Complaint filed on: 06-05-2023
Disposed on: 22/12/2023
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 22nd DAY OF DECEMBER 2023
:PRESENT:
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER
Consumer Complaint No. 58/2023
Sri. Manju.S, Proprietor of M.M.Dairy Foods,
No.$117, 6th Cross, Hebbal Industrial Estate,
Mysore, Karnataka-570016.,
(By Smt./Kum. Navya.B, Advocate)
V/s
1. The New India Assurance Co., Ltd.,
MYSORE DO II (672400)
13/2, II Main, Temple Street,
V.V.Mohalla, Mysore.
Karnataka-570 002.
2. The New India Assurance Co., Ltd.,
Ward No.18, General Cariappa Road,
Opp. Sreeram Mandir, K.R.Extension,
Tumakuru – 572 101.
3. The New India Assurance Co., Ltd.,
Claims Hub, Regional Office, 2-B,
Unity Building, Annexe,
P.Kalinga Rao Road (Mission Road)
Bengaluru – 560027.
4. The Manager,
Prerana Motors Regio
(A DIV of PIDC)
Commercial Vehicle Dealer,
Sy.No.8/3, plot No.28,
Antharasanahalli Industrial Area,
I Phase, Lingapura Village,
Kasaba Hobli, Tumakuru – 572107.
(OP No.1 to 3 – By Sri. N.V.Naveen Kumar Advocate)
(OP No.4 – By Sri. V.Jagadish Kumar, Advocate)
:O R D E R:
BY SMT.NIVEDITA RAVISH – LADY MEMBER
This complaint is filed by the complainant under section 35 of Consumer Protection Act, 2019 against the Opposite party No.4 for handed over the vehicle to the complainant and to direct the opposite party no.1 to 3 to pay the balance repair charge amount of Rs.62,140-00 to the opposite party no.4 and further prayed to direct the opposite parties to pay Rs.6,00,000-00 as compensation to the complainant.
2. The opposite parties no.1 to 3 are the insurers for vehicle purchased by the complainant (hereinafter called as OP No.1 to 3) and opposite party No.4 is the vehicle dealer (hereinafter called as OP No.4).
3. It is the case of the complainant that, the complainant is the proprietor of M.M.Dairy Foods, Mysore and to supply his Dairy products throughout Karnataka he has purchased vehicle bearing Reg.No.KA-09AA-0458. The said vehicle was insured by the OP No.1 to 3 and same vehicle was met with an accident on 13-05-2022 in ring road Tumkur. The complainant tolled the said vehicle to OP No.4 and OP No.4 has made cost of estimation for Rs.2,17,000-00 for repair of the vehicle. The complainant has informed about accident of vehicle and estimation made for repair, to the OP No.1 to 3 and OP Nos. 1 to 3 have made mahazar for the same. The OP No.4 has taken the possession of the said vehicle in the presence of complainant and OP No.1 to 3. After completion of the repair the OP No.4 has not handover the vehicle to the complainant for the reasons that, there was not done payment for the repair of the vehicle. The complainant approached the OP Nos.1 to 3 for payment of repair charges. But OP Nos.1 to 3 were told that, they have already sent insured amount to OP No.4, OP Nos.1 to 3 not informed details with respect to payment of repair charges by OP Nos.1 to 3 to OP No.4. Though asking and requesting by the complainant OP Nos.1 to 3 have not gave the UTR number for paying the said insurance amount. Though asking to the OP No.4 for whether they have received any insurance amount, the OP No.4 also gave evasive answer and told that they have not received any amount and rejected to handover the vehicle to the complainant. When complainant send the legal notice to OP Nos.1 to 4, the OP Nos.1 to 3 were not replied. But OP No.4 has replied the legal notice sent by complainant that, the OP No.4 has made final bill report with respect to repair charges of said vehicle for Rs.2,52,140-00 and OP No.4 send bill to OP Nos.1 to 3 and out of which Rs.1,90,000-00 has been paid by the OP Nos.1 to 3 to another branch at Nagamangala of OP No.4. The OP No.4 has not informed these facts till the complainant got issued legal notice, and OP Nos.1 to 3 were not paid balance repair charges to the OP No.4 as per the insurance policy and OP No.4 has not handed over the repaired vehicle to the complainant, which causes great harm to the complainant, Hence this complaint.
4. After receiving the notice from this Commission the OP Nos.1 to 3 and OP No.4 were appeared before this Commission through their respective counsels and filed their versions.
5. The OP Nos.1 to 3 have admitted that, they have insurers for the Trade bearing Reg.No.KA-09-AA-0458 and denied all other allegations made by the complainant as false. Further the OP Nos.1 to 3 were submitted that, after the receipt of the information about accident of vehicle, the OP Nos.1 to 3 have registered the claim and immediately appointed the IRDA surveyor to assess the loss, as per the report submitted by the IRDA approved Surveyor OP Nos.1 to 3 have settled the claim of the complainant by paying sum of Rs.1,90,000-00 to the OP No.4 on 14-12-2022 and with regard to balance amount of Rs.62,140-00 was not admissible to pay as per the survey report. Further OP Nos.1 to 3 have submitted that, the complaint is barred by the limitation, because they have repudiated the claim of the complainant vide letter dated 30-08-2019 and the complaint is not maintainable either in law or on facts. Hence, OP Nos.1 to 3 have prayed for dismissal of the complaint against OP Nos.1 to 3 with the exemplary costs.
6. The OP No.4 has raised the preliminary objections in his version as complaint is not maintainable as because the complainant has not consumer within the meaning of the term ‘Consumer’ as defined under section 2(7) of the Consumer Protection Act, 1986 and said vehicle was purchased by the complainant for purpose of business of the complainant which was in nature of Commercial purpose. Further OP No.4 has submitted that, he has raised an invoice of Rs.2,52,140-00 for repair of the complaint’s vehicle subsequently, OP No.4 had requested the OP Nos.1 to 3 herein to make payment of repair work on multiple occasions. However, the OP Nos.1 to 3 has failed to make the payment. Further, submitted that as per asked by the OP Nos.1 to 3 the complainant has collected the new Chassis Number for updating the records of B-extract at RTO-office and after so many communications the OP Nos.1 to 3 have informed that they have transfer an amount of Rs.1,90,669-00 to the account of the parent company of the OP No.4 on 20-12-2022. Further, OP No.4 has submitted that, he has given reply to the legal notice issued by the complainant and there is balance of Rs.61,471-00 yet to be paid by the OP Nos.1 to 3. Further OP No.4 has submitted that, till the balance amount is paid, OP No.4 cannot release the vehicle. Due to delay on the side of the OP Nos.1 to 3, the vehicle is still lying in the workshop of Op No.4 and it was already informed to the complainant that the OP No.4 will be forced to levy parking charges of Rs.250-00 per day if the vehicle is not collected within three days of intimation. Hence, OP No.4 has prayed for dismissal of the complaint against OP No.4.
7. Complainant has filed his affidavit evidence with 8 documents, which are marked as Ex.P1 to Ex.P8. Further, the complainant has filed memo with copies of arrangements of vehicles for daily transportation. One Shri.Gopinath.K. Assistant Manager Service, of OP No.4 has filed his affidavit evidence on behalf of OP No.4 with 5 documents, which are marked as Ex.R1 to Ex.R5.
8. Complainant, and OP No.4 has filed their respective written arguments. On perusal of the written arguments by complainant and OP No.4 the point would arise for determination as follows;
- Whether complainant proves the deficiency of service on the part of OPs?
- Is complainant entitled to the relief sought for?
- Our findings on the aforesaid points are as under:
Point No.1: Partly Affirmative
Point No.2: Partly Affirmative, as per the final order
for the following;
:REASONS:
10. Point No.1 and 2:- The contention of the complainant is that, the complaint has purchased the TATA MOTOR/TATA INTRA V30 TRUCK Registration No.KA-09AA-0458 in 2022 and the same vehicle has met with an accident on 13-05-2022. The same contention of the complainant was admitted by the all OP/s. Further, counsel for the complainant has submitted that, he has toed the said vehicle to OP No.4 for repair and OP No.4 has made estimation for Rs.2,17,000-00. Ex.P6 copy of the estimation issued by the OP No.4 produced by the complainant reflecting that, the OP No.4 has estimated grand total as Rs.2,69,064-00 for repair of vehicle bearing No.KA09AA-0458 on 04-06-2022. Further, the counsel for the complainant has contended that, the complainant has informed the OP No.1 to 3 who were the insurer of the said vehicle and the OP No.1 to 3 were appointed the surveyor for the assessment of repair charges of damaged vehicle. The OP No.1 to 3 and OP No.4 were also admitted the same and Ex.P5/ copy of Loss Assessment Final Report given by the Surveyor one Shri.R.Santhosh establishes that, the loss assessment made as for Rs.2,17,000-00 for repair of the said vehicle. Further, the counsel for the complainant has argued that, after the repair of the vehicle the OP No.4 has not handed over the vehicle to the complaint for the reasons that nobody has paid the assessed repair amount of said vehicle and the complainant has approached the OP No.1 to 3 for asking the payment of assessed amount for repaired vehicle. But the OP No.1 to 3 have told that they have already send the insured amount to the OP No.4. Though asking by the complainant, the OP No.1 to 3 have not given UTR number for paying the said amount nor has given any information about sent amount. Annexure of Ex.P7/ copies of the email Communications filed by the complainant proves that, the complainant has approached the OP Nos.1 to 3 for payment of assessed amount for repaired vehicle. The OP Nos. 1 to 3 were failed to produced any documents to show that, they have informed the complainant about payment.
11. Further the counsel for the complainant has argued that, after issuing the legal notice, the OP No.1 to 3 has not replied for the legal notice but OP No.4 has replied for the legal notice of the complainant and the OP No.4 has informed the complainant as OP No.4 has sent final report for Rs.2,52,140-00 to the OP No.1 to 3 and OP No.1 to 3 were paid only Rs.1,90,000-00 to the another branch of OP No.4 Nelamangala. The OP No.1 to 3 are liable to pay remaining balance of Rs.62,140-00 to the OP No.4. But neither complainant nor OP No.4 are filed the copy of the final bill report for Rs.2,52,140-00.
12. OP No.1 to 3 have submitted that, they have received a claim for damages of the insured vehicle from complainant as well as OP No.4, immediately after the receipt of the information the OP No.1 to 3 have registered the claim with claim number 67240031220390000025 and immediately appointed the IRDA surveyor to assess the loss, as per the report submitted by the IRDA approval surveyor OP No. 1 to 3 have settled the claim of the complainant by paying a sum of Rs.1,90,000-00 to OP No.4 on 14-12-2022. But on perusal of Ex.P5/ copy of Loss Assessment Final Report issued by the Surveyor is for Rs.2,17,000-00 and Ex.P5 is not objected by the OPs. But the OP No.1 to 3 has paid only Rs.1,90,000-00. Hence, as per Surveyor assessment report the OP No.1 to 3 are liable to pay balance of Rs.27,000-00 to OP No.4 which was not paid by the OP No.1 to 3 till the date. Further, the complainant and OP No.4 have submitted that, the OP No.1 to 3 have sent Rs.1,90,000-00 to the another branch of OP No.4 at Nelamangala. The OP No.1 to 3 have not produced any document to show that, they have sent Rs.1,90,000-00 to OP No.4 at Tumkur branch. Ex.R1/copy of the job card produced by the OP No.4 is reflecting that, the job card issued by the OP No.4 Tumkur branch and annexure of Ex.R2/copies of Email Communications by OP No.4 are also showing address of Tumkur branch of OP No.4. When the OP No.1 to 3 were received claim from OP No.4 Tumkur Branch, it is the duty of the OP No.1 to 3 to pay the insurance amount to the OP No.4 Tumkur branch which was not done by the OP No.1 to 3 is amount to deficiency in service on the part of the OP No.1 to 3 and the complainant suffered by not paying the balance amount of assessed insurance amount to OP No.4. Hence, the OP No.1 to 3 were jointly and severally liable to pay the balance assessed insurance amount of Rs.27,000-00 with interest at 9% PA to the complainant from the date of complaint to till realization and also liable to pay the compensation.
13. OP No.4 has raised the objection as complaint is not maintainable as the complainant is not a consumer within the meaning of the term ‘consumer’ as defined under section 2(7) of the Consumer Protection Act, 1986 as complainant purchased the said vehicle for business purpose and it is comes under the purview of commercial purpose. But in the time of admission of the complaint, the counsel for the complainant has argued that the complainant has purchased the commercial vehicle to run his business which is for his livelihood and the OP No.4 has not produced any document to show that, the complainant is doing another job or business for his livelihood. Hence we have considered that, the complainant is the ‘Consumer’ under the section 2(7) of the Consumer Protection Act, 2019. Further, OP No.4 has submitted that, they were updated the B extract at RTO office as requested by the OP No.1 to 3 and approached several time to the OP No.1 to 3 to pay the final bill amount of Rs.2,52,140-00. Annexure of Ex.R2/ copies of e-mail communications produced by the OP No.4 are proves that, the OP No.4 has approached the OP No.1 to 3 for several time. But the OP No.4 has not produced the final bill report for Rs.2,52,140-00. Hence it is not believable the OP No.1 to 3 has liable to balance of Rs.61,471-00. But as per the Ex.P5 the OP No.1 to 3 are liable to pay Rs.27,000-00 to OP No.4. The complainant has made allegation that, he OP No.4 has not release the vehicle of the complainant after the repair. It is the duty to pay the entire repair charges to OP No.4 either by OP Nos.1 to 3 or by the complainant. Neither OP Nos.1 to 3 nor the complainant has paid entire charges of repair of the damaged vehicle. Hence, we have not found any deficiency in service on the part the OP No.4 in the non releasing the vehicle of the complainant. Hence, complainant against the OP No.4 is liable to be dismissed.
14. The complainant has prayed for compensation of Rs.6,00,000-00 for the deficiency of service done by the Ops. Further the counsel for the complainant has argued that, the OP No.4 has not released the vehicle of the complainant for not paying the balance repair charges by OP No.1 to 3 and by non releasing of the vehicle, the complainant has made another arrangement to run his business by hiring other vehicles and met with huge loss. To prove the same the complainant has produced copy of account ledger, which is reflecting that, Rs.9,61,418.21 was paid to Suvarna Traders from 06-09-2021 to 31-3-2023, Rs.2,22,533-80 was paid to Harsha enterprises from 06-01-2023 to 31-03-2023, Rs.11,62,145.89 was paid to Yogashree Enterprises from 01-06-2022 to 31-03-2023. But the complainant has an opportunity to pay the balance repair charges to OP No.4 and get back the vehicle for his business. Though having an opportunity, the complainant has not used the same. Hence prayer for compensation for Rs.6,00,000-00 is not considered. But for the wrongful act of the OP Nos. 1 to 3, the complainant suffered a loss. Considering the mental agony caused to the complainant, the OP No.1 to 3, the OP No.1 to 3 are liable to pay the compensation of Rs.15,000-00 to the complainant. Being the responsible person, though after issuing the legal notice by the complainant, the OP No.1 to 3 were not replied and compelled the complainant to approach this commission. Hence, the OP Nos.1 to 3 are liable to pay Rs.10,000-00 as litigation cost to the complainant. Accordingly we proceed to pass the following;
:ORDER:
The complaint filed by the complainant is allowed in part with cost against the OP Nos.1 to 3.
The complaint against OP No.4 is dismissed.
It is directed that, the OP Nos.1 to 3 jointly and severally shall pay Rs.27,000-00 with interest @ 9% PA from the date of complaint to till realization to the complainant.
It is further directed that, OP Nos.1 to 3 shall jointly and severally pay a sum of Rs.10,000-00 towards litigation cost and Rs.15,000-00 towards compensation to the complainant.
Further, it is also directed that the OP Nos.1 to 3 shall jointly and severally comply the above order within 45 from the date of receipt/knowledge of the above order.
Furnish copy of this order to both parties at free of costs.
