Kerala

Idukki

CC/158/2019

Tomy joseph - Complainant(s)

Versus

The unaited india insurance co ltd - Opp.Party(s)

Avd: Shiji Joseph

16 Aug 2022

ORDER

DATE OF FILING :30.8.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 16^th  day of August, 2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.158/2019

Between

Complainant                                            :   Tomy, S/o. Joseph,

                                                                     Pullattukunnel House,      

                                                                      Rose Gardens Vattiyar P.O.,

                                                                      Karadippara, Pallivasal.

         (By Adv: Shiji Joseph)

And

Opposite Parties                                       : 1. The Branch Manager,

                                                                      United India Insurance Co. Ltd.,

                                                                      Kannatt Shopping Complex,

                                                                      Kallarkutty Road, Adimaly.

           (By Adv: Sony George)

      2.  Nippon Motor Corporation Pvt. Ltd.,

                                                                      Sry. No.30/2, Meenachil P.O.,

                                                                      Ponkunnam Road, Pala,

                                                                      Kottayam.                                                                                                                  (By Adv: Sibi Thomas)

                                                                  3. Anil,

                                                                      Surveyor, C/o. Branch Manager,

                                                                      United India Insurance Co. Ltd.,

                    Kannatt Shopping Complex,
                    Kallarkutty Road, Adimaly.

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complainant filed under Section 12(1) of Consumer Protection Act, 1986 (the Act, for short).  Complaint averments are briefly narrated here under :

 

Complainant is the registered owner of Toyota Innova car bearing Reg. No.KL-06-F-2222.  This vehicle was insured with 1^st opposite party, namely, United India Insurance Company Ltd., at its Adimaly branch, represented in this proceedings by the branch manager.  2^nd opposite party runs a service centre namely, Nippon Motor                                                                                                                    (cont….2)

• 2  -

Corporation Pvt. Ltd, being an authorized service provider of Toyota cars.  3^rd opposite party is licensed surveyor of 1^st opposite party.  While the policy was live, vehicle had crash against a gate in June 2019. Due to this, vehicle had suffered extensive damages upon its bumpers, both front and rear doors etc.  Complainant had taken the vehicle to service centre of 2^nd opposite party on 12.6.2019.  2^nd opposite party agreed to provide insurance cover to the vehicle and had intimated the accident to 1^st and 3^rd opposite parties.  Accordingly, 1^st opposite party had deputed 3^rd opposite party for surveying the loss.  2^nd opposite party had prepared an estimate and repaired the vehicle in accordance with  estimate.  However, when 2^nd opposite party had claimed the amount,  1^st opposite party had declined to honour the claim.  Complainant submits that 3^rd opposite party has not made any assessment of damages sustained and had not filed report also.  This was the reason for non-sanctioning of  claim amount.  Therefore, complainant had to pay Rs.51,636/-, being the cost of repairs, from his own pocket and had taken delivery of the vehicle on 26.6.2019.  Complainant alleges that non assessment of damages and non-processing of claim is gross deficiency in service on the part of 1^st and 3^rd opposite parties.  If it is found that 2^nd opposite party was also responsible for the latches, complainant submits that 2^nd opposite party should be also made liable along with 1^st and 3^rd opposite parties to compensate  complainant.  Complainant seeks repayment of  Rs.51,636/-, being the repair costs of  vehicle paid by him to 2^nd opposite party with 14% interest from the date of payment till realization.  He also seeks Rs.25,000/- as compensation for  deficiency in service and Rs.5,000/- as litigation cost.

 

2. After receipt of notice, 3^rd opposite party had not appeared.  1^st and 2^nd opposite parties have appeared and filed written versions.  Case of 1^st opposite party as disclosed from its written version is briefly narrated here under :

 

According to 1^st opposite party, complaint is not maintainable in law or upon facts.  It is admitted that the vehicle was insured with 1^st opposite party.  1^st opposite party had come to know about the incident that it had taken place at Adimaly, while the vehicle was giving side to another vehicle.  Insured vehicle had  scratches on all its sides.  Damages of  vehicle were inconsistent with the cause of accident narrated by complainant. During survey, it was found that damages found upon body panels of  vehicle were not tallying with the cause of accident narrated by complainant except for the damages found upon rear LH door.  1^st opposite party will be able to assess and sanction the claim only on the basis of survey report  filed by 3^rd opposite party.  Accordingly, it had paid actual loss sustained by the vehicle as per vehicle survey report.  There is no deficiency in service from the side of 1^st opposite party.  Complainant has no cause of action and complaint is to be dismissed with costs.

 

                                                                                                    (cont….3)

 

• 3  -

2^nd opposite party, service provider has contended that there was no deficiency in service from their side.  2^nd opposite party is only involved in sale and service of Toyota vehicles.  One of such centre is located at Pala.  On 12.6.2019, Toyota car owned by the complainant, bearing Reg. No.KL-06-F-2222 was entrusted with it for body and paint works.  Vehicle has sustained damages on both bumpers, front and rear doors and also upon left running board.  On the same day itself, 2^nd opposite party had prepared an estimate of Rs.56,929/- + GST and estimate was handed over to customer.  2^nd opposite party has no tie up with 1^st opposite party.  Therefore, 2^nd opposite party had advised the complainant to made necessary arrangements for processing the claim.  All assistance required by complainant was provided to him by 2^nd opposite party.  1^st opposite party had deputed 3^rd opposite party as surveyor on 15.6.2019.  Surveyor had inspected the vehicle laying in the yard of 2^nd opposite party.  Work mentioned in the estimate was explained to surveyor on 17.6.2019.  Opposite party had contacted the surveyor for claim approval.  However, there was no proper response from 3^rd opposite party.  On 18.6.2019, 3^rd opposite party had contacted 2^nd opposite party and informed that approval is only for doing rear left door (repair and painting).  These facts were intimated to complainant.  Though 2^nd opposite party had again requested 1^st opposite party to sanction other works also, opposite parties 1 and 3 have not done so.  Complainant was, accordingly, informed by 2^nd opposite party on 19.6.2019.  Complainant had directed to complete all works of vehicle.  2^nd opposite party had completed the works and generated a bill for Rs.51,636/- for the same.  Complainant had paid the bill and taken delivery of the vehicle.  These being the facts,  2^nd opposite party submits that there was no deficiency in service from its side and that complaint against it is to be dismissed with cost.

 

3. Case was then posted for evidence after affording  sufficient opportunity to both sides for taking steps.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P4 were marked.  No oral evidence was tendered by 1^st opposite party and no evidence at all was adduced by 2^nd opposite party.  Exts.R1 to R4 were marked on the side of 1^st opposite party.  It is seen from proceedings that 3^rd opposite party was present on 14.6.2022 before this Commission purportedly as a witness for the 1^st opposite party.  Since 3^rd opposite party was a party to this proceeding, he was examined as such as RW1.  Therefore, evidence was closed.  Both sides have not filed any notes.  Learned counsel for complainant and counsel for 1^st opposite party have adduced oral arguments.  Now the points which arise for consideration are :

1) Whether there was any deficiency in service on the part of 1^st and 3^rd opposite parties?

2)  Whether complainant is entitled to get back Rs.51,636/- paid by him towards repair charges of the vehicle from 1^st and 3^rd opposite parties ?

3)  Whether complainant is entitled for compensation for deficiency in service from 1^st and 3^rd opposite parties ?

4)  Final Order and costs ?                                                                     (cont….4)

-  4  -

4. Point Nos.1 to 3 are considered together :

 

          During cross examination by 2^nd opposite party, complainant has given evidence that he has no complaints against 2^nd opposite party, that there was no deficiency in service on their part and therefore he is not seeking any relief against them.  In so far as 1^st and 3^rd opposite parties are concerned, complainant presses his claim for repair charges and compensation along with costs.  Able counsel for complainant would submit that vehicle had sustained damages on both sides which are specifically mentioned in Ext.P4 estimate.  Ext.P4 is supported by Ext.R4 series of 8 photographs taken by surveyor himself during examination of the vehicle.  All the damages mentioned in the estimate and seen in Ext.R4 series of photographs were caused in the accident reported by complainant.  Therefore, he was entitled to get repair charges in accordance with the terms and conditions of Ext.P2 policy from1^stopposite party.  However, 3rd opposite party had not properly assessed the damages.  He has not filed a proper report either.  Opposite party was supposed to file the report within 30 days in absence of exceptional circumstances and also was bound to give a copy of the report to complainant.  He has not done so.  Able counsel submits that report itself would go to show that the inspection was not carried out at the place and date stated by surveyor.  That being so, it has to be taken as proved, that there was deficiency in service on the part of 1^st and 3^rd opposite parties.  3^rd opposite party is surveyor  engaged by 1^st opposite party and hence 1^st opposite party is vicariously liable for the acts of 3^rd opposite party also.  Admittedly, the accident took place when the policy was  live.  Therefore, 1^st opposite party is liable for the claim amount for repairs made by the complainant.  He is entitled to get back the amount less what has been paid, along with damages for deficiency in service, costs of litigation are also to be paid by 1^st and 3^rd opposite parties.

 

          Learned counsel for 1^st opposite party had replied that cause of accident mentioned in Ext.R1 claim form did not tally with the damages found upon the vehicle except of the damages noticed upon the left side door.  Evidence of RW1, would reveal that a clarification was sought for with regard to other damages seen upon the vehicle.   As there was no clarification from the side of complainant, damages tallying with the cause reported by complainant, as the ones sustained in the accident reported to 1^st opposite party alone were considered for assessing loss.  These damages were assessed in accordance with the terms and conditions of policy.  Counsel pointed out that policy taken by complainant was comprehensive  policy.  Vehicle was 9 years old at the time of accident.  After depreciation, as per Ext.R2 report, surveyor had assessed net loss as Rs.4,863.25.   Opposite party had paid Rs.5,000/- to complainant towards loss.  This has been admitted by complainant also.  Hence no further claim will lie against 1^st and 3^rd opposite parties.  There is no deficiency in service and therefore complaint is to be dismissed.                                                                                                  (cont…..5)

• 5  -

          Thus, these are rival contentions.  We have gone through the rival pleadings and evidence tendered in this case.  It is mentioned in  complaint that the vehicle had crashed against a gate in June, 2019 and sustained extensive damages.  The exact date on which accident had taken place, in fact, is not stated in the complaint.  Ext.R1 is the claim form given by complainant with regard to the accident.  In column No.5 of the claim, complainant has given the date of accident as 22.5.2019.  He has also given a short description of the accident.  It is reproduced here under for ready reference :

          “due to heavy rain, crashed left side of the car while turning”.

 

          During cross examination, PW1 was confronted with Ext.R1 and description of the accident given by him in it.  He has admitted that in the claim form, he has only stated that vehicle have sustained damages on left side.  We also notice that as per Ext.P4 estimate, repairs and painting works are seen recommended with regard to damages sustained on front rear bumpers, front and rear doors also.  As per Ext.R4 series of photographs taken by surveyor at the time of inspection, it could be seen that vehicle had scratches and dents not only upon left LH door but on front bumper and over other body panels of the vehicle also.  RW1, surveyor has given evidence that cause  given in the claim did not tally with all the damages sustained upon vehicle and bumpers, except the damages seen on the left side rear door.  That a clarification in this regard was sought for, from the complainant, and he had not responded satisfactorily, though much time was taken.  This was the reason for delay in submitting final report, according to 3^rd opposite party.  We also notice that complainant has given inconsistant version with regard to accident in Ext.R1 and his complaint.  In Ext.R1, he would say that due to heavy rain, he had crashed left side of the vehicle while turning.  In his complaint, he would say that the vehicle has hit against a gate in June, 2019, where as as per Ext.R1, accident had occurred on 22.5.2019.  In the complaint, complainant alleges that the vehicle had sustained extensive damages on bumpers, front and rear side doors.  However, in Ext.R1, damages are confined to left side of the vehicle only by him. During cross examination, when complainant was asked to explain why he has not stated that the vehicle has sustained damages on the other side also, in front right side, in the claim form, complainant has replied that he does not have anything to say anything about that.  Considering the nature of accident mentioned in Ext.R1,  it appears to us that the vehicle had sustained damages only on its left side which were noticed by the surveyor on the left side rear door.  Probably, other damages were not occasioned in the accident reported by complainant.  Unless, these were reported by complainant along with the date of occurrence, claim for repair of the same cannot be entertained by 1^st opposite party, since regulations prescribe a time frame for same.  Therefore, we find nothing wrong in the surveyor seeking clarification from complainant with regard to his claim that damages including those on other sides of vehicle apart from damages sustained on the left side were caused to vehicle in the accident described by him in R1.                                                                                                                       (cont….6)

• 6  -

It is seen from the evidence tendered that Rs.5000/- was paid by 1^st  opposite party to complainant after filing of this case, in accordance with the loss reported by the surveyor in Ext.R2 report.  Actual loss reported by the surveyor is Rs.4,863.25 as mentioned earlier.  During cross examination, complainant has stated that he had received Rs.5,000/- towards the said loss, after filing of this case.  As there is no evidence to show that other damages mentioned in Ext.P4 estimate and seen in Ext.R4 series of photographs were sustained in accident reported by complainant, he cannot seek insurance towards loss caused owing to those damages.  Firstly, his own claim is with regard to damages sustained on the left side of vehicle.  Secondly, there is no mention of other damages in Ext.R1 claim form.  Hence claim of the complainant for repayment of entire repair cost of Rs.51,636/- covered by Exts.P4 (e) and P4 (f) bills cannot be sustained. 

 

          Yet another contention advanced is that in Ext.R2 report, RW1 has mentioned that re-inspection of the vehicle was held on 14.2.2019 at M/s. Popular Vehicles and Services Ltd., Pala.  During cross examination of the complainant, he was confronted with Ext.R4 series of 8 photographs and it was brought out that RW1 had taken those at the time of inspection.  Photographs contained the date on which those were taken, which is 12.6.2019, the date on which accident was reported by  complainant to opposite parties.  This would prove that the vehicle involved in this accident was examined by the surveyor on the date when accident was reported by the complainant to 1^st and 3^rd opposite parties.  There is no delay in inspection.  Endorsements in Ext.R2 to the effect that there was re-inspection of the vehicle on 14.2.2019 at M/s. Popular Vehicles and Services Ltd. are probably due to inadvertent typing error which may have been caused due  to careless cutting and pasting.  Ext.R4 series of photographs would prove that the vehicle involved in the accident reported by  complainant was inspected by the surveyor on the very date on which accident was reported to  opposite parties.  Registration number of the vehicle and the vehicle as such are clearly visible in the photographs.

 

          Yet as per regulations of 20015, surveyor was supposed to file report within 30 days ordinarily and he was also bound to give a copy of the same to the insured.  In this case surveyor has explained that there was delay in getting clarification from the complainant with regard to inconsistencies in the damages noticed and the cause of accident mentioned in Ext.R1 form.  This explanation is convincing.  However, there was latches on the part of surveyor in not furnishing a copy of report to the complainant.  But this latches seems to us as a technical one since complainant’s grievance is regarding non payment of entire repair costs and not regarding non furnishing of copy of report to him. 

 

                                                                                                                        (cont….7)

 

• 7  -

          To sum up, we find that non-payment of entire loss covered by Ext.P4 (e) and (f) bills will not amount to deficiency in service on the part of 1^st and 2^nd opposite parties.  Vehicle was inspected within time and report was also filed by the surveyor which does not suffer from any material infirmity. Loss assessed was paid within a reasonable time of filing of R2 report, though evidence indicates that by this time these proceedings were initiated by complainant.  That being so, we are of the view that complainant is not entitled to get entire repair charges so claimed in the complaint or compensation claimed for deficiency in service with regard to the same.  Point Nos.1 to 3 are answered accordingly. 

 

POINT NO.4:

 

In the result, this complaint is dismissed, considering the circumstances, without costs. 

 

                           Pronounced by this Commission on this the  16th   day of August, 2022

 

 

                                                                                          Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

 

 

                              Sd/-

SMT. ASAMOL P., MEMBER

 

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

                                        (cont.....8)

 

 

• 8  -

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -   Tomy Joseph.

On the side of the Opposite Party :

DW1        -   Anil Kumar V.

Exhibits :

On the side of the Complainant :

Ext.P1              -  Copy of RC book.

Ext.P2              -  Policy.

Ext.P3              -  copy of driving license.

Ext.P4(series)  -  estimate prepared by 2^nd opposite party, 3 invoices and 2 bills.

On the side of the Opposite Party :

Ext.R1     -copy of claim form.

Ext.R2    -  survey report.

Ext.R3    -  policy.

Ext.R4    -  photographs – 8 Nos.

 

                                                                                          Forwarded by Order,

 

 

 

                                                                                 ASSISTANT REGISTRAR