KUNDAN KUMAR KUMAI

This is an appeal preferred u/s 15 of the Consumer Protection Act, 1986, against the order dated 28/03/2018 passed by the Ld. DCDRF, Siliguri in CC/08/2017. Initially the appeal had been preferred before the Hon’ble SCDRC, West Bengal, Kolkata and the appeal had been numbered as A/473/2018. Thereafter, the appeal had been transferred vide memo no.1173/1(4)/SC/2J-2/17 dated 14/7/2023 and the appeal, had been re-numbered as RBR/A/17/2023.

Brief fact of the Appellant’s Case is that, the Appellant being the registered owner of the vehicle being no. WB06-B-4263 Maruti-Suzuki SX4 Model and insured vide Policy No. OG-16-2404-1801-0000-3553, which was valid till midnight of 23/07/2016. The city of Siliguri had witnessed heavy rainfall on 20/07/2016 & 21/07/2016, following which Wards of Siliguri Municipal Corporation including Ward No.31 viz. Ashok Nagar, where the car of the Appellant had been garaged, got water-logged and the matter had been informed to the Authorized Representative of the Respondent Nos. 1 & 2/OP Nos.1&2, over telephone. The Authorized Representative expressed his inability to visit the spot, as water level was high in most of the places in Siliguri and advised the Appellant/Complainant, to visit the nearest authorized service station of Maruti-Suzuki India Ltd. The Appellant/Complainant then took his car to the garage of the Proforma Respondent/Proforma OP No.3, being the authorized service station of Maruti-Suzuki India Ltd. The technical expert of Proforma Respondent/Proforma OP No.3, opined that once the operating system got dry it would function properly and the defects could cure itself and made necessary arrangements to dry the vehicle. The Appellant/Complainant waited for the vehicle to dry and visited the service station on 04/08/2016 and came to know that the problem with the vehicle was still persisting and the In-Charge of the service station advised him to meet the Proforma Respondent/Proforma OP No.4, to fix the vehicle. On 05/08/2016 the Appellant/Complainant, took the vehicle to the Proforma Respondent/Proforma OP No.4 and handed over to one Mr. Swapan. On 11/08/2016, Mr. Swapan informed the Appellant/Complainant to appraise the actual defect (power steering water-lock) and an estimated cost. Thereafter, the claim was lodged with the Respondent/ OP Nos. 1&2, vide Claim No. OC-17-2404-1801-00001059. On 16/08/2016, the Appellant/Complainant received a letter from the Respondent No.2/OP No.2, seeking an explanation for delay in claim, which was promptly sent by the Appellant/Complainant. On 22/08/2016, the Appellant/Complainant received the vehicle from the Proforma Respondent/Proforma OP No.4, after paying Rs.56,511/- (Rupees fifty-six thousand five hundred eleven) only and he was also informed by Mr. Bhagwati from mobile no.99320-28509, that the realization of the claim was under process. But, the mother of the Appellant/Complainant, received two notices on 28/09/2016 from the Respondent/OP Nos. 1&2, wherein, in notice dated 09/09/2016 the Appellant/Complainant, was requested to fulfil the requirements for further proceeding with the Claim No. OC-17-2404-1801-00001059 and in the other notice dated 21/09/2016, expressed their inability to release the Claim thereby repudiating the Claim. The Appellant/Complainant thereafter sent a Legal Notice, but in vain. Finding no other alternative, the Appellant/Complainant lodged a complaint before the Ld. DCDRF, Siliguri with necessary prayers.

The Respondent/OP nos. 1&2, appeared to contest the Claim by filing Written Version wherein they admitted the Policy, but repudiated due to delay in intimation by 22 days and the Policy opted did not cover consequential loss/damages i.e., the parking charges, cost of estimates and value of missing parts thereafter as no external damage was found. It was further prayed that the Claim be dismissed.

The Ld. DCDRF, Siliguri after going through the evidence and documents, passed the impugned order ex-parte, as the Respondent/ OPs 1&2 failed to turn up.

Being aggrieved by the above the Appellant/Complainant preferred this instant appeal on the ground that the Ld. DCDRF, Siliguri had erred in law and facts while passing the impugned order.

                                                     Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing, had submitted that the vehicle in question had been covered by a valid insurance at the time of incident. He has also pointed out to the private car package policy wherein the section I lays down the reasons for coverage to the vehicles suffering loss/damage and had submitted that the Ld. Lower Forum had erroneously relied on the consequential loss. He therefore prayed for setting aside the impugned order and allowing the prayer of the Appellant/Complainant made in the complaint.

Ld. Advocate for the Respondent Nos. 1 & 2, had countered the above argument, by submitting that the Appellant/Complainant had not been able to explain the delay regarding the lodging of the Claim. Moreover, the private car package policy section I (2) laid down the conditions where the Company could not compensate the Policy Holders and had supported the impugned order.

The fact that there had been a heavy rainfall on 20/7/2016 & 21/7/2016 has not been disputed, even when the Respondent nos.1&2 had an opportunity to do so in the Written Version, filed before the Ld. DCDRF, Siliguri. Similarly, the fact that the vehicle had been covered by an Insurance Policy at the time of incident, also is not disputed by the Respondent Nos. 1 &2, in any of their correspondence with the Appellant or in the pleadings. Thus, the only point that needs to be decided is that whether the impugned order can be sustained or not.

The private car package policy of the Respondent nos. 1&2 clearly lays down the Company’s liability to indemnify the vehicle owners in section I (1) and the Company’s power of refusal to indemnify the vehicle owners in section I (2).

Section I (1) lays down grounds and the relevant portion applicable to the instant case, has been mentioned in (v) by flood, typhoon, tempest, hurricane, storm, inundation, cyclone, hailstorm, frost. Therefore, when the Appellant’s case is that the vehicle in question was damaged due to heavy rainfall on 20/07/2016 & 21/07/2016, it stands fully covered by the examples mentioned in (v). Therefore, the Respondent nos. 1&2, had no authority to repudiate the claim, on the ground it was done, delay being a hyper technical ground to do so and discouraged by the IRDA. On the other hand, the Ld. DCDRF, Siliguri, has relied in the impugned judgement, upon section I (2)(a) which is for consequential loss/depreciation where the entire mechanical or electrical breakdown failures or breakages occurs. But the damages claimed in this Case are that the vehicle in question was damaged, due to the vagaries of nature and not due to any consequential loss or damages by depreciation. On this ground itself, the impugned order needs to be set aside. However, in the absence of any evidence in the form of expenditures incurred, the prayer of the Appellant could not be allowed at this stage  . Hence, this appears to be a fit Case for remand, only on the point of compensation supported by the production of evidence, in support of such expenditures. This appeal thereby succeeds.

                                                 It is therefore,

                                                ORDERED

That the instant appeal be and the same is allowed on contest, but without cost.

The impugned order is hereby set aside. The appeal be sent on remand, for decision only on the point of compensation, supported by the evidence of expenditures, if any.

Copy of the order be sent to the parties free of cost.

Copy of the order be sent to the Ld. DCDRF, Siliguri for necessary action.