IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 9th day of November, 2018
Filed on 11.07. 2016
Present
1. Sri.E.M. Muhammed Ibrahim , BA,LLM (President)
2. Smt. Sheela Jacob, B.com,LLB (Member)
in
CC/No.234/2016
Between
Complainant:- Opposite party:-
Sri.Santhosh 1. ICICI Insurance
S/o Karthikeyan, 3rd Floor,
Kochuvazhayil, Shanmugham,
Kanjikkuzhi, Muhamma, Cochin.
Cherthala. (Adv.C.Muraleedharan)
(Adv.Jose Y James) 2. Focoz Motors
Focus Tower,
Edappally, Cochin
(Adv.V.Krishnamenon)
3. Tata Motors Finance Ltd.,
Near Aiswarya Auditorium,
Alappuzha.
(Adv.Babu Joseph)
SRI. E.M.MUHAMMAD IBRAHIM (PRESIDENT)
This case is based on a consumer complaint filed U/s 12 of the Consumer protection Act. The averment in the complaint stands as amended, in short, are as follows:-
The complainant is the owner of the vehicle bearing Reg.No. Kl 32-H-5186. He purchased the vehicle by availing loan from the 3rd opposite party TATA Motors Fin ltd and also by paying Rs.50,000/- in cash. He has also insured his vehicle with 1st opposite party insurance company. This vehicle collide with Torrus vehicle bearing Reg.No. KL – 32- E- 2637 and thereby his sustained damage hence he entrusted his vehicle at the showroom at Valanjavazhi. The complainant has been plying the vehicle to earn his lively hood. He has purchased the vehicle by availing higher purchase loan and by using the income obtained by plying the vehicle he has been earning his lively hood and also paying higher purchase instalments without in fail. However the vehicle has been not repaired from the showroom in time and the same has caused much harassment to him as he could not ply the vehicle and getting any income and he was having no other use of income for his lively hood and also to pay the loan instalments.
2. The vehicle has been validly insured for Rs. 2,64,948/- with the 1st opposite party insurance company. Immediately when the accident took place he informed the matter to the 1st opposite party insurance company and as directed by the 1st opposite party he produced to the vehicle at the garage of the 2nd opposite party on 10/05/2016. The 2nd opposite party assured that they will repair the vehicle within 20 days. The estimate of the repair of the vehicle was duly prepared he filled up and signed the claim form and entrusted the same to the 2nd opposite party service centre which was forward to 1st opposite party. But the 1st and 2nd OP caused inordinate delay in repairing the vehicle and ultimately on 23/9/2016 only they have returned the vehicle to the complainant after carrying out the repair work. During the above period of 4 months the complainant used to walk up and down and demanded opposite party 1 and 2 to carry out the repair work without delay. But they have blaming each other and due to their wilful delay in sanctioning and completing the work. According to the complainant the above delay amounts to deficiency in service on the part of the 1st &2nd OP. The complainant would further alleged that though he intimated his pathetic conditions and requested opposite party 1 and 2 to carry out the repair work without delay they did not pay need to the same and coused inordinate delay in getting his vehicle repaired. However in the meantime he hired another vehicle at the rate of Rs. 1300 per day for the purpose of carrying school going children from the respective residence and dropped at the school as agreed by him and thereby he sustained heavy loss. In the circumstance complainant prayed to award Rs. 50,000/- as compensation from the opposite parties to make mound his loss and also Rs. 15,000/- as compensation for the pain and mental agony and Rs. 5000/- towards cost of the proceedings.
3. Opposite party 1&2 resisted the complaint by filing separate version and additional version after getting the complaint is amended. The contentions of the opposite party 1 and 2 in their version and additional version are more or less same which in short are as follows:-
The complaint is not maintainable either in law or on facts. the complainant is not a consumer. The opposite parties have not committed any deficiency in service or any unfair trade practice. Hence the complaint is liable to dismissed. However the 1st opposite party would admit that the vehicle belongs to the complainant met with an accident. According to 1st OP only on 19/5/2016 the complainant intimated the factum of accident to the 1st opposite party and immediately the 1st opposite party has deputed the surveyor and who inspected the damaged vehicle on the next day (20/5/2016). The 2nd OP have made an estimate on 30-5-2016 of Rs.1,47,157/- for carrying out the repair work of the vehicle. Surveyor filed the report on 20/5/2016 approving Rs. 99,178/- the estimate prepared by the surveyor was approved by the 1st OP and accordingly 2nd opposite party carried out the repair work subject to the terms and conditions of the policy. The delay caused in completing repair work and delivery of the vehicle was not due to any fault or any deficiency in service on the side of the opposite party No. 1&2 but due to the complainants unwarranted insistence for replacement body shell which could not be allowed by the 1st OP. Hence the opposite parties are not liable.
4. In the additional version OP 1&2 would contented that complainant had purposefully delayed the intimation of the alleged accident so as to avoid the spot inspection of the surveyor of the 1st OP hence the complaint has violated policy condition wilfully and therefore the complaint is liable to dismissed illumine. The 1st OP further contented that 2nd opposite party submitted its repair estimate only on 30/05/2016 for Rs. 1, 47,154/- and after perusing the estimate the surveyor submits his report on 21/5/2016 itself [it may be 31/5/2016]. As per the terms and conditions of the policy the 1st OP has transferred the admitted amount in favour of the 2nd opposite party and had obtained the satisfaction voucher duly signed. Hence the complainant is estopped from alleging any deficiency in service on the side of the 1st opposite party and approach this forum with a vexatious complaint.
5. However 2nd opposite party in this written version would contend that they have forwarded to the estimate to the insurance company as early on 17/5/16 but no approval whatsoever was obtained from the insurance company for a long time. And it was only after a month ie on 15/6/16 the 2nd opposite party obtained oral approval from the insurance company (1st OP) for carrying out the repair works. Based on the approval on the 1st , the 2nd OP placed orders for necessary parts with the manufacturer on 16/06/2016 but parts were received only on 5/7/16 and thereafter only 2nd OP would carry out the repair works. The insurance company for the reasons best known to them did not depute their surveyor for conducting resurvey of the vehicle hence the 2nd OP is no way liable or responsible for the delay of the side of the 1st OP. On deputing their surveyor for the resurvey also there way delay and only on 27/8/16 surveyor of the insurance company conducted resurvey and thereafter only the 1st Op the delivery of the vehicle was made to the complainant on 23/09/16 after being convinced of the work done and expressing satisfaction of the work,the complainant taken delivery of the repaired vehicle. In the circumstance the 2nd OP cannot be held liable and there is no deficiency in service on the 2nd opposite party and hence not liable to pay compensation to the complainant.
6. 3rd opposite party however would admitted that the complainant has availed a loan of Rs.2,37,500/- for purchasing a new magic IRIS 5 seater vehicle from the 3rd op by hypothecating his vehicle and also by agreeing to repay the amount with interest in 60 equated monthly instalments commencing from 2/7/15 to 2/6/2020. Complainant is bound to remit monthly instalments as agreed but the complainant has defaulted to pay a few instalments and if the complainant continues to be a defaulted the and 3rd OP is bound initiate legal proceedings against the complainant. No relief sought against the 3rd OP and relief sought only against the 1st and 2nd OP and they are only liable. There is no deficiency in service on the side of the 3rd Op.
7. In view of the above pleadings the points that arise for consideration are:-
(1) Whether there is any deficiency in service on the side of the opposite
party 1 and 2?
(2) Whether the complaint is entitled to get any compensation and costs
from OP 1 &2 as prayed for in the complaint?
(3) Relief and Costs?
8. Evidence on the side of the complainant consists of the oral evidence of PW1 and 2 and Ext.A1 to A9 documents.
Evidence on the side of the opposite party consists of the oral evidence of RW1 and RW2. No documentary evidence has adduced by any of the opposite parties.
9. Learned counsel for the complaint has filed notes of arguments. Learned counsel for OP 1 to 3 have not filed any notes of arguments. Counsel appearing for the complainant and Op1to 3 have not turned up to advance any oral argument.
10. Points 1 and 2:-
For avoiding repetition petition discussion of materials these 2 points are considered together:- The following are un disputed rather admitted facts in this case. The complainant is the owner of the TATA Magic IRIS passenger vehicle bearing reg. No. KL 32- H- 5146 and he purchased same by availing loan from the 3rd Op and also paying cash worth Rs.50,000/-. The above vehicle of the complainant met with an accident at about 10.30 pm on 8-5-16 by colliding with another lorry at Muhamma junction that on the same date of incident the said damaged vehicle was brought to the 2nd opposite party garage for getting it repaired, that the said vehicle was validly insured with the first opposite party insurance company for Rs.2,64,948/- and having full insurance coverage during the relevant period. The complainant approached the 2nd opposite party garage and requested to repair the vehicle under insurance coverage, but the 2nd opposite party has caused to prepare estimate by deputing the authorised surveyor only on 17-05-2016 and sent the same to the 1st opposite party. However the insurance company has not approved the estimate nor given sanction for about 1 month. It is brought out in evidence that only on 15-06-2016 the insurance company has given an oral approval of estimate and thereafter 2nd opposite party has started to repair the damaged vehicle. It is clear from the available materials that the complainant has requested the 1st and 2nd opposite party to replace the shell of the vehicle as the same was fully damaged due to the accident. But the 1st OP has refused the same. However though 1 month was elapsed the 2nd opposite party has not commenced the repair and maintenance work. It is clear from the available evidence that the 2nd OP has taken about 4 months in getting the vehicle repaired and to return the same to the complainant which according to the complainant is culpable delay and negligence and due to the inordinate delay caused by OP1 and 2 he sustained heavy financial loss apart from mental agony. It is clear from the oral evidence of PW1 and 2 that as there was inordinate delay in getting his vehicle repaired he has to hire and arrange another vehicle for carrying the students passengers from their home to the schools and for which he has to pay Rs.1,300 per day and as he was not getting sufficient income without playing his vehicle he failed to pay the monthly instalment of the loan and apart from the said financial loss he sustained mental agony for which he is entitled to get compensation.
11. Now we shall considered whether there is any inordinate delay on the part of the opposite party No. 1 and 2 in sanctioning estimate and intimating the same to the 2nd OP and carrying out the repair work of the damaged vehicle. The specific contentions of the 1st opposite party in this regard is that the complainant has insisted to replace the shell of the vehicle damaged during the accident inspite of the suggestion made by the insurance company to repair the shell. The complainant insisted to get the shell replaced with new one but the insurance company has declined the same. It is true that the request of the insured to replace any damaged portion of the vehicle is within his right. If the insurance company could not do the same they ought to have declined the same without much delay and has to intimate that fact to the insured and work shop authorities. But in this case the 1st OP taken about one month time to decline the said request of the complainant which itself would indicate that there is deficiency in service on the side of the 1st opposite party. It is further to be pointed out that there is absolutely no evidence either no oral or documentary to prove that the above delay occurred solely due to the fact that the complainant insisted to replace the damaged shell of the vehicle as contended by the opposite parties No.1 & 2.
12. Yet another contention in this regarded is that no case was registered regarding the accident which caused delay in settling the claim. However it is brought out in evidence that the G.D entry has been made by the police and same is sufficient to prove that vehicle damaged during a motor accident. According to PW1 the 2nd the opposite party has advised that G.D entry are sufficient and if the complainant would insist to register a case more time will be required to settle the claim and to recover the insurance amount. It is further to be pointed out that the OP 1 to 3 have admitted the factum of accident and the damage of the vehicle was caused during the accident. In the circumstances there is no need to register any crime to claim insurance benefit and it is well settled that the non registration of crime is not a bar to settle the insurance claim.
13. It is brought out any evidence the opposite party No.2 had agreed to get the damaged vehicle repaired within 20 days. But they have taken 4 months time to get it repaired. The materials available on record would indicate that both 1st and 2nd OP have contributed their share which are more or less equal in delaying the repair work. It is clear from the available materials that on 15-6-2016 the 2nd opposite party got an oral approval of the 1st opposite party for carrying out the repair work. It is also brought out any evidence that in the estimate and claim form the signature of the complainant has been duly obtained by the insurance company (the 2nd opposite party). Though RW1 would claim that the above documents were forward on 15th or 16th May. But according to 1st opposite party insurance company would claim that the same were received only on 30-5-16. Though the RW1 would claim that there is documentary evidence to prove that the 2nd O.P. has forwarded the claim form to the 1st opposite party without delay, RW1 has not produced any document to probalise the same. The 1st opposite party in the written version would content that the claim form was received only on 30-5-2016. If that is so there is inordinate delay in preparing the estimate and forwarding the claim form already signed by the complainant. RW1 would admit that he has obtained an approval to start work on15-6-2016 and on getting the approval they have forwarded request for getting parts of the vehicle and the same were received only on 5th July and the work has been completed only on 26 August. It is also brought out in evidence that if after completing the work on 26-8-16 the vehicle was delivered to the complainant only on 13-9-16 hence even after carrying out the repair work the 2nd opposite party has caused unjust delay in delivering the repaired vehicle to the complainant.
14. RW2 is the legal manager of the 1st opposite party. It is brought out in evidence through RW2 that on 19-5-16 it was informed that vehicle was kept at the 2nd opposite party’s guarage. However the surveyor appointed by the 1st opposite party visited only on 30-5-16 there is inordinate delay in getting the survey report in respect of the vehicle. It is brought out in evidence that the 1st opposite party having service tie up with the 2nd opposite party and therefore it is the duty of the 2nd opposite party for intimating the fact to the 1st O.P. It is also brought out in evidence that 25-6-16 the 1st O.P. approved estimate and given oral intimation to the 2nd O.P. to start the repair work. It is true that the 2nd O.P. has denied the above version of RW1 but failed to produce any documentary evidence to show that the approval was issued earlier. It is also brought out in evidence through RW1 that only on 26-8-16 the work was completed by the 2nd OP and the 2nd OP has got the final approval from the 1st OP only on the previous date of delivery of the vehicle to the complainant which is on 23-9-2016. It is also brought out in evidence that resurvey was conducted on 27-8-2016. Hence it is clear that the 1st OP after completing the repair work and getting the resurvey report has taken about one month to take a final decision.
15. It is also clear from the materials available on record that the 2nd OP has caused wilful delay in forwarding the claim form and estimate to the 1st O.P. insurance company and also taken 2 months to carry out the repair work after getting the approval. Even if the some of the spare parts were not available with 2nd O.P. he ought to have made the spare parts available by using email and internet facilities and even if the order is made through post that the company or the dealer of spare parts would forward the same within a minimum period of 2 weeks and admittedly 2 weeks time is required to carry out the repair works of the damaged vehicle. Hence it is clear that the vehicle could have repaired and returned to the complainant within a maximum period for 45 days but in this case the opposite party 1 and 2 for the reasons best known to them have taken a period of 4 months to carry out the repair work. In view of the materials available on record it is clear that there is inordinate delay in preparing the estimate, forwarding the same to the first opposite party and the 1st O.P has also shown culpable delay in obtaining survey report and granting the approval and conducting resurvey and also sanctioning the work. The 1st O.P. and the 2nd O.P. have also caused inordinate delay in carrying out the repair work and returning the vehicle after completing the repair work. In the circumstances it is clear that there is deficiency in service on the part of both 1st and 2nd O.P. as they are equally liable in causing the culpable delay in repairing the damaged vehicle of the complainant under the cover of insurance policy and delivering the same to complainant.
16. It is clear from the available materials that the complainant has been using the vehicle for earning his lively hood and also to repay the loan availed by him for purchasing the said vehicle. But as the vehicle was not available with the complainant for above 4 months he could not carry the student passengers to the school and back as already agreed by him for which he hired the vehicle belongs to PW2 for by paying a rent of Rs.300/- per day and used the same for transporting students and bringing them back and thereby he sustained loss of Rs.50,000/-.
17. The above version of PW1 and 2 remains not seriously disputed. It is also brought out in evidence that as the vehicle was not available with him he could not ply the same and get obtain income and hence could not manage to maintain the family and also defaulted in paying monthly hire purchase instalment of the vehicle. He has also sustained heavy mental agony apart from financial loss. In the circumstance it is to be pointed out that minimum period of 45 days is required to get the damages repaired under the cover of insurance policy if the O.P’s. have not shown any lagness, lapses and acted promptly as if it is their duty to get the damaged vehicle repaired within a reasonable period and settle the insurance claims within a reasonable period. But both O.P.1 and O.P. 2 failed in their respective duties. It is clear from the available materials that time taken more than 45 days by O.P. 1 and O.P. 2 to return the vehicle after carrying out the work is inordinate delay hence there is deficiency in service on the part of O.P.1 and O.P.2 for which they are bound to pay compensation to the complainant who sustained heavy financial loss apart from mental agony.
18. In view of the facts and circumstance of this case we are of the view that the complainant is entitled to get compensation for the financial loss and mental agony to the tune of Rs.25,000/- each from O.P.1 and O.P. 2. The complainant is also entitled to get Rs.2,500/- each from O.P.1 and O.P.2 each as costs of proceedings. The points answered accordingly.
19. Point No.3
In the result complaint stands allowed in the following terms:-
Opposite party No.1 and 2 are directed to pay Rs.25,000/- each as compensation to the complainant for the deficiency in service committed by each one in getting the damaged vehicle repaired by claiming insurance benefit and causing financial loss and mental agony to the complainant.
Opposite party No.1 and 2 are further directed to pay Rs.2,500/- each as cost of proceedings to the complainant.
Opposite party No.1 and 2 directed to pay an amount of compensation and costs of the proceedings order to be paid by each one within 30 days from today, failing which the complainant is allowed to realise Rs.25,000/- each from Opposite party No.1 and 2 with interest at the rate of 9% per annum from the date of complaint till realisation along with costs Rs.2,500/- each from them and from their assets.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Forum on this the 9th day of November, 2018.
Sd/-Sri.E.M.MuhammedIbrahim (President):
Sd/- Smt. Sheela Jacob (Member):
Appendix:-
Evidence of the complainant:-
PW1 - Santhosh.K(Witness)
PW2 - Haridas(Witness)
Ext.A1 - Copy of Registration Certificate.
Ext.A2 - Copy of Contract Carriage Permit
Ext.A3 - Copy of Driving License .
Ext.A4 - GD Entry Certificate.
Ext.A5 - Copy of Policy Schedule cum Insurance Certificate.
Ext.A6 - Copy of Receipt.
Ext.A7 - Copy of Tax Invoice.
Ext.A8 - Copy of Free Service Eligibility.
Ext.A9 - Copy of Certificate cum Policy Schedule
Evidence of the opposite parties:-
RW1 - Joseph George(Witness)
RW2 - Vinod vijayan(Witness)
//True copy//
By Order
Senior Superintendent
To
Complainant/Opposite parties/SF
Typed by: Sa/-
Comped . by:
