UNITED COMMERCIAL BANK vs Mahendra Popatlal Vora

BRIEFLY the facts are that the complainant is the owner of Maruti Car bearing No. DIC 3915, which was insured with the respondent for a sum of Rs. 80,000/ - for the period from 24.12.91 to 23.12.92. The car met with an accident on 10.12.92 at about 7 p.m. near Kalyan Vihar, Delhi -9. The matter was reported to the Police Station, Kingsway Camp, Delhi on 11.12.92. The complainant informed the respondent about the accident and requested them for deputing a surveyor for inspecting the car. They appointed Mr. Charanjit Sharma as the surveyor.

THE complainant obtained the estimate of repairs/replacement of parts from M/s. Frontier Automobiles (hereinafter referred to as the repairer) and handed over the same to the respondent. The repairer had claimed Rs. 63,000/ - for replacement of parts plus sales tax and Rs. 9,200/ - as labour charges. It is further alleged, that it was suggested by the respondent that he should get the estimate of the repairs/ replacement of parts from authorised Maruti dealer in order to enable the respondent to exercise their option in terms of the policy. Consequently, he obtained the estimate of repairs/replacement of damaged parts from M/s. Agnells Traders Ltd. who gave the estimate in the sum of Rs. 97,796.63 for replacement of the parts and Rs. 11,740/ - as labour charges. He asked the respondent vide his letter dated 16.12.92 to indicate as to which of the options they would like to exercise with reference to condition No. 3 of the policy which was as follows: - ''The Company may at its own option repair reinstate or replace the Motor Car or part thereof and/or its accessories or may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed the actual value of the parts damaged or lost/less depreciation plus the reasonable cost of fitting and shall in no case exceed the insureds estimate of the value of the Motor car (including accessories thereon) as specified in the Schedule or the Value of the Motor Car (including accessories thereon) at the time of the loss or damage whichever is the less.''

He received a letter dated 18.12.92 from them on 26.12.92 whereby they indicated that the claim would be settled on repair basis only. After receipt of the letter, he vide his letter dated 28.12.92, asked them to take steps for getting the car repaired under the terms of the policy as it was not his responsibility to get the same repaired.

The complainant received another letter dated 4.1.93 from the respondent that they would depute the surveyor to assess the loss as soon as the car was made available at the nominated workshop. It was further stated by them that the accidented car had to be available with the repairers who had to settle the same with them. After receipt of the said letter he informed them vide his letter dated 9.1.93, that they should get the car repaired at an early date. It is alleged that inspite of the aforesaid correspondence the car was not been got repaired by the respondent till the date of filing the complaint.

THE repairer, it is alleged, had started charging garrage charges @ Rs. 50/ - per day on account of delay and an amount of Rs. 2,000/ - had become due and payable to them on that account. He again sent the original estimate from the repairer to the respondent and requested them to finally get the car repaired at an early date in terms of the policy. He, thereafter, received a letter dated 13.1.93 asking him to contact their surveyor to finalise his claim. It is pleaded that the respondent failed to discharge their part of the obligation under the contract and delayed the repairing of the car without any reason.

IT is further pleaded that the complainant is an Advocate and is experiencing a great inconvenience in the absence of the car to attend to his professional work. He has been incurring about Rs. 150/ - per day on the conveyance charges for coming from his residence at Paschim Vihar to Tis Hazari and back and also to visit the High Court at New Delhi almost everyday. He has claimed the following amounts from the respondent: - 1. Cost of repairs/replacement of parts, as per estimates of M/s. Aganall, authorized Maruti Dealers. Rs. 97,796.63 2. Labour charges (as per estimates of M/s. Aganall (authorized Maruti Dealer) Rs. 11,740.00 3. Garrage charges, (as claimed by M/s. Frontier Automobiles, Peeragarhi, New Delhi) Rs.2,000.00 4. Amount incurred on conveyance since the date of accident @ Rs. 150/ - per day Rs. 6,000.00.

Damages on account of mental pain, agony, loss in professional income (nominally assessed). Rs. 20,000.00 Total Rs. 1,37,536.63 The complaint was contested by the respondent. It is pleaded by them that the estimates of the repairer brought by the complainant were discussed with the Regional Manager of the Company. I was not the respondent but the complainant who wanted to get fresh estimates from an authorised Maruti Dealer. It has, however, admitted by them that it was agreed that the claim be settlled on the repair basis. The complainant, it is alleged, is responsible for the delay in repair of the car. The respondent deputed the surveyor Mr. Sharma to prepare the estimate but when he visited the workshop of the repairer, the car was not available there. It is further pleaded that once the respondent agreed to finalise the claim on repai basis, it was the responsibility of the complainant to have chosen the workshop where he wished to get the same repaired. He could negotiate the bill with the respondents surveyor.

ON 30.4.93 the Commission was informed that the respondent had agreed to pay Rs. 28,135/ - as repair charges. Therefore, they were directed to bring the cheque of Rs. 28,135/ - in the Court and the details as to how they had arrived at the said figure. The case was adjourned to 5.5.93. On that date Mr. Sharma, the Divisional Manager of the respondent, appeared in the Court along with the cheque of Rs. 28,135/ -. He handed over the cheque to the complainant under the orders of the Commission. He also showed the details of the calculations to Mr. Pruthi, the complainant. Mr. Sharma was directed to file the same before the Court on the following date. The case was adjourned to 10.5.93 for the arguments.

THE complainant submitted three bills bearing Nos. 2091, 1022 and 6428 dated 9.3.93, 11.3.93 and 20.3.93 of rupees 13,408.54,26,014.64 and 2,685/ -, respectively from the repairer. There is mistake in the totalling of the amounts in bill No. 2091, instead of Rs. 13,408.54, the total of the bill has been shown as Rs. 14,408.54. This fact has been admitted by Mr. Pruthi. Thus we reduce the amount of the said bill to Rs. 13,408.54. Bill No. 1022 of Rs. 26,014.64 has been admitted correct by the respondent. Regarding Bill No. 6428 a Commission was appointed at the request of the parties to determine and report after examination of the glass fixed in the car, whether it is imported glass or locally made glass. The Commission has reported vide report dated 28.5.93 that the glass is genuine imported suzuki make Japanese glass. The total of Bill No. 2091 and 1022 came to Rs. 39,423.18. The complainant has admitted that the respondent was entitled to deduct the amount of Rs. 16,526.60 on account of depreciation. After deducting the said amount the balance which is payable by the respondent to the complainant come to Rs. 22,896.58. So far as the glasses are concerned, admittedly no deduction on account of depreciation is allowed. Thus the complainant was entitled to Rs. 2,685/ - on account of price of the glass. The total of the three bills came to Rs. 25,581 -58. It has been agreed that the labour charges of the car would be Rs. 5,000/ -. Thus the total amount due to the complainant regarding the repairs including labour charges came to Rs. 30,581.58. The respondent has given a cheque of Rs. 28,135/ - to the complainant. After deducting that amount, an amount of Rs. 2,446 -58 remains due to the complainant on this count.

THE complainant has claimed garrage charges from 11.12.92 to 16.2.93, the date of sanctioning the claim on repair basis by the respondent and from March 11,1993, the date when the car was ready for delivery, till May 6, 1993, when delivery taken, @ Rs. 50/ - per day. The total amount on account of garrage charges comes to Rs. 6,100/ -. The respondents Counsel submits that they are not responsible for the delay in sanctioning the claim on repair basis and subsequently for taking the car from the repairer and therefore they are not liable to pay the garrage charges. On the other hand the complainant submits that the respondents were responsible for the delay as they took the decision very late and therefore, they were liable to pay that amount.

WE have heard the arguments addressed on behalf of the parties and gone through the letters dated 11.12.92, 16.12.92, 28.12.92, 6.1.93, 9.1.93, and 11.1.93 written by the complainant and the letters dated 18.12.92, 4.1.93 and 13.1.93 by the respondent and letter dated 20.1.93 from M/s. Frontier Automobiles to the complainant. It appears from the letters that the respondent did not take the decision for a long time, regarding repair in terms of condition No. 3 and that is why delay took place in repair of the car. It has been settled by the Supreme Court in N.R. Srinivasa Aiyar v. New India Assu. Co. Ltd. Madras, AIR 1983 SC 899 that the obligation to repair the damaged car arose under the contract of insurance. The insurer had an absolute discretion either to repair, reinstate or replace the Motor Car. When the insurer has the option to replace the motor car, it can take over the damaged car and the insured is bound to submit to the same. If the insurer on the other hand, exercised the option of repairing the car, it is entitled not merely to choose the repairer but also to determine the charges for repairs to be negotiated and settled between the insurer and the repairer and the insured has hardly anything to do with it. It is thus evident from the above observations that the insurer has to take the decision regarding the repairer and to negotiate the charges with them. The delay in entrusting the work to the repairer from 11.12.92 to 16.2.93 was due to nondecision on the part of the respondent. After the car had been repaired it was the duty of the respondent to have paid the amount which was due from them to the repairer, so that the complainant could take the delivery of the car by paying the remaining amount. However, the respondent while offering the amount of Rs. 28,000/ - and told to the complainant/repairer, put a rider that the cheque would be handed over only if it was agreed that the payment would be in full and final settlement of the claim. The complainant/repairer was not agreeable to that. Thus the delay took place in taking the delivery of the car. We think for that delay also the respondent is responsible. Normally garrage charges in Delhi are Rs. 50/ - per day. In Sanjay Mohan v. The Oriental Insurance Co. Ltd., Case No. C -336/92 (decided on 23.4.93), we also awarded garrage charges @ Rs. 50/ - per day. Therefore, we are of the opinion that the complainant is entitled to the garrage charges @ Rs. 50/ - per day. The total amount comes to Rs. 5,350/ - as shown in Annexure A attached with the order.

THE complainant has claimed conveyance charges during the period he could not take delivery of the car on account of delay caused by the respondent @ Rs. 150/ - per day. It is common knowledge that the distances in Delhi between various places are too long. The complainant is a lawyer and has to run about in connection with his professional work from one Court to another which are at long distances. The Tis Hazari Court and High Court are also at a long distances from his residence. We are, therefore, of the view that the complainant is entitled to conveyance charges during the period in which the car remained with the garrage on account of the fault of the respondent. However, it may be mentioned that the complainant is not entitled to conveyance charges for Sundays and other gazetted holidays. The total number of days on which he remained without a conveyance comes to 101 days as shown in Annexure A. After taking into consideration the aforesaid circumstances we allow the complainant Rs. 125/ - per day. If he had been using the car, he would have spent some amount on petrol and maintaining the car. The must have done about 60 kms. a day. The expenses of running the car for that distance would come to about Rs. 75/ - a day. Thus the complainant is entitled to get Rs. 50/ - per day. The total amount for 101 days comes to Rs. 5050.

THE complainant has been awarded the garrage and conveyance expenses. Consequently we are not inclined to give any further damages on account of mental pain and agony. For the aforesaid reasons we accept the claim with costs and direct the respondent to pay an amount of rupees 13,596.58 within a period of three months to the complainant. In case they fail to pay the amount within the said period, they shall be liable to pay interest @ 15% p.a. from the date of decision till the date of payment and action shall be taken against them u/ Section 27 of the Consumer Protection Act. Costs Rs. 2,000/ -. Complaint allowed with costs.