BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER O.P.No. 156/2003 Filed on 10/09/2003 Dated: 16..02..2009

Complainants:

1. Aju Asar, VP2/723, Aradhana, Ranni Lane, Peroorkada, Trivandrum – 05.

2. N. Asar ..do..

(By Adv. Ravikrishnan N.R)

Opposite parties:

1. The Managing Director, St. Antony's Automobiles, H.O T.C 31/1398(2), Chakai By-pass, Trivandrum – 24.

   (By Adv. V.K. Radhakrishnan Nair)

    

2. The Managing Director, M/s. Daewoo Motors, Daewoo Motors India Ltd., Noida, Dadri Road, Surajpur-203207.

3. The Managing Director, The Oriental Insurance Company, Regd.Office: Oriental House, ASAF ALI ROAD, New Delhi-100002.

4. The Divisional Manager, The Oriental Insurance Company, Rohini Buildings, Thakaraparambu Road, Trivandrum – 06950023.

   (Opp. Parties 3 & 4 by Adv. S.S. Kalkura)

    

5. Natesan K.R., Insurance Surveyor, C/o The Oriental Insurance Company, Rohini Buildings, Thakaraparambu Road, Thiruvananthapuram – 06950023.

This O.P having been heard on 15..01..2009, the Forum on 16..02..2009 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the 1^st complainant is the father of the 2^nd complainant and owner of the Cielo Car GLX 96 Model bearing Reg.No.KL.01-H 1234. The vehicle was initially insured for Rs. 7,00,000/- by the original RC owner. Subsequently the 1^st complainant insured the vehicle for Rs.5,00,000/-, even though the price paid by the 1^st complainant for the vehicle was Rs.3,35,000/-. Later communication was issued by 4^th opposite party showing the value of Rs.3,00,000/-. However without making the value as shown in the communication, insisted for issuing the value to Rs. 85,000/- and collected premium . On 30/01/2003 after getting the vehicle served by the 2^nd opposite party at about 2 PM when driving the vehicle towards his residence, the vehicle began giving trouble and later the engine caught fire. The police had noted the incident in their GD. Thereupon the 1^st opposite party gave an estimate for repair to Rs.4,96,686.50/-. The 4^th & 5^th opposite parties summoned the complainant to their office and compelled the complainant to agree to sell the vehicle for wreck value by Rs. 30,000/-. Opposite parties 4 & 5 forced the complainant to sign certain documents and thereby committed deficiency in service and are liable to make good the loss to the tune of Rs.3,00,000/-. The accident had occured due to deficiency in service on the part of opposite parties 1 & 2 and they are liable to pay Rs.3,50,000/- and complainants seeks for an order directing the opposite parties to pay Rs. 3,50,000/- and Rs. 50,000/- towards mental agony and Rs.3,00,000/- towards insurance claim and cost of the complaint.

2. The 1^st opposite party filed version contending that the vehicle was brought to the garage of the 1^st opposite party on 30/01/2003 by the 2^nd complainant with the complaint that engine missing and firing at ideal speed it was noted that the vehicle was plied using LPG. Due to long non-usage of petrol the fuel injectors were blocked. As the vehicle was fitted with LPG converter kit the 1^st opposite party was not ready to repair the vehicle. On the request of the 2^nd complainant the repairs were carried out and advised not to drive the vehicle using petrol as all the injectors were of optimum function. The complainant is trying to take advantage of his own wrong. The allegation that the 1^st complainant purchased the vehicle for Rs.3,35,000/- is denied. The vehicle was not having any attraction among the consumers as it was consuming petrol in large quantities comparing any other vehicle in the market in that segment. Spare parts are not available in the open market. There was no buyer for a vehicle of this model. There is no latches on the part of the 1^st opposite party and there is no basis for the claim of Rs.3,50,000/- from the 1^st opposite party. There was no negligence or deficiency of service on the part of the 1^st opposite party.The complaint is hit by the principle of misjoinder of parties. The 2^nd complainant is an unnecessary party in this complaint. He has no interest in the subject matter of the complaint.

3. 2^nd opposite party did not enter appearance.. Hence 2^nd opposite party set ex-parte.

4. Opposite parties 3 & 4 entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. Complainant had accepted the insurance claim as full and final settlement which is accepted by him. The complaint is bad for mis-joinder of parties. The 2^nd & 5^th opposite parties are unnecessary parties to the proceedings. The complaint is barred by principles of estoppel acquiescence and waiver. The complainant of his own choice, free will and consent had agreed and consented that the vehicles insured with the opposite party which has sustained damages and the claim relating to the same was settled on salvage loss basis for Rs.55,000/- towads full and final settlement of all his claims. The complainant has no manner of right to the dispute the correctness of the value declared by him while insuring his vehicle as the same was assessed and valued by himself of his own free choice and will and also considering the fact that the vehicle had covered a distance of more than 59,000 Kms. There has been no deficiency in service nor negligence of any nature whatsoever on the part of opposite parties 3 & 4. The complainant is not entitled to any of the reliefs claimed in the complaint. Hence opposite parties prayed for dismissal of the complaint with compensatory cost of Rs. 10,000/-.

5. The points that arises for consideration are:

1. Whether the complainant is entitled to get the price of the vehicle from the opposite parties?

2. Whether complainant is entitled to insurance claim of Rs.3,00,000/-

3. Wheher there has been deficiency in service on the part of opposite parties?

4. Other Reliefs and Costs?

6. In support of the complaint, 2^nd complainant has filed affidavit of himself as PW1 and marked Exts.P1 to P11. PW1 has been cross examined by opposite parties 1 & 4 and marked Exts. D1 to D6. In rebuttal, 1^st opposite party has filed affidavit. 1^st opposite party did not appear for cross examination. On the part of opposite parties 3 & 4 K.R. Natesan, the Department Surveyor has been examined as DW1 and marked Exts. D7 to D9 and cross examined by the complainant. 4^th opposite party has filed affidavit of himself as DW2 and cross examined by the complainant.

7. Points (i) & (ii) : It has been the case of the complainants that 1^st complainant had purchased Cielo Car GLX 96 Model bearing Reg.No.KL.01-H 1234 from Mr. G.S. Nair for an amount of Rs.3,35,000/- on 23/07/1999 and ownership had changed to the 1^st complainant's name consequent upon the said purchase, that the 1^st complainant insured the said vehicle for Rs.5,00,000/- with Oriental Insurance Company, that 1^st complainant was issued a policy bearing No.4985/2002 by 3^rd & 4^th opposite parties, that the 2^nd complainant was communicated by the 4^th opposite party as per letter dated 4/7/2002 that the vehicle is insurable for value of Rs.3,00,000/- for one year period beginning from 11/7/2002 and a tentative premium of Rs. 6,608/- was indicated and that without considering the letter dated 4/7/2002, the 4^th opposite party with malafide intention insured the vehicle for Rs.85,000/- and collected a premium of Rs.3,823/-. It has also been the case of the complainant that the said vehicle was taken to the 1^st opposite party, the authorised service centre of the 2^nd opposite party for annual check up of the vehicle, that the 1^st opposite party reported that the vehicle required cleaning of the fuel injection system, and the same was cleaned and refitted by the 1^st opposite party at a cost of Rs.210/-, as per bill dated 30/1/2003 and that on the same day at 2 PM, 2^nd complainant had taken back the vehicle from the workshop to complainant's residence at Peroorkada, while so, when the vehicle reached just in front of the Kerala Legislative Complex at Palayam, 'missing petrol smell' was observed by the 2^nd complainant from the engine side, that 2^nd complainant applied hand brake to the vehicle in the start position and pulled the release knob to unlatch the bonnet from the car and found that petrol was coming out of the hose as a spray from the fuel injection inlet side where the actual cleaning and refitting of the hose was perfunctorily performed by the 1^st opposite party and that 2^nd complainant came out of the car and attempted to put off the engine switch but failed due to gushing flame from the fuel injection side of the engine and on being alerted by the personnel the Fire service rushed to the spot and put out the fire by fire engine and subsequently the vehicle was towed to the 1^st opposite party. First point to be discussed is whether there is deficiency in service on the part of opposite parties. In this context, what needs to be considered first is whether the complainant is entitled to the price of the vehicle from the opposite parties. It is admitted by the 1^st opposite party in its version that the said car was brought to the garage of the 1^st opposite party on 30/1/2003 by the 2^nd complainant for repairs on the complaint that when the vehicle which was being run using the LPG as fuel experienced engine missing and firing at ideal speed when an attempt was made to run on petrol when the vehicle ran out of LPG and that on receiving the repairs order form of the 2^nd complainant the vehicle was checked by the mechanic of the 1^st opposite party and on checking it was found that due to non-usage of petrol the fuel injectors were blocked and required cleaning and as the vehicle was fitted with LPG converter kit at the time it was brought, the 1^st opposite party was not ready to repair the vehicle for the reasons that the converter kit fitted in the vehicle was not one authorised by the Government and that 1^st opposite party was not entertaining repairs of gas fitted vehicles. As complainant said unless the vehicle was repaired so as to run the same on petrol he would not be able to go home, 1^st opposite party extended help to repair the same and accordingly cleaned and refitted the fuel injector for which an amount of Rs.200/- was charged as labour bill. It is submitted by the 1^st opposite party that on cleaning the injector it was found that they were damaged due to non-usage for a long time since and were not in a fit condition to run the vehicle, and that it was conveyed to the complainant that the injector would need replacement in order to run the car on petrol. Submission by the 1^st opposite party was that complainant did not give consent for replacement, that complainant was advised that unless the injector were replaced he would not be able to run the car on petrol despite the fact that it was possible to just start the car and that even the petrol in the tank was negligible and that too had lost its texture and colour due to ageing making it difficult for vapourisation. It is submitted by the opposite parties that on knowing the bad condition of the injectors he brought a LPG cylinder to the garage and fitted the same to the car himself. Ext.P5 is the copy of the labour bill dated 30/1/2003 for Rs.210/- issued by the 1^st opposite party. As per Ext.P5, name of the vehicle is KL 01 H,1234, and name of the party is Mr. Hassan; while in the complaint, the name of the said complainant is N. Asar. In his cross examination, 2^nd complainant deposed that the said car in dispute was of 1996 model and that prior to the purchase of the said car by the complainant some 2 or 3 persons were owned and used the same. When asked PW1 about the handwriting in Ext.D1 he said he did not know who had written in it. On being asked about the maintenance of the car, PW1 said that maintenance was done by PW1 himself and that the accident happened not due to lack of maintenance, but PW1 did not furnish relevant paper showing proper maintenance of the said car. In his cross examination by 1^st opposite party, PW1 deposed that he did not know the newspaper news that the accident was happened due to the use of gas, but he admitted that it was on his direction the said vehicle was brought to 1^st opposite party's workshop after the said accident for repair statement. Ext.P9 is the copy of the estimate for accidental repair issued by the 1^st opposite party. It is pertinent to note that complainant has raised allegation of negligence and deficiency in the complaint against 1^st opposie party, while the complainant resorted to 1^st opposite party for repair of the said vehicle even after the accident and for estimate of accidental report. Further PW1 deposed in cross examination that those stated in Ext. P10 are for manufacturing a new car. Complainant never sought expert opinion regarding the cause of accident, nor did complainant apply for appointment of an expert commission to ascertain the reason for damage. The initial onus of proving the case rests on the complainants. In the absence of expert opinion regarding the nature and cause of the accident in connection with the work of the 1^st opposite party we cannot attribute any negligence and deficiency in service on the part of 1^st opposite party. In view of the foregoing discussion we find 1^st complainant is not entitled to get the price of the vehicle from 1^st opposite party. The allegation levelled against 3^rd & 4^th opposite parties is in connection with insurance of the said vehicle. It has also been the case of the complainants that without considering the comunication as per letter dated 4/7/2002 issued by the 4^th opposite party that the vehicle is insurable for a value of Rs. 3,00,000/- for the one year period beginning from 11/7/2002 and a tentative premium of Rs. 6,608/-, 4^th opposite party casually and with malafide intention and without appreciating the prevailing market rate of the vehicle insured the same just for an amount of Rs.85,000/- and collected a premium of Rs.3,823/-. Main thrust of arguments advanced by the counsel appearing for opposite parties 3 & 4 were that the complainant of his own choice, free will and consent had agreed and consented that the vehicle insured with the opposite party which sustained damages and the claims relating to the same was settled on salvage loss basis for Rs.55,000/- towards full and final settlement of all his claims and complainants had accepted the said amount and therefore the complaint is not maintainable.

8. Submission by the complainant is that the 5^th opposite party had compelled the complainants to agree for sale of the wreckage to a party at Coimbatore and fixed the price at Rs.30,000/-, that the complainants were forced to sign in certain documents in order to reduce and nullify the claim at the value of the vehicle demanded by the complainants. PW1 has been vehemently cross examined by 4^th opposite party. In his cross examination, PW1 admitted that the proposal form (Ext.D1) was filled and signed by him, though the vehicle was not in his name. PW1 admitted that Ext.D2 policy was issued on the basis of Ext.D1, and that the policy holder is his son, the 1^st complainant. As per Ext. D2, the policy period is from 12/7/2002 to 11/7/2003, Insured's estimated value is Rs.85,000/- and premium is RS.3,823/-. On a question that did not return the Ext.D2 policy on being found mistakes in the contents of Ext.D2, PW1 replied that "Proposal അനുസരിച്ച്oinalpolicy original policy കിട്ടി. അതിലെ ccontents തെറ്റാണെന്ന്തോന്നി തിരിച്ചേല്‍പ്പിക്കേണ്ട ആവശ്യം വന്നില്ല. PW1 further admitted that "proposal- ല്‍ RsRRs. 85,000/- ആക്കിയത് എന്‍റെ കൈയ്യക്ഷരം തന്നെയാണ്".............. "claims form submit ചെയ്തതും ഞാനാണ് " Ext.D4 is the letter sent by the 1^st complainant to the 4^th opposite party. PW1 admitted that the letter dated 25/3/2003 was signed by the 1^st complainant and PW1 was the witness in it. PW1 also admitted that the consent letter (Ext.D5) was signed by the 1^st complainant. PW1 further admitted that he had received Rs.55,000/- on 25/3/2003 as per Ext.D6 voucher. He also admitted that the voucher was signed in full and final settlement. It is pertinent to note that even after the acceptance of the policy (Ext.D2) from the 4^th opposite party on 12/7/2002, complainant did not challenge the veracity of the policy till the date of accident on 30/1/2003, nor did complainant return the policy to the 4^th opposite party on being found mistakes if any in the contents of the policy. Further, in his cross examination 4^th opposite party explained that the details stated in Ext.P4 was on the basis of previous policy. Ext.D9 is the survey report. As per Ext.D9, surveyor conducted detailed inspection of the vehicle and assessed damages on repair loss basis, total loss basis and salvage loss basis. It is seen stated in Ext.D9 that "Insured expressed his desire to settle claim on salvage loss basis retaining the wreck by him and a letter to that effect dated 6/3/2003 submitted agreeing for the IDV-market value Rs.85,000/- offering Rs.30,000/- for the wreck. The offer is reasonable and I recommend settlement of the claims on salvage loss basis for net amount of Rs.55,000/- only. The wreck retained by the insured and the policy surrendered for cancellation". It is pertinent to note that nothing has been pointed out by the complainanrt as to how the report of the surveyor is defective. Nowhere in Ext.D6 voucher or Ext.D5 consent letter is it mentioned by the complainant that the said amount was received under protest. There was no protest simultaneously or immediately after the acceptance, nor did complainant issue any notice of protest against the settlement of claim to 4^th opposite party prior to filing of the complaint nor did complainant allege fraud or undue influence being brought to bear upon him by the 4^th opposite party. The only reason stated in the complaint was that complainants were forcerd to sign in certain documents. It is to be noted that there was no delay in settling the claim by the 4^th opposite party. 4^th opposite party settled the claim within the reasonable time. Although 4^th opposite party has been cross examined by the complainants nothing has been made out from him to cast cloud over Ext.D2 policy. In support of their version 3^rd & 4^th opposite parties have also submitted decisions of the Hon'ble National Commission in the case of Vipras Corporation Ltd. Vs. National Insurance Company Ltd reported in III (2002) CPJ 367 (NC) and in the case of New India Assurance Co. Ltd and Others Vs. Kusum Distributors and Another reported in II (2007) CPJ 31 (NC). In the light of the above said evidence and in the light of the law discussed in the above decisions of the National Commission we do not find that any case has been made out for this Forum to go behind such full and final settlement. We therefore do not find any merit in this complaint for us to hold that there was deficiency in services on the part of the Insurance Company. 2^nd and 5^th opposite parties were unnecessarily dragged in this complaint, upon which the complaint is bad for misjoinder of unnecessary parties. Complaint has no merit at all which deserves to be dismissed.

In the result, complaint is dismissed. Both parties will bear and suffer their cost in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16^th day of February, 2009.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.156/2003

APPENDIX

I. Complainants' witness:

PW1 : N. Asar

2. Complainants' documents:

P1 : Photocopy of stamp paper worth Rs.50/- dated 23/7/1999

P2 : " letter issued by the 4^th opp. Party dated 4/7/2002

P3 : " renewal notice issued by 4^th opp. Party

P4 : Copy of notice sent to the 4^th opp. Party by the 2^nd complainant dated 5/2/2003

P5 : Photocopy of Labour bill No.7233 dated 30/1/2003

P6 : " Duplicate acknowledgement receipt of money (FORM TR.5) Book No.491/2002 dated 30/1/2003 issued by the Circle Inspector of Police, Traffic Police Station,Tvpm.

P7 : Copy of letter sent to the CI of Police dated 30/1/2003

P8 : Photocopy of abstract of the GD report dated 1/02/2003 issued by the Traffic Police

P9 : Copy of estimate issued by the 1^st opposite party dated 1/02/2003

P10: Copy of power of attorney from the 1^st complainant.

P11: Copy of repair order form dated 30/1/2003.

III. Opposite parties' witness:

DW1 K.R. Natesan

DW2 K.S. John

IV. Opposite parties' documents:

D1 : Photocopy of proposal form with sl.No.32028 submitted by the complainant.

D2 : Copy of policy for the period commencing from 12/7/2002 to 11/7/2003

D3 : Copy of claim form submitted by the complainant

D3(a) Photocopy of estimate dated 1/02/2003

D3(b) Copy of GD abstract of City Traffic Police Station dated 1/02/2003

D3(c) Copy of Fire Force report dated 30/1/2003 with No.48/2003

D4 : Copy of letter dated 25/3/2003 issued by the complainant to the opposite parties.

D5 : Copy of consent letter dated 25/3/2003 issued by the complainant to the opposite parties.

D6 : Copy of discharge voucher dated 23/3/2003

D7 : Photographs of the burned vehicle

D8 : Photocopy of letter dated 6/3/2003 issued to the opposite parties by the complainant.

D9 : Copy of additional notes forming part of survey report dated 13/3/2003.

PRESIDENT

ad.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER O.P.No. 156/2003 Filed on 10/09/2003 Dated: 16..02..2009

Complainants:

1. Aju Asar, VP2/723, Aradhana, Ranni Lane, Peroorkada, Trivandrum – 05.

2. N. Asar ..do..

(By Adv. Ravikrishnan N.R)

Opposite parties:

1. The Managing Director, St. Antony's Automobiles, H.O T.C 31/1398(2), Chakai By-pass, Trivandrum – 24.

   (By Adv. V.K. Radhakrishnan Nair)

    

2. The Managing Director, M/s. Daewoo Motors, Daewoo Motors India Ltd., Noida, Dadri Road, Surajpur-203207.

3. The Managing Director, The Oriental Insurance Company, Regd.Office: Oriental House, ASAF ALI ROAD, New Delhi-100002.

4. The Divisional Manager, The Oriental Insurance Company, Rohini Buildings, Thakaraparambu Road, Trivandrum – 06950023.

   (Opp. Parties 3 & 4 by Adv. S.S. Kalkura)

    

5. Natesan K.R., Insurance Surveyor, C/o The Oriental Insurance Company, Rohini Buildings, Thakaraparambu Road, Thiruvananthapuram – 06950023.

This O.P having been heard on 15..01..2009, the Forum on 16..02..2009 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the 1^st complainant is the father of the 2^nd complainant and owner of the Cielo Car GLX 96 Model bearing Reg.No.KL.01-H 1234. The vehicle was initially insured for Rs. 7,00,000/- by the original RC owner. Subsequently the 1^st complainant insured the vehicle for Rs.5,00,000/-, even though the price paid by the 1^st complainant for the vehicle was Rs.3,35,000/-. Later communication was issued by 4^th opposite party showing the value of Rs.3,00,000/-. However without making the value as shown in the communication, insisted for issuing the value to Rs. 85,000/- and collected premium . On 30/01/2003 after getting the vehicle served by the 2^nd opposite party at about 2 PM when driving the vehicle towards his residence, the vehicle began giving trouble and later the engine caught fire. The police had noted the incident in their GD. Thereupon the 1^st opposite party gave an estimate for repair to Rs.4,96,686.50/-. The 4^th & 5^th opposite parties summoned the complainant to their office and compelled the complainant to agree to sell the vehicle for wreck value by Rs. 30,000/-. Opposite parties 4 & 5 forced the complainant to sign certain documents and thereby committed deficiency in service and are liable to make good the loss to the tune of Rs.3,00,000/-. The accident had occured due to deficiency in service on the part of opposite parties 1 & 2 and they are liable to pay Rs.3,50,000/- and complainants seeks for an order directing the opposite parties to pay Rs. 3,50,000/- and Rs. 50,000/- towards mental agony and Rs.3,00,000/- towards insurance claim and cost of the complaint.

2. The 1^st opposite party filed version contending that the vehicle was brought to the garage of the 1^st opposite party on 30/01/2003 by the 2^nd complainant with the complaint that engine missing and firing at ideal speed it was noted that the vehicle was plied using LPG. Due to long non-usage of petrol the fuel injectors were blocked. As the vehicle was fitted with LPG converter kit the 1^st opposite party was not ready to repair the vehicle. On the request of the 2^nd complainant the repairs were carried out and advised not to drive the vehicle using petrol as all the injectors were of optimum function. The complainant is trying to take advantage of his own wrong. The allegation that the 1^st complainant purchased the vehicle for Rs.3,35,000/- is denied. The vehicle was not having any attraction among the consumers as it was consuming petrol in large quantities comparing any other vehicle in the market in that segment. Spare parts are not available in the open market. There was no buyer for a vehicle of this model. There is no latches on the part of the 1^st opposite party and there is no basis for the claim of Rs.3,50,000/- from the 1^st opposite party. There was no negligence or deficiency of service on the part of the 1^st opposite party.The complaint is hit by the principle of misjoinder of parties. The 2^nd complainant is an unnecessary party in this complaint. He has no interest in the subject matter of the complaint.

3. 2^nd opposite party did not enter appearance.. Hence 2^nd opposite party set ex-parte.

4. Opposite parties 3 & 4 entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. Complainant had accepted the insurance claim as full and final settlement which is accepted by him. The complaint is bad for mis-joinder of parties. The 2^nd & 5^th opposite parties are unnecessary parties to the proceedings. The complaint is barred by principles of estoppel acquiescence and waiver. The complainant of his own choice, free will and consent had agreed and consented that the vehicles insured with the opposite party which has sustained damages and the claim relating to the same was settled on salvage loss basis for Rs.55,000/- towads full and final settlement of all his claims. The complainant has no manner of right to the dispute the correctness of the value declared by him while insuring his vehicle as the same was assessed and valued by himself of his own free choice and will and also considering the fact that the vehicle had covered a distance of more than 59,000 Kms. There has been no deficiency in service nor negligence of any nature whatsoever on the part of opposite parties 3 & 4. The complainant is not entitled to any of the reliefs claimed in the complaint. Hence opposite parties prayed for dismissal of the complaint with compensatory cost of Rs. 10,000/-.

5. The points that arises for consideration are:

1. Whether the complainant is entitled to get the price of the vehicle from the opposite parties?

2. Whether complainant is entitled to insurance claim of Rs.3,00,000/-

3. Wheher there has been deficiency in service on the part of opposite parties?

4. Other Reliefs and Costs?

6. In support of the complaint, 2^nd complainant has filed affidavit of himself as PW1 and marked Exts.P1 to P11. PW1 has been cross examined by opposite parties 1 & 4 and marked Exts. D1 to D6. In rebuttal, 1^st opposite party has filed affidavit. 1^st opposite party did not appear for cross examination. On the part of opposite parties 3 & 4 K.R. Natesan, the Department Surveyor has been examined as DW1 and marked Exts. D7 to D9 and cross examined by the complainant. 4^th opposite party has filed affidavit of himself as DW2 and cross examined by the complainant.

7. Points (i) & (ii) : It has been the case of the complainants that 1^st complainant had purchased Cielo Car GLX 96 Model bearing Reg.No.KL.01-H 1234 from Mr. G.S. Nair for an amount of Rs.3,35,000/- on 23/07/1999 and ownership had changed to the 1^st complainant's name consequent upon the said purchase, that the 1^st complainant insured the said vehicle for Rs.5,00,000/- with Oriental Insurance Company, that 1^st complainant was issued a policy bearing No.4985/2002 by 3^rd & 4^th opposite parties, that the 2^nd complainant was communicated by the 4^th opposite party as per letter dated 4/7/2002 that the vehicle is insurable for value of Rs.3,00,000/- for one year period beginning from 11/7/2002 and a tentative premium of Rs. 6,608/- was indicated and that without considering the letter dated 4/7/2002, the 4^th opposite party with malafide intention insured the vehicle for Rs.85,000/- and collected a premium of Rs.3,823/-. It has also been the case of the complainant that the said vehicle was taken to the 1^st opposite party, the authorised service centre of the 2^nd opposite party for annual check up of the vehicle, that the 1^st opposite party reported that the vehicle required cleaning of the fuel injection system, and the same was cleaned and refitted by the 1^st opposite party at a cost of Rs.210/-, as per bill dated 30/1/2003 and that on the same day at 2 PM, 2^nd complainant had taken back the vehicle from the workshop to complainant's residence at Peroorkada, while so, when the vehicle reached just in front of the Kerala Legislative Complex at Palayam, 'missing petrol smell' was observed by the 2^nd complainant from the engine side, that 2^nd complainant applied hand brake to the vehicle in the start position and pulled the release knob to unlatch the bonnet from the car and found that petrol was coming out of the hose as a spray from the fuel injection inlet side where the actual cleaning and refitting of the hose was perfunctorily performed by the 1^st opposite party and that 2^nd complainant came out of the car and attempted to put off the engine switch but failed due to gushing flame from the fuel injection side of the engine and on being alerted by the personnel the Fire service rushed to the spot and put out the fire by fire engine and subsequently the vehicle was towed to the 1^st opposite party. First point to be discussed is whether there is deficiency in service on the part of opposite parties. In this context, what needs to be considered first is whether the complainant is entitled to the price of the vehicle from the opposite parties. It is admitted by the 1^st opposite party in its version that the said car was brought to the garage of the 1^st opposite party on 30/1/2003 by the 2^nd complainant for repairs on the complaint that when the vehicle which was being run using the LPG as fuel experienced engine missing and firing at ideal speed when an attempt was made to run on petrol when the vehicle ran out of LPG and that on receiving the repairs order form of the 2^nd complainant the vehicle was checked by the mechanic of the 1^st opposite party and on checking it was found that due to non-usage of petrol the fuel injectors were blocked and required cleaning and as the vehicle was fitted with LPG converter kit at the time it was brought, the 1^st opposite party was not ready to repair the vehicle for the reasons that the converter kit fitted in the vehicle was not one authorised by the Government and that 1^st opposite party was not entertaining repairs of gas fitted vehicles. As complainant said unless the vehicle was repaired so as to run the same on petrol he would not be able to go home, 1^st opposite party extended help to repair the same and accordingly cleaned and refitted the fuel injector for which an amount of Rs.200/- was charged as labour bill. It is submitted by the 1^st opposite party that on cleaning the injector it was found that they were damaged due to non-usage for a long time since and were not in a fit condition to run the vehicle, and that it was conveyed to the complainant that the injector would need replacement in order to run the car on petrol. Submission by the 1^st opposite party was that complainant did not give consent for replacement, that complainant was advised that unless the injector were replaced he would not be able to run the car on petrol despite the fact that it was possible to just start the car and that even the petrol in the tank was negligible and that too had lost its texture and colour due to ageing making it difficult for vapourisation. It is submitted by the opposite parties that on knowing the bad condition of the injectors he brought a LPG cylinder to the garage and fitted the same to the car himself. Ext.P5 is the copy of the labour bill dated 30/1/2003 for Rs.210/- issued by the 1^st opposite party. As per Ext.P5, name of the vehicle is KL 01 H,1234, and name of the party is Mr. Hassan; while in the complaint, the name of the said complainant is N. Asar. In his cross examination, 2^nd complainant deposed that the said car in dispute was of 1996 model and that prior to the purchase of the said car by the complainant some 2 or 3 persons were owned and used the same. When asked PW1 about the handwriting in Ext.D1 he said he did not know who had written in it. On being asked about the maintenance of the car, PW1 said that maintenance was done by PW1 himself and that the accident happened not due to lack of maintenance, but PW1 did not furnish relevant paper showing proper maintenance of the said car. In his cross examination by 1^st opposite party, PW1 deposed that he did not know the newspaper news that the accident was happened due to the use of gas, but he admitted that it was on his direction the said vehicle was brought to 1^st opposite party's workshop after the said accident for repair statement. Ext.P9 is the copy of the estimate for accidental repair issued by the 1^st opposite party. It is pertinent to note that complainant has raised allegation of negligence and deficiency in the complaint against 1^st opposie party, while the complainant resorted to 1^st opposite party for repair of the said vehicle even after the accident and for estimate of accidental report. Further PW1 deposed in cross examination that those stated in Ext. P10 are for manufacturing a new car. Complainant never sought expert opinion regarding the cause of accident, nor did complainant apply for appointment of an expert commission to ascertain the reason for damage. The initial onus of proving the case rests on the complainants. In the absence of expert opinion regarding the nature and cause of the accident in connection with the work of the 1^st opposite party we cannot attribute any negligence and deficiency in service on the part of 1^st opposite party. In view of the foregoing discussion we find 1^st complainant is not entitled to get the price of the vehicle from 1^st opposite party. The allegation levelled against 3^rd & 4^th opposite parties is in connection with insurance of the said vehicle. It has also been the case of the complainants that without considering the comunication as per letter dated 4/7/2002 issued by the 4^th opposite party that the vehicle is insurable for a value of Rs. 3,00,000/- for the one year period beginning from 11/7/2002 and a tentative premium of Rs. 6,608/-, 4^th opposite party casually and with malafide intention and without appreciating the prevailing market rate of the vehicle insured the same just for an amount of Rs.85,000/- and collected a premium of Rs.3,823/-. Main thrust of arguments advanced by the counsel appearing for opposite parties 3 & 4 were that the complainant of his own choice, free will and consent had agreed and consented that the vehicle insured with the opposite party which sustained damages and the claims relating to the same was settled on salvage loss basis for Rs.55,000/- towards full and final settlement of all his claims and complainants had accepted the said amount and therefore the complaint is not maintainable.

8. Submission by the complainant is that the 5^th opposite party had compelled the complainants to agree for sale of the wreckage to a party at Coimbatore and fixed the price at Rs.30,000/-, that the complainants were forced to sign in certain documents in order to reduce and nullify the claim at the value of the vehicle demanded by the complainants. PW1 has been vehemently cross examined by 4^th opposite party. In his cross examination, PW1 admitted that the proposal form (Ext.D1) was filled and signed by him, though the vehicle was not in his name. PW1 admitted that Ext.D2 policy was issued on the basis of Ext.D1, and that the policy holder is his son, the 1^st complainant. As per Ext. D2, the policy period is from 12/7/2002 to 11/7/2003, Insured's estimated value is Rs.85,000/- and premium is RS.3,823/-. On a question that did not return the Ext.D2 policy on being found mistakes in the contents of Ext.D2, PW1 replied that "Proposal അനുസരിച്ച്oinalpolicy original policy കിട്ടി. അതിലെ ccontents തെറ്റാണെന്ന്തോന്നി തിരിച്ചേല്‍പ്പിക്കേണ്ട ആവശ്യം വന്നില്ല. PW1 further admitted that "proposal- ല്‍ RsRRs. 85,000/- ആക്കിയത് എന്‍റെ കൈയ്യക്ഷരം തന്നെയാണ്".............. "claims form submit ചെയ്തതും ഞാനാണ് " Ext.D4 is the letter sent by the 1^st complainant to the 4^th opposite party. PW1 admitted that the letter dated 25/3/2003 was signed by the 1^st complainant and PW1 was the witness in it. PW1 also admitted that the consent letter (Ext.D5) was signed by the 1^st complainant. PW1 further admitted that he had received Rs.55,000/- on 25/3/2003 as per Ext.D6 voucher. He also admitted that the voucher was signed in full and final settlement. It is pertinent to note that even after the acceptance of the policy (Ext.D2) from the 4^th opposite party on 12/7/2002, complainant did not challenge the veracity of the policy till the date of accident on 30/1/2003, nor did complainant return the policy to the 4^th opposite party on being found mistakes if any in the contents of the policy. Further, in his cross examination 4^th opposite party explained that the details stated in Ext.P4 was on the basis of previous policy. Ext.D9 is the survey report. As per Ext.D9, surveyor conducted detailed inspection of the vehicle and assessed damages on repair loss basis, total loss basis and salvage loss basis. It is seen stated in Ext.D9 that "Insured expressed his desire to settle claim on salvage loss basis retaining the wreck by him and a letter to that effect dated 6/3/2003 submitted agreeing for the IDV-market value Rs.85,000/- offering Rs.30,000/- for the wreck. The offer is reasonable and I recommend settlement of the claims on salvage loss basis for net amount of Rs.55,000/- only. The wreck retained by the insured and the policy surrendered for cancellation". It is pertinent to note that nothing has been pointed out by the complainanrt as to how the report of the surveyor is defective. Nowhere in Ext.D6 voucher or Ext.D5 consent letter is it mentioned by the complainant that the said amount was received under protest. There was no protest simultaneously or immediately after the acceptance, nor did complainant issue any notice of protest against the settlement of claim to 4^th opposite party prior to filing of the complaint nor did complainant allege fraud or undue influence being brought to bear upon him by the 4^th opposite party. The only reason stated in the complaint was that complainants were forcerd to sign in certain documents. It is to be noted that there was no delay in settling the claim by the 4^th opposite party. 4^th opposite party settled the claim within the reasonable time. Although 4^th opposite party has been cross examined by the complainants nothing has been made out from him to cast cloud over Ext.D2 policy. In support of their version 3^rd & 4^th opposite parties have also submitted decisions of the Hon'ble National Commission in the case of Vipras Corporation Ltd. Vs. National Insurance Company Ltd reported in III (2002) CPJ 367 (NC) and in the case of New India Assurance Co. Ltd and Others Vs. Kusum Distributors and Another reported in II (2007) CPJ 31 (NC). In the light of the above said evidence and in the light of the law discussed in the above decisions of the National Commission we do not find that any case has been made out for this Forum to go behind such full and final settlement. We therefore do not find any merit in this complaint for us to hold that there was deficiency in services on the part of the Insurance Company. 2^nd and 5^th opposite parties were unnecessarily dragged in this complaint, upon which the complaint is bad for misjoinder of unnecessary parties. Complaint has no merit at all which deserves to be dismissed.

In the result, complaint is dismissed. Both parties will bear and suffer their cost in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16^th day of February, 2009.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

O.P.No.156/2003

APPENDIX

I. Complainants' witness:

PW1 : N. Asar

2. Complainants' documents:

P1 : Photocopy of stamp paper worth Rs.50/- dated 23/7/1999

P2 : " letter issued by the 4^th opp. Party dated 4/7/2002

P3 : " renewal notice issued by 4^th opp. Party

P4 : Copy of notice sent to the 4^th opp. Party by the 2^nd complainant dated 5/2/2003

P5 : Photocopy of Labour bill No.7233 dated 30/1/2003

P6 : " Duplicate acknowledgement receipt of money (FORM TR.5) Book No.491/2002 dated 30/1/2003 issued by the Circle Inspector of Police, Traffic Police Station,Tvpm.

P7 : Copy of letter sent to the CI of Police dated 30/1/2003

P8 : Photocopy of abstract of the GD report dated 1/02/2003 issued by the Traffic Police

P9 : Copy of estimate issued by the 1^st opposite party dated 1/02/2003

P10: Copy of power of attorney from the 1^st complainant.

P11: Copy of repair order form dated 30/1/2003.

III. Opposite parties' witness:

DW1 K.R. Natesan

DW2 K.S. John

IV. Opposite parties' documents:

D1 : Photocopy of proposal form with sl.No.32028 submitted by the complainant.

D2 : Copy of policy for the period commencing from 12/7/2002 to 11/7/2003

D3 : Copy of claim form submitted by the complainant

D3(a) Photocopy of estimate dated 1/02/2003

D3(b) Copy of GD abstract of City Traffic Police Station dated 1/02/2003

D3(c) Copy of Fire Force report dated 30/1/2003 with No.48/2003

D4 : Copy of letter dated 25/3/2003 issued by the complainant to the opposite parties.

D5 : Copy of consent letter dated 25/3/2003 issued by the complainant to the opposite parties.

D6 : Copy of discharge voucher dated 23/3/2003

D7 : Photographs of the burned vehicle

D8 : Photocopy of letter dated 6/3/2003 issued to the opposite parties by the complainant.

D9 : Copy of additional notes forming part of survey report dated 13/3/2003.

PRESIDENT