1. M/s. Bharti Axa General Insurance Company Ltd V/S Mr. Guulshan Roy - Consumer Court Case

Karnataka

Dakshina Kannada

cc/80/2013

Mr. Guulshan Roy - Complainant(s)

Versus

1. M/s. Bharti Axa General Insurance Company Ltd - Opp.Party(s)

KSS

20 May 2017

ORDER

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Complaint Case No. cc/80/2013

1. Mr. Guulshan Roy

S/o. Mr. Himmatlal Vasanth Aged 38 years r/at F.No. 1101 Hallmark Aparments M.G. Road Kodialbail Mangalore 575003

...........Complainant(s)

Versus

1. 1. M/s. Bharti Axa General Insurance Company Ltd

First Floor Ferns Icon Survey No. 28 Next to Akme Ballet Doddanekundi Village K.R. PuramHobli Off Outer Ring Road Bangalore 560037. Represented by Managing Director

............Opp.Party(s)

BEFORE:
	HON'BLE MR. Vishweshwara Bhat D PRESIDENT
	HON'BLE MR. T.C.Rajashekar MEMBER

For the Complainant:	KSS, Advocate
For the Opp. Party:

Dated : 20 May 2017

Final Order / Judgement

BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE

Dated this the 20^th May 2017

PRESENT

SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT

SRI T.C. RAJASHEKAR : HON’BLE MEMBER

ORDERS IN

C.C.No.80/2013

(Admitted on 15.03.2013)

Mr. Guulshan Roy,

S/o Mr. Himmatlal Vasanth,

Aged 38 years,

Residing at F.No.1101,

Hallmark Apartments,

M.G.Road, Kodialbail,

Mangalore 575003.

….. COMPLAINANT

(Advocate for the Complainant: Sri KSS)

VERSUS

1. M/s Bharti Axa General Insurance Company Ltd,

First Floor, Ferns icon, Survey No.28,

Next to Akme Ballet,

Doddanekundi Village,

K.R. Puram Hobli,

Off Outer Ring Road,

Bangalore 560037.

Represented by Managing Director.

2. M/s Bharti Axa General Insurance Company Ltd,

Branch Office at 2^nd Floor,

No.203 & 207,

Inland Avenue,

M.G. Road,

Mangalore 575003,

Represented by Branch Manager.

….........OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 & No.2: Smt. HM)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.

The brief facts of the case are as under:

The Complainant claims he is purchaser and owner of BMW 520D car bearing No. PY.01.BG.9984 purchased on 23.12.2010 for Rs.37,22,800/. Vehicle was insured with opposite party No.1 in his Mangalore Branch of the opposite party No.1 i.e. Opposite party No.2 for the period from 0.00 hours of 22.12.2011 to midnight on 21.12.2012. He is a professional architect having profession office in Mangalore and used to travel almost every day to outstations to attend his profession works. The schedule vehicle was used and driven by the him personally diligence and care. On 8^th August 2012 at about 11.30 PM was driving from Kasaragod to Mangalore and when he was nearing his house at M.G. Cross Road, Mangalore there was heavy down pour and sudden flooding in M.G. Cross Road as well as in the Courtyard of apartment building where complainant resides. When complainant was entering into his apartment gate the flood water suddenly gushed into the schedule vehicle and it has stopped suddenly and as usually any car driver will do when car has suddenly stopped has tried to start the vehicle, but it never started. Immediately complainant contacted the BMW service Centre at Bangalore and they informed him to that vehicle had to be brought to Bangalore for necessary repair and the service centre took the vehicle to Bangalore for repair in a truck at the cost of the complainant of Rs.15,000/. The damage was estimated at Rs.9,05,113/ under as per quotation dated 16.8.2012 issued by BMW Service Centre at Bangalore. On receiving the information from complainant and BMW Service Centre regarding the damage to the vehicle and cost of its repairs one Mr. Vijay M.G, Insurance Surveyor, Loss Assessor and Valuer was deputed by opposite party to assess the damage caused to the vehicle. By communication dated 07.09.2012 the surveyor informed to the complainant that in view of condition No.4 of the policy risk is not covered. In fact the opposite parties never issued any insurance policy paper to the complainant and gave cover note of the insurance policy which does not contain the said alleged condition. Assuming without admitting that such condition is there in the policy issued by opposite parties to complainant it does not come in the way of honouring the complainants claim. This surveyor deputed by opposite parties has acted beyond his power and jurisdiction in the case of complainant. The opinion of the surveyor is not binding on the opposite parties and it is only advisory note to them. The complainant has patiently waited for a quite long time for positive response from the opposite parties. As such the complainant has instructed the BMW Service Centre to effect the necessary repairs to the vehicle in the 2^nd week of October 2012 after informing the opposite parties about the said steps and reserving his right to claim insurance coverage in respect of the vehicle. To the letter dated 30.11.12 and email to opposite parties to pay the cost of 9,05,113/ estimated by BMW Service Centre at Bangalore with interest and also other cost for not complied the service. The complainant paid of Rs.8,00,000 the cost of the repairs to the service centre. After BMW service centre, Bangalore in the 2^nd week of December 2012 communicated that the schedule vehicle was ready after repair and asked him to collect the vehicle by the opposite parties. The complainant also claims due to long delay in processing complainant claim by opposite parties he had incurred nearly Rs.3,000 per day towards taxi or tourist car for his personal and professional needs of complainant hence seeks the reliefs claimed in the complaint.

2. Opposite parties in the written version contend coverage insurance issued to the complainant mention of the complaint is admitted. The complainant informed about the accident and claim form was submitted on 13.8.2012 one Mr. M.G. Vijay Surveyor was appointed by opposite party to assess the damages and he has visited the workshop at Bangalore on 16.08.2012 and submitted the survey report on 11.12.12 and there was no external means of impact on the vehicle and to the under chassis and noticed that the engine found seized. He also mentions that the damage to the engine is a hydro static lock where in engine gets seized due to entry of water or liquid mixed with air into engine cylinder which occurs when vehicle runs into waterlogging and sucked through air cleaner to inlet manifold finally into the cylinder chamber through partially opened inlet valve during the suction stroke. As soon as entry of air mixed with water, engine gets chocked and stops operation and repeated attempts were made to start the engine, there wold be an unwarranted pressure/force on the crankshaft, connecting rods during the compression stroke when the process is repeated the connecting rod due to its design cannot withstand the pressure resulting in the damage to the engine internal parts and hence the seizure of the engine. Contending that it is occurred due to failure of complainant to take all reasonable step to safeguard the car from loss or damage and to maintain it in efficient condition. The complainant had not taken proper care of the car and responsible for the damage to the engine. Under condition No.4 of the policy opposite parties are not liable and repudiate the claim. Hence seeks dismissal of the complaint.

3. In support of the above complaint Mr. Guulshan Roy filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C14 as detailed in the annexure here below. On behalf of the opposite parties Mr. Sandeep S.R (RW1) Senior Specialist-Legal Claims in opposite party Company, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to R6 as detailed in the annexure here below. Mr. M.G. Vijay (RW2) Surveyor and Loss Assessor also filed affidavit evidence and was cross examined.

4. In view of the above said facts, the points for consideration in the case are:

Whether the Complainant is a consumer and the dispute between the parties?
If so, whether the Complainant is entitled for any of the reliefs claimed?
What order?

Learned counsels for both sides addressed oral argument. We have considered entire case file on record including evidence tendered by the parties. Our findings on the points are as under are as follows

Point No. (i): Affirmative

Point No. (ii): Partly Affirmative

Point No. (iii): As per the final order.

REASONS

5. POINTS No. (i): It is not in dispute that the vehicle of complainant was insured by with opposite parties and in the period of incidence it had coverage under the said policy. Ex.C1 is the copy of the policy endorsement. It is not in dispute that vehicle sustain sudden damages which according to complainant was due to heavy down and water rushing to the vehicle and when the complainant tried to start the vehicle did not start hence the vehicle was shifted to the service centre of BMW at Bangalore as per their advice. Opposite party has claimed that as complainant did not take care of the vehicle under clause No.4 of the policy it is not liable to pay the amount claimed by the complainant. Hence not only there is relationship of consumer and service provider between the parties there is a live dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.

6. POINTS No. (ii): In this case the vehicle of complainant was on 8^th August 2012 at 11.30 pm at M G road Mangalore suddenly stopped and complainant tried to start the vehicle it never started are not in dispute. The allegation of opposite party is that due to repeated attempt by complainant i.e. due to not taking sufficient care of the vehicle water entered to the engine of the vehicle and that led to the seizing of the engine of the vehicle. Hence according to opposite party under the clause No.4 of the insurance policy damage caused is not covered. Hence opposite party is not liable.

7. The complainant intimated about the incidence and the vehicle was shifted to Bangalore to the service centre of BMW car at Bangalore from Mangalore after the occurrence of the incident and that on 13.8.2012 complainant even filed the claim petition with opposite parties are not in dispute.

8. The surveyor appointed by opposite party had intimated complainant by a letter dated 7.9.12 as per Ex.C4 M G Vijay, Insurance Surveyor & Loss Assessor, Valuer initiated to the complainant cannot be dispute. Infact as seen from Ex. C4 as quoted from his complaint in this letter according to the surveyor the risk is not covered the relevant portion in the said letter to the condition No.4 of the policy mentioned by surveyor reads thus:

The insured shall take all reasonable steps to safeguard the private car form loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the private car or any part there of or any driver or employee of the insured. In the event of any accident or breakdown, the private car shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the private car be driven before the necessary repairs are effected any extension of the damage or any further damage of the private car shall be entirely at the insured own risk

9. However it was pointed out by learned counsel for complainant along with the policy when the complainant purchased the policy from opposite party the terms and condition of the policy was not served on complainant. Ex.C1 is an intimation to complainant accepting the insurance policy and Ex.C2 is the copy of the RC. Ex.C1 does not contain the terms and conditions of the policy. On the other hand opposite party produced Ex.R2 which contains 5 sheets at Sheet no.3 as pointed out by learned counsel for complainant the following is mentioned:

For detailed policy wordings, inclusions, exclusions and other terms governing your policy, please log onto

10. Another aspect to be noted is M G Vijay is only a Surveyor and loss assessor his Form IRDA.LF that is the license copy is produced at Ex.R1 strangely opposite party did not produce the copy of the Ex.C4 dated 7.9.12 but is produced by opposite party is Ex.R3 Motor (Final) Survey Report Private & Confidential dated 11.12.2012. Even in this report the Surveyor Mr. M G Vijay quoted condition No.4 of the policy as quoted from Ex.C4. Ex.R4 is the copy of the Ex.C4. Ex.R5 is the insurance claim form given by complainant it is dated 13.08.2012. Ex.R6 is again copy of the Motor (Final) Survey Report Private & Confidential issued by the surveyor. Thus as pointed out for complainant the terms and conditions of the policy was never made known to complainant at the time of purchase of the policy especially the exclusion clauses. Other than the intimation given by surveyor M G Vijay there is no intimation given by opposite party to complainant as to the repudiation of the claim. Nowhere opposite parties mention that this M G Vijay is authorised to accept or reject a claim. Based on information to accept or reject the claim laid by the person holding insurance policy purchased from the insurance company that was not done by opposite parties as no such document of repudiation given to complainant by opposite parties.

11. In fact the learned counsel for complainant referring to the testimony of the RW2 M G Vijay the surveyor and loss assessor pointed out that as per the affidavit he issued the surveyor report dated 11.11.2012. Even in cross examination recorded in open court of RW2 M G Vijay he stated that this report issued by him is on 11.11.2012. But no document on surveyor report dated 11.11.2012 was produced by opposite party. Ex.R6 the Motor (Final) Survey Report Private & Confidential is dated 11.12.2012. The learned counsel referring to Ex.C5 the copy of the legal notice issued on behalf of complainant pointed out the legal notice is dated 30.11.2012 and it was served on opposite party No.1 on 30.11.2012. Ex.C7 is the notice addressed to opposite party No.2 returned unserved with the postal endorsement left. It was pointed out for complainant that Ex.R6 is got up only after the receipt of the notice of Ex.C5 by opposite party No.1 the evidence of RW2 the M G Vijay in affidavit evidence and in cross examination surveyor report dated 11.11.2012 is ready by complainant to make billing that the final survey was submitted to prior to legal notice as per Ex.C5 dated 30.11.2012. This argument of the learned counsel on this count is correct.

12. Thus it is clear that there was all attempt made by opposite parties and the surveyor appointed by opposite party to deny the claim of complainant.

13. In fact the learned counsel for complainant pointed out that when the condition and exclusion of the policy was not made known to the complainant opposite parties insurance company cannot be permitted subsequent to take shelter under such terms/clause which was not brought to the notice of the claimant. This argument is accepted.

14. In the case on hand it is evident that despite a claim form submitted by complainant on 13.8.2012 and on 16.8.2012 RW2 M G Vijay visited the service station where the vehicle of the complainant left did file report only on 7.9.2012 in spite of repeated demand the final report was field only on 11.12.12 subsequent to legal notice issued by complainant as per Ex.C5 on 13.11.2012 by making an attempt through RW2 the surveyor and loss assessor answered that report is filed on 11.11.12 as mentioned earlier.

15. In fact in the circumstances of the present nature which was against the opposite party No.1 of the present case itself the fact of the reported case was such that the vehicle was unattended.

16. In fact in another reported case which was also against opposite party No.1 and other in Consumer Disputes Redressal Commission, U Y Chandigarh in first appeal no 99 of 2015 judgment order dated 5.5.2015 it was held in the circumstance almost identical to the present one of case of hydrostatic lock when the vehicle was tried to be started as after due to the heavy rain the water came up to the engine level. The vehicle was locked and the opposite party insurance company took a stand that the replace was not insured against hydrostatic lock. It was held that there was no justification when the vehicle was insured comprehensively and when the attempt of the driver to start the vehicle cannot be considered as not taking sufficient care and the stand taken by the insurance company that the driver did not pay sufficient care to start the engine was repelled and order of the District Forum in directing to the insurance company of pay the amounts to complainant there in was confirmed. In the circumstance we are of the view the facts in the reported case is also similar to the one on hand and that there was no prior intimation about the alleged condition No.4 of the exclusion clause to complainant. The contention of the opposite parties that the complainant is not entitled for the claim is rejected.

17. It was argued for opposite party that the complainant has not produced any document to show that he paid any amount to the BMW service centre at Bangalore. However complainant produced Ex.C3 the bill showing an amount of total of Rs.9,05,113/. Ex.C12 is the tax invoice issued by Navnit Motors Pvt Ltd, BMW Service to complainant as per which the total including tax amount is Rs.8,00,174. Ex.C17 is the counter foil for credit of an amount of Rs.8,00,000/ to the account of Navnit Motors by complainant. It is the counter foil for the amount credit at Corporation Bank by complainant. It is dated 5/01/2013. Ex.C12 the tax invoice dated read as 01/04/2013. Referring to this it was argued for opposite party that the payment was made under Ex.C13 much prior to the tax invoice Ex.C12. However even though on a first look the date appears to be 1^st April 2013 but in our view it would appear, it is the writing of the month first date next and the year last pattern used at Ex.C12, unlike date first month next year last at Ex.C13. Hence argument on this count for opposite party is rejected.

18. Thus we are of the opinion that opposite party having not paid the claim of the complainant, the claim made by the complainant as to the damages caused to the vehicle during the period of the policy amounts to deficiency in service on the part of the opposite parties to complainant. Hence it is a fit case to direct opposite parties to pay an amount of Rs. 8,00,000 paid to complainant for repair/service to Navnit Motors Pvt Ltd BMW Service as per Ex.C13 in respect of Ex.C12. The complainant claim that due to the acts of opposite parties in not permitting the repairs and in delaying even for repudiation caused delay in the repairing of the vehicle which was permitted by the complainant himself when opposite party did not authorised to the repairs. Argument by learned counsel on this count is correct. Hence towards inconvenience caused and mental agony opposite parties shall also be directed to pay a sum of Rs.1,50,000 including cost. Hence we answer point No.2 partly in the affirmative.

19. POINTS No. (iii): Wherefore the following