ORDER

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite parties. 

                   2. The case of the complainant is as follows:  The complainant is the registered owner of a Hyundai Accent car bearing Reg.No.KL.62-2599.  According to him, he availed an insurance policy from the opposite parties for a period of 31.08.2013 to 30.08.2014.  The Popular Hyundai Company allotted Neon alloy wheel for the said vehicle at its delivery.  He stated that the 2^nd opposite party who is the administrative manager of the opposite party made him to believe that the proposed insurance would be a Bumber to Bumber insurance and it would get all kinds of protection of the damages of all parts without any depreciation.  On 25.04.2014 this vehicle met with an accident and some damage caused including the alloy wheel.  Even though he filed insurance claim for his loss the opposite party repudiated the ground on certain flimsy grounds.  It is further stated that the opposite parties repudiated his claim on the ground that the said insurance was not at all a Bumber to Bumber insurance and apart from that the opposite party has to deduct the depreciation charge of all spare parts at the time of calculating its insurance amount.  On 12.05.2014 the complainant sent a notice to the Manager of the opposite party, but the opposite party has neither given a reply nor redress his grievances.  The complainant filed a petition before the insurance ombudsman’s with regard to this complaint but their also his grievances has not redressed.  According to him, he spent an amount of Rs.12,000/- to painting charge and for removing the head light, alloy wheel and engine guard.  There is an amount of Rs.11,000/- is to be spent.  All the above said acts of the opposite parties are comes under unfair trade practice and deficiency in service of the opposite parties.  The complainant filed this petition before this Forum to get the above said amount and certain other reliefs.

                   3. This Forum entertained the complaint and issue notice to opposite parties for their appearance.  Except opposite party 2 in this case, opposite party 1 and 3 are set exparte.    

                   4. The version of opposite party 2 is as follows:  According to this opposite party the complaint is not sustainable either in law or on facts.  The claim of the complainant was closed as no claim as the complainant have withdrawn the claim by his letter dated 06.05.2014.  It is admitted that the complainant has availed a package policy being No.101782/31/13/01/ 00002295 of the United India Insurance Company for the complainant’s vehicle bearing Reg.No.KL-62/2599.  The period of insurance was from 31.08.2013 to 30.08.2014.  It is further clarified that the said insurance was not a Bumber to Bumber policy as alleged by the complainant and the opposite party was not made believed that the alloy wheel is covered by the said policy.  It is also admitted that the complainant filed an insurance claim on 25.04.2014 for which the opposite party was entrusted a surveyor to assess the loss and the survey report on 12.05.2014 shows a damage of Rs.2,271/- only which was caused to the said vehicle.  Anyway, the complainant himself withdraw this complaint as stated above.  According to this opposite party the claim for plastic spare parts and other spare parts can be calculated only on the terms and conditions of the policy.  It is further stated that the complainant has no right to get any compensation or damages as stated in his complaint.  Hence the 2^nd opposite party prayed to dismiss the above case with cost.

                   5. We peruse the complaint, version and records before us and framed the following issues.

1. Whether the case is maintainable?
2. Whether the opposite parties committed any deficiency in service as alleged?
3. Regarding relief and cost?

         6. In order to prove the case of the complainant, complainant himself filed a proof affidavit in place of chief affidavit and marked Ext.A1 to A8.  Ext.A1 is the Private car package policy.  Ext.A2 is the check report issued by Popular Hyundai.  Ext.A3 is the copy of the letter dated 12.05.2014 sent by the complainant to the 1^st opposite party.  Ext.A4 is the copy of letter dated 18.06.2014 sent by the complainant to 3^rd opposite party.  Ext.A5 is the copy of letter dated 24.07.2014 sent by the complainant to the Insurance Ombudsman, Kochi.  Ext.A6 is the invoice bill dated 22.08.2014 issued by Popular Hyundai, Kottayam.  Ext.A7 is the bill dated 19.08.2014 issued by Popular Hyundai, Kottayam.  Ext.A8 is the 1^st information report. On the other hand, DW1 and DW2 were examined and marked Ext.B1 to B5.  Ext.B1 is the copy of motor survey report dated 12.05.2014.  Ext.B2 is the motor insurance proposal form.  Ext.B3 is the copy of policy schedule.  Ext.B4 is the copy of terms and conditions of the private car package policy.  Ext.B5 is the copy of letter dated 06.05.2014 sent by the complainant to 1^st opposite party.  DW2 filed a proof affidavit in lieu of chief examination and through him Ext.B1 to B5 were marked.  The complainant who is examined as PW1 he who deposed more or less as per the terms of his complaint.  According to him, the availed Bumber to Bumber insurance and the insurance company is liable to pay 100% cost of all the spare parts and labour charge.  He again deposed that the alloy wheel of his vehicle is not an additional fitting and it is allotted at the time of delivery of the vehicle.  On the other side, DW1 he who deposed that he is having an IRDA licence holder and on 12.05.2014 he prepared a report of the Hyundai Accent car bearing Reg.No.KL.62-2599.  It is deposed that the vehicle caused only a total cost of Rs.2,271/- and there is a depreciation cost of 50% to plastic items.  When calculating the painting cost only 25% is calculated as the material cost and the remaining 75% is calculating as labour charge.  DW2 is the Divisional Manager of the Pathanamthitta Branch of the opposite party he who filed a proof affidavit and through him the proposal form, copy of the insurance, terms and condition of the policy and the copy of complainant’s letter are also marked.  After the completion of the evidence adduced by both sides, we have given an opportunity to hear the case.  The complainant and the opposite party filed argument notes in this case. 

          7.  Point No.1:- The opposite party through his version and at the time of hearing raised a serious contention to the effect that this case is not maintainable before the Forum.  It is come out in evidence that the complainant is an insured and the opposite parties are insurers of the complainant with regard to his Hyundai Accent car bearing Reg.No.KL.62-2599.  It is also evident to see that the said insurance policy has got validity at the time of the said motor accident.  Hence we can safely conclude that the complainant is a consumer of the opposite party and the opposite party is a service provider.  Hence Point No.1 found in favour of the complainant.

          8. Point Nos.2 & 3:-  For the sake of convenience, we would like to consider Point No.2 and 3 together.  When we examine the evidence before us, the next question to be considered is whether the opposite parties committed any deficiency in service.  As per Ext.A1 and as per Ext.B2, it is clear that the 1^st opposite party issued a private car package policy to PW1 vide policy No.101782/31/13/01/ 00002295 for the vehicle bearing Reg.No.KL.62-2599 and the period of insurance is from 31.08.2013 to 30.08.2014.  It is also admitted that on 25.04.2014 the vehicle met with an accident and caused some damages.  The main dispute raised by PW1 with regard to the insurance policy is that the said policy is a Bumber to Bumber policy and the insured is eligible to get cent percent material cost and labour cost for all damages.  Though the complainant raised this contention there is no sufficient evidence to prove his contention with regard to this aspect.  We can easily conclude that the insurance of the said vehicle is a private car package policy as contended by the opposite parties.  As per Ext.A2, the Popular Hyundai Company prepare a repair order of the damage caused to the vehicle are clearly explained.  As per Ext.A7, it is proved that PW1 paid Ra.10,088.93 for painting charges etc. for the vehicle and as per Ext.A8 1^st inspection report prepared by Hyundai reported that the cost of alloy wheel, head light, engine guard comes for an amount of Rs.10,000/- and the labour charge also shown as Rs.1,250/-.  We do admit that nobody signed in Ext.A8 and at the time of cross-examination the said defect is raised by the opposite parties.  But it is to see that the opposite party has not a case to the effect that this Ext.A8 is a forged or fabricated document.  The opposite parties vehemently argued that there is no insurance coverage for the alloy wheel since it is an additional fittings.  The contention of the opposite parties has no merit at all because it is evident to see that the alloy wheel is fitted with the vehicle even at the time of its delivery.  If it be so, there is no justification on the part of the opposite parties to exclude the alloy wheel from the insurance cover.  As stated earlier, Ext.A1 and Ext.B3 are one and the same.  These exhibits (A1 and B3) are the copy of the insurance policy.  Ext.B4 is the copy of the terms and conditions of the package policy.  As per this Ext.B4, the percentage of depreciation is explained.  When we refer Ext.B1 it reveals that there is an amount of Rs.17,162.20 assessed as labour charge and the spare parts caused Rs.14,004.85.  As per Ext.B1, only Rs.2,271.36 is allowed as insurance claim to PW1.  Considering the nature and circumstance of this case, there is no justification on the part of 1^st opposite party for fixing the claim amount as Rs.2,271.36.  It is interesting to see that for labour charge only Rs.2,921.36 and for spare parts Rs.700/- is assessed in favour of the complainant and there is a depreciation amount of Rs.350/- and policy excess Rs.1,000/- is deducted from the assessed amount Rs.3,621.35.  According to this Ext.B1, it is proved that the complainant’s alloy wheel is broken and damage is happened to front bumper and LH fender.  For rectifying this damage painting works is necessary.  The learned counsel appear for the 1^st opposite party argued that as per the terms and conditions of private car package policy there is 50% depreciation for rubber/nylon/plastic parts, tyres and tubes, batteries and air bags and 30% depreciation for fibre glass components.  According to him, the depreciation of painting is 50%.  When we examined Ext.B4 Page 1 the submission made by the counsel is not acceptable.  It is an admitted fact that the depreciation is calculated on the basis of age of the vehicle.  When we peruse the evidence before us, it reveals that the vehicle purchased on 30.08.2012 along with alloy wheels from 1^st opposite party.  If so, the age of the vehicle at the time of this incident was only 2 years (date of accident 25.04.2014).  As per the schedule only 10% depreciation can be calculated for this vehicle (exceeding 1 year but not exceeding 2 year).  The deduction table as per Ext.B4 is shown below:-

           Subject to a deduction for depreciation at the rates mentioned below in respect of parts replaced

1. For all rubber/nylon/plastic parts, tyres and tubes, batteries and air bags 50%
2. For fibre glass components 30%
3. For all parts made of glass Nil
4. Rate of depreciation for all other parts including wooden parts will be as per the following schedule:

5. Rate of depreciation for Painting:  In the case of painting, the depreciation rate of 50% shall be applied only on the material cost of total painting charges.  In case of consolidated bill for painting charges, the material component shall be considered as 25% of total painting charges for the purpose of applying the depreciation.

          9. In the light of the above explanation we can safely arrived a conclusion that the 1^st opposite party has committed deficiency in service against the complainant from allowing insurance claim.  As per the evidence adduced by PW1, it is proved that he has applied before 1^st opposite party on 12.05.2014 with regard to his insurance claim and as per Ext.B5 dated 06.05.2014 he had written a letter to 1^st opposite party in which he stated that he did not want to take any claim without considering the claim of alloy wheel.  As per the evidence in Ext.B5, Ext.A3 and Ext.A4 it is to see that the complainant has taken reasonable steps to redress his grievances.  But it is proved that all his attempt were in vain and as a result he approached this Forum for redressing his grievances.  As we discussed earlier, as per Ext.A6 and A7 the complainant spent an amount of Rs.11,280/- as the maintenance expense of the vehicle.  At the same time, it is to see that as per Ext.A8 the price of alloy wheel is Rs.6,000/-, head light is Rs.3,000/- and engine guard is Rs.1,000/-.  We do admit that the opposite party has a clear contention to the effect that the alloy wheel is not included in the insurance claim of the complainant.  Though the opposite party raised his contention the opposite party failed to adduce any evidence to substantiate his contention before us.  As we discussed earlier, it is proved that the alloy wheel was fitted with the vehicle even at the time of delivering this vehicle to the complainant.  Anyway, considering this aspect we are in view that the alloy wheel of the said vehicle is not an additional item hence the said wheel is eligible to get insurance claim.  As per Ext.A6 and A7 it is seen that the price of alloy wheel, head light and engine guards are not calculated for the complainant’s claim.  The non inclusion of these items at the time of calculating the insurance claims are not at all justifiable and the act of the opposite party is a clear deficiency in service as far as this case concerned.  We find that the opposite party is liable to include the price of the above stated engine guard, head light and alloy wheel with Ext.A7 and A8 when calculating the insurance claim of the complainant.  We also find that the complaint is only eligible to get the insurance claim as per Ext.B4 terms and conditions.  Anyway, the complainant has taken sincere and earnest steps to receive insurance amount from the opposite party but it is to see that the opposite party arrived a calculation without considering the price of the above stated 3 items.  The opposite parties 1 to 3 are representing as the officials of United India Insurance Company Ltd.  Hence opposite party 1 to 3 are jointly and severally liable to the complainant.  We find that the complaint is partly allowable.  Hence Point Nos.2 and 3 are found accordingly.

                   10. In the result, we pass the following orders:

1. The opposite parties are directed to pay an insurance claim to the complainant in accordance with Ext.b4 including the price of alloy wheel, head light, engine guard for an amount of Rs.10,000/- plus labour charge of Rs.1,250/- (Total Rs.11,250/-) (Rupees Eleven Thousand two hundred and fifty only) as per Ext.A8 to the complainant with an interest of 10% from the date of order onwards.

2. The opposite parties are also directed to pay a compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant with the interest of 10% from the date of order onwards.

3. A cost of Rs.3,000/- (Rupees Three Thousand only) is also allowed to the complainant from the opposite parties with 10% interest from the date of order onwards.

         Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of June, 2016.

                                                                             (Sd/-)

                                                     P. Satheesh Chandran Nair,

                                                                    (President)

Smt. K.P. Padmasree (Member – I)             :    (Sd/-)  

Smt. Sheela Jacob (Member- II)                 :    (Sd/-)   

Appendix:

Witness examined on the side of the complainant:

PW1  : Joseph Decruz

Exhibits marked on the side of the complainant:

A1 :  Private car package policy. 

A2 :  Check report issued by Popular Hyundai.

A3 :  Copy of the letter dated 12.05.2014 sent by the complainant

        to the 1^st opposite party. 

A4 :  Copy of letter dated 18.06.2014 sent by the complainant to

        3^rd opposite party. 

A5 :  Copy of letter dated 24.07.2014 sent by the complainant to the

        Insurance Ombudsman, Kochi. 

A6 :  Invoice bill dated 22.08.2014 issued by Popular Hyundai, Kottayam. 

A7 :  Bill dated 19.08.2014 issued by Popular Hyundai, Kottayam.

A8 :  1^st information report.

Witness examined on the side of the opposite parties:

DW1  :  Abraham Chacko

DW2  :  Mohammed Shajir. A 

Exhibits marked on the side of the opposite parties:

B1 :  Copy of motor survey report dated 12.05.2014. 

B2 :  Motor Insurance proposal form. 

B3 :  Copy of policy schedule. 

B4 :  Copy of terms and conditions of the private car package policy. 

B5 :  Copy of letter dated 06.05.2014 sent by the complainant to

        1^st opposite party.                         

                                                                                        (By Order)

Copy to:- (1) Joseph Decruz, Maria Gardens, Mannadisala.P.O.,

                    Vechoochira – 686 511, Pathanamthitta.                                              (2)  The Manager, United India Insurance Co. Ltd.,

           1^st Floor, Manakalam Palliyil Building,

           Post Office Junction, Pazhavangadi.P.O., Ranni,

           Pathanamthitta – 689 573.

     (3) Mr. Jose. K.A., Administrative Manager,    -do.  –do.

     (4) The Deputy General Manager, United India Insurance Co. Ltd.,

          Regional Office, Saranya, Hospital Road, Ernakulam.

     (5) The Stock File.