IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 3rd day of September 2021.
Filed on 22-02-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.54/2018
between
Complainant:- Opposite parties:-
Sri.Gopakumar 1. The Manager
Babu Nivas Shymas Auto Sales
Aradhana Junction Kalarcode, Alappuzha
Avalookkunnu.P.O (Adv. Sri. K.N.V.Panicker)
Alappuzha
(Adv.Sri. M.Raveendradas & 2. MAGMA HDI
Adv. Sethuram Dharmapalan) GENERAL INSURANCE
CO. LTD, Magma House,
24 Park Street, Kolkatta
Pin. 700016
(Adv. Sri. C. Muraleedharan)
3. Honda Motor Cycle Pvt. Ltd
Narsapura Industrial Area
Near Bengaluru
(Adv. Sri. K.N.V. Panicker)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 12 of the Consumer Protection Act, 1986
1. Material averments briefly stated are as follows:-
On 23/12/2016 complainant purchased a CB Unicorn motor bike from the 1st opposite party for an amount of Rs. 74,071/-. He was not satisfied even with the 1st service. 1st opposite party entrusted the 2nd opposite party for the insurance and he had no previous acquaintance with these opposite parties. The vehicle was manufactured by 3rd opposite party.
2. On 3/12/2017 the motor cycle met with an accident and the complainant was hospitalized. On the 2nd day he informed the matter at the police, insurance agency and service centre. He entrusted the service centre to shift the motor cycle from the accident spot but it was lying at the road side for several days. At the time of accident the vehicle had full coverage and the accident occurred during the guaranty period. When the vehicle was entrusted with the 1st opposite party his driving licence, RC Book, Insurance papers etc were collected. When he contacted to collect the vehicle they demanded to pay an amount of Rs. 13,984/-. They were not ready to return the documents. Since he was not having driving licence he was unable to attend the job. The vehicle has to be repaired without collecting any amount from him, since there was full insurance coverage. 1st opposite party irresponsibly kept the vehicle at the road side for days and collected additional amount of Rs.13,984/-. They also kept the records of the vehicle including licence. Since the accident occurred within the warranty period, they are liable to repair the same free of cost. They even collected the price of battery. Hence the complaint is filed for realizing an amount of Rs. 74,071/- being the value of the vehicle, Rs.50,000/- on account of compensation since he was unable to attend the job and Rs.25,000/- as compensation for mental agony.
3. Opposite parties 1 and 3 filed a joint version mainly contenting as follows:-
The complaint is filed with ulterior motive to harass the opposite parties by incorporating false and frivolous contention. 1st opposite party is the dealer and the authorized service centre of the 3rd opposite party. Complainant purchased a Honda CB Unicorn Motor bike. 1st opposite party is having experienced service personals and they are doing all the service works of the vehicles with due care in caution with the satisfaction of the customers. Complainant has never raised any complaint regarding the service of the 1st opposite party. 1st opposite party had never entrusted the vehicle to the 2nd opposite party for the insurance claim. Complainant himself selected the insurance company for his vehicle. He himself had made the claim to the 2nd opposite party.
4. After the accident the matter was informed to the 2nd opposite party insurance company by the complainant himself and only from the 2nd opposite party, 1st opposite party gathered the information of the accident. Thereafter the vehicle was brought to the workshop of the 1st opposite party on 10/1/2018. The personal of the 1st opposite party prepared the estimate to repair the vehicle. For claiming insurance benefit the RC book of the vehicle, driving licence of the driver insurance policy etc were required and hence the complainant entrusted those documents with the 1st opposite party to hand over to the 2nd opposite party. Immediately after getting the estimate 1st opposite party started repairing on 11/1/2018 itself and it was completed on 15/1/2018 and the bill was sent to the 2nd opposite party on 13/1/2018. 1st opposite party received mail from the 2nd opposite party that out of the total bill of Rs.38,734/-, the claim allowed is Rs.24,750/- after deducting the applicable depreciation. The claim amount and its depreciation etc are absolutely and purely the prerogative of the 2nd opposite party insurance company. After deducting the claim allowed by the insurance company the complainant was liable to pay Rs.13,984/- to the 1st opposite party towards repairing charges. On 13/1/2018 itself, complainant was informed all the details regarding the insurance claim allowed and the balance to be paid.
5. The averment that 1st opposite party refused to hand over the documents of the vehicle etc are absolutely false. When the complainant demanded to return the documents the staff of the 1st opposite party asked him to make an acknowledgment of the receipt of the documents by signing on the register kept for the purpose but he refused to make such an acknowledgment and hence documents were not handed over. Thereafter the complainant made a complaint to the south police station and the police was convinced of the requirements of signing the register for acknowledging the receipt of documents. The police asked him to sign the register and in compliance of the same, the documents were returned. 1st opposite party is not liable to make any repairs without charging in case of accidents. There was no warranty granted by the opposite parties 1 and 3 for making any repairs in case of the accidents. Claim arising out of accidents are only covered by insurance policy. There was no deficiency of service from the side of 1st opposite party.
6. 1st opposite party is entitled to get a balance amount of Rs. 13,984/- towards the repairing charges after adjusting the claim amount allowed by the 2nd opposite party. The documents were not detained as alleged. Though the vehicle was in a severe damaged condition, 1st opposite party completed the repairing works within 5 days. Complainant is not entitled for any amount from opposite parties 1 and 3 and hence the complaint may be dismissed with compensatory cost.
7. 2nd opposite party filed a version mainly contenting as follows:-
On receipt of the information of accident to the insured motor cycle KL.04-AK-2322 this opposite party had duly deputed its loss assessor Sri. K.N.Shihab for inspecting the vehicle and assessing the loss sustained to the motor cycle. As per the estimate of the 1st opposite party suggested for replacement of spare parts worth Rs.64,567/- and labour charges estimated Rs.3000/-. But the insurance company deputed its licenced surveyor and loss assessor for ascertaining the actual loss sustained to the vehicle and he filed his report on 20/1/2018 requesting the replacement of spare parts of Rs.26,063.42/- and labour charges of Rs.1,180/-(Total rupees 27,241.42 ps.). Salvage value of Rs.2293.42/- and policy excess Rs.100/- was assessed and the repair charges was assessed Rs.24,850/-. The said amount was duly transferred to the 1st opposite party and the complainant put the signature on the discharge voucher for the receipt of the amount.
8. Matters being so the complaint is absolutely baseless and devoid of any merits. There is no service deficiency from the part of this opposite party. The actual repairing charges of the vehicle amounts to Rs. 38,734/- as per the invoice of the 1st opposite party including depreciation and taxes. Thus the 1st opposite party has the right to realize the balance amount of Rs.13,948/- from the complainant and he is liable to pay the same. Complainant is depending on the fact that the vehicle was under warranty period and the full cover insurance. Warranty for the vehicle could not extend for accident repairs and services and full cover insurance does not mean that such coverage cannot include depreciation as well as those items or parts which had no coverage as policy conditions. Hence the complaint may be dismissed with compensatory cost.
9. On the above pleadings following points were raised for consideration :-
1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to realize an amount of Rs.74,071/- being the value of the vehicle as prayed for?
3. Whether the complainant is entitled to realize an amount of Rs.50,000/- as compensation since he was unable to attend the job as alleged?
4. Whether the complainant is entitled to realize an amount of Rs.25,000/- as compensation on account of mental agony?
5. Reliefs and costs?
10. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3 from the side of the complainant and the oral evidence of RW1 and 2 and Ext.B1 to B5 from the side of opposite parties.
11. Point No. 1 to 4:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A3. During cross examination Ext.B1 was marked.
12. RW1 is the body shop manager of the of the 1st opposite party. He filed an affidavit in tune with the version.
13. RW2 is the legal manager of the 2nd opposite party. He filed an affidavit in tune with the version and marked Ext.B2 to B5.
14. On 23/12/2016 PW1, complainant purchased a CB Unicorn Motor bike from the 1st opposite party paying an amount of Rs.74,071/-. It was manufactured by 3rd opposite party. The vehicle was insured with the 2nd opposite party for a period of one year from 24/12/2016 to 23/12/2017. Unfortunately within one year of purchase ie, on 3/12/2017 the vehicle met with an accident and it was entrusted for repairs with the 1st opposite party. After repairs they demanded Rs. 13,984/- and since the amount was not paid the vehicle was kept under their custody. It was informed that 2nd opposite party insurance company had only allowed Rs.24,750/-. Since the total repair charges was Rs. 38,734/-, PW1 has to pay the remaining amount of Rs.13,984/-. Dissatisfied with the opposite parties the complaint was filed alleging deficiency of service
(a) The vehicle was kept in the road side for several days.
(b) Exorbitant amount of Rs. 13,984/- was demanded as additional amount.
(c) Documents of the vehicle were kept by the 1st opposite party without any reason.
(d) Several days were taken to complete the work.
(e) When the complainant and his wife went to the 1st opposite party they mis behaved.
The relief sought by the complainant is to pay Rs.74,071/- being the value of the vehicle, Rs.50,000/- since he was unable to go for employment for 2 months and Rs.25,000/- as compensation.
15. Complainant got examined as PW1 and Exts.A1 to A3 were marked. During cross examination of complainant Ext.B1 was marked. The body shop manager of 1st opposite party was examined as RW1 and the legal manager of 2nd opposite party was examined as RW2, Ext.B2 to B5 were marked. The fact that on 23/12/2016, PW1 purchased a motor cycle from the 1st opposite party by paying an amount of Rs.74,071/- is not in dispute. It is also an admitted fact that the vehicle was insured for a period of one year from 24/12/2016 to 23/12/2017 with the 2nd opposite party. Now according to PW1 the vehicle was entrusted for repairs with 1st opposite party and as per Ext.B5 the total bill amount was Rs. 38,734/-. As per Ext.B1 the insurance company paid an amount of Rs.24,850/-. 1st opposite party demanded remaining amount of Rs. 13,984/-. According to PW1, the complainant since the vehicle had full cover insurance with the 2nd opposite party he is not liable to pay any amount and it is the duty of the insurance company to get the vehicle repaired free of cost. Per contra the learned counsel appearing for the 2nd opposite party contented that their surveyor inspected the vehicle and prepared Ext. B2 survey report. Though the proposed estimate was Rs. 67,567/-. Rs. 27,243.42/- only was allowed. Out of the same Rs. 2,293.42/- was available as salvage value and Rs. 100/- was deducted as policy excess. The remaining amount of Rs. 24,850/- was paid to the 1st opposite party through PW1 and obtained Ext.B1 receipt as full and final settlement. Hence PW1 has no authority to claim more amount and there is no deficiency of service from the part of 2nd opposite party. The learned counsel appearing for 1st and 3rd opposite party contented that PW1 could not point out any manufacturing defect for the vehicle and so 3rd opposite party is not liable. After repairs the total bill amount was Rs. 38,734/- and Ext.B1 they received Rs.24,850/- and so they are entitled for Rs. 13,884/-.
16. The learned counsel appearing for the complainant pointed out that from Ext.A3 insurance policy document it can be seen that depreciation allowable for accident which arises within six month but not exceeding one year is 5%. Whereas in this case the insurance company had deducted 10% depreciation which is illegal and contrary to the policy conditions. On going through Ext.B3 survey report it is seen that the said contention is having some force. From Ext.B3survey report it is seen that the total cost of metallic parts was Rs. 23,386.01/-. Depreciation of Rs. 2338.60/- at the rate of 10% was deducted and the amount allowed was Rs.21,047.41/-. The bill for plastic and rubber parts was Rs. 10,032.01/-. As per Ext.A3 document depreciation is deducted at the rate of 50%. Rs.5016.01/- was allowed. Admittedly the date of purchase was on 23/12/2016 and the accident was on 3/12/2017 ie, within one year of purchase. So from Ext.A3 it is pellucid that the insurance company can deduct only 5% as depreciation since the accident was within one year. However out of the amount of Rs.23,386.01/- Rs. 2338.60/- being 10% was seen deducted which is not legal. They can deduct only 5% which amounts to Rs.1169.30/-. So the total allowable amount will be Rs. 22,216.71/-[23,386.01 – 1,169.30]. So the total amount will be Rs. 22,216.71 + 5,016 +1,180 labour charges. So PW1 is entitled for Rs.26,019.30/- and not Rs.24,850/-.
17. PW1 has got a case that his vehicle was kept unattended after the accident several days at the road side by the 1st opposite party. But during cross examination PW1 admitted that on the date of accident itself the vehicle was taken to the police station and inspection by AMVI was conducted. As a matter of fact if a road traffic accident occurs police has to prepare mahazors and the vehicle has to be inspected by Motor Vehicles Department on the very same day of accident it cannot be shifted to the workshop. So such an allegation of PW1 is unsustainable. PW1 is claiming an amount of Rs.50,000/- on a contention that he was unable to go for employment since the vehicle was under the custody of 1st opposite party after repairs. From the discussions made above it can be seen that as per Ext.B5 bill the total amount of repairs were Rs.38,734/-. Since the insurance company had only paid Rs. 24,850/- , 1st opposite party is entitled to realize an amount of Rs. 13,884/-. Since the amount was not paid by PW1 the 1st opposite party had every right to keep the vehicle till the amount is paid.
18. While the case was pending IA. No.113/18 was filed by the complainant for giving a direction to the 1st opposite party to release the vehicle. My learned predecessors in office passed a conditional order dated. 25/1/2019 directing 1st opposite party to release the vehicle. The order reads as follows:-
The petitioner shall file an affidavit/ under taking that he is ready to pay the amount if any due to opposite party 1 and 2 with interest at the rate of 9% per annum within 15 days of the final disposal of the complaint. The 1st opposite party is directed to release the vehicle to the petitioner in case the petitioner files affidavit and serve copy to the 1st opposite party.
Accordingly the vehicle was released on the basis of undertaking. From the above discussion it can be seen that the contention of PW1 that he is entitled to get the vehicle repaired free of cost is unsustainable. The insurance company is entitled to deduct the depreciation and they can only allow amount as per survey report. Here in this case the complainant is entitled for Rs.26,019.29/- from the 2nd opposite party instead of Rs.24,850/-. So 1st opposite party cannot be blamed for not releasing the vehicle. Moreover PW1 has not produced any document or any evidence to show that he was unable to go for job for 2 months. There is no evidence on records to show that 1st opposite party misbehaved with PW1 when he reached their office along with his wife. So from the above discussion it can be summarized that the action of 2nd opposite party deducting 10% depreciation is not legal since the accident was within one year. It is seen that they had deducted Rs.2,338.60/- as 10% depreciation instead of Rs.1,169.30/- which is 5 % depreciation. So they are bound to return Rs.1,169.30/-. As stated earlier 1st opposite party had every right to claim the balance bill amount after deducting the amount given by the insurance company. PW1 had filed an undertaking on the basis of order in IA. 113/2018 that he is ready to pay the amount along with interest at the rate of 9% within 15 days. If the final order in the complaint is against him. It is true that PW1 had signed Ext.B1 voucher accepting Rs. 24,850/- as full and final settlement however since there is a mistake in calculating the percentage of depreciation, PW1 is entitled to receive the same.
19. PW1 has got an allegation that the records of the vehicle including personal records such as driving licence were ceased by the 1st opposite party and it was not returned. It was pointed out by the learned counsel appearing for 1st opposite party that the records were collected for claiming insurance. Since PW1 refused to sign in the register as a token of acknowledgment, records were not returned. Finally PW1 filed a complaint before the Alappuzha South Police Station and the records were returned. PW1 admitted during cross examination that records were returned after signing in the register of the Police Station. So 1st opposite party cannot be blamed for not returning the documents since PW1 refused sign as a token of acceptance.
20. As stated earlier the vehicle was insured with the 2nd opposite party for a period of one year from 24/12/2016 to 23/12/2017. The accident occurred within one year of purchase ie, on 3/12/2017. PW1 had to file the complaint and had to wait for 3 years to get a result. Deducting 10% of depreciation which the 2nd opposite party is not entitled is a deficiency of service for which PW1 is entitled for compensation and we are limiting the same to Rs.3000/-. These points are found accordingly.
21. Point No.6:-
In the result complaint is allowed in part.
(A) PW1 is allowed to realize an amount of Rs.1,169.30/- from the 2nd opposite party being the excess 5% deducted as depreciation.
(B) PW1 is allowed to realize an amount of Rs.3000/- as compensation for deficiency of service from the 2nd opposite party.
(C) 1st opposite party is allowed to realize an amount of Rs.13,884/- along with interest at the rate of 9% per annum from the date of order in IA. 113/2018 ( 25/1/2019) from the complainant.
(D) PW1 is allowed to realize an amount of Rs.2000/- as cost from the 2nd opposite party.
The order shall be complied within one month from the date of the copy of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 3rd day of September, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Gopakumar.P(Complainant)
Ext.A1 - Policy Certificate
Ext.A2 - Copy of Purchase Order
Ext.A3 - Magma General Insurance Document
Evidence of the opposite parties:-
RW1 - Bibhu .V.B (Witness)
RW2 - Cherian Kurian.N(Witness)
Ext.B1 - Claim settlement acceptance & Discharge Voucher
Ext.B2 - Survey Report.
Ext.B3 - letter dtd. 10/1/2018
Ext.B4 - Motor Insurance Claim Form
Ext.B5 - Sales Order
True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
