BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH,                                                                                    MANGALORE

Dated this the 10^th November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D  : HON’BLE PRESIDENT

       SRI. T.C. RAJASHEKAR                : MEMBER

ORDER IN

C.C.No.55/2014

(Admitted on 05.02.2014)

    Lokanath E,

    S/o Somappa,

    R/at Jattipalla House,

    Gandhinagar,

    Sullia Taluk, D.K

                                              ….. COMPLAINANT

(Advocate for the Complainant: Sri S

VERSUS

The Manager,

United India Insurance Co. Ltd,

Prabhu Bilding,

Main Road, Puttur, D.K.

                                                        …...OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. AKK)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

  The brief facts of the case are as under:

     The complainant contends purchased New Tata Hitachi Ex 70 Hydralic Excavator Vehicle under invoice on 12100096 dated 02.01.2013 for Rs. 26,75,000/  which was insured with opposite party.  The vehicle is used by the complainant to eakeout his livelihood and self employment.  On 31.08.2013 while complainant s vehicle was engaged in doing earth work at Kerpala Village of Sullia Taluk due to mud fell on the above vehicle and sustained heavy damages which was reported to the opposite party and a surveyor referred by opposite party to assess the damages. The authorized repair cost quotation dated 2.09.2013 for Rs. 2,28,565/ and thereafter the vehicle was repaired at the cost of Rs.1,25,378.  The original documents was given to opposite party while preferring claim.  Further in letter dated 21.11.2013 with assessing reasons the opposite party sanctioned only Rs.70,000/.  Inspite of issue of legal notice dated 14.11.2013 the opposite party failed to pay entire amount.  The opposite party is entitled for 5% deduction towards depreciation.  Apart from the amount spent towards repair complainants seeks compensation of Rs.50,000/ and another 30,000/ towards expenses and cost.

II.      The opposite party appeared through their learned counsel got filed written version admitting the policy issued covering the risk in of complaint mentioned vehicle of complainant.   The incident resulting in damage to the vehicle is undisputed.  As per the assessed cost of spare parts damaged in the accident by the authorized surveyor the cost was Rs.80,921/ and on deduction to applicable depreciation and assessed liberal charges  an amount of Rs.10,000/, the assessed aggregate loss of complainant at Rs.77,547 minus the value of the salvage at used Rs.7,500/ leading to affect amount of Rs.57,000/.  The amount was tendered by complainant but he refused to accept the same.  The opposite party has not closed the claim till date of pending due to adamant attitude of the complainant and there is no deficiency in service hence seeks dismissal of complainant.

          In support of the above complainant Mr. Lokanath E filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C7 detailed in the annexure here below.  On behalf of the opposite parties Mr. Amar Kumar Sinha (Rw1) Senior Divisional Manager also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked Ex-R1 to R5 detailed in the annexure here below. Behalf of opposite party No.1 Mr. M.K. Vazhunnavar (Rw2) General Insurance Surveyor and Loss Assessor, also filed affidavit evidence and answered the interrogatories served on him.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

          Point No. (i): Affirmative 

          Point No. (ii): Affirmative

         Point No. (iii): As per the final order.             

REASONS

IV.      POINTS No. (i):  In this case that the complainant is a consumer having insured his vehicle with opposite party and incident that caused damages to the vehicle of complainant that with the claim was lead towards the repair charges in respect of damages.  The opposite party refused to pay the entire claim amount are admitted facts hence there is Lis between the consumer the complainant and opposite party a service provider is established.  Hence the answer point No.1 is in the affirmative.

POINTS No. (ii): In this case except most of the facts even admitted by the parties the narrow question for consideration is to what extent opposite party was justified in disallowing portions of the bill tendered by the complainants towards repairs of the vehicle.   Ex R3 is the Final Motor Survey Report.  In this report in 2^nd para under the heads Survey Observations 2^nd para consisting relates to the nature of damages observed by the surveyors reads as follows:

Fuel Tank Assly: recognized as suffered deep dents at outer surface.  Cover engine top; recognized as severely battered defected.  Support side panel; bent defected.  Cover side; bent defected.  Hose set hoist system 5 Nos.; identified as suffered fracture.  Boom cylinder; identified by trapping of mud silt and oil found leaking. 

     In the annexure of the survey report Ex R3 surveyor disallowed certain items by mentioning, in all 18 under the heading.

The following spare parts disallowed for reason mentioned against these can be tabulated as under:-

There are 18 items mentioned by surveyor in this heading.  In the heading survey charge quoted above he has mentioned the damaged items which are shown in Col.No.1 fully and in respect of the same items are mentioned in annexure of the report in the heading disallowed for reasons are in Col. No.2 and the amount shown in the insurance available of this items are in claim No.3.  Thus on perusal of the report Ex R3 itself the survey report of Mr. M.K. Vazhunnavar is inconsistent report for the reason seen from the tabulation above.  Hence the report Ex R3 is unbelievable.

          Hence the report Ex R3 is liable to be rejected.  Now the question is as per the terms of the policy as seen from annexure of Ex R3 is final motor survey report the items which are disallowed and its valuation is mentioned as above with vat 5.5% as the  report staked with numerous errors.   As such the bill amount in Ex R4 issued by the repairer Associated Construction Equipment’s estimate total sum of Rs.41,315+74063 i.e.  Rs.1,15,378 shall be directed to pay to the complainant.  However 5% deduction on depreciation on this amount shall be allowed as the vehicle was more than 6 months old but less than 12 months when the incident accrued which comes to Rs. 9,8071/ .  Hence we are of the opinion deficiency in service by opposite party and proved be allowed directed to opposite party to pay with interest at the rate of 8% from the date of petition till the date of payment and towards compensation a sum of Rs.30,000/ in this case is justified.  Hence the answer by point No.2 is in the affirmative.

POINTS No. (iii): As per final Order:

ORDER

     The Complaint is allowed with cost.  The opposite parties are directed to pay Rs.98,071/ (Rupees  Ninety Eight thousand Seventy One only) with interest at the rate of 8% from the date of petition till the date of payment.  Opposite parties shall also pay Rs.30,000/ (Rupees Thirty thousand only) towards compensation.  Payment shall be made within 30 days from the date of receipt of this copy of this order.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 7 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 10th November 2016)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Lokanath E

Documents marked on behalf of the Complainant:

Ex C1: 03.01.2013   Copy of the insurance policy of the Opposite party

Ex C2: 02.01.2013    Copy of the Tax Invoice with Sugam Form

Ex C3: 02.09.2013    Copy of the Quotation

Ex C4: 08.10.2013  20.10.2013    Copies of the bills (4)

Ex.C5:                     Settlement intimation voucher

Ex.C6: 14.11.2013    O/c of regd notice

Ex.C7: 21.11.2013     Reply of the opposite party

Witnesses examined on behalf of the Opposite Party:

RW1:  Mr. Amar Kumar Sinha, Senior Divisional Manager

Rw2:  Mr. M.K. Vazhunnavar, General Insurance Surveyor & Loss Assessor

Documents marked on behalf of the Opposite Party:

Ex.R1: Insurance policy copy pertaining to vehicle bearing Registration No.KA.19.J.9582.

Ex.R2: Spot Survey Report of Mr. Jatyarama Gowda H

Ex.R3: Final Survey Report of Mr. M.K. Vazhunnavar

Ex.R4: Original Discharge Voucher returned by the complainant

Ex.R5: Original Bills of repair submitted by the complainant

Dated:  10.11.2016                                          PRESIDENT