O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Ops in brief is that he is the owner of a Skoda Octavia car which was insured with Ops with validity period from 05/03/2009 to 04/03/2010 with the insured value of Rs.5,10,550/-. On 10/06/2009 at about 10.30 pm while he was driving his car towards Indra Nagar near Dell building, due to heavy rain there was flooding of rain water on the road and his car was completely inundated and was stranded. That he could not start the car as the result the authorized repairer M/s Tafe Access towed the same to the Garage and the same was informed to Op. The authorized repairer inspected the vehicle and estimated the repair at Rs.3,25,900/- on 01/07/2009. It was stated that there was damage to the engine assembly due to inundation and to rectify estimate was reached at Rs.3,25,000/-. A report was sent to the Op on 03/07/2009 and was shocked to receive a letter from Ops repudiating his claim, on the ground that loss to the engine assembly was not due to inundation but due to mammoth amount of external force applied by the complainant to start the engine. That since he could not start the car it was towed to the Garage and stated that loss of engine assembly was not due to mammoth force applied to start the engine but due to inundation. Therefore, has prayed for a direction to Ops to pay him Rs.3,25,900/- the repair charges, to pay Rs.1.00 lakh as punitive damages for deficiency of service and also pay Rs.1,500/- per day from 10/06/2009 till 29/07/2009 on which date car was delivered on the ground that he could not use the car during that period.<br /> <br /> Version is filed on behalf of Op No.2 only, with a memo on behalf of Op No.1 adopting the version of Op No.2. Op No.2 in the version besides contending that the complaint is not maintainable has stated that the complaint is misconceived is liable to be dismissed. Ops admitting that the complainant’s car was insured with them and have further contended that the policy is subject to various terms and conditions, and exeptions etc., That they have no knowledge of heavy rain fall on 10/06/2009 flooding the road and the complainant’s car inundated in that water. Further, Ops denying the knowledge that the car could not be started towing it to the garage have contended that complainant gave intimation of damage to the car engine after 7 days delay and contended that complainant ought to have intimated them about the engine immediately but has not done so. That as per the condition No.1 of the policy, notice was to be given to them immediately upon an occurrence of incidental loss or damage by giving necessary information. But such immediate notice was not given to them in this case. On the immediate information given that would have enable them to appoint a surveyor for conducting spot survey to ascertain damage. Further, assessment of damage at Rs.3,25,000/- is false and baseless and stated that the complainant did not forward the final estimate and the bills and relevant information were not given. Further, claimed to have repudiate the claim since damage to the engine was not caused because of inundation and have stated that it was due to excessive attempt to start the engine that has caused damage and the delay in intimating them is disentitles the complainant for relief and they by further denying their liability and deficiency in their service have prayed for the dismissal of the complaint.<br /> <br /> In the course of enquiry into the complaint, one Rashid Mullah, the partner of the complainant and one Chethan P for Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced a copy of the proposal form, copy of estimate of repairs, then a copy of repudiation letter issued the by the Ops, with a copy of insurance policy besides producing a copy of receipt having paid Rs.1,58,661/- to the repairer of the car. Op No.2 has produced a copy of terms and conditions of the policy, a copy of claim details filed by the complainant and copy of the repudiation letter. We have heard the counsel for both parties and perused the records.<br /> <br /> On the above contentions following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Ops have caused deficiency in their service in not paying cost of the repairs he got done to the insured vehicle due to inundation?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Point No.1 : Answered in part in the affirmative<br /> Point No.2 : See the final order.<br /> <br /> Answer on point No.1:<br /> <br /> The claim of the complainant that he is the RC owner of the Skoda Octavia car, it was insured with the Ops having a valid policy from 05/03/2009 to 04/03/2010 is not denied by the Ops but the Ops have denied their knowledge that the complainant’s car on 10/06/2009 at 10.30 pm was inundated in the rain flood water near Dell building. It is denied by the Ops by contenting that they have no knowledge of the same. The complainant has contended that he could not start the inundated car, therefore was towed to M/s Tafe Access, an approved garage and the damage was estimated as Rs.3,25,000/- and have further contended that when claim was made to reimburse that amount Ops issued a repudiation letter dated 03/07/2009. On perusal of the repudiation letter if it found that the Ops have refused to pay the repair amounts on the ground that loss of engine assemble was not due to inundation but due to mammoth amount of external force applied by the complainant to start the engine and driven the vehicle. It is further stated as per the policy condition the vehicle driven after the break down or reasonable care is not taken and unattended and the estimation of the damage is not admissible. But the Ops except so contending that loss of engine assembly was not due to inundation but due to mammoth amount of external force applied to start engine have not proved through any evidence either by getting that car and engine checked through their surveyor or by an expert. Because, if that were to be the contention of the Ops that damage to the engine assembly was due to indiscriminate attempt to start the engine they should have either get the engine check through an expert or adduce evidence in proof of the same but they have not adduced any such evidence or produced any such documents to prove that the engine assembly was damaged due to the indiscriminate attempt to start the engine and it can not be believed. <br /> <br /> Ops except contending that they have no knowledge to inundation of the car in the flood water, have not denied the contention of the complainant that this car had inundated due to flood water and damage to the engine assembly was due to inundation. It is not the case of the Ops also that such damage to the engine assembly will not happen due to inundation or there is no such possibility of such damage to the engine assembly, because of that reason. Therefore, the evidence of the complainant that the car could not be started due to inundation has remained uncontroverted and has to be accepted.<br /> <br /> The learned counsel appearing for the Ops in the course of arguments submitted that the complainant did not immediately informed the Ops about the inundation of the car in the flood water and he by relying upon the version submitted that intimation was given after 7 days after the incident. He also invited our attention to the claim application filed by the complainant in which we of course find that the complainant informed the Ops by giving intimation on 17/06/2009 though incident has happened on 10/06/2009. Here, we should bear in mind the purpose of giving immediate intimation to the insurance company. Intimation to the insurance company is intended to give an opportunity to the insurance company to take all steps at their end depending upon the nature of the incident either to get the assessment of damage done through their surveyor or other men and also to estimate the loss etc., In the instant case it is not denied that the vehicle after it was towed to the garage it was not dismantled for repair and not repaired aslo till 17/10/2009. Counsel for the Ops submitted that the assessor of the company had visited the spot that is the garage, inspected the vehicle and given the report but the Ops have not submitted the report either with regard to the assessment of the damage or damages. It is not even the report of the surveyor that by the time he inspected the vehicle it was dismantled and repaired. Therefore here Ops are not put to any inconvenience nor their interest was affected as such delay in giving intimation of incident in this case the Ops has not in any way affected their interest. Therefore, the Ops in neither way they can avoid their liability to the insured.<br /> <br /> The counsel for the complainant in the course of arguments submitted the approved garage had estimated cost of repair at Rs.3,25,900/-, including changing engine block that is item No.1 of the estimate at Rs.1,35,000/- and fly wheel assembly at Sl. No. 7 worth Rs.35,000/-. But when the Ops refused to reimburse the loss, he only got the car repaired without getting engine block and wheel assembly replaced at an estimated cost of Rs.1,58,661/- and taken car delivery and he is using it. But as evident he has not stated so any of these subsequent developments in the complaint. The counsel for the complainant submitted in the course of arguments that he got the car repaired and took delivery after filing of this complaint. Therefore, he did not reveal these facts of subsequent development in the complaint. He could have brought the developments to this forum by way of amendment but did not do so. However, as submitted by him it remains though damage was estimated at Rs.3,25,900/- and the garage men suggested for replacement of engine block and fly wheel assembly but he did not get those two parts replaced and is using the car till date after taking delivery on 29/07/2009. Therefore, it is submitted that the complaint is using the car since about 10 months regularly and he has paid Rs.1,58,661/- towards repair charges. It is not the case of the complainant that he had inevitably took the car and using it when the Ops refused to pay the repair charges without getting two parts replaced and he is experiencing or finding any defect or problem in using the car. When the complainant till date has not find complaint or any problem in the existing engine block and fly wheel assembly then it cannot be said those two parts are affected or damaged due to inundation. Though the garage people have suggested for replacement but even after using it for 10 months and still being used and when there is no complaint of any problem in those two parts it shall be presumed that the engine block and fly wheel assembly did not warrant replacement and have not given any problem. Therefore, in the absence of such contention or plea by the complainant it can not be construed that those two parts are affected due to inundation. Ops of course have not disputed or controverted about other repairs that the complainant got done and the receipt he has produced after having paid Rs.1,58,661/-. The Ops since have not been able to prove that stranding of the car was due to any act or omissions of the complainant and the evidence of the complainant regarding inundation has not been contradicted, the Ops are found deficient in repudiating the claim of the complainant. Therefore, Ops are liable to reimburse the actual repair expenditure incurred by the complainant. The counsel for the complainant in the course of arguments further submitted that in case if any problem occurs in the engine block and wheel fly assembly the Ops may be directed to either repair it or replace it. As already observed above, till this time, the complainant has not complained anything about the problem in those two parts. Therefore, for future problems that may occure for various reasons for which the Ops cannot be made liable. Even until the complainant counsel argued the case he had an option to get those two parts checked through an expert and get his opinion to prove any defect in them but has not done so. Therefore, such releif cannot be granted under the facts of this case. As the result, the complaint needs to be allowed in part and therefore, answer point No.1 accordingly and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed in part.<br /> <br /> Ops are jointly and severally directed to pay Rs.1,58,661/- to the complainant with interest @ 9% p.a from 30/07/2009 till it is repaid.<br /> <br /> Ops shall also pay cost of Rs.5,000/- to the complainant.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 4th June 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />