KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 482/2009
JUDGMENT DATED:2-11-2010
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
1. M/s Oriental Insurance Co. Ltd.,
PB No.63, II Floor,
Unity Complex,
S.N. Park Road, Kannur-1.
: APPELLANTS
2. The Oriental Insurance Co. Ltd.,
PB No.63, II Floor,
Unity Complex,
S.N. Park Road, Kannur-1.
(By Adv. Sri.G.S. Kalkura)
Vs.
1. V.P. Nizar,
Naseebas, Saulipalli,
Post Kottalli, PAH V.K.Moidu,
V.P.House, P.O.Kottalli.
(By Adv.Sri.Prabhu Vijayakumar)
: RESPONDENTS
2. Popular Mega Motors (India) Ltd.,
KMC/X/25a Opp. PCK. Ltd.,
Collectorate Post, Kottayam-7.
(By Adv.Smt.Suja)
JUDGMENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellants were the opposite parties 1 and 2 and 1st respondent was the complainant and the 2nd respondent was the 3rd opposite party in OP.386/01 on the file of CDRF, Kannur. The complaint therein was filed alleging deficiency of service on the part of opposite parties 1 to 3 being the insurer and repairer respectively of the damaged vehicle. The complainant claimed a total of Rs.4,22,827/- as compensation from the opposite parties.
2. The opposite parties 1 and 2 entered appearance and filed written version denying the alleged deficiency of service. They contended that the loss suffered by the complainant/insured has been assessed by the approved surveyor and based on the assessment the damages to the tune of Rs.1,00,173/- was paid to the complainant/insured. It is further contended that there was no delay on the part of opposite parties 1 and 2 in settling the insurance claim and that the delay occurred due to the negligence of the complainant and that of the 3rd opposite party repairer because of the dispute between the complainant and the 3rd opposite party/repairer. Thus opposite parties 1 and 2 prayed for dismissal of the complaint.
3. Third opposite party entered appearance and filed written version denying the alleged deficiency of service. They contended that the delay occurred due to the dispute between the complainant/insured and opposite parties 1 and 2, the insurer of the vehicle; that the damaged vehicle was repaired within 6 months, on getting consent from the complainant, the owner of the vehicle. Thus, 3rd opposite party prayed for dismissal of the complaint filed against them.
4. Before the Forum below, the power of attorney holder of the complainant was examined as PW1 and an officer of the 1st opposite party, M/s Oriental Insurance Company Ltd was examined as DW1. The approved surveyor who filed B3 survey report has been examined as DW2. Exts.A1 to A14 and B1 to B3 documents were also produced and marked on the side of the complainant and opposite parties 1 and 2. On an appreciation of the evidence on record, the Forum below found deficiency of service on the part of opposite parties 1 to 3 and thereby they were directed to pay a compensation of Rs.75,000/- to the complainant with future interest at the rate of 10% per annum from the date of receipt of the order till realization and cost of Rs.1000/-. The opposite parties 1 to 3 were made liable to pay the aforesaid compensation to the complainant. It is against the aforesaid order dated 14th May 2009 the present appeal is filed by opposite parties 1 and 2 (M/s Oriental Insurance Company Ltd.)
5. We heard the learned counsel for the appellants/opposite parties 1 and 2 and that of the 1st respondent/complainant and 2nd respondent/3rd opposite party. The appellant’s counsel much relied on the testimony of DW2, the approved surveyor and B3 survey report and argued for the position that the appellant/insurance company paid the damages to the complainant as assessed by the approved surveyor. Thus, the appellants prayed for setting aside the impugned order passed by the Forum below.
6. On the other hand, the learned counsel for the 1st respondent/complainant supported the impugned order passed by the Forum below and requested for dismissal of the present appeal. On the other hand, the learned counsel for the 2nd respondent/3rd opposite party submitted that there was no deficiency of service on the part of the 3rd opposite party in carrying out repairs to the damaged vehicle and that the 3rd OP repairer carried out the repair works on getting consent from the complainant/insured. Thus, the 2nd respondent prayed for exonerating the 3rd opposite party/repairer from the liability to pay the compensation ordered by the Forum below.
7. There is no dispute that the 1st respondent/complainant was the registered owner of the insured vehicle bearing registration No.KL-4B-7315 and that the said vehicle was insured with the appellants/opposite parties 1 and 2 M/s Oriental Insurance Company Ltd. The insured vehicle met with an accident on 17/1/2000 at a place called Vavvakkavu and sustained heavy damage. The loss to the damaged insured vehicle was assessed by the surveyor who submitted B3 survey report. As per B3 survey report net loss suffered by the complainant/insured would come to Rs.1,00,173/-. The definite case of the appellants/opposite parties 1 and 2 (Insurance Company) is that they have the liability to indemnify the 1st respondent/complainant/insured to pay the loss which has been assessed by the approved surveyor.
8. The 1st respondent/complainant entrusted the insured damaged vehicle with the 2nd respondent/3rd opposite party, Popular Mega Motors (India) limited. The surveyor who was examined as DW2 has also admitted the fact that the 2nd respondent/3rd opposite party, Popular Mega Motors India Ltd is the authorised dealer and approved workshop of Tata vehicles. It is to be noted that the insured vehicle was a Tata Mini lorry. The 2nd respondent/3rd opposite party, approved dealer and repairer estimated the loss to the insured vehicle at Rs.2,69,758.95 But the appellants/opposite parties, (Insurance Company) were not prepared to pay the said amount which was estimated by the 3rd opposite party/repairer Ext.A1 is the estimate issued by the Repairer (3rd OP). But thereafter, the 1st respondent/complainant (insured) and the 2nd respondent/3rd opposite party, repairer came to an understanding and thereby agreed to carryout the repair works to the damaged vehicle at Rs.2,05,000/-. The complainant and the 3rd opposite party/repairer categorically admitted the execution of such an agreement dated:8/1/2001 agreeing to repair the vehicle at a cost of Rs.2,05,000/-. Unfortunately, the complainant or the 3rd opposite party/repairer failed to produce the aforesaid agreement. On the other hand, the complainant and the 3rd opposite party, repairer categorically admitted the agreement entered into between the complainant and the 3rd opposite party agreeing to repair the damaged vehicle at a cost of Rs.2,05,000/-. The 3rd opposite party has also admitted the fact that they received the aforesaid sum of Rs.2,05,000/- by way of repair costs from the complainant. It is to be noted that the appellants/opposite parties (M/s Oriental Insurance Company Ltd) have no case that the complainant and the 3rd opposite party colluded together and thereby agreed to repair the vehicle at a cost of Rs.2,05,000/-. So, it can be concluded that the repair cost actually incurred by the 1st respondent/complainant (insured)_ was Rs.2,05,000/-. In the ordinary course, the appellants/opposite parties being the insurer of the vehicle is liable to indemnify the insured (complainant) by paying the actual repair cost incurred by the complainant/insured. So, the claim for Rs.2,05,000/- made by the complainant is to be treated as just and reasonable.
9. The appellants/opposite parties 1 and 2 deputed DW2 as the approved surveyor. The aforesaid surveyor submitted B3 survey report assessing net loss at Rs.1,00,173/-. There is no case for the appellants/opposite parties or the approved surveyor that the 2nd respondent/3rd opposite party, approved repairer was ready and willing to carryout the repair works at a cost of Rs.1,00,173/-. The approved surveyor or the appellants could not point out any other repairer who was willing to carryout the repair works at Rs.1,00,173/-. It is pertinent to note that 2nd respondent/3rd opposite party was the approved dealer and repairer of Tata Vehicles. Admittedly, the insured vehicle is also a vehicle manufactured by Tata. So, the 1st respondent/complainant being the insured of the vehicle is entitled to get the vehicle repaired by the approved repairer. But, at the same the approved repairer was willing to carryout the repair work at Rs.2,05,000/-. Then, it is not just or proper on the part of the appellants/opposite parties in insisting the complainant/insured to get the repair work carryout at Rs.1,00,173/-. Otherwise, the appellants/opposite parties 1 and 2 being the insurer of the vehicle should point out a repairer for effecting repair works at Rs.1,00,173/-. Thus, in all respects, it can very safely be concluded that the actual repair cost incurred by the complainant would come to Rs.2,05,000/- and that the appellants/opposite parties being the insurer of the vehicle is bound to pay the aforesaid sum of Rs.2,05,000/- to the 1st respondent/complainant.
10. DW1, the Administrative Officer of the appellant/insurance company categorically admitted that they (Insurer) paid a sum of Rs.1,00,173/- only to the complainant/insured. It is also admitted by DW1 that the said amount of Rs.1,00,173/- was paid to the complainant only in September 2001. It is to be born in mind that the insured vehicle met with an accident on 17/1/2000. In effect the appellant/insurance company took about one year and 9 months to pay the insurance amount to the complainant/insured. The aforesaid delay in paying the insurance amount would amount to deficiency of service on the part of the appellants/opposite parties. It is also to be noted that the 3rd opposite party/repairer took 6 months time to carryout the repair works on getting the alleged consent from the complainant. Otherwise, the 2nd respondent/3rd opposite party repairer had also taken about one year 9 months to carryout the repair works for the damaged vehicle. Thus, the Forum below can be justified in finding opposite parties 1 to 3 guilty of deficiency of service.
11. The order passed by the Forum below against the 2nd respondent/3rd opposite party (repairer) has become final. The 3rd opposite party in OP.386/01 has not preferred any appeal from the impugned order dated:14/5/2009 passed by CDRF, Kannur. Thus, the order passed by the Forum below finding the opposite parties deficient in rendering service to the complainant is to be upheld.
12. The Forum below has awarded compensation of Rs.75,000/- to the complainant. Considering the facts, circumstances and evidence on record, it can be seen that the Forum below has taken a lenient view in awarding compensation of Rs.75,000/-. We do not find any sustainable reason or ground to interfere with the impugned order passed by the Forum below. The Forum below has also awarded reasonable cost of Rs.1000/- to the complainant. The same is also confirmed. The Forum below has only awarded future interest at the rate of 10% per annum from the date of receipt of copy of the impugned order. Thus, in all respects, the impugned order is to be confirmed. The present appeal deserves dismissal.
In the result the appeal is dismissed. The impugned order dated:14/5/2009 passed by CDRF, Kannur in OP.386/01 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
VL.
M.K.ABDULLA SONA: MEMBER
