IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Wednesday the 06th day of August, 2020
Filed on 01.02.2018
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R. LLB(Member)
In
CC/No.27/2018
Between
Complainant:- Opposite parties:-
Smt. Sreekumari.N.Nair 1. The Manager
Kanchana (CSR) For & on behalf of
Koippallikarazhma South T.V.Sundaram Iyengar &
Olkettiyambalam Sons Ltd, Renault Service
Mavelikkara Taluk Tutors Lane Statue
Alappuzha-690510 Trivandrum
(Adv.M.K.Unnikrishnan) (Adv.P.V.Thomas)
2. The Branch Manager
The New India Assurance Co. Ltd, Kayamkulam Branch, Medayil Complex Quilon- Alappuzha Road.
Kayamkulam P.O - 690502
(Adv.T.S.Suresh)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act. 1986.
Material averments briefly discussed are as follows:-
On 3/5/2013 the complainant purchased a Renault Duster car from the 1st opposite party and registered as KL.31-F-3133. It was insured with the 2nd opposite party. On 25/5/2016 the said car met with a serious accident at Adoor and sustained heavy damages. The matter was immediately reported to the 1st opposite party for repair. At the time of accident the car was having a valid insurance policy with the 2nd opposite party. As per the direction of the 1st opposite party on 27/5/2016 the vehicle was produced before the 1st opposite party’s service centre at Trivandrum by towing.
On 2/6/2016 the 1st opposite party prepared an estimate for repair for Rs.6, 05,762/- including cost of spare parts and labour charges. The complainant accepted the estimate and as demanded paid an amount of Rs. 1,00,000/- to the 1st opposite party. A copy of estimate was also given to the 2nd opposite party for approval. It was agreed that the balance amount if any after deducting the amount sanctioned by the 2nd opposite party from the estimate will be paid by the complainant. The 1st opposite party agreed to return the vehicle after repairs within one month.
The 2nd opposite party had sanctioned an amount of Rs. 4,50,000/- and the complainant was willing to pay the balance amount at the time of releasing the vehicle. The vehicle was not returned after one month after repairs. Delivery was delayed by showing lame excuses. On 20/12/2017 when the complainant contacted the 1st opposite party and insisted to return the vehicle they demanded an amount of Rs. 12,50,000/- being the cost of the repairing the vehicle.
1st opposite party dealt the matter with utter irresponsibly. They did not provide any supplementary estimate for the repair. If so the complainant had the option of claiming total loss of the vehicle. On 24/12/2017 complainant called the 1st opposite party and requested to release the vehicle and expressed her willingness to pay the balance amount after deducting the sanctioned amount and advance amount from the estimate amount.
The vehicle is in the possession of the 1st opposite party for the past 20 months. On 1/1/2018 the complainant sent a legal notice to the 1st opposite party to release the vehicle but there was no response. The 1st opposite party voluntarily violated the agreement for repairs the vehicle. Hence it is prayed that the 1st opposite party may be directed to provide a new Renault Duster car in running condition with fitness certificate and paying tax. To pass an order directing the 2nd opposite party to sanction at least 75% of the originally estimated amount of Rs.6,05,762/-. An order may be passed directing the 1st opposite party to pay an amount of Rs. 2,25,000/- towards compensation for depriving the complainant from using the vehicle for the past 25 months. An order may be passed allowing Rs. 1,00,000/- as compensation for the mental agony.
2. 1st opposite party filed version mainly contenting as follows:-
The complaint is filed suppressing material facts. The personal of the 1st opposite party had inspected the vehicle and had given a rough estimate of Rs. 5,00,000/- for spare parts and Rs. 1,00,000/- as labour cost. Since the customer was fully agreed the same, the 1st opposite party had accepted the said vehicle for repair after getting the terms and conditions of the 1st opposite party read out convinced and signed by the customer. Since the accident occurred at Adoor this commission has no territorial jurisdiction. The customer’s representative was watching the progress of work. As per the direction of the customer this opposite party has undertook the work and the 1st opposite party had given the customer a revised estimate and the customer had agreed to the same. Since advance amount of Rs. 1,00,000/- was paid, the 1st opposite party continued the work. As per the terms and conditions the vehicle was not taken back within 24 hours out of repairs. They have to pay Rs.250/- per day as ground rent /parking charges. The case is filed on an experimental basis. 1st opposite party is entitled to realize the amount due to them. The complaint is lodged frivolously and vexatiously and hence it may be dismissed with costs.
3. 2nd opposite party filed version mainly contenting as follows:-
The complainant has approached this commission with utmost unclean hands by suppressing material facts. There is no deficiency in service. The vehicle had a valid insurance policy and sum assured was Rs.6,75,000/-. This opposite party never sanctioned an amount of Rs.4,50,000/-. This opposite party is not liable to pay the entire repair charges
When the claim petition was received by the company, they appointed a qualified surveyor, P.S. Suresh Babu , Insurance surveyor and surveyor assessed the damage as Rs. 1,96,421/- as per the guidelines of IRDA. This opposite party is ready to pay the said amount provided proper bills and receipts are submitted. There was no foul play or fraudulent misrepresentation and deficiency in service. Hence the complaint may be dismissed.
4. Points for determination are:-
1. Whether the complainant is entitled to get an order for replacing
the vehicle Renault Duster as prayed for?
2. Whether the complainant is entitled to get an order directing the
2nd opposite party to sanction 75% of the originally estimated
amount of Rs.6,05,762/-?
3. Whether the complainant is entitled to get an order for Rs.
2,25,000/- as compensation from the 1st opposite party?
4. Whether the complainant is entitled to get realize an amount
of Rs. 1,00,000/- towards compensation for the mental agony?
5. Reliefs and cost?
5. Evidence in this case consists of the oral evidence of PW1 to PW4 and Ext.A1 to Ext.A10 from the side of the complainant. Adviser of the 1st opposite party service center was examined as RW1.
6. Point No.1 to 4:
PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked as Ext.A1 to A6, Ext.A7 series and Ext.A8.
PW2 filed an affidavit stating that he is a taxi driver of Olakettiyambalam, Mavelikara. He is having an Innova taxi bearing Reg. No. KL. 31-G 6387. He is familiar with the complainant and their relatives. They used to hire his taxi. Since the husband of complainant is unable to walk they used to hire his taxi. When the Renault Duster car belongs to them met with an accident from 10/9/2016 to 10/5/2018 they hired his taxi for 40 trips. He had received a total amount of Rs. 1,72,520/- for which he had produced trip sheets before this Commission. Ext.A9 is the copy of RC book of his vehicle bearing Reg.no. KL.31-G-6387.
PW3 is the son in law of PW1. He filed an affidavit stating that on 3/5/2011 the vehicle was purchased from the show room of 1st opposite party and it was registered in the name of complainant. On 25/5/2016 the car met with an accident at Adoor and sustained damages. The vehicle was insured from 21/6/2015 to 25/6/2016 for an amount of Rs. 6,75,000/-. On 27/5/2016 the vehicle was entrusted at the service center of the 1st opposite party. On 2/6/2016 an estimate was issued for Rs. 6,05,762/- for total works including spare parts and accordingly Rs. 1,00,000/- was given as advance. The copy of estimate was given to 2nd opposite party. They had agreed to return the vehicle within one month.
On enquiry with the 2nd opposite party it was revealed that an amount of Rs. 4, 50,000/- was allowed as insurance amount. They
are ready to pay the balance amount as per the estimate. 1st opposite party did not returned the vehicle as promised inspite of repeated request. On 20/12/2017 it was informed that an amount of Rs. 12,50,000/- was spent for repairing the vehicle. There was no supplementary estimate. He has produced Ext.A9 certificate u/s 65B(4) Indian Evidence Act.
PW4 is the panel surveyor of 2nd opposite party. He had inspected the vehicle belongs to complainant. 1st opposite party had prepared an estimate and it was forwarded to him by the 2nd opposite party. In Ext.A3 certain items were repeated and labour charges were on the hire side. He has not prepared any supplementary estimate. He had recommended to pay an amount of Rs. 2,02,331/-. Normally insurance company used to pay 75% of the IDV and the amount is more, they will recommend for total loss. Since the repairing cost was less than 75%, this vehicle was not recommended for total loss. Works for Rs.11,98,590/- was conducted without his knowledge.
RW1 is the advisor of the 1st opposite party. He filed an affidavit in tune with the version.
The substance of the evidence is discussed above.
The case of complainant who was examined as PW1 is that she purchased a Renault Duster car on 3/5/2013 from the 1st opposite party. It was registered at the Sub RT Office at Mavelikara with Reg. No. KL 31-F-3333. The vehicle was insured with the 2nd opposite party and the policy was valid from 26/6/2015 to 25/6/2016. While so on 27/5/2016 when PW3 the son in law of complainant was driving the vehicle it met with an accident at Adoor and sustained heavy damages. As per the direction the vehicle was produced at the service center at Trivandurm of 1st opposite party on 27/5/2016. On 2/6/2016 an estimate for Rs. 6,05,762/- was prepared for repairs including the cost of spare parts and labour charges. Accepting the estimate complainant paid an amount of Rs. 1,00,000/- and copy of estimate was given to the 2nd opposite party for approval. These facts are admitted by both sides. Thereafter the problem begins. According to PW1 the 2nd opposite party had assured that they will sanction an amount of Rs. 4,50,000/- for cost of repairs and she was ready to bear the remaining expenses and that is why she is paid an amount of Rs.1,00,000/- to the 1st opposite party. Though it was promised that the vehicle will be returned after repairs within in one month it was not done. PW3 made several correspondences and phone calls for getting the vehicle repaired. Finally PW1 sent Ext.A4 lawyers notice on 1/1/2018 to return the vehicle after repairs. She received a reply notice dated 9/3/2018 in which it was stated that the estimate of Rs. 6,05,762/- was not actual estimate and it was prepared before dismantling the engine. 1st opposite party started work and the total amount for the repair work including value of spare parts is Rs. 11,98,590/- and the vehicle is kept ready for delivery. According to PW1 the IDV of the vehicle was only Rs. 6,75,000/-. Moreover she can purchase a new vehicle for Rs. 11,00,000/-. The bill of the 1st opposite party is very exorbitant. She was also deprived of using the vehicle for several months. Only on getting Ext.A4 notice on 1/1/2018 and after filing this complaint, on 1/2/2018 Ext.A6 reply notice was sent on 9/3/2018. Hence she is seeking a relief of replacing the old vehicle with a new vehicle, for a direction to the 2nd opposite party to sanction 75% of the IDV. According to her she had to hire a taxi to take her husband to the hospital and for other domestic purposes, for which she is claiming an amount of Rs.2,25,000/-. She is also claiming an amount of Rs. 1,00,000/- as compensation for mental agony.
1st opposite party filed a version contenting that the vehicle sustained heavy damages due to the accident and Ext.A3 estimate prepared for Rs. 6,05,762/- was only approximate. Since complainant agreed for repairs and paid Rs. 1,00,000/- they started the work. After completing the work by spending huge amount the vehicle is kept ready and inspite of intimations delivery was not taken and so PW1 is liable to pay Rs.250/-per day as ground rent/parking charges. 2nd opposite party filed a version contenting that there was no assurance that they will sanction an amount of Rs. 4,50,000/-. An insurance surveyor assessed the damages as per IRDA guidelines and net liability payable is Rs. 1,96,421/-. Since the final bills were not submitted the payment was not made. So they prayed to dismiss the complaint with cost and compensatory cost. PW1 to 4 were examined from the side of the complainant and Ext.A1 to A10 were marked. Advisor of the 1st opposite party was examined as RW1 and Ext.B1 was marked subject to proof. Ext.B2 and B3 were marked from the side of the 2nd opposite party.
Here the question to be considered is as it who was at fault. There is allegations and counter allegations from the part of the complainant and 1st opposite party. Though PW1 is the registered owner and the complainant in this case it appears that she had no direct knowledge with regard to the transaction with the 1st opposite party. However she admitted that at the time of accident the vehicle was 5 years old. PW2 was examined to prove that in the absence of vehicle owned by PW1 his innova car was hired by her. The husband of PW1 is having some difficulties and he required regular treatment under various hospitals. PW2 is the registered owner of an innova car bearing Reg.No.KL.31-G-6387. He had produced trip sheets which are marked as Ext.A10 series(40 nos) to prove that he had collected an amount of Rs. 1,72,520/- on various dates that is from 10/9/2016 to 10/5/2018. However during cross examination he admitted that original trip sheets were not issued to the complainant and it was issued to the advocate about one week prior to his examination. He was examined before court on 5/1/2019. As said earlier the trip sheets are from 10/9/2016 to 10/5/2018. The learned counsel appearing for opposite parties 1 and 2 during cross examination challenged the genuineness of Ext.A10 series trip sheets. On a perusal of Ext.A10 series we are also having some genuine doubts. First of all as admitted by PW2 it was not issued to the person who hired the vehicle. It was produced before the advocate obviously before the complainant’s advocate. Ext.A10 series are original trip sheets and PW2 has no authority to keep it and he ought to have issued it to the person who hired the vehicle. He can keep the carbon copy of the same. The trip sheet book containing carbon copies are not produced. More over in Ext.A10 series there is no serial number. If that is so it can only be considered that Ext.A10 series was produced by PW2 before court only to help the complainant. In said circumstances we reject the evidence of PW2 and Ext.A10 series in toto. Then comes the evidence of PW3 who is none other than the son in law of the complainant. According to him the accident occurred while he was driving the vehicle. At the time of entrusting the vehicle with the 1st opposite party he had signed a work agreement. Though he entrusted the vehicle with the 1st opposite party he was not available for further follow up since he was employed in gulf. Though PW1 contented that 1st opposite party had assured to return the vehicle after repairs within one month, according to PW3 1st opposite party had informed that they will take 3 to 6 months for repairing the vehicle and accepting the same the vehicle was entrusted for repairs. He had produced Ext.A7 series e-mail communications with the 1st opposite party to prove that there service was very poor. Though PW1 has got a case that if she had knowledge that huge amount will be required for repairs they would have opted for total loss, according to PW3 they have not even thought off going for total loss or selling for scrap value. It is an indication that their intention was to repair the vehicle and pay the balance amount after the amount sanctioned by 2nd opposite party insurance company.
According to us PW4 is the star witness in this case. He is a panel surveyor of the 2nd opposite party and is having 25 years experience in this field. He is having IRDA license. He had inspected the vehicle and seen Ext.A3 estimate. In Ext.A3 estimate there was some mistakes because of repetition of items. Labour charge was on the hire side. He has not seen any supplementary estimate other than Ext.A3. He had recommended an amount of Rs. 2,02,331/- to the insurance company. Normally insurance company used to allow 75 % of the IDV. If the amount is more than that they will recommend for total loss. Here in this case since the repairing cost was less than 75% it was not recommended for total loss. He had no knowledge about the work done for Rs. 11,98,590/-. Ext.B3 is the copy of survey report prepared by him. It is dated 4/2/2018. In Ext.A3 he had recommended an amount of Rs. 2,00,831/- to be paid by the insurance company. He had received 3 bills from the repairer amounting to Rs. 5, 51,668/-. Here in this case it is pertinent to note that in the version 1st opposite party has not stated the total amounts spend for repairing the vehicle. Only in Ext.A6 notice it is stated that they had spent an amount of Rs.11,98,590/- for repairing the vehicle. It is to be remembered that Ext.A6 is notice dated 9/3/2018 and the version was filed on 4/7/2018. Still the total amount spent for repairing the vehicle is conspicuously absent in the version. In the chief affidavit filed by RW1 who is the service advisor of the 1st opposite party also the total bill amount is not mentioned. The final bill is also not produced. However from Ext.B3 it is seen that he had seen 3 invoices of the 1st opposite party amounting to Rs. 5,51,668/-. The IDV of the vehicle was Rs.6,75,000/- and as pointed out by PW4 if the total repairing charges is more than 75% they will recommend for total loss. In this case the party opted for repairing and hence it is clear that the amount was less than 75% of the IDV. As stated earlier in Ext.A6 reply notice it is stated that 1st opposite party had spent an amount of Rs. 11,98,590/- for repairing the vehicle. But 1st opposite party had not produced any documents in support of the same. In the said circumstances we are of the view that Ext.B3 final survey report prepared by PW4 can be safely acted upon.
PW1 is seeking a direction to the 1st opposite party to provide a new Renault Duster car in running condition with fitness certificate by paying road tax. But it is to be noted that the vehicle was purchased during 2013 and it will be injustice to direct the 1st opposite party to provide a new car during 2020 that is after about seven years. Complainant is seeking a direction to the 2nd opposite party to sanction at least 75% of the estimate amount of Rs. 6,05,762/-. The IDV of the vehicle was Rs. 6,75,000/-. After considering 3 invoices, as per Ext.B3 survey report PW4 has recommended an amount of Rs. 2,00,831/- to be sanctioned by the 2nd opposite party. Since that amount was recommended after assessing the repairs and deducting the depreciation there is no reason to interfere with the finding of the surveyor. As discussed earlier the final bill is not produced by the 1st opposite party though they claim that the vehicle is ready after all repairs. However from Ext.B3 survey report it is seen that total amount of three invoices are Rs. 5,51, 668/-. Out of the same complainant is entitled to claim an amount of Rs.2,00,831/- from the 2nd opposite party. Complainant has already paid an amount of Rs. 1,00,000/- to the 1st opposite party. So deducting the insurance amount and the amount already paid by the complainant from the total bill amount of Rs. 5,51,668/-, the balance to be paid by the complainant will be Rs.2,50,837/-. The contention of the 1st opposite party in Ext.A6 notice that they had spent about Rs. 12,00,000/- is not at all acceptable, since value of the new vehicle will be less than that. Further if such an exorbitant amount will be required for repairs nobody will opt for repairs and they will only request for total loss. Further PW4 has stated that the work done for Rs. 11,98,590/- as claimed by 1st opposite party is without his consent or knowledge. Hence the contention of the 1st opposite party that they have done repairs for Rs. 11,98,590/- is not acceptable.
Complainant is seeking an amount of Rs. 2,25,000/- towards compensation for depriving her from using the vehicle for the past 25 months. In support of such a claim she had examined PW2 and produced Ext.A10 series trip sheets. However in the earlier discussion we have already found that the evidence of PW2 and Ext.A10series trip sheets are not at all acceptable. As discussed earlier it was produced by PW2. Normally it should be given to the party. It is not known how it remains with PW2. PW2 ought to have produced the carbon copy of the trip sheets and not the originals. Further it is not having any serial number and so no amount can be sanctioned on the basis of the evidence of PW2 and Ext.A10 series. Complainant is claiming an amount of Rs. 1,00,000/- towards compensation for the mental agony. It has come out in evidence that the vehicle met with an accident on 25/5/2016 and during that time PW3 who is her son in law was driving the vehicle. Because of the accident the vehicle was to be shifted to the service center of the 1st opposite party for repairs. So the opposite parties cannot be blamed for the accident. Of course there is a delay in returning the vehicle and in fact the vehicle is still lying at the service center of the 1st opposite party. There are allegations and counter allegations regarding the delay. PW3 admitted that 1st opposite party informed that they will require 3 to 6 months for repairing the vehicle. However the vehicle was lying unattended for several months and only when Ext.A4 notice was sent on 1/1/2018 it was informed by 1st opposite party, as per Ext.A6 reply notice dated 9/3/2018 that the vehicle is ready for delivery after repairs. So there was deficiency in service on the part of the 1st opposite party. It can be seen that since inordinate delay occurred in returning the vehicle PW1 had to suffer a lot. In the said circumstance we are of the view that PW1 is entitled for compensation of Rs. 25,000/-. These points are found accordingly.
7. Point No.5
In the result complaint is allowed in part.
A) 1st opposite party is directed to hand over the vehicle to the
complainant after repairs considering their bill amount as Rs.
5,51,568/-. Out of the same 2nd opposite party will pay an
amount of Rs.2,00,831/- and out of the balance after deducting
Rs. 1,00,000/- already paid complainant will have to pay Rs.
2,50,837/- to the 1st opposite party.
B) 1st opposite party is directed to pay an amount of Rs. 25,000/- to
the complainant as compensation for the mental agony.
C) Complainant is allowed to realize an amount of Rs. 5000/- as
cost from the 1st opposite party.
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Forum on this the 06th day of August, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Sreekumari.N.Nair(Witness)
PW2 - Manoj @ Pradeep(Witness)
PW3 - Arun(Witness)
PW4 - Suresh Babu(Witness)
Ext.A1 - Copy of RC Book
Ext.A2 - Policy Schedule cum Insurance certificate
Ext.A3 - Estimate
Ext.A4 - Lawyers Notice dtd.1/1/2018
Ext.A5 - Postal receipt
Ext.A6 - Reply notice dtd.9/3/2018
Ext.A7series - Copy of e-mails
Ext.A8 - Original Bank receipt dtd.20/10/2016
Ext.A9 - Copy of RC Book
Ext.A10series - Trip sheets(40 nos)
Evidence of the opposite parties:-
RW1 - Nidheesh(Witness)
Ext.B1 - Copy of Repair-Order copy
Ext.B2 - Copy of Insurance Policy certificate
Ext.B3 - Survey Report
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
