DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, GURGAON-122001.
Consumer Complaint No: 102 of 2012 Date of Institution: 26.03.2012 Date of Decision: 10.11.2015.
Leela Yadav Leelawati aged 41 years wife of Shri B.S.Yadav, R/o H.No.39-P, Sector 31, Urban Estate, Gurgaon.
……Complainant.
Versus
- M/s Tata AIG General Insurance Company Ltd, having its registered office at Peninsula Corporate Park, Nicholas Piramal Tower, 9th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai-400 013 through its authorized person.
- M/s Tata AIG General Insurance Co. Ltd., at 2nd Floor, SCO 6 Complex, Sector-14, Gurgaon-122 001, Haryana, through its authorized person.
..Opposite parties
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Sh. Amit Kumar Yadav, Adv for the complainant.
Sh. S.K.Verma, Adv for the opposite parties.
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that she got her vehicle bearing Regd. No.HR-26-AK-6789 insured with the OP-Insurance Company which was valid w.e.f.06.03.2011 to 05.03.2012 and during the subsistence of the insurance policy on 15.07.2011 the husband of the complainant while driving the said car went to Panchkula and on that day it was rainy way and the said car stopped functioning all of sudden and thereafter the vehicle was taken to M/s Lally Automobiles Pvt. Ltd, Chandigarh . On 16.07.2011 the surveyor inspected the said car and on 18.07.2011 the car was again inspected by the workshop and the complainant paid a sum of Rs.1,71,400/- towards the repair charges. The surveyor reported that the damage to the car was on account of mechanical defect but the claim of the complainant was rejected on 22.09.2011 on the ground that there was hydrostatic lock which was not liable to be reimbursed which tantamounts to deficiency in service on the part of the opposite parties. The complainant prayed that the opposite parties be directed to reimburse the claim of Rs.1, 71,400/- and also to pay Rs.1 Lac as compensation for harassment and mental agony and Rs.20,000/- as cost of litigation. The complaint is supported with an affidavit and the documents referred above.
2 OPs in their joint written reply have alleged that the husband of the complainant had driven the vehicle in the water and due to entering of water in the engine there was hydrostatic lock and the same was beyond the coverage of the insurance policy and as such the claim of the complainant was rightly repudiated by the opposite parties and there was no deficiency in service on the part of the opposite parties.
3 We have heard the learned counsel for the parties and perused the record available on file.
4 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that the complainant has filed the present complaint against the OPs alleging deficiency of service on their part on the ground that she is registered owner of vehicle No.HR-26-AK-6789 and the vehicle was insured with the opposite party for the period from 06.03.2011 to 05.03.2012 and during the subsistence of the insurance policy the vehicle stopped functioning all of a sudden in a rainy season on 15.07.2011. The vehicle was taken to M/s Lally Automobiles Pvt. Ltd, Chandigarh and a sum of Rs.1,71,400/- was incurred on account of repair charges. However, the vehicle was inspected by the surveyor and he has reported that the damage to the vehicle was on account of mechanical defect but the claim of the complainant was repudiated on 22.09.2011 on the ground that there was hydrostatic lock and on that account the claim was not liable to be reimbursed by the opposite parties which tantatmounts to deficiency in service on the part of the opposite parties. In support of his arguments learned counsel for the complainant has placed reliance on Bajaj Allianz General Insurance Co. Ltd Vs M/s Gondamal Hardyal Mal 2010(1) CPC118, Manjit Singh Khaira Vs HDFC ERGO General Insurance Co. Ltd decided by Hon’ble Sttase Consumer Disputes Redressal Commission, Union Territory, Chandigarh in Consumer Complaint No.97 of 2014 on 21.11.2014, Mercedez-Benz India Pvt Ltd Vs M/s SLB Enterprises Pvt. Ltd & M/s ICICI Lombard Gen Vs M/s SLB Enterprises decided by Hon’ble Delhi State Commission in Case No.FA-09/648 and FA-09/654 decided on 19.10.2010.
5 However, as per the contention of the opposite parties, the complainant’s husband had driven the vehicle in the water and due to entering of water in the engine there was hydrostatic lock and the same was beyond the coverage of the insurance policy. Learned counsel for the opposite party has also contended that in case this Forum comes to the conclusion that the insurance company was liable to indemnify the claim in that eventuality the opposite party was not liable to pay consequential loss and loss was also liable to be paid in view of Section 1 of the insurance policy.
6 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it is evident that the car of the complainant was stopped all of sudden and was taken to authorized service station where the surveyor inspected the said vehicle and noted the following that
1. There was no external impact to the vehicle or the engine
2. Engine cannot be impacted by merely coming in contact with water and damages to engine can only be attributed due to mechanical failure or trying to start/run the engine when it is still in contact with water.
Section I relating to LOSS OF OR DAMAGE TO THE VEHICLE INSURED, being relevant, is also extracted hereunder:-
SECTION I. LOSS OF OR DAMAGE TO THE VEHICLE INSURED.
The Company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon I.
by fire explosion self ignition or lightening II.
by burglary housebreaking or theft.
III.
by riot and strike.
IV.
by earthquake (fire and shock damage)
V. by flood, typhoon, hurricane, storm, tempest, inundation, cyclone, hailstorm, frost.
VI.
by accidental external means.
VII.
By terrorist activity.
VIII.
Whilst in transit by road rail inland-waterway lift elevator or air.
IX.
By landslide rockslide.
Therefore, when the surveyor himself has reported that the damage to the vehicle can only be attributed due to mechanical failure, therefore, what may be the reason for failure of the engine the same was liable to be reimbursed in view of the report of the surveyor as well as in view Section 1(V) of terms and conditions of policy and in view of the law laid down in the authorities relied upon by the learned counsel for the complainant.
7 Therefore, in view of our above discussion we hold that there was deficiency in service on the part of the opposite parties. We direct the opposite parties to reimburse the claim of the complainant for Rs.1,71,400/-, after deducting 25 % depreciation in view of term and condition No.1 of the insurance policy, with interest @ 9% p.a. from the date of filing of the present complaint i.e. 26.03.2012 till realization. The complainant is also entitled to Rs. 15,000/- as compensation for harassment and mental and Rs.3100/- as litigation expenses. Opposite parties shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
10.11.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
