DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Consumer Complaint Case No: 596 of 2010]

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              Date of Institution : 16.09.2010

                   Date  of Decision   : 17.08.2012

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Jaskanwal Singh s/o Jhujar Singh, R/o #1511, Sector 38-B Chandigarh.

                                  ---Complainant

VERSUS

[1]  Bajaj Allianz General Insurance Co. Limited, through its Manager, SCO No. 139-140, Sector 8-C, Chandigarh.

[2]  Harmony Honda, through its Managing Director, Plot No.67, Industrial Area, Phase-II, Ram Darbar, Chandigarh.

---Opposite Parties

BEFORE:  SH. LAKSHMAN SHARMA            PRESIDENT

         MRS.MADHU MUTNEJA              MEMBER

         SH. JASWINDER SINGH SIDHU     MEMBER

Argued By:    Sh. N.S. Jagdeva, Counsel for Complainant.

          None for the Opposite Parties.

PER JASWINDER SINGH SIDHU, MEMBER

1.      Complainant has filed the present complaint, against the Opposite Parties on the grounds that, the Complainant being owner of a Maruti car bearing Regn. No. CH-04-B-8643 (Model 2007) had got an insurance policy vide cover note no. BZ0802902976 for the period 31/12/09 to 30/12/10 by paying a premium of Rs.9328/-and the IDV of the vehicle in question was assessed as Rs.5,72,220/-. The registration certificate and insurance cover at annexed as Annexure C-1 and C-2 respectively.

        The Complainant has asserted that no copy of term and conditions of the policy were either explained nor were supplied to him at the time of issuance of the policy. Unfortunately, the car of the Complainant met with an accident on 22/7/10 at village Banur, while coming back from Patiala. The Complainant himself was driving the car at the time of the accident and had a valid and effective driving licence at the time of the accident, a copy of which is annexed as Annexure C-3.

        The car in question had suddenly stuck against a big speed breaker/ pothole which the Complainant failed to see and there was a big noise after which the Complainant somehow managed to stop the vehicle. The Complainant claims to have looked around for the damage to the vehicle, but failed to locate any. However, the Complainant carried on with his journey and drove down to the Workshop of Opposite Party No.2 at Chandigarh, with great difficulty.

        Opposite Party No. 2 made an estimate of Rs.30,000/- for the repairs. The Complainant duly intimated the Opposite Party No.1 and a claim was lodged by them on 24/7/10. A Surveyor was deputed, who assessed the loss of the vehicle, and found that ZX Beam Assy RR has got bent and the assessed amount of Rs.23,000/- + labour charges were reported by the Surveyor.

        The Complainant was shocked on receiving a letter dated 3/8/2010, through which Opposite Party No.1 claimed that the damage to the vehicle was due to normal wear and tear and consequential loss and mechanical and electrical breakdown were not payable by them, as the same were not covered within the condition no.2 of the policy document. The letter is annexed as Annexure C-4. The Complainant duly replied the communication dated 3/8/10 through his letter dated 6/8/10, explaining the entire episode and raising his claim towards the damage of the car. However, the Opposite Party No.1 without giving due weightage to his explanation dated 6/8/10 repudiated the claim of the Complainant vide their letter dated 10/8/10 (Annexure C-7). Thus, claiming the act of repudiation of the claim of the Complainant, in an arbitrary and illegal manner, the Complainant claims the same to be a deficiency in service on their part and has prayed for the following relief: - 

[a]  To direct the Opposite Party No.1 to set-aside the repudiation letter dated 10.8.2010 (Annexure C-7) and direct the Opposite Party No.1 to get the vehicle repaired and allow the claim of the accident of the car to the tune of Rs.30,000/-.

[b]  To allow compensation of Rs.25,000/- for harassment and mental agony and sleep less nights on account of deficiency in service to the Complainant;

[c]  To pay Rs.5,000/- on account of litigation charges.

        The complaint of the complainant is duly verified and supported by his detailed affidavit.

2.      The Opposite Party No.1 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the claim of the Complainant was duly assessed by deputing a surveyor. However, after having processed the claim and on the opinion given by the Surveyor the claim of the Complainant was repudiated, as per the condition 2.a of the terms and conditions of the policy. The damage to the vehicle was attributed to normal wear & tear, mechanical and electrical breakdown and the same not being covered, was not payable to the Complainant. The answering Opposite Party has also taken objections to the present complaint, on the ground that the Complainant does not fall under the definition of ‘Consumer’, as well as nor the present complaint falling under the definition of ‘complaint’ as envisaged under Section 2(1)(c) of the Consumer Protection Act, 1986. Thus, no relief can be granted to the Complainant, as enumerated in clause 2(ii) of Section 14 of the Act.

        On merits, the Opposite Party No.1 has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party No.1 have prayed for the dismissal of the complaint with heavy costs.  

        The reply of the Opposite Party No.1 is supported by a detailed affidavit of Sh. Sachin Ohri, Senior Legal Executive, Bajaj Allianz Co. Ltd.

3.      The Opposite Party No.2 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the present complaint is not maintainable qua them either on facts or on law, as the answering Opposite Party has been unnecessarily arrayed as Opposite Party. The present complaint being falsely filed against them, though there is no deficiency in service on their part, as the averments of the present complaint, are mainly towards the Opposite Party No.1 alone, thus, praying for the dismissal of the present complaint of the Complainant, with heavy costs. 

        On merits, the Opposite Party No.2 has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply.  Thus, claiming no deficiency in service or unfair trade practice on their part, the Opposite Party No.2 have prayed for the dismissal of the complaint with heavy costs.  

        The reply of the Opposite Party No.2 is supported by a detailed affidavit of Sh. Jaswinder Singh, Service Adviser of Harmony Honda, opposite party No.2.

4.      As the Opposite Parties failed to appear on the last date of hearing i.e. 30.07.2012, the arguments of the counsel for the Complainant were heard. Hence, in the absence of the opposite parties, we have proceeded to dispose of the present complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), vide order dated 30.07.2012.

5.      Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the Complainant, we have come to the following conclusions.

6.      According to the Complainant the actual cause of action arose when the vehicle in question had suffered damage while being driven by the Complainant and having struck a speed breaker/pothole with a force. The Complainant claims to have taken the vehicle to the authorized Dealer as the vehicle could be driven, but with great difficulty. The Complainant duly intimated Opposite Party No.2 about the happening of the accident, which appointed a Surveyor to assess the loss caused. The surveyor report is annexed as Annexure R/4, wherein the surveyor report dated 27/7/2010 mentions the estimated loss of Rs.26,978/-; whereas, the assessed loss is mentioned as Rs.22,876/-.

7.      The Complainant is aggrieved of not having received the assessed amount of damage to the vehicle as the Opposite Party No.1 had repudiated the claim of the Complainant vide their communication dated 10/8/2010 (Annex.C-7). The Opposite Party No.1 through their earlier communication dated 3/8/2010 had sought the clarification from the side of the Complainant that the reported loss to the vehicle in question was in the opinion of the Surveyor to be that of normal wear and tear and that the consequential loss, depreciation, wear & tear, mechanical and electrical breakdown failures or breakages’ not being covered, could not be granted. The reply of the Complainant to this letter was not found to be satisfactory. Thus, Opposite Party claims to have rightly repudiated the claim of the Complainant, as the same was not covered as per the condition no.2.a of the Policy document.  

8.      It would be just and fair to visit the surveyor report (Annexure R-4), wherein in the last paragraph, under the tile “comments”, the Surveyor has mentioned as under:-

“After inspecting the insured vehicle, there was no any externally visible damage on the axle, however, when it was asked from the repairers that how can they ascertain that the rear axle was damaged they said that as the rear tyres gone worned out early, which concludes that there is deformation of rear axle.

In my opinion as there is no sign of external impact on the component, it is concluded that the reported deformation of the axle is attributed to mechanical failure on account of normal wear and tear during usage, hence the loss is not accidental, however, the final decision may be taken at the end of insurers.” 

As the Complainant has failed to controvert the opinion of the Surveyor, by bringing on record any cogent, reliable or trustworthy evidence, we are left with no other choice, but to believe the surveyor’s opinion. Thus, in these circumstances, no deficiency in service is made out against the Opposite Parties. Hence, the present complaint is dismissed, without costs. Parties are left to bear their own costs.    

9.      Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17^th August, 2012

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER