Date of Filing:18.06.2009<br /> Date of Order:11.03.2010<br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 11th DAY OF MARCH 2010<br /> PRESENT<br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 1423 OF 2009 <br /> <br /> Ganesh N<br /> S/o M.Narayanaswamy<br /> Aged about 51 yrs,<br /> R/at No.16/1, Lazar Road,<br /> Frazer Town, Bangalore – 005.<br /> <br /> Complainant<br /> V/S<br /> The Branch Manager,<br /> The Oriental Insurance Co., Ltd.,<br /> Queens Road Cross,<br /> Bangalore.<br /> Opposite Party <br /> <br /> ORDER<br /> <br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.<br /> 2. The complainant is the owner of the vehicle Maxi Cab (Qualis). The policy is a comprehensive policy and was in force from 13/11/2006 to 12/11/2007. The vehicle met with an accident on 14/07/2007 and the incident was informed to Opposite Party and Opposite Party asked the complainant to file motor claim form and accordingly the complainant submitted the claim form. The Opposite Party asked the complainant to leave the vehicle at M/s RAVINDU TOYOTA. Accordingly the complainant intimated the M/s RAVINDU TOYOTA and they towed the vehicle to their garage. M/s RAVINDU TOYOTA gave an estimation for Rs.1,76,000/- towards repairs to be done. The same is handover to the then manager of Opposite Party. The complainant submits that even after 21 days the Opposite Party did not taken any steps to repair the vehicle. Thereafter the complainant met Opposite Party with a request to repair the vehicle as early as possible because the complainant depending upon the vehicle for his livelihood. The Opposite Party asked the complainant to get repaired the vehicle outside and submit the bill as M/s RAVINDU TOYOTA. As per the instruction of Opposite Party, the complainant took the vehicle and gets repaired with M/s India Car krafts, Bangalore. The complainant came to know that some parts were stolen and the complainant immediately informed the Opposite Party. The Opposite Party advised the complainant to lodge police complaint and leave the vehicle at genuine workshop. Accordingly the complainant lodged police and complaint and left the vehicle at M/s May Auto works, Bangalore. The complainant further submits that the surveyor of the Opposite Party visited the spot and asked the complainant to produce the bill as well as damaged parts after repairs. The complainant asked about part payment made to M/s Ravindu Toyota, the surveyor advised him to add the same in the final bill of M/s Jay Auto works. M/s Jay Auto works had given bill for Rs.1,04,856/- towards repairs and replacement of damaged parts. Accordingly the complainant submits the original bills and damaged parts to the Opposite Party on 09/02/2008. The Opposite Party neither settled the amount nor intimated about payment till December 2008. The complainant personally visited the office and came to know that the Opposite Party estimated the damages only to Rs.25,300/-. Since the Opposite Party did not satisfy the complainant nor ready to pay the promised amount of Rs.1,04,856/-. The complainant issued legal notice dated 09/04/2009 to the Opposite Party. Till May-2009 the Opposite Party neither sent a reply nor settled the dues. The complainant further submits that he has received notice dated 28/05/2009 sent by Opposite Party and in the notice it is mentioned that copy is sent a/w a cheque for Rs.25,300/-. The complainant further states that the Opposite Party neither acted as per the legal notice dated 11/04/2009 nor settled the amount as promised instead falsely mentioned in copy of the untenable reply notice that “a cheque for Rs.25,300/- is sent a/w the reply notice” which was not at all enclosed. Hence, the complainant prays to direct the Opposite Party to pay Rs.1,04,856/- as repair and replaced parts of the vehicle, Rs.5,315/- towards towing, demurrage and estimation charges and 18% interest from the date of claim till the date of payment. <br /> 3. The opposite party has filed defence version stating that, the complainant left the vehicle for repairs with M/s Ravindu Toyota. The Opposite Party further submits that without intimating the Opposite Party the complainant on his own shifted the vehicle to M/s India car Craft. The surveyor appointed reported that the vehicle in question was not available with the said repairers. The complainant shifted the vehicle to J.Auto works on the reasons that some parts were stolen. The complainant did not intimate immediately to the Opposite Party about the accident and also failed to notify to the jurisdictional police with regard to accident. The Opposite Party was not given an opportunity to inspect the loss and assess the damages. The Opposite Party on humanitarian grounds agreed to verify the bills and also after obtaining the assessment had gracefully offered a sum of Rs.25,300/-. The Opposite Party further submits that they not the repairers of the vehicle but are only insurer who would only reimburse the repair charges. The Opposite Party is not responsible for advance payment. The Opposite Party further submits that the complainant cannot claim having repaired the vehicle in an ordinary road side workshop. There is no deficiency on the Opposite Party as they have not declined or rejected the claim. The Opposite Party further submits that the claim of the complainant is not maintainable either in law or fact of the case and is liable to be rejected as not maintainable. <br /> 4. In support of the complaint, the complainant has produced copies of documents. I have gone through the pleadings, documents. Heard, the arguments. <br /> 5. In the light of the arguments advanced before us, the following points arise for consideration:-<br /> <br /> 1) Whether the complainant is entitled to the sum of Rs.1,04,865/- as repaired charges from the Opposite Party?<br /> <br /> 2) Whether the complainant has proved that he has not received Rs.25,300/- said to have been sent by the Opposite Party?<br /> <br /> 3) Whether the complainant has proved deficiency of service on the part of Opposite Party?<br /> <br /> <br /> 6. My finds to the above points is in the AFFIRMATIVE for the following:-<br /> REASONS<br /> <br /> Point Nos. 1 to 3:- <br /> 7. The fact that the complainant had insured his vehicle bearing registration No.KA-03 – B – 6087 with the Opposite Party is admitted. The date of policy was from 13/11/2006 to 12/11/2007. I.D.V. of the vehicle is Rs.3,50,000/-. The complainant has produced the copy of policy. The vehicle met with an accident on 14/07/2007 and he had informed to the Opposite Party of the fact of incident. The complainant has submitted claim form to Opposite Party. The copy of the same is produced. The vehicle left with TOYOTA Motors Private Limited for estimation of damages. As per the estimation by TOYOTA motors, the grant total of estimation is Rs.1,76,718/-. It is the case of the complainant that even after 21 days after leaving the vehicle with TOYOTA Motors, the Opposite Party has not taken any steps for repairs and therefore the complainant requested the Opposite Party that the vehicle will be repaired from outside agency. Thereafter as per the advise of Opposite Party, the complainant left the vehicle with India Car Krafts, H.B.R.Layout by paying advance amount of Rs.34,000/-. Thereafter he left the vehicle with M/s Jay Auto works for repairs. The surveyor of Opposite Party visited the spot and directed the complainant to produce the bills. M/s Jay Auto works had given bills for Rs.1,04,856/- towards repair charges and replacement of damaged parts. The complainant submitted all the original bills to Opposite Party. The Opposite Party has taken defence that as per their surveyor report, the claim was allowed on standard basis for Rs.25,300/- and asked the complainant to accept that amount. But the complainant refused to accept that amount stating that it is on very lower side. Thereafter the complainant got issued legal notice to Opposite Party demanding sum of Rs.1,04,856/-. By looking to the defence version filed by the Opposite Party, it is not clear that as to who has signed on the defence version on behalf of the Opposite Party. Only signature is appeared on the last page of the version and there is no name of the party or officer who has singed the defence version. It is not made clear that the person who has signed on the defence version is an authorized signatory or manager, or Deputy Manager or any officer of the Opposite Party. Therefore such kind of defence version does not give any credit or reality to the defence version. Even the defence version has not been signed by the Advocate representing the Opposite Party. Affidavit evidence on part of the Opposite Party filed and the affidavit has been sworn by Sudha Ganesh, Dy.Manager of Opposite Party. The signature found on affidavit evidence differs with the signature found on defence version. By mere bare eye lot of difference can be seen with the signature found on defence version and also affidavit of Sudha Ganesh. Vakalath has been signed by Regional Manager of Opposite Party. It is seen that the defence version and the affidavit has not been filed by Regional Manager. Even It is not made clear that Sudha Ganesh who has signed her affidavit is an authorized signatory on behalf of the Opposite Party. Therefore, the Opposite Party by their conduct have established that they have not given true facts and they wants to suppress something. The case put up by the Opposite Party is not fair and honest. The Opposite Party being a company should give all the facts clearly without misleading the judicial authority. The way in which the Opposite Party has filed defence version, affidavit all these things clearly establishes that the Opposite Party is not fit to be believed and there is no merit in their defence and objections. As regard the case of the complainant is concerned he has produced estimation of repairs by the Totoya Motors Private Limited. As per the said estimation, they have given estimation of Rs.1,76,718/- and India Car Krafts had given estimation of Rs.83,895/- and ultimately the vehicle left with Jay Auto Works and it was repaired there. As per their estimation and receipts, it is estimated at Rs.1,04,856/-. The complainant has also produced cash receipts to show that he has paid that much of amount to the Jay Auto Works. Therefore, the case put up by the complainant shall have to be accepted. Since the complainant has paid the repair charges to Jay Auto Works and he has produced the cash bills for a total sum of Rs.1,04,856/-. Therefore it is just fair and reasonable to direct the Opposite Party to pay sum of Rs.1,04,856/- to the complainant. The Opposite Party has taken defence that it has sent cheque for Rs.25,300/- to the complainant. But the complainant has filed memo on 17/02/2010. In the memo he has stated that he has not received cheque for Rs.25,300/- from the Opposite Party till that date as stated in the version of the Opposite Party. So in view of his clear cut statement, it has to be accepted that he has not received Rs.25,300/-. If at all the Opposite Party had sent cheque for Rs.25,300/- to the complainant, the Opposite Party should have produced any records or document to show that the cheque had been sent to the complainant and amount had been paid to him. But the Opposite Party has not given any evidence or document or proof to show that it has sent a cheque for Rs.25,300/- to the complainant. The Opposite Party has not produced the cheque number or date of cheque and name of bank etc to establish the fact that really a cheque for Rs.25,300/- had been sent to the complainant. So under these circumstances, the statement of the complainant that he has not received cheque form the Opposite Party shall have to be accepted as true and correct. Since the complainant vehicle was insured with Opposite Party, the IDV amount is Rs.3,50,000/-, the vehicle was met with an accident and it was left for repairs to the Jay Auto Works for repairs and vehicle got repaired by the complainant by spending Rs.1,04,856/- and he has paid the amount to Jay Auto Works and obtained cash bills and submitted all the bills and estimation to the Opposite Party. The Opposite Party instead of allowing the claim of the complainant has taken untenable defence. The Opposite Party has not produced the estimation made by their surveyor before this Forum. Therefore the Opposite Party has committed deficiency in service in not honoring the claim put up by the complainant. A just fair and reasonable claim of the complainant has not been allowed without proper and specific reasons. Therefore, it is a definite case of deficiency in service. The complainant is entitled for the relief. In the result, I proceed to pass the following:- <br /> ORDER<br /> 1) The complaint is ALLOWED.<br /> 2) The Opposite Party is directed to pay Rs.1,04,856/- to the complainant. The complainant is also entitled to 6% interest on the amount of Rs.1,04,856/- from the date of complaint till payment/realization. <br /> 3) The complainant is also entitled to Rs.2,000/- as costs of the present proceedings from the Opposite Party. <br /> 4) The Opposite Party is directed to comply the order within 30 days from the date of order <br /> 5) The Opposite Party is directed to send the amount as ordered to the complainant directly by way of cheque or D.D. with intimation to this Forum. <br /> 6) Send the copy of this Order to both the parties free of costs immediately. <br /> 7) Pronounced in the Open Forum on this 11TH DAY OF FEBRUARY 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> <br /> MEMBER MEMBER <br />