O R D E R

Sri. George Baby (President):

Thiscomplaint is filed by the complainant U/S 12 of the Consumer Protection Act.1986 for getting certain reliefs from the opposite parties through this Commission.

2.  The case of this complainant is as follows:- The complainant is the registered owner of vehicle bearing No.KL- 26H-5687 and the same was insured with 2^nd opposite party. The complainant was transporting milk from cluster societies to Milma Plant, at Tholuzham. The complainant’s vehicle met with an accident on 31.08.2017 and sustained heavy damage.The concerned police had registered a G.D entry in this matter. On 01.09.2017 the complainant had entrusted his damaged vehicle to the 3^rd opposite party for repairing and put signatures and filled certain papers for the purpose of insurance claim. The opposite party made to believe the complainant that the vehicle will be repaired and hand over to the complainant on 20.09.2017. On 20.09.2017 the complainant had approached the 3^rd opposite party then it was informed that the 2^nd opposite party had instructed the 3^rd opposite party not to repair the vehicle of this complainant as there were dues in Hire-purchase loan agreement with Cholamandalam Investment and Finance Company. The complainant’s vehicle carries this Comprehensive Insurance Policy and the same was valid up to March 2018. The complainant’s contract to the Milma is for 2 Years. In order to fulfil the contract with Milma he had hired another vehicle for which he spent Rs. 2750/- per day. The Complainants EMI’s were defaulted after this accident. As a pressure tactics to realize the defaulted EMI’s inlumpsum this opposite parties adopted this method. The opposite parties act caused much mental agony and financial loss to the complainant. The Complainant has limited his claim as Rs. 1,00,000/- even though he suffered a loss of Rs. 2,00,000/- along with the prayer to direct the opposite parties to return the vehicle to him in road worthy condition.

3.   This Commission entertained this complaint and issued notice to opposite parties for their appearance. In due course the opposite parties were appeared and filed their version. 1^st and 3^rd opposite parties were jointly filed their version and their main contentions are as follows:- The complainant is not a Consumer. It is using the vehicle for commercial purpose. The complainant’s vehicle brought to the Opposite parties work shop for repair and the opposite parties were prepared an estimate with regard to the repairing and handed over to the complainant. It is the responsibility of the complainant to intimate the factum of accident to the Insurance Company and also to hand over the estimate prepare by this workshop. The repairing works can be commenced only after the proper survey of the insurance company.  The survey of the vehicle has not carried out. 1^st and 3^rd opposite parties have no tie up with the 2^nd opposite party insurance company. No amount has been paid by the complainant for the repair of his vehicle.  The opposite parties 1 and 3^rdnever given any promise to the complainant to the return of vehicle after its due repair. The complainant’svehicle has been sized by m/s Cholamandalam Chennai on 18/09/2018, on the strength of the order in the matter of Arbitration &Conciliation Act numbered as A/1911 of 2018 by the Honourable High Court of Judicature at Madrass. The complainant filed writ petition vide no. WP(C) 20603 of 2018 before the Honourable High Court of Kerala seeking the relief of repossession of his vehicle.  But the prayer in the writ petition was rejected by the Hon’ble High Court of Kerala on 07.08.2018. The relief sought in the complaint became infructuous. The opposite parties 1^st and 3^rd have not committed any deficiency in service. They pray to dismiss the Compliant with their cost.

4.  The 2^nd opposite party filed their version contenting the following matters:-The 2^nd opposite party has not committed any deficiency in service. It is denied that the complainant is the owner and he is in possession of vehicle bearing Reg No. KL26H-5687. The accident on 31.08.2017 and the vehicles entrustment to work shop at Mylapra and the preparation and signing of the claim form is denied. The promise of return of vehicle after the repairing is false. Neither the complainant nor the other opposite parties not intimated the alleged accident to the 2^nd opposite party. The allegation that the 3^rd opposite parties denied the repairing works as directed by the 2^nd opposite party is baseless and denied. The 2^nd opposite party has not received any claim from the complainant or from the other opposite parties. The 2^nd opposite party is not liable to pay any amount as compensation. The issuance of the policy in favour of complainant’s vehicle bearing Reg.No.KL.26 H5687 is admitted. The 1^st condition of the policy is that notice is to be given in writing to the company immediately upon occurrence of any accidental loss on damage to the vehicle. The complaint has not complied that condition and the same is to fundamental branch of terms and conditions of policy. Hence the 2^nd opposite party also pray to the dismissed of the complaint with their cost.

5.  On the basis of the complaint, versions we framed this following issues for consideration.

1. Whether the complaint is maintainable.

2. Whether the opposite parties have committed deficiency in service?

3. Regarding the reliefs and cost?

6.  The complainant had proof affidavit in lieu of his Chief Examination and the complainant was examined as PW1.  Exhibit A1 to A6 were marked through him. Ext B1 to B6 were marked for the evidence of the opposite parties.

 7.Point No.I :- The one foremost contentions raised by the opposite parties 1^st and 3^rd are that the complaint is not maintainable, on the ground that the complainant is using the vehicle for the commercial purpose and because of that he doesn’t come within the purview of the Consumer Protection Act.  But the Act provides that if the party is doing such commercial activity only for the purpose of earnings of his livelihood very well such person can maintain a complaint before the Consumer Commission.  In this context it is pertinent to note that PW1 had categorically stated in his chief affidavit that he was in use of the alleged vehicle for the purpose of earning his livelihood.  Nothing has been brought out in evidence to disprove such contention and hence Point No.I is found in favour of complainant.

                   8. Point No. II:- The specific case of the complainant is that his vehicle bearing Reg. No. KL 26 H 5687 met with an accident on 31/08/2017 and subsequent to that the vehicle towed to the 3^rd opposite party’s workshop on 01/09/2017 for repairing.  The 3^rd opposite party had prepared an estimate showing the expenses needed for the repairing and handed over to the complainant for further action.  The complainant’s ownership over the vehicle is proved through Exhibit A1.  The complainant specifically contended that he had furnished all necessary documents properly for the processing of insurance claim, when the vehicle was entrusted to the 3^rd opposite party for repair.  This contention was very vehemently opposed by the opposite parties.

                    9. The 2^nd opposite party adopted the contention through their first version filed on 04/01/2018 that they never received any information with regard to the accident or never received the duly filled and singed claim form from the complainant or the remaining opposite parties.  But in the additional version of the 2^nd opposite party they pleaded that they have not received any information regarding alleged accident or loss till the date on which the notice of this petition served on the 2^nd opposite party.  There is a clear contradiction in the pleading of the 2^nd opposite party in this regard.  Exhibit A6 is sufficient to falsify the contention of the 2^nd opposite party.  In Exhibit A6 it is noted that the intimation was on 23/11/2017.  But the A6 is conspicuously absent how the intimation was given whether it was through telephone or written.  According to the contentions of the remaining opposite parties that the complainant’s vehicle was seized from their workshop only on 18/04/2018 through the process of law.  The 3^rd opposite party has not a case that they did say repairing work over the complainant’s vehicle instead they stated that no amount or advance of any kind has been paid by the complainant for the repair.  In that situation we presume that the complainant’s vehicle after the accident was in stand still position at the workshop of the 3^rd opposite party till its lawful seizure on 18/04/2018.  PW1 contended that the repairing work of the vehicle was denied only on the ground that he was defaulted EMI’s to the finance company named Cholamandalam Investment and Finance Company.  Absolutely there is no evidence for the same.  Even though belated it has come out in evidence that the intimation with regard to the accident is furnished to the 2^nd opposite party on 23/11/2017.  But it is not seen that any further follow ups were done by the 2^nd opposite party in this matter especially the alleged vehicle was in the custody of the 3^rd opposite party till 18/04/2018. This is clear deficiency in service from the part of the 2^nd opposite party.  The purpose of the insurance policy is to indemnify the loss of the insured if any happened to the policy holder within the ambit of terms and conditions.  Here we think that the said purpose is not served.  The 2^nd opposite party has not done any further follow ups even after the acceptance of the intimation and the same is clear deficiency in service.  Point No.2 is found in favour of the complainant.

                  10. Point No. III:- For meet the ends of justice and in the light of foregoing discussions we found that the complainant is entitled to get reasonable compensation and cost from the opposite parties.  Point No. III is also found in favour of the complainant.

                   11. In the result this complaint is allowed in part and we pass the following order:-

                   (1) The 2^nd opposite party is directed to pay an amount of Rs.

                          25,000/- (Rupees Twenty Five Thousand only) to the

complainant as the compensation for the deficiency in service

within one month from the date of receipt of this order failing

which the said amount shall carry the interest at the rate of 10%

per annum from the date of order.

                   (2) The 2^nd opposite party is directed to pay a compensation of Rs.

                          5,000/- (Rupees Five Thousand only) to the complainant within

one month from the date of receipt of this order as the 

compensation for the mental agony and sufferings caused to him

failing which the said amount carries 10% interest from the date

of order.

                   (3) The 2^nd opposite party is directed to pay Rs. 2,500/- (Rupees Two

                          Thousand and Five Hundred only) as cost of the proceedings to

the complainant within one month from the date of receipt of this

order failing which the said amount also carriers 10% interest

from the date of order.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28^thday of September, 2021.

                                                                                                                             (Sd/-)

                                                                                                        George Baby,         (President)

Smt. N. ShajithaBeevi (Member-I)   :  (Sd/-)

Sri.NishadThankappan (Member-II) : (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:Anil Kumar P

Exhibits marked on the side of the complainant:

A1: copy of the RC Book.

A2: Loan Agreement warranty.

A3: Agreement paper issued by the Milma, Thattayil. 

A4:copy of insurance certificate.

A5: copy of the G.D Entry.

A6: Registered letter sent to the complainant by the 2nd opposite party.

Witness examined on the side of the opposite parties:Nil

Exhibits marked on the side of the opposite parties:

B1:Memorandum of writ petition produced by 1^st to 3^rd opposite party.

B2: copy of Judgment in WP(C) No. 20603/18 produced by 1^st to 3^rd opposite party.

B3: copy of the order of Hon’ble Madras High Court.

B4: copy of inventory list of the vehicle.

B5: Acknowledgement letter.

B6: Attested true copy of insurance policy submitted by the 2^nd opposite party.

Copy to:-

                   (1) Anil Kumar P.,

                   IdayileVeedu,Kodumon P.O,

          Adoor, Pathanamthitta.

                    (2) T.V. SundaramIyyengar& Sons Pvt. Ltd.,

          Building No. 111/3338 C & 338 D,

          Mallasserry Junction,

      Kumbazha P.O, Pathanamthitta – 689653.

                   (3) The Deputy Manager,

                   Cholamandalam MS General Insurance Co. Ltd.,

                   Acel Estate, Iyyattil Jn.,

                  Chittoor Road, Kochi.

       (4)T.V SundaramIyyengar& Sons Pvt. Ltd.,

          Mahindra Workshop,

       Opp. Amritha Supermarket,

         Near Indian Oil Pump,

          Mylapra P.O, Mylapra.

                   (5) The Stock File.