Karnataka

Kolar

CC/93/2023

Smt.Sujatha - Complainant(s)

Versus

The Branch Manager, The New India Assurance Co Ltd - Opp.Party(s)

12 Sep 2023

ORDER

Date of Filing: 24/04/2023

Date of Order: 12/09/2023

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

 

Dated:12^th DAY OF SEPTEMBER 2023

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:93/2023

Smt. Sujatha,

W/o Subramani,

Aged about 36 years,

Residing at. No.616,

Raman Temple,

Gonakanahalli Village,

K.G.F, Taluk,

Kolar District.

(Rep. by Sri. G Sebastine , Advocate)               ….  Complainant.

 

                                                                                                                - V/s –

1. The Branch Manager,

The New India Assurance Co., Ltd,

2-B, Unity Building (Mission Road),

Bengaluru – 560027.

(Rep. By B. Kumar. Advocate)                   

 

2. M/s Siddhanth Motors,

No.48/1, Kudlu Main Road,

Madiwala,

Hosur Road,

Bengaluru – 560068.

(Ex-parte)  

 

3)  M/s Mahindra and Mahindra financial service Limited,

2^nd Floor sadhana House behing,

Mahindra Towers-570 P.B. Marg.Worli,

Mumbai-400018,

Maharashtra.

(Rep. By Raghavendra G. Advocate)                    ….Opposite Parties.                                      

 

-: ORDER:-

BY SMT.SAVITHA AIRANI, LADY MEMBER.,

1. Complainant is the owner of the e Mahindra supra maxi truck T2 bearing Reg. No: KA 08.A.1681, and the said vehicle was purchased from the Op No: 2 i.e. Siddhanath Motors, Bangalore by obtaining loan from OpNo:3 i.e. Mahindra and Mahindra financial service Ltd, Bangalore. The said vehicle is insured with the Op No: 1 bearing policy No: 67210131200100002021 and at the time of accident the insurance policy is in force.

 

2. Further complainant submits that, the above said vehicle met with an accident on 16/06/2021 and case has been registered in   crime No. 15/2021against the driver of the vehicle.  After investigation charge sheet has been filed for the offences punishable under section 279, 338 of I.P.C against the accused. It is stated that in Lok adhalth dated 13/08/2022 accused plead guilty and accordingly case was disposed of before the Lok Adhalath.  

 

3. It is stated that, subsequent accident that the complainant was informed to the Op NO:1 about the accident and Op No:1 inspected the above said vehicle on 17/06/2021 and estimated the damages of the vehicle after that, the complainant furnished all the necessary documents which were asked by the Op No:1 insurance company.

 

4. Further complainant submitted that, due to the said accident the vehicle has caused damages on the front portion of the vehicle, the Op No:1 advise the complainant bring the vehicle to the Op No:2 show room i.e Siddhanth Motors, Bangalore in order to get repaired the damages, Op No:1 had advised and instructed the Proprietor of the Show room of Op No:2 to provide and to arrange the necessary repair for the damages of the said vehicle.  Accordingly the complainant left the vehicle as per the instruction of the Op No:1.
5. Further complainant submitted that, due to repair of the above said vehicle complainant paid half of the bill amount i.e Rs. 45,000/- to the Op No.2 show room.  But Op No:1 did not paid the repair charges, though the vehicle was covered under the insurance, due to the Op.No:1 negligence act, the complainant caused great hardship and huge loss and she also unable to pay the EMI to the Op No.3 financer. 

 

 

6. Further complainant stated that, she approached the Op No.1 to settle her claim, but Op No;1 did not settle the claim of the complainant.  The complainant approached the Op No.2  show room for delivery of her repaired vehicle, but Op No.2 demanding the complainant to pay the balance repair charges of Rs.99,640/- and Rs.100/- for the day parking charges of vehicle  from the date of leaving for repair to till the date of delivery. The complainant did not paid the full repair amount to Op No.2, because the Op No.1 did not settle her claim in time.  The complainant has depending on the vehicle for daily lively hood, it is only source income of her family.  It is stated that, non settling the claim in time it amounts  to deficiency in service.   Hence this complainant.

 

7. On issuance of notice Op No.1 and 3 were appeared through their counsel and filed their version, whereas Op No.2 despite service of notice failed to appear before this commission, consequently Op No.2 placed as exparte.

 

8. In the version of Op No1 denies the entire allegation made in the complaint. It is contended that, the complainant did not furnished the required documents for processing the claim despite informing to the complainant through letter dated 16/5/2023 and till date the complainant has not complied the same. Hence contended that there is no deficiency in service. Further based on the above reasons Op No.1 pray to dismiss the complaint in the ends of justice.

 

9. In the version of Op No.3 also denies all the allegation made in compliant.  It is admitted that complainant was obtained the vehicle loan and same is hypothecated in favor of Op No.3.  It is contended that, complainant and the Op.No.3 entered in to an agreement, it states that in the event of any dispute, it is to be resolved by appointing sole arbitrator. Further complainant was undertakes to pay the installments promptly without any delay or default.  In case of failure she had agreed to pay the additional finance charges for the delayed/defaulted payments.

 

10. Further contended that, according to the agreement the complainant has no right to possess the vehicle and derive the benefits in case of default or delay in payment.   The Op has every right to retake possession, and it was mutually agreed in the Loan agreement by them.  In case of any claim or dispute that may arise under the said loan agreement or in relation thereto or any issues touching upon the said agreement, the same shall be resolved by mandatory arbitration of the Sole Arbitrator nominated/ appointed by the Opposite party. It is contended that the such arbitration proceedings held on  17/02/2022 and that award rendered by the Arbitrator shall be final and binding on all the parties concerned where in this case due to the continuous default contract has been terminated and an award has been passed on 04/07/2022 against the complainant and Guarantor for sum of Rs. 4,92,761/- jointly to the claimant at the rate of 3% per month from 03/01/2022 till date of award and further interest at the rate of 1.5% month from the date of the award.

 

11. Further Op No.3 submitted that the case is only against Op No.1&2. Op No.3 is the financer to the complainant. Where the complainant herself prayed to direct the amount payable to them in order to closed the loan account. Op No.3 is neither a service provider nor the insurance company and vehicle service related matter by itself, hence there was no deficiency of service does not arise and not liable for any claim as alleged by the compliant. On the above said grounds Op No.3 prays to dismiss the complaint against them with heavy cost due to the bad joinder for proceedings compliant.

 

12. In order to prove the case of the contesting  parties and both the parties filed their affidavit evidence along with documentary evidence.

 

13. On the basis of the pleadings of the parties the following points will do arise for our consideration:-

 

1.  Whether the complainant has proves that deficiency in service on the part of the OP No. 1 to 3?
2. Whether the complainant is entitle for the relief as sought in the complaint?
3. What order?

 

 

14. We have heard the arguments of the both the parties perused the evidence placed on record and our answers to the above points are as follows:

 

POINT NO. (1)&(2):- Are partly in the Affirmative.

POINT NO. (3):-       As per the final order

                                 for the following.

REASONS

POINT No (1)&(2):- On perusal of the pleadings of the parties, these two points are interlinked to each other and for the sake of brevity and for convenience we have taken up together these points for discussion.

15. On perusing the pleadings of the parties, it is not in dispute that, the complainant by name Sujatha is the owner of the vehicle bearing No.KA08A1681. It is also not in dispute that the above said vehicle was purchased on 17/05/2019 from the Op No. 2 and same is insured with the Op No.1 insurance company on 27.02.2019 bearing policy No.67210131200100002021.  The validity period of the said policy was commencing from 14/07/2020 to 13/07/202. It is also not in dispute that the insured vehicle met with an accident and at the time of accident the insurance policy in force.

 

16. It is the specific allegation of the complainant is that, after accident vehicle was given to the Op No. 2 for repair as per the saying of the Op No. 1 and repaired charges comes to Rs. 99,640/- and the Op No.1 did not settle the claim and hence Op No. 2 levied extra parking charges Rs. 100 per day and hence alleged that the OpNo.1 committed deficiency in service.

 

17. Per contra Op No. 1 contended that, despite intimation complainant failed to produce required documents. On perusing the exhibit No. 4 it is also reveals subsequent to intimation dated:17-06-2021 that non submission of documents claim is rejected on 29-03-2022. Further on perusal of the exhibit R2 dated 16-05-2023 it discloses that in accordance to the reference of claim form dated 17-06-2021 asked the complainant to produce the documents shown in the said letter It is worth to note that, the present complaint is filed on 24-04-2023 and the letter dated 16-05-2023 sent from the Op No.1 insurance company demanding required documents. ON perusal of the letter dated 16-05-2023 and filing of the complainant before this commission it reveals that, subsequent to filing of the present complainant Op.No.1 insurance company became proactive for processing the claim and it is nothing but afterthought and the conduct of the insurance company is deplorable one and it amounts to deficiency in service.

 

18. Further it is not in dispute that, the Op No.1 Company not denied the repair of the vehicle and its charges. On perusal of Tax invoice relating repairing charges dated 19-03-2022 it disclose that accident vehicle was left for repair on 13-07-2021 and repair charges comes to Rs.87,056/- and including  parking charges. It is worth to note that when the vehicle met with an accident and when the insurance policy is in force, it is the obligation of the insurance company to sent suitable surveyor to access the damages and to file its report but the Op No. 1 did not place any surveyor report as mandated by the insurance law and this act of non producing the surveyor report also amounts to deficiency in service on the part of the Op No.1 when the accident is not in dispute. Under the circumstances we cannot disbelieve the tax invoice for repair charges issued by the concerned Op No. 2 cannot be disbelieved and hence Op No.1 insurance company is liable to pay Rs. 87,056/- along interest at the rate of 7.5 % from the date of 19-03-2022. However that the complainant himself stated that he was already paid half of the amount that is Rs. 45,000/- towards repair charges to the Op No.2 during the year 2021 itself. However that the Op No.2 is though appeared before this commission consequently placed exparte and though Op No.2 being the service provider to the complainant and as a good will gesture as the vehicle also purchased from the Op No.2 and the complainant beyond his control did not paid half of the repair charges well in time due to non settlement insurance claim and hence levying parking charges for the entire period is exorbitant one, under the circumstances Op No. 2 is only entitled to parking charges for six months only at the rate of Rs.100/- due to half of the amount paid by the complainant to the Op No.2, under the warranted circumstances, when the Op No.1 failed to settle the claim well in time and hence Op No.1 also liable to pay the parking charges also.

 

19. Further it is noteworthy to mention that, on perusing the entire pleadings and evidence placed on record there is no deficiency in service found on the part of the Op.No.3 and accordingly complaint is dismissed against the Op No.3. However the Op.No.2 though it received half of the amount from the complainant towards repair charges and claiming exorbitant parking charges and it amount to unfair practice it leads to deficiency in service.  Furthermore Op.No. 2 failed to appear before this commission to answer the claim of the complainant and it is nothing but to draw adverse inference for exonerate its liability. Accordingly we answer the point No.1 and 2 in the partly affirmative.

 

20.  Point No. (3):- On the basis of the answering the points No (1) and (2) and the reasons assigned thereon, we proceed to pass the following.

     ORDER

1. Complaint is partly allowed with cost and the complaint is dismissed against OP.No.3.
2. Op No.1 insurance company is directed to pay Rs. 87,056/- along interest at the rate of 7.5 % from the date of generating bill (repair charges) i.e 19-03-2022 to the complainant and to pay parking charges for six months only at the rate of Rs.100/- per day to the complainant within 30 days from the date of orders.
3. Further complainant is directed to pay the remaining repair charges (87,056-45,000 = 42,056/-) to the OP.No.2 and parking charges for six months subsequent to payment by the insurance company as directed at serial no.2.
4. OP.No.2 is entitled for parking charges for six months only.
5. Further OP.No.1 directed to submit the compliance report within 45 days.

     6. Send a copy of this order to all the parties to the proceedings at free of cost.

     (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 12^th DAY OF SEPTEMBER 2023)

 

 

 

 

             LADY MEMBER                    PRESIDENT