DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 11^th day of August 2020

Present   : Sri.V.P.Anantha Narayanan, Member (President I/c)

               : Smt.Vidya.A, Member                                                        Date of Filing: 21/02/2018

CC No.28/2018

Kuriyan. M.A

S/o. Abraham,

Mittathanikkal,

Kallamala P.O,

Mannarkkad Taluk,

Palakkad Dist.

(Represented by his

Power of Attorney Holder,                                                      -  Complainant

Mathew S/o. Abraham,

Mittathanikkal,

Kallamala P.O,

Mannarkkad Taluk,

Palakkad.)

(By Advs.Jayakumar.P.M & Jayachandran)

                                                                          Vs

1. The Manager

Eram Motors Pvt. Ltd.,

38/29, Near Manjakulam Mazjid,                                           -  Opposite parties

Palakkad Post, Palakkad Dist.

(By Adv.V.K.Ramachandran)

2. The Manager

United India Insurance Ltd.,

Branch Office Mannarkkad  Post,

Mannarkkad Taluk.

(By Adv.T.P.George)

O R D E R

By Sri.V.P.Anantha Narayanan, Member (President I/c)

The complaint is briefly stated as follows:

The complainant purchased a Mahindra Scorpio vehicle bearing Registration Number KL-07-BL-3341 from the 1^st opposite party and the entire service maintenance and warranty services were carried out at the service station of the 1^st opposite party.  The vehicle was insured with the 2^nd opposite party with full cover vide insurance policy number – 10120553115P103750089.  Since the complainant is working abroad he has executed a power of attorney in favour of his brother Mr.Mathew to file and conduct the case.  On 05/05/2016 at around 4.00 pm the above vehicle of the complainant met with an accident at Thazekode near Mannarkkad, when the family members of the complainant were travelling from Attappady to Perinthalmanna and the vehicle underwent a huge damage.  According to the complainant it was a total loss.  After completing the police formalities the vehicle was taken to the 1^st opposite party’s service station.  On verification at the service station, including the insurance surveyor the complainant was advised to carry out the repair works at the 1^st opposite party service station and the complainant spent a huge amount for its repair work.  The complainant obtained the vehicle from the 1^st opposite party service station in last week of 2016 July after major repairs for about two months and the loss assessed by the 2^nd opposite party surveyor Mr.Loganathan was Rs.5,03,160/- including the cost of spare parts Rs.3,84,306/-.  According to the complainant, the Insured Declared Value (IDV) fixed by the 2^nd opposite party for this vehicle was Rs.4,50,000/- and he spent Rs.3,66,557/- for its repair work as per the bills, where as the complainant got reimbursement of Rs.2,07,000/- from the 2^nd opposite party out of the insurance coverage.  Complainant pleads that the 2^nd opposite party surveyor himself assessed the damage beyond 100% of the Insured Declared Value of Rs.4,50,000/- and hence the vehicle is to be declared as a total loss, though the criteria for consideration of claim for total loss is subject to the condition that if the vehicle has suffered loss for more than 75% of the insurers liability on repair based on IDV of the vehicle.  According to the complainant, thus the entire purpose of insuring the vehicle is defeated.  He also contends that the 2^nd opposite party cannot be a company for collecting premium amount only, and the insurance surveyor deliberately omitted to note the chassis defect which was the major defect he ought to have noticed and this negligence on his part became the back bone of this complaint.  When the complainant started using this vehicle he came to know that it was not properly repaired and some more defects persist.  Feeling so complainant again approached the 1^st opposite party, but he got a reply that the defects would be cured after using the vehicle for another 500 kilo meters.  Complainant contends that the main difficulty faced by him was some of the mechanical parts became too tight to move after waiting for six months and the repaired vehicle covering 500 kilometers.  The complainant again approached the 1^st opposite party, then also the 1^st opposite party made the same above reply.  Feeling aggrieved the complainant went to another service station, namely T4 Car Care, Vattambalam.  Complainant pleads that after making thorough checkup it was found that since the vehicle met with an accident the body of the vehicle got damaged due to the heavy hit and it was not rectified.  The mechanic of T4 Car Care opined that the vehicle is a fit case for total loss as the damage caused by the accident is huge.  From this it can be presumed that when the vehicle was shown to the 2^nd opposite party surveyor, the surveyor without assessing damage properly negligently made a report recommending for the repair work.  In fact the heavy damage caused by the accident to the chassis of the vehicle was not properly assessed by the surveyor.  If the 2^nd opposite party surveyor assessed the damage properly, he could have recommended for total loss.  On enquiry it is also known that the vehicle’s body and chassis got bent, in addition to other damages.  The opposite party could have identified at the initial stage itself and the surveyor should have advised for a total loss which would give an option to the complainant to change the vehicle.  Hence according to the complainant 2^nd opposite party’s surveyor knowingly suppressed the fact and made the complainant spend a huge amount for vehicle repair causing loss instead of availing the most beneficial relief for change of vehicle.  Complainant also pleads that the defects found are very serious and the damages are beyond 100% of the insured declared value and the 2^nd opposite party’s surveyor should have recommended for total loss.  The failure to recommend for total loss will clearly amount to deficiency in service.  The 1^st opposite party should have challenged the 2^nd opposite party’s surveyor’s recommendation in the initial stage itself, instead he just started the repair work without assessing the gravity of the damage.  Hence the 1^st opposite party supported the 2^nd opposite party to cover the above negligence.  The complainant is eligible for total loss benefit, considering the gravity of the damage and loss of the vehicle.  Hence the opposite parties are jointly and severally liable to compensate the loss and hardship suffered by the complainant.  At present the vehicle is in the garage due to the major defect.  Since the opposite parties did not reply to his request the complainant is constrained to suffer huge loss and hardship because of the negligence and deficiency in service of the opposite parties.  Hence the complainant is entitled to get Rs.1,60,000/- towards the repair works together with interest at 9% per annum from the opposite parties and above vehicle to be declared as a total loss under the Insurance Regulations because the loss is beyond 100% of the IDV, making the complainant eligible for the above from the opposite parties.  Hence complainant prays to this Hon’ble Forum to direct the 2^nd opposite party to declare the vehicle as a total loss and grant Rs.60,000/-  as compensation for the loss and hardship suffered by the complainant due to the deficiency in service committed by the opposite parties regarding the damage of the vehicle which is validly insured. 

The complaint was admitted and notices were sent to opposite parties to enter their appearance and file their version. 

In the version the 1^st opposite party contends that the complaint is not maintainable under the Consumer Protection Act 1986 because the vehicle purchased is used for commercial purpose and there is no deficiency in service from the part of this opposite party.  This opposite party denies that the complainant had purchased Scorpio, 2009 model vehicle bearing registration number KL-07-BL-3341 from the 1^st opposite party.  The 1^st opposite party has not sold the said vehicle to the complainant.  This vehicle first came to this opposite party on 09/05/2016 for repair and service, after the same met with an accident.  This opposite party did only repair works of this vehicle after its accident.  This opposite party did not dispute the complainant’s averment that the vehicle met with an accident but denies as false the allegation that the vehicle was a total loss after the accident.  This opposite party also denies that he is the authorized dealer of Mahindra & Mahindra Pvt.Ltd. engaged in the business of sales and service of Mahindra & Mahindra vehicles.  This vehicle was entrusted to this opposite party by one Mr.Mathew who has signed relevant documents before repair and paid the bill amount and Mr.Kurian did not contact this opposite party at any point of time.  After the vehicle was entrusted to 1^st opposite party for accidental repairs on 09/05/2016, 1^st opposite party gave a quotation to the complainant for Rs.3,77,600/- which was less than the insured declared value of Rs.4,50,000/-.  This opposite party also contends that the insurance surveyor Mr.Lokanathan after inspecting the vehicle reported that the aforesaid vehicle was not a total loss and it can be repaired which was communicated to the complainant on 17/05/2016.  Complainant accepted the report of the surveyor and paid Rs.50,000/- as advance to this opposite party and this opposite party proceeded with the repair work on 20/05/2016.  Mr.Mathew again made an advance payment of Rs.1,50,000/-.  When the vehicle was released to Mr.Mathew after completing the entire work on 28/07/2016 Mr.Mathew paid the balance amount, thus the total amount paid by Mathew works out to Rs.3,66,557/- which was less than the insured declared quotation amount and insured declared value of Rs.4,50,000/-.  This opposite party also denies the complainant’s averment as false that the vehicle was not properly repaired and some more works stands pending.  Complainant was satisfied with the work of 1^st opposite party and signed a satisfaction note to 1^st opposite party by Mr.Mathew acting for the complainant.  Also the subject vehicle again came for periodical repairs and minor repairs on 12/07/2017 not due to the service deficiency or improper repair at the time of accidental repair.  Again at this time complainant never raised any allegation regarding total loss.  The 1^st opposite party again contends that the vehicle has been used and has run over 15000 kilo meters after 28^th July 2016, even after raising claim of total loss and incomplete repair work from the part of 1^st opposite party through a lawyer notice dated.17/07/2017.  Complainant used the service of 1^st opposite party on 21/11/2017 and 17/02/2017.  Also the above vehicle was never maintained by the complainant properly and periodical services were not conducted by him till the accident which is also the main reason for accident.  The bent in the said vehicle was on the front side of the said vehicle and the surveyor reported that the bent can be leveled which was done by this opposite party.  The fact whether a vehicle will be a total loss after an accident is decided by surveyor who is an independent valuer and licensee.  The surveyor inspects and decide whether a vehicle is a total loss or not and the repair jobs to be done.  If the surveyor is of the view that the vehicle is repairable he recommends for repairs and the jobs to be done are carried out by this opposite party.  This opposite party has no role in deciding these matters.  The complainant’s allegation that he could have got the vehicle changed if the vehicle was gone to a total loss is baseless and there is no such provision for this vehicle.  The allegation that this opposite party has suppressed in connivance with the 2^nd opposite party about that the vehicle was a total loss is also denied by this opposite party.  1^st opposite party has intimated the complainant all the relevant information from time to time.  The damage occurred to this vehicle is not beyond 100% of insured declared value.  This opposite party has no right or duty to interfere in assessment of insurance surveyor and 1^st opposite party has not supported the 2^nd opposite party to cover the negligence.  This opposite party also contends that it is an unnecessary party because the 2^nd opposite party is answerable to any insurance related claims raised by the complainant.  The complainant has not suffered any hardship/loss due to this opposite party and therefore this opposite party is not responsible for any mental agony or loss suffered by the complainant.  Hence this opposite party is not liable to compensate the complainant as there is no deficiency of service and negligence from its part.  Also the complainant claimed excessive amount.  Hence this opposite party prays to this Hon’ble Forum to exonerate them from liability with compensatory cost. 

In the version filed by the 2^nd opposite party, he contends that the complaint is not maintainable under the Consumer Protection Act 1986.   The registered owner is abroad and the vehicle was used for commercial purpose.  Hence this Forum has no jurisdiction to try this complaint.  This opposite party admits that the vehicle No.KL-07-BL-3341 was insured with the 2^nd opposite party under a private car package policy for the period from 07/07/2015 to 06/07/2016.  This opposite party admitted that the vehicle was involved in an accident on 05/05/2016 and the vehicle sustained certain damages.  After the receipt of the information regarding the accident an experienced senior panel surveyor, Loss surveyor/valuer, Mr.K.Lokanathan was deputed by this opposite party to assess the extent of damages subject to the terms and conditions of the insurance policy.    The surveyor has inspected the vehicle several times and submitted a very detailed report of the particulars of the loss and damages caused to the vehicle on 15/07/2016.  The surveyor has assessed Rs.66,365/- for labour charges and Rs.1,47,147/- for spare parts and after deducting salvage value of Rs.7,452/- the total amount assessed for the repair of the vehicle was Rs.2,07,000/- which was paid to the R.C owner of the vehicle and admittedly he has received it towards full and final settlement of the claim.  This opposite party also contends that the allegation in the complaint is false that the loss suffered and assess by the surveyor was for Rs.5,03,160/- by Mr.Lokanathan out of which the total cost assessed for spare parts was Rs.3,84,306/- and the complainant has spent Rs.3,66,567/- for repair work as per bill and complainant got reimbursement only for Rs.2,07,000/- from the 2^nd opposite party and the surveyor has assessed the damages beyond 100% of the insured’s estimated value and hence it is to be declared as a case of total loss and if the vehicle suffered loss for more than 75% of the insurer’s liability on repairs it is to be treated as a total loss and the surveyor has deliberately omitted to note the chassis defect.  The 1^st opposite party is the authorized dealer and the service agent for Mahindra & Mahindra Company at Palakkad.  The damaged vehicle was brought to the 1^st opposite party’s workshop at Palakkad and the 1^st opposite party has assessed the damages.  According to the 1^st opposite party the amount required for labour charge was Rs.80,201/- including tax and the cost of spare parts was Rs.2,81,718/- including taxes.  As per policy conditions and as per the Indian Motor Tariff, for certain parts entire amount will be reimbursed and for certain parts 40%, for certain other parts 50% will be deducted towards depreciation and only the balance amount will be reimbursed.  Similarly for painting 50% will be deducted for 30% of painting charges.  In this case the cost assessed by the surveyor for complete painting of the vehicle was Rs.43,000/- out of which Rs.6,450/- was deducted as depreciation charges, salvage value of Rs.7,452/- was also deducted.  After deducting depreciation amount for metallic parts, rubber parts, painting,  and salvage value and Rs.2,000/- for policy access as per the Indian Motor Tariff, the surveyor has assessed a sum of Rs.66,365/- for labour charges and Rs.1,47,147/-  for spare parts total amount is Rs.2,07,000/- which was paid by this opposite party. 2^nd opposite party also contends that the subject vehicle was a 2009 model Scorpio Car manufactured by Mahindra & Mahindra Company Ltd. and purchased by the complainant on 21/02/2015.  This vehicle has run 95,127kms. as on the date of accident on 05/05/2016 and the insured’s estimated value only Rs.4,50,000/-.  After completion of the repair work the same surveyor has submitted another re-inspection report dated.28/07/2016 showing the list of spare parts recommended by the surveyor and the vehicle was duly repaired and is in road worthy condition.  The complainant has taken delivery of the vehicle and was using it without any complaints and has run over 10000 kilo meters after repairs; the allegation in the complaint that the complainant went to another service station and they after checkup found that body of the vehicle got bent due to the heavy hit and it was not rectified and they advised that this is a case of total loss and the surveyor has not properly assessed the damages to this chassis and the surveyor should have advised for total loss are baseless allegations.  According to this opposite party the surveyor has properly assessed the damages.  He has reported in his 1^st report itself chassis front cross bar bent.  He also reported that the bent can be leveled and it was leveled by the 1^st opposite party.  He also inspected the vehicle several times and reported that the vehicle can be repaired, he has also assessed Rs.3,000/- for leveling the bent alone, each and every item was meticulously verified and assessed by the surveyor.  Surveyors report was a detailed report covering each and every aspect of the damages as contended by this opposite party.  Another allegation in the complaint that, a mechanic of T4 car care workshop opined that this is a fit case for total loss because, the damage caused is huge.  No damage was caused to the engine nor any serious damage occurred to the chassis.  Damages were mainly to the body parts only.  According to this opposite party an independent senior surveyor has assessed the damages.  Surveyors are independent licensees who recommend what are the jobs to be done and accordingly the authorised dealer/service agent works.  A mechanic from an ordinary work shop has no expertise or authority to make the above false opinions.  The alleged certificate issued by T4 car care was obtained by the complainant with ulterior motives to extract money from this opposite party, as contended by this opposite party.  This opposite party further contends that there is no deficiency in service on the part of this opposite party and the 2^nd opposite party denies the allegations that complainant has suffered mental agony and trauma as untrue.

Hence this opposite party prays to this Hon’ble Forum to accept their contentions and dismiss the complaint with cost. 

The following issues are considered in this case.

1. Whether there is any deficiency in service and unfair trade practice on the part of 1^st & 2^nd opposite parties?
2. If so, the relief and cost which the complainant is entitled to get?

Issues 1 & 2 in detail

            To prove his pleas Exts.A1 to A7 are marked from the side of the complainant except Ext.A6 which is marked with objection.  From the side of opposite parties Exts.B1 to B13 are marked to defend their contentions. 

            Ext.A1 is a copy of FIR issued by Perinthalmanna Police Station authorities which states FIR number, system date and time and number date and time of occurrence of accident to the disputed vehicle, general diary reference, 1^st information contents, registration number of the vehicle which proves the occurrence of accident to the disputed vehicle on 05/05/2016.  Ext.A2 is a retail invoice issued by ERAM Motors Pvt, Ltd. which shows customer name, registration number of the vehicle, RO bill number and date, km reading as 95127 kilo meters, sale date as 30/06/2009, net bill amount as Rs.3,66,557/- which proves that Rs.3,66,557/- has been spent by the complainant for repairing the vehicle in question.  Ext.A3 is motor survey report dated.15/07/2016 filed by Mr.K.Loganathan, surveyor/loss assessor and valuer of the 2^nd opposite party insurance company which shows policy number, period of insurance, name and address of the insurer and insured, vehicle particulars such as registration number of the vehicle, date of registration, registered owner of the vehicle, chassis number of the vehicle, engine number of the vehicle, its make/model, pre-accident condition etc, driver particulars, kilo meter reading at the time of accident as 95127 kilo meters, date and time of accident as 4.50 pm on 05/05/2016, place of accident, place of survey, date of survey as 12/05/2016 and 30/06/2016, police station diary number as 0375/2016 which proves the occurrence of accident to the disputed vehicle.  This Ext. also shows in detail, particulars of loss/damages stated by the expert commissioner Mr.K.Loganathan: “I inspected the damaged vehicle at M/s. Eram Motors Pvt, Ltd, Manjakulam Road, Palakkad on 12/05/2016 & 30/06/2016 and made few other visits and observed the damages as under:

“Front bumper with end cap pressed and broken.  Grill frame bent and buckled.  Front Grill/front  appliqué pressed and broken.  Front both side fenders buckled, dented and deshaped.  Apron panels bent and misaligned.  Wheel house front RH & LH and reinforcement wheel house on both sides pressed, buckled and damaged.  Bonnet assy buckled and folded.  Hinge hood RH & LH bent and damaged.  Insulator hood torn and damaged.  Front w/s glass frame pillars bent.  Front w/s glass shattered.  Assy wheel arch front trim RH & LH broken.  Front end cap with mudflap RH & LH torn and damaged.  Assy rear spoiler broken.  Front and rear LHS doors buckled and dented.  So was the condition of right side doors also.  Qtr panel RH & LH crushed.  Assy RR Qtr wheel arch trim RH & LH broken/damaged.  Badge powered by, MHAWK, VLX & EAGLE EMBLEM RH are pressed and broken.  Assy butterfly tinted window RH & regulator elect RR door window RH crushed and damaged.  Dicky door buckled and dented.  Glass back door window broken.  Top roof panel crushed and illshaped.  Rear view mirror LH broken.  A/c condenser bent and pierced.  Seal condenser top eagle & RH eagle pressed and damaged.  A/c discharge hose cut and damaged.  Horn assy high torn & low torn and pressed and damaged.    Sensor wheel speed front pressed and damaged.  Head lamp & side marker lamp on both sides found broken.  Foot board lamp broken.  Tail lamp lower RH & LH and upper RH found broken.  Relay head lamp pressed and broken.  Registration plate lamp broken.  Door switch broken.  Battery amaron body broken and electrolyte leacked out.  Antena roof cut and damaged.  Front both side suspension bent and disarrayed.  Stabilizer bar front bent and twisted.  Arm assy upper RH & Lower RH bent and deformed.  Steering gear box assy pressed and broken.  steering hoses cut and damaged.  Air cleaner assy crushed.  Radiator assy bent and pierced.  Shroud radiator primary & secondary pressed and broken.  Radiator hoses cut and damaged.  Vacum modulator EGR pressed and damaged.  Chassis front cross member bent.  Both RHS & LHS longitudinal members bent and distorted.”  He also recommends that the affected body panels after repairs/replacement have to be painted with matching colour but does not state that the damage occurred to the subject vehicle is total loss; it only discloses that chassis front cross bar bent.  It also does not state that the whole body of the vehicle is bent but, states only that the chassis front cross bar bent, both RHS and LHS longitudinal members bent and distorted.  Except for this damage the report does not mention anything about the chassis damage due to the accident.  Further Ext.A3 shows details of assessment regarding labour, parts replaced @ nil depreciation, parts replaced @ 50% depreciation.  Ext.A4 is a certificate of insurance of private car package policy issued by the 2^nd opposite party which shows policy number, name and address of the insured, effective date of commencement of insurance as 07/07/2015 midnight and date of expiry of insurance as 06/07/2016 midnight which proves that the subject vehicle has insurance cover from 07/7/15 to 06/7/16.  It also proves the subject vehicle has insurance coverage at the time of its accident on 05/05/2016, particulars of vehicle insured such as registration number of the vehicle, its engine number, its chassis number, its make/model, year of its manufacturing etc. Ext.A5 is a letter of authorization or power of attorney given by Mr.M.A.Kurian (the complainant) to Mr.Mathew which shows that complainant (M.A.Kurian) is represented by his power of attorney holder, Mr.Mathew.  Ext.A6 is a letter given by T4 Car Care which is marked with objection.  Ext.A7 is the reply notice sent by 1^st opposite party’s counsel Mr.V.K.Ramachandran to the complainant’s counsel Mr.P.M.Jayakumar which states that there is no deficiency in service from the part of the 1^st opposite party and consequent liability to pay any amount or compensation to the complainant from the part of the 1^st opposite party.

            Ext.B1 is manual repair order form issued by 1^st opposite party duly filled in which shows the customer demanded job is accidental work of the subject vehicle number KL-07-BL-3341 and the vehicle ran 95127 kilometers at the time of giving this vehicle for repair with the 1^st opposite party and accidental work done as jobs done.  Ext.B2 is a retail invoice issued by the 1^st opposite party which shows registration number of the subject vehicle, RO bill number, date and amount as Rs.3,66,557/-.  Ext.B3 is the receipt voucher for Rs.50,000/- on account of advance amount received from Mr.Abraham towards repair work of the vehicle number KL-07-BL-3341.  Ext.B4 is a receipt voucher for Rs.1,50,000/- on account of advance amount received from Mr.Abraham in respect of the disputed vehicle’s repairs.  Ext.B5 is the lawyer notice dated.17/07/2017 sent by complainant’s counsel to the opposite parties calling upon the latter to pay Rs.1,59,557/- towards the cost of repair works already spent and to inform them that the complainant is also entitled to avail the benefit of total loss under the insurance coverage.  Ext.B6 is a copy of reply letter to complainant’s lawyer notice dated.02/08/2017.  Ext.B7 shows vehicle history of the disputed vehicle which shows its registration number, model, name and address of owner, chassis number, engine number etc. it also shows visits were made for repairs and service by the complainant to the 1^st opposite party on 17/02/2018, 21/11/2017, 12/07/2017, 03/05/2017, 07/04/2017, 13/03/2017, 02/01/2017, 10/09/2016, 10/05/2016, 30/06/2015, 27/12/2014, 11/12/2014, 13/06/2014, 12/12 which all prove that 1^st opposite party has repaired and serviced the disputed vehicle on the above dates.  Ext.B8 is private car package policy number 10120553115P103750089 on vehicle number - KL-07-BL-3341, period of insurance from 07/07/15 midnight to 06/07/16 midnight, details of insured, particulars of the insured vehicle, limitations as to use, limits of liability, premium amount of Rs.15,195/-, schedule of premium, schedule of depreciation for fixing IDV of the vehicle, general exceptions.  Ext.B9 is motor survey report filed by Mr.K.Loganathan, surveyor of 2^nd opposite party.  Ext.B10 is re-inspection report filed by Mr.K.loganathan insurance surveyor of 2^nd opposite party insurance company which states that the insurance surveyor visited the 1^st opposite party to conduct a re-inspection of the complainant’s subject vehicle, it also shows policy particulars, details of the vehicle, details of inspection - “I inspected the Mahindra Scorpio LMV – motor car bearing registration number KL-07-BL-3341 after the accidental repairs at M/s ERAM motors pvt.Ltd, Manjakulam Road, Palakkad on 21/07/2016 with reference to the final survey report number – U1/MOT/1692/2016 issued by me“.  “On verification the 99 parts recommended by me as per survey report were replaced”.  He also reports that “now the vehicle is duly repaired and is in road worthy condition”.  Salvage item to the above vehicle were verified.  This Ext. shows that 99 items (parts) recommended by the insurance surveyor were replaced and also the vehicle is duly repaired and is in road worthy condition.  Ext.B11 is motor own damage claim note in respect of the subject vehicle which shows policy number, insurance period, vehicle number, date of accident, cause of accident, net payable amount as Rs.2,07,000/-.  It also includes bill check report which shows replaced parts at nil depreciation, parts at 40% depreciation, parts at 50% depreciation.  It also shows amount payable as Rs.2,06,512.23/-.  Ext.B12 is retail invoice issued by the 1^st opposite party which shows net bill amount as Rs.3,66,557/-.  Ext.B13 is photocopy of RC book particulars which shows registration number of the vehicle, details of tax paid, description of the vehicle in question etc. 

            We have perused the affidavits and documentary evidences filed by the complainant and the opposite parties.  Though the complainant alleged that the vehicle was subjected to huge damage and therefore it was a total loss, that the insurance surveyor deliberately omitted to report the chassis defect of the damaged vehicle which was the major defect caused to the vehicle which met with an accident, we observe that as per insurance surveyors report due to accident there occurred to the said vehicle “the chassis front cross bar bent” which can be leveled and the 1^st opposite party leveled the same.  The insurance surveyor is also seen to have reported that he inspected the subject vehicle several times and each and every item minutely examined and the damaged vehicle can be repaired.  It is also observed that the complainant has not filed any objections to the insurance surveyors report filed by the insurance surveyor and he has not taken any steps to cross examine the insurance surveyor Mr.Lokanathan to confirm whether chassis defect is the major defect occurred to the subject vehicle as a result of accident.  We also see that the complainant alleged that the damaged vehicle was not properly repaired and some defects still persisted in the repaired vehicle, the complainant is not seen to have taken out an expert commission at the appropriate time to prove the alleged damage caused to the concerned vehicle is total loss and the presence of defects in the vehicle repaired by the 1^st opposite party after it met with an accident.  At the same time we observe that the 1^st opposite party has provided service to the complainants disputed vehicle for fourteen times during 2012-2018 period when the complainant visited the 1^st opposite party’s workshop for service which is clear from Ext.B7 vehicle history evidence.  We also view that as per motor survey report filed by the insurance surveyor, Mr.Lokanathan, no serious damage to the chassis is seen mentioned.  But It only states “chassis front cross bar bent which can be leveled” and it is observed that 1^st opposite party had leveled the same.  We also observed that the motor survey report clearly states the defects caused to the subject vehicle by accident the parts to be repaired and the parts to be replaced.  Further, in his re-inspection report dated 28/7/2016 filed by the insurance surveyor, Mr.Lokanathan stated that “now the vehicle is duly repaired and is in road worthy condition” which enough proves that the subject damaged vehicle was properly repaired by the 1^st opposite party and is in road worthy condition, and the complainant is not seen to have filed any objections to the two commission reports submitted by insurance surveyor Mr.Lokanathan.  We also view that complainant’s representative paid advance amounts of Rs.50,000/- and Rs.1,50,000/- and the balance amount of repair and replacement charges levied by the 1^st opposite party without raising any objections.  We also observe that the insurance company surveyor after inspecting the said vehicle reported that the damage to the said vehicle by the accident was not a total loss and it can be repaired which was communicated to the complainant; and the complainant accepted the survey report of the insurance surveyor and paid Rs.50,000/- as advance amount to the 1^st opposite party without raising any objections and the 1^st opposite party proceeded with the repair work of the damaged vehicle on 20/05/2016 and also the complainant is not seen to have raised any allegation at any time that the damage caused to the subject vehicle by accident was a total loss when the subject vehicle was brought to the 1^st opposite party for its repair and service.  It is also clear that complainant has received reimbursement of Rs.2,07,000/- from the 2^nd opposite party insurance company and we understand from the policy conditions and the provisions of Indian Motor Tariff, that for certain parts of the vehicle entire amount will be reimbursed, for certain parts 40% and for, certain other parts 50% will be deducted by way of depreciation and only the balance amount will be reimbursed, for painting 50% will be deducted from 30% of painting charges.  The insurance surveyor had assessed Rs.66,365/- for labour charges and Rs.1,47,147/- for spare parts and after deducting Rs.7,452/- towards salvage value, the total sum assessed was Rs.2,07,000/- which was paid by the 2^nd opposite party to the complainant which the complainant admitted.  We also see from the surveyors report that 99 parts were replaced by the 1^st opposite party on insurance surveyors recommendations.  It is also seen that the insurance surveyor has reported in his motor survey report that the subject vehicle damage was not a total loss and therefore he recommended for replacements and repairs but to which no objections seen filed by the complainant.  Also as per the estimate given by the insurance surveyor in his report labour cost including spot repairs and towing Rs.67,865/-, replaced parts at nil depreciation amounts to Rs.9,638/-, parts at 40% depreciation Rs.93,849/-, parts at 50% depreciation Rs.43,660/- and total amount Rs.1,47,147.23/- were mentioned.  Above all in the 1^st information report given by Perinthalmanna Police station authorities, it is mentioned that “a®mÀ¡mSv s]cn´Âa® ]»nIv tdmUneqsS a®mÀ¡mSv `mK¯v \n¶pw KL 7 BL 3341 \¼À kvtImÀ¸ntbm ImÀ AhnthIambpw A{i²ambpw a\pjyPoh\v A]mbw hcpwhn[¯n HmSn¨v Xmtgt¡mSv Awiw anÃp]Sn sh¨v A{i²ambn sh«n¨v t{_¡v Nhp«nbXn hml\w CSXp`mKw aXnen\v CSn¨v adnªv A\ymb¡mcn¡pw IqsS bm{X sNbvXncp¶ tPmÄ«kv, tkmk½ F¶nhÀ¡v KpcpXc]cn¡pw, ^nteman\, Pn_n³ F¶nhÀ¡v \nÊmc ]cn¡pw ]äm³ CSbmbn F¶pw"" which enough proves that the cause of accident was the rash driving of the subject vehicle by its driver. 

From all the above it is quite clear that the complainant has failed to prove that the damages caused to this disputed vehicle as a result of accident was a total loss and there was deficiency in service and unfair trade practice in this case on the part of 1^st and 2^nd opposite parties. 

The result is that we decide to dismiss the complaint.

            Pronounced in the open court on this the 11^th day of August 2020.

                                                                                                                             Sd/-

                                                                                                 V.P.Anantha Narayanan             

                   Member (President I/c)

                                                                                         Sd/-

                                                                                                  Vidya.A

                           Member

Appendix

Exhibits marked on the side of complainant

Ext.A1  - Copy of FIR issued by Perinthalmanna Police Station authorities which states FIR

               number, system date and time and number date and time of occurrence of accident to

               the disputed vehicle, general diary reference, 1^st information contents, registration

               number of the vehicle which proves the occurrence of accidents to the disputed

               vehicle

Ext.A2 – Copy of retail invoice issued by ERAM Motors Pvt, Ltd.

Ext.A3 – Motor survey report dated.15/07/2016 filed by Mr.K.Loganathan, insurance company

               surveyor

Ext.A4 – certificate of insurance of private car package policy issued by the 2^nd opposite party Ext.A5 – A letter of authorization or power of attorney given by M.A.Kurian (the complainant)

               to Mr. Mathew which shows that complainant (M.A.Kurian) is represented by his

            power of  attorney holder, Mr.Mathew

Ext.A6 - a letter given by T 4 Car Care (Marked with objection)

Ext.A7 -  reply notice sent by 1^st opposite party’s counsel Mr.V.K.Ramachandran to the

               complainant’s counsel Mr.P.M.Jayakumar which states that there is no deficiency in

                service from the part of the 1^st opposite party and consequently no liability to pay any

               amount or compensation to the complainant from the part of the 1^st opposite party.

Exhibits marked on the side of Opposite parties

Ext.B1 – Manual repair order form issued by 1^st opposite party which is duly filled in

Ext.B2-  Retail invoice issued by the 1^st opposite party which shows registration number of the

               subject vehicle, RO bill number, date and amount as Rs.3,66,557/-. 

Ext.B3-  receipt voucher for Rs.50,000/- on account of advance amount received from

               Mr.Abraham in respect of the vehicle number KL-07-BL-3341 for repairs. 

Ext.B4  -  Receipt voucher for Rs.1,50,000/- on account of advance amount received from

               Mr.Abraham in respect of the disputed vehicle for repairs

Ext.B5-   lawyer notice dated.17/07/2017 sent by complainant’s counsel to the opposite

              parties

Ext.B6- a copy of reply letter to complainant’s lawyer notice dated.02/08/2017

Ext.B7 - vehicle history of the disputed vehicle

Ext.B8 - private car package policy number 10120553115P103750089 on vehicle number - KL-

               07-BL-3341, which shows period of insurance as 07/07/15 midnight to 06/07/16

               midnight etc...

Ext.B9 - motor survey report filed by K.Loganathan, surveyor of 2^nd opposite party insurance

              company. 

Ext.B10 - re-inspection report filed by K.loganathan insurance surveyor of 2^nd opposite party

                insurance company

Ext.B11- motor own damage claim note in respect of the subject vehicle

Ext.B12- retail invoice issued by the 1^st opposite party which shows net bill amount as

               Rs.3,66,557/-. 

Ext.B13 - photocopy of complainant’s RC book particulars which shows registration number of

                the vehicle of the complainant, details of tax paid, description of the vehicle in

    question etc... 

Witness examined on the side of complainant

NIL

Witness examined on the side of opposite parties

NIL

Cost :   Nil