DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 26th day of February 2011
Present : Smt.Seena H, President
: Smt.Preetha G Nair, Member
: Smt.Bhanumathi A.K. Member Date of Filing : 26/5/2006
(C.C.No. 77/2006)
Sethumadhavan
S/o.Govindan
Changuthodi House,
Sreekrishnapuram,
Palakkad : Complainant
(By Advocate : Manoj Ambat)
V/s
1.The Duly constituted Attorney,
HDFC Chubb,
General Insurance Company Ltd.
5th Floor, Express Towers,
Nariman Point, Mumbai - 400021
2.The Manager,
Duly constituted Agent HDFC Chubb,
General Insurance Company Ltd.
Surya Links, Iind floor, Athulya Building
Chunnambuthara, Palakkad
(By Advocate P.Prasad)
3. The Proprietor,
Car Craft, Car
Authorised Service Station,
5/682 CD
Manali Road, Palakkad : Opposite parties
(By Advocate U Suresh)
O R D E R
By Smt.BHANUMATHI A.K. MEMBER
The complainant in this complaint had purchased one Toyota Qualis
bearing register No.KL/9 P1555 on 11.6.2004 and insured the vehicle with the
1st and 2nd opposite parties company for the period from 31.5.2004 to 30.5.2005 by remitting a sum of Rs.22,637/- as the insurance premium. He had also remitted a sum of Rs.2,391/- on 19.10.2004 towards the premium to cover additional requirements in the above mentioned policy as directed by 1st opposite party and 2nd opposite party. It is stated in the complaint that the complainant's vehicle was hit from behind by a speedy transport bus on 23.8.2004 around 6:30 p.m within the Peechy Police station limit. The accident was intimated to 2nd opposite party and the damaged vehicle was delivered to 3rd opposite party on 24.8.2004 for doing repair works as per the direction from the 2nd opposite party. The complainant has incurred total expenses of Rs.73,182/- towards the repairing charges at the 3rd opposite party workshop and additional expenses of Rs.3,000/- towards towing expenses for the vehicle shifting from the accident spot to the 3rd opposite party workshop. It was assured by the 2nd opposite party that the expenses in total would be reimbursed by the 1st opposite party. But the 1st opposite party made payment of Rs.40,406/- out of total amount of Rs.73,182/- without any reasonable reasons. The 3rd opposite party delivered the vehicle to the complainant on 29.12.2004 after keeping the vehicle for 126 days under his custody. It is mentioned in the complaint that he did not get any income using the above vehicle as taxi for a period from 23.8.2004 to 29.12.2004 and also compelled to pay the loan amount along with interest to the ICICI Bank. The complainant submits that the 3rd opposite party even after payment of advance received from him, made undue delay in the repair work. As per the repair bills, the 3rd opposite party purchased the spare parts only on 28.12.04. According to the complainant, his vehicle was given for repairs to the 3rd opposite party workshop only due to the direction of the 2nd opposite party, but they had colluded each other to defeat the complainant. The vehicle can be given for repairs at Toyota show room. The complainant further states that he sustained huge mental agony, personal difficulties, hardships and a loss of Rs.50,000/- apart from the bill amount for which all the opposite parties were jointly and severally liable. It is averred in the complaint that no reply notice from the opposite parties except the 3rd opposite party was sent to complainant. But he had received irresponsible and baseless reply from the 3rd opposite party. The complainant alleges that the opposite parties were done clear deficiency of service and undue delay in repair works. Feeling aggrieved, this complaint was filed before the forum seeking for an order directing 1st and 2nd opposite parties to pay Rs.32,776/- to the complainant as the balance repair expenses and directing all the opposite parties to pay Rs.50,000/- jointly and severally as compensation for mental agony caused to him and other reliefs prayed for the time to time and the forum seems fit to grant.
The opposite parties1 and 2 entered appearance and filed written statement denying the alleged deficiency of service on their part. They contended that the insurance claim was settled at Rs.40,406/ and that the complainant accepted the said amount by way of full and final settlement. They also contended that an approved surveyor was deputed to assess the loss sustained by the complainant and the payment was effected on the strength of the survey report. Now, the 1 and 2 opposite parties raised a strong contention that the complainant violated the policy conditions as the vehicle was used as a taxi and the opposite parties paid the amount towards full and final settlement as per the policy terms and conditions believing that there is no violation of policy conditions.
Another contention of the 1 and 2nd opposite parties is the complainant has not produced the actual bills. The spare parts bill dated was on 28/12/04 and the complete repair work including painting was over on 29/12/04 which clearly shows that this claim is false and there is a collusion between the complainant and 3rd opposite party. Thus the 1st and 2nd opposite parties prayed for the dismissal of the complainant.
The 3rd opposite party entered appearance and filed written version denying the deficiency of service for the delay of 126 days for delivering the vehicle after repairs. It was contended that there occurred delay in getting the genuine spare parts and the said delivery was not under the control of the 3rd opposite party. After receiving the notice from the complainant 3rd opposite party issued reply notice stating true facts. But the complainant has not produced the same. Thus the 3rd opposite party prayed for dismissing the complaint filed against them.
Complaint was once allowed had taken up in appeal Hon’ble State Commission set aside the order and was remitted back for fresh consideration and disposal.
Complainant and opposite party filed fresh affidavit. Ext.A1 to Ext.A5 is marked on the side of the complainant and Ext.B1 to B2 is marked on the side of the 1 and 2 opposite parties. No documentary evidence is adduced by the 3rd opposite party.
Issues to be considered are
1.Whether there is any deficiency of service on the part of opposite parties ?
2.If so what is the relief and costs ?
Heard both parties and gone through the entire documents on record.
The main contentions of the 1st and 2nd opposite party is that they are not liable to pay any amount as the vehicle was used as a taxi. If it is used as taxi it is the violation of the policy conditions and the complainant is not entitled to get any amount. The complainant suppressed the above facts from the opposite parties. But this contention of opposite parties seems to be incorrect. In the complaint itself the complainant mentioned that the vehicle was used as taxi. Moreover, the complainant produced Ext.A5 which is the permit in respect of contract carriage issued by Joint RTO Ottapalam to the Toyota Quails (KL-9-P-1555) Even though there is any violation of insurance policy the opposite parties can very well inform the complainant in the beginning itself. Here opposite parties admitted the claim and disbursed some amount also. In the last stage making such allegation cannot be bonafide.
The complainant alleged deficiency of service on the part of opposite parties 1 and 2 is not disbursing the repair charges of Rs.32,776/ with respect to the insured vehicle, which was insured with the opposite parties 1 & 2. The complainant also alleged deficiency of service on the part of 3rd opposite party in the delay in delivering the vehicle after effecting the repairs to the vehicle, which sustained damage in a motor accident. Thus the complainant claimed the balance repair charge of Rs.32,776/ and compensation of Rs.50,000/-
Another contention of the opposite party 1 & 2 is that they paid an amount of Rs.40,406/ to the complainant as per the depreciation terms and conditions of the policy. Opposite parties 1 & 2 produced Ext.B2 which shows that the rate of replaced parts are subject to a deduction for depreciation.
The complainant did not produce the complete bill. The complainant stated in the complaint that the complainant handed over all original receipts and documents to the 1st opposite party through 2nd opposite party. No steps were taken to produce the original documents from the opposite party 1 & 2. From the produced bills itself some of the repair charges were disallowed by the surveyor. No reason is stated for disallowing the same. A3 series of bills would shows that the complainant paid a total of Rs.15,538/ towards the accident repairing and painting charges. But the surveyor who submitted B1 survey report has not considered A3 series of bill. The nature of the damage sustained by the insured vehicle would make it clear that insured vehicle was in need of painting. But the surveyor disallowed the painting charge. The estimate for the repair charge was at Rs.25,150/ But the surveyor allowed only Rs.8350/-.
According to the produced bill by the complainant i.e.Ext.A3 the replaced parts subject to NIL depreciation cost is Rs.20230/ and 50% depreciation is Rs.5390/ The painting is very essential for a damage vehicle and it comes Rs.15,538/ and Rs.20,000/ can be considered as labour charge including service charge. According to Ext.B1 policy condition an amount of Rs.1000/ is deductable. Of all these amounts Rs.40,406/ is already paid by 1st and 2nd opposite party. The net amount payable to the complainant is Rs.61158/- for which Rs.40406/- is already by 1st and 2nd opposite parties. So the complainant is entitled to get Rs.20,752/- . Rs.1,000/- is deductable as per policy condition. In short the complainant is entitled to get an amount of Rs.19,752/-.
The complainant handed over the vehicle to the 3rd opposite party to the next day of the accident i.e. 24/8/04 as per the direction from the 2nd opposite party. The complainant alleged deficiency of service on the part of the 3rd opposite party in the delay of 126 days in delivering the vehicle after repair. It is contended that there occurred delay in getting the genuine spare parts and the said delay was not under the control of the 3rd opposite party. But no document is produced by the 3rd opposite party in that effect. If they ordered the genuine spare parts in time they can produced its order copy. As per the repair bills the 3rd opposite party purchased the vehicle parts only on 28/12/2004. And the very next day the vehicle was handed over to the complainant after all repair works including painting. So that the occurred delay was due to the deficiency of service on 3rd opposite party. There is no evidence to show that there is collusion between complainant and 3rd opposite party.
From the above discussions we are of the view that there is deficiency of service on the part of all opposite parties.
In the result complaint allowed. The opposite parties are jointly and severally directed to pay an amount of Rs.19,752/ as claim amount with 12% of interest from the date of 1st payment i.e. 25/2/05 till the date of order. Complainant is also entitled to get an amount of Rs.2,000/ as cost. Order shall be complied within one month from the date of order failing which the whole amount carry 9% interest from the date of order till realization.
. Pronounced in the open court on the 26th day of February 2011.
Sd/-
Smt.Seena.H
President
Sd/-
Smt.Preetha G Nair
Member
Sd/-
Smt.Bhanumathi A.K.
Member
APPENDIX
Exhibits marked on the side of the Complainant
Ext.A1 – G.D.entry of Peechi Police Station
Ext.A2 – Photocopy of Insurance Policy
Ext.A3 (seies) 2 in Nos. Bill issued by 3rd opposite party dtd.28/12/04
Ext.A4 – Copy of lawyer notice
Ext.A5 – Copy of permit in respect of contract carriage issued to the Toyotta Qualis vehicle by
Jt.RTO Ottapalam
Exhibits marked on the side of the opposite party
Ext.B1 – Survey report
Ext.B2 – Certificate of Insurance Policy schedule of HDFC
Cost Allowed
Witness examined by the opposite party
DW1- Komalakumar D
Cost – Rs.1,000/- (Rupees One thousand) allowed as litigation expenses.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM Civil Station, Palakkad 678 001, Kerala Dated this the 25th day of May, 2007 Present: Prof.O.Unnikrishnan, Member Mrs.K.P.Suma, Member C.C.No.77/2006 Sethumadhavan, S/o.Govindan, Changuthodi House, Sreekrishnapuram, Palakkad. - Complainant Vs 1.The Constituted Attorney, HDFC Chubb, General Insurance Company Ltd. 5th Floor, Express Towers, Nariman Point, Mumbai - 400021. 2.The Manager, Duly Constituted Agent, HDFC Chubb, General Insurance Co. Ltd., Surya Links, 2nd Floor, Athulya Building, Chunnambuthara, Palakkad. 3.The Proprietor, Car Craft, Car Authorised Service Station, 5/682 CD, Manali Road, Palakkad. - Opposite parties O R D E R By Prof.O.Unnikrishnan, Member The complainant in this complaint had purchased one Toyota Qualis bearing register No.KL/9 P1555 on 11.6.2004 and insured the vehicle with the : 2 : 1st and 2nd opposite parties company for the period from 31.5.2004 to 30.5.2005 by remitting a sum of Rs.22,637/- as the insurance premium. He had also remitted a sum of Rs.2,391/- on 19.10.2004 towards the premium to cover additional requirements in the above mentioned policy as directed by 1st opposite party and 2nd opposite party. It is stated in the complaint that the complainant’s vehicle was hit from behind by a speedy transport bus on 23.8.2004 around 6:30 p.m within the Peechy Police station limit. The accident was intimated to 2nd opposite party and the damaged vehicle was delivered to 3rd opposite party on 24.8.2004 for doing repair works as per the direction from the 2nd opposite party. The complainant has incurred total expenses of Rs.73,182/- towards the repairing charges at the 3rd opposite party workshop and additional expenses of Rs.3,000/- towards towing expenses for the vehicle shifting from the accident spot to the 3rd opposite party workshop. It was assured by the 2nd opposite party that the expenses in total would be reimbursed by the 1st opposite party. But the 1st opposite party made payment of Rs.40,406/- out of total amount of Rs.73,182/- without any reasonable reasons. The 3rd opposite party delivered the vehicle to the complainant on 29.12.2004 after keeping the vehicle for 126 days under his custody. It is mentioned in the complaint that he did not get any income using the above vehicle as taxi for a period from 23.8.2004 to 29.12.2004 and also compelled to pay the loan amount along with interest to the ICICI Bank. The complainant submits that the 3rd opposite party even after payment of advance received from him, made undue delay in the repair work. As per the repair bills, the 3rd opposite party purchased the spare parts only on 28.12.04. According to the complainant, his vehicle was given for repairs to the 3rd opposite party workshop only due to the direction of the 2nd opposite party, but they had colluded each other to defeat the complainant. The vehicle can be given for repairs at Toyota show room. The complainant further states that he sustained : 3 : huge mental agony, personal difficulties, hardships and a loss of Rs.50,000/- apart from the bill amount for which all the opposite parties were jointly and severally liable. It is averred in the complaint that no reply notice from the opposite parties except the 3rd opposite party was sent to complainant . But he had received irresponsible and baseless reply from the 3rd opposite party. The complainant alleges that the opposite parties were done clear deficiency of service and undue delay in repair works. Feeling aggrieved, this complaint was filed before the forum seeking for an order directing 1st and 2nd opposite parties to pay Rs.32,776/- to the complainant as the balance repair expenses and directing all the opposite parties to pay Rs.50,000/- jointly and severally as compensation for mental agony caused to him and other reliefs prayed for the time to time and the forum seems fit to grant. After admitting the complaint, notices were served to the opposite parties for their appearance. Counsels appeared for the opposite parties and filed their versions. Opposite party 1st and 2nd in their version admitted that the complainant had contracted an insurance with them for his vehicle No.KL 9P/1555 for a period from 31.05.2004 to 30.05.2005 and the said vehicle met with an accident on 23.08.2004. They had arranged a survey to assess the damage and settled his claim in terms of the policy issued. As the settlement so arrived was towards full and final settlement of all claims, he is estopped from raising any rival contentions in his complaint. According to the opposite parties, their liability to indemnify the complainant is purely contractual in nature which is governed by the terms, conditions, exceptions, endorsements and exclusion clauses in the policy, which are mutually agreed upon and accepted by both the contracting parties. It is alleged in the version that when : 4 : the complainant’s claims already stand settled strictly in terms of the contract of insurance entered into the policy issued to the vehicle, the complainant has no manner of right to approach the forum by filing this compliant and hence it is liable to be dismissed inliminie with compensatory costs to them. Opposite parties further submit that they are not liable to pay Rs.32,776/- as the balance expenses and to pay Rs.50,000/- towards compensation as there was no deficiency of service on their part and the claims of the complainant were already settled in terms of the contract of Insurance. The opposite parties request the forum to accept their contentions and dismiss the complaint along with compensatory costs to the opposite parties. The 3rd opposite party in their version submits that they are the authorized service station of Toyoto Kirlosker India Ltd. It is averred in the version that the Complainant has not produced their reply notice sent by them and suppressing the material fact the complainant has not come with clear hands. According to 3rd opposite party, they are unnecessary party and no damages can be awarded against them. It is further submitted that they have not compelled the complainant to repair the vehicle in their workshop and the allegation of delay of 126 days to do repair work was not within their control and purview because for getting the qualitative genuine spare parts, it has to be ordered to the manufacturer. The 3rd opposite party averred that the complainant was happy and satisfied about the repair works done by them. The 3rd opposite party denied the allegation that they had colluded with opposite parties 1st and 2nd. They cannot do anything with the complainant’s Insurance claim and other things and if he got any grievance to obtain the balance repair charges then it was from the 1st and 2nd opposite parties only. The 3rd opposite party states that they have not caused any mental agony to the complainant and hence the damage claimed is purely imaginary and excessive. They are to : 5 : be exonerated from the payment of compensation as there was no privity of contract between them and the complainant. It is prayed that the forum may kindly dismiss the complaint in toto or exonerate them from the liability. The complainant filed affidavit. 1st and 2nd opposite parties filed affidavits along with two documents. But Exts.A1 to A4 marked on the side of complainant and Ext.B1 from the side of 1st and 2nd opposite parties. Evidence was closed and we heard the counsels appeared for the parties and perused the relevant documents on record. It is true that the complainant had insured his vehicle bearing Registration No. KL 9/P/1555 with 1st and 2nd opposite party company for a period from 31.05.2004 to 30.05.2005 (Ext A2). The aforesaid vehicle met with an accident on 23.08.2004 and the damaged vehicle was entrusted with 3rd opposite party workshop on 24.08.2004 for carrying out repair works. The allegation of the complainant is that 3rd opposite party made undue delay of 126 days at his workshop for completing the repair works. But the contention of 3rd opposite party is that the delay of 126 days to do the repair work was not with in their control since for getting the qualitative genuine spare parts it had to be ordered to the manufacturer and hence the delay was caused. There is no evidence on record to prove that the 3rd opposite party had colluded with opposite parties 1st and 2nd to defeat the complainant. In this context we are not in a position to attribute deficiency of service on the part of 3rd opposite party. There is no doubt that the vehicle was insured with private Car policy package at the time of accident as per the Ext.A2. It is noticed that certain items under Labour charges, parts allowed with nil depreciation and parts allowed with 50% depreciation were seen disallowed by Surveyor in his report marked as Ext B1. But opposite parties 1st and 2nd have failed to produce the documents such as the contract of Insurance along : 6 : with terms, conditions, exceptions, endorsements and exclusion clauses included in the policy issued to the complainant in respect of his vehicle. In this context we are of the view that opposite parties 1st and 2nd have not adduced valid evidence in support of their contentions. It is obvious that the aforesaid act of opposite parties amounted to deficiency of service on their part. Hence we are inclined to allow this complaint. In the result the complaint is allowed. We direct opposite parties 1st and 2nd to pay jointly & severally to the complainant a sum of Rs.32,776/- (Rupees Thirty two thousand seven hundred and seventy six only) as balance towards repair charges within a period of one month from the date of communication of this order failing which the complainant is entitled to get the aforesaid amount along with interest @ 12% from the date of order till realization. Opposite parties 1st and 2nd shall pay to the complainant a sum of Rs.1000/- (Rupees One thousand only) as costs towards litigation expenses. Pronounced in the open court on this the 25th day of May, 2007 Member (Sd) Member (Sd) APPENDIX Exhibits marked on the side of complainant Ext.A1 G.D entry of Peechi Police Station Ext.A2 Photocopy of Insurance policy Ext.A3 (Series) 2 in Nos.- Bill issued by 3rd opposite party dtd.28.12.04 Ext.A4 Copy of lawyer notice : 7 : Exhibits marked on the side of opposite party Ext.B1 Survey report Costs (allowed) Rs.1,000/- (Rupees One thousand only) allowed as litigation expenses
