Date of Filing : 06.12.2022
Date of Disposal : 22.06.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA.,ML, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., BL., .....MEMBER-I
CC. No.03/2023
THIS THURSDAY, THE 22nd DAY OF JUNE 2023
Mrs.Pushpavalli, W/o.Lakshmanan,
No.32/2, Perumal Koil Street,
Mannurpet, Chennai. ……Complainant.
//Vs//
1.Mr.Senthilvelan,
Proprietor and Agent of GoBumpur,
Sree Lakhmi Motors,
Plot No.3, Door No.565/4,
Thirupathi Kadai Road, Kalaivanar Nagar,
Athipet, Ambattur, Chennai.
2.The Branch Manager,
The United India Insurance Company Limited,
12001, No.130 MTH Road,
Ambattur Industrial Estate,Chennai 50. …..opposite parties.
Counsel for the complainant : M/s.S.Sushilkumar, Advocate.
Counsel for the 1st opposite party : M/s.P.Balamurugan, Advocate.
Counsel for the 2nd opposite party : Exparte.
This complaint is coming before us on various dates and finally on 12.06.2023 in the presence of M/s.S.Sushilkumar counsel for the complainant and M/s.P.Balamurugan counsel for the 1st opposite party and 2nd opposite party was set exparte for non appearance and upon perusing the documents and evidences of the complainant this Commission delivered the following:
ORDER
PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER-I
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties in reimbursing the claim amount along with a prayer to direct the opposite parties to pay a sum of Rs.2,35,000/- with 12% interest per annum from the notice dated 02.05.2022 till realization and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant and to pay a sum of Rs.10,000/- towards the cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-
The complainant had purchased TATA INDICA VISTA bearing registration No.TN 13A4599 and the said vehicle was insured with United India Insurance for the ID value of Rs.2,35,000/- vide customer ID No.23052779935. The complainant approached the 1st opposite party on 27.02.2021 for touchup and painting of the vehicle for a sum of Rs.30,000/- and paid a sum of Rs.10,000/- as advance to the 1st opposite party. The complainant received a call from 1st opposite party on the day itself stating that her vehicle was burnt. She had taken photographs of the burnt car. She immediately informed the 2nd opposite party and the 2nd opposite party inspected the burnt car. She lodged a complaint to the Police on 01.03.2021 before the Inspector of Police, Ambattur and FIR has been registered vide FIR No.87/2021 on 22.03.2021. The complainant made a complaint to Taluk legal Service Authority against the 1st opposite party and the 1st opposite party failed to attend the same.
The complainant submitted necessary documents to the 2nd opposite party as requested by them vide letters dated 18.08.2021, 05.10.2021 and 19.11.2021. The complainant approached the 2nd opposite party in person several times and the explained the facts to them. However, the 2nd opposite party informed the complainant that they would give Rs.1,50,000/- only. Since the said car was burnt in whole the complainant insisted to the 2nd opposite party to pay ID value of Rs.2,35,000/-. Till date the 2nd opposite party has not taken any action. Therefore the act of opposite parties amounts to deficiency in service and unfair trade practice and hence the complaint.
Crux of the defence put forth by the 1st opposite party:-
The 1st opposite party disputing all the allegations in the complaint interalia contended that the above alleged accident was covered under insurance and the 2nd opposite party never denied paying the claim. The complainant approached the 1st opposite party on 27.02.2021 for touchup and painting and left the car outside the workshop. The complainant paid a sum of Rs.10,000/- as advance to the 1st opposite party. At about 4 pm on 27.02.2021, the car began to burn without any external influence. The 1st opposite party had taken precautionary measures to douse the fire. The said car was handed for painting works and not for any mechanical defects. Even before the commencement of painting work, the vehicle got fire and the 1st opposite party had not done anything to cause the accident. The 1st opposite party had undertaken to repair the car within the insurance claim since the said vehicle was insured. The 1st opposite party had returned the advance amount to the complainant. If the accident was caused by the 1st opposite party, the 2nd would not have admitted their liability. The 1st opposite party suitably replied to the legal notice issued by one Penn Thozhilalargal Sangam. The said vehicle can be repaired in good condition with the claim amount of Rs.1,50,000/- offered by the 2nd opposite party. There is no deficiency in service on the part of 1st opposite party and prays to dismiss the complaint.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to Ex.A13. On the side of 1st opposite party proof affidavit was filed and submitted documents marked as Ex.B1 to Ex.B3 on their side. Though valakath filed by the 2nd opposite party they did not appear before this commission and hence was called absent and set exparte on 21.03.2023 for non appearance and non filing of written version within the mandatory period as per the statute.
Points for consideration:
Whether the alleged act of deficiency in service and unfair trade practice on the part of the opposite parties in not reimbursing the claim of the complainant has been successfully proved by him by admissible evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
It is the case of the complainant that she had handed over her vehicle for touch up and painting work to the 1st opposite party on 27.02.2021 at around 11am. On the same day at about 4 pm the 1st opposite party informed that the vehicle was burnt due to their mistake. The complainant informed to the 2nd opposite party and the 2nd opposite party inspected the premises. The complainant lodged a complaint before Inspector of Police, Ambattur and FIR has been registered vide FIR No.87/2021. The damage was caused due to negligent act of the 1st opposite party. The 2nd opposite party had offered Rs.1,50,000/- towards the claim made by the complainant. The complainant insisted to pay the ID value of the vehicle. The 2nd opposite party had not taken any action till date. Hence the 1st and 2nd opposite parties committed deficiency in service.
To prove the case, the complainant deposed proof affidavit with 13 documents which were marked as Ex.A1 to Ex.A13. Ex.A1 is the copy of insurance for the car, Ex.A2 is the Registration Certificate, Ex.A3 is the photos of burnt car, Ex.A4 is the video footage of burnt car, Ex.A5 is the complaint to the police, Ex.A6 is the copy of FIR, Ex.A7, Ex.A8 and Ex.A9 are letters issued by the 2nd opposite party, Ex.A10 is the letter given by the complainant to the 2nd opposite party, Ex.A11 is the letter issued by 2nd opposite party, Ex.A12 is the legal notice issued by the complainant to the opposite parties and Ex.A13 is the complaint given by the complainant to Taluk Legal Service Authority.
Per contra the 1st opposite party interalia contended that there is no deficiency in service on their part. The vehicle got fire before commencement of painting works. The vehicle was handed over only for painting works and not for any mechanical defects. The said vehicle was covered under insurance of the 2nd opposite party and therefore the 1st opposite party undertook to repair the defects within the insurance claim without any labour charges. The 1st opposite party had refunded the advance amount of Rs.10,000/- to the complainant. The 1st opposite party suitably replied to the legal notice issued by the complainant. There is no merit in the complaint and the same deserves to be dismissed.
To refute the claim of the complainant the 1st opposite party deposed proof affidavit with 3 documents which were marked as Ex.B1 to Ex.B3. Ex.B1 is the letter issued by Penn Thozhilalargal Sangam, Ex.B2 is the reply notice by the opposite party and Ex.B3 is the acknowledgement card for proof of delivery.
It is not disputed by both the parties that the said car bearing Registration No.TN13A4599 was burnt when it was in the custody of 1st opposite party. It is also not disputed that the said vehicle was covered under insurance of the 2nd opposite party. Ex.A1 is the insurance policy issued by the 2nd opposite party. Ex.A2 is the Registration Certificate of the car stands in the name of complainant.
It is seen from Ex.A3, the photographs that the said car was burnt in whole when it was kept under the custody of the 1st opposite party. The complainant handed over the vehicle for painting and touchup work to the 1st opposite party on 27.02.2021. The complainant paid a sum of Rs.10,000/- towards advance and the total painting charges is Rs.30,000/-. On 27.02.2021at about 4pm the 1st opposite party informed the complainant that the said car was burnt for the reasons unknown to them.
It is an admitted fact the vehicle was in the custody of 1st opposite party at the time of accident. The 1st opposite party ought to have taken proper care of the vehicle. Moreover, the 1st opposite party had not explained the cause for accident. However, it is the duty of the 1st opposite party to take care of the vehicle which was given for any kind of rectification or repairs. The 1st opposite party failed to take proper care of the vehicle. The 1st opposite party failed to ascertain the cause for accident. It is evidenced from Ex.A3 & Ex.A4 that the said vehicle was under the custody of 1st opposite party.
Ex.A6 is the First Information Report about the accident. As per Ex.A7, Ex.A8 and Ex.A9, the 2nd opposite party raised certain explanations with respect to the claim made by the complainant. The complainant replied to the questioned raised by the 2nd opposite party vide Ex.A10.
The counsel for the complainant argued that the 2nd opposite party agreed to pay Rs.1,50,000/- towards the claim made by the complainant. However, the complainant insisted 2nd opposite party to pay the ID value of Rs.2,35,000/- since the vehicle was damaged in whole.
The 2nd opposite party had not appeared before this commission to defend the case by filing written version, necessary inspection and survey reports etc. Moreover the 2nd opposite party had not issued any reply to the legal notice dated 02.05.2022 issued by the complainant.
We have heard the argument of both the counsels and carefully perused the documents placed before this commission. The act of 1st opposite party for not taking proper care to the vehicle which was handed over to him for certain rectifications amounts to deficiency in service. The act of 2nd opposite party not honoring the genuine claim of the complainant amounts to deficiency in service. Hence we have come to the conclusion that 1st and 2nd opposite parties had committed deficiency in service. This point is answered accordingly.
Point No.2:-
Since we have come to the conclusion that the opposite parties had committed deficiency in service, the complainant has to be compensated for her loss, suffering and mental agony. We have inclined to direct the 2nd opposite party to pay the insured declared value of Rs.2,35,000/- to the complainant. We further direct the 1st and 2nd opposite party jointly and severally to pay a sum of Rs.1,00,000/- towards compensation for mental agony, loss and deficiency in service and Rs.10,000/- towards cost of this complaint. This point is answered accordingly.
In the result, the complaint is partly allowed
a) Directing the 2nd opposite party to pay Rs.2,35,000/- (Rupees two lakhs thirty five thousand only) being the insured declared value of the car bearing Registration No.TN 13 A 4599 to the complainant;
b) Directing the opposite parties 1 & 2 jointly and severally to pay a sum of Rs.1,00,000/- (Rupees one lakh only) towards compensation for the mental agony, loss and deficiency in service and to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant.
c) The above order shall be complied within six weeks from the date of receipt of this copy of the order, failing which, the said refund amount and compensation amount shall carry interest at the rate of 9% per annum till the date of payment.
Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this the 22nd day of June 2023.
Sd/- Sd/-
MEMBER I PRESIDENT
List of document filed by the complainant:-
Ex.A1 10.08.2020 Copy of insurance for the car with the 2nd opposite party. Photo copy
Ex.A2 ................ Registration Certificate. Photo copy
Ex.A3 ................ Photo of burnt car. Photo copy
Ex.A4 ............... Video footage of burnt car. Photo copy
Ex.A5 01.03.2021 Complaint to the Police. Photo copy
Ex.A6 22.03.2021 Copy of FIR No.87/2021. Photo copy
Ex.A7 18.08.2021 Letter issued by 2nd opposite party. Photo copy
Ex.A8 05.10.2021 Letter issued by 2nd opposite party. Photo copy
Ex.A9 19.11.2021 Letter issued by 2nd opposite party. Photo copy
Ex.A10 ................ Letter to 2nd opposite party by complainant. Photo copy
Ex.A11 21.03.2022 Letter by 2nd opposite party. Photo copy
Ex.A12 02.05.2022 Legal notice issued to the opposite parties by the complainant. Photo copy
Ex.A13 28.09.2021 Complaint given to Taluk Legal Service Authority by the complainant. Photo copy
List of document filed by the 1st opposite party:-
Ex.B1 27.07.2021 Legal notice original
Ex.B2 31.07.2021 Reply notice. Photo copy
Ex.B3 ................ Acknowledgement card. original
Sd/- Sd/-
MEMBER-I PRESIDENT
