DATE OF FILING :14.12.2010
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI
Dated this the 27th day of June, 2011
Present:
SRI.LAIJU RAMAKRISHNAN PRESIDENT
SMT.BINDU SOMAN MEMBER
C.C No.264/2010
Between
Complainant : Sence Kurian,
Treasurer,
Kattappana Development Society,
Kattapana P.O,
Idukki District.
(By Adv: Shiji Joseph)
And
Opposite Parties : 1. The Manager,
M/s.Poomkudy Force,
Door No.IX/718,
Mariyappalli P.O,
Kottayam – 686 023.
(By Adv: P.V.Jeevesh)
2. The Branch Manager, Oriental Insurance Company Limited,
Kanjirappalli.
(By Adv: K.Pradeepkumar)
3. Kishore.P.P,
Puthenpurayil House,
Kattappana P.O, Kattappana,
Idukki District.
O R D E R
SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
The complainant is the Treasurer of the Kattappana Development Society, a charitable organization. The society purchased a Tempo Traveller bearing Reg.No.KL-6D-7004 and the same was using as an Ambulance. The said ambulance met with an accident on 8.02.2009 near St.Thomas College, Pala resulted heavy damages to the vehicle. The vehicle was entrusted to the Ist opposite party's Kottayam office for repair. The Ist opposite party prepared an estimate and submitted to the 2nd opposite party. The surveyor of the 2nd opposite party inspected the vehicle and assessed the extent of damages caused to the vehicle. After the repair of the vehicle, the complainant was asked to pay an amount of Rs.73,234/- as the repair charges. The complainant claimed the amount, however the 2nd opposite party allowed only Rs.40,566/-. The reason for the decrease of the amount was because the Ist opposite party had given only 44 items of spares in the initial estimate. The labour charge estimate was for Rs.9,350/-. However, in the final bill it was much higher. Hence the complainant has suffered a loss of Rs.32,868/-. The Ist opposite party should have intimated and informed if there is any acceleration in the initial estimate. The Ist opposite party failed to do so, it resulted heavy loss to the complainant. The non-intimation of additional estimate is a deficiency in service of the Ist opposite party and this petition is filed for getting an amount of Rs.32,868/- as compensation for the loss sustained to the complainant and also such other relief.
2. As per the written version filed by the Ist opposite party, it is admitted that the complainant purchased a tempo traveller bearing Reg.No.KL-6D-7004 and it was repaired by the Ist opposite party. The Ist opposite party has given both initial and additional estimate to the complainant in time. Since this opposite party is not in tie up with the 2nd opposite party, insurance company, this opposite party is not obliged to intimate to the insurance company. If there is any loss happened to the complainant, the sole liability for that is on the 2nd opposite party insurance company. Because the insurance amount will depend on the age of the vehicle, the assessment of the surveyor etc. All these matters are determining by the insurer only. So this petition is filed for misleading and with malicious intention. Hence the petition may be dismissed.
3. As per the written version filed by the 2nd opposite party, the insurance and accident of the vehicle are admitted. Immediately Sshabeer Ali.V.K to assess the loss. The surveyor conducted the survey on 10.02.2009 and filed his report assessing the net loss as Rs.45,291/-. Out of which, the total labour charges assessed was Rs.10,865/-. Finally after discussions with the surveyor, Works Manager of the Ist opposite party who signed the estimate, agreed to do the job for Rs.9,850/-. Some bills of the spare parts produced shows lower price as compared to the assessment of the surveyor. Taking into account that difference, the amount due to the complainant comes to Rs.41,890/- only. The vehicle in question was insured, showing the seating capacity as five only. On verification of the registration certificate, it is found that the seating capacity of the vehicle is 15. So an amount of Rs.1,324/- was due from the complainant for the coverage of 10 more passengers. The matter was discussed and settled with the complainant. Accordingly after deducting Rs.1,324/- as the premium of ten passengers, this opposite party paid Rs.40,566/- as the balance amount due to him vide cheque No.295648 dated 17.06.2009 to the complainant. The complainant received the amount towards full and final settlement. So the complainant has no cause of action against this opposite party. The original estimate furnished to this opposite party by the Ist opposite party contains only 44 items for replacement. But in the final bill 82 parts are replaced. Likewise the Ist opposite party furnished an estimate of Rs.46,200/- as labour charge. But after discussions with the surveyor, it was agreed to do the job for Rs.9,850/-. In the original estimate, the Works Manager of the Ist opposite party written the amount and signed under the same. So the complainant is not entitled to get any relief from this opposite party.
4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to ?
5. The evidence consists of the oral testimony of PW1 and Exts.P1 to P5 marked on the side of the complainant and the oral testimony of DW1 and Exts.R1 to R4 marked on the side of the opposite parties.
6. The POINT :- The complainant produced evidence as PW1. PW1 who is the Treasurer of the Kattappana Development Society, which is a charitable Organisation constituted and functioning for the upliftment of people belongs to the poor category of the society. An ambulance was purchased by the society for their purpose and it was duly insured with the 2nd opposite party, copy of the insurance policy is marked as Ext.P1. The vehicle met with an accident on 8.02.2009 and heavy loss sustained to the vehicle. So it was entrusted to the Ist opposite party for repair. The Ist opposite party produced an estimate for repair, which is marked as Ext.P2(series) for a total amount of Rs.49,123/-. The 2nd opposite party who is the insurance company deputed an independent surveyor to assess the damages caused to the vehicle and a survey report was filed by the surveyor, which is marked as Ext.P3. But after the repair the complainant was asked to pay Rs.73,234/- as repair charges. But the claim was allowed by the 2nd opposite party only for Rs.40,566/-, for the reason that the labour charges and additional estimate was not intimated by the Ist opposite party to the 2nd opposite party. So a lawyer notice was issued by the complainant to the Ist opposite party for getting back the loss sustained to the complainant as Rs.32,868/-, office copy of the same is marked as Ext.P4. On cross examination of the learned counsel for the Ist opposite party, they have produced the original estimate issued by the Ist opposite party for an amount of Rs.46,200/-, which is marked as Ext.P5. As per cross examination of the learned counsel for the 2nd opposite party, it is admitted that in Ext.P5 estimate labour charge is Rs.9,850/- and a signature is also affixed. In the first estimate there was only 42 items, but when the bill was issued there were 82 items. The estimate for the spare parts marked as Ext.R1, which is for an amount of Rs.55,530/-. The Works Manager of the Ist opposite party filed affidavit and examined as DW1. The original and additional estimates were supplied to the complainant by DW1. The original estimate is marked as Ext.R3, which is for an amount of Rs.99,520/- and copy of the additional estimate supplied to the complainant is marked as Ext.R4. On cross examination of the learned counsel for the 2nd opposite party, it is admitted that the total bill was discussed with the insurance surveyor by DW1. It is written in Ext.P5 that labour charge as Rs.9,850/- by the surveyor and it was signed by DW1. The surveyor assessed the loss at the spot and an additional estimate was given to the complainant. On cross examination of the learned counsel for the complainant, DW1 deposed that the labour amount Rs.9,850/- was not agreed by him. The amount was not written by DW1. The original estimate given by DW1 is Ext.R3 and it was also discussed with the surveyor. It is also admitted by DW1 that mistakes happened in Exts.R3 and R4, some items are repeated. The first estimate was given without dismantling. In the total amount Rs.73,234/-, the labour expenses comes other than Rs.49,123/-. There is printing mistakes happened in Exts.R1 and R3. Painting, front bumber, head light, mud guard etc. were mentioned in Ext.R3 and Ext.R4 and as per IMT 23, they are not having insurance coverage. So there will be depreciation in the insurance amount. The complainant received an amount of Rs.41,890/- from the 2nd opposite party, insurance company, as full and final settlement and the receipt issued by the complainant is marked as Ext.R2.
As per the complainant, the vehicle met with an accident and it was entrusted to the Ist opposite party for repair. The Ist opposite party prepared an estimate and given to the complainant for an amount of Rs.49,123/- for the repair of the vehicle as per Ext.P2(series). But while the vehicle was repaired, the opposite party supplied a bill for Rs.73,234/-. So the complainant filed a claim before the 2nd opposite party. But the 2nd opposite party allowed only Rs.41,890/- as the insurance amount and the complainant sustained a loss of Rs.32,868/-. That is only because the additional estimate for the repair was not supplied by the Ist opposite party to the 2nd opposite party. In the first estimate prepared by the Ist opposite party, there were 44 items, but in the final estimate the items were increased. So he is liable to get the loss sustained by him.
But as per the Ist opposite party, they are not having any tie up with the 2nd opposite party. They have produced the original estimate as Ext.R3 for an amount of Rs.99,520/- and additional estimate as Ext.R4 was also given to the complainant. The complainant directly claimed the amount from the 2nd opposite party because the Ist opposite party is not having tie up with the 2nd opposite party. As per the 2nd opposite party they have deputed a surveyor to assess the loss sustained and as per the assessment, the amount comes around Rs.41,890/-. The complainant availed the insurance coverage stating that it was a 5 seated vehicle. But on perusal of the R.C book, it is revealed that it is a vehicle having 15 seated. So accordingly an amount of Rs.1,324/- was also deducted from the assessed amount and the claim was settled as Rs.40,566/-. It was a full and final settlement and the complainant signed and issued a receipt for the same, which is Ext.R2. As per the Ist opposite party, there is a depreciation in the insurance amount because the policy was not availed as per IMT 23. So painting, front bumber, head light, mud guard etc. were exempted from the insurance coverage and there will be depreciation in the amount.
On perusing the estimates filed by the complainant and the opposite parties, there is no date has been mentioned in any of them produced by both parties as Exts.R1, R3, R4 and P5. So, on perusing these documents, it cannot reveal the date on which the estimates were prepared and issued. Only the Ext.P2(series) tax invoice, which is not an estimate, supplied by the Ist opposite party shows the date and all other details. These matters were not at all challenged by the complainant anywhere. So it means that the complainant has received initial and additional estimates and the matter is became disputed only when the insured amount has been reduced. The complainant himself received the insurance amount without any dispute as full and final settlement as per Ext.R2. As per the complainant he has paid an amount of Rs.73,234/- to the Ist opposite party. But no receipt has been produced by him to prove that he had paid such an amount. So the only reliable document seen before this Forum is Ext.P2(series). As per the 2nd opposite party, the complainant has not availed the policy as per IMT 23. So certain parts are exempted from the insurance coverage and the amount has been reduced. It is also submitted by the complainant that some parts are repeated in Exts.R3 and R4. But the complainant never produced any expert evidence to show that the estimate for the repair of the vehicle will comes to a certain amount and the opposite party had issued a bill for an exaggerated amount. No expert commissioner or expert evidence produced by the complainant to prove the details of the works done by the opposite party. If the complainant is having such a dispute that the opposite party charged an exorbitant amount for the repair of the vehicle, that matters should have been proved before the Forum with an expert. There is no contention raised against the 2nd opposite party by the complainant for the receipt of the insurance amount. The complainant never challenged the survey report produced by the 2nd opposite party as Ext.P3. He himself received the amount with full and final settlement. So we think that the complainant failed to prove deficiency in the part of the opposite parties.
Hence the petition dismissed. No cost is ordered against the complainant.
Pronounced in the Open Forum on this the 27th day of June, 2011
Sd/-
SRI. LAIJU RAMAKRISHNAN(PRESIDENT)
Sd/
- SMT. BINDU SOMAN(MEMBER)
APPENDIX
Depositions :
On the side of Complainant :
PW1 - Sence Kurian
On the side of Opposite Parties :
DW1 - K.J.Mathew
Exhibits:
On the side of Complainant:
Ext.P1 - Copy of Motor Insurance Certificate cum Policy Schedule
Ext.P2(series) - Estimate for repair for Rs.49,123/- issued by the Ist opposite party
Ext.P3 - Motor Final Survey Report prepared by the insurance surveyor
Ext.P4 - Copy of lawyer notice dated 05.09.2009 issued by the complainant to the opposite party
Ext.P5 - Original Estimate for Rs.46,200/- issued by the Ist opposite party
On the side of Opposite Parties :
Ext.R1 - Estimate for Spare Parts for Rs. 55,530/-
Ext.R2 - Discharge Voucher dated 16.06.2009 for Rs.41,890/- issued by the
complainant
Ext.R3 - Original Estimate for Rs.99,520/- issued by the Ist opposite party
Ext.R4 - Additional Estimate for Rs.8,516/- issued by the Ist opposite party
