Exh. 13
BEFORE THE DISTRICT CONSUMER DISPUTES REDFESSAL FORUM, SANGLI
Hon’ble President – Mr.A.V. Deshpande
Hon’ble Member - Mr. K.D. Kubal
CONSUMER COMPLAINT NO. 2270/09
Date of Filing : 23/11/2009
Date of Admission : 05/12/2009
Date of Judgment : 19/03/2013
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Shri Ramesh Harishchandra Bhate,
Age 65 years, Occup.- Business
R/o 763, ShriSidheshwar Road, Athani ……. COMPLAINANT
Versus
Bajaj Allianz General Insurance Co.Ltd.,
G.E. Plaza, Airport road,
Yerawada, Pune
(Summons to be served on Manager) ……. OPPPONENT
Advocate on behalf of complainant – Mrs.Vaishali Patil
Advocate on behalf of Opponent - Mr. S.H. Phatak
J U D G M E N T
Delivered by Hon’ble Mr. A.V. Deshpande, President
1. This complaint u/s 12 of Consumer Protection Act has been filed by the complainant alleging the deficiency in service on the part of the respondent claiming damages of Rs. 57,400/- alongwith interest thereon @ 15 p.c.p.a. from the date of filing of the complaint till realization and also the cost.
2. Shortly stated, the case of the complainant is that he owns a car bearing registration No.KA/23 MB-9999. The said car was insured with the opponent insurance company for the period from 19/11/2007 to 18/11/08. The said insurance policy covers the risk of own damage by fire etc. It was comprehensive policy. On 6/10/08, while some repair works were being carried out to the said car in a garage, all of a sudden due to short circuit, AC blower of the said car alongwith entire wiring caught fire and it was totally burnt and destroyed. The complainant immediately informed the insurance company about the incident and accordingly the surveyor of the opponent company came to the spot and surveyed the damages and took the photographs. It was assured by the surveyor R.S. Pawar that the complainant should get the car repaired and the cost of repairs will be reimbursed by the insurance company. Not only that the surveyor handed over the claim form to the complainant and duly filled it in his own handwriting and obtained the signature of the complainant. Alongwith said claim form, complainant submitted all the necessary documents to the insurance company alongwith quotation for repairs to the damages etc. The said claim was submitted on 13/10/2008. The complainant got his car repaired and spent Rs.38,913/- on the repairs of the said car. He submitted the receipts of payment of repair charges to the complainant. Thereafter, he repeatedly requested the opponent company to process the claim and to pay the amount of damages. But the insurance company avoided to do so. Ultimately by a legal notice, the complainant claimed the damages from the insurance company. The said notice was falsely replied by the insurance company by raising false defences. Ultimately the insurance company repudiated the said claim and hence this complaint. On such contentions, the complainant prayed for the reliefs as mentioned above.
3. The Respondent Insurance company appeared and filed its written statement at Exh.10 and has totally denied the claim of the complainant. It has, however, admitted that it has insured the car bearing No. KA 23 /MD 9999 belonging to the complainant for the period from 19/11/07 to 18/11/08 vide policy No. OC-08-1717-1801-00000828. That the said policy was subject to the terms and conditions, exclusions and limitations thereto. The insurance company has specifically denied that the said policy covered risk of own damage by fire. It is contended that the damages caused to the car of the complainant was due to the negligence of the mechanic and not out of the use of the said car and therefore, the opponent is not liable to reimburse. It is specifically denied that the damages to the captioned AC car was purely accidental and duly covered under the terms and conditions of the said policy. That the said incidence took place while the vehicle was in the custody of mechanic for repairs. That the insurance company is not liable to make any payment in respect of loss due to mechanical breakdown failure which happened in the present case. Therefore, the claim of the complainant is rightly repudiated. That there is no deficiency in service as alleged by the complainant. It is denied that the respondent company is liable to pay anything to the complainant much less the amounts claimed in the complaint as stated above. On such contentions, the opponent has prayed for dismissing the complaint with cost.
4. Alongwith complaint, the complainant has filed an affidavit at Exh.3 and has also filed 8 documents alongwith list at Exh.5 which includes copy of the insurance policy-cum-certificate, a tax invoice issued by Phoenix Automobiles in respect of the damages to the said car, certain receipts of payment of mechanical charges for fitting the AC blower and the complete wiring of the said car, the tax invoice, the copy of the notice dated 10/4/09 issued by him to the insurance company and the reply notice dated 6/5/09 whereby his claim was denied by the insurance company. The Xerox copy of the registration certificate of the said car is also filed on record. As against this, the insurance company has filed on record alongwith its written statement its affidavit at Exh.11 and 3 documents which include the claim form submitted by the complainant dated 13/10/08, the claim repudiation letter dated 16/10/08 and the report of the surveyor Shri R.S. Pawar dated 14/10/08. It appears from the claim repudiation letter that the claim of the complainant was repudiated on the ground that with reference to the survey report and available photographs, it is observed that there are no accidental or external damages to the vehicle.
5. Neither party has led the oral evidence in this case. We have heard the submissions of the learned counsels for both the sides.
The following points arise for our determination.
Points Findings
1) Whether the complainant is a consumer ? Yes
2) Whether the complainant has proved deficiency
in service on the part of Opponent as alleged ? Yes
3) What order ? As per final order.
The reasons for our findings above are as follows.
REASONS
Point No.1
The respondent has not raised any dispute with regard to the fact that complainant is its consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. As such, the point No.1 can be straightway answered in affirmative and therefore answered by us accordingly.
Most of the facts in this case are admitted and we have outlined those facts in the foregoing paras of the judgment and they need not be repeated for the brevity’s sake. The factum of the insurance of the vehicle owned by the complainant, the fact that the said insurance covered the own damage risk of the complainant, the further fact that the said vehicle has suffered the damages due to the fire, the fact that the complainant had submitted a claim for reimbursement of the repair charges of his vehicle and further fact that the said claim was repudiated by the insurance company, are all admitted facts. The claim was repudiated mainly on the ground that there were no accidental or external damages to the complainant’s vehicle. In the claim form submitted by the complainant which is filed alongwith list by the respondent shows that the said vehicle had sustained damages to the dash board, AC blower and all wiring while the welding process was going on. The learned counsel for the complainant has made the statement at par that at the time of incident certain welding work to the body of the said vehicle was going on and due to the sparks of the welding process, AC blower of the vehicle and its wiring caught fire and were damaged. The parties are not at issue on the point that the insured vehicle of the complainant had sustained some damages due to fire. That fire was due to sparks emanating from the welding process. This is the real crux of the matter. The insurance company contends that these damages to the vehicle in question were not caused due to any accident nor those damages were external damages. It is an admitted position that the insurance company had recovered the risk of the damages to the insured vehicle due to fire. Now when the insurance company says that since the said fire was not caused due to any external or accidental cause, the insurance company ought to have produced on record the conditions subject to which the said insurance policy was issued. In fact on record, there is only a certificate of insurance issued by the Respondent No.1 insurance company and annexed thereto are certain terms and conditions of the insurance policy relating to the two-wheelers. The conditions of the said two-wheeler policy are reproduced below.
Two Wheeler Package policy
Section 1 : Loss or damage to the vehicle insured
The company will indemnify the insured against loss of or damage to the vehicle insured here under and/or its accessories whilst thereon
a) By fire explosion self ignition or lighting
b) By burglary house breaking or theft;
c) By Riot and Strike
d) By Earthquake (Fire and Shock Damage)
e) By Flood, Typhoon, Hurricane, Storm, Inundation, Cyclone, Hailstorm, frost
f) By accidental external means
g) By malicious act
h) By terrorist activity
i) Whilst in transit by road rail inland waterway lift elevator or air
j) By Landslide/Rockslide
The insurance company relies on clause (a) of the conditions reproduced above in order to repudiate the claim of the complainant. Basically, since those terms and conditions are relating to the two wheeler package policy, and since the vehicle insured in this case was 4 wheeler car, the respondent company cannot rely on the terms and conditions incorporated in the two wheeler package policy, in order to repudiate the claim of the complainant. Assuming for the moment that the clause (a) of the conditions reproduced above relates to the insurance policy covering the risk of 4 wheeler car, then it does not appear therefrom that the ground on which the claim has been repudiated is incorporated therein. The relevant portion of the repudiation letter dated 16/10/08, are reproduced here. “With reference to the survey report and available photographs, it is observed that there are no accidental and external damages to the vehicle.”
When it is an admitted position that the damages to the complainant’s own car by fire were also covered by the insurance policy in the absence of any specific terms and conditions of the said policy, the insurance company could not repudiate the claim on the ground above. The terms fire as used in clause (a) of the terms and conditions of the said package policy are wide enough to include the fire caused to the vehicle either due to internal causes or due to external causes. A fire is a fire is a fire. Therefore, the insurance company cannot say that in view of the nature of the fire caused to the car of the complainant, it was entitled to repudiate the claim of the complainant. Therefore, in repudiating the claim of the complainant, the insurance company has certainly committed deficiency in service which gives right to the complainant to claim the compensation. We, therefore, hold accordingly.
Point No.3
Now we come to the question of the actual claim of the complainant with regard to the compensation. The complainant has claimed the amount of Rs.38,913/- on account of the amount of repair charges incurred by the complainant, Rs.3,487/- being the interest on the said amount from the date of repairs till the filing of the complaint @ 15 p.c.p.a. in view of the damages. He has further claimed amount of Rs. 10,000/- being the compensation towards the mental agony and discomfort due to the deficient service of the respondent insurance company and further amount of Rs. 5,000/- being cost of the litigation. Thus, he has claimed amount of Rs. 57,400/-.
In order to substantiate his claim for damages to his vehicle and the amount of charges paid by him for repairs to his vehicle, the complainant has produced on record, the invoices issued by Phoenix Automobiles, some receipts of payment of charges to the electrician, the mechanic and also invoice issued by Pandit Automotive Pvt.Ltd, towards purchases of certain spare parts for the said vehicle. The amount of these bills are Rs.23,812/-, 7,000/- and 5,101/- respectively, thus in all Rs.38,913/-. These bills are not disputed by the respondent at all. It is also not disputed that these amounts are spent by the complainant towards the repairs to his car which was damaged in the incident in question. Thus relying on these bills, invoices etc. and also on the affidavit of the complainant, we can safely held that the complainant had to incur the expenses of Rs. 38,913/- on account of the repairs to his car. In view of the policy covering the risk of the complainant’s own damage, the insurance company was liable to reimburse the complainant in paying these repair charges. We have already held above that the respondent company has wrongly repudiated the said claim and thus, has committed deficiency in service. In our view, the complainant would be entitled to recover the said amount from the insurance company being the actual loss to his vehicle.
The insurance company has unjustifiably repudiated the claim of the complainant which ought to have resulted into some kind of the discomfort or mental agony to the complainant. The complainant has assessed the damages under that head at Rs.10,000/- which in the circumstance, we found to be unjustifiable and the complainant to be entitled to, because the respondent company has not seriously disputed this head of damages. At the same time, the complainant would be entitled to recover certain amount towards the cost of litigation because due to the unreasonable repudiation of the claim, he has been driven to file this complaint which he must have incurred some expenses considering all the facts and circumstances, we are of the opinion that the complainant shall be entitled to the amount of Rs.2,000/- being the cost of litigation.
The complainant has further claimed amount of Rs.3,487/- on the amount of repair charges being the interest on the amount of repair charges @ 15% by way of damages. He has claimed this amount from the date of repairs till the filing of the complaint. This being a claim for interest at pre-litigation stage and also in lieu of damages, we are inclined to grant the said relief to the complainant. Therefore, we find that the complainant is entitled to the amount of Rs.3,487/- being the interest on the said amount till the date of filing the complaint.
The complainant has claimed the future interest @ 15 p.c.p.a.from the date of complaint till realization on the amount of compensation. However, we are not inclined to grant the future interest to the complainant at this stage mainly because in the facts and circumstances of the case, there is no contractual obligation. The claim is not based on the provisions of Interest Act. In the facts and circumstances of the case, the complainant would be entitled to the future interest at the simple rate of 8.5% p.a. at which the nationalized bank charge the interest and no more and therefore, we hold accordingly.
In the result, we proceed to pass the following order.
O R D E R
1) The complaint is partly allowed.
2) The Respondent insurance company do hereby pay an amount of Rs.38,913/- on account of the repair charges to the insured vehicle of the complainant.
3) The Respondent insurance company shall also pay an amount of Rs.3,487/- being the interest on the said amount till filing of the complaint.
4) The Respondent insurance company shall also pay further interest of Rs.10,000/- on account of the mental agony and discomfort and it shall also pay the cost of litigation assessed at Rs.2,000/- to the complainant.
5) The Respondent insurance company shall also pay the interest @ 8.5 p.c.p.a. on the amount of repair charges only from the date of filing of the complaint till realization.
SANGLI
Dated : 19/03/2013
( K.D. Kubal ) ( A.V. Deshpande )
Member President
