IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Tuesday the 14^th day of September, 2021.

                                      Filed on 10-02-2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Sholy.P.R, B.A, LLB (Member)

In

CC/No.40/2020

between

Complainant:-                                                              Opposite parties:-

Sri.P.Mohanakumaran                                          1.       The Authorized Signatory

S/o C.N Paramu Pillai                                                    M/s S.S Hyundai, Kadakilath

Sreenivas, Angadickal                                                    Building, Ground Flooe,

Puthenkavu P.O., Chengannur                                        M.C Road, Pravinkoodu Jn.

(Adv. Sri. Babu Joseph)                                                 Chengannur P.O.

                                                                                          (Party in person)

                                                                             2.       The Authorised Signatory

                                                                                       M/s S.S Hyundai, Varyapuram,

                                                                                       Elanthur East, Pathanamthitta

                                                                                       Pin:- 689 643

                                                                                       (Party in person)

                                                                             3.       The Authorised Signatory

                                                                                       Hyundai Motor India Ltd.

                                                                                       Bharani Building, Near Appolo

                                                                                       Hospital, Josola,

                                                                                       NewDelhi- 110 044

                                                                                       (Adv. M/s Surana &Surana

                                                                                       G. Kalyan Jhabakh)                

                                                                             4.       M/s National Insurance Co.Ltd.

                                                                                       Kottayam Branch,

                                                                                       Rep.by branch Manager, CSI

                                                                                       Square Building, Lal Bahadur

                                                                                       Shasthri Road, Baker Hill,

                                                                                       Kottayam

                             (Adv. Sri. T.S.Suresh)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986. 

Material averments briefly stated are as follows:-

Complainant is the owner of Hyundai Grand i10 Asta 1.2 AT car bearing Reg.No.KL 30 D 4948 and policy holder of insurance of 4^th opposite party.  3^rd opposite party is engaged in the business of manufacturing Hyundai cars in India and the 2^nd opposite party is the authorized franchise of the 1^st opposite party.  1^st opposite party is an authorized branch of 2^nd opposite party who was entrusted by the complainant to repair  his car after accident. 

2.      Complainant while traveling along with his family through Mallappali- Kallupara road met with an accident on 03.07.2019.  The complainant while driving the car accidently hit an electric post, when tried to give side to a fast moving lorry.  As a result damage was happened to the vehicle over its bonnet, roof and vehicle body on both sides.  The car was towed to the workshop of 1^st opposite party who was entrusted to repair the damage.  The 1^st opposite party agreed to complete all the repairs and deliver the vehicle back within 60 days.  All the insurance formalities with the 4^th opposite party was completed within one week.  The 1^st opposite party willfully made unwanted delay for repairing the vehicle.  1^st opposite party had agreed to complete the work and hand over the vehicle within 60 days.

3.      Complainant is a senior citizen aged 72 years.  Complainant and his family was fully depending on this vehicle for their day to day activities.  Inspite of repeated demands the vehicle was not returned within time.  Complainant had sent two legal notices on 24.10.2019 and 06.12.2019 intimating opposite parties about the inconvenience caused due to delay of delivery.

4.      The car was delivered only on 12.11.2019 with a delay of 68 days.  This delay had caused huge financial sufferings to the complainant.  Complainant had to hire private vehicles for his personal and family uses during this period which was expensive.  Due to this unreasonable delay, complainant and his family had suffered mental agony and huge financial loss.  Complainant is suffering from old age diseases and is under treatment at Amrita Hospital, Ernakulam.  So he had to hire private taxies for treatment needs on several occasions.

5.      After the delivery of the vehicle after repair, complainant had submitted all the bills and documents to the 4^th opposite party on 12.11.2019.  The total claim amount of Rs.2,38,083/- is eligible to be reimbursed.  But the 4^th opposite party had sanctioned only Rs.2,04,795/- for the bill submitted.  Without stating any reasons the 4^th opposite party had reduced Rs.33,288/- from the eligible amount.  Complainant sustained financial loss and mental trauma due to this.  There was deficiency of service from the part of the opposite parties.  Hence opposite parties 1 to 3 may be directed to pay Rs.1,02,000/- (Rs.1,500/- x 68) for the amount paid as rent to the hired vehicle.  Opposite parties No.1 to 3 may be directed to pay Rs.1,00,000/- to the complainant for the mental agony and strain caused to the complainant due to the delay of delivery of the vehicle.  The 4^th opposite party may be directed to pay Rs.33,088/- along with interest of 12% from 12.11.2019.

6.      Opposite parties No.1 and 2 filed a version mainly contenting as follows:-

On 03.07.2019 late afternoon the customer has towed in the fully damaged car to their workshop at Chengannur using a recovery crane.  It was informed that a concrete electric pole fell over the car and caused damage to the vehicle.   It was also informed that  the vehicle was having a valid insurance policy and he will arrange with the insurance company for necessary survey of the damaged vehicle.    The allegation that there was unwanted delay from the part of this opposite party is false.  Being the authorized sales and service dealer of Hyundai Motors Ltd.  there are several vehicles under accident repair and normal repair categories.    The service is done on 1^st come 1^st service basis and priority was given to the complainant being a senior citizen.  On receipt of legal notice dated 24.10.2019 complainant was called and informed that the work on his vehicle being finished and that the vehicle will be delivered back within about 2 weeks.  The 2^nd legal notice received on 09.12.2019 was replied on 23.12.2019 in which the position with facts and figures were informed.

7.      The delay of 68 days was clarified in the letter dated 23.12.2019.   The vehicle was heavily damaged and lot of works had to be completed and 128 days were taken for completing the work.  Spare parts from Hyundai motor vehicles Ltd. and from our different branches were to be arranged.   Spare parts worth Rs.1,47,254.20/- were replaced and labour bill for Rs.55,194.16/- had been raised towards making up this vehicle.  The total amount comes to Rs.2,02,448.36/-.  Some damages were not visible initially and could not be included in the original estimate submitted to the insurance company.  These parts were subsequently allowed by the insurance company and order was placed with M/s Hyundai for getting genuine parts.  The above parts were received on 23.10.2019 and the fitment was done immediately.  Final test drive was on 07.11.2019. It was noticed that the front wheel bearing had been worn out.  On 11.11.2019 front wheel bearing received and fixed to the vehicle.  The customer had taken delivery of the vehicle on 12.11.2019 without commenting anything on the workmanship or delivery time.  Customer has signed satisfaction certificate on 12.11.2019.  Hence it is prayed that there was no delay in completing the work and hence the complaint may be dismissed.

8.      3^rd opposite party filed a version mainly contenting as follows:-

The complaint is based on vague, misconceived notions and baseless assumptions.  Complainant miserably failed to prove any deficiency in service or unfair trade practice against this opposite party.  3^rd opposite party does not follow principle and agent relationship with dealers and so they are not liable for any act committed by its dealers.  The dealers operates principal to principal basis.  This opposite party could not be held liable for acts and omissions of dealer.

9.      As per the information received by the opposite party the vehicle was towed to the workshop on 03.07.2019 under fully damaged condition.  The only allegation against opposite party No.1 and 2 is that there was delay in returning the vehicle after repairs.  There was lot of works to be done and hence the delay occurred.  As per available information the vehicle was delivered to the complainant on 12.11.2019 and the total bill amounts to Rs.2,02,448.36/-.  Since there is no incurrent manufacturing defect or deficiency of service alleged against this opposite party,  the complaint may be dismissed with cost.

10.    4^th opposite party filed a version mainly contenting as follows”-

The complainant had approached this Commission with utmost unclean hands by suppressing material facts.  There is absolutely no bonafides and merit in the case.  There is no deficiency of service as alleged in the complaint.

11.    Opposite party issued a policy with respect to car No.KL-30 D- 4948 owned by the complainant and the IDV of the vehicle is Rs.3,50,000/- .  When this opposite party received the OD claim from the complainant a surveyor was deputed to assess the damages.  The surveyor had assessed the damages of the vehicle is Rs.1,99,198/-.  Out of the said amount an amount of Rs.1,000/- was deducted towards policy excess and an amount of Rs.3,699/- was deducted towards  salvage value.  Hence as per the survey report the eligible amount was Rs.1,94,500/- for vehicle repairing and Rs.1,500/- for towing charge.    Thus this opposite party paid a total amount of Rs.2,04,795/- to the complainant.  From the original bills and estimate an amount of Rs.33,288/- was deducted.

12.    The vehicle is of 2014 model.  The accident was on 03.07.2019 and the IDV is Rs.3,50,000/-.  So for own damage claim deduction is applicable as per policy condition and IRDA guidelines.  The amount paid by this opposite party is on the basis of survey report and re-inspection report.   In own damage claim like the present case insured is not entitled for the entire actual loss and deductions as per IRDA guidelines and as per policy conditions.  Complainant is not entitled for any relief, compensation, interest, cost etc.  since there is no deficiency of service.  Hence the complaint may be dismissed with cost.

13.  On the above pleadings following points were raised for consideration:-

1. Whether there was deficiency of service from the part of opposite parties?
2. Whether the complainant is entitled to realize an amount of Rs.1,02,000/- from opposite parties No.1 to 3 as prayed for?
3.  Whether the complainant is entitled to realize an amount of Rs.10,000/-  from opposite parties No.1 to 3 as compensation?
4. Whether the complainant is entitled to realize an amount of Rs.33,288/- along with interest from the 4^th opposite party.
5. Reliefs and cost?

14.    Evidence in this case consists of the oral evidence of PW1&PW2 and Ext.A1 to A3 series from the side of the complainant.  Opposite parties have not adduced any oral evidence and Ext.B1 to B5 were marked from the side of 4^th opposite party.

15.    Points No. 1 to 4:-

PW1, the complainant is the registered owner of  Hundai Grant i10 car bearing registration No. KL.30-D- 4948.  The vehicle was manufactured by 3^rd opposite party M/s Hundai Motor India Ltd.  1^st and 2^nd opposite parties are the authorized workshop of the 3^rd opposite party.  The vehicle was insured with the 4^th opposite party M/s National Insurance Co. Ltd.  On 3/7/2019 while PW1 was driving the car along Mallappally- Kallupara road it accidently hit an electric post and sustained heavy damage.  The car was entrusted for repairs with the 1^st opposite party. After repairing the estimate they agreed to return the vehicle within 60 days after repairs.   However the vehicle was not returned within 60 days as promised and it was returned only on 11/12/2019 with a delay of 68 days.  The total claim amount was Rs.2,38,083/-. However the 4th opposite party had sanctioned only Rs. 2,04,795/-  and deducted an amount of Rs.33,288/-.   Since there was a huge delay in returning the vehicle, PW1 had to hire other vehicle for his personal purpose.  Hence he has filed the complaint for realizing an amount of Rs. 1,02,000/- being the amount paid as rent from  opposite parties 1 to 3.  He is also claiming an amount of Rs.10,000/- being  compensation for mental agony and strain  caused for the delay in repairing the vehicle.   He is claiming an amount of Rs.33,288/-  which arbitrarily deducted from the claim amount.  

16.    Opposite parties 1 and 2   filed a joint version mainly contenting that the vehicle had sustained heavy damages in the accident.  They had to arrange spare parts from their other outlets as well as from the 3^rd opposite party manufacturer which occurred delay.  Further according to them the total amount of repairs including labour charges was Rs.2,02,448.36/-,  which will show the volume of repairs done in the vehicle.   There was no willful delay in repairing the vehicle and hence they prayed to dismiss the complaint.

17. 3^rd opposite party filed a version mainly contenting that complainant could not point out any manufacturing defects in the vehicle.  The relationship between opposite parties 1 and 2 and 3^rd opposite party is that of principle to principle and so they are not liable for any act done by the opposite parties 1 and 2.  Hence they also prayed for dismissal of the complaint.

18.   4^th opposite party in their version admitted that the vehicle had a valid policy with effect from 4/10/2018 to 3/10/2019 and the IDV of the vehicle was Rs.3,50,000/-.  4^th opposite party is an insurance company fully owned by the Government of India and they are bound to obey the guidelines of  IRDA.  According to them even if for a bumper to bumper policy  as per the IRDA guidelines  certain deductions are permissible and  accordingly they deducted Rs.33,288/- and the balance amount paid to the complainant and obtained a voucher.  They also prayed for the dismissal of the complainant since there was no deficiency of service from their part. 

19.    Complainant got examined as PW1 and Ext.A1 and A2 were marked.  The owner of the vehicle hired by PW1 was examined as  PW2 and Ext.A3 series were marked.  Though opposite parties 1 and 2 filed a detailed version they did not participate in the trial by cross examining PW1 and 2. They also did not adduce any evidence.   Opposite parties 3 and 4 did not adduce any oral evidence Ext.B1 to B5 were marked from the side of the 4^th opposite party.

20.    The fact that PW1 is the registered owner of the vehicle and that it had a valid insurance policy with the  4^th opposite  party is not in dispute.   The allegation leveled against opposite parties 1 and 2  by PW1 is that when the vehicle was entrusted for repairs, they assured that  it will be returned within 60 days.   However the vehicle was returned only on 12/11/2019 with a delay of 68 days.  Hence according to him he had to hire other vehicle for personal purpose for which is claiming an amount of Rs.1,02,000/- (Rs.1,500 X 68 days).  Though in the complaint relief is sought against 3^rd opposite party also during cross examination PW1 admitted that the vehicle had no manufacturing defect and there was no deficiency in service from the part of 3^rd opposite party. Further in the chief affidavit he has not claimed any relief against 3rd opposite party.  So the question to be looked into is whether PW1 is entitled to claim the amount of Rs.1,02,000/- from opposite parties 1 and2.  Admittedly there was a delay of 68 days in returning the vehicle after repairs.  Ext.A1 and A2 are the copy of two Legal Notices issued to PW1 to return the vehicle expeditiously after repairs.   As stated earlier in the version opposite parties 1 and 2 contented that the vehicle had extensive damage and so they had to arrange spare parts from other out lets and from the 3^rd opposite party manufacturer which caused delay in repairing the vehicle.  Even from the complainant it is gathered that the total   claim amount was Rs.2,38,083/- and so it is pellucid that  the  vehicle had extensive damage.  Hence for repairs as rightly contented by  opposite party  1 and 2  and certain time will be required.

21.    To prove that PW1 had hired a vehicle he relied upon the oral evidence of PW2 coupled with Ext.A3 series.    PW2 filed chief affidavit stating that PW1 had hired his vehicle for 9 days and a total amount was 17,500/- was collected from him.   He has produced 9 numbers trip sheets to prove that PW1 had hired the vehicle on various days from 6/9/2019 to 10/11/2019. On a perusal of Ext.A3 series it is seen that it is the originals.  However original trip sheet has to be issued to the passenger and PW2 driver has to keep a carbon copy in a book form.  Here since PW2 produced the same it is highly suspicious.   Secondly it is noticed that Ext.A3 series is not having any serial number.   As a matter of fact PW2 can issue the originals to the passengers and he can produce only the carbon copy of the trip sheet book.    It is true that PW2 was not cross examined by the opposite parties since opposite parties 1 and 2 had not participated in the  trial.   However it doesn’t mean inadmissible document can be admitted.  We have got genuine doubt regarding Ext.A3 series for the reason stated above and so Ext.A3 series and the oral evidence of PW2  is  rejected in toto.  However as admitted by opposite parties 1 and 2 in the version there was an inordinate delay of 68 days  in returning the vehicle after repairs and so PW1 is entitled for compensation for the delay and we are limiting the same to Rs. 10,000/-.

22.      As discussed earlier in cross examination PW1 admitted that he is not claiming any relief against 3rd opposite party and there was no deficiency of service from them.  Moreover as contented in the version filed by the 3^rd opposite party  the relationship between  them and opposite parties 1 and 2 is that of principle to principle  and so they are not liable for any act done by opposite parties 1 and 2. 

23.    Finally PW1 is claiming an amount of Rs.33,288 along with interest from 12/11/2019 from the 4^th opposite party on a contention that arbitrarily  they deducted that much amount from the claim amount.  From the part of 4^th opposite party Ext.B1 to B5 policy documents and survey reports were marked.  In the version as well as in the argument note they had given the details of amount deducted from the claim amount.  Admittedly the vehicle had a valid policy and the IDV value was Rs.3,50,000/-.  According to the learned counsel appearing for the 4th opposite party, 4^th opposite party is  a company fully owned by the Government of India and  they are bound to obey the guidelines of IRDA.    The learned counsel appearing for the complainant contented that the vehicle had a bumper to bumper policy and so they can deduct only Rs.1,000/- from the claim amount. Per contra according to the learned counsel appearing for the 4th opposite party they are entitled to deduct amount as per IRDA guide lines.  The details of amount deducted are given in a tabular form and we are reproducing the same for easy reference. 

   On a perusal of Ext.B4 it is seen that towing charges claimed was Rs.3,500/-  but the allowable amount was Rs.1,500/- so Rs. 2000/- was deducted on that account.   The vehicle hit on an electric post and the amount claimed by KSEB was Rs.12,301/-,  whereas the amount allowable after depreciation was only Rs.8,795/-  so Rs.3,506/-was deducted.  Spare parts bill for Rs. 18,316.31/- were not due to the accident and so that amount was deducted.  Further at the time of inspection it was found that bills for Rs.2,292/-  was not related to the accident.    Bills for Rs. 2,076.56/- was for exterior beautification and it is not allowable as per IRDA guidelines.  Kerala Flood Cess  deference  is Rs. 398.13/- and it was deducted.  There was  Salvage value of Rs.3,699/- and policy excess was Rs.1000/-. Thus a total amount was Rs. 33,288/- was deducted from the claim amount.  From the documents produced from the side of 4^th opposite party it can be seen that as per IRDA guidelines they are entitled to deduct the amounts even in  a bumper to bumper policy. In said circumstance we are of the view that the deduction were as per IRDA guidelines and so complainant is not entitled to realize the amount.   Hence no deficiency of service is proved against 4^th opposite party.  These points are found accordingly.

24.     PointNo.5:-

          In the result complaint is allowed in part. 

A) Complainant is allowed to realize an amount of Rs. 10,000/- from the opposite parties 1 and 2.

B)  Complainant is allowed to realize an amount of Rs.2000/- as cost from the opposite parties 1 and 2.

          The order shall be complied within one  month from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 14^th   day of September, 2021.

    Sd/-Sri.S.Santhosh Kumar(President)

                                              Sd/-Smt. Sholy.P.R(Member)

Appendix:-Evidence of the complainant:-

PW1                    -        P. Mohanakumaran(Complainant)

PW2                    -        Abraham Varghese(Witness)

Ext.A1                -        Copy of Notice dated 24/10/2019

Ext.A2                -        Copy of Notice dated.6.12.2019

Ext.A3series        -        Trip sheets           

Evidence of the opposite parties:-

Ext.B1       -        Copy of Policy

Ext.B2       -          Survey Report.

Ext.B3       -        Re inspection report

Ext.B4       -        Statement of deduction

Ext.B5       -        National Insurance Policy

// True Copy //

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Senior Superintendent

Typed by:- Br/-

Compared by:-