IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Sri. A.T. Madan s/o. A.D. Thimmaiah, aged 24 years resident of 1^st Monnangeri Galibeedu Village, Madikeri Taluk, Kodagu District against the opponent no.1 Arvind Motors Pvt.Ltd., Madikeri and opponent No.2 ICICI Lombard General Insurance Company Ltd., Bengaluru with a prayer to order to pay the repair cost of Rs.41,000/- and pay compensation for loss occasioned by the negligence of the opponents for three months.

2. The complainant has purchased Tata ACE vehicle bearing registration No.KA 12 B 5960 of 2017 model from the opponent no.1 Arvind Motors.  That on 14/05/2018 the said vehicle was met with accident at Kodagarahalli Junction while it was going to Kushalnagar from Madikeri.  Due to heavy rain the complainant who was driving the vehicle lost control over it as a result, it turned turtle to left side and consequently the vehicle was damaged.

3. The complainant has taken insurance package policy from the opponent no.2 for the period from 18/01/2018 to 17/01/2019 and on the date of accident the policy was in force.  The vehicle was left in the show room of opponent no.1 for repairs and they estimated total cost of repairs including spare parts a sum of Rs.56,676/-.  The opponent no.1 has kept the vehicle for three months since painting has to be done at Cauvery Care Centre.  The opponent no.1 has collected Rs.10,000/- as advance payment.  Though the vehicle was repaired within a month but the opponent no.1 has not handed over to the complainant expecting reimbursement from opponent no.2.  Though the opponent no.2 was aware of the accident and the vehicle being repaired at the garage of opponent no.1 did not care to indemnify the repair charges hence, this suit.

4. The opponent no.1 filed written statement/version denying the allegations that it has collected Rs.10,000/- from the complainant as advance payment for repair of the vehicle and though it attended the repairs within a month did not handed over to the complainant.  It is the contention of opponent no.1 that the complainant has used the said vehicle for commercial purpose as such this Forum is not having jurisdiction. 

5. The next contention of opponent no.1 is that on intimation of the accident it has inspected the vehicle  and in turn intimated the opponent no.2.    This opponent has made estimation for a sum of Rs.58,676/- which includes the price of spare parts and labour charges.  The opponent no.2 did not issue work order to this opponent as such it did not undertake repairs.  Lastly opponent no.2 refused to accept the claim of the complainant.  There after the complainant took the vehicle from the garage of opponent and got it repaired elsewhere.  However the complainant has purchased spare parts from this opponent for which it has issued bills.  The opponent no.1 is no way concerned to the claim of complainant since the opponent no.2 refused to entertain the claim of complainant.  There is no cause of action against this opponent to file the complaint.

6. The opponent no.2 filed separate written version contending that the vehicle bearing registration No.KA 12 B 5960 is a goods vehicle which exclusively used for commercial purpose as such the complaint is not maintainable before this Forum.  The opponent no.2 admitted that the vehicle in question belonging to the complainant was insured with this opponent, but the claim is subject to the terms and conditions, exceptions and limitations thereof.  The opponent denied that the policy covers for the entire vehicle for the damages from bumper to bumper.  The opponent denied that the opponent no.1 estimated damages including spare parts and labour charges at Rs.58,676/-.  This opponent is not aware of the fact that the vehicle was kept for three months with the opponent no.1.

7. It is further contention of opponent no.2 that the complainant has violated the terms and conditions of the policy as such he is not entitled to claim any benefits under the policy.  On the date of accident the vehicle was driven by one Mr.Umesh who had no driving license to drive the vehicle on the date of accident.  The complainant implanted himself as driver by suppressing the material facts with intention to get wrongful gain.  Therefore the repudiation of the claim is fair and proper and no deficiency in service on the part of opponent.

8. It is the contention of opponent that the complainant has suppressed the fact of earlier incident and preexisting claim bearing No.MOT07487304 on 07/04/2018 with different driver name R. Mahadeva Swamy and it is still in open status.  The surveyor of opponent has assessed the total damages at Rs.9,057/- and the said amount has been directly paid to the workshop vide cheque dated 01/08/2018 drawn on Kotak Mahindra Bank, Mangalore on behalf of the complainant.  This opponent has already indemnified the actual loss as such there is no further liability on the part of this opponent.  On the amongst other grounds, the opponent asked to dismiss he complaint.

9. To prove their respective allegations, the complainant filed his affidavit in lieu of evidence and got marked exhibits P1 to P16 documents. On behalf of opponent no.1 Arvind Motors its Manager Mr.N. Rajaram Madhyastha, aged 43 years filed affidavit evidence.  On behalf of opponent no.2 ICICI Lombard Insurance Company its Legal Manager one Gururaj Shetty s/o. Jaganatha Shetty filed affidavit in lieu of evidence and got marked exhibits R1 to R6 documents. 

10. We heard the arguments advanced by the learned counsel representing the complainant and opponent nos.1 and 2 and the points that would arise for determination are as under;

1. Whether the complainant proves that the act of opponent No.2 disallowing his claim for Rs.41,000/- amounts to  deficiency in service?

2. Is complainant entitled to the relief sought for?

3. What order?

11. Our findings on the above points is as under;

• Point No.1:- In the partly Affirmative
• Point No.2:- In the partly Affirmative
• Point No.3:- As per final order for the below

R E A S O N S

12. Point No.1 to 3:- The learned counsel for the complainant submitted that though the vehicle of the complainant covered risk for the damages in an accident but the opponents have refused to pay the repair charges.  As against this the learned counsel for the opponent no.1 argued that the opponent no.2 has refused the claim of complainant as such without repairs this opponent has returned back the vehicle to the complainant on his request.  For non-settlement of claim by opponent no.2 this opponent no.1 is not liable to pay the claim amount.  The learned counsel for the opponent no.2 representing insurance company vehemently argued that the complainant has not reported the accident to this opponent immediately.  The opponent has investigated the claim and assessed loss in the accident to the tune of Rs.9,057/- and same has been paid to the workshop owner.  The complainant with intention to get wrongful gain has produced created bills marked at exhibits P6 to 10.

13. The first contention of opponent no.1 and 2 is that the complainant has used the vehicle for commercial purpose as such this Forum has no jurisdiction to entertain the complaint.  It is admitted by the complainant that he purchased a vehicle for commercial purpose.  Exhibit P3 is copy of statement of account issued by State Bank of India, Branch Madikeri which indicates that the complainant has availed loan of Rs.2,50,000/- on 16/01/2018 for purchase of the said vehicle.  The cost of the vehicle is Rs.5,29,000/-.  It is evident from the averments of complaint and exhibit P3 that the complainant has purchased light motor goods vehicle for his lively hood.  Therefore, the complainant falls under the definition of consumer since the opponents have not produced any other materials to show that other than this vehicle the complainant own other vehicles for commercial purpose.

14. According to the averments of complaint paragraph no.4 and affidavit evidence the vehicle bearing registration No.KA12 B 5960 has met with accident on 14/05/2018 at Kodagarahalli junction, Madikeri Taluk.  The opponent no.2 has admitted that the vehicle which met with accident had insurance coverage on the date of accident.  The complainant produced exhibit P2 estimation towards the repair of TATA ACE bearing registration No. KA 12 B 5960 issued by opponent no.1 Arvind Motors Ltd., for Rs.58,676/- which includes parts and labour charges.  Exhibit P2 estimation has been issued on 19/04/2018 but the date of accident mentioned in the complaint and affidavit evidence is subsequent to the date of estimation letter i.e. 14/05/2018.  Therefore, the date of accident of the vehicle is doubtful.

15. The complainant marked exhibit P4 tax invoice issued by opponent no.1. The complainant has produced exhibit P4 part of tax invoice dated 10/07/2018 whereas the opponent no.2 Insurance Company produced same tax invoice marked at exhibit R2.  Exhibit R2 reveals the cost of repairs a sum of Rs.15,032/-.  We can found job card number in exhibit P4 and R2 bearing No.JC-ArvinM-MD-1819-000920 dated 10/07/2018.  Exhibit R2 contained three sheets and last sheet contained gate pass and the vehicle was delivered to the complainant on 10/07/2018.  The complainant in paragraph No.6 of the complaint specifically stated that the opponent no.1 has kept vehicle for three months since painting has to be done at Cauvery Car Care Centre and in all they have issued a bill for Rs.41,000/-.  In the next paragraph No.7 it is stated that though the vehicle was repaired within a month but the opponent no.1 has not handed over the vehicle to him expecting reimbursement from coverage company.  Exhibits P6 to 10 bills produced by the complainant are contrary to the averments of paragraph 6 and 7 of the complaint.  Exhibit P6 estimate dated 15/05/2018 issued by Cauvery Car Care Centre, Madikeri for Rs.2,011/- for glass gum.  Exhibit P7 cash memo dated 16/05/2018 issued by the Auto Service and Agency for Rs.910/-.  Exhibit  P8 another estimate dated 17/05/2018 issued by Cauvery Car Care Centre, Madikeri for Rs.12,000/- towards left side wall replacing welding etc. and exhibit P10 cash bill dated 17/05/2018 issued by Vijaya Vinayaka Auto Care Madikeri for Rs.3,000 towards electric fitting charges. 

16. If exhibits P6 to 10 are perused the complainant has purchased some spare parts from other auto services shops and brought estimate report with regard to painting etc in between 15/05/2018 to 17/05/2018.  According to exhibits P4 and R2 job card issued by opponent no.1 dated 10/07/2018 the total cost of the repairs is Rs.15,032/-.  The complainant in the complaint and affidavit evidence stated that though the vehicle was repaired by the opponent no.1 within one month from the date of accident it kept the vehicle for three months expecting reimbursement from the opponent no.2.  This contention of complainant is supported by exhibits P4 and R2 as the date of delivery of vehicle to the complainant is on 10/07/2018.

17.  It is evident from exhibits P6 and P8 that Cauvery Car Care Centre has gave only estimation for painting and purchase of glass gum on 14 and 17/05/2018.  It indicates that within one month from the date of accident the vehicle was not repaired if the date of accident is accepted as on 14/04/2018.  Therefore, exhibits P7, 9 and 10 are authenticated bills since exhibit P9 addressed to the opponent no.1 and exhibit P10 pertains to electrical fitting charges.  The surveyor of opponent no.2 has inspected the vehicle on 23/04/2018 and assessed the damages to the extent of Rs.9,057/- vide exhibit R4 report.  The opponent no.2 has issued cheuqe for Rs.9,057/- vide exhibit R3 document. 

18. The complainant produced exhibit P5 receipt dated 29/04/2018 issued by the opponent no.1 for receiving Rs.10,000/- as advance  payment of accident vehicle bearing No.KA 12 B 5960.  The opponent no.1 in the written version has denied not only receipt of Rs.10,000/- as advance amount but also repairing the said vehicle.  However the opponent no.1 has admitted preparing exhibit P2 estimation towards the repair of the said vehicle for Rs.58,676/.  It is the contention of opponent no.1 that when the opponent no.2 Insurance Company refused to concede the claim of complainant without repairs he handed over the vehicle to the complainant.  This stand taken by opponent no.1 Arvind Motors is contrary to exhibits P4 and R2 tax invoice.  According to this document the opponent no.1 has repaired the vehicle and on receipt of Rs.15,032/- has handed over the vehicle to the complainant on 10/07/2018.  Therefore, the defence taken by opponent no.1 that he did not receive advance payment of Rs.10,000/- vide exhibit P5 document and not repaired the vehicle is not acceptable.  Exhibit P5 is on the letter head of Arvind Motors and it also bears round seal of the said Motors.  The Authorized person who received the advance payment of Rs.10,000/- has put his signature on the seal.  In view of exhibit P5 the opponent No.1 shall liable to return the advance amount of Rs.10,000/- received from the complainant on 29/04/2018.

19. On overall perusal of the documents produced by the complainant it can be said that he has not spent Rs.50,000/- as alleged in the complaint towards repair of the damaged vehicle.  On the contrary his own document exhibit P4 (exhibit R2) the opponent no.1 has charged Rs.15,032/-.  It is evident from exhibit P4 and R2 that the opponent no.1 has charged Rs.15,032/- for repair of the vehicle which met with accident on 14/04/2018.  The opponent no.2 has reimbursed Rs.9,057/- to opponent no.1. However the remaining amount has paid by the complainant a sum of Rs.5,975/-.  The complainant has paid exhibits P7, 9 and 10 bill amount for paying electrical fitting charges, welding charges etc. a sum of Rs.15,910/-. Therefore, the opponent no.2 shall liable to pay a sum of Rs.21,885/- to the complainant along with interest at the rate of 12% per annum from 01/05/2018 till the date of payment.   That apart the opponent no.1 and 2 shall equally liable to pay a sum of Rs.10,000/- towards cost of this proceedings.  For the foregoing reasons, we proceed to pass the following;

O R D E R

1. The complaint filed by Sri.A.T. Madan s/o.A.D. Thimmaiah is partly allowed directing the opponent no.2 to pay a sum of Rs.21,885/- with interest at the rate of 12% per annum from 01/05/2018 till the date of payment.
2. The opponent no.1 and 2 shall liable to pay a sum of Rs.10,000/- as cost of this proceedings to the complainant within two months from the date of order otherwise, it carries interest at the rate of 12% per annum from the date of  filing of this complaint till payment.
3. It is further ordered that the opponent no.1 directed to return a sum of Rs.10,000/- to the complainant within two months from the date of order.  In case it fails to comply with the same it carries interest at the rate of 12% per annum from the date of filing complaint till payment.
4. Furnish copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 23^rdday of MARCH, 2019)

                                                      (C.V. MARGOOR)

                                                          PRESIDENT 

                                                    (M.C. DEVAKUMAR)

                                                             MEMBER