Order dictated by:
Sh.S.S.Panesar,President.
- Sh. Manav Kumar complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that brother of the complainant Kanav Kashyap S/o Yashpal R/o H.No. 47, Gali No.1, Hussainpura,Amritsar has insured his Hyundai car I-10 Magna bearing registration No. PB-02-BP-0963 from opposite party No.2, who is a branch office of opposite party No.1 vide policy No. HAX/S8129613 for the period from 25.4.2015 till midnight of 25.4.2016 by paying a premium of Rs. 5945/-. Brother of the complainant Kanav Kashyap authorized the complainant to look after and take care of abovesaid car vide authorization letter dated 25.3.2016. From the said date complainant is having ownership rights over the said vehicle. Unfortunately the said vehicle started making trouble in its gear box due to which approximately Rs. 36000/- was spent by the complainant on its repair. Thereafter complainant approached opposite party No.2 for getting Insurance benefits, but opposite party No.2 refused to release the benefit of insurance policy on flimsy grounds. Due to the said act on the part of opposite party No.2, complainant suffered mental pain and agony . The complainant has sought for the following reliefs vide instant complaint:-
- Opposite parties be directed to make the payment of Rs. 36000/- as benefit of the Insurance policy.
- Compensation to the tune of Rs. 50000/- alongwith adequate litigation expenses may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 appeared and contested the complaint by filing joint written statement taking certain preliminary objections therein inter alia that complainant has not come to the court with clean hands and has concealed the material facts from this Forum, therefore, the complainant is not entitled for any relief as claimed. It was submitted that after receiving the intimation on 17.3.2016, the vehicle was duly inspected on the same day at Novelty Hyundai, Amritsar. The complainant informed regarding cause of loss in claim form as the vehicle hit with a big stone from bottom and it got damaged. The vehicle was duly inspected and it was found that only gear housing found leaked and no external impact could be observed on the vehicle and on related parts and leakage to gear housing is attributed to mechanical failure which is exclusive as per policy terms and conditions under section 1 of the policy . Due intimation regarding the same was given to the complainant vide letters dated 23.3.2016 and 28.3.2016, but this fact has been intentionally concealed by the complainant, hence, the present complaint is liable to be dismissed ; that complainant has claimed that he is having ownership rights over the vehicle, whereas the insurance is in the name of Kanav Kashyap. As stated in the complaint Kanav Kashyap is not the owner of the vehicle at present and complainant has become the owner, therefore, there is no insurable interest remains between the parties and the present complaint is liable to the dismissed on this short ground ; that complainant is stopped by his own act and conduct from filing the present complaint ; that present complaint has not be filed by a competent person, therefore, the same is liable to be dismissed on this short ground. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
3. In his bid to prove the case Sh.Parminder Singh Kamboj,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-13 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for opposite parties No.1 & 2 tendered into evidence affidavit of Sh.Shivali Sharma Ex.OP1,2/1 alongwith documents Ex.OP1,2/2 to Ex.OP1,2/10 and closed the evidence on behalf of opposite parties No.1 & 2.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
6. From the appreciation of the facts and circumstances of the case, it becomes evident that complainant has sought for release of the payment of Rs. 36000/- for the claim of the vehicle. As per version of the complainant in para 2 of the complaint, the car started making trouble in its gear box due to which approximately Rs. 36000/- was spent by the complainant on its repair. From this fact , it becomes quite evident that the expenditure incurred by the complainant was on mechanical repair which does not fall under the terms and conditions of the policy. Moreover in this case after receiving the claim, an independent surveyor was appointed, who conducted survey and took photographs of the vehicle and found that “during inspection only gear oil found leaking from the ceiling area and no accidental external impact could be observed on the vehicle and on surrounded/related parts, hence, the leakage of gear oil is attributed to mechanical failure, which is excluded as per policy terms and conditions under section 1 of the policy”. Section 1 of the policy is reproduced hereinbelow for ready reference:-
“The company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear , mechanical or electrical/breakdown, failures or breakages.”
7. On the basis of the survey report and factual position of the vehicle, claim was repudiated vide letter dated 23.3.2016 and due intimation of the same was given to the complainant. Repudiation letter accounts for Ex.OP1,2/2. The independent surveyor after receiving the intimation of the loss , inspected the vehicle and submitted his report in which loss was assessed by the surveyor. Loss assessment sheet is Ex.OP1,2/6 in which loss of Rs. 6100/- has been assessed. But since the same did not relate to any accidental damage to the vehicle, rather it was on account of mechanical repair of the vehicle in ordinary wear and tear of the same, therefore, the said amount also not payable. Instant complaint filed by the complainant is nothing but an abuse of the process of law. There is absolutely no deficiency in service on the part of the opposite party. Claim of the complainant has rightly been repudiated. As such instant complaint fails and the same is ordered to be dismissed accordingly. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated :4.10.2016
/R/
