Complaint filed on: 04-12-2010
Disposed on: 25-04-2011
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2792/2010
DATED THIS THE 25th APRIL 2011
PRESENT
SRI.D.KRISHNAPPA., PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
Maheshwari Electronics and Cable Pvt.Ltd
No.244, 10th cross, NGEF layout,
Nagarbhavi, Bangalore -72,
Represented by its authorized signatory
And power of attorney holder,
Sri.Prasanna Kumar,
S/o. C.Rajashekar, Age: 47 years
V/s
Opposite party: -
Bajaj Allianz General Insurance Co. Ltd
No.31, Ground floor, TBR towers,
New Mission Road,
Next to Bangalore Stock Exchange,
Bangalore -24
Reptd by its Manager
O R D E R
SRI. D.KRISHNAPPA., PRESIDENT.,
Brief facts of the complaint filed by the complainant against the OP are that, it is a private limited company is the owner of a Honda Civic Car, which was insured with the OP, was valid from 25-8-2009 to 24-8-2010. On 21-8-2010 at about 3.30 PM, when its Managing Director and another while coming from Mysore road towards Corporation in the said car on fly over and came to SJ Park road, the car was stuck on the edge of fly over near SJ park Bangalore, due to flood and influx of water. Despite care and precaution taken by the driver, due to sudden flow of water, the vehicle could not be driven it was towed to Whitefield Motors (P) Ltd. A complaint was lodged to SJ park police on 28-8-2010. That he also informed about it to the OP and claim was made to the OP who through his letter dated 9-9-2010 has repudiated the claim for reimbursement of loss caused to the car. The Whitefield Motors (P) Ltd have estimated damage at Rs.1,99,166/- to the vehicle and the same was got repaired by spending Rs.2,20,971/-. When a claim was made to the OP they refused to pay, therefore has prayed for a direction to the OP to pay in all Rs.2,45,970/- which is inclusive of towing charges and other incidental changes with interest at 18% per annum.
2. The OP has appeared through his advocate and filed version, contending that the complaint is not maintainable and the complaint filed by the authorized signatory and power of attorney holder of the complainant is not maintainable, as there existed no privity of contract between them. That the power of attorney holder is not the RC owner of the vehicle. The OP without disputing that the vehicle in question belongs to the complainant company, the policy issued by them and the effective period has further admitted to had received a claim form for reimbursement of repair charge. It is contended that damage to the vehicle was reported to them on 25-8-2010 and the complaint was filed to the police at belated stage. It is further contended that intimation was given to them after four days, after the incident. But the OP has not denied, in the complaint having had taken the car to Whitefield Service center. That a surveyor approved as per the IRDA had inspected the vehicle and thereafter the letter dated 9-9-2010 was sent to the complainant informing that the consequential damages are not covered under the policy and stated that the claim of the complainant was not repudiated. The OP further referring to the report of an approved surveyor have stated that their liability was restricted to Rs.32,316/- towards external damages and damage to the engine was not due to inundation and stated that damage to engine was due to Hydrostatic lock and contending that Hydrostatic lock damage is not covered as per the terms and conditions of the policy, justifying their action in repudiating the claim of the complainant have further alleged that the damages caused to the vehicle did not warrant for leaving the vehicle for two months in the garage. That the complainant has not produced documents in proof of incurring towing and incidental charges, has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and the authorized signatory of the OP have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant alongwith the complaint have produced a copy power of attorney executed in favour of one Prasanna Kumar to file this complaint, they have also produced a copy of the policy, copy of the terms and conditions of the policy, estimate of repairs and copy of invoice for having paid repair charges. The OP has also produced copies of those documents, copy of repudiation letter and report of their surveyor and loss assessor, OP have filed affidavit evidence of surveyor who inspected the vehicle. We have heard the counsel for both the parties and perused the records.
4. On the above contentions following points for determination arise.
1) Whether the complainant proves that the OP has caused deficiency in his service by repudiating his claim for indemnifying the loss caused to the vehicle?
2) To what reliefs, the complainant is entitled to?
5. Our findings are as under:
Point no.1: In the affirmative
Point no.2: See the final Order
REASONS
6. Answer on Point No.1: The OP without disputing that Maheshwari Electronics and Cables Pvt. Ltd, the complainant is the RC owner of the vehicle in question has raised objection in his version by contending that the complaint filed by an authorized signatory and power of attorney holder of the complainant is not maintainable. It is not the objection of the OP that Prasanna Kumar the authorized signatory of the complainant has filed this complaint in that capacity in his name. The complaint is rightly presented by the RC owner which is represented through its authorized signatory and power of attorney holder which is in our view is competent and thus the complaint is maintainable.
7. As evident from the version filed by the OP it is not in dispute that the complainant’s car, because of the flood and influx of water while the Managing Director of the complainant was travelling in that car was stuck on the edge of fly over near SJ park Bangalore on 28-8-2010 and its driver could not drive it and the same was towed to Whitefield Motors Pvt. Ltd for repair. The OP is also not disputing towing of the car to the garage for repair, estimation of repairs that was done by Whitefield Motors Pvt. Ltd and the amount of expenditure incurred by the complainant for repair of the car. The OP has contended as if the complainant did not give complaint to the police soonafter the incident and there was four days delay in informing them about the incident. Information given to the police at belated stage has no nexus to the issue on hand. OP has not contended that because of the delay in informing them about incident their right or option is in anyway is affected and they were denied of any opportunity, which was advantageous to them. It is not the case of the OP that the complainant had got the car repaired prior to their inspection and estimation made by their surveyor by denying any opportunity to them to evaluate the loss. Admittedly the surveyor of the OP inspected the vehicle, assessed damage and even submitted his report to the OP vide his letter dated 27-9-2010. Therefore the complainant can not be blamed for the delay and or that ground the OP cannot avoid his liability. If we refer to the reason on which the OP has repudiated the claim of the complainant that would help us to restrict the OP to that ground and the other contentions they have taken in the version and affidavit evidence will lose their importance. The repudiation letter of the OP dated 9-9-2010 reads as under:
“With reference to the above claim, the IRDA licensed independent surveyor has been appointed and survey of the vehicle was carried out, we would like to bring to your notice that, the consequential damage if any are not covered under the terms and conditions of the policy”.
8. In the course of arguments, when we questioned the counsel representing the OP as to what he mean by consequential damages if any are not covered under the terms and conditions of the policy, the learned counsel invited our attention to clause 2 (a) of the terms and conditions of the policy and submitted that exclusion clause disentitles the complainant for claiming reimbursement of the expenditure. Clause 2 (a) condition of the policy reads as under:
“The Company shall not be liable to make any payment in respect of:
a. Consequential loss depreciation wear and tear mechanical or electrical breaks down failures or breakages”.
9. In the case on hand, the grievance of the complainant is that his car had stuck due to sudden influx of flood water, as the result, the driver could not move it. Section I of the conditions of the policy refers to the loss or damage to the vehicle insured says that the company will indemnify the insured against loss or damage to the car by flood, inundation and due to other causes. Therefore it is clear that any damages to the insured vehicle due to flood and inundation then the insurance company is liable to indemnify the loss. That being so, what the consequential loss which excludes the complainant insured from making a claim to indemnify the loss is not made clear and explained. But it is sufficient for the propose of this case, that the complainant’s car which was inundated due to sudden flood and influx of water suffered damage to the engine and the same was got repaired by getting the damage estimated.
10. The surveyor of the OP, 2 who had inspected the vehicle has not denied lying of the complainant’s car at Whitefield Motors Pvt. Ltd, but stated the damage to the vehicle was due to hydrostatic lock. The surveyor in the affidavit evidence filed before this forum has explained what he mean by Hydrostatic lock, by telling that Hydrostatic lock is that where engine gets seized due to entry of water or liquid mixed with the air into engine cylinder. Hydrostatic lock occurs when a vehicle runs into water logging and that engine gets choked and stops operation when repeated attempts are made to start the engine. With this opinion of the surveyor, the OP attempted to contend as if the driver of the car made repeated attempts to start the engine with unwanted pressure, and that has caused damage to the engine and further resulted in seizer of the engine. Admittedly, this surveyor has not an eye witness to the incident and for the alleged repeated attempts made by the driver of the car to start the engine. Further as admitted by the surveyor, he did not inspect the engine after dismantling it. The surveyor it is noticed by just external check up has given his opinion which cannot be acted upon. Further the same surveyor in his letter dated 27-9-2009 addressed to the OP has stated that Hydrostatic lock damage is not covered as per the terms and conditions of the policy issued. He has further stated however it is left to the discretion of the OP to take a decision as per the terms and conditions of the policy if the claim admissible the insured or repairer may be advised to have the vehicle dismantled. Then estimation can be discussed in details. This clearly gives the picture that the surveyor without dismantling the engine by external look at the engine has given his opinion therefore whether hydrostatic lock damage had happened to engine or not was not scientifically checked and it had happened due to the mistake of the driver is not proved. If the OP had gone with the advice of their surveyor, they could have been present when the engine was dismantled at the time of repair or they could have got the engine dismantled to know the real cause for engine problem. Only after dismantling the car engine the OP could have found out whether hydrostatic lock damage had happened due to the act of the driver or not. The OP it is manifest without resorting to any such method has blindly repudiated the claim. However, have accepted the recommendation of the surveyor who alleged to had recommended for payment of Rs.32,316/- to the complainant towards external damages. With this it is found that the OP by accepting damage caused to the complainant’s vehicle externally agreed to pay that amount towards certain damages but refused to indemnify the other loss. Even here also the OP in his repudiation letter did not offer to pay that amount of Rs.32,316/- to the complainant until he sent reply to the legal notice of the complainant dated 20-1-2010. These material placed before us do prove that the OP has caused deficiency in his service in not indemnifying the loss suffered by the complainant.
11. The complainant has produced invoice for having incurred total expenditure of Rs.2,20,971, but has not produced any documents in proof of actual expenditure incurred towards towing charge and other incidental charge. The OP has not disputed the correctness of invoice produced by the complainant and is also not disputing that vehicle was towed from the spot to the Whitefield Motors Service centre. Therefore, we find that awarding of Rs.5,000/- towards towing and miscellaneous charges would be reasonable. As the result the complainant is entitled for Rs.2,20,971/- and Rs.5,000/- besides the cost of the complaint. Hence, we answer point No.1 in the affirmative and pass the following order:
ORDER
Complaint is allowed. OP is directed to pay in all Rs.2,25,971/- to the complainant within 60 days from the date of this order. Failing which, he shall pay interest at 8% per annum on that amount from the date of this order till the date of payment.
OP shall also pay cost of Rs. 3,000/- to the complainant.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 25th April 2011.
Member Member President
