BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th September 2009
COMPLAINT NO.14/2009
(Admitted on 03.02.2009)
PRESENT:
1. Smt. Asha Shetty, B.A. L.L.B., President
2.Smt. Sulochana V. Rao, Member
3.Sri. K. Ramachandra, Member
BETWEEN:
Rajesh S.N.,
So. Nagesh Rao,
RA. Eliya House,
Thingalady Post,
Puttur Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D.)
VERSUS
1. The Manager,
United India Insurance Company Ltd.,
Prabhu Building,
Main Road, Puttur,
Dakshina Kannada.
(Advocate for the Opposite Party No.1: Sri.Santhosh S.Nayak).
2. The Manager,
Auto Matrix,
Bejai, Mangalore,
Dakshina Kannada. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.2: Sri.Anantha Krishna Udupa).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant submits that, he had purchased a brand new Tata Indica – Xeta car from the 2nd Opposite Party for Rs.3,31,013/- on 17.8.2007 and registered as per No.KA-21 M-5263. The said car is insured with the 1st Opposite Party for Rs.2,89,000/- and the said policy was valid from 31.8.2007 to 30.8.2008. It is submitted that the above said car was used by the Complainant for eking out his livelihood by way of self-employment.
It is stated that the above vehicle met with an accident on 7.4.2008 and got extensively damaged and the same was informed to the Opposite Party Company and as per the advice of the Opposite Party Company the vehicle was kept for repair with the Opposite Party No.2 who is the authorized dealer and repairer. The 2nd Opposite Party by visual inspection issued a estimate dated 7.4.2008 and the surveyor deputed by the 1st Opposite Party inspected the vehicle and surveyed the damages and directed the Opposite Party No.2 to repair the vehicle. During the process of the repair i.e., after dismantling the vehicle the repairer issued a supplemental estimation for Rs.34,491/- and the same has been submitted to the Opposite Party company. Even though the Opposite Party Company not considering the actual bills/estimation given by the Opposite Party No.2 offered Rs.1,39,000/- as against Rs.3,08,168/-. It is contended that the claim considered by the Opposite Party is not just and valid and the vehicle was damaged under total loss but the Opposite Party without considering the above offered Rs.1,39,000/- which amounts to deficiency.
It is further submitted that the above said car purchased by the Complainant by availing loan of Rs.2,65,000/- from the Syndicate Bank by paying 13½% interest and he had suffered extensively. It is submitted that the consideration of the claim by the Opposite Party is arbitrary and not just and valid which amounts to deficiency as stated above and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay Rs.2,89,000/- under the total loss basis and further claimed Rs.60,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 admitted the policy and contended that the Complainant is carrying on commercial activities and hence the Complainant is not a consumer and the complaint filed before this Forum is not maintainable. It is further stated that after receipt of the claim from the Complainant this Opposite Party deputed a surveyor and the surveyor submitted the report. Thereafter the claim was processed and settled on repair loss basis. This Opposite Party is not responsible for the deficiency of work if any done by the 2nd Opposite Party. The Complainant after repairing the car cannot insist for consideration of the claim under total loss basis and he had repaired his own and this Opposite Party denies the defect in the repairs.
It is stated that the Complainant has not informed the accident to his vehicle for which the claim is now made either to the police or the Opposite Party immediately after the accident. The Complainant was duty bound to inform this Opposite Party immediately after the accident so that a spot survey could be conducted. The Complainant has also not informed the incident to the police, the 1st hand information about the accident and the person driving the car is not known. Therefore on the basis of the surveyor’s report compulsory excess and for not informing the police and not holding spot survey deductions were made under sum of Rs.1,39,800/- was offered to the Complainant. It is submitted that the surveyor inspected the vehicle the repairs done and the roadworthy condition and salvage of the damaged parts surrendered by the insured and a letter was also given by the Complainant that he was satisfied with the repairs. It is submitted that there is no deficiency and they are not liable to pay any amount as claimed by the Complainant and prayed for dismissal of the complaint.
Opposite Party No.2 filed separate version admitted that this Opposite Party has given an estimation of Rs.2,73,677/- on 7.4.2008 to the Complainant upon inspection and survey of the damaged car. It is submitted that, it is only on being called upon by the Complainant once again this Opposite Party drew a supplementary estimation dated 8.5.2008 for Rs.34,491/-. It is submitted that the estimation of repair is a document furnished to the party on visual inspection of the vehicle without dismantling the vehicle. It is only an estimate based on which the actual items that may be required at the time of repair of the vehicle are listed and taken into account. The bills are raised on the actual repairs that are carried on the vehicle and the spare parts that are actually used for the purpose of setting right the defect in the vehicle. It is further submitted that certain items of the spare parts which are not visible before dismantling the vehicle may need to replaced when the vehicle is in a dismantled position. It is submitted that the some items are not seen in the estimate but are found in the bill that has been issued by the Opposite Party after repair of the vehicle and contended that there is no deficiency of service on the part of the Opposite Party No.2 and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant is a consumer and the complaint is maintainable?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Rajesh S.N. (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C12 were marked for the Complainant as listed in the annexure. One Mr.Rajaram A. (RW1), Service Manager of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. One Sri.Gopinath Rao (RW2) – Divisional Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. One Sri.M.K.Vazhunnavar (RW3) – Surveyor and Loss Assessor of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Ex R1 to R6 were marked for the Opposite Parties as listed in the annexure. Both parties have produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i):
In the instant case, the 1st point raised by the Opposite Party is that the Complainant is not a consumer. The above said plea is not acceptable because admittedly the Complainant obtained the insurance policy for his vehicle from the Opposite Party Company. The Policy is taken for reimbursement or indemnity for loss which may be suffered due to various perils – No question of trading or carrying on commerce in insurance policy. Contract of Insurance generally belongs to general category of contract of indemnity – services may be for any connected commercial activity, yet it would be within purview of Act. The above observation held by the National commission in M/s Harsolia Motors versus National Insurance Co. Ltd.: I (2005) CPJ 27 (NC). In view of the above, the question of commercial purpose does not arise. Point No.(i) held in favour of the Complainant.
Point No.(ii) to (iv):
In the present case, the facts which are not in dispute is that the Complainant is the registered owner of brand new Tata Indica – Xeta car, the said car bearing registration No.KA 21 M-5263. The above car was purchased from the 2nd Opposite Party for Rs.3,31,013/- on 17.8.2007, the said car was insured with the 1st Opposite Party as per policy No.070805/31/07/01/00005276 for Rs.2,89,000/-. The said policy was valid from 31.8.2007 to 30.8.2008 (as per Ex C2).
Now the point in dispute is that the above vehicle met with an accident on 7.4.2008 and got extensively damaged and the same was informed to the Opposite Party Company and as per the advice of the Opposite Party Company the vehicle was kept for repair with the Opposite Party No.2 who is the authorized dealer and repairer. The 2nd Opposite Party by visual inspection issued a estimate dated 7.4.2008 and the surveyor deputed by the 1st Opposite Party inspected the vehicle and surveyed the damages and directed the Opposite Party No.2 to repair the vehicle. During the process of the repair i.e., after dismantling the vehicle the repairer issued a supplemental estimation for Rs.34,491/- and the same has been submitted to the Opposite Party company. Even though the Opposite Party Company not considering the actual bills/estimation given by the Opposite Party No.2 offered Rs.1,39,000/- as against Rs.3,08,168/-. It is contended that the claim considered by the Opposite Party is not just and valid and the vehicle was damaged under total loss but the Opposite Party without considering the above offered Rs.1,39,000/- which amounts to deficiency.
On the contrary, the Opposite Party No.1 i.e., the Insurance Company contended that there is no deficiency and contended that Complainant has not informed the accident to the Opposite Party immediately so that a spot survey could not be conducted. On the basis of the survey report they have made deductions and offered Rs.1,39,800/- which is according to them is reasonable and contended that they are not liable to pay over and above the said amount.
The Opposite Party No.2 who is the repairer of the vehicle also made as a party to the proceedings and he has specifically stated that the estimation of repair is a document furnished to the party on a visual inspection of the vehicle without dismantling the vehicle. It is only an estimate based on which the actual items that may be required at the time of repair of the vehicle are listed and taken into account. The bills are raised on the actual repairs that are carried on the vehicle and the spare parts that are actually used for the purpose of setting right the defects in the vehicle. Certain items of the spare parts which are not visible before dismantling the vehicle may need to replaced when the vehicle is in a dismantled position. It is submitted that the items are not seen in the estimate but are found in the bill that has been issued by the Opposite Party after repair of the vehicle. Certain items like serviceable items like Greece, oil seals, oil changed etc. are not given in the estimation will find place in the bill and not found in the estimate. These spare parts during the repair of the vehicle are replaced or repaired based on the surveyor’s approval.
From the above admitted version filed by the Opposite Party No.2 who is the authorized dealer clearly stated that the estimate dated 7.4.2008 issued by the 2nd Opposite Party only on visual inspection of the vehicle without dismantling the vehicle. Certain items of the spare parts which are not visible before dismantling the vehicle need to be replaced when the vehicle is in a dismantled position and the items are not seen in the estimate but are found in the bill has been issued by the Opposite Party after repair of the vehicle. These spare parts during the repair of the vehicle are replaced or repaired based on the surveyor’s approval. Apart from the version our attention was drawn towards the interrogatories served by the Complainant to Opposite Party No.2 and the answers given by the Opposite Party No.2 - some of the important parts of the evidences are reproduced herebelow:
Ques No.1) Is it correct to say that the front portion of the car was extensively damaged?
Ans.: Yes.
Q: 2) Is it correct to say that the Complainant has addressed letter dated 30.5.2008 to you?
Ans.: Yes.
Q: 3) Is it correct to say that you have received the above letter?
Ans.: Yes.
Q: 9) When the supplementary estimation was prepared?
Ans.: After the dismantle of the car and while job was under progress.
Q: 10) Why the Complainant called upon you to prepare supplemental estimation?
Ans.: Some of the parts were not covered in primary estimate.
Q: 13) What sort of repair was demanded by the Complainant?
Ans.: Accident repair.
Q: 14) Whether the repair was related to the accident or outside the purview of the accident?
Ans.: Accident.
Q. 15) Did you refer the supplemental estimation to the Surveyor?
Ans.: Yes.
Q. 16) If yes – did he approve the same?
Ans.: Yes.
Q. 17) Is it correct to say that the inner damage can not be assessed by the visual inspection?
Ans.: Yes. Not complete.
Q. 18) Is it correct to say that the estimation dated 7.4.2008 for Rs.2,73,699/- was assessed on visual inspection?
Ans.: Yes, for Rs.2,73,677/-.
Q. 19) What was the estimation after the car was dismantled?
Ans.: Supplementary for Rs.34,491/-.
Q. 20) Is it correct to say that the actual cost of repair will be more than the estimation?
Ans.: No. The total repair was for Rs.2,31,457/-.
Q. 21) Is it correct to say that the estimation dated 7.4.2008 at Note No.(2) says that supplemental estimation if required will be given after dismantling?
Ans.: Yes.
Q. 22) Is it correct to say that the supplemental estimation dated 8.5.2008 was given after dismantling?
Ans.: Yes, almost finishing stage.
Q. 23) Which are the items shown in the estimation dated 7.4.2008 and 8.5.2008 which are not included in the bill dated 20.05.2008?
Ans.: List attached.
Q. 24) Which are the items shown in the bill dated 20.5.2008 which are not included in the above two estimation?
Ans.: List attached.
From the above evidence as well as the estimation dated 7.4.2008 (i.e., Ex C8) and the supplemental estimation dated 8.5.2008 (i.e., Ex C9) and the bills issued by the Opposite Party No.2 for Rs.2,73,677/- (i.e., Ex C8) clearly reveals that the supplemental estimation was prepared after the dismantling of the car and while job was under progress. Since some parts were not covered in primary estimate, the supplemental estimate was prepared for Rs.34,491/-. And further the repairer who repaired the vehicle admitted that only after getting the approval from the surveyor to replace or repair, the Opposite Party No.2 carried out the repair. That means the surveyor of the Opposite Party No.1 company has received the supplemental estimation and approved the repair and submitted the survey report before the Opposite Party Company i.e., Ex R6 clearly reveals that the surveyor after applying the terms and conditions of the policy with regard to the depreciation has assessed the net loss at Rs.1,78,911/-. Apart from the above, our attention was drawn towards the evidence of the Surveyor, wherein the interrogatories served by the Complainant to the surveyor i.e.,
Ques. No.11) Whether the report was prepared before the car was dismantled or after it was dismantled?
Ans.: Kindly see observations of the survey report and report is prepared after observing the damages before dismantling and after dismantling of the vehicle.
Q. 12) How many times you have visited the workshop?
Ans.: Several, three times.
Q. 13) Did you prepare report on 11.04.2008, 15.04.2008 and 08.05.2008?
Ans.: The dates are mentioned in my survey report.
Q. 14) Have your prepared report before the car was dismantled? Can you produce it?
Ans.: I have made notes of damages.
Q. 15) Have you prepared report after the car was dismantled? Can you produce it?
Ans.: -
Q. 18) How many estimations were given to you by the 2nd Opposite Party?
Ans.: One.
Q. 20) Did you visit the workshop on 8.5.2008?
Ans.: I have.
Q. 21) If yes – whether the supplemental estimation dated 8.5.2008 prepared by 2nd Opposite Party has come to your knowledge?
Ans.: No.
Q. 22) Whether the 1st and 2nd Opposite Party has referred the supplemental estimation dated 8.5.2008 to you?
Ans.: Yes.
Q. 23) If yes – have you shown the same in your final report?
Ans.: Yes.
Q. 24) Why the bill scrutiny report dated 10.7.2008 was prepared?
Ans.: It is given after scrutinizing the bill.
Q. 27) You have given 50% depreciation on 21 items in your final report what is the basis?
Ans.: For the last 26 items it is 5% depreciation, for the next items 27 to 48 it is 50% depreciation, please see in the policy it is clearly mentioned that rubber, nylon, plastic parts, tyres, tubes and batteries, plastic parts are deducted at the rate of 50% depreciation.
Q. 29) Is it correct to say that you have not noted all the damages to the parts in your final report page 2?
Ans.: You are wrong.
Q. 30) Is it correct to say that the spare parts disallowed are also shown as affected in your report?
Ans.: No.
Q. 31) What is the depreciation for the labour charges?
Ans.: What is asked for as labour charges and what is allowed is mentioned.
Q. 32) Is it correct to say that Bonnet latch is affected? But you have shown it as unaffected?
Ans.: Yes bonnet latch was unaffected.
Q. 33) Is it correct to say that steering assembly is affected? But you have shown it as not affected?
Ans.: It is not affected.
Q. 34) Is it correct to say that power steering pump is affected? But you have shown it as not affected?
Ans.: It is not affected.
Q. 35) Is it correct to say that steering assembly is affected? But you have shown steering column assembly unaffected?
Ans.: It is not affected.
Q. 36) Is it correct to say that when the front portion of the car is extensively damaged the lower arm R,H, sturt front R.H. and anti roll bar assembly have to be affected?
Ans.: No, not in all cases depends on type of impact.
The above evidence of the surveyor further proved that the assessment made by the surveyor deputed in the case is not acceptable to some extent because he had visited the spot on 11.4.2008, 15.4.2008 and 8.5.2008 but there is no explanation/reply given by the surveyor as to the depreciation made 50% on 21 items in the final report. As per the policy terms and conditions if the vehicle is exceeding 6 months but not exceeding one year old the depreciation applicable is only 5%. In the given case the vehicle admittedly purchased on 17.8.2007 and the vehicle was met with an accident on 7.4.2008 that means the vehicle is 8 months old and the surveyor is not justified by applying 50% of depreciation. And further there is no explanation/reason against the items of the spare parts why it is allowed and disallowed and why the labour charge considered as less as against the estimation given by the repairer. There should a specific reason/explanation before disallowing the parts.
The surveyor submitted the report without dismantling the vehicle. It is the duty of the surveyor to visit the repairer and call for the repairers’ estimation after dismantling the vehicle but in the given case the surveyor deputed by the Opposite Party Company not done the above job. Further some of the items disallowed by the surveyor but the repairer repaired the above said item and charged the bill. The evidence of the Opposite Party No.2 was not controverted/contradicted by the Opposite Party Company in this case. The entire evidence given by the Opposite Party No.2 is unchallenged and which plays very important role in the given case.
However, we find that in a case of accident to the vehicle, the first responsibility is on the Opposite Party Company to repair the vehicle. When the option is given to the insured then the insured has to repair the vehicle. In this case the option was given to the Complainant to repair the vehicle and the Complainant took all the steps to repair the vehicle by keeping his vehicle to the authorized dealer who is Opposite Party No.2. It is pertinent to note that once the vehicle is damaged as per the terms and conditions of the policy the company may its own option repair or replace the vehicle or part thereof or its accessories or may pay in cash the amount to the loss or damage. In this case as we discussed herein above, the insurance company not opted either to repair, reinstate or replace the vehicle or pay the actual bill amount. The option was given to the Complainant, the Complainant co-operated with the Insurance Company, surveyor and the repairer. The insurance company definitely would have looked into the matter through the surveyor. Though the Opposite Party Company engaged the surveyor, the surveyor not assessed the damage after dismantling of the vehicle before carrying out the repair. In the absence of the same, one cannot consider that the damage assessed by the surveyor is correct. When the vehicle was kept for repair with the authorized repairer the surveyor could have assessed the damage before carrying out the repair. No such attempt was made by the surveyor or by the Opposite Party Company. Only basing on the visual inspection the surveyor cannot assess the damage by presumption and assumption by forwarding a report by allowing and disallowing the spare parts repaired/replaced by the authorized repairer. In the given case, the entire evidence of the repairer was not contradicted/challenged by the Opposite Party Company as stated above. Affidavit of evidence filed by the Opposite Party No.2 who is the authorized repairer unless controverted or contradicted specifically by the Opposite Party company has to be acted upon. Where a party to the proceedings does not offer cross examination of the other side, a presumption would arise that the case set up by the Opposite Party Company is not correct and the offer made by the Opposite Party Company is not justified.
In view of the above discussion, we are of the considered opinion that the assessment made by the surveyor has no basis and hereby set aside. In the absence of the survey report the available evidence on record is that of the Opposite Party No.2 i.e., the actual bill raised by the repairer i.e., for Rs.2,31,457/- which is the total repair cost. Therefore, the Opposite Party No.1 i.e., United India Insurance Company Limited is hereby directed to pay Rs.2,31,457/- by applying 5% depreciation along with interest at 10% p.a. from the date of claim till the date of payment. And further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 i.e., United India Insurance Company Limited is hereby directed to pay Rs.2,31,457/- (Rupees two lakhs thirty one thousand four hundred and fifty seven only) by applying depreciation of 5% along with interest at 10% p.a. from the date of claim till the date of payment. And further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against Opposite Party No.2 is hereby dismissed.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of September 2009.)
PRESIDENT
(SMT. ASHA SHETTY)
MEMBER MEMBER
(SMT.SULOCHANA V.RAO) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Rajesh S.N. – Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 17.08.2007: Copy of the proforma invoice.
Ex C2 – 31.08.2007: Copy of the Insurance Policy.
Ex C3 – 18.09.2007: Copy of the R.C. of the Car.
Ex C4 – 30.05.2008: Copy of the letter addressed to the Opposite Party with postal receipts.
Ex C5 – 26.08.2008: Claim voucher sent by 1st Opposite Party.
Ex C6 – 13.09.2008: Letter sent by the Complainant to 1st Opposite Party with postal acknowledgement.
Ex C7 – 13.09.2008: Letter sent by the Complainant to the Divisional Manager with postal acknowledgement.
Ex C8 – 07.04.2008: Accident repair estimation of 2nd Opposite Party.
Ex C9 – 08.05.2008: Supplementary estimation of 2nd Opposite Party.
Ex C10 – 11.11.2008: Copy of the registered Lawyer’s notice sent to the Opposite Parties.
Ex C11 – 12.11.2008: Postal acknowledgement of the 2nd Opposite Party.
Ex C12 – 17.11.2008: Reply sent by the 1st Opposite Party.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.Rajaram A., Service Manager of the Opposite Party No.2.
RW2 – Sri.Gopinath Rao – Divisional Manager of the Opposite Party No.1.
RW3 – Sri.M.K.Vazhunnavar – Surveyor and Loss Assessor of the Opposite Party No.1.
Documents marked on behalf of the Opposite Parties:
Ex R1 – 30.04.2008: Copy of the cheque along with dishonour memo issued by the Complainant to the 2nd Opposite Party towards advance for repair of the car.
Ex R2 – : List of the parts which are estimated but not billed.
Ex R3 – : List of parts which are billed but not in estimations.
Ex R4 – : Insurance policy terms and conditions showing depreciation applicable.
Ex R5 – : Bill scrutiny report issued by M.K.Vazhunnavar.
Ex R6 – : Final motor survey report issued by M.K.Vazhunnavar with photographs.
Dated:30.09.2009 PRESIDENT
