STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :

                                           At  HYDERABAD

                                                      FA 372 of 2014

                                                   AGAINST

                 CC No. 363 of 2013, DISTRICT FORUM III, HYDERABAD

Between :

Dr. Smt. D. Marilyn Prabhalatha,

W/o D. Prabhakar Rao,

Age : 50 years, Occ : Doctor,

R/o 10-3-27/6, East Marredpally,

Secunderabad                                     .. Appellant/complainant

And

1. M/s. Bharathi Axa General Insurance Company

Rep. by its Managing Director,

III Floor, 6-3-666/B/6, Gokul Towers,

Panjagutta, Hyderabad – 500 082.

2. M/s. Talwar Hyundai Motors,

Rep. by General Manager,

Situated at Tadbund road,

Bowenpally Secunderabad

( proforma party)                  ..        Respondents/Opp. parties

Counsel for the Appellant                  :   M/s. Sri S. Ashok Anand

Counsel for the Respondents             :    M/s.Sri Katta Laxmi Prasad for R-1

                                                                      M/s. T. Sunil Kumar for R-2/

Coram                :

                 Honble Sri Justice B. N. Rao Nalla         …      President

                                           And

                          Sri Patil Vithal Rao              …      Member

                          Tuesday, the Sixth Day of March

                                  Two Thousand Eighteen

Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )

                                                            ***

1)       This is an appeal filed under Section 15 of the Consumer Protection Act by the unsuccessful complainant praying this Commission to set aside the impugned order dated 04/06/2014  made in CC  363 of 2013  on the file of the  DISTRICT FORUM III, Hyderabad.

2)       For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.

3).      The case of the complainant, in brief, is that she purchased HUNDAI I 20  Registered bearing No. AP10 BC 9119 on 29.11.2012 from M/s. Talwar Hyundai Motors  and it was insured with the 1^st opposite party Insurance company vide policy  bearing No. FPV/I 1096397/51/11/C 15152 for the period from 29.11.2012 to 28.11.2013 , which, met with an accident on 07.03.2013 and the said vehicle was sent for repairs to the authorized HUNDAI showroom and she incurred a total expenditure of Rs.2,26,509/-.  The Insurer allowed only a sum of Rs.1,33,204/-, which is 60% of the  claim and requested her to pay the balance amount of Rs.88,989/- to take delivery of the vehicle from the show room.   Due to delay in processing the claim, she had to engage a private Taxi paying a sum of Rs.40,000/-. She got issued legal notice dated 03.06.2013 to the insurer to pay the entire claim amount but there was no reply which amounts to deficiency in service. Hence the complaint to direct the opposite parties  to pay Rs.2,26,509/- towards total costs  of the repairs, Rs.50,000/- towards compensation for mental agony, Rs.40,000/- spent towards hiring taxies and costs.

4).      The first opposite party opposed the above complaint by way of  written version, while admitting that the vehicle met with an accident on 07.03.2013 and on the submission of insurance claim by the complainant, their surveyor in his preliminary report dated 01.04.2013 stated that “ the insured insisting for body shell or total loss but technically the body shell easily repairable”. They paid an amount of Rs.1,37,519.70 ps in accordance with the terms and conditions of the policy. There is no delay in settling the claim.   Hence there is no deficiency in service on their part and hence prayed to dismiss the complaint.

5).      The second opposite party while admitting that the vehicle in question, which was insured and  met with an accident, was brought to their show room on 07.03.2013 and after carrying  out all the necessary repairs kept ready for delivery on 31.05.2013, contending that though the first opposite party allowed an amount of Rs.1,33,204/-,but, the complainant failed to take delivery by paying an amount of Rs.93,305/-, which, incurred  charges of Rs.300/- per day from 31.05.2013 till delivery.  It provided a stand-by car no. 688, Santro, for exclusive use of the complainant till the completion of the repairs to the vehicle in question. It has no knowledge of engaging a taxi. The dispute is between the complainant and the first opposite party insurance company. There is no claim against it. Hence prayed to dismiss the complaint against it and direct the first opposite party to clear the sum of Rs.2,26,509/- along with parking charges incurred and take delivery of the vehicle.

6)       During the course of enquiry before the District Forum, in order to prove her   case, the complainant filed her  evidence affidavit and got marked Ex.A1 to A-8 and the opposite party No.1  filed evidence affidavit and got marked Ex. B1 to B14.

7)       The District Forum, after considering the material available on record,  dismissed the complaint.

8)       Aggrieved by the said order, the complainant   preferred this appeal before this Commission.

9).      Appellant and first respondent have advanced their arguments reiterating the contents in the appeal grounds, rebuttal thereof along with written arguments and heard them. There is no representation for the second respondent though vakalat was filed on its behalf and in fact it is a proforma party.

10)     The points that arise for consideration are,

(i)       Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?

(ii)      To what relief ?

11).   Point No.1 :

There is no dispute that the appellant/complainant insured her  vehicle in question with the first opposite party Insurance company  vide policy  bearing No. FPV/I 1096397/51/11/C 15152 for the period from 29.11.2012 to 28.11.2013 , which, met with an accident on 07.03.2013 and the said vehicle was sent for repairs to the authorized HUNDAI showroom and she incurred a total expenditure of Rs.2,26,509/-.  The Insurer allowed only a sum of Rs.1,33,204/-, which is 60% of the  claim and requested her to pay the balance amount of Rs.88,989/- to take delivery of the vehicle from the show room.

12)     The contention of the appellant/complainant is that since  the first respondent Insurance company failed to pay the entire claim amount and the vehicle was in show room, she had to engage a taxi for  an amount of Rs.400/- per day and the second opposite party stated that it charged Rs.300/- per day from 31.05.2013 till the date of delivery and hence claims  to clear the sum of Rs.2,26,509/- along with parking charges incurred and take delivery of the vehicle.  The second respondent/second opposite party rebutted that there was no evidence to show that she had engaged a taxi.

13).    The District Forum observed that as per Ex. B13 survey report dated 20.05.2013, the first respondent/1^st opposite party allowed a sum of Rs.1,37,519/- out of the total cost of the repairs of Rs.2,26,509/- as per the terms and conditions since the repair liability will not  cross 75% of IDV and when the appellant/complainant is not entitled to total loss, he is not entitled to the entire claim and there is no illegality and opined that the appellant/complainant paid an amount of Rs.22,000/- but the first respondent/first opposite party did not release the amount of Rs.1,33,204/- as ordered and hence the second respondent/second opposite party did not release the amount.

14).    The contention of the counsel for the appellant/complainant is that the District Forum ought to have seen that Ex. B-13 final survey report was not done in the presence of the appellant or her representative and the conclusion reached by the surveyor is without conducting the Motor Repair Assessment-cum-Processing sheet marked as Ex.B-12 and the appellant is entitled to the total cost of repair of the vehicle.  Counsel for the appellant did not make any assessment of loss of  damage caused to the vehicle on his own to show that the loss assessed by the surveyor is not correct.  Further he did not show as to how and   on what grounds the appellant is entitled to the total cost of repair to the vehicle when 1/3 rd  is to be deducted from the total expenses incurred as per the terms and conditions of the insurance contract as evidenced in Ex. B5.

15).              After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides,   this Commission is of the view that there is no infirmity or irregularity in the impugned order. There are no merits in the appeal and hence it is liable to be dismissed.

16).    Point No. 2 :

In the result, the appeal is dismissed  confirming the impugned order dated 04.06.2014 in CC 363 of 2013 passed by the District Forum III, Hyderabad.    There shall be no order as to costs. Time for  compliance four weeks.

                                                            PRESIDENT                     MEMBER                                                                           Dated : 06.03.2018.