BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.493/2011 against C.C.No.580/2010, Dist.Forum-III, Hyderabad
Between:
Mr. Anand Sai B, S/o. B.Chelam,
R/o. Plot No. 284,Park View Castle,
Road No.78, Phase III Jubilee Hills,
Hyderabad. …Appellant/
Complainant
And
1.M/s. ICICI Lombard General Insurance Company Ltd.,
Regd. Office, ICICI Bank Towers,
Bandra-Kurla Complex, Mumbai 400 051,
Rep. by its Managing Director & CEO Sandeep Bakshi.
2. M/s. ICICI Lombard General Insurance Company Ltd. ,
301, 3rd floor, Bhuvana Towers,91, SD Road,
Secunderabad AP Rep. by its
Area Manager Customer Service Motor.
3.M/s.Adishwar Auto Diagnostics Pvt. Ltd.,
Regd Office 6-2-30/B, Empress Court Lakdikapool,
Khairatabad, Hyderabad,
Rep. by G.Manager. … Respondents/
Opp.parties
Counsel for the Appellant : M/s.K.Visweswar Reddy
Counsel for the respondents : Mr.A.P.Venugopal – R3
F.A.No.435/2012 against C.C.No.580/2010, Dist.Forum-III, Hyderabad
Between :
1.M/s. ICICI Lombard General Insurance Company Ltd. ,
Regd. Off: ICICI Bank Towers,
Bandra-Kurla Complex, Mumbai 400 051,
Rep. by its Managing Director & CEO Sandeep Bakshi.
2. M/s. ICICI Lombard General Insurance Company Ltd. ,
301, 3rd floor, Bhuvana Towers,91, SD Road,
Secunderabad, A.P., Rep. by its
Area Manager, Customer Service Motor. …Appellants/
Opp.parties 1 & 2
And
1.Mr. Anand Sai B, S/o. Chelam,
R/o. Plot No. 284,Park View Castle,
Road No.78, Phase III, Jubilee Hills,
Hyderabad, Pin 500 033.
…Respondent/
Complainant
2. M/s.Adishwar Auto Diagnostics Pvt. Ltd.,
Regd Off: 6-2-30/B, Empress Court,
Hyderabad, A.P.-500 004,
Rep. by G.Manager. …Respondent/
Opp.party no.3
Counsel for the Appellants : Mr.N.Mohan Krishna
Counsel for the respondents : M/s.K.Vishweshwar Reddy-R1
Mr.A.P.Venugopal-R2
QUORUM: SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
THURSDAY, THE TWENTIETH DAY OF JUNE,
TWO THOUSAND THIRTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
Both the appeals arise out of one and the same order dt. 18.4.2011 of the Dist.Consumer Forum-III, Hyderabad in C.C.No.580/2010. For the sake of convenience , the parties are described as arrayed in the complaint.
F.A.No.493/2011 is filed by the complainant and F.A.No.435/2012 is filed by opp.party nos.1 & 2 .
Since both the appeals arise out of one and the same order, both the appeals are heard together and being disposed of by common order.
The brief case of the complainant as set out in the complaint is that the complainant purchased MERCEDES-BENZ C 200 K AT on 31.5.2007 from the opposite party no. 3 with the financial assistance rendered by ICICI Bank. On the representations and promises made by the opp.parties 1 and 2, the complainant insured the said vehicle with the opposite parties 1 and 2 for the period from 13.6.2009 to 12.6.2010 midnight. The policy was to cover the loss or damage to the vehicle insurance against various specified contingencies. The complainant paid an annual premium of Rs.31,554/- for the above said period. The said premium was collected by the opposite parties 1 and 2, after deducting the 15% depreciation on the value of the vehicle.
It is stated in the complaint that while so, in the evening of 1st September,2009, the complainant visited Saibaba Temple at Film Nagar, Jubilee Hills and parked the car outside the temple. There was an unseasonal rain and wholly unexpected downpour at that time on that day. Because of the heavy unseasonal rains, there was a choking of the storm drains resulting in water logging before the Saibaba Temple. As there was a traffic jam at the temple area, the complainant was forced to move out his vehicle. The complainant tried to start the car, but the car did not start. The complainant got down the car and noticed that the water entered the silencer of the car as soon as an Innova Car passed opposite to the complainant’s car heaving waves resulting in the vehicle abruptly stalling.
It is further stated in the complaint, soon after the vehicle stalled, the complainant called up M/s.Adishwar Auto Diagnostics Pvt. Ltd. (Opp.party no.3) and the vehicle was taken to the workshop of opp.party no.3. After preliminary investigation, the technicians of opp.party no.3 informed the complainant that the vehicle appeared to be flood affect ted and may require the opening of the engine. Opposite party no.3 has given a preliminary estimate summary for Rs.13,23,926/-. On the intimation by the complainant, the Manager, Customer Service Motor of the opposite parties 1 and 2 inspected the vehicle at opp.party no.3 work shop and said that the clearance for undertaking of the repairs would be given.
It is further stated in the complaint that the complainant received the letter dt.9.9.2009 sent through the authorized signatory of the opp.parties 1 and 2 stating that as per the surveyor assessment the liability is limited to replacement of oil, oil filter and engine flushing charges as per the terms and conditions of the policy. The letter dt.9.9.2009 is untenable and illegal. There is absolutely no rationale or basis for the insurance company to contend that its liability is limited to such items only. The wrongful denial of the complainant’s entitlement is also in clear breach of the terms of the insurance policy. As such, the opposite parties 1 and 2 have committed negligence and deficiency in service towards the complainant. The opp.parties 1 and 2 are jointly and severally liable to pay Rs.13,23,926/- to the complainant towards the estimate summary for the repair charges, costs of the parts to be replaced and labour charges given by opp.party no.3. The opp.parties 1 and 2 are also liable to pay an amount of Rs.3 lakhs to the complainant towards compensation for mental agony etc., Rs.50,000/- towards the transport charged incurred by the complainant for the said period of 5 months, Rs.50,000/- for restraining the complainant from using his car for five months and to pay Rs.5000/- towards the costs of the litigation. Hence the complaint.
Resisting the complaint, the opp.parties 1 and 2 filed their written version contending that the policy issued in favour of the complainant was Private Car Package Policy. On receiving the complaint from the complainant, these opp.parties deputed their surveyor who observed that there was external impact to the vehicle or engine from outside and damage to the engine can only be attributed to mechanic failure or trying to start the engine when it is still in contact with water. Therefore, the claim of the complainant falls under consequential loss .
These opp.parties further contended that the limiting of liability is based on the recommendations of the surveyor and therefore the action of the opposite parties is perfectly valid and justified and it does not amount to deficiency in service as alleged by the complainant. These opp.parties finally prayed for dismissal of the complaint with costs.
Opp.party no.3 filed separate written version admitting that they had given preliminary estimation of Rs.13,23,926/- towards repairing charges to the complainant .The opposite party no.3 further contended that they are not proper and necessary party to the present litigation and therefore prayed to dismiss the complaint against them.
During the course of enquiry, before the District Forum, the complainant and the opp.parties filed their evidence affidavits and got marked Exs.A1 to A13 and B1 to B4 respectively.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum disposed of the complaint directing the opp.parties 1 and 2 to pay Rs.2,30,860/- to the complainant .
Not satisfied with the above order of the District Forum, the complainant filed the appeal in F.A.No.493/2011 and aggrieved by the said order the opposite parties 1 and 2 preferred the appeal in F.A.No.435/2012 questioning the validity and legality of the order.
We heard the counsel for both the parties and perused the entire material placed on record by both the parties.
Now the points for consideration are:
1).Whether the order of the District Forum is vitiated for misappreciation of fact or law? and
2). Whether the appellant/complainant in F.A.No.493/2011 is entitled for the reliefs as prayed for in the complaint?
It is not in dispute that the complainant insured his vehicle Mercedes Benz with the opposite parties 1 and 2 under private car package policy no.3001/57022982/00/B00 on 13.6.2010 covering the period from 13.6.2009 to 12.6.2010 by paying Rs.31,554/- towards premium.
It is the case of the complainant that on 1.9.2009 he visited Saibaba Temple at Film Nagar, Jubilee Hills and parked his car outside the temple, that due to heavy and unexpected rain , there was water logging before the temple and when he started the vehicle it did not start, then he came down and noticed that rain water entered into the silencer and on the next day the complainant towed the vehicle to the work shop of opposite party no.3. These facts are proved by the evidence affidavit of the complainant and the correspondence between the parties. Infact the opposite parties have not disputed the above said case of the complainant .
It is the case of the complainant that after preliminary investigation done by the technicians of opposite party no.3 Adishwar Auto Diagnostics Workshop, opposite party no.3 has given preliminary estimate summary for Rs.13,23,926/-, which includes the repair charges, costs of the parts to be replaced and labour charges. The said report is marked as Ex.A4. Basing on Ex.A4 Preliminary Estimation, the complainant submitted a claim to the opp.parties 1 and 2. After some time, the opp.parties 1 and 2 sent Ex.A11 (Ex.B4) letter dt. 9.9.2009 to the complainant stating that as per the surveyor’s assessment vide Ex.B2, the liability is limited to replacement of oil, oil filter and engine flushing charges amounting to Rs.20,000/- as per the terms and conditions of the policy.
The contention of the complainant is that as per the insurance policy wording, the damage caused to the vehicle is directly attributable to the inundation, in which, the vehicle was struck down and which can never be termed as consequential damage/clash as stated by the surveyor in Ex.B2 report. The further contention of the complainant is that the surveyor has given Ex.B2 report on 20.9.2010, i.e. after one year from the date of rejection of the claim by opposite parties 1 and 2, through their letter Ex.A11 dt.9.9.2009 and subsequent to filing of their appearance in the complaint under appeal before the District Forum. The District Forum is therefore erred in considering Ex.B2 report and passing the impugned order.
As seen from Ex.B2, the surveyor opined that the damage to the insured vehicle was not on account of external impact, but damage was caused due to the starting of the engine when it is still in contact with water. Except the observation of the surveyor and his Ex.B2 belated report, the opposite parties have not adduced any evidence in support of the above observations of the surveyor . There is no evidence on record to show that the complainant tried to drive the vehicle when the engine was in contact with water. Absolutely there is no evidence on record to show that the loss sustained by the insured vehicle is consequential loss. On the other hand , the facts and circumstances goes to show that the damage sustained by the insured vehicle is not consequential . Except the observation of the surveyor , in his Ex.B2 report , no evidence has been placed by the opposite parties 1 and 2 that the loss caused to the vehicle is attributable either to mechanical failure or trying to start the engine when it is still in contact with the water. Therefore, we are not inclined to accept the ground on which the opposite parties 1 and 2 repudiated the claim of the complainant.
As rightly observed by the District Forum, the complainant had filed only Ex.A4, the preliminary estimation given by opp.party no.3. The complainant had not filed the bills pertaining to the repairing charges. In the absence of sufficient corroborating evidence, basing on Ex.A4 Preliminary Estimation , the complainant is not entitled for Rs.13,23,926/-.
In the given facts and circumstances of the case, we do not find any irregularity or illegality on the part of the District Forum in awarding a sum of Rs.2,30,860/- to the complainant towards compensation, basing on Ex.B2 Surveyor’s report. However, the District Forum ought to have awarded some reasonable amount to the complainant towards mental agony. In view of the facts and circumstances of the case, we are of the considered view that a sum of Rs.25,000/- is just and reasonable to award to the complainant towards compensation for mental agony etc. along with costs of the complaint.
For the afore said facts and circumstances, F.A.No.493/2011 is allowed in part directing the opp.parties 1 and 2 to pay a sum of Rs.25,000/- to the complainant towards compensation for mental agony etc. and Rs.5000/- towards costs of the complaint. The impugned order of the District Forum is accordingly modified retaining the direction to opp.parties 1 and 2 to pay a sum of Rs.2,30,860/-. The opp.parties are directed to comply with the order within two months, failing which, they are liable to pay interest on the awarded amount of Rs.2,55,860/- from the date of the complaint till the date of payment. In view of the facts and circumstances of the case, there shall be no order as to costs.
F.A.No. 435/2012 is dismissed. There shall be no order as to costs.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 20.6.2013
