By ADV. RAVI SUSHA, MEMBER.<br /> <br /> The complainant filed this complaint for realization of Rs.1429739 as the estimated cost of repairs and labour charges of the vehicle from the opp.parties.<br /> <br /> The averments in the complaint can b e briefly summarized as follows:<br /> <br /> The complainant is the registered owner of the car bearing Reg.No.KL- 2L.1083. The said car was having a comprehensive insurance policy with the 1st opp.party for a period from 30.3.2002 to 29.3.03 and it has a double cover warranty package with the 2nd opp.party. The said car met with an accident on 5.9.2002. The complainant reported a claim before the 1st opp.party and the 1st opp.party issued claim form.. The complainant returned the claim form with estimate of Rs.1429739. The 1st opp.party deputed a surveyor and he after denomination assessed the extent of loss to a sum of Rs.3053/-. That act of the 1st opp.party is a deficiency of service and hence the complainant filed the complaint for realization of Rs.14297.39 which is the estimated cost of repairs and labour charges of the vehicle.<br /> <br /> I opp.party filed version contending that the complaint as framed is not maintainable either in law or on facts. The complaint preferred by the complainant is out of the scope of the territorial jurisdiction of the Hon’ble Forum and the complainant has no locustandy to file this complaint before this Hon’ble Forum. The very same complainant filed another petition before this Hon’ble Forum for very same cause of action as OP[Q]No.384/2002 which has been dismissed for default on the part of the complainant. The complainant preferred a restoration petition against the dismissal order, which has dismissed by the Forum on 12.10.2004 stating that the restoration petition is not maintainable. It is submitted that the complainant is legally estopped from filing another complaint for the very same cause of action for second time without questioning the order dated 12.2.2004 before the appropriate Forum. The present complaint is only an abuse of process of the authority vested with this Hon’ble Forum and is liable to be dismissed with cost of this 1st opp.party. The opp.party on receipt of the claim form and the estimate from the complainant had deputed a licensed surveyor and loss assessor Mr. B. Renadev for inspecting the damages of the vehicle and for assessing the loss as per the policy condition. The surveyor appointed by this opp.party on 24.9.2002 itself has visited m/s. Benz Motors at Sakthikulangara, Kollam where the damaged vehicle kept for repairs. The surveyor examined the damages sustained to the vehicle in detail and also had discussion with the repairer about the nature of damages sustained to the vehicle and about the necessary repairs required for rectifying the damages. The surveyor also took photographs of the insured vehicle showing the damaged portions. The surveyor after considering the actual damages sustained to the vehicle and on the basis of the required repairs, replacement of parts and painting cost on the affected area has assessed the actual loss payable to the insured complainant as per the policy condition to a sum of Rs.3,053/-. The surveyor has assessed the loss payable to the insured complainant as per the policy condition and he submitted the survey report before this opp.party. Hence the opp.party prays to dismiss the complaint.<br /> <br /> Opp.parties 2 and 3 are filed joint version contending, interalia, that the complaint is not maintainable either in low on or facts. It is submitted that the above complaint is barred by limitation and is liable to be dismissed under Sec. 24A of the Consumer Protection Act [hereinafter referred to as the Act] It is further submitted that the complainant had purchased the car for operating it as a taxi engaging paid drivers. Hence the complainant cannot be termed as a consumer as defined under Section 2[I] [d] of the Act. The complaint is therefore liable to be dismissed as not maintainable. It is further submitted that though it had been clearly stated in the terms and conditions of the double cover warranty that the package would be applicable only if comprehensive insurance was taken from United India Insurance Co. Ltd., DO III Ernakulam, the complainant renewed the insurance policy from the United India Insurance, Kollam Branch. He had thus violated the express condition of the double cover warranty scheme and thus invalidated the entire scheme and was not entitled for any benefits under the double cover warranty scheme. It is pertinent to state here that the double cover warranty scheme had been evolved with the United India Insurance Co. Ltd., DO III, Ernakulam. If a customer falls to take the insurance from the particular branch of the Insurance Co. at Ernakulam the scheme cannot be continued. Hence it is submitted that there is no merit in the statement of the complaint that since he is a resident of Kollam he got the insurance policy renewed at Kollam. If the complainant intended to avail of the double cover warranty scheme, he was bound by the terms and conditions of the said scheme. After accident the vehicle was thereupon surveyed by a surveyor deputed by the first opp.party. The surveyor after detailed examination of the vehicle had on 24.9.2002 sanctioned Rs.2500/- as labour charges and also replacement of the rear cluster lamp costing Rs.883/- The other parts in the estimate were not sanctioned by the surveyor. These opp.parties had provided the double cover warranty scheme to the complainant subject to the terms and conditions of the said scheme. It is submitted that as these opp.parties have not committed any deficiency in service or unfair trade practice as alleged, these opp.parties are in no way liable to refund the amount with interest as claimed by the complainant. There is no deficiency in service on the part of these opp.parties. Hence prays to dismiss the complaint.<br /> <br /> The points that would arise for consideration are:<br /> <br /> 1. Whether this case is barred by limitation.<br /> 2. Whether there is any deficiency in service from the side of the opp.parties.<br /> 3. Reliefs and cost.<br /> <br /> For the complainant PW.1 is examined and marked Exts.P1 to P5 <br /> <br /> For the opp.parties DW.1 and Dw.2 are examined. Exts. D1 to D6 are marked.<br /> <br /> Points 1 to 3<br /> <br /> Complainant’s case is that his car bearing Reg.No.KL-2/L 1083 met with an accident on 5.9.2002. When the complainant filed claim petition for realization of Rs.14297.39 which is the estimated cost of repairs and Labour charges of the vehicle, before the 1st opp.party as per the comprehensive policy for the vehicle with the 1st opp.party, the 1st opp.party was ready to give only Rs.3053/- as the assessed amount by the surveyor. Against the said attitude of the 1st opp.party, complainant filed this complaint.<br /> <br /> The 1st opp.parties contention is that the complaint is not maintainable. 1st opp.party further contended that after receiving the claim petition from the complainant, they had deputed a licensed surveyor and loss assessor DW.1 for inspecting the damages of the vehicle and for assessing the loss as per the policy condition. According to 1st opp.party they are bound only to accept the report submitted by the surveyor.<br /> <br /> Opp.parties 2 and 3’s main contention are that the complaint is barred by limitation and is liable to be dismissed under section 24A of the Consumer Protection Act. They are further submitted that as per the terms and condition after the double cover warranty that the package would be applicable only if comprehensive insurance was taken from united India Insurance Co. Ltd. DO III Ernakulam. Here the complainant renewed the Insurance Policy from the United India Insurance, Kollam Branch. Thus the complainant had violated the condition of the double cover warranty scheme and invalidated the entire scheme and was not entitled for any benefits under the double cover warranty scheme.<br /> <br /> The 1st point to be decided is that whether the complaint is barred by limitation. The District Forum shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Notwithstanding anything contained in sub section [1] a of sec. 24A complaint may be entertained after the period specified in Sub Section [1], if the complainant satisfies the Forum, that he had sufficient cause for not filing the complaint within such period.<br /> <br /> In the present case the complaint has not asked for any condonation of delay. The present complaint which was filed on 31.12.2004 in respect of claim that arose on 15.9.2002 is clearly barred by limitation and no efforts have been made by the complainant o seek condonationof delay. For counting the period of limitation, the dismissal date of 1st complaint is 2002 OP[Q] 384, and its restoration petitions dismissal dates cannot be accepted<br /> <br /> Therefore the complaint fails on that ground. The point found accordingly.<br /> <br /> With regard to the case against 1st opp.party, they are totally unaware of the alleged double cover warranty scheme with the 2nd opp.party. According to 1st opp.party they are concerned only with comprehensive Insurance Policy taken from them and also bound to pay only the assessed amount calculated by the surveyor. The 1st opp.party has examined the surveyor as DW.1 and marked the survey report as Ext.D4. From DW.1’s evidence it is revealed that he had assessed the actual loss payable to the insured, after considering the actual damages sustained to the vehicle and on the basis of the repairs, replacement of parts and painting cost on the affected area and also considering the depreciation etc. Hence we are of the opinion, that in the absence of any reason to disbelieve the surveyor’s report. Ext.D4, deserves to be accepted and the amount as recommended by the surveyor is entitled to the complainant. The complainant is entitled to claim only an amount of Rs.3050/- alone from the 1st opp.party as per Ext.D4. and the 1st opp.party is ready to give the said amount to the complainant. Hence there is no deficiency on the part of the 1st opp.party in deciding the claim of the complainant. In the result the complaint is liable to be dismissed as against the 1st opp.party coming to the case against opp.party 2 and 3 they have mainly relied on the plea of limitation and the terms and condition mentioned in Ext.D2. From the evidence it is seen that the complainant renewed the Insurance Policy from the United India Insurance, Kollam Branch. As per the terms and condition in Ext.D2, the double cover warranty package would be applicable only if comprehensive Insurance was taken from United India Insurance Co. Ltd. DO III Ernakulam. Thus the complainant had violated the condition of Ext.D2. If the complainant intended to avail of the double cover warranty scheme, he was bound by the terms and condition of the said scheme. Hence the 2nd and 3rd opp.parties have not committed any deficiency in service and these opp.parties are is no way liable to refund the claim amount.<br /> <br /> <br /> <br /> In the result the complaint fails and is dismissed without cost.<br /> <br /> <br /> <br /> Dated this the 30th day of June, 2008.<br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – Madhana Chandran Pillai<br /> <br /> List of documents for the complainant <br /> P1. – Policy certificate<br /> P2. – Owner’s manual<br /> P3. – 2nd policy certificate from Kundara Branch<br /> P4. – Estimate from Benz Auto Motors [2 Nos]<br /> P5. – Bills<br /> <br /> List witnesses for the opp.parties<br /> DW.1. – Moncey George<br /> DW.2. –Renadev<br /> <br /> List of documents for the opp.parties<br /> D1. – Copy of the warranty conditions<br /> D2. – Terms and condition<br /> D3. – Policy with conditions<br /> D4. – Survey report<br /> D5. - Claim form<br /> D6. - Letter sent to the complainant dt. 5.11.2002<br /> <br />