COMPLAINT FILED ON: 26.11.2009
DISPOSED ON:25.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
25th DATED THIS THE JUNE-2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2782/2009
Complainant | Mr. Mani Bhushan Singh, S/o J.P. Singh, Aged about 41 years, R/at No.441, III Block, 11th Cross, HMT Layout, Vidyarandyapura, Bangalore – 560 097. Advocate: Sri. Harikrishna S. Holla V/s. |
OPPOSITE PARTIES | 1. IG Workshop, A Division of VST Auto Ancillaries Pvt. Ltd., Hessarghatta Road, Bagalagunte, Bangalore – 560 057. Rep: by its Works Manager Advocate: Sri. M.M. Cariappa 2. M/s Tata AIG General Insurance Co. Ltd., Branch Office, 2nd Floor, JP & Devi Jambukeswar Arcade, #69, Millers Road, Bangalore – 560 052. Rep: by its Branch Manager. Advocate: Sri. Ravi S. Samprathi |
O R D E R
SRI. B.S.REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to pay compensation of Rs.1,54,617/- with interest at 12% p.a., damages of Rs.25,000/- and for costs of the litigation on the allegations of deficiency in service on the part of the OPs.
2. The case of the complainant is to be stated in brief is that:
The complainant being the owner of Scorpio vehicle No.KA-04 MC-1243 had comprehensive policy taken from OP-2. OP-1 serviced the vehicle on 29.05.2009 and delivered to complainant on the same day on payment of Rs.24,482/- towards spare parts and labour charges. On 11.06.2009 when the complainant parked the vehicle at 15th Main Road, 5th Cross, BTM Layout, Bangalore some unknown persons caused heavy damage to the vehicle and immediately police complaint was lodged. The vehicle was towed by OP-1 to its garage on 12.06.2009. The complainant filed claim before OP-2 and OP-1 promised that the vehicle would be ready within one month from the date of assessment of cost by the surveyor of the insurance company. On inspection of vehicle OP-1 gave an estimate of Rs.99,799/- which includes charges of spare parts as well as labour charges. The estimate was done by insurance company through its surveyor without the knowledge of complainant and therefore the complainant was not in a position to know the exact cost of damages. While giving estimate OP-1 did not give estimate in respect of one scratch on body of the vehicle. The said work was not attended by the OP-1 even though the said scratch was resulted in the accident. For removal of said scratch the cost comes to Rs.10,000/- which was neither estimated by OP-2 nor repairs was carried out by OP-1. While carrying out the repairs OP-1 noticed that chassis has to be replaced and accordingly informed the complainant to take the permission of the RTO. Complainant obtained permission of RTO and furnished the same to OP-1. OP-1 again informed to secure endorsement on RC book from RTO, otherwise it would not be possible for them to carryout the repairs. The complainant after completion of repairs approached of OP-1 for delivery of the vehicle, OP-1 informed that the complainant is liable to pay balance amount of Rs.32,617/-, since the insurance company has approved repair charges only to an extent of sum of Rs.64,111/-. As the complainant was badly in need of the vehicle he was forced to pay Rs.32,617/- and took the delivery of the vehicle on 04.08.2009. OP-2 by its letter dated 29.07.2009 has stated that cost of parts to an extent of Rs.50,827/- has been allowed after depreciation as against the actual cost of Rs.85,779/-. While doing the repairs OP-1 informed complainant that since the chassis cannot be repaired and the same has to be replaced with new chassis, the complainant was forced to place order for new chassis. Since the replaced chassis is new chassis, the action of OP-2 in partly allowing the claim after depreciation instead of allowing the entire claim is contrary to contract. The depreciation can be claimed only on the old spares and when new component/ part introduced in the vehicle, the question of claiming depreciation does not arise. The complainant through his mail dated 03.08.2009 requested OP-2 to honour the entire claim. OP-2 sent reply dated 13.08.2009 wherein they have denied and also justified that the claim of complainant is confined to Rs.64,111/- as against claim of Rs.99,799/-. The Works Manager of OP-2 has strongly recommended to honour the claim. The action of OP-2 in disallowing the claim of complainant in full is contrary to law and amounts to deficiency in service. Just before the vehicle met with an accident, the vehicle was in good condition since OP-1 carried out service of vehicle by charging the worn out spares etc., However OP-2 disallowed part of claim on the ground that the worn out of spare part is not due to impact of accident. The denial of OP-2 in honouring the claim in full amounts to deficiency in service, more particulars when the OP-1 serviced the vehicle 15 days before the accident by collecting sum of Rs.24,428/- from the complainant, OPs without informing carried out survey and estimation. Delay in delivery of the vehicle against the promised date on 13.07.2009. On account of delay the complainant has to hire other vehicle and incurred expenses and therefore amounts to deficiency in service, OPs-1 and 2 are jointly and severally responsible for deficiency in service. OPs are liable for compensation as under:
Difference in claim amount : Rs. 32,167/-
Failure to carryout repairs of Rear
Quarte Panel, Tinking & Painting : Rs. 10,000/-
Expenses incurred on travel due to
delay in delivery : Rs. 92,000/-
Compensation towards inconvenience
caused to complainant : Rs. 20,000/-
Total : Rs.1,54,197/-
Hence the complaint.
3. On appearance, OP-1 filed version stating that the complainant entrusted his vehicle No.KA-04 MC-1243 for accidental repairs on 12.06.2009. The said vehicle was insured with OP-2 with cashless facility under the insurance policy. On 15.06.2009 OP-1 along with surveyor of OP-2 jointly inspected the vehicle and the damage was estimated at Rs.99,799/-. OP-1 prepared a spare parts indent and it was found necessary that the chassis of the vehicle had to be changed and OP-1 also sought approval from the insurance company for replacement of the chassis and the same was granted. OP-1 placed supply order with manufacturer for new chassis as per purchase order dated 18.06.2009, as there was no stock of chassis with OP-1. This was duly informed to the complainant and also regarding the possible time required for procuring the chassis, who had no objection for the same. The said order was executed by the manufacturer and the same was received by OP-1 on 09.07.2009. Immediately on receiving the new chassis, OP-1 requested complainant to apply for RTO permission and approval and endorsement in the RC book. On 16.07.2009 the permission for new chassis was accorded by the RTO and new chassis frame number was allotted. After receiving the sanction letter, the new chassis was inducted to the said vehicle and the job was completed on 20.07.2009, the complainant was informed regarding the vehicle is ready and to take the vehicle to RTO for physical verification and necessary endorsement on the RC book. In this process the complainant delayed the compliance for a further period of one week stating it is not his obligation to do the same. Thereafter an invoice dated 20.07.2009 was raised and the copy of the same was forwarded to OP-2 for payment. OP-2 has agreed to pay sum of Rs.64,111/- as its liability after depreciation as against the total claim of Rs.96,728/-, holding the insured’s liability as Rs.32,617/-. Therefore OP-1 informed the complainant to take delivery of the vehicle by making the payment of difference amount of Rs.32,617/- towards the insured’s liability. Complainant initially refused to make the payment and to take delivery of the vehicle. But finally the complainant by making payment of differential amount has taken delivery of the vehicle on 04.08.2009. There is no delay or deficiency of service in providing services to complainant’s vehicle as the vehicle was ready for delivery on 20.07.2009 itself, but the complainant refusal to take delivery of the vehicle by making payment of its liability is the cause for the delay.
The averment that the estimation was done by the insurance company through its surveyor without the knowledge of the complainant is denied as false. Further the averments that OP-1 failed to give estimation in respect of one scratch of the body is incorrect. The complainant informed that the said scratch was occurred on account of an old incident. Subsequently when this OP informed the complainant to pay sum of Rs.10,000/- the cost of removal of the scratch was refused by the complainant, hence responsibility to carryout the removal of the said scratch does not arise. OP-1 never agreed to deliver the vehicle within a month as alleged by the complainant. The claim of the complainant is motivated; he is not entitled for any sum much less the amount claimed. Hence it is prayed to dismiss the complaint with exemplary costs.
4. OP-2 filed version admitting that the policy of insurance was issued in respect of the vehicle No.KA-04 MC-1243. As per provisions of Section 64 UM of the Insurance Act, 1938 OP-2 appointed licensed surveyor to conduct the survey of damaged vehicle and to submit the report. The surveyor submitted the report, wherein he has assessed the value of damage payable under policy after deduction of depreciation, salvage and policy excess for an amount Rs.64,111/-. On the assessment made by surveyor, OP-2 paid sum of Rs.64,111/- in full and final satisfaction of the claim. The policy do not cover the different heads under which the complainant seeking compensation like the cost of hiring vehicle. Such costs being consequential loss are specifically excluded under the policy. The policy issued covered only damages to the vehicle and the same has been paid in full and final settlement of the claim, as per the assessment made by the surveyor. The surveyor had found extensive damage to the chassis and had recommended replacement of the same. The allegation that the depreciation is not applicable since the chassis being replaced is new one is denied. Depreciation is applicable as the chassis has been replaced with new one in the place of old one and the complainant has the benefit of new one in place of used chassis. This is in line with the well settled principle of indemnity applicable to the insurance contracts. The claim has been assessed and settled strictly in accordance with the terms of policy. There is no deficiency of service. OP-2 is not liable to pay any amount; hence it is prayed to dismiss the complaint.
5. The complainant filed affidavit evidence and produced documents. After OP-2 filed the version, the complainant filed additional affidavit. The Assistant Works Manager of 1st OP filed affidavit evidence in support of the defence version and produced documents. The official of OP-2 working as Head Claims filed affidavit evidence in support of the defence version. OP2 produced documents with list and got filed affidavit of surveyor M.N.Manjunath.
6. Written arguments filed by both the parties. Arguments heard.
The points now that arise for our consideration:
Point No.1:- Whether the complainant proved the
deficiency in service on the part of
the OPs?
Point No.2:- If so whether the complainant is
entitledfor the reliefs now claimed?
Point No.3:- To what Order?
7. We record our findings on the above points:
Point No.1:- Negative.
Point No.2:- Negative.
Point No.3:- As per final Order.
R E A S O N S
8. At the out set it is not in dispute that the complainant being the owner of Scorpio vehicle No.KA-04 MC-1243 had taken comprehensive policy from OP2. OP1is service station. On 11.06.2009 while the complainant parked his vehicle at BMT Layout, Bangalore, some other vehicle dashed against the same and caused damages to the vehicle. The police complaint was lodged and then the vehicle was towed by OP1 to its workshop on 12.06.2009. The complainant filed claim before OP2, the surveyor of OP2 and OP1 conducted joint survey with regard to the assessment of cost for attending the damaged vehicle and OP1 gave an estimate of Rs.99,799/-. After attending the work of repairs, the OP1 submitted bill to the extent of Rs.96,728/- to OP2 insurance company. The OP2 allowed the claim to the extent of Rs.64,111/-. The balance amount of Rs.32,617/- was not allowed, the said amount was paid by the complainant to OP1 and took delivery of the vehicle on 04.08.2009. The disallowed amount was with regard to depreciation and other in admissible claims.
9. The grievances of the complainant is while giving estimate OP1 did not include cost of repairs in respect of one scratch on the body of the vehicle though the said scratch was resulted in the accident and OP1 has not attended that work to remove the scratch. The surveyor of OP2 has also not estimated the cost of the said scratch. For removal of the said scratch, the cost comes to Rs.10,000/-. The defence of OP1 is the said scratch was occurred on account of an old incident as informed by the complainant himself and the same is evident from the inventories dt.05.03.2009, 20.04.2009 and 26.05.2009 marked as document Nos.15, 16 and 17 produced along with affidavit evidence, the said inventories are signed by the complainant’s brother Kamal Kishore Singh. Thus estimation with regard to the said scratch was not given as the same was not relating to the damage caused in the accident. It may be noted that in these inventories marked documents No.15,16 and 17, this scratch on the body of the vehicle has been shown with diagram, it appears that the said scratch was in existence even earlier to the accident in question. Though the complainant got the vehicle serviced from OP1 on 29.05.2009 but there is no material to show that the said scratch was got removed at that point of time. In case if the said scratch was on account of the accident that had taken place on 11.06.2009, there was no reason for OP1 in not including the same in the estimate. Merely because in the complaint lodged before the police the complainant has mentioned that the damage has occurred on right side body of the vehicle, it cannot be taken that the long scratch left out from the estimate and repairs has occurred in the said accident only. If the complainant had not informed OP1 that the said scratch has occurred in the earlier accident, there was no reason for surveyor of OP2 and OP1 in not including that scratch removal cost in the estimation prepared. The OP2 has not allowed the claim to an extent of Rs.32,617/- out of the total amount of bill claimed by OP1 to an extent of Rs.96,728/-. The OP2 by letter dt.30.07.2009 addressed to the complainant has furnished the details of total cost of the spare parts, labour charges, taxes and the depreciation on the replaced parts while allowing the claim to an extent of Rs.64,111/-. Metal parts replaced depreciation is made a 25% and for plastic items depreciation at 50%. The main grievances of the complainant is 25% of depreciation made for the new chassis fixed to the vehicle was not as per the terms of the contract of the insurance. It is shown that the total cost of that item one shown at Rs.40,280.76/- and depreciation at 25% is shown at Rs.10,070.19/-. The amount allowed with regard to that item is 30,210.57/-. OP2 by its letter dt.13.08.2009 brought to the notice of the complainant that 25% of the depreciation was deducted on metal parts as vehicle was of 2005 model, as per Section-1 of the policy, it was specifically brought to his notice that the old chassis which is the replaced with new chassis also attracts the depreciation as the same being a metal part.
10. The learned counsel for the complainant contended that depreciation is charge owing to the wear and tear of a part of the vehicle. The chassis is not a wearing part, hence OP2 was not justified to deduct 25% of cost of chassis as depreciation. Per-contra: it is contended for OP2 that depreciation is applicable to new chassis replaced, the complainant has the benefit of new chassis in the place of used chassis, this is in line with the well settled principles of indemnity applicable to the insurance contract. Further, it is contended that Section-1 of the policy terms and conditions provides depreciation for the parts to be replaced, as per the said terms and conditions, OP2 has deducted 25% of the cost of the chassis towards depreciation.
OP2 has produced the policy with terms and conditions, Section-1 of the policy provides depreciation for the parts to be replaced, rate of depreciation for the vehicle of the age exceeding three years but not exceeding 4 years is shown at 25% for the parts other than plastic, fibers etc. The metal parts of the vehicle to be replaced attract 25% towards depreciation, the chassis replaced being a metal part, OP2 was justified in deducting 25% of the cost of the same towards depreciation as per the terms of the policy. Parties to the insurance contract are bound by the terms and conditions of the policy. There is no exception with regard to the chassis from depreciation.
11. It is contended that at the time when the vehicle was taken to the service station of OP1 on 12.06.2009, OP1 promised that the vehicle would be ready within a month from the date of assessment of the cost by the surveyor of the insurance company. The vehicle was required to be delivered on 13.07.2009 as mentioned in the job card but the vehicle was delivered on 04.08.2009. As such there was delay of 21 days in delivery of the vehicle. During this delay period the complainant has to hire private vehicle for his use by paying Rs.2,500/- per day. Hence he claim expenses incurred towards the same at Rs.92,000/-
12. It may be noted that surveyor of OP2 and OP1 conducted Joint survey with regard to the assessment of the damage caused to the vehicle on 15.06.2009. The 1st OP placed orders for chassis on 18.06.2009 and the chassis received by OP1 from the manufacturer on 09.07.2009. ON 16.07.2009 R.T.O. approval was obtained for induction of new chassis and OP1 made ready the vehicle on 20.07.2009. As the OP2 allowed the claim to an extent of Rs.61,111/- only and complainant was required to pay the difference of Rs.32,617/- to OP1, the complainant initially refused to pay the said amount stating that the entire bill amount is to be borne by OP2. Later on the complainant paid that amount of Rs.32,617/- and taken delivery of the vehicle on 04.08.2009. The date of delivery shown in the job card as 13.07.2009 was only an approximate date. Some more time is taken for obtaining the spare parts required to attend the repairs. On 26.06.2009 some spare parts were received by OP1 from Mahindra and Mahindra but the chassis was not received. The 1st OP in their note on ‘Short Supply’ informed the supplier about the non receipt of the chassis and asked for ‘credit note’ for the short supply item. The contention of the complainant is OP1 has not indicated any urgency and obtained the short supplied item chassis at that point of time. In our view OP1 has done by sending ‘credit note’ for the short supplied item, that was the only course open to him. Later the chassis was received on 09.07.2009. Further the contention of the complainant is OP1 has not informed about necessity of getting approval from RTO to change the number of chassis in the records of the vehicle at the earliest only on 09.07.2009 the complainant was informed about necessity of such approval. The delay could have been avoided if the 1st OP has informed about the approval much earlier. In our view the OP1 received chassis from the supplier on 09.07.2009 and then only he has informed the complainant about the necessity of getting the approval, hence it cannot be said that the OP1 was at fault in not informing the complainant about getting the approval from the RTO even before this supply of the chassis. As the vehicle was ready on 20.07.2009 itself, if the complainant had paid his share of differential amount of Rs.32,617/- OP1 would have delivered the vehicle on that day itself. Because the complainant refused to pay the said amount and OP2 not allowed that claim, hence the delay occurred on account of not paying the amount to OP1 by the complainant.
13. It is contended that at the time of evaluation of the damages caused to the vehicle by the surveyor of OP2, the complainant was not informed. The complainant was deprived of opportunity to consider, consult and concur about the damages this deficiency has caused in the non repair of the scratch which occurred during the accident on the right side body of the vehicle, the charges for this have been estimated at Rs.10,000/- by OP1, OP2 is liable to pay the same. In our view as already observed this scratch on the right side of the body of the vehicle was not caused in this accident, the complainant himself has informed OP1 that the said scratch was of earlier incident and the inventories marked as documents No.15, 16 & 17 clearly reveals the existence of the said scratch and there is no material to show that the said scratch appearing in those inventories was repaired at any time. Merely because the complainant was not informed about the assessment of damages at the time of surveyor of OP2 conducting the same, it cannot be said that the scratch found on the right side of the body of the vehicle was left out from estimation and as such the OP2 has to bear the cost of repairs of the same.
14. The entire differential amount of Rs.32,617/- is claimed by the complainant. The depreciation with regard to the chassis is only to an extent of Rs. Rs.10,070.19/-, the remaining amount is in respect of in-admissible claims which are not approved by OP2. The claim has been settled as per the surveyor estimation and report. The complainant failed to prove any deficiency in service on the part of the OP 1 & 2. The complaint is devoid of merits, the same is liable to be dismissed. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of June-2011.)
MEMBER MEMBER PRESIDENT
CS.
