IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 412/08 DATED 06.04.2009<br /> ORDER<br /> <br /> Complainant Smt.K.P.Shylaja, W/o Lingabasavaradhya, D.No.675/5, 23rd Cross, Hebbal, 2nd Stage, Mysore.<br /> (By Sri.M.Lokesh., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Manager / Proprietor, M/s Trident Automobiles Pvt. Ltd., No.201/1, and 201/2, Hinkal Village, Kasaba Hobli, Hunsur Road, Mysore-570017.<br /> 2. M/s Reliance General Insurance Co.Ltde., (Anil Dhirubhai Ambani Groups), Branch Office situated at 1st Floor, Mysore Trade Centre, Opp. KSRTC Bus stand, Mysore-570001.<br /> (By Sri.Srivatsa.D.Hardar, Advocate for O.P.1 <br /> and Smt.K.L.Sugandhi, Advocate for O.P.2)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 18.12.2008<br /> Date of appearance of O.Ps. : 03.02.2009<br /> Date of order : 06.04.2009<br /> Duration of Proceeding : 2 MONTHS 3 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief is, that she purchased a new Chevrolet Tavera B2 Jeep from the first opposite party on 20.03.2008. That was insured with the second opposite party with effect from 20.03.2008 till 19.03.2009. That the said vehicle met with an accident on 08.07.2008 and F.I.R. came to be filed in this regard. The vehicle was given to the first opposite party for estimation of the repair, which was estimated at Rs.4,29,874.31 with additional sub estimation of Rs.60,862.07. The surveyor of the second opposite party assessed the damage to the vehicle and the second opposite party taking into consideration the assessment made by their surveyor have only paid Rs.2,35,930/- through first opposite party, but have failed to pay the balance amount of Rs.1,53,727/-. That the first opposite party raised the repair charges bill at Rs.3,89,657/- assuring that payment will be made, but the opposite parties failed to honour the claim as estimated, thus she was compelled to pay the balance of Rs.1,53,727/- and to get the vehicle delivered to her possession and therefore contending that the opposite parties have caused deficiency in their service has prayed for a direction to the second opposite party to settle the balance amount of Rs.1,54,070/- and to award compensation of Rs.1,00,000/- and other expenditure.<br /> <br /> 2. The first opposite party in their version admitted to had sold the vehicle in question to the complainant and also that vehicle met with an accident. The first opposite party has also admitted payment of Rs.2,35,930/- as repair charges as forwarded by the second opposite party to the complainant, but stated that they are not aware of the second opposite party not settling the balance amount of Rs.1,53,727/-. This opposite party has also admitted that final bill of repair charges was raised to Rs.3,89,657/- and was sent to the second opposite party for settling, admitting that the complainant also made a request to settle the balance of Rs.1,53,727/- has denied any deficiency at their end and prayed for dismissal of the complaint against them.<br /> <br /> 3. The second opposite party in their version have not disputed that the vehicle had been insured with them and had valid insurance policy as on the date of accident. They have also admitted to have settled the claim of the complainant to an extent of Rs.2,39,930/- and denied to have not paid Rs.1,53,727/-. By further contending that amount has been appropriated towards depreciation value and the salvage amount, which has to be born by the insured, has by further reasserting that after appropriation of the balance amount towards the above heads contend to have settled the claim by paying Rs.2,35,930/- and thus has prayed for dismissal of the complaint.<br /> <br /> 4. In the course of enquiry into the complaint, the complainant and opposite parties have filed their affidavit evidence. The complainant has produced copy of the insurance policy, conditions of insurance and bills raised for having got the vehicle repaired. Opposite parties have also produced copies of the insurance and also bills. Heard the counsel for both the parties and perused the records.<br /> <br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the second opposite party has caused deficiency in their service in not settling the claim in terms of insurance policy and thereby have caused deficiency in their services?<br /> 2. To what relief the complainant is entitled?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- As could be gathered from the contentions of all the parties, there is no dispute with regard to the fact that the vehicle purchased by the complainant from first opposite party was insured with second opposite party and that the vehicle met with an accident within 6 months from the date of sale and it had valid insurance as on the date of the accident. The complainant and first opposite party have concurred with each other that the complainant incurred repair expenditure of Rs.3,89,657/- and when the claim for reimbursement of the same was made with the second opposite party the insurer, but, the insurer has only reimbursed Rs.2,35,930/- and declined to reimburse the balance of Rs.1,53,727/- on the ground that balance is adjusted towards policy excess, consumable items and towards salvage. But, the counsel for the complainant inviting our attention to the undisputed fact that the vehicle met with an accident within 6 months from the date of its sale, further also referred to the conditions of the insurance, which provide no depreciation for the vehicle of that age. Further he also invited our attention regarding reimbursement of the cost of consumable items like rubber, and other similar items, wherein the conditions provide for reimbursement of 50% of the cost of the consumable articles, if the accident had taken place within 6 months and therefore submitted that the second opposite party is not justified in not reimbursing the balance amount and thereby as sought for the relief has prayed for.<br /> <br /> 8. Whereas the counsel appearing for the second opposite party without disputing the submission of the counsel for the complainant regarding the age of the vehicle, reimbursement of 50% of the consumable article cost as per the conditions of policy argued that the surveyor of second opposite party who after inspecting the damaged to the vehicle has assessed the total loss as Rs.2,49,442.78 deducted cost of salvages and the cost of consumable articles and has recommended for payment of Rs.2,35,930/- only and that has been paid by the second opposite party to the complainant and further submitted that report of the surveyor cannot be rejected and in support of her arguments relied upon a decision reported in IV (2007) CPJ page 196 NC and submitted for dismissal of the complaint. We agree if a surveyor has prepared the report of damage assessment by considering the factual aspects and in accordance with the conditions of license it may be accepted. But, in the instant case, the surveyor deducted depreciation, which is not permissible under the condition of the policy itself. Because under the condition of policy, if the age of the vehicle has not exceeded 6 months, depreciation is shown as Nil, therefore when the age of the vehicle in question had not exceeded 6 months, he should not have allowed depreciation. Similarly, depreciation with regard to all rubber, nylon, plastic parts, tyres, tubes, batteries etc., of the vehicle, who age has not exceeded 6 months is shown as 50%. That being so the surveyor has allowed depreciation against the conditions of policy, which cannot be done. Thus the complainant is entitled for 50% of the consumable articles cost, plus labour charges. Therefore, even according to the report of the surveyor, total parts cost inclusive of taxes and other levies is shown as Rs.9,49,422.77, if labour charges of Rs.52,893.49 is added and 50% to the consumable articles cost like rubber, nylon etc., which is estimated at Rs.85,051.58 as per the bills, and if 50% is allowed it would come to Rs.42,500/-. If these 3 figures are added it comes to Rs.3,44,836.25, out of this, the second opposite party has already paid Rs.2,35,930/. The complainant has conceded that salvage cost is estimated at Rs.16,000/- and that he has received salvages from the garage concerned and if that is deducted from the amount payable by second opposite party, the net amount payable to the complainant by second opposite party is Rs.92,906.25, for which the complainant would become entitled and thus the second opposite party in our view has caused deficiency in the service in not paying that amount. With this, we answer point no.1 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The second opposite party is directed to pay Rs.92,906.25 within 60 days from the date of this order, failing which it shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. The second opposite party shall also pay cost of Rs.1,000/- to the complainant.<br /> 4. Complaint against the first opposite party is dismissed.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 6th April 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />