Date of Filing:17.09.2007<br /> Date of Order: 29.02.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 29th DAY OF FEBRUARY 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 1930 OF 2007 <br /> <br /> Smt. Vasudha.M. Shah,<br /> W/o Mahesh M. Shah,<br /> R/at No.H/4, III Cross,<br /> Ramakrishnapuram,<br /> Opp: Kapali Theater, <br /> Bangalore-560 009. Complainant.<br /> <br /> -V/s-<br /> <br /> The Oriental Insurance Co. Ltd.,<br /> CBO-13, No. 1185, 26th Main Road,<br /> 9th Block, Jayanagar,<br /> Bangalore. Opposite Party.<br /> <br /> ORDER<br /> By the Member Sri. Balakrishna.V. Masali<br /> <br /> This complaint is filed by the complainant Under Section 12 of the Consumer Protection Act seeking Rs.1,50,000/- towards repair charges, pain, sufferings, harassment, and other legal expenses on the following grounds:-<br /> The complainant is the owner of the car bearing registration No. KA-02 Z-8145, Model - Tata Indigo LS of 2004 make. The car was just one and half year old and was in excellent showroom maintenance. The car of the complainant was insured with the opposite party by means of Comprehensive Insurance Policy bearing No. 14051/2007 valid from 11.01.2007 to 10.01.2008. The complainant has also produced the Certificate-Cum-Policy Schedule issued by the opposite party on payment of one time premium amount of Rs.9,744/-. <br /> The complainant is residing in apartment No.202, Janak Residency, # 2, Kumara Krupa Road, Bangalore and the car was parked in the driveway on 05.02.2007. A construction of a commercial building was being put up in the adjacent property of about 7 floors. On 05.02.2007 at around 3.00 AM in the early dawn, when the concrete was being freshly laid for the sixth floor slab, the centering of cement concrete of 6th Floor gave away and the entire wet cement concrete fell on the car of the complainant, thereby completely damaged the car. All the windshields were damaged. The roof caved in, the sides of the car, the bonnet, the boot, were damaged by the concrete and the wet cement concrete covered the entire car and hardened. In view of the damage to all the windows and the windshields the cement concrete filled in the car. The wet concrete dried up by the morning making it impossible to be removed by wash. In view of the said total damage to the car the complainant has filed a complaint with the jurisdictional Sub Inspector of Police, High Grounds Police Station, Bangalore and the complainant’s car was left for service at “Surabhi Motors” which is the authorized service station and an estimation of cost for the purpose of service of the car was issued and the complainant made a claim under the necessary Motor Claim Form on the basis of estimate issued by the “Surabhi Motors”. The complainant further contended that, the Surveyor appointed by the opposite party had inspected the condition of the car prior to the service and made necessary enquiries, and took the photographs. After going through the estimate for service of the car the surveyor and the officials of the opposite party had assured the payment of costs incurred towards the service.<br /> The complainant submits that the car was ultimately serviced and a invoice was raised for Rs.49,500/- by “Surabhi Motors” and the complainant paid the entire amount to the said service station. The complainant further stated that being the situation thus the opposite party unilaterally, arbitrarily without giving any reasons had restricted the payment to the complainant to Rs.18,742.50 paise and has issued a voucher and the same was objected by the complainant as per the letter dated: 15.06.2007. The opposite party without giving any reasons to the request made by the complainant in the letter dated: 15.06.2007 addressed a letter dated: 18.06.2007 to the complainant for confirmation and to return the discharge voucher in full and final settlement of claim. The complainant submits that she is entitled to the payment of the amounts in terms of the policy and the denial of the payments in part amounts to deficiency in service on the part of the opposite party and all the efforts made by the complainant fell to the deaf ears of the opposite party. Therefore the complainant has issued a legal notice dated: 25.06.2007 calling upon the opposite party to pay Rs.49,500/- towards repair charges along with damages to the complainant. In response to the said legal notice the opposite party has sent reply dated: 27.06.2007 confirming Rs.18,742.50 paise along with the statement of calculation. The complainant further submits that the services of the opposite party are deficient and she had paid entire premium towards the insurance of her vehicle and is entitled to receive entire costs incurred for the service of her car from the opposite party. The act of the opposite party in restricting the claim of the complainant is malicious with an intention to harass and intimidate the complainant since they were unable to substantiate their unlawful demands. Hence the complaint.<br /> <br /> 2. In the version the contention of the opposite party The Oriental Insurance Company Limited is as under:-<br /> The opposite party has stated that, the procedure for settlement of claim is on receipt of intimation of claim they supply claim forms to the insured to be returned duly completed in all aspects and furnishing all details called for will avoid unnecessary correspondence and delay in settlement of the claim. The insured has to return the claim form duly completed along with an estimate form issued by the repairer towards costs incurred for the repairs. A Surveyor is deputed to inspect the damages and to submit detailed report with an assessment of loss. Claim is settled after satisfying that there has not been any violation of terms of policy, which is a contract between the insurer and insured. The quantum of settlement is arrived at on the basis of report of the Surveyor. The figures contained in the estimation or the total amount paid by insured to repairs is not the basis for settlement. The liability of the insurer is only to reimburse the cost pertaining to damages caused in accident and not any additional repairs carried out. The opposite party further submitted that in this case the claim has been settled, vouchers released for payment, but the complainant has rejected for settlement and he wants the claim settled as per the costs incurred by him towards repairs. He has further contended that the complaint is not maintainable as the claim of the complainant has been settled fully, but the payment offered is not accepted by the complainant and the dispute regarding quantum shall be first referred to Arbitration before filing this suit. It is submitted by the opposite party that there is no deficiency in service and complaint is not maintainable under the terms and conditions of the policy. Hence the opposite party has prayed for dismissal of the complaint.<br /> <br /> 3. In support of the respective contentions, both the parties have filed affidavits and documents. Heard arguments on both sides.<br /> <br /> 4. The points for consideration are:-<br /> (1) Whether the complainant is entitled for the relief prayed for in the complaint?<br /> <br /> (2) Whether the complainant has proved deficiency in service on the part of the opposite party?<br /> <br /> 5. Our findings on the above points are:-<br /> POINT NO.1:- In the Affirmative<br /> POINT NO.2:- As per the Final Order.<br /> <br /> REASONS<br /> POINT No’s. 1 & 2:-<br /> 6. From the copies of the documents pertaining to the vehicle in question produced by the complainant it is seen that, the complainant is the registered owner of the vehicle Tata Indigo LS of 2004 make bearing No.KA-02 Z-8145, which was insured with the opposite party by means of a Comprehensive Insurance under policy No. 14051/2007 valid from 11.01.2007 to 10.01.2008. On 05.02.2007 when the car was parked in the driveway of the complainant’s resident, in the adjacent property a construction work was took place about 7 floors commercial building was being put up to, when the concrete was being freshly laid for the sixth floor slab, at 3.00 AM the centering of cement concrete of 6th floor gave away and the entire wet cement concrete fell on the car of the complainant, thereby completely damaged the car. All the windshields were damaged. The roof caved in, the sides of the car, the bonnet, the boot were damaged by the concrete and the wet cement concrete covered the entire car and hardened. In view of the damage to all the windows and the windshields the cement concrete filled in the car. The wet concrete dried up by the morning making it impossible to be removed by wash. In view of the said total damage to the car the complainant filed a compliant in the jurisdictional High Grounds Police Station, Bangalore, and then left the car for service at “Surabhi Motors” which is an Authorized Service Station and an estimation of cost for Rs.49,500/- for the purpose of service of the car was produced by her along with claim form to the opposite party Oriental Insurance Company Limited. The Surveyor who has been appointed by the opposite party had inspected the condition of the car prior to the service, made necessary enquires and took the photographs and assured the complainant towards the payment of costs. The complainant has also produced the Invoice dated: 19.03.2007 issued by the “Surabhi Motors” for Rs.18,740/- on behalf of the repair costs incurred by her as per Annexure-G. However the opposite party has restricted the payment to Rs.18,742.50 and confirmed the same without giving any reasons and issued a voucher to the complainant. But the complainant has rejected the quantum of payment as proposed by the opposite party as she had paid a huge amount of Rs.49,500/- for repairs to the Authorized Service Center. From the material on record it is seen that, though the opposite party has produced an estimation issued by the Surveyor, but failed to adduce his evidence or affidavit in support of his contention. The Consumer Protection Act is one of the benevolent social legislation intended to protect the consumers from exploitation. The Act has come as a panacea for consumers all over the country. It has become the vehicle for enabling people to secure speedy and in-expensive Redressal of their grievances. Therefore in our opinion, the ends of justice will met by awarding Rs.30,760/- to the complainant along with costs of the proceedings. The complainant has received a cheque for Rs.18,740/- from the opposite party. <br /> <br /> 7. In the complaint the complainant claims refund of Rs.1,50,000/- towards the cost of repairs of the car, towards pain and suffering, harassment, deficiency in service including legal expenses. But in our opinion, the claim made by the complainant for Rs.1,50,000/- is not justifiable. Accordingly we hold that, the complainant is entitled to claim Rs.30,760/- from the Insurance Company towards costs incurred for repair charges to the vehicle. In the result, we pass the following:-<br /> <br /> ORDER<br /> 8. The complaint is allowed. The opposite party is directed to pay Rs.30,760/- to the complainant towards repair charges incurred by the complainant to the vehicle and shall also pay costs of Rs.1,000/- to the complainant. The opposite party is also directed to send the amount directly to the complainant through D.D. or cheque with an intimation to this Forum. <br /> <br /> 9. Send a copy of this order to both the parties free of costs immediately. <br /> <br /> 10. Pronounced in the Open Forum on this the 29th DAY OF FEBRUARY 2008.<br /> <br /> Order accordingly,<br /> <br /> <br /> MEMBER<br /> <br /> We concur the above findings.<br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br />