Tamil Nadu

South Chennai

CC/84/2007

J.Vijayakumar - Complainant(s)

Versus

Bajaj Allianz General Ins .Co.Ltd.,, - Opp.Party(s)

-

08 Nov 2017

ORDER

                                                                        Date of Filing :   15.02.2007

                                                                        Date of Order :   08.11.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.84/2007

WEDNESDAY THIS 8^th DAY OF NOVEMBER 2017

J. Vijayakumar,

S/o. Mr.V.Jayaraman,

Old No.158, New No.3, 5^th Street,

Anna Nagar East,

Chennai 600 102.                                         Complainant

                                                   Vs

 

M/s. Bajaj Allianz General Ins. Co. Ltd.,

Prince Towers, V Floor,

25/26, College Road,

Chennai 600 006.                                             Opposite party.

 

Counsel for Complainant           :   M/s. S. Jayasankar & another            

Counsel for opposite party        :   M/s.M.B.Gopalan & others   

 

ORDER

THIRU. M. MONY, PRESIDENT

This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction   to pay a sum of Rs.4,32,299/- towards cost of repair charges for the vehicle bearing registration No.TN-09-AR-0999 and also to pay a sum of Rs.1,00,000/- for deficiency of service and another sum of Rs.1,00,000/- for mental agony and hardship  and to pay cost of the complaint.  

 

1. The averment of the complaint in brief are as follows:

           The complainant submit that  he is the owner of the car namely Mercedes Benz C-Class Kompressor bearing Reg.No.TN-09-AR-999 and he insured the car with the opposite party M/s. Bajaj Allianz General Insurance Co. Ltd., for comprehensive policy risk.  The complainant further state that on 27.10.2005  the complainant’s brother drove the car  at New Avadi Road, Chennai 600 010 around 12 noon due to heavy flooding of the road, the said vehicle suddenly stopped.    Immediately the complainant informed the same to M/s. Trans Car India (P) Ltd.,  the authorized dealer for due repair of the said car.   M/s. Trans Car India (P) Ltd gave report  on 28.10.2005.  The assessed amount of Rs.73,300/- and failure of engine (breakage of connecting rod) was due to hydro static lock.   Water entry inside the engine through  Air cleaner.   The opposite party insurance company appointed surveyor who attended the vehicle and submitted the report on 19.12.2005.   After due inspection on various dates and assessed amount of Rs.73,300/-, the said surveyor permitted a sum of Rs.25,663/- towards replacement of plastic item after depreciation of 50% i.e. Rs.32,214/- towards self-motor assembly after deducting depreciation and labour charges of Rs.29,500/- towards removal and installation of engine and other parts.   The surveyor assessed damages to the engine block, connecting rod, piston, piston ring, crank shaft, balance pump, crank shaft, balance cover for a sum of Rs.2,51,689/- subject to check and report.    Further the complainant state that  the vehicle was damaged only a manner due to the flood and was duly repaired after inspection by the surveyor.  The total cost of repair is Rs.4,32,299/- and were duly paid by the complainant. After making the payment towards settlement of bills for repairs of the said vehicle, the complainant caused a legal notice dated 10.3.2006 to the opposite party calling upon them to pay the said amount of Rs.4,32,299/-But the opposite party insurance company not settled the claim amount stating that such flood damage was not covered under the policy.  As such the act of  the opposite party amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.

2.    The brief averments in Written Version of  the  opposite party is  as follows:

      The  opposite party deny each and every allegations except those that are specifically admitted herein.    The opposite party submit that  immediately on receipt of intimation of the claim, the opposite party appointed licensed  surveyor who filed his reports dated 19.12.2005 and30.12.2005, which may be read as part hereof.    On inspection and survey the expert surveyor had opined as follows:

        The vehicle had remained unattended for two days after reported loss and taken to workshop on29.10.2005.  

          In the said position of the vehicle water as low as around one feet lever height cannot be sucked by the engine. 

          At the time of inspection the surveyor found no sign of any water mark in the engine oil, engine cylinder and air filter housing.

          The breakage of engine parts which was possible only if the engine was capable of running to generate its own power.  It was clear that the engine had been running well before the purported engine failure and hence any damage due to flood water can be safely ruled out; etc.  

The opposite party also state that the claim for damage to the engine or other components is not traceable to any insured peril much less the alleged flood.    Hence there is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

3.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A19   marked.  Proof affidavit of opposite party filed and Ex.B1 & Ex.B2 marked on the side of the  opposite party.

4.   The points for the consideration is: 

1)  Whether the complainant is entitled to a sum of Rs.4,32,299/- towards cost of repair charges for the vehicle bearing registration No.TN-09-AR-0999 as prayed for?

 

2) Whether the complainant is entitled to a sum of Rs.1,00,000/- for deficiency of service and another sum of Rs.1,00,000/- for mental agony and hardship  with  cost of the complaint ?

 

5.      POINTS 1 & 2:

         

          The complainant pleaded in the complaint and contended that he is the owner of the car namely Mercedes Benz C-Class Kompressor bearing Reg.No. TN-09-AR-999 and he insured the car with the opposite party M/s. Bajaj Allianz General Insurance Co. Ltd., for comprehensive policy risk as per Ex.A1.  The complainant further contended that on 27.10.2005  the complainant’s brother drove the car  at New Avadi Road, Chennai 600 010 around 12 noon due to heavy flooding of the road, the said vehicle suddenly stopped.    Immediately the complainant informed the same to M/s. Trans Car India (P) Ltd.,  the authorized dealer for due repairers of the said car.   M/s. Trans Car India (P) Ltd gave report  on 28.10.2005 as per Ex.A2.  The assessed amount of Rs.73,300/- and failure of engine (breakage of connecting rod) was due to hydro static lock, water entry inside the engine through  Air cleaner as per Ex.A3.  The opposite party insurance company appointed surveyor who attended the vehicle and submitted the report on 19.12.2005.  After due inspection on various dates and assessed amount of Rs.73,300/-, the said surveyor permitted a sum of Rs.25,663/- towards replacement of plastic item after depreciation of 50% i.e. Rs.32,214/- towards self-motor assembly after deducting depreciation and labour charges of Rs.29,500/- towards removal and installation of engine and other parts.   The surveyor assessed damages to the engine block, connecting rod, piston, piston ring, crank shaft, balance pump, crank shaft, balance cover for a sum of Rs.2,51,689/- subject to check and report.   The surveyor report is marked as Ex.A4.  Further the contention of the complainant is that the vehicle was damaged only  due to the flood and was duly repaired after inspection by the surveyor.  The total cost of repair as per Ex.A14 is Rs.4,32,299/-.  Further the complainant contended that on the date of accident due to flood the policy is subsisting.    But the opposite party insurance company not settled the claim stating that such flood damage was not covered the policy amounts to unfair trade practice.

6.     The opposite party negatived the claim of the complainant and agreed to pay a sum of Rs.73,300/- towards the charges related to replacement of parts and labour charges.  The surveyor assessed the damage to the tune of Rs.2,51,689/- subject to check and report.   The opposite party has not produced any document to prove how the amount of Rs.2,51,689/- arrived and on what basis by check and report arise and the accident is not due to flood.   But neither the surveyor nor the opposite party has not denied the date of flood on 27.5.2005 proves the deficiency in service.  

7.     The learned counsel for the opposite party contended that admittedly the complainant availed the policy of insurance to his vehicle bearing registration No.TN 09 AR 0999 and is subsisting.   It is the case of the complainant that on 27.10.2005 the complainant’s brother was drove the vehicle  at New Avadi Road, Chennai at about 12 noon  due to heavy flood; the said vehicle was suddenly stopped.   Immediately the complainant informed to M/s. Trans Car India P Ltd., being an authorized dealer for repair.   The Trans Car India (P) Ltd took  the car to the Garage and gave an estimate of repairs dated 28.10.2005 as per Ex.A2.     After due intimation this opposite party appointed a surveyor cum expert on 29.10.2005 he inspected the vehicle on various dates  and submitted preliminary survey report on 19.12.2005 as per Ex.A4 stating that a sum of Rs.73,300/- alone will be permitted towards repair charges and a sum of Rs.2,51,689/- assessed subject to check and report.   But no document filed before this forum for the alleged check and report.   The learned counsel for the opposite party contended that the vehicle had remained unattended for two days after reported loss and taken to workshop on 29.10.2005.    But the surveyor  has not stated from 20.9.2005 to 29.10.2005 where the care was remained.  Further the contention of the opposite party state that the vehicle was in a low water level as around 1 feet cannot be sucked by the engine but there is no record.  Even there is no photograph.   Further the contention of the opposite party is that at the time of inspection of surveyor there is no sign of any water mark in the engine oil; engine cylinder and air filter housing etc.  But no record produced before this forum.  Further the contention of the opposite party is that the breakage of engine parts and other things are damaged due to flood water,  but there is no proof.   The estimate given by the authorized work shop M/s. Trans Car India P Ltd., has not stated  anything about the alleged reason given by the surveyor.   The reason alleged by the surveyor has not been proved in such manner also.  Considering the facts and circumstances of the case this forum is of the considered view that the opposite party shall pay a sum of Rs.4,32,299/- towards cost of the repair charges for the complaint mentioned vehicle and shall pay compensation of Rs.25,000/-  towards mental agony with cost of Rs.5,000/-  and the points are answered accordingly.

In the result the complaint is allowed in part.  The opposite party shall pay a sum of Rs.4,32,299/- (Rupees Four lakhs thirty two thousand two hundred and ninty nine  only) towards cost of the repair charges for the complaint mentioned vehicle and shall pay compensation of Rs.25,000/- (Rupees Twenty five thousand only) towards mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.  

The above amounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amount shall carry interest at the rate of 9% p.a to till the date of payment.

 

            Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 8^th day  of  November  2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:

Ex.A1-26.8.2005   - Copy of policy issued by the opposite party.

Ex.A2- 26.10.2005         - Copy of estimate of repair.

Ex.A3- 5.12.2005  - Copy of letter of M/s. Trans Car India Pvt. Ltd to the

                              complainant.

Ex.A4- 19.12.2005         - Copy of Preliminary survey report.

Ex.A5- 23.12.2005         - Copy of letter of M/s. Daimier Chrysler India Pvt. Ltd.,

                              To the complainant.

 

Ex.A6- 27.12.2005         - Copy of letter of M/s. Trans Car India Pvt. Ltd to the

                              complainant. 

 

Ex.A7- 30.12.2005         - Copy of letter submitted by the Surveyor of the opp. party

 

Ex.A8- 30.12.2005         - Copy of letter of opposite party to the complainant.

 

Ex.A9- 5.1.2006    - Copy of letter of complainant to the opposite party.

 

Ex.A10- 10.1.2006         - Copy of letter of opposite party to the complainant.

 

Ex.A11- 17.1.2006         - Copy of letter of the complainant to the opp. party.

Ex.A12- 10.2.2006         - Copy of letter of the complainant to the opp. party.

Ex.A13-                         - Copy of Ack. Card.

Ex.A14- 14.2.2006         - Copy of bill from M/s. Trans Car India Pvt. Ltd.,

Ex.A15- 10.3.2006         - Copy of legal notice.

Ex.A16.                           - Copy of Ack. Card.

Ex.A17- 21.6.2006         - Copy of award of the insurance Ombudsman.

Ex.A18- 10.7.2006         - Copy of letter of acceptance given by complainant.

Ex.A19- 3.8.2006  - Copy of affidavit of the opposite party filed in

                               W.P.No.24611 of 2006 in the file of High Court, Madras.

 

Opposite party’s side document: -   

Ex.B1- 3.8.2007    - Copy of stay order obtain from the High Court,

                               Madras.

 

Ex.B2- 30.12.2005         - Motor survey final report.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.