CONSUMER DISPUTES REDRESSAL FORUM

PALAKKAD, KERALA

Dated this the 22^nd day of December, 2012.

Present: Smt. Seena. H, President

: Smt. Preetha. G. Nair, Member

: Smt. Bhanumathi. A. K, Member Date of filing : 30/01/12

CC / 29/ 2012

Dr.Manju Issac,

W/o.Dr.Binoy K.John, - Complainant

House No.224 H(20/135),

Kudiyirickal House,14,

Kalamassery, Changampuzha,

Ernakulam – 682 033

Now residing at Manava Nagar,

Reshmi, Kanniampuram, Ottappalam,

Palakkad – 679 101

(BY ADV.A.K.Georgekutty )

Vs

1. The Service Manager,

Sitaram Motors(Authorised Maruti Dealer),

N.H.Bye Pass Road, Chandra Nagar P.O,

Palakkad- 678 007

(BY ADV.K. Dhananjayan)

2. Chief General Manager (Service),

Maruti Suzuki India Ltd, Palam,

Gurgaon Road, Gurgaon,

Haryana State – 376 377

(BY ADV M.R.Manikandan ) - Opposite parties

3. The Regional Claims Manager,

H.D.F.C.Ergo General Insurance Co.Ltd,

K.G.Oxford Business Centre,

Sreekandath Road, Ravipuram,

Kochi- 682 106

(BY ADV Ullas Sudhakaran)

O R D E R

BY SMT. SEENA.H, PRESIDENT

Complaint in nutshell:-

A Maruti Swift Car bearing Reg. No. KL-7/BF-8686 owned by the complainant and insured with 3^rd opposite party met with an accident on 28/08/2010. The vehicle was entrusted for repairs on the same day with opposite party No. 1, which is the authorized service centre under opposite party No.2, with all necessary insurance particulars. The grievance of the complainant is that opposite parties 1 and 2 failed to repair the vehicle within a reasonable period so as to make it available for inspection before the 3^rd opposite party for processing the insurance claim with in the time limit. Inspite receipt of intimation regarding the notice by 3^rd opposite party regarding submission of bills and re-inspection of the vehicle with replaced parts, opposite parties 1 and 2 failed to make available the vehicle before 3^rd opposite party. Instead has replied stating lame excuse of delay in procuring spare parts and requesting further period of 30 days for effecting repairs and producing bills. Complainant went several times for taking possession of the vehicle from opposite parties and found the vehicle totally unmanned and exposed. A lawyer notice dtd. 18/03/11 was caused to all the three parties for which none of them replied. On 16/04/11 opposite party No.1 sent a notice stating that the vehicle is ready after repairs and the bill amount is, Rs. 2,44,651/-. The vehicle is having a comprehensive policy and opposite parties 1 and 2 were responsible to make the insurance claim available from opposite party No.3. Complainant being a practicing doctor is always in need of a vehicle for discharging her duties. After the accident complainant was forced to hire tax. The oppsite party No. 3 is aware of the place where the vehicle is packing. They cannot wriggle out their liability by issuing a notice for production of vehicle with in a time limit. Hence there is deficiency in service on the part of all opposite parties and complainant prays a total amount of Rs. 4,25,000/- under various aheads.

All opposite parties filed version resisting the complaint.

Opposite party No.1 admits that the complainant's car was entrusted with them for repairs following an accident, but denies the say of the complainant that insurance policy particulars and other documents were handed over to them on the date of entrustment itself. According to them vehicle was handed over on 28/08/10 and the documents were handed over on 14/09/10 and hence job card was prepared on 14/09/10. Opposite party No.1 admits receipt of letter from 3^rd opposite party requesting for submission of repair bills and production of vehicle with replaced parts. It was duly replied that as soon as the work is completed vehicle will be produced for re-inspection. Complainant's car was totally damaged and repairs included changing major body parts as well as spare parts and body works including painting and it was time consuming. Also completion of work depend upon availability of body parts and spare parts to be obtained from Gurgauon. The whole work was completed and was informed to the complainant vide letter dtd. 16/04/2011. Further it is the bounden duty of the complainant to take steps for processing the claim before 3^rd opposite party. Oppsite party No.1 was always ready for delivery of the vehicle provided the bills are settled. According to opposite party No.1 there is no deficiency in service on their part.

According oppsite party No. 2, they being the manufacturer is under a limited obligation to provide warranty service to the complainant as per the terms and conditions of the warranty. The warranty excludes any repair or replacement required as a result of accidents and collusions. Admittedly the vehicle was involved in an accident. Hence there is no deficiency in serive on their part.

3^rd opposite party admits the policy and the accident. Immediately a surveyor was deputed for assessing damages. The complainant and 1^st opposite party failed to produced documents and make the vehicle available for inspection after repairs inspite of repeated requests. As per the policy conditions the insured should provide necessary documents required for registering and processing the claim without delay and should make available the vehicle for inspection for assessing the loss and should produce the original bills pertaining to the repair work and spare parts and should make the vehicle available for re-inspection within a reasonable time for enabling the insurer to assess the loss and to compute the amount payable as per the terms of the policy. If there is delay, the insurer can legally repudiate the claim. The mandatory policy conditions regarding time stipulation is incorporated for the purpose of detection and prevention of bogus claims. Hence there is no deficiency in service on their part.

Parties filed their respective chief affidavits. Ext A1 to A4 marked on the side of the complainant Ext B1 to B3 marked on the side of opposite paties.

During the pendency of the case, an interim application was filed by the complainant for release of the vehicle entrusted with opposite party No. 1. IA was allowed on condition of deposit of the repair charges before the forum. Opposite party No.3 voluntarily agreed to deposit the amount assessed by the surveyor which comes to Rs. 1,38,168/-. Balance amount of Rs. 1,06,489 was deposited by the complainant. It is stated in the order that the adjustment in the said amount will be made as per the final order. After the release of the vehicle, some defects were noted by the complainant and a Commissioner was appointed for noting defects. Commissioner filed report and is marked as Ext C1.

Issues for consideration :-

1. Whether there is any deficiency in service on the part of opposite party 1and 2 ?

2. Whether there is any deficiency in service on the part of opposite party 3 ?

3. If so, what is the relief and cost complainant is entitled to ?

Issues No.1

Delay in effecting repairs for a period of 7 months (14/09/10 to 16/04/11) is admitted by opposite party No.1. Ext. B1 series shows the job card date as 14/09/10. No contradictory evidence to show that documents etc. handed over to opposite party No.1 on 28/08/10 itself. The cause of delay as stated by opposite party No.3 in major repair works and delay in obtaining the spare parts. Ext. B2 shows that there was extensive damage to the vehicle which necessitates major repair works. The question arise whether a period of 7 months is a reasonable period for effecting repairs. Ext. A2 copy of the letter dtd. 4/01/11 issued by opposite party No.1 to opposite party No.3 it is stated that spare parts has arrived and complete job will be over within a period of 30 days. As per the version of opposite party No.1 itself vehicle was ready for delevery in the month of April 2011 only. Hence opposite party No.1 failed to effect repairs with in the promised period even after receipt of spare parts. Hence we find that opposite party No.1 has caused in ordinate delay in effecting repairs.

According to opposite party No.2, their service with respect to the complainant's vehicle does not include repairs for accidental works. Hence there is no deficiency in service on their part. Complainant has not adduced any contra evidence to prove that it is their responsibility.

Issues No. 2 & 3

Opposite party No.3 was reluctant to pay the insurance claim on the ground that complainant failed to produce the vehicle for re-inspection along with supporting documents. Policy and accident is not seen disputed. As per Ext B2, survey report loss assessed by the surveyor before re-inspection is Rs. 1,38,162/-. During the pending of the proceedings opposite party No.3 agreed to pay the said amount and the same was deposited before the forum as a pre - condition for releasing the vehicle to the complainant. On going through Ext B3 we do not find any specific period mentioned in the policy conditions which stipulates re-inspection with in a specific period. There is no case for opposite parties that the accident was not timely intimated. Moreover genuiness of the claim was also satisfied. Opposite party No.3 very well knows that the the delay is not the fault of the complainant. Even then opposite party No.3 tried to with hold the claim amount. The sum insured as per the policy is Rs. 3,00,000/-. As per Ext. B1 series the total bill amount payable by the complainant in Rs. 2,44,650/-. Net amount assessed by the surveyor at the 1^st inspection is Rs. 1,38,162/- . So the balance amount payable by the opposite party No.3 is Rs. 1,06,448/-. Opposite party No. 3 has not adduced any further evidence to show that the said amount is not payable or if any depreciation is applicable to the same. Hence we are of the view that opposite party 3 is liable to pay the balance amount.

In the view of the above discussions we are of the view that there is deficiency in service on the part of both opposite party No.1 and opposite party No.3. In the absence of any contra evidence, opposite party No.3 is made liable to pay the whole bill amount of Rs. 2,44,650/-. As per Ext. C1 the commissioner appointed pending proceedings has noted certain defects which according to him is on account of poor quality meterials and poor workmanship. Commissioner has not quantified any amount as charges for rectifying the same. Taking in to consideration the inordinate delay in effecting repairs and the above stated fact, we quantity an amount of Rs. 30,000/- as compensation which we feel will meet the ends of justice.

In the result complaint allowed and we order the following.

1. Opposite party No. 3 is directed to pay Rs. 2,44,650/- ( Rupees Two lakh Fourtyfour thousand Six hundred and Fifty only) to opposite party No. 1.

2. Opposite party No. 1 is directed to pay Rs. 30,000/- ( Rupees Thirty thousand only) as compensation to the complainant.

3. Opposite party No. 2 is exonerated from liability.

4. Both parties jointly and severally directed to pay Rs. 4,000/- ( Rupees Four thousand only) as cost of the proceedings.

5. The amount deposited before the forum shall be adjusted as per the final order. Complainant is at liberty to apply for the amount deposited by them.

6. Opposite party No. 3 is at liberty to deposit the balance amount before the forum which shall be released by opposite party No. 1 deducting the amount payable to the complainant as per the order.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the amount entitled to the complainant from the date of order till realization.

Pronounced in the open court on this the 22^nd day of December, 2012.

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

Sd/-

Smt. Bhanumathi.A.K

Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext. A1– Copy of notice issued by the 3^rd opposite party to the complainant dtd. 24/12/10

Ext.A2 – Copy of notice issued by 1^st opposite party to 3^rd opposite party with copy to the complainant dtd. 04.01.11

Ext. A3- Copy of lawyer notice issued by the complainant to all the opposite parties with postal receipts and A/D cards. Dtd. 18/03/11.

Ext. A4 - Copy of notice issued by the 1^st opposite party to the complainant. Dtd. 16/04/11.

Exhibitsmarked on the side of opposite party

Ext.B1- Original bills of job card retail invoice.

Ext.B2- Copy of the survey report dtd. 24.01.11.

Ext. B3- Copy of policy with conditions

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Commissioner report

C1 – Er. P. sugumaran

Cost allowed

Rs. 4,000/- ( Rupees Four thousand only) as cost of the proceedings.