Complaint filed on: 26.12.2013

                                                      Disposed on: 26.07.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.2875/2013

DATED THIS THE 26^th JULY OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

Sreeja Pillai

WE1303, Purva Skywood, Haralur Main Road,

Bengaluru 68

And also at:

No.257, Suprabhatha,

St Bed Layout, 4^th Main,

4^th block, Koramangala,

Near Mantri Classic Apartments, Bengaluru-34

By Inperson

V/s

Opposite party/s:-    

1. Managing Director

Bajaj Allianz General

Insurance Co. Ltd.,

Ground Floor, No.31,

TBR Tower, 1^st cross,

New Mission road, Near Bengaluru Stock Exchange, Bengaluru-27

By.Adv.Sri.Manojkumar.M.R

2. Managing Director

Volkswagan Coimbatore, Ramani Cars Pvt. Ltd.

No.54/1, Mettupalyam

Road, Kavundampalyam, Combatore-30

By Adv.Sri.E.K.Kumaresan

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service against the Opposite party no.1 in repudiating the insurance claim of her car for the repairing amount quoted by the Opposite party no.2 and thereby has claimed the sum of Rs.1,57,457/- with compensation of Rs.1,50,000/- along with the apology letter in her favour.

          2. The case of the Complainant in brief is that she being the owner of KA-01-MH-5660 Volkswagen polo car of Opposite party no.2 company having insured it with Opposite party no.1 was constrained to towing the said car to the Opposite party no.2 service station on 30.11.13 after it was parked at the distance of 50 meters from the hitting place on hump at 4.45am while traveling on national highway no.47 at Thekkaluru of Coimbatore. The hump to which her car hit and the place where she stopped at safety place are within 50 meters of distance and she noticed at the parked place that engine oil was leaking. The Opposite party no.2 estimated the damaged parts stating that one piston out of 3 was damaged and if it would be driven further all 3 pistons would be damaged and estimated the repair charges of Rs.1,15,600/-. She submitted the claim form seeking coverage of the repair charges as the accident occurred by accidental external means. The Opposite party no.1 did not respond. Hence this complaint.

          3. Both the Opposite parties no.1 & 2 filed their objection statements separately but denied the allegations against each of them and their liability to pay any amount to the Complainant. Both of them questioned the maintainability of this complaint for want of expert report and strict proof from the Complainant.

          3a. The Opposite party no.1 further contended that its surveyor after inspecting the damaged car on 02.12.13, the independent surveyor/loss assessor agency licenced by IRDA reported that engine oil sump was found broken. As a result of which the lubricant has drained out and the Complainant without taking precaution to safeguard the vehicle drove it further causing damages to the car and hence u/s 2(a), the insurance company shall not be liable to make any payment in respect of the consequential loss and thereby it was conveyed through letter dtd.11.12.13. As per the cause of the loss, nature of damages and policy terms and conditions, they assessed to their liability to the extent of Rs.11,779/- and they require further documents for processing her claim. The Complainant was found driven the car without oil for 25 to 30 meter distance with 3000 rpm approximately resulting the ceasure of the engine due to oil starvation and hence her claim becomes not payable as per clause 4 of the policy. The claim of the Complainant was calculated and informed on 11.02.13 and it was not responded by the Complainant. No documents were forwarded so far by the Complainant to settle the calculated compensation amount.

          3b. The Opposite party no.2 further contended that the said car was repaired to a good condition and later delivered on 25.01.14 after receiving the balance towards the repairing cost from the Complainant. The car was found damaged after it was driven by the Complainant after the oil was leaked completely from the engine. The Opposite party no.2 is not proper and necessary party and the complaint is misjoinder of parties.

          4. The Complainant, the officials of Opposite parties no.1 & 2 and DW-3 filed their affidavit evidences. The Complainant has relied on Ex-A1 to A7 and the Opposite parties have relied Ex-B1 to B12 documents. Written arguments were filed by both side.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the alleged deficiency in service against the Opposite parties no.1  in repudiating her insurance claim relating to her KA-01-MH-5660 Volkswagen polo car ?
2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following      

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that the Complainant is the driving licence holder as per Ex-B3 & she being the owner of “KA-01-MH-5660 Volkswagen Polo Car” insured it with Opposite party no.1/Bajaj Allianz General Insurance Co., for the year ending on 18.01.14 as per Ex-A2/B11/policy and schedule/Ex-B12. When she was driving the cat at national highway-47 from Bengaluru via Thekkaluru of Coimbatore (Tamilnadu), hit against un-marked hump at 4.45am on 30.11.13 accidentally.

          8. The Complainant has stated that she immediately parked the said car within 50 meters after the said hump space in order to check if the car has suffered any damage and then noticed the leakage of oil from the engine and hence she did not try to start the engine and thereafter got it towed to nearby service station of Opposite party no.2 and got it repaired at the cost of Rs.1,57,467/- as per Ex-A7/tax invoice supported by estimate Ex-B4.

9. The said vehicle was inspected at the instance of Opposite party no.1 as per Ex-B5 and the said surveyor gave the opinion that there was a crack in the oil sump through which the engine oil has leaked and if the driver had stopped the said car immediately there was no chance of damage to the engine parts and as the driver drove it to some distance, for want of the engine oil, the engine parts got damaged and thereby the caused damage was consequential one, which does not come under the purview of policy.

          10. The Complainant submitted the claim form/Ex-B2 with all particulars. The Opposite party no.1 in its letter/Ex-B6 dtd.11.12.13 in response to her claim form intimated that as per clause 2a of the policy it is not liable to make any payment in respect of the consequential loss and there is violation of condition no.4 of the policy which says that the insured shall take all steps to safeguard from damage and to maintain it in efficient condition and in the event of any accident it shall not left un-attended without proper precautions being taken to prevent further damage or loss and if the vehicle is driven before necessary repairs which effect any extension of damage, further damage shall be entirely at the insurer’s own risk.

11. The Opposite party no.1 assessed the loss and nature of damages to the extent of Rs.11,779/- only. The Complainant then wrote the letter to IRDA and the Opposite party no.1 denied all the allegations made in her notice dtd.28.12.13 reiterating its stand based on the report of surveyors accepting its liability only to the extent of Rs.11,779/- subject to the production of documents by the Complainant namely repair invoice, payment receipts, duly stamped and signed claim discharge voucher and it was served on the Complainant on 13.01.14 as per Ex-B10.

12. The Complainant relying on 2006 (7) Supreme Court cases page 655 argued that the opinion of the service engineer of the Volkswagen co., cannot be accepted in the absence of opinion of competent engineer to establish that car was driven without oil in high temperature and then only the damage was occurred. Relying on 2004 (13) SCC 656, the Complainant argued that the Opposite party no.1 has to indemnify the loss of damages caused to her car immediately after the accidental hit against the hump and further argued relying on 2002 II SCC page 1 that her complaint becomes maintainable as the policy holder of Opposite party no.1.

13. The Complainant in her written arguments argued that when her car was struck because of un-marked hump in an accident prone area, non-receipt of the response to her call by Opposite parties made her to suffer from inconvenience and when the engine part was dismantled during initial examination they found further damages to the engine and cost went up and thereby the surveyor of Opposite party no.1 instantly approved to pay only Rs.11,779/- and later denied without saying anything and all these acts are arbitrary against her.

14. The surveyors of Opposite party no.1 and the service engineer of Opposite party no.2 clearly mentioned the reason of the heavy damages of the car engine as “due to oil starvation of engine” when it was tried to be driven from the accident spot. The attempt made by the Complainant to shift the accident met car to the nearest safest place is not as a prudent person. If she had the curiosity to know the damages soon after the accident she could have pushed the car to see the damages. She could have noticed the damages at the spot itself also without moving the car. On the other hand the said stopped car after the accident was handled wrongfully by way of driving the same as if it is fit to drive. Such an attempt of driving the car after it was badly damaged disqualify her from seeking indemnification from the Opposite party no.1.

15. The Opposite party no.1 has to indemnify the loss of damages caused by the accidents. But the damages caused to the car when it hit against the un-marked hump is different from that of the car after it was driven thereafter also. The damages caused by hitting appears to be external to the engine. The damages caused by subsequent driving appears to be the internal effecting its operating system itself. The said operating system requires to be repaired at huge cost and it was occurred because of the consequential act of the Complainant resulting in damages to the parts as shown in Ex-A4 and thereby the Opposite party no.1 has rightly denied its liability.

16. The Complainant who approached this forum had to submit the expert report against the reports of the surveyors and the service engineer of the Opposite parties to establish that the alleged scarring mark on the journals and connecting big rod can be caused for other reasons also and cannot be connected to the alleged driving after the accident spot. She has also not explained the reason for such markings in the said parts before or after the accident. Thereby there is no reason to disbelieve the reports of the Opposite parties, in the absence of cogent evidence by the Complainant as observed in part I (2003) CPJ 138 NC, III (2002) CPJ 68 NC.

17. In the result the Complainant has failed to establish the Consumer Dispute No.1 and accordingly it is answered in the negative.

          18. Consumer Dispute No.2: In view of findings of the Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The CC.No.2875/2013 filed by Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 26^th day of July 2017).

Copies of Documents marked on behalf of Complainant:

Copy of Document marked on behalf of Opposite party no.1