegation of deficiency in service is absolutely false. The complainant is not entitled to get any relief as he claimed in the complaint.
3. The Power of attorney holder of the complainant examined as PW1. Ext.A1 to A4 were marked. No oral evidence advanced by 1st opposite party. Ext.B1 to B4 were marked. 2nd opposite party remained absent and declared them exparte. Both sides filed argument notes and heard them.
4. Points for consideration are:-
1. Whether the complainant is a consumer within the
scope of Consumer Protection Act?
2. Whether there is any deficiency in service from the
part of 1st opposite party?
3. Relief and cost?
5. Point No. 1:
The 1st opposite party contented that the complainant is using the vehicle for commercial purpose. Since the vehicle is operating with third party the driver. According to the complainant, who purchased the vehicle for earning her livelihood. Apart from the averments of 1st opposite party’s version nothing is on records to show that the complainant had used the vehicle for commercial purpose. Commercial purpose is defined as something which she uses it for economic gain by plying the vehicle for commercial purpose. There is not even a scrap of paper which will indicate that the vehicle was used for any commercial purpose or activities. During the cross examination of PW1 the son of the complainant, deposed that usually he himself plys the disputed car, but on that particular day of accident he happened to engage another driver because of his illness. In the absence of contrary evidence we are only to hold that the complainant has purchased the car for earning her livelihood. Moreover she had taken passenger carrying package policy. In that view of matter we are of the firm opinion that the complainant is a consumer within the ambit of the Consumer Protection Act. Hence this issue is found in favour of the complainant.
6. Point No.2:
Ext.A1 is the copy of Insurance certificate; Ext.A2 is the copy of Registration certificate. Ext.A3 is the copy of Job card issued by RF Motors and Ext.A4 is the copy of driving license. It is admitted that the vehicle had damaged in a road accident on 3/7/2015, and the same was insured with the 1st opposite party for the period from 2/3/2015 to 1/3/2016. The case of the complainant is that even though the surveyor assessed the vehicle for total loss, the 1st opposite party did not settle the claim till now. The 1st opposite party contented that as per Ext.B2 Survey report the loss assessed as Rs. 1,23,500/-(One lakh twenty three thousand five hundred only) in accordance of Ext.B2. The matter was settled between the parties for Rs.1,00,000/-(One lakh ) and had executed Ext.B3 voucher for full and final settlement and the said amount was transferred to complainant’s loan account maintained with 2nd opposite party.
On a perusal of Ext.B3 Voucher, it is only a photo copy, the same has not bearing date. However in Ext.B4 copy of Account statement belong to complainant’s account reveals that on 11/12/2015 Rs. 1,00,000/- (Rupees One lakh) was debited towards arrears by way of cheque. PW1, Power of attorney holder, was cross examined in this aspect; he denied these transactions and deposed that he is willing to submit balance account statement. But nothing is produced before the Forum. On the contrary opposite party contented that she executed Ext.B3 settlement voucher. In which she put her signature. On a keen observation of Ext.B3, it reveals that said document is created for the purpose of not disbursing the entire mount as found by the surveyor. However it is the duty of the complainant to deny the veracity of Ext.B3 voucher. But she did not mount the box to adduce oral evidence. Her absence in the Commission speaks volumes. In the absence of any convincing and cogent evidence we are only to hold that the complainant has miserably failed to prove any deficiency in service on the part of the 1st opposite party.
7. Point No.3
In the result complaint is dismissed. No cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 21st day of August , 2020.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri. S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Bijesh.V.V(Witness)
Ext.A1 - Copy of Insurance Certificate.
Ext.A2 - Copy of Registration Certificate.
Ext.A3 - Job Card issued by RF Motors.
Ext.A4 - Copy of Driving License.
Ext.A5 - Fire Report.
Evidence of the opposite parties:-
Ext.B1 - Copy of Policy Certificate
Ext.B2 - Survey Report
Ext.B3 - Voucher
Ext.B4 - Account Statement
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
