By Sri. MOHAMED ISMAYIL.C.V, MEMBER
The complaint is filed under Section 35 of the Consumer Protection Act, 2019:-
1. The complainant is owner of Scorpio vehicle numbered as KL-53 E -3003 and the same is insured with the second opposite party. The first opposite party is the authorised service centre of the vehicle. On 27/10/2019 the vehicle of the complainant had collided with a Jeep numbered as 9896. The place of accident was at Kottappuram and the son of the complainant was on the driving seat. The accident was reported with Police Station at Valancheri and a crime was registered as 372/2019 against the driver of Jeep. It is pleaded that the vehicle had sustained heavy damage of Rs. 4,00,000/-. Hence the complainant had approached the second opposite party and submitted a claim for total loss. After receipt of Survey report the opposite parties had opted for repair work and made assurance of reimbursement of repair work. Hence the complainant had handed over vehicle to the first opposite party for repair work. After completion of repair work, the first opposite party had claimed a total of Rs. 4,00,000/- as cost of repair work. However the opposite parties demanded Rs.1,24,500/-from the complainant as balance after deduction of depreciation of the vehicle and the same was paid by him. According to the complainant, the second opposite party is liable to make payment of entire cost of repair work. It is further averred that the amount shown as expenses of repair work is unbelievable and untrustworthy. The first opposite party had collected a huge amount from the second opposite party under benefit of insurance coverage.
2. According to the complainant, the first opposite party had failed to repair damage of the vehicle properly. It is averred that the first opposite party handed over the vehicle on assurance that all defects were rectified properly. But the vehicle continued to show symptoms of defects in a convincing manner. The power steering was tight and gear shifting was also difficult. Moreover, abnormal sound was also come out from the vehicle while driving. All these problems are made known to the first opposite party. But no proper action was taken by them. The second opposite party had made reimbursement of repair cost without inspecting the actual condition of the vehicle. The first opposite party had promised to repair the defect of gear after availing required nut. Thereafter vehicle became in an unusable condition. Hence the same was handed over to the first opposite party for rectification. It is alleged that the first opposite party had collected Rs.15,000/- for replacement of clutch disk. It is further alleged that the opposite party had removed all scraps of the vehicle without consent. Wheel alignment of the vehicle was also got defect. Moreover the first opposite party had unauthorisedly removed stepney wheel from the vehicle. Now the vehicle is not in a running condition and complainant is compelled to take the vehicle into service station frequently. It is alleged that the first and second opposite parties were colluded with each other and illegally collected a huge amount by repairing a total loss vehicle under the pretext that was in repairable condition. The act of the opposite parties have caused financial loss, inconvenience and mental agony to the complainant. The calculation of depreciation amount was in accurate and without any basis. Hence the complainant prayed for directions to the opposite parties to pay Rs. 5,00,000/- as compensation for the sufferings of financial loss, physical and mental agony resulted due to deficient act of the opposite parties. Moreover, the complainant also prayed for a direction to the opposite party to pay Rs. 4,50,000/- as IDV of the vehicle and also claimed cost of proceedings.
3. The opposite parties appeared on notices and submitted written versions separately.
4. The first opposite party denied allegations made in the complaint and contended that there was no deficiency in service from their side. The first opposite party admitted that the vehicle of the complainant had met with an accident and they had carried out repair work of the vehicle under the instructions of the second opposite party. The surveyor of the second opposite party had assessed damage of vehicle in the presence of the complainant’s men. According to the opposite party, the complainant was well aware of estimate of repair amount and depreciation. The repair work was done after getting approval from the complainant. According to the first opposite party, the second opposite party is authorised to determine whether the claims comes under total loss or repairment. It is contended that the opposite party would not be in a position to analyse any other pre-existing defects or running complaints at the time of repair work done related to accident unless specifically sought for by the complainant. It is ascertained that no other complaints were reported by the complainant for repair work other than damages caused due to accident. It is contended that allegation of deficiency in service was raised only after 5 months of period since the date of completion of repair work. The first opposite party never received any complaint of alignment. All those alleged defects might have occurred due to wear and tear as the vehicle had been manufactured in the year 2012. The allegation of non-availability of nut is false and clutch disk was replaced after 6 months of repair work. According to the first opposite party, they did not receive any huge amount from the insurer. The complainant had paid Rs.90,000/- on 19/12/2019 as advance. The vehicle was delivered on 1/2/2020 after repair work. The complainant had made payment of balance of Rs. 29,524/- towards depreciation amount on 06/02/2020. The complainant did not make any complaint related to repair work at that time. Moreover, the first opposite party had received Rs. 1,52,257/- on 19/03/2021 from the second opposite party as cost of repair work under insurance coverage. According to the first opposite party the settlement was made after completion of repair work and on the satisfaction of surveyor of the second opposite party also. The first opposite party contended that there is no deficiency in service or unfair trade practice from their side and complainant is not entitled for any relief .
5. The second opposite party denied allegation of deficiency in service and unfair trade practice. The second opposite party admitted that the complainant had availed a Private Car Package Policy and the same was valid between 21/10/2019 to 20/10/2020. The policy was accepted after convincing terms and conditions. The second opposite party admitted accident of insured vehicle and Acceptance of claim application forwarded by the complainant. According to the second opposite party, they had immediately appointed an independed surveyor and inspection was done in the presence of the complainant. It is contented that after verification of survey report and documents produced by the complainant, claim forwarded by the complainant was settled for an amount of Rs. 1,47,096/-. It is contented that the complaint is bad for non-joinder of necessary party as claim was settled on the basis of report of surveyor and loss assessor. It is also contended that assessment made by the surveyor was proper and the complainant was issued a discharge voucher for full and final settlement of the claim and the complainant was satisfied with the same. Moreover the second opposite party remitted the cost of repair work to the first opposite party on the basis of direction given by the complainant. There is no deficiency in service from the side of the second opposite party. Hence prayed for dismissal of complaint.
6. The complainant and opposite parties have submitted proof affidavits as part of their respective evidence. The documents submitted by the complainant in support of pleadings in the complaint are marked as Ext.A1 to A4. Ext.A1 document is the copy of the quotation bill dated 23/11/2019 for Rs. 3,85,065/- issued by the first opposite party in favour of the complainant. Ext. A2 document is the tax invoice dated 30/01/2020 for Rs.2,68,459/- issued by first opposite party to the complainant. Ext. A3 document is the copy of tax invoice dated 08/07/2020 for Rs. 11,553/- issued by the first opposite party to the complainant. Ext. A4 document is the photograph of the vehicle showing its involvement in accident.
7. The documents produced by the first opposite party are marked as Ext. B1 and B2. Ext. B1 document is the copy of service history of insured vehicle. Ext. B2 document is the copy of Maintenance Manual of the insured vehicle. The documents produced by the second opposite party are marked as Ext. B3 to B9. Ext. B3 document is the copy of policy schedule of the insured vehicle. Ext. B4 document is the copy of claim form submitted by the complainant before the second opposite party. Ext. B5 document is the copy of work sheet for Motor O.D. Claim Settlement. Ext. B6 document is the copy of Certificate of Registration of the vehicle. Ext.B7 document is the copy of tax invoice dated 30/01/2020 issued by the first opposite party to the complainant. Ext. B8 is the copy of discharge voucher issued by the complainant in favour of the second opposite party. Ext.B9 document is the copy of claim payment voucher issued by the second opposite party.
8. The complainant had submitted an interim application numbered as IA 504/2021 to inspect the condition of the vehicle. The application was allowed by the Commission and appointed Motor Vehicle Inspection Tirur, Joint RTO, Civil station, Tirur as Expert Commissioner. But the expert Commissioner failed to inspect the vehicle for some reasons. The information given to AMVI with regard to registration number was incorrect and the vehicle was situated within the jurisdiction of joint RTO, Perinthalmanna. Hence the complainant submitted another interim application numbered as IA 10/2024 to appoint an expert Commissioner from the office of Joint RTO, Perinthalmanna. The Commission allowed the application and appointed Mr. Pradeep.K, AMVI of Pertinthalmanna as Expert Commissioner. The Expert Commissioner inspected the vehicle and submitted a report and the same is marked as Ext.C1 document. The Commission find that the complaint was filed on 18/9/2020 and IA No.504/2021 was filed on 7/12/2021 for appointing the Expert Commissioner from Tirur RTO. Later on 04/01/2024 IA No. 10/2024 was filed for appointing AMVI from Joint RTO Perinthalmanna. A considerable delay had occurred in getting report from the Expert Commissioner which caused long pendency of the matter .
9. Heard the complainant and the opposite parties in detail. The Commission has been examined all records on file thoroughly and considered following points to adjudicate the matter:-
- Whether the opposite parties have committed deficiency in service towards the complainant?
- Relief and cost?
10. Point No.(i):-
It is evident from the facts and circumstances of the case that the complainant is owner of the vehicle No.KL-53E-3003 and the vehicle had met with an accident on 27/11/2019. The complainant has produced Ext.A4 document to prove the occurrence of accident. The opposite parties also admitted involvement of insured vehicle in accident. The second opposite party is the insurer of the vehicle and admitted issuance of policy to the vehicle. It is argued by the complainant that the vehicle was in total loss but the vehicle was repaired on the basis of assurance given by the opposite parties. But the first opposite party collected a huge amount from the second opposite party as expenses incurred for repair work under policy coverage. In addition, the first opposite party also collected Rs.1,24,500/- from the complainant as depreciation . It is argued that the first opposite party had claimed a total Rs. 4,00,000/- as cost of repair. The complainant has produced Exts. A1 document to prove the estimate of cost given by the first opposite party. The complainant has produced Ext. A2 document would show actual expenses incurred for repair work. The grievance is that at the time of delivery of vehicle, the first opposite party had made assurance that all damages occurred in accident were properly repaired. But the vehicle had shown symptoms of defects in a convincing manner right from the delivery of the vehicle. The power steering was tight and gear shifting became difficult, abnormal sound was originated from the vehicle. But the first opposite party did not rectify those defects. Later the complainant had incurred Rs. 15000/- for replacement of clutch disk and produced Ext. A3 document in that regard. It is alleged that the opposite parties were colluded with each other and a huge amount was unauthorisedly collected from the complainant in the pretext of depreciation charge. But the opposite parties had made believe the complainant that damages were reparable.
11. On the other hand, the opposite parties vehemently opposed arguments of the complainant. It is argued that vehicle was handed over after inspection done by the complainant and the surveyor of the insurer. The allegation of defective repair work was raised only after a period of 5 months from the date of delivery of the vehicle. It is further argued by the first opposite party that the vehicle was delivered on 01/02/2020 after completing repair work. The complainant had made payment of balance of Rs. 29,524/- towards depreciation amount on 06/02/2020. Hence it is argued that had any defect been detected in repair work at earlier stage definitely the complainant could have withheld balance payment. The second opposite party argued that the complainant had approved settlement of claim and directed them to reimburse expenses of repair work to the first opposite party. The second opposite party has produced Ext. B8 and Ext. B9 documents in that regard. It is also argued by the opposite parties that all the defects occurred to the vehicle in the accident were repaired properly. If any defects are found later, it is likely to be due to normal wear and tear.
12. In the evaluation of evidence, it can be seen that insurance benefit as per Ext. B1 document had been disbursed properly by the second opposite party . There is no document produced by the complainant to show that calculation of depreciation amount was incorrect and without any basis. The Commission also find that the complainant has raised complaints of tight power steering , defect of gear shifting, abnormal sound and replacement of clutch disk. After a long period of 5 months’ duration. It has come out in evidence that vehicle was delivered after repair work on 01/02/2020. The balance of depreciation amount was paid by the complainant on 06/02/2020. But there is no document with regard to reporting of complaints before the first opposite party. Hence the Commission find that there is no evidence to prove allegation that the first opposite party had done repair work defectively and improperly. Moreover there is no evidence adduced by the complainant to prove the allegation of unauthorised removal of stepeney wheel and scraps of the vehicle by the first opposite party.
13. The Commission find that allegation of collusion between the first and second opposite parties in connection with collection of abnormal amount in the pretext of repair work under policy coverage is also not proved. It has come out in evidence that the complainant had an opportunity to inspect the condition of the vehicle at the time delivery or in between 01/02/2020 and 06/2/2020. But no such inspection was done by the complainant. Moreover the allegation with regard to replacement of clutch disk as per Ext. A1 document cannot be considered as part of damage occurred in the accident. Ext. B8 and Ext. B9 documents produced by the second opposite party would show that there was a settlement between the complainant and insurer with regard to disbursement of insurance benefit which also signifies involvement of the complainant in the matter of approval of claim.
14. The Commission examined Ext. C1 report for just and proper adjudication of the matter. The Commission also considered objection filed to the Ext.C1 document by the parties involved in this matter. It is opined by the Expert Commissioner that hard steering and non- self centering of steering wheel, vehicle pulling to LH side due to wheel alignment problem and Rear RH side door not in align with body makes gap between door and body are probably because of the accident happened to the insured vehicle. But the Commission find that the opinion of Expert Commissioner cannot be taken as a cogent evidence to prove allegation of defective and improper repair work of the vehicle by the first opposite party . There is no dispute with regard to date of accident i.e., 20/07/2019. But vehicle was inspected by the Expert Commissioner on 20/2/2024. So findings of some defects of the insured vehicle by the Expert Commissioner are made after a long gap of more than 5 years. The Commission also consider the fact that the complainant did not produce any documents to show that periodical services were properly done by him. Moreover the Commission consider argument of the opposite parties that vehicle was manufactured in the year 2012 and normal wear and tear due to usage could have caused damage to the vehicle . On the basis of deliberations made above the Commission find that the complainant failed to substantiate allegation of deficiency in service on the part of the opposite parties, hence complainant is dismissed.
Dated this 25th day of October, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1: Document is the copy of the quotation bill dated 23/11/2019 for Rs.
3,85,065/- issued by the first opposite party in favour of the complainant.
Ext.A2: Document is the tax invoice dated 30/01/2020 for Rs.2,68,459/- issued by
first opposite party to the complainant.
Ext.A3: Document is the copy of tax invoice dated 08/07/2020 for Rs. 11,553/- issued
by the first opposite party to the complainant.
Ext.A4: Document is the photograph of the vehicle showing its involvement in
accident.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B9
Ext. B1: Document is the copy of service history of insured vehicle.
Ext. B2: Document is the copy of Maintenance Manual of the insured vehicle.
Ext. B3: Document is the copy of policy schedule of the insured vehicle.
Ext. B4: Document is the copy of claim form submitted by the complainant before
the second opposite party.
Ext. B5 : Document is the copy of work sheet for Motor O.D. Claim Settlement.
Ext. B6 : Document is the copy of Certificate of Registration of the vehicle.
Ext.B7 : Document is the copy of tax invoice dated 30/01/2020 issued by the first
opposite party to the complainant.
Ext. B8: Copy of discharge voucher issued by the complainant in favour of the second
opposite party.
Ext.B9: Document is the copy of claim payment voucher issued by the second
opposite party.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
