By. Sri. Jose. V. Thannikode, President:-

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get the accident claim amount, compensation and cost due to the deficiency of service by the opposite parties.

2. Brief of the complaint:- The complainant had booked for a Honda Activa scooter with the 1^st respondent and the first respondent gave delivery of the vehicle to the complainant on 20.03.2014 with engine No.JF50E70618988 and chassis No.ME4iF5010E7618988. At the time of delivery of the vehicle the 1^st respondent did not give any paper to the complainant including the Insurance certificate and the temporary registration certificate, stating that the papers are ready but due to some clerical error the same cannot be handed over to the complainant on the same day. The papers were given after a week. The vehicle met with an accident on 08.04.2014 and the complainant had straight away taken the vehicle to the 1^st respondent's service centre on the same day. Since it was self accident no complaints were registered at anywhere. The vehicle was not registered with R.T office at the time of accident. The 1^st respondent had given acknowledgment for receiving the vehicle for repair. The 1^st respondent asked the complainant to give the copies of the Insurance certificate and temporary registration certificate for the purpose of insurance claim and the same were also handed over to the 1^st respondent on the same day. The complainant asked the 1^st respondent about the mode of payment but he replied that the 1^st respondent will register the insurance claim on the same day and since the vehicle being new one with full cover insurance the complainant need not pay anything and asked the complainant to come to collect the repaired vehicle within two weeks. When the complainant asked the 1^st respondent whether he has to do anything for the same, the 1^st respondent replied that the complainant need come only to take delivery of the vehicle within two weeks.

3. When the complainant contacted the respondent after two weeks the
1st respondent sought further time stating that the surveyor of the Insurance Company had not inspected the vehicle. Thereafter when the complainant again contacted the 1^st respondent the 1st respondent said that some parts are not available and sought further time to deliver the vehicle. Initially the 1^st respondent gave an estimate for Rs.12,600/- but later gave another estimate for more than nineteen thousand rupees and also assured the complainant that he need not pay the amount but the estimates are drawn as part of procedure. The 1^st respondent had not delivered the vehicle even after a month saying one or other excuses. When the complainant went to the 1^st respondent's service centre on 23.05.2014 the 1^st respondent told the complainant that they could not register the claim and asked the complainant to register a claim. The complainant registered the claim on 24.05.2014 with the 2^nd respondent. The claim was rejected by the 2^nd respondent stating that the claim intimation was delayed by 46 days and sought for explanation for the delay. The complainant had given the expIanation by e-mail but so far the claim has not been sanctioned by the 2^nd respondent. The 1^st respondent asked the complainant to pay a sum of Rs.17,120/- towards repair/parts charge of the vehicle. When the complainant protested for the same the 1^st respondent asked the complainant to pay the amount and assured that they will make the claim clear. The 1^st respondent gave a written assurance that they will make the claim clear and will bring the claim to the complainant. Believing the assurance of the 1^st respondent the complainant paid Rs.17,120/- and obtained delivery of the vehicle on 10.06.2014. But so far the 1^st respondent had not made the claim clear to keep their assurance till date. The complainant had not opted any particular insurance company to provide insurance for the vehicle. The insurance policy of the 2^nd respondent was not the choice of the complainant. The complainant entrusted the vehicle for repair with the 1^st respondent for the reason that the vehicle was sold by them to the complainant and the insurance to the vehicle was also arranged/opted by them and further more they assured that they will repair the vehicle for which the complainant need not pay anything. Due to the delay in getting the vehicle repaired the complainant could not register the vehicle with the R.T office and had been fined for the same. Due to the deficiency in service of the 1^st respondent the complainant had suffered huge loss and was forced to pay Rs.17,120/- for a brand new vehicle with full cover Insurance. The 2^nd respondent had denied the claim without valid reasons and the same amount to unfair trade practice and complainant further stated that both the respondents are jointly and severally liable to compensate the complainant and are also liable to pay the repair charges to the complainant. Hence the complainant filed this complaint for an Order directing the opposite parties to pay the complainant an amount of Rs.17,120/- with 12% interest with compensation of Rs.10,000/- and cost of Rs.5,000/-.

4. Notice were served to opposite parties and opposite party No.1 not appeared before the Forum and not filed version. Hence he is set ex-parte on 28.08.2014. Opposite party No.2 appeared and filed version stating that except those that are expressly admitted here under, this opposite party denies all other material allegations in the complaint. Only on 24.05.2014 this opposite party came to know about the claim of the complainant. The accident occurred on 08.04.2014 and there was a delay of 46 days in informing the 2^nd opposite party regarding the claim. As per the policy condition number- (1), "notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and there after the insured shall give all such information and assistance as the company shall require". This is not done by the complainant and there by he has violated the policy terms and conditions. If proper immediate notice of the occurrence is given, then the 2^nd opposite party, company can very well assess the damages caused to the vehicle, the cause of accident etc. The delay in informing the occurrence may lead for an accelerated claim and the genuineness of the claim will be spoiled. Because of the delay even the 2^nd opposite party will not be in a position to gather information regarding the cause of accident. The own damage liability is purely a contract and both parties are liable to stick upon to each terms of the contract and the violation of the same may invite disowning of liabilities. The complainant has committed breach upon the fundamental condition of the policy and so not entitled for any relief as claimed for. As per the complaint the delay is caused because of the in activeness of the 1^st opposite party. The assurance given by the 1^st opposite party is not as per the advice of this opposite party and so not binding upon this opposite party. It is also not true to say that the insurance policy taken was not the choice of the complainant. The policy is taken by the complainant from this opposite party's office. Opposite party further stated that from the over all reading of the complaint, even if the case of the complainant is proved, the liability to compensate the complainant is only upon the 1^st opposite party. The liability if any of this opposite party is limited to the report as per the report of the surveyor. The amounts claimed as relief in the complainant is excessive and exorbitant and this opposite party does not admit the same. This opposite party has not done any deficiency in service against the complainant to attract the jurisdiction of this Forum. In the complaint itself the complainant has admitted the delay in informing the accident to this opposite party and as such this opposite party has not done any deficiency in service to the complainant. Hence the complaint has to be dismissed with compensatory cost with this opposite party. Hence prayed to dismiss the complaint.

5. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1 to A5 documents were marked. Ext.A1 is the copy of Job card issued by the 1^st opposite party to complainant and prepared by 1^st opposite party after the accident to the vehicle bearing engine No.JF50E70618988 and Chassis No.ME4JF501CE7618988. Wherein it can be seen the accident repair request of the material and parts and work and repair advice action taken also written. Ext.A2 is the Estimate prepared by 1^st opposite party dated 23.05.2014 for Rs.9,500/-. Ext.A3(1) is the invoice prepared by the 1^st opposite party on 16.05.2014 for Rs.7,688/-. Ext.A3(2) is the invoice prepared by the 1^st opposite party on 17.05.2014 for Rs.9,438/-. Ext.A3(3) is the receipt voucher total of Ext.A3(1) and A3(2) dated 10.06.2014 for Rs.17,120/-, which shows that the complainant paid Rs.17,120/- to the 1^st opposite party. Ext.A4 is the assurance letter given by the opposite party No.1 to the complainant stating that “We give an assurance for your claim. You have taken the claim from KTC, Mananthavady, if it will not pass the claim we assure that we will make it clear and we will bring you the claim”. Ext.A5 is the letter given by the 2^nd opposite party to the complainant to show the reason why the intimation is given only after 46 days of incident. It shows that after 46 days of the incident the matter is intimated to the 2^nd opposite party.

6. 2^nd opposite party filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 to B4 is marked. Ext.B1 is the same which is marked as Ext.A5. Ext.B2 is the reply to Ext.B1, where the complainant admitted the delay and stated that it is the mistake of 1^st opposite party. Ext.B3 is the repudiation letter given by the 2^nd opposite party to the complainant. Ext.B4 is the copy of policy certificate of the disputed claim for the vehicle bearing Engine No.JF50E70618988 and Chassis No.ME4JF501CE7618988 for the incident period.

7. On perusal of complaint, version, documents, affidavits and depositions, the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

8. Point No.1:- Anyway the policy of accident is admitted by both parties and the complainant could not get the accident claim till today. The exhibits produced by the complainant shows that the accidental vehicle entrusted with 1^st opposite party and 1^st opposite party prepared job card and estimate for the purpose of insurance claim. Further follow up or what happened further is not replied by the 1^st opposite party. 2^nd opposite party in their version, affidavit and with their document proved that even though the vehicle is insured with them and even though there is accident, it was not reported to the 2^nd opposite party within the stipulated time. Hence they could not assess the damages caused to the vehicle and they could not find out the cause of accident. Further they stated that the delay in informing the occurrence may lead for an accelerated claim and genuineness of the claim will be spoiled and because of the delay even they will not be in a position to gather information regarding the cause of accident.

9. Hence we are in the opinion that after accepting the accidental vehicle and preparing the job sheet for the repairs and estimates and after receiving all the documents from the complainant not processing and forwarding the claim form to the 2^nd opposite party is a clear deficiency of service from the side of 1^st opposite party. And document Ext.A4 is a clear undertaking of the claim by the 1^st opposite party that if the 2^nd opposite party not allowing the claim. Even after receiving the notice and copy of complaint by the 1^st opposite party not appeared and not filed version before the Forum shows that the allegation in the complaint is admitted by the 1^st opposite party. Hence the Point No.1 is found accordingly.

10. Point No.2:- Since the Point No.1 is found against the 1^st opposite party , the 1^st opposite party is liable to pay the claim amount, cost and compensation to the complainant and the complainant is entitled for the same.

In the result, the complaint is partly allowed and the 1^st opposite party is directed to pay Rs.17,120/- (Rupees Seventeen Thousand One Hundred and Twenty) with 9% interest from 10.06.2014 and also directed to pay Rs.3,000/-(Rupees Three Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) only as cost of the proceedings. No Order against 2^nd opposite party. The 1^st opposite party should comply the Order within 30 days from the date of receipt of this Order, failing which the complainant is entitled for an interest at the rate of 15% for whole the amount till realization.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 26^th day of May 2015.

Date of Filing:17.07.2014. PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

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PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Paul Yohannan. Complainant.

Witness for the Opposite Parties:-

Nil.

Exhibits for the complainant:

A1. Copy of Job Card. Dt:08.04.2014.

A2. Estimate.

A3(1). Invoice. Dt:16.05.2014.

A3(2). Invoice. Dt:17.05.2014.

A3(3). Receipt Voucher. Dt:10.06.2014.

A4. Assurance Letter.

A5. Letter. Dt:26.05.2014.

Exhibits for the opposite parties:-

B1. Copy of Letter. Dt:26.05.2014.

B2. Reply letter. Dt:10.06.2014.

B3(Series). (a). Repudiation Letter. Dt:18.06.2014.

(b). Postal Receipt.

B4. Copy of Policy Certificate.

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PRESIDENT, CDRF, WAYANAD.

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