KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL Nos. 294/2011 & 306/2011
COMMON JUDGMENT DATED : 28.09.2012
PRESENT
SHRI. M.K. ABDULLA SONA : HON. ACTING PRESIDENT
SMT. A. RADHA : MEMBER
APPEAL 294/2011
APPELLANT
IndusMotor Co. (p) Ltd.,
Opposite South Gate of Shipyard,
M.G. Road, Cochin – 15
Rep. by it’s General Manager
( Rep. by Sri. Adv. P.K. Aboobacker & C.S. Raj Mohan)
Vs
RESPONDENTS
1. Rajesh P.
S/o P. Vasudevan,
8/350, ‘Sreyas’,
Kallekulangara Post,Palakkad.
2. National Insurance Co. Ltd.,
Div. No. 10, Flat No. 101-106,N-1,
BMC House, Connaught Place, New Delhi – 110 001
(R1 Rep. by Sri. Adv. P. Praveen)
APPEAL NO. 306/2011
APPELLANT
National Insurance Co. Ltd.,
Div. No. 10, Flat No. 101-106,N-1,
BMC House, Connaught Place,
New Delhi – 110 001
( Rep. by Sri. Adv. S. Rajeev)
Vs
RESPONDENTS
1. Rajesh P.
S/o P. Vasudevan,
8/350, ‘Sreyas’,
Kallekulangara Post,Palakkad.
2. IndusMotor Co. (p) Ltd.,
Opposite South Gate of Shipyard, M.G. Road, Cochin - 15
(R1 Rep. by Sri. Adv. P. Praveen)
JUDGMENT
SHRI. M.K. ABDULLA SONA : HON. ACTING PRESIDENT
These appeals are preferred from the order passed by the CDRF, Palakkad in C.C. No. 7/2010 dated. 26.02.2011 Appeal No. 294/11 preferred by the second opposite party, Indus Motors and F.A. 306/11 is preferred by the first opposite party, National Insurance Company. Both appeals from the direction of the Forum below that fixed the liability upon the opposite parties jointly and severally liable to pay the complainant, the No Claim Bonus and Rs. 20,000/- as compensation for mental agony and Rs. 1,000/- as cost of proceedings. In short the complainant had purchased a Maruthi Alto STD-BS III car from second opposite party on 30.12.2007 and ensured with first opposite party as authorized agent as the package Policy No. 3375372 dtd 29.12.2007 on 18.1.2008, the car was handed over to the Palakkad Service Centre of the second opposite party and the vehicle was returned on the same day evening after first service. The complainant approached the 2nd opposite party to renew the insurance policy on the 3rd week of December, 2008, The second opposite party denied the no claim bonus, normally the complainant is entitled and stated that the complainant has already claimed insurance amount of Rs. 9438 as painting charges on bill dated 23.1.2008. The complainant submitted that no painting work was done on his vehicle on 18.1.2008, or 23.1.2008 or any other day. When the complainant objected and questioned this second opposite party has agreed to repay the amount and no claim bonus amount. Evenafter repeated demands they have not repaid the same. Thereafter the complainant issued a lawyer notice dated 26.08.2009. After receipt of the lawyer notice, the first opposite party has neither pay the amount nor replied. But till later no repayment is made. The act of the opposite parties amount to deficiency in service and unfair trade practice. Hence the complainant prayed for an order directing the opposite parties to pay the non claim bonus amount entitled on the Insurance Policy of the complainant. It also prayed for repay Rs. 9,438/- the amount illegally taken by them raising a false claim. Also for payment of compensation of Rs. 1000/- and costs. First and second opposite parties entered appearance and file their separate versions. The first opposite party contended that they deputed the surveyor Mr. Unnikrishnan to ascertain the cost of loss and assess the damage. The surveyor who verified the original R.C. of the vehicle and the driving license of the driver at the time of the accident as per the claim intimation letter and the claim form. The first opposite party stated that as per the claim intimation and the claim form the Jeep hit on the rear side of the vehicle of the complainant bearing No. KL-9 V – 8104 and caused auto scratched. The first opposite party stated that the company processed the claim and sanctioned Rs. 8,935/- and issued the cheque in favour of the second opposite party. The claim settlement was in accordance with law and embodiments with the Maruthi Insurance brokers Ltd. which is stated that; at the time of accident the complainant’s friend Shaji was driving the vehicle and it was entrusted to the second opposite party for repairs and after painting it was returned to the complainant. The first opposite party denied that the vehicle has not met any accident as contended with the complainant. The company had paid the amount to the second opposite party as per the voucher given by him. But the second opposite party stated that the vehicle was brought to workshop at Palakkad for body repair works on 18.1.2008. The first opposite party has released Rs. 9,438/- for the repair and painting of the vehicle. The second opposite party denied that 18.1.2008, the car was handed over to the Palakkad Service centre of opposite party No. 2 and on the same day evening the vehicle was returned to the complainant. The second opposite party stated that the vehicle was brought to workshop for first service only on 1.2.2008. The second O.P. denied the deficiency in service on their part and though denied unfair trade practice which alleged against other. Hence prayed for dismissal of the complaint with costs.
2. The evidence consisted of Ext. A1 in the side of the complainant. Ext. B1 to B7 are the documents marked for the opposite parties. The complainant was examined as Pw1.
3. Heard both sides in detail and perused the evidence adduced by both sides and taken a view that the first opposite party stated that the surveyor Mr. Unnikrishnan verified the original R.C. of the vehicle and the driving license of the driver. But the complainant has denied his signature in the documents produced by the first opposite party. The first opposite party has not taken any steps to prove the complainant has signed this documents also the photos attached to Ext. B1 the fingers are seen at the side of the fleets of Number Plate of the Maruthi. The first opposite party stated that the insurance amount was paid to the complainant as the complexities of life, trade and commerce are growing in the above circumstance, deficiency in service and unfair trade practice on the part of company or service provider is not excusable for both opposite parties jointly committing unfair trade practice and released the insurance amount for repairing and painting the vehicle. The complainant stated that no painting work was done on his vehicle. So the complainant is entitled to get his claim bonus. In the view the Forum below passed the above order.
4. On this day both appeals came before this Commission for final hearing the concerned counsels argued their own appeals vehemently on the grounds of appeal memorandum. The counsels on behalf of the appellants strongly argued that the order passed by the Forum below is not accordance with the provisions of law and evidence. According to the counsel for the respondent/complainant if they disputed the signature in the Ext. B2, it is the duty to prove the signature is not from the very same person. This Commission verified the signature put by the complainant in the vakalath which filed by the complainant along with the complaint and Ext. B2 document are one another far different. These defects are also seen in the claim form also. We this Commission heard in detail and perused the entire evidence adduced by both parties. It is seeing that the order passed by the Forum below is not accordance with the provisions of law and evidence. It is liable to be interfered but the complainant is a consumer who is not entitled to get claim amount of Rs. 9,438/- as he claimed in the complaint. But at the very same time he is entitled to get Rs. 8,935/- which was assessed by the surveyor appointed by the first opposite party Mr. Unnikrishnan. But at the very same time, he is entitled to get Rs. 8,935/- from first opposite party. These are the discrepancies in the evidence, facts and circumstances of this case. Anyway the respondent/complainant is entitled to get Rs. 8.935/- which claimed by the first opposite party to issue the second opposite party but the second opposite party denied such issuance of the cheque. In the circumstances both opposite parties are liable to pay Rs. 8,935/- to the complainant. We think is not a fit case to order compensation and costs together. The hands of the complainant is also not free as well as the opposite parties.
In the result, these appeals are allowed in part and modified the said portion of the order passed by the Forum below. Both opposite parties are direct to pay Rs. 8,935/- to the complainant jointly and severally and also paid Rs. 500/- as cost of the proceedings of the complaint. The points of the appeal answered and discussed accordingly.
We do so.
M.K. ABDULLA SONA : HON. ACTING PRESIDENT
A. RADHA : MEMBER
st
