KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 669/2015
JUDGMENT DATED: 25.09.2023
(Against the Order in C.C. 419/2013 of CDRC, Ernakulam)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANT:
Afsal V.K., S/o Koyan, Valamkottil House, Arackapady, West Vengola P.O., Ernakulam-683 556.
(By Advs. Roy Varghese & Narayan R.)
Vs.
RESPONDENTS:
- The National Insurance Co. Ltd., Flat No. 101/106 N-1, BMC House, Connaught Place, New Delhi.
- The Branch Manager, National Insurance Co. Ltd., M.G. Road, Ernakulam.
(By Adv. Prasanna Kumar Nair for R1 & R2)
- Indus Moto Co. Pvt. Ltd., Opp: Silversand Island, Near OEN Company, Vyttila, Cochin-19.
JUDGMENT
SRI. AJITH KUMAR D.: JUDICIAL MEMBER
This is an appeal filed by the complainant in C.C. No. 419/2013 on the file of the District Consumer Disputes Redressal Commission, Ernakulam (will be referred to as District Commission for convenience) against the order dated 18.03.2015 dismissing the complaint.
2. The case of the complainant in short is as stated below:
He is the registered owner of a Maruti Ritz car bearing Registration No. KL 40/ F 7677 which was purchased from the third opposite party for a sum of Rs. 5,51,589/-. The vehicle was insured with the second opposite party. The value of the car as shown in the insurance policy was Rs. 5,24,009/-. On 29.12.2012 the vehicle met with an accident and it was brought to the yard of the third opposite party on 01.01.2013 for effecting repair works. The third opposite party had prepared a service estimate for Rs. 4,98,896/- for effecting repairs. But the insurance company i.e; the first and second opposite parties did not approve the estimate. So the work could not be carried out.
3. Thereupon the complainant caused issuance of a lawyer notice requesting the opposite parties to complete the repair work on the basis of the estimate prepared by the third opposite party. On receipt of the notice the first and second opposite parties, through their surveyor and valuer, intimated the complainant that instructions had been given to the third opposite party to carry out the work. But the repair work of the vehicle was never carried out since the first and second opposite parties had difference of opinion with the third opposite party in respect of the estimate prepared by the third opposite party. The vehicle was fully insured through a bumper to bumper policy. Arrangements for insurance policy and other initial formalities were done by the third opposite party.
4. According to the complainant the opposite parties are bound to give proper service and repairs to the vehicle. The third opposite party was bound to entrust the vehicle to the complainant after effecting repairs to his vehicle. The rift between the first and second opposite parties with the third opposite party was the reason for depriving the complainant from getting his vehicle repaired. Therefore the complainant had sought for a direction to the opposite parties to repair the vehicle and entrust the same to him. An alternative prayer was also made to pay the complainant a sum of Rs. 5,70,000/- to close the loan availed by him for purchase of the vehicle. He had also sought for Rs. 75,000/- as travel expenses @ Rs. 500/- per day as he was unable to use his car.
5. The first and second opposite parties filed a version admitting the existence of a valid insurance policy and that the third opposite party had submitted an estimate as Rs. 4,98,896/- as repair charges for the insured vehicle. According to them the assessment of the third opposite party regarding the cost of repairs was only mere projection of costs which may likely to occur. The qualified insurance surveyor had inspected the vehicle and assessed the loss and recommended an amount payable for the repairs which fact was intimated to the third opposite party. There was no rift between the opposite parties 1 & 2 with the third opposite party. The surveyor had already instructed the third opposite party to repair the vehicle and to submit additional estimate if anything else is needed. According to them there is no deficiency of service and the adamant attitude and greed of the complainant had created the situation for which the opposite parties are not responsible.
6. The third opposite party, the dealer would admit that they had prepared an estimate of Rs. 4,98,896/- as the funds required for repairs. According to the third opposite party the work could not be conducted as the complainant never gave confirmation to do the work with readiness to pay the balance, if any, after adjusting the amount allowed by the insurance company. The complainant insisted that the work could be started only after getting the report from the insurance company. According to the third opposite party there was no contractual obligation for them to repair the vehicle and the work could not be commenced for want of confirmation from the complainant and they also sought for dismissal of the complaint.
7. The complainant got himself examined as PW1 before the District Commission, Exts. A1 to A10 were also marked on his side. The insurance surveyor was examined as DW1 and Exts. B1 to B7 were marked for the opposite parties 1 & 2.
8. The complainant would assail the finding of the District Commission for not appreciating the conduct of the first and second opposite parties in not paying the amount assessed by the surveyor for repairs to the third opposite party. According to him the District Commission had failed to consider the duty of the third opposite party to effect repair to his vehicle as the said party was the authorized service centre of the vehicle. The direction of the District Commission to approach the Civil Court, according to him is also wrong. The complainant would contend that the District Commission had even failed to consider that the complainant is a consumer.
9. The records from the District Commission were called for and perused. The first and second opposite parties appeared through counsel. The third opposite party remained absent during the appellate stage.
10. Heard both sides. Complainant had given evidence in support of the complaint. Exts. A1 to A3 are the copies of the invoice, Registration Certificate and insurance certificate of the motor car of the complainant. Ext. A4 is a certificate issued by the Station House Officer, Masinagudi Police Station that the car driven by the complainant had involved in an accident. Ext. A5 is the job card and Ext. A6 is the estimate prepared by the third opposite party. Exts. A7 & A8 are the copies of the lawyer notices issued by the complainant to the first and second opposite parties. Ext. A9 is the copy of the letter dated 18.04.2013 issued by the insurance surveyor to the third opposite party to start the repair works of the car. Ext. A10 is the statement of account in respect of the loan availed by the complainant.
11. The opposite parties 1&2 had examined their insurance surveyor as RW1. Exts. B1&B2 are the insurance policy and the schedule in respect of the car. Ext. B3 is the claim form put in by the complainant. Ext. B4 is the report prepared by the insurance surveyor. Ext. B5 is the copy of the Email dated 18.03.2013 to the third opposite party to commence the repair work wherein it is clarified that if the third opposite party needs further replacement of parts during the repair that may also be communicated to him. Ext. B6 is the copy of the reply sent by the opposite parties 1&2 to the lawyer notice issued by the complainant. Ext. B7 is another letter dated 18.04.2013 issued by the insurance surveyor to the third opposite party to effect repair work without delay.
12. The evidence on record would show that the repair work could not be carried out due to the protest of the complainant. According to the third opposite party work could be commenced only after getting the consent of the complainant. There is no case in the complaint that the complainant had given consent to the third opposite party to start the repair works. The complainant cannot insist that the work should be conducted only by the third opposite party. No fault could be attributed on the part of the first and second opposite parties as they had promptly initiated the required action to honour the claim. They had deputed an authorized surveyor who inspected the vehicle and assessed the amount required for effecting the repair. They had also granted permission to raise additional claim, if any other expenses occur due to the changing of parts other than those referred in the report of the surveyor. Though such a positive stand was taken, the third opposite party was not permitted by the complainant to start the repair. If the complainant was not willing to avail the service of the third opposite party he could have chosen another authorized dealer to effect the repair work. The complainant did not resort to such an alternative course also. It is seen from the evidence available that after meeting with an accident the complainant was not acting like a man of ordinary prudence to initiate steps to effect repairs to the vehicle through taking proper steps. Instead he took an adamant stand in not giving consent to the dealer to effect repairs to the vehicle on a fear that he may have to face additional expenses.
13. On evaluating the aforesaid facts and circumstances we could not find any deficiency of service on the part of the opposite parties so as to make them liable for any compensation. The entire complications arose on account of the adamant stand taken by the complainant in not granting permission to the third opposite party for effecting repair. But the District Commission did not answer the issue as to whether there is any deficiency of service. Instead it arrived at a finding that the matter could be decided only by a Civil Court. This finding does not appear to be correct.
14. So, we do not affirm that portion of the order of the District Commission. But we affirm the final outcome of the order as to the dismissal of the complaint on the reason that the complainant had failed to adduce evidence to prove any deficiency of service or unfair trade practice on the part of the opposite parties.
In the result, the appeal fails and is accordingly dismissed. The parties shall bear their respective costs.
AJITH KUMAR D.: JUDICIAL MEMBER
jb BEENA KUMARY. A : MEMBER
