Punjab

Ludhiana

CC/13/762

Chander Mohan - Complainant(s)

Versus

Bharti Axa General Ins.Co.Ltd. - Opp.Party(s)

07 Aug 2014

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                 C.C. No: 762 of 07.10.2013

                                                                      Date of Decision:07.08.2014                    

Chander Mohan Goyal Prop. Of M/s Triveni Chemical & Industries, New Grain Market, Kotkapura. 

                                                                                       ……Complainant

                                                    Versus                                     

1.M/s Bharti Axa General Insurance Company Limited, Branch Office at Unit NO.6-7, 3^rd Floor, Kunal Tower, Mall Road, Ludhiana through its Branch Manager.

2.M/s Bharti Axa General Insurance Company Limited, Regd.Office Next to Akme Ballet, Doddanekundi, Off Outer Ring Road, Banglore-560037, through its Director/Managing Director.

…..Opposite parties 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member.

                  Smt. Priti Malhotra, Member.  

 

Present:      Sh.Munish Mittal, Advocate for complainant.

                   Sh.Rajeev Abhi, Adv. for Ops.

                          ORDER

 

(R.L.AHUJA, PRESIDENT)

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986(herein-after in short to be referred as ‘Act’) has been filed by Sh.Chander Mohan Goyal being the proprietor of M/s Triveni Chemical & Industries, New Grain Market, Kotakpura(hereinafter in short to be described as ‘complainant’) against M/s Bharti Axa General Insurance Company Limited, Branch Office at Unit NO.6-7, 3^rd Floor, Kunal Tower, Mall Road, Ludhiana through its Branch Manager and others(herein-after in short to be referred as ‘OPs’)- directing them to reimburse the claim of the complainant under the insurance policy alongwith Rs.75,000/- as compensation besides interest @24% p.a. till realization and other benefits to the complainant.

2.                In brief, the case of the complainant is that the complainant got insured his vehicle i.e. Hyundai i20 having registration No.PB-04-P-1886 from the Ops through insurance policy No.FPV/10426696/P1/11/D1P115 issued on 21.11.2010 valid from 21.11.2010 to 20.11.2011 and the said policy coverage against any accident, damage, loss as assured by the officials of Ops at the time of taking the said policy. In the month of July, 2011, the complainant went to Barindaban and stayed there. During that journey, the complainant parked his vehicle at about 4:00 P.M. Unfortunately, due to heavy rain, the said vehicle was covered with water upto 1.1/2’ to 2’ level. The complainant waited till the water level was down and then the complainant called to the call center of Ops and they toe away the said vehicle to M/s Sheel Hyundai, Mathura but M/s Sheel Hyundai asked the complainant to deposit its repair charges and denied to provide cashless accesses under the Insurance Policy. Finding no other alternative, the complainant hired a truck No.UP-85Q-9957 from M/s Sanik Transport, Mathura and carried away his car in said truck to Ludhiana and paid them Rs.8020/- and thereafter, the complainant approached Ops and delivered his vehicle to M/s M.R.G.Auto Pvt.Ltd.,G.T.Road, Sherpura, Ludhiana but the officials of M/s M.R.G.Pvt. Ltd. flatly refused to provide cashless access to the complainant and asked the complainant to deposit Rs.30,000/- in advance unless they will not go for repair of the aforesaid damaged vehicle. The complainant immediately approached the OPs but they did not do any needful and the complainant deposited Rs.30,000/- with M/s M.R.G.Pvt. Ltd.. After deposit the said amount with M/s M.R.G.Pvt.Ltd, numbers of communications were exchanged between the complainant and Ops. But the Ops flee away from their bounden and legal liability under the aforesaid insurance policy and compelled the complainant to get repaired the aforesaid vehicle from his own pocket which was repaired by the complainant after spending an amount of Rs.98,090/-, paid to M/s M.R.G.Auto Pvt. Ltd. Thereafter, despite repeated requests made to the Ops to reimburse the complainant under the insurance policy but the Ops failed to do the same. Rather, put pressure on the complainant to accept discharge voucher to the tune of Rs.13,950/- despite the fact knowing well the complainant has incurred in all Rs.1,15,000/- to get repaired the damaged vehicle. The complainant requested the Ops repeatedly and also made written requests to the Ops to reimburse him and pay him the compensation but with no result. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Rajeev Abhi, Advocate and filed their written reply, in which, OPs took up certain preliminary objections that the present complaint is barred under Section 26 of the Consumer Protection Act; the present complaint is not maintainable since immediately on receipt of the claim, it was duly registered, entertained and processed. Er.Vijay Negi, surveyor and Loss Assessor, Ludhiana was appointed as surveyor and loss assessor, who had personally inspected the vehicle in question, took the photographs and other documents and thereafter, prepared his report dated 26.9.2011 under his signatures assessing the loss to Rs.13,950/- subject to the terms and conditions of the policy with the observations that “as per the cause of loss mentioned in the claim form only cleaning and few parts which are damaged due to water are payable. It is further observed that the parts which were damaged due to gross negligence are not admissible as per policy terms and conditions and hence not assessed and the insured after various reminders has not completed the required documents including the technical report as demanded from him vide letter dated 10.8.2011, 31.8.2011 etc, which are detailed below:-

1)Driving license of the driver.

2)ID proof of the insured.

3)Third party loss and injuries detail if any.

4)Technical report of the repairer mentioning the exact cause to the damaged engine.

5)As per the claim form submitted by the complainant, it is mentioned that the vehicle was parked and it was heavily raining and water level rise up. After the water level was receded, the vehicle was started once and could not be started than shifted to the nearest workshop. As per survey conducted after dismantling the engine, it is observed that the engine block is broken, crank shaft damaged, connecting rod broken and many other such damages.”

After the receipt of the report of Er.Vijay Negi dated 26.9.2011 and after scrutinizing the documents placed in the claim file and after applying the mind by the officials of the answering Ops, the complainant was called upon vide letter dated 11.11.2011 and 18.11.2011 by the answering Ops to clarify the queries raised in the said letter and to provide the technical report from manufacturer and damageable of parts claimed as per cause of mentioned in the claim form. The complainant has failed to send a satisfactory reply dated 3.1.2012 to the clarification sought by the answering Ops. Even the detailed technical report from the manufacturer for damageability of parts claimed as per cause of loss mentioned in the claim form is also not provided and as such, the claim of the complainant was approved for payment of Rs.13,950/- as per the net liability assessed by the surveyor Er.Vijay Negi in his report dated 26.9.2011 vide letter dated 6.2.2012 and the complainant was called upon to provide discharge voucher duly filled and signed for Rs.13,950/- to enable the answering Ops to process the claim. Copy of the discharge voucher was also sent alongwith the said letter. The complainant was again called upon vide letter dated 19.3.2012 to provide the discharge voucher duly filled and signed for Rs.13,950/- in full and final settlement of the claim as per the net liability assessed by the aforesaid surveyor but till date, the discharge voucher has not been received and as such, on account of non-submission of the discharge voucher by the complainant, the aforesaid amount of RS.13,950/- in full and final settlement of the claim could not be released/paid to the complainant. Further, took the preliminary objection that the present complaint is not maintainable since complicated question of law and facts are involved which requires elaborate evidence both oral and documentary and it is only Civil court of competent jurisdiction who can try and decide the present complaint and the complaint cannot be decided by the Forum in a summary manner. On merits, the facts regarding obtaining of the insurance policy in question, lodging of claim with the answering OPs, appointment of surveyor and loss assessor, exchange of communication between the parties, settlement of claim for Rs.13,950/- and submission of the discharge voucher as alleged are admitted. It is specifically submitted that the insurance policy is a contract in itself and the parties are bound by the terms and conditions of the policy. Further, it is submitted that the complainant has not obtained the cashless policy. It is denied that the complainant had paid Rs.98,090/- to M/s M.R.G.Auto Pvt. Ltd. as alleged. Further, it is submitted that the answering Ops had settled the claim under the abovesaid policy as per the terms and conditions of the policy and as per the report of Vijay Negi but the complainant is not accepting the said amount in full and final settlement of the claim. Further, it is submitted that towing charges as permissible under the policy is payable. The vehicle was not damaged to the tune of Rs.1,10,000/- as alleged. Otherwise, similar pleas were taken as taken in the preliminary objections. At the end, denying any deficiency in service on the part of answering OPs and denying all other allegations made in the complaint being wrong and incorrect, answering OPs prayed for dismissal of the complaint with costs.

4.                Learned counsel for the complainant in order to support the case of the complainant, adduced evidence by placing on record affidavit of complainant as Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has proved on record the documents EX.C1 to Ex.C30.

5.                On the contrary, learned counsel for the OPs, in order to rebut the evidence of complainant, adduced evidence by placing on record affidavit Ex.RA of Sh.Akansha Kapoor, its Manager(Legal), in which, he has reiterated all the contents of reply filed by OPs and refuted the case of the complainant. Further, learned counsel for the OPs has placed on record affidavit Ex.RB of Er.Vijay Negi, who was deputed as surveyor and loss assessor by the OPs to assess the loss caused to the vehicle bearing registration No.PB-04-P-1886, who after his thorough inspection of the vehicle in question, submitted his report dated 26.9.2011 Ex.R6 alongwith documents Ex.R7 to Ex.R16 with OPs. Further, learned counsel for the OPs has proved on record the documents Ex.R1 to Ex.R18 and Ex.R18-A.

6.                We have heard the learned counsel for both the parties.

7.                Learned counsel for the complainant has filed the written arguments, in which, he has reiterated all the averments made in the complaint and further, it is submitted that first of all the Ops fled away from their legal liability as they failed to provide the cashless access to the complainant and lateron refused to reimburse the complainant under valid insurance policy. The Ops flee from their bounden legal liability against the complainant and firstly put one by one false quarries from him and thereafter, offered him an amount of Rs.13,950/- in the shape of discharge voucher Ex.C28 despite the knowledge that the complainant had incurred in all Rs.1,10,000/-. The complainant took all the safeguards and took all reasonable steps qua the proper care of his vehicle. Moreover, the Ops have offered to the complainant an amount of Rs.13,950/- in the shape of discharge voucher vide letter dated 6.2.2012 which is on file as Ex.C27 without awaiting the technical report which is much lateron dated 24.8.2013. Even as per technical report they stated that “they diagnose and found that water was come inside air filter assembly and engine assembly. Due to this reason starting problem occurs in this vehicle. The water also damage electrical parts and many engine parts of vehicle.” Now after read the said technical report, it comes to appear that the starting problem was occurred due to water inside air filter assembly and engine assembly. The complainant was waited till the water level was down. It means the water was already come inside in the air filter assembly and engine assembly and not come by the fault of the complainant. As per report dated 24.8.2013, it is clearly stated in it that the car was not started due to water come inside in air filter assembly and engine assembly. As such, Ops had wrongly repudiated and settle the claim of the complainant to the tune of Rs.13,950/- instead of actual expenses which comes to Rs.1,10,000/-.

8.                On the other hand, learned counsel for the OPs has filed written arguments, in which, he has reiterated all the contents of written reply filed by the Ops and it has been specifically submitted under the head of “Points of Arguments” that the survey report is an important document and cannot be ignored even by the Hon’ble Forum as per the law of the land without giving any reasonable and cogent reasons. The claim has been settled as per the assessment made by the surveyor for RS.13,950/- in full and final settlement of the claim. The complainant was called upon to submit the discharge voucher in full and final settlement of the claim but the complainant failed to submit the same and as such, the said amount could not be released. Complainant is not a consumer as defined under the Consumer Protection Act as the complainant had offered the amount in full and final settlement of the claim which is not accepted by the complainant. The consequential losses are not payable as per the terms and conditions of the policy since it is clearly stated in the survey report that as per the cause of loss mentioned in the claim form only cleaning and few parts which are damaged due to water are payable and the parts which are damaged due to gross negligence of the complainant are not admissible as per policy terms and conditions obtained by the complainant and hence not assessed. The complainant has failed to submit the documents which are required for processing of the claim i.e. technical report of the repairer mentioning the exact cause to the damaged engine alongwith other documents as mentioned in the letter dated 10.8.2011 and 31.8.2011 written by the surveyor and the documents demanded by the Ops vide their letter dated 11.11.2011 and 18.11.2011, driving license of the driver, ID proof of the insured, third party loss and injuries detail of any etc. The complainant has failed to give any satisfactory reply to the letters seeking the information and documents and as per the condition No.4 of the policy, the complainant was bound to take all reasonable steps to safeguard the vehicle from loss or damage but  the complainant has violated the terms and conditions of the insurance policy obtained by them. Further, it has been submitted that the damage claimed does not correlate or coincide with the cause of the loss mentioned in the claim form and survey report has not been challenged in the complaint. No report of the automobile engineer or technical report of the service engineer or any affidavit of the abovesaid persons have been produced on the record to prove the cause of the loss having been covered under the policy. Learned counsel for the OPs has further made reference of all the relevant documents produced by the OPs in their evidence and he has also relied upon judgments titled as Devinder Kumar vs. National Insurance Co.Ltd.-Revision Petition No.3840 of 2011 decided on 2.4.2012(N.C.); Keshav Natu Mhatre vs. New India Assurance Co.Ltd. and another-IV(2011)CPJ-135(N.C.); Delhi Dhulia Road Carrier vs. United India Ins. Company Ltd. and another-III(2012)CPJ-324(N.C.); United India Insurance Co.Ltd. vs. Sangita Singh-II(2010)CPJ-237(N.C.); New India Assurance Co.Ltd. vs. Rajendra pal Singh-I(2009)CPJ-492(Uttarakhand State Commission); H.C.Sexana vs. New India Assurance Co.Ltd.-I(2012)CPJ-420(N.C.);  Ankur Surana vs. United India Insurance Co.Ltd.-I(2013)CPJ-440(N.C.); Khimjibhai and sons vs. New India Assurance Co.Ltd.-IV(2011)CPJ-458(N.C.) and Vipin Ladha vs. Reliance General Insurance Co.Ltd.-II(2009)CPJ-405(Rajasthan State Commission).

9.                We have gone the written arguments filed by learned counsel for both the parties alongwith judgments placed on record by the learned counsel for the OPs during the course of arguments and have also perused the record on the file very carefully.

10.              Perusal of the record further reveals that it is an admitted fact between the parties that the complainant is the owner of the vehicle in question bearing registration No.PB-04-P-1886 Ex.C2, which was got insured by the complainant from the OPs vide insurance policy No.FPV/10426696/P1/11/D1P115 dated 21.11.2010 Ex.C1 which was valid from 21.11.2010 to 20.11.2011 on payment of premium. As per the contention of the complainant that in the month of July, 2011, he had gone to Barindaban and had stayed there and he had parked his vehicle at about 4:00 P.M. Unfortunately, due to heavy rain, the said vehicle was covered with water upto 1.1/2’ to 2’ level. The complainant had waited till the water level was down and then the complainant called to the call center of Ops and they tore away the said vehicle to M/s Sheel Hyundai, Mathura but M/s Sheel Hyundai asked the complainant to deposit its repair charges and denied to provide cashless accesses under the Insurance Policy and thereafter, the complainant approached to the Ops and delivered his vehicle to M/s M.R.G.Auto Pvt. Ltd, where the vehicle in question got repaired. It is further an undisputed fact that due intimation was given by the complainant to the Ops and the claim was lodged, which was registered and processed by the Ops and thereafter, OPs had appointed Er.Vijay Negi as surveyor and loss assessor to assess the loss caused to the vehicle of the complainant, who after his thorough inspection, assessed the loss of the vehicle by submitting his report dated 26.9.2011 Ex.R6 and recommended the loss to the tune of Rs.13,950/-. However, perusal of the letter dated 10.8.2011 Ex.R13 and 31.8.2011 Ex.R14 reveals that the said surveyor had called upon the complainant to submit the technical report from the repairer mentioning the exact cause to the damaged engine in order to complete the requirement at the earliest. But as per the report of the surveyor Ex.R6, the technical report of the repairer was not submitted, as a result of which, the loss was only recommended to the tune of Rs.13,950/- and the claim was partly settled by the Ops on the basis of the surveyor report. Since, the complainant has lodged the claim with the Ops for an amount of Rs.1,10,000/- on the basis of the bills submitted by the complainant.

11.              Perusal of the evidence of the complainant reveals that the complainant has placed on record technical report dated 24.8.2013 of the vehicle in question which was duly issued by Pioneer Hyundai of Ops which is Ex.C30 on the file and it clearly find mentioned that they had intimated the Ops that they received a vehicle bearing registration No.PB04P1886 in breakdown condition in July, 2012. Customer registered complaint of starting trouble in same vehicle. They diagnosed and found that water was come inside air filter assembly and engine assembly. Due to this reason starting problem occurs in this vehicle. The water also damage electrical parts and many engine parts of vehicle. They have also submitted the grand total of the expenses qua the repair of the vehicle in question as Rs.98090/- with their report.

12.              Perusal of the written reply as well as evidence of Ops reveals that they after settling the claim to the tune of Rs.13,950/- on the basis of the survey report dated 26.9.2011 Ex.R6 of Er.Vijay Negi, Surveyor and Loss Assessor. There are specific assertion in the written statement that the parts which were damaged due to gross negligence are not admissible as per policy terms and conditions and hence not assessed and the insured after various reminders has not completed the required documents including the technical report as demanded from the complainant vide letters dated 10.8.2011, 31.8.2011 etc. Further asserted that as per survey conducted after dismantling the engine, it was observed that the engine block was broken, crank shaft damaged, connecting rod broken and many other such damages. But evidence of the Ops reveals that the Ops have not adduced any such cogent and convincing evidence, from which, it could be presumed that the loss occurred due to any alleged negligence of the complainant nor there is any opinion of the automobile expert that loss was caused due to any negligent act of the driving person. So, it is apparently clear from the evidence of the Ops that Ops had settled the claim partly due to non-submission of the Technical Report of the repairer. But since the complainant has already placed on record the technical report as Ex.C30, from which, it is apparently clear that cause of loss was due to entering the water inside the air filter assembly and engine assembly, as a result of which, starting problem occurs in the vehicle and the water also damaged electrical parts and many engine parts of vehicle.

13.              So, it is proved that the complainant appears to be entitled for the claim lodged by him with the Ops and Ops are liable to reimburse the loss suffered by the complainant to the extent of the amount spent by the complainant, for which, he had submitted the bills with the Ops as per the terms and conditions of the insurance policy. The complainant also appears to be entitled for the towing charges.

14.              Hence, in view of the above discussion, by allowing this complaint, we hereby direct the complainant to submit the bills qua the repair charges spent by him qua his vehicle in question with the Ops within 15 days from the date of receipt of copy of this order and thereafter, Ops are directed to settle and pay the claim of the complainant on the basis of the bills submitted by the complainant within 30 days from the date of receipt of bills from the complainant as per the terms and conditions of the policy, failing which, Ops shall be liable to pay interest @9% p.a. from the date of lodging of claim till its realization. Further, Ops are directed to pay Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Keeping in view the facts and circumstances of the present case, no order as to compensation is passed. Compliance of order qua litigation expenses be made within 30 days from the date of receipt of copy of this order which be made available to the parties free of costs. File be completed and consigned to record room.

 

    (Priti Malhotra)                   (Sat Paul Garg)              (R.L.Ahuja)

               (Member)                  Member                         President.   

Announced in Open Forum

Dated:07.08.2014

Gurpreet Sharma.

 

 

 

Chander Mohan Goyal vs. M/s Bharti Axa General Ins.

 

07.08.2014

 

Present:      Sh.Munish Mittal, Advocate for complainant.

                   Sh.Rajeev Abhi, Adv. for Ops.

 

                    Oral arguments have been heard. Vide our separate detailed order of even date, complaint is allowed. File be consigned to record room after due completion.

 

 (Priti Malhotra)       (Sat Paul Garg)          (R.L. Ahuja)

                      Member                    Member                            President

Announced in Open Forum

on 07.08.2014