By. Sri. Ananthakrishnan. P. S, President:
This is a complaint filed under section 12 of the Consumer Protection Act 1986.
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2. The complainant’s case in brief is as follows:- The complainant is the owner of Chevrolet cruze car bearing Registration No. KL-73-2662. She had purchased it from the third opposite party on 13.08.2013. Third opposite party is the authorised dealer of the Chevrolet car manufactured by the second opposite party. The complainant insured the car with fourth opposite party, insurance company. The first opposite party is the authorized service center of Chevrolet vehicles at Mysore. When the complainant purchased the car, the third opposite party promised that there is sufficient service facility in Wayanad, Kozhikode, Kannur and Malapuram districts and the vehicles will be serviced by the company to the full satisfaction of the complainant. The complainant had carried out all the services in third opposite party till January 2016. But all the workshops of third opposite party situated in Wayanad, Kozhikode, Malappuram, Kannur and Kasargode were closed thereafter. Therefore the complainant was forced to carry out the services at the service center of the first opposite party at Mysore which situates 135 km away from her residence. Since, second and third opposite parties had not taken any steps to give services of the car from February 2016 onwards, the complainant was put irreparable hardships, mental agony and loss. On 07.07.2016 at about 3.30 pm, the car of complainant met with an accident and
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heavy damage was caused to the front portion of the car. So the car was toed in a recovery lorry from Sulthan Bathery to first opposite party‘s workshop at Mysore on 08.07.2016 morning itself. After checking, the service engineer of first opposite party, Sri. Sreedhar promised that the car will be repaired by replacing all damaged spare parts and will be delivered on or before 28.07.2016. They further promised that they will prepare the estimate of works and it will be handed over to fourth opposite party. But the first opposite party was very leisurely doing the repair work and estimate was not handed over to fourth opposite party in time. So, there was deficiency in service and unfair trade practice on the part of first opposite party. When the husband of the complainant contacted the first opposite party to take the delivery of the car on the last week of July 2016, the Engineer stated that the Hose Air cleaner outlet of the Air conditioner was damaged and it has to be replaced. He has also promised that it is also covered under the insurance policy and an additional estimate of the same will be sent to the fourth opposite party. The complainant had obtained the car in a running condition only on 22.08.2016. As per the direction of the first opposite party, he has paid Rs.2,30,848/- towards the repair charges and cost of spare parts. The first opposite party promised that the additional estimated
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amount will be refunded by fourth opposite party since the insurance was a package policy and there was no depreciation clause. The first opposite party assured that the total amount paid by complainant will be refunded. But, though the fourth opposite party sent a message to the complainant that they have calculated the total amount to be paid as Rs.1,95,780/-, they have paid only Rs.1,86,465/-. It is seen that the first opposite party had not sent the estimate of Rs.15,135/- to fourth opposite party in time. The first opposite party has sent the additional estimate only on 25.08.2016 to the fourth opposite party. Therefore there was deficiency in service on first opposite party in not sending the second estimate in time. The fourth opposite party has not refunded the said amount which is also a deficiency in service on fourth opposite party. Even though, the second and third opposite parties warranted the service of the car at Kozhikode, Wayand and Malappuram etc, they had closed their workshop situated there. Therefore they have also played unfair trade practice. The complainant had spent huge amount to toe the vehicle to the first opposite party at Mysore. The fourth opposite party, insurance company though had issued nil depreciation policy, they have only given Rs.1,86,465/- out of Rs.2,39,348/-. Therefore the complainant has sustained a loss of Rs.43,568/-. Moreover fourth opposite party
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had not disclosed the terms and conditions of the policy to the complainant. They have sent a duplicate copy of policy contains the terms and conditions to the complainant along with their reply notice to the notice of the complainant. So fourth opposite party has also committed unfair trade practice. The complainant is a gynecologist. Since, the first opposite party had delivered car after repair only on 22.08.2016, they caused hardships to the complainant. She had spent Rs.25,000/- towards taxi fare. The husband of the complainant had spent Rs.20,000/- as expenses to go to first opposite party to follow up the repair work. They had unnecessarily protracted the repair work upto 45 days. This is unfair trade practice from the first opposite party. The complainant had sent registered notice to first to fourth opposite parties on 08.12.2016. All the opposite parties except second opposite party, have sent reply with untenable contentions. So this complaint against all opposite parties to pay Rs.43,568/- paid by the complainant to the first opposite party, to pay Rs.20,000/- towards amount spent by the complainant due to delay in delivery of the repaired car by first opposite party, to pay Rs.1 lakh as compensation for mental agony and hardships caused to the complainant, to pay Rs.25,000/- as compensation for unfair trade practice in
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not disclosing the full text of the policy conditions in the certificate issued to the complainant and to pay Rs.25,000/- as cost of this proceedings.
3. First and third opposite parties are Ex-parte.
4. The Second opposite party filed version and their relevant contention is as follows:- They denied that they are vicariouly liable for the act of other opposite parties. They denied that they promised the complainant that the complainant can attend the service of the car at Wayanad, Malappuram and Calicut etc and from 2016 onwards they stopped the service centers situated there. The third opposite party has published in newspapers about the closing of the service centers. Therefore they denied that by closing of service centres, the complainant started to face difficulties and mental agony. This opposite party appointed a new service partner namely Makkan Service Centre for the customers
at Kozhikode including complainant. Thus, they denied that there is unfair trade practice from this opposite party.
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5. The fourth opposite party filed version contenting as follows:- This opposite party admits that the car of complainant bearing No.KL-73-2662 was insured with this opposite party. They also admitted that it is a package policy with nil depreciation. But nil depreciation does not imply that the insurance company will pay complete spare parts and labour bills furnished by the insured. The nil depreciation policy stipulates that depreciation normally deducted on spare parts shall not be deducted. This opposite party settled the claim as per the assessment of loss prepared by the independent licensed surveyor. The maximum amount payable for towing charge is Rs.1,500/-. There was no damage to hose air cleaner outlet of AC on 08.07.2016 when the service engineer inspected the car. The first opposite party has not sent additional estimate for repairing hose air cleaner outlet of AC to this opposite party. The surveyor assessed the damages to the extent of Rs.2,00,463.99/- out of that a sum Rs.2,000/- as policy excess, Rs.4,198/- as salvage value were deducted and Rs.1,500/- as towing charge was added. Hence, the amount arrived to Rs.1,95,785/-. At the time of renewal of policy, no claim bonus of Rs.8,100/- plus 15% tax ie. a total amount of Rs.9,315/- was granted to the complainant. The no claim bonus subsequently recovered. So, after deducting all these amount, this opposite party paid a sum of Rs.1,86,465/- to the complainant. The complainant
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is not entitled to get any further amount. Therefore there is no unfair trade practice and deficiency in service from this opposite party. This opposite party did not obtain the additional estimate of Rs.15,135/- as alleged in the complainant . Hence the complainant is not entitled to get anything claimed from this opposite party. So this complaint is to be dismissed.
6. On the above contentions, the points raised for consideration are:-
1. Whether there is any deficiency of service and unfair trade practice from the opposite parties. If so, whether the complainant is entitled to get anything as claimed?
2. Reliefs and Cost.
7. The evidence in this case consists of oral testimony of PW1, OPW1, Ext. A1 to A10, B1 to B3. Heard both sides.
8. Point No.1:- The complainant is the owner of Chevrolet cruze car bearing Registration No.KL-73-2662. She purchased the said car from third Opposite party on 13.08.2013. The car met with an accident on 07.07.2016 and she entrusted the car for repair to first opposite party. This car was insured with
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fourth opposite party. The grievance of the complainant is that though at the time of purchase of the said car, the second opposite party had service centers at Wayand, Kannur, Malappuram and Kozhikode districts, third Opposite party stopped the service centers at Wayand, Kannur, Malappuram and Kozhikode districts in 2016 and that though the first opposite party assured that they will return the car on or before 28.07.2016 after the repair, they returned the car only on 22.08.2016 which caused much hardships and incurred monitory loss to the complainant and her husband and that though the complainant took a package insurance policy, the fourth opposite party deducted depreciation, insurance excess, salvage value and no claim bonus without any authority. Therefore the complainant alleged unfair trade practice and deficiency in service upon all opposite parties. The first and third opposite parties are ex-parte. The second Opposite party took a contention that third opposite party published news about the stopping of service centers and so, they are not liable to pay anything to the complainant. The fourth opposite party took a contention that they are entitled to deduct depreciation, insurance excess, salvage value and no claim bonus even if, it is a package policy and so, there is no unfair trade practice and deficiency in service from their part.
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9. For the sake of convenience, I have to verify the prayer of the complainant one by one to see whether those can be allowed or not. The first prayer of complainant is to get repayment of Rs.43,568/- towards cost of spare parts and labour charges paid by her to the first opposite party which was deducted by the fourth opposite party. Admittedly the first opposite party repaired the car which had a valid policy with the fourth opposite party. It is evident that the fourth opposite party has not given the entire repair and spare parts charges to the complainant. The husband of the complainant has given evidence as PW1. Ext.A1 series, Ext.A2 and Ext.A3 are the bills for repair and spare parts charges. According to the complainant, bills contained an amount of Rs.2,30,848/- and so he is entitle to get the said amount. It is evident that fourth opposite party has given only Rs.1,86,465/- to her after deducting depreciation, insurance excess, salvage value and no claim bonus. According to them, they accepted the report of the Surveyor and after deducting depreciation, insurance excess, salvage value and no claim bonus, they paid Rs.1,86,465/- as the eligible claim to the complainant. The present branch manager of the fourth opposite party has given evidence as OPW1. Ext.B3 is the Survey Report. As per Ext.B3, the Surveyor calculated the claim amount as Rs.2,00,463.93/-. The fourth
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opposite party has added Rs.1,500/- as towing charges to this amount and deducted a sum Rs.2,000/- as policy excess and Rs.4,178/- as salvage value and arrived to Rs.1,95,785/-. Then they deducted the no bonus claim of Rs.9315/- and paid Rs. 1,86,465/- to the complainant. Then according to the complainant, the difference is Rs.43,568/. The complainant now wants to get that amount from opposite parties. Since second and third opposite parties have no connection with this payment, no doubt they are not liable to pay this amount to the complainant. Then the question to be decided here is that whether the first and fourth opposite parties are liable to pay this amount. It is evident that there was an additional estimate of Rs.15,135/- for the repair of AC. Ext.B3 is the bill related to that repair. It is evident that at the time of the inspection of the surveyor, the first opposite party has not identified this defect and they found this defect subsequently and prepared an additional estimate. According to the complainant, the first opposite party sent this estimate only on 22.08.2016 to fourth opposite party. Fourth opposite party contented that they have not received this estimate and thus they have not given this amount to the complainant. Therefore no doubt, the fourth opposite party is not liable to pay this amount to the complainant. So evidently the first opposite party committed
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an error to send this estimate to the fourth opposite party in time and thus there is deficiency of service on the first opposite party. PW1 and OPW1 have given evidence to this effect. Since the first opposite party is ex-parte they have not rebut this aspect. Therefore the first opposite party is liable to pay this amount to the complainant.
10. The complainant claimed full amount of repairing and spare parts charges alleging that she took package policy which is a nil depreciation policy. Ext.A5, A9 and B1 are the copy of policy related to the disputed period. The stand taken by the fourth opposite party is that package policy does not mean that the insurance company will pay the complete spare parts and labour bills furnished by the insured and nil depreciation does not imply that the insurance company will pay complete spare parts and labour bills furnished by the insured. According to them, the nil depreciation policy stipulates that depreciation normally deducted on spare parts shall not be deducted. Ext.B1 provides the right of the fourth opposite party to deduct depreciation even if, policy is a package policy. There is a schedule in this policy which contains the percentage of depreciation to be deducted. The complainant contented that Ext.A5, the copy of policy received by
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her does not contain any terms and conditions of policy including the right of deduction of the fourth opposite party. Let us assume that the copy of the policy received by her does not contain the terms and conditions of policy. This does not mean that the fourth opposite party is not entitled to deduct the depreciation etc. Therefore the rate of depreciation deducted by the fourth opposite party is reasonable. The policy contains that the fourth opposite party is entitled to get insurance excess of Rs.2,000/- and no claim bonus of Rs.9,315/-. But the policy schedule does not contain that they are entitled to deduct salvage value. Admittedly the fourth opposite party has deducted Rs.4,178/- as salvage value. It is evident that the complainant has not received the old spare parts either from the surveyor or from the first opposite party. So, since there is no condition in the policy by which the fourth opposite party is entitled to get the salvage value of Rs.4,178/-, the fourth opposite party is liable to refund the said amount to the complainant. So to these extent, the complainant is entitled to get refund from the first and fourth opposite party respectively.
11. The next prayer of the complainant is to get Rs.20,000/- from opposite parties due to the delay in delivery of the vehicle after repair. Here also it is to be
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noted that the repair work was done by first opposite party. No other opposite parties are responsible for this delay. PW1 affirmed that though first opposite party promised to return the repaired car on 28.07.2016, they delivered the vehicle after repair only on 22.08.2016. No contra evidence to this aspect. Since the first opposite party is ex-parte they could not brought any materials to prove that there was no delay to deliver the vehicle or they took only a reasonable period with the consent of the complainant. The complainant claims only Rs.20,000/- as the expenses spent due to the delay in delivery of the vehicle. PW1 deposed that as a busy Gynaecologist, complainant forced to spent this amount. We are of the view that claim of the complainant is reasonable. Therefore we held that the complainant is entitled to get Rs.20,000/- from first opposite party towards the amount spent by the complainant due to the delay in delivery of the car by first opposite party.
12. Next prayer of the complainant is to get Rs.1 lakh as compensation for mental agony and hardship caused by the opposite parties to the complainant. It is alleged by the complainant that second and third opposite parties stopped their service centers within Kerala and therefore she forced to take the vehicle to Mysore for service and repair. As I already stated, the third opposite party is ex-
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parte. The second opposite party took a contention that after publishing in newspapers, they stopped the service centers. We are of view that the complainant is not entitled to get any compensation from the second and third opposite parties only on the ground of stopping the service centers. We cannot hold that they have no liberty to close the service centers if they want. More over, the second opposite party took a stand in their version that they appointed a new service partner namely Makkan Service Centre at Kozhikode for their customers including the complainant. The complainant kept mum about this contention. So also we cannot hold that fourth opposite party caused mental agony and hardships to the complainant by denying the claim in full for the reason discussed earlier. But no doubt, the delay in delivery of the repaired car by the first opposite party caused mental agony and hardships to the complainant. So the first opposite party is liable to pay compensation to the complainant on this ground. The claim of complainant is Rs.1 lakh. But no doubt, the claim is exorbitant. Considering the evidence adduced in this case, we are of view that the complainant is entitled to get R.25,000/- from the first opposite party towards this claim.
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13. The next claim of the complainant is to get Rs.25,000/- from the opposite parties as compensation for committing unfair trade practice in not disclosing the full text of the policy conditions in the certificate issued to the complainant. Ext.A5 is the copy of the policy given to the complainant. Ext.B1 is the copy of the same policy sent by fourth opposite party along with their reply notice to the notice of the complainant. Evidently Ext.A5 does not contain the terms and conditions of the policy. But Ext. B1 conntains the terms and conditions of the policy. Thus the complainant had not obtained any chance to get the details of package policy and the right of the fourth opposite party to deduct depreciation, insurance excess, salvage value and no claim bonus. So no doubt there is unfair trade practice from fourth opposite party on this aspect. So, the complainant is entitled to get compensation on this ground from the fourth Opposite party alone. The claim of the complainant is that she is entitled to get Rs.25,000/-. We are of the view that it is an exorbitant amount. Our opinion is that complainant is entitled to get Rs.10,000/- as compensation under this ground.
14. The last prayer of complainant is to get Rs.25,000/- towards the cost of this proceedings. As I already stated, the second and third opposite parties are
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not liable to give anything to the complainant. Therefore, they are also not liable to pay any cost to the complainant. But since there is some unfair trade practice and deficiency in service from first and fourth opposite parties, they are liable to pay cost of proceedings to complainant. The claim of complainant is to get Rs.25,000/-. In our opinion, complainant is only entitle to get Rs.10,000/- as cost of proceedings. Therefore complainant is entitled to get Rs.5,000/- from first opposite party and Rs.5,000/- from fourth opposite party as cost of this proceedings. Therefore we held point No.1 accordingly.
15. Point No.3:- Since, we found point No.1 as discussed above, complainant is entitled to get reliefs partly with cost.
In the result, the complaint is allowed partly. The first opposite party is directed to pay Rs.35,135/- (Rupees Thirty Five Thousand One Hundred and Thirty Five) and the fourth opposite party is directed to pay Rs.4,178/- (Rupees Four Thousand One Hundred and Seventy Eight) to the complainant. The first opposite party is directed to give Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation to the complainant. The fourth opposite party is directed to give
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Rs.10,000/- (Rupees Ten Thousand Only) as compensation to the complainant. The first and fourth opposite parties are directed to pay Rs.5,000/- (Rupees Five Thousand Only) each to the complainant as cost of this proceedings. The first and fourth opposite parties are directed to pay the amount to be paid by them within 30 days from the date of this order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 18th day of December 2019.
Date of Filing: 22.05.2017.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. George Joseph. Advocate.
Witness for the Opposite Parties:-
OPW1. Jithun Vijay. Branch Manager, United India
Insurance, Kalpetta.
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Exhibits for the complainant:
A1(a). Retail Invoice. Dt:31.07.2016.
A1(b). Retail Invoice. Dt:31.07.2016.
A1(c). Retail Invoice. Dt:31.07.2016.
A2. Retail Invoice. Dt:22.08.2016.
A3. Retail Invoice. Dt:11.08.2016.
A4. Receipt. Dt:08.07.2016.
A5. Private Car Package Policy (13.08.2015 to 12.08.2016).
A6(a). Lawyer Notice. Dt:30.11.2016.
A6(b). Acknowledgment.
A6(c). Acknowledgment.
A6(d). Acknowledgment.
A6(e). Postal Receipt.
A7. Reply Notice. Dt:20.12.2016.
A8. Copy of Legal Notice. Dt:19.12.2016.
A9. Private Car Package Policy (13.08.2015 to 12.08.2016).
A10. Private Car Package Policy (13.08.2016 to 12.08.2017).
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Exhibits for the opposite parties:-
B1. Private Car Package Policy (13.08.2015 to 12.08.2016).
B2. Private Car Package Policy (13.08.2016 to 12.08.2017).
B3. Motor Survey Report. Dt:25.08.2016.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRF, WAYANAD.
