BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    03^rd DAY OF SEPTEMBER 2019

Complainant/s: -                           

Sri.Manjunath Shetty

S/o Sri.M.Vasu Shetty,

Aged about 62 years,

R/at 5A C 926,

Kalyan Nagar,

HRBR 1^st Block,

Bengaluru-43

By Adv.Sri.Harikrishna.S.Holla

V/s

Opposite party/s:-    

The Deputy Manager (Claims) Tata-AIG General Insurance Co. Ltd.,

No.69, JP & Devi

Jambu Devakshara

Arcade, Millers Road, Bengaluru-52.

By Adv.Sri.S.Maheswara

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to pay a sum of Rs.91,467/- towards repairs; to pay Rs.800/- towards towing charges; to pay interest at 18% p.a.; to pay Rs.50,000/- towards damages and to pay cost Rs.10,000/-.                                            

2. The brief facts of the complaint are as under:

The Complainant submits that, he is the owner of Hyundai Magna I 20 bearing No.KA03 ML4065 (hereinafter referred to as the said vehicle). The said vehicle was insured with OP by paying premium of Rs.7,349/-, valid up to 29.08.11. The Complainant further submits that, on 23.08.12 due to seepage of rain water, electronic/electrical parts and components of the said vehicle were damaged, hence gave for repairs to Advaith Motors Pvt. Ltd., The Complainant had followed required procedure for making insurance claim. The surveyor of the OP, inspected the vehicle and after his approval the Advaith Motors carried out the repairs and claimed a repair bill for Rs.2,07,920/- and towing charges of Rs.1,800/-. The said surveyor informed that, OP has agreed to pay only 50% of the charges by quoting the clause “For all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags 50%.” Hence, the Complainant sent a letter dtd.02.11.12 to OP to honor the entire bill raised by Advaith Motors. But OP mentioning the said clause informed that, there is no provision for complete reimbursement. Since, the Complainant wanted the vehicle for his use, paid balance amount of Rs.91,467/- towards repair bill and Rs.1,000/- towards towing charges under protest requesting for full payment of the claim. In this context he issued legal notice to refund the amount paid by the Complainant. Hence this complaint.

3. After issuance of notice, OP did appear and filed version. In the version, OP submits that, upon receipt of the claim made by the Complainant, appointed surveyor to conduct survey. Accordingly, the surveyor has assessed the loss caused to the said vehicle as per the terms and conditions of the policy for Rs.1,15,453/- towards repairs and Rs.1,000/- towards towing charges. OP settled the claim and made the said payment to the repairers M/s.Advaith Motors since cashless facility opted by the Complainant. Since the Complainant had some queries regarding the mode of settlement, OP vide letter dtd.02.11.12 clarified the basis of settlement. The Complainant understanding the said settlement of claim, voluntarily taken the custody of the repaired vehicle from Advaith Motors. The Sec.1 of the terms of the policy relating to the mode of settlement of the claim reads thus:

Section I – Loss of or damage to the vehicle insured:

1) The company will indemnify the insured against the loss or damage to the vehicle insured hereunder and / or its accessories whilst thereon.

(i) By fireexplosionself-ignition or lightning

(ii) By burglary housebreaking or theft

(iii) By riot and strike

(iv) By earthquake (fire and shock damage)

(v) By flood typhoon hurricane storm tempest inundation cyclone hailstorm frost

(vi) By accidental external means

(vii) By malicious act

(viii) By terrorist activity

(ix) Whilst in transit by road rail inland – water way life elevator or air

(x) By landslide rocklisde

Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced:

1. For all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags 50%

2. For fibre glass components 30%

3. For all parts made of glass

4. Rate depreciation for all other parts including wooden parts will be as per the following schedule

Hence there is no deficiency of service on its part and prays for dismissal of the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP filed affidavit evidence and produced the documents. The surveyor filed affidavit evidence and produced the document. Both filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the Complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for?

2. What order?

        6. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- As per final order

REASONS

7. At the first instance, the Complainant filed CC.No.746/2013 before 4^th Addl., DCDRF, Bengaluru which was came to be dismissed for ‘non-prosecution’ on 13.08.13. This fact is not pleaded by the Complainant in his complaint. Hence suppressed the material facts. But anyhow, we placed reliance on the contents of the complaint which is within two years from the date of refusal of the claim of the Complainant. When second consumer complaint is well within time, the same can be taken in to consideration.

8. Point No.1: We have briefly stated the contents of the complaint as well as the version filed by OP.  The undisputed facts which reveal from the pleadings of the parties goes to show that, on 23.08.12 due to seepage of rain water, electronic/electrical parts and components of the said vehicle were damaged. Hence, the Complainant gave the said vehicle for repairs to M/s.Advaith Motors Pvt. Ltd., who raised the repair bill for Rs.2,07,920/- and towing charges for Rs.1,800/-. Further it is evident that, the said vehicle was insured with OP and the policy was in force at the time of the said incident dtd.23.08.12. As the said fact was informed to the OP, he appointed one Sri.M.N.Manjunath, Surveyor and Loss Assessor. The said surveyor assessed the loss for Rs.1,16,453/- and submits the survey report on 31.10.12. The OP furnished the said report before this forum with memo dtd.05.12.14. It is not in dispute that, the OP has settled the claim for Rs.1,15,453/- towards repair charges and Rs.1,000/- towards towing charges. The Complainant paid the remaining balance amount of Rs.91,467/- towards repairs and Rs.800/- towards towing charges and took the possession of the repaired vehicle from Advaith Motors under protest requesting for full payment of the claim.

9. The survey report submitted by the surveyor is not disputed by the Complainant. The disputed facts is only with regard to the liability of the OP to the extent of Rs.91,467/- towards repair charges and Rs.800/- towards towing charges. The OP has repudiated the said claim by invoking clause 1 of the policy which we have already stated in paragraph 3 of this order. The settlement of the claim by invoking the said clause with reference to the survey report is acceptable as the Complainant is to be bound by the terms and conditions of the policy. Under such circumstances, this forum has no other go except to place reliance on the survey report, where the claim of the Complainant is restricted for Rs.1,15,453/-+ Rs.1,000/- (repair+towing charges) by invoking the said clause. The Complainant has already paid the remaining repair charges of Rs.91,467/- and towing charges of Rs.800/- to the Advaith Motors, which cannot be refundable. Accordingly we answered point No.1 in the negative.

   10. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the Complainant is dismissed devoid of any merits. Looking to the circumstances of the case we direct both parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of September 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.21.04.14

Sri.Manjunath Shetty

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP dated.05.07.14

Sri.Alok Gupta, Branch Claims Manager of OP

Copies of Documents produced by OP

Witnesses examined on behalf of the Surveyor dtd.16.10.14

Sri.M.N.Manjunath, Surveyors & Loss Assessors

Copies of Documents produced by the Surveyor:

            MEMBER                                           PRESIDENT