DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 1620/2015
D.No.________________ Dated: ___________________
IN THE MATTER OF:
ASHOK KUMAR S/o SH. RAMJI DASS,
R/o B-112, VIVEK VIHAR, DELHI-110092.… COMPLAINANT
Versus
1. BHARTI AXA GENERAL INS. CO. LTD.,
(THROUGH ITS MANAGER),
BIG JO’S TOWER, 2nd FLOOR, A-8,
NETAJI SUBHASH PLACE, PITAM PURA,
NEW DELHI-110034.
2. MUKESH SETIA & Co. (SURVEYORS),
(THROUGH ITS PROP.)
322, 2nd FLOOR, DR. MUKHERJEE NAGAR,
NEW DELHI-110009.
3. HIMGIRI CARS PVT. LTD.,
(THROUGH ITS DIRECTORS),
A-91, JHILMIL INDL. AREA, NEW DELHI-110092.
4. SH. AKASH GIRI (AGENT ON BEAHLF OF OP-1),
AKASH CINEMA, 401, USHA KIRAN BUILDING,
4th FLOOR, AZAD PUR, DELHI-110033. … OPPOSITE PARTY (IES)
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 11.12.2015 Date of decision:05.04.2019
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against the OPs under section 12 of the Consumer Protection Act, 1986 thereby alleging that the complainant purchased Hyundai New Elantra
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VTVTS 1.8 BSIV Sleek car on 17.02.2013 vide invoice no. H201201032 for Rs.12,39,326/- alongwith debit note no. DNH201201032 for Rs.1,79,079/- issued by OP-3. The complainant further alleged that OP-4 being an agent on behalf of OP-1 approached the complainant for the insurance of the said vehicle bearing no.DL-8C-AA-8426 and OP-4 persuaded the complainant that OP-1 is the best general insurance company to provide instant services on zero depth basis and the insurance claims are settled on the spot and on persuasion by OP-4, the complainant agreed to change his insured from TATA AIG General Ins. Co. Ltd. to OP-1 and the complainant issued cheque no.000041 dated 14.02.2015 for Rs.28,000/- in favour of OP-1 drawn on Kotak Mahindra Bank Ltd. towards insurance cover of his car for the period from 17.02.2015 to 16.02.2016. Thereafter, OP-1 issued insurance documents for policy information stating policy no. FPV/ 11845473/12/02/D11249 on 16.02.2015 to the complainant. On 09.08.2015, the subject car got damaged/breakdown all of a sudden with some heavy substance while driving near Pragati Maidan, Delhi during rain and the reason probably was that due to hit the engine got affected and leakage of engine oil started and the complainant called upon helpline and the vehicle was towed away to workshop of OP-3 and the complainant informed OP-3 that the complainant purchased vehicle from OP-3 and vehicle is under four
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years warrantee of the company and further covered by valid Zero Depth/Cashless insurance policy through insurance company OP-1 and OP-3 called upon and informed the insurance company OP-1 for survey/inspection of loss/damage of the vehicle for indemnity. Thereafter, OP-3 got surveyed the vehicle by OP-2 on 12.08.2015 in the absence of the complainant and the complainant was shocked to perceive from the letter Ref. No. 8426 dated 12.08.2015 sent by OP-2, expressly denying to recommend the insurer to indemnify the subject loss and OP-2 made his observations in the letter that “during inspection we noticed that water traces inside the engine assy as well as in the air filter assy” and it was further observed by OP-2 “there is no external impact either to the vehicle or to the engine from outside, engine of car was found jammed and most likely its internal parts are damaged and the obvious course is known to be not tried to start the engine, without total cleaning the water from inside engine and inspection by an expert technician thus your extension of damages to the engine if any cannot be considered as per condition no.4 of the policy contract, we refer you to condition-4 of Motor Policy which clearly sets out the duties of the insured as under: “The insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain in efficient condition and the company shall have at all times free and excess to examine the vehicle or any part thereof or any driver or
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employee or the insured and in the event of any accident or breakdown, the vehicle shall not be left unattended without proper precaution being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.” The complainant filed an online complaint with Insurance Regulatory and Development Authority (IRDA) to the effect to take action against OP-1 and the IRDA lodged the complaint vide IRDA token no.08-15-021644 but no response has received till this date and OP-3 informed the complainant that the estimated cost of repair would be Rs.2,50,000/- approx. and it will not cover under four year warrantee of the Hyundai Company although the warrantee period has not expired for which no reason has been stated by OP-3 and OP-3 repaired the vehicle and issued invoice no.B201512310 dated 30.09.2015 for Rs.1,89,249/- which was charged from the complainant and the complainant has suffered personal loss of Rs.10,000/- per day w.e.f. 12.08.2015 due to deprivation of car on account of gross deficiency in service on the part of OP-1 & OP-3.
2. On these allegations the complainant has filed the complaint praying fordirection to OP-1 & OP-3 to return Rs.1,89,249/- to the complainant towards amount charged by OP-3 vide invoice no.B201510310 dated 30.09.2015 for Rs.1,89,249/- under warrantee
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period or to make directions to OP-1 to indemnify amount so paid by the complainant to OP-3 towards repair of car due to damage as well as compensation of Rs.5,00,000/- for causing damages for denying warrantee/and insurance and depriving the complainant of his costlier car causing and inflicting the complainant with mental agony, physical harassment and financial loss. The complainant also sought Rs.31,000/- as cost of litigation.
3. OP-1 & OP-3 have been contesting the case and filed their separate written statement. OP-1 in its written statement submitted that the complainant obtained insurance policy no. FPV/11845473/12/02/D1149 for the period of 17.02.2015 to 16.02.2016 in respect of private car bearing no. DL-08-CAA-8426 which carries a compulsory deductible clause of Rs.2,000/- and the complainant has not filed the complete policy as issued to him. OP-1 further submitted that OP-1 on receiving the intimation deputed the surveyor on 12.08.2015 and the vehicle was inspected by the surveyor on the same day and further submitted that the surveyor, immediately upon inspection, reported that there was no external impact either to the vehicle or to the engine from outside and he found that the engine of the car was jammed and most likely its internal parts were damaged and the surveyor was of the view that the complainant ought not to have tried to start the engine, without total cleaning the water from inside the engine and inspection by an
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expert technician. OP-1 further submitted that the surveyor advised the complainant by a letter that the damage is not covered by the policy and the surveyor quoted the provisions contained in condition no.4 of the insurance policy as under: “the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and to maintain it in efficient condition and the company shall have at all times free and full access to examine the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.” OP-1 further submitted that on physical inspection of the vehicle the surveyor observed that Air Filter was wet and water was mixed with engine oil which indicates that water was sucked in by engine due to cranking/forcible cranking and no external impact was found on the said vehicle or engine assembly.
4. OP-3 submitted in its written statement, the case of the complainant is not maintainable and is liable to be dismissed.
5. The complainant filed separate rejoinder and denied the contentions of OP-1 & OP-3.
6. In order to prove his case the complainant filed his affidavit in
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evidence and also filed written arguments. The complainant also placed on record copy of retail invoice no. H201201032 dated 17.02.2013 issued by OP-3, copy of Debit Note no.DNH201201032 dated 17.02.2013 issued by OP-3, copy of registration certificate, copy of letter dated 17.02.2015 sent by OP-1 to the complainant, copy of policy vide policy no. FPV/I1845473/12/02/D11249, copy of survey report dated 12.08.2015 issued by Mukesh Setia & Co., copy of e-mail, copy of receipt/IRDA token no.08-15-021644 dated 12.09.2015, copy of letter dated 01.09.2015 sent by OP-1 to the complainant and copies of retail invoice/cash memo nos. 099146 & 099147 issued by OP-3.
7. On the other hand, on behalf of OP-1 & OP-3, Ms. Shivali Sharma, Sr. Executive-Legal Claimsof OP-1 and Sh. B.K. Sharma, DGM (Legal & I.R.) of OP-3 filed their separate affidavitsin evidence which are on the basis of their written statement. OP-1 & OP-3 also filed written arguments.
8. In support of his submissions Counsel for the complainant relied on following case laws:
i) Revision Petition No.4504 of 2014 in case entitled Bharti AXA Gene. Ins. Co. Ltd. Vs. Chandra Mohan Goyal decided by Hon’ble National Commission on 05.01.2015.
ii) Bharti AXA Gene. Ins. Co. Ltd. Vs. Haryana Tourism Corporation Ltd. & ORS. decided by Hon’ble State Consumer Disputes Redressal Commission, (U.T., Chandigarh) on 08.05.2015.
iii) First Appeal No.114 of 2013 in case entitled TATA AIG Gene. Ins. Co. Ltd. Vs. Dr. Navneet Agnihotri & ORS.decided by Hon’ble State Consumer Disputes Redressal Commission, (U.T., Chandigarh) decided on 09.07.2013.
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iv) CC No. 70 of 2012 in case entitled G. Sridhar Goud Vs. Future Gene. India Ins. Co. Ltd. &Ors. decided by Hon’ble State Commission Disputes Redressal Commission on 20.01.2014.
9. This forum has considered the case of the complainant in the lightof evidence of both the parties and documents placed on record bythe complainant and OP. The case of the complainant has remained consistent and undoubted. There is nothing on record to disbelieve the case of the complainant and there is no genuineness and merits in the defence of the OPs. Admittedly, the insurance policy in respect of the car of the complainant was Comprehensive Insurance Policy. OPs have not disputed that it was a rainy day on 09.08.2015. Accordingly, OP-1 is not justified in taking the defence that the complainant before trying to start the engine of the carwithout total cleaning the water from inside the engine and inspection by an expert technician. It is not disputed by OP that due to rain the road on that day was water logged. It is highly unbelievable that the person/driver would call that technician to wipe out the water from inside the engine. In such a situation normally the person driving the vehicle always attempts to start the vehicle and we are of opinion that there is no merits in the defence of OP-1 and OP-1 ought not to have repudiated the claim on this ground and it cannot be said that the complainant has violated the terms & conditions of the policy. Accordingly, we holdOP-1 guilty of deficiency in service.
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10. Accordingly, OP-1 is directed as under:
i) To pay to the complainant an amount of Rs.1,89,249/- being the amount paid by the complainant to OP-3 videinvoice no. B201510310 dated 30.09.2015 for repair of the vehicle.
ii) To pay to the complainant an amount of Rs.50,000/- as compensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- to the complainant as litigation cost.
11. The above amount shall be paid by OP-1 to the complainant within 30 days from the date of receiving copy of this order failing which OP-1 shall be liable to pay interest on the entire awarded amount @10% per annum from the date of receiving copy of this order till the dateof payment. If OP-1 fails to comply with the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 5thday of April, 2019.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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