IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   30^th  DAY OF NOVEMBER 2021

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

      Smt.S.Sandhya   Rani. Bsc, LLB ,Member

     Sri.Stanly Harold, B.A.LLB, Member

    CC.No.144/2020

P.Abdul Rahim,

Paramkimamvila Veedu,

Elampalloor,

Kundara P.O.

(By Adv.P.Babukuttan Pillai)                                                        :           Complainant

V/S

1. The Divisional Manager,

                    Oriental Insurance Company,

LIC           Building, Chinnakkada, Kollam:Opposite parties

2. M/s Panachamoottil Motors,

                  Near Old Fire Station, Nedumpaikulam

       (By Adv.V.Dileep Kumar)

3.    Manager,      

          Oriental Insurance Company,

         Elampalloor D.T Building,

        Kundara P.O.

ORDER

Sri.Stanly Harold, B.A.LLB, Member

          This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint are as follows:-

          The complainant is an Ex-NRI, residing with family at Elampalloor, Kundara.  Complainant purchased Honda Diya Scooter from M/s Panachimoottil Motors, near Old Fire Station, Nedumpaikulam.  The registration No. of the said vehicle is KL-02-BD-6631.  The complainant had obtained comprehensive insurance policy No.441492/31/2019 3554 dated 22.02.2019 from M/s. Oriental Insurance Company, Kundara(3^rd opposite party).  The complainant’s vehicle met with an accident on 16.10.2019 at about 5.30 p.m with another scooter bearing Reg.No.KL -24D/6879.  Thereafter the matter was reported to SHO, Kundara and GD entry NO.16/2019 dated 26.10.2019 was  recorded, since there is no injury to the riders.  The motor cycle were garaged to the authorized service centre of Honda Diya motor cycle at Nedumpaikulam, Panachimoottil Motors at the complainant’s expense.  The complainant has taken the comprehensive insurance policy from 3^rd opposite party which is the authorized service centre which directed the complainant to pay the repairing charge bill.  On receipt of the bill, the complainant approached the insurer for reimbursement of amount paid to the authorized service centre of Honda Diya.  The total amount for the work was Rs.28,061/-.  The insurance company sanctioned only Rs.16,300/- in the account of the complainant.  By raising flimsy reasons and exempting certain items from the ambit of insurance. 

The insurance company told that they have taken into account the estimate admitted by the surveyor  of the company.  The survey work is a part of rectification work done by the company.  Here at the stage of carrying out the works additional works were necessitated at the authorized service centre.  It is only a formality of the insurance company to ascertain the necessity of additional works through surveyor.  The complainant who is a layman is least bothered and unaware of the technical formalities which in turn results loss of money and service.  Complainant never brought any parts outside the authorized service centre.  They have carried out unavoidable repair works to ply the vehicle road worthy.  The complainant lost an amount of Rs.11,761/- against the conditions of policy.  Insurance company denied many payments without any reasons.  For eg:As per bill Sl.No.32 baring ball @ Rs.226/-, item No.26, front shield @ Rs.1,298/93 etc.(denied on a reason that it is a consumable item).  The front portion of the scooter was heavily damaged which is evident from the photographs itself.  Hence front shield replaced.  So also the change of ball due to change of fork is inevitable, that cannot be denied.  There are so many items denied for re-imbursement for the reasons not known to the complainant.  Moreover an amount of Rs.4,017/- is also deducted towards depreciation.  The year of manufacture of the scooter is 2018.  The 3^rd opposite party has estimated an amount of repairs for Rs.39,000/-.  But they carried out work for Rs.28,061/- being unavoidable works.  The vehicle was garaged in the workshop on 17.10.2019.  After the works, the same is returned to the complainant only on 28.12.2019.  The above act of the insurance company is unfair trade practice and deficiency in service, which warrants urgent remedy.  In order to avoid litigation the complainant issued registered legal notice to the Divisional Manager, Oriental Insurance, Kollam on 20.02.2020 demanding to refund of the balance amount.

The opposite parties accepted the notice and replied that “The insured or workshop had not produced any additional estimate or informed the company or surveyor for any changes”.  The reply itself is evident that they have not paid the admissible amount due to some technical reasons which is beyond the control of the complainant.  The complainant obtained permission of RTO, Kollam on 05.02.2019 for change of chasis.  GD entry of SHO, Kundara was also obtained.  The Divisional Manager, Oriental Insurance Company is trying to justify the injustice effected, without going to the merit of the complaint.  The insurance company denied payment of Rs.4,906/- on the reason that the claim is not in the estimate and being consumable items.  Denied labour charge of Rs.2,147/- etc.  The complainant sustained loss of money and also sustained mental agony due to negligence and deficiency in service and unfair trade practice  followed by the opposite parties which cannot be compensated in any manner.  Hence the complaint.

          Notice issued to 1^st and 3^rd opposite parties from the Forum/Commission return unserved.  Hence they set exparte.  The 2^nd opposite party filed version resisting the averments in the complaint.  The 2^nd opposite party contends that the complainant is not entitled to get any relief in the complaint and complaint is to be dismissed.  The 2^nd opposite party admit that the complainant had purchased a Honda Scooter from the opposite party and the said vehicle was registered with RTO, Kollam.  The complainant had insured the vehicle with the Oriental Insurance Company(3^rd opposite party).  It is admitted that the vehicle met with an accident on 16.10.2019 and a GD entry was made in the register of the Kundara police station on 26.10.019.  The accident vehicle parts got damaged and the said vehicle was entrusted with the service centre of the 2^nd opposite party.  As stipulated in the insurance law the vehicle is to be examined by the surveyor and loss assessor of the insurance company.

Accordingly, the surveyor and loss assessor of the Oriental Insurance Company inspected the vehicle and prepared report stating the damage of 18 parts.  In the accident 54 parts were damaged.  Out of the said 54 parts only 22 parts are covered under the insurance claim.  The remaining parts are consumable parts and periodic maintenance parts.  The complainant is not entitled to get refund of the said parts.  The surveyor and loss assessor had also assessed labour charges.  Since the vehicle is 2018 model, there is depreciation and further the value of the consumables as mentioned in the insurance policy is not refundable.  Painting charge in this case was not allotted because it was a wear and tear due to the continuous usage of the customer and it was not connected with the accident alleged by the complainant.  The further contention by the 2^nd opposite party is that even if the complainant has taken the comprehensive insurance policy it is a depreciation policy.  The complainant had agreed and signed the job card No.4197 dated 19.10.2019 wherein the complainant had agreed for the works to be done by this opposite party.  The opposite party had issued bill only for the works done and parts newly fitted.  The complainant has to bear the charges of the spare parts which are not covered by the insurance policy.  The 2^nd opposite party contends that the additional work carried out as per the request of the complainant which can be seen from the job card which is admitted by the complainant in paragraph 14 of the complaint that  “ at the stage of carrying out the works were necessitated at the authorized service centre”.  The 2^nd opposite party further contend that after completing the work by the complainant took the vehicle with full satisfaction.  Though the estimate was Rs.39,300/- 2^nd opposite party carried out work for Rs.28,061/- being unavoidable work that they had acted only as per the insurance coverage and 2^nd opposite party is not liable to compensate the complainant that the complaint is filed without any bonafides and the complainant is duty bound to obey the conditions stipulated in the insurance policy and prays to dismiss the complaint with cost.

     In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service on the side of the opposite parties in disbursing insurance claim in respect of vehicle bearing Reg.No.Kl-02-BD-6631 involved in the accident?
2. Whether the complainant is entitled to get the reliefs sought for from the opposite parties No. 1 to 3 ?
3. Reliefs and Costs?

Evidence on the side of the complainant consists of the oral evidence of PW1 and Exts.P1 to P10 documents.    No oral or documentary evidence adduced on the side of 2^nd opposite party. Both complainant and 2^nd  opposite party filed notes of argument.  The 1^st and 3^rd opposite party failed to appear before the commission after receiving notice.  Hence the 1^st opposite party has been set exparte.

Point No. 1 & 2

          For avoiding repetition of discussion of materials these two points are considered together.   The following are admitted rather undisputed facts in this case. The complainant is the owner of the disputed Honda Diya Scooter bearing No. Kl 02-BD-6631.  He purchased the same during the month of February 2018.  The said scooter being a new one insured with 1^st and 3^rd opposite parties by availing comprehensive insurance policy bearing No.441492/31/2019/3554 (renewed) of  Oriental Insurance Company.  On 16.10.2019 the vehicle met with an accident with another scooter nearby Elampalloor, Thycavu, Kundara and there was no causalities to riders.  The accident was reported to the Kundara police station who entered the same in their G.D as entry No.016 a copy of the G.D entry is marked as Ext.P1.  In view of the oral evidence of PW1 coupled with Ext.P1 endorsement the GD and Ext.P5 estimate prepared by the 2^nd opposite party it is clear that the vehicle has sustained the following damages chasis bent, Fork bent damages, shock arm, mulgadu damages and front shield damages, front wheel assembly damages and damages to the platform of the vehicle etc. The valuator deputed by 1^st and 3^rd opposite parties inspected the vehicle, assessed the damages sustained to the vehicle.  After completion of the formalities of survey the vehicle was repaired and released to the complainant on 28.12.2019 by the 2^nd opposite party

It is pertinent to note that the authorized service centre had assessed the damages to the tune  of Rs.39,000/- .  However they repaired the vehicle at an expense of Rs.28,061/-.  Therefore the complainant had applied for reimbursement of the repair charges from the 1^st and 3^rd opposite party insurance company.  But they only admitted an amount of Rs.16,300/- as per Ext.P7 assessment sheet and clarification by disallowing Rs.11,761/- claiming that the consumable items, painting and labour charges are not admissible depreciation has to be deducted, salvage value has to be deducted etc.  Hence the complainant caused to sent Ext.P8 lawyer notice to all the opposite parties for which the 1^st opposite party has issued Ext.P9 reply justifying their actions.

It is true that opposite parties 1 & 3 have attached the clarification of the surveyor/loss assessor along with Ext.P7 assessment sheet/ Bill check report wherein the reasons for deducting Rs.11,761/- from the total amount assessed is stated.  But those reasons and clarifications according to the learned counsel for the complainant are not convincing and satisfactory.  As the surveyor is not examined on the side of the insurance company the position was not clarified also.  According to the complainant the deduction of the following amount from the final assessment sheet is not justifiable at all.

It is evident from Ext.P10 copy of the notification in the internet, the Oriental Insurance company (3^rd Opposite party) regarding two wheeler package policy subject to deduction for depreciation in respect or parts replaced is given as follows.  1) For all rubber/nylon/plastic parts, tyres, tubes and batteris:50%. 2) For fiber glass components:30% 3) For all parts made of glass :Nil 4) Rate of depreciation for all other parts including 3wooden parts will be as per the following rates: nil.  Exceeding 6 months but not exceeding one year 5%.  Exceeding one year but not exceeding 2 years:10%.  Here any vehicle is coming under the category of below 2 years.  The complainant is eligible to get the reimbursement of eligible rate after  deducting 10 % depreciation.

Expenses towards painting item in the bill is disallowed stating that most items of the vehicle are made up of fibre/plastic  when a vehicle is heavily damaged due to an accident.  Painting the entire body is highly inevitable and it will look okward if not fully painted.  Hence even if some of the items are fiber or plastic painting is highly inevitable.  Hence there is no justification for deducting labour charges.  Similarly there is no justification in deducting expenses.  It is brought noted under clarification item No. 3 to 5, 7 to 9 as works were carried out at the authorized workshop approved by the insurance company.  If at all the 2^nd opposite party workshop has used any spare parts in excess if the estimation of the surveyor or levied excess labour charge it is not within the look out of the complaint who is having no control over 2^nd opposite party.  The complaint is also not allowed to carry out the repair work at any workshop of his choice except at the authorized workshop.  If at all the 2^nd opposite party has committed any foul play or delayed the repair work the complainant is not liable at all.  In view of the materials available on record we hold that the complainant is entitled to get Rs.7,429/- towards the amount paid by him to the 2^nd opposite party as repairing charges of the insured vehicle after deducting permissible depreciation salvage value and policy excess.P2.

The complainant would not raise any specific allegation of deficiency in service or any unfair trade practice against 2^nd opposite party nor sought for any relief specifically against the 2^nd opposite party authorized service centre.  PW1 has stated during cross examination that he requires no relief from 2^nd opposite party.  In the circumstances 2^nd opposite party is to be exonerated. 

          It is the specific case of the complainant is that the 1^st and 3^rd opposite parties without any basis and in violation of the policy conditions denied a major portion of the bill while perusing Ext.P10 policy package it can be concluded that the deductions effected by the 1^st and 3^rd opposite parties are contrary to the admitted policy and no customer is supposed to suffer at the whims and fancies of the insurance company.  A person who is availing a comprehensive insurance policy for his vehicle is for protecting himself from the loss arising out of any unforeseen accidents.  It is highly unfair in denying the benefits of the insurance policy without valid reasons.  On evaluating the entire materials on record would establish that there is deficiency in service and unfair trade practice in denying the eligible claims in respect of the insured vehicle by the 1^st and 3^rd opposite parties.

          It is also brought out in evidence that the due to the delay in getting the vehicle delivered after repair work and due to the non-refund of the eligible expenses met by the complainant in getting repaired the insured vehicle the complainant sustained mental agony apart from financial loss.  Hence he is entitled to get a reasonable compensation and costs of the proceedings.  In view of the facts and circumstances we are of the view that the complainant is entitled to get Rs.5,000/- as compensation and Rs.3,000/- as costs of the proceedings.  Points answered accordingly. 

Point No.3 

          In the result complaint stands allowed with modification in the following terms.

1. 1^st and 3^rd opposite parties are directed to pay Rs.7,429/- to the complainant being the amount illegally deducted from the expenses met by the complaint towards repairing charge of the insured vehicle with interest 6% p.a. from the date of complaint till realization.
2. The 1^st and 3^rd opposite parties are directed to pay Rs.5,000/- as compensation and Rs.3,000/- as the cost of the proceedings.
3. The 2^nd opposite party is exonerated from all liabilities.
4. 1^st and 3^rd opposite parties are directed to comply with above directions within 45 days from the date of receipt of the copy of this order failing which the complainant is entitled to recover the same along with the interest @ 9 % p.a except for costs from the opposite parties 1 & 3 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 30^th  day of  November 2021.

STANLY HAROLD:Sd/-

E.M .MUHAMMED IBRAHIM:Sd/-

S.SANDHYA RANI:Sd/-

                                                                   Forwarded/by Order

                                                                                                                                Senior superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : Abdul Rahim

Documents marked for the  complainant

Ext.P1             : General Diary Abstract dated 26.10.2019 

Ext.P2             : Copy of R.C book

Ext.P3             : Copy of insurance policy certificate from M/s Oriental Insurance company ltd.

Ext.P4             : Sanction order of RTO, Kollam

Ext.P5             : Copy of estimate

Ext.P6             : Copy of tax invoice

Ext.P7             : Reply from Insurance Company to the complainant

Ext.P8             : Copy of Advocate notice dated 20.02.2020

Ext.P9             : Copy of reply from General Manager, Oriental Insurance Company

Ext.P10           : Copy of Two wheeler Package Policy

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-NIl