By Smt. PREETHI SIVARAMAN.C, MEMBER
1. The complaint in short is as follows:-
Complainant is the registered owner of vehicle No. KL-71-B-7500 Car and theSame is covered by policy No. 571300311 76160003250 issued by opposite parties. The complainant took the insurance policy from the portal office of opposite party at their agent’s portal office at Kondotty. In the flash flood occurred on 09/08/2018, the vehicle KL-71B -7500 (Ford Escort) belong to the complainant was happened to be stranded in flood at 10.00 pm on the way from Nilambur to Airport. Complainant was not able to take away the vehicle safely even after taking due care and caution.
2. The vehicle was caught in sudden flash flood and the vehicle was in water for two days and nights. Immediately after the incident the work shop personal and the officials of the opposite parties were informed and the work shop authorities took the vehicle to work shop as directed by the surveyor and found that many parts of the vehicle are damged due to flash flood. Firstly the surveyor stated that he may recommend for total loss but after consultation he recommended for repair and they decided to repair the vehicle. The consent of the complainant was never sought and the surveyor informed that complainant is not having any right to decide the repair. Firstly surveyor directed to replace the engine, but later he changed that decision because there is Rs. 4,00,000/- will be necessary for the above work. Later the surveyor came and inspected the vehicle. Complainant again stated that vehicle is having a life span of minimum 15 years and the replacement of major parts is necessary for the life of the vehicle. The ALY Ford, Panangara given an estimate of Rs. 3,41,192/-. In spite of the objection made by the complainant, the opposite party officials and their surveyor directed the ALY Ford to reschedule the estimate and they rescheduled the cost as Rs. 2,04,252/-. The repair was done as per the direction of opposite party officials and surveyor. Initially opposite party offered to pay the repair cost, later they directed the complainant to pay the same and submit the bills etc. Complainant stated that he took the policy to cover the risk and to have the vehicle in original condition.
3. On 31/10/2018 complainant paid Rs. 1,95,327/- for repairing the vehicle to the continental Cars Private Limited. They repaired the vehicle as directed by opposite party officials and it was monitored and controlled by their paid surveyor. The total bill was Rs. 1,95,237/-. The bill and records were submitted for processing as directed. Opposite party took the bank details of complainant and promised to pay the amount in time. But only Rs. 83,000/- was seen sent to the bank without the permission of the complainant. No satisfaction records, consent letter were given for the acceptance of claim. Complainant stated that the vehicle is 2015 April Model with Fancy number and costly extra fittings and the same was maintained by the company service personal periodically. The fitness is granted for 15 years and the vehicle was not having any defects. The vehicle was in good condition when it was damaged in flash flood which was beyond the control of complainant. Opposite party told to the complainant that the vehicle is in running condition. But complainant stated that vehicle is not in good condition and the vehicle developed many issues to its motor, air condition mechanism etc. On 15/01/2019, the vehicle had stopped on the road and it was seen that the engine is heating up. The vehicle is not roadworthy and the vehicle is not fit for driving in long distance. Only because of the insurance coverage, complainant was forced to agree for the directions issued by the opposite party officials. The vehicle is insured for Rs. 5,59,000/- and the same ought to have sanctioned by the opposite parties. The opposite parties not acted in time and ought to have settled the claim as total loss. It is a gross deficiency in service. Complainant stated that he is entitled to get Rs. 5,59,000/- from the opposite parties. The policy is issued to cover the risk. The vehicle is not fit for road and the complainant was put to suffer irreparable loss and hardships. Hence this complaint.
4. The prayer of the complainant is that, he is entitled to get Rs.5,59,000/- towards the bill amount, Rs.1,00,000/- as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and cost of the proceedings.
5. On admission of the complaint notice was issued to the opposite parties and
notice served on them and they appeared before the Commission through their counsel and filed version.
6. In their version, they denied all the allegations levelled by complainant against them except those which are admitted there under. They stated that complainant admitted that on 09/08/2018 at 10.00 pm , his car was proceeding from Nilambur to Airport and the car suddenly stopped when the driver driven the car through flood water and water entered in to the engine of the car. They again stated that water will enter into the engine of the car if the car drives negligently through the water of the level above the air sucking port of the engine or if the car cranked to start negligently in the water of the level above the air sucking port of the engine. If the car driven or started in that manner, insurance company will not be liable for the damage of the engine and such related parts of the car to which are damaged due to that reason. For other parts of the car insurance company liable and already paid the bill amount of that parts. The complainant had taken back the car with full satisfaction after repair work from the work shop which was chosen by the complainant itself. There is no total loss sustained to the car. So insurance company is not liable to pay the entire amount for total loss The surveyor already reported that “ on scrutiny of cause of the accident mentioned in the claim form and on my inspection, it is found that the vehicle driven through flooded road and the flood water enter inside the engine through inlet manifold and the engine ceased, subsequent attempt to start the vehicle by cranking leads to collapse the engine block". That means damage caused to the car only due to negligent driving of the car through the flooded road by that flood water entered in to the engine.
7. They again stated that all the averments in Paragraphs 6 of the complaint is false and baseless, but they admitted the averment of the complainant that, he had received Rs. 83,000/- as the bill amount regarding the repair of vehicle by the opposite party to him. They again stated that vehicle got damaged due to the entering of flood water into the engine and complainant again attempt to start the vehicle by cranking leads to collapse the engine block which is not payable as per the terms of policy. This car is not additionally covered with the engine protection insurance coverage. Hence they are not liable for the damage of the engine of the vehicle due to the unauthorised act of the complainant. Hence opposite party is not liable. Opposite parties settled the claim of the complainant as per the survey report of the licensed insurance surveyor. All the claims except the engine damage are settled by the opposite party according to the terms and conditions of the policy.
8. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A5. Ext.A1 is the copy of Registration Certificate. Ext.A2 is the Certificate of Insurance –Cum -Policy Schedule (Original). Ext.A3 is the copy of estimate issued by ALY Ford, the service centre dated 23/08/2018. Ext.A4 is the copy of estimate issued by ALY Ford, the service centre dated 28/08/2018. Ext. A5 is the copy of cash receipt – service voucher given by Continental Cars Private Limited to complainant dated 31/10/2018. Thereafter opposite parties also filed affidavit and documents that is marked as Ext. B1 to B6. Ext. B1 is the true copy of the intimation given by complainant regarding the incident dated 23/08/2018. Ext. B2 is the true copy of Motor Insurance Claim Form. Ext.B3 is the certified copy of policy schedule- Motor-Private Car- Package and tax invoice dated 15/09/2017. Ext. B4 is the certified true copy of the Private Car Insurance B Policy conditions and policy copy. Ext. B5 is the true copy of the Engine Protect (Add on to Private Car package Policy –National Insurance Company Limited). Ext. B6 is the true copy of the Motor Survey Report dated 13/11/2018.
9. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service on the part of opposite parties.
- If so, reliefs and cost.
10. Point No.1 and 2:-
Case of the complainant is that, opposite parties covered a risk of Rs 5,59,000/- for the vehicle of complainant and they only paid Rs.83,000/- for the damage and total loss caused to the vehicle due to the flash flood on 09/08/2018. The period of insurance was from 17/09/2017 to midnight on 16/09/2018. But opposite party contended that the Car of complainant stopped when the driver driven the car through flood water and water entered into the engine of the car. Water will enter into the engine of the car, if the car drives negligently through the water. They again contented that if the car driven or started in that manner, the insurance company will not be liable for the damage of the engine and such related parts of the car, which are damaged due to that reason. For other parts of the car the insurance company is liable and already paid Rs. 83,000/- being the bill amount of that parts.
11. The opposite parties admitted that there was insurance coverage for the vehicle for the relevant period. Period of insurance as per Ext. A2 document is from 17/09/2017 to midnight on 16/09/2018. The incident happened on 09/08/2018. As per Ext. A3 and A4 the estimate given by ALY Ford , the authorised dealer for Ford , it is seen that they had given an estimate of Rs. 2,04,252/- and Rs. 3,41,192/- for repairing the vehicle. As per Ext.A5, the cash receipt –service voucher given by Continental Cars Private Limited to complainant, it is clear that complainant had paid Rs. 1,95,327/- to them for repairing the vehicle.
12. As per Ext. B4, Private Car Insurance B Policy Section 1 : Loss or damage Sub section (e) submitted by opposite parties before the Commission clearly stated that the company will indemnify the insured against loss or damage to the Motor Car and/or its accessories whilst thereon (e) by flood, typhoon, hurricane, storm / tempest/inundation, cyclone hail storm frost. In Ext.B5 document engine protect for Private Car package Policy (1) operative clause stated that subject to terms , definitions, exclusions and conditions contained herein, it is hereby understood and agreed that the Company shall extend the policy to cover repair or replacement of the following loss of or damage to the insured vehicle, arising during the policy period.
- Engine and /or engine parts arising out of water ingression due to flood/ inundation resulting in hydrostatic lock.
13. In Ext. B6 dated 13/11/2018 submitted by the insurance surveyor clearly stated in column A about policy details of complainant and in that they admitted that the sum insured is Rs. 5,95,000/-. In the column B they given the particulars of complainant’s vehicle and they stated the pre accident condition of the vehicle as “Appeared as good”. In column E, the cause of accident they stated that “it is reported that on 09/08/2018, as per the insured , the vehicle was proceeding through flood water at Nilambur Town, water enter inside the engine and the engine ceased and sustained damages”. In column F, nature and extent of loss, opposite party surveyor stated that flood water enter inside the engine and so many other reasons engine ceased. But in column G, details of assessment, opposite party surveyor submitted that ‘’the repairer has submitted an estimate for Rs. 17,700/-, labour and replacement of parts worth Rs. 2,23,457/- approximately. Based on my inspection of the vehicle and as per discussion with the repairer the loss is assessed as below:”
14. From the documents complaint, version and affidavit, it can be seen that the vehicle was repaired from the authorised service centre. There is no case for the opposite parties that complainant had repaired the vehicle without their knowledge and permission. As per ExtA3 and A4 document, it is seen that complainant had approached the authorised dealer of his vehicle ALY Ford on 23/08/2018 and 28/08/2018 and they had given an estimate of Rs. 2,04252/- and Rs. 3,41,192/-. The first estimate was on 23/08/2018. Opposite party stated in their version and affidavit that complainant informed them regarding the incident on 23/08/2018. From the above statement we are on the opinion that complainant approached the opposite party and as per their direction they approached the authorised dealer of Ford, ALY Ford and they had inspected the vehicle and given an estimate to complainant. On 28/08/2018, they again gave an estimate for Rs. 3,41,192/- sometimes that is also not agreed by the opposite party. Thereafter on 31/10/2018, complainant paid Rs 1,95,327/- to Continental Cars for servicing. The surveyor submitted the survey report on 13/11/2018, that means he submitted the report after the submission of Ext. A5 document. As per Ext B6 document surveyor stated that there is initial assessment by the repairer and they had given an estimate for Rs.17,700/- for labour and replacement of parts worth Rs. 2,23,457/- . But he again stated that based on his inspection and as per discussion with the repairer the loss is assessed as below. Surveyor already admitted that the repairer had given an estimate of Rs. 2,41,157/-. Then how can the surveyor assessed the amount as Rs. 83,000/- after discussion. In the remarks of Ext B6 documents, he stated that repairer allowed discount for some particular parts, since I considered the discounted rate in my assessment. But surveyor did not mention in his report about the discounted items. He did not mention what items are included in the discounted items. In remark, he stated that engine block and damage of its related parts due to subsequent cranking after cease the engine, since I did not included the same in my assessment. The question is how can the surveyor reduce the amount for repairing the vehicle for the damage caused without the intentional act of complainant. The flood water was coming during the travelling. Then how can complainant can stop the car.
15. The averment of opposite parties are that the damage was caused due to the driver driven the car through flood water and water entered in to the engine of the car and which was happened due to carelessness and negligence from the side of complainant. So there is violation of policy condition as stated in the policy terms. But on verification of the entire documents submitted by both parties and survey report produced by opposite parties, there is no evidence to establish negligence on the side of complainant which led to the incident and there by caused damage to the vehicle. Mere allegation is not sufficient to exonerate insurer from the liability towards the insured. There is no document to show negligence on the part of complainant. It is a fact that the incident took place during rainy season and as stated by the complainant in the claim form. Moreover there is no option for the complainant to escape from the sudden flood water came in front of him. Opposite parties stated that they are not at all liable for the damage of engine of the vehicle due to the unauthorised act of the complainant. The sudden flood caused during 2018 are not due to the unauthorised act of complainant. So it is the duty of opposite parties to reimburse the complainant. The complainant again stated that the car was in the water for two days and as per opposite parties version, he informed the incident to them on 23/08/2018.
16. Another contention of opposite parties are that the Ext A5 document is a manipulated one, which shows nothing regarding the defects, type of repair conducted, amount of GST paid to the Govt etc of the vehicle undergone repair.But we are on the opinion that opposite parties can file a petition before the Commission for directing the complainant to produce the original cash receipt (Ext. A5) and detailed repair particulars and the name of the parts changed etc. But opposite parties did not take any steps for that, they just mentioned in their version, affidavit and arguments that it is a manipulated documents. Moreover they never raise any objection to the Ext.A5 document at the time of marking of the document. Moreover complainant produced before the Commission Ext A3 and A4 documents which are the estimates for repairing the vehicle from the authorised dealer of FORD, ALY Ford. That means ALY Ford admitted that there is an amount of 2 to 3 lakhs is necessary for repairing the vehicle. From that documents, it is seen that Ext. A3 is given to complainant on 23/08/2018 which is the same date that opposite parties stated in their version and affidavit that complainant approached them . Another contention of opposite parties are that there is fundamental breach of the conditions of the policy by the complainant, but no evidence to prove that.
17. In Ext.B4 Section (1) loss or damage, opposite parties stated that company will indemnify the insured against loss or damage to the Motor Car by flood, typhoon storm etc. In that document itself IMT-23 , they themselves stated that “ in consideration of an appropriate discount under the policy, it is hereby understood and agreed that the words flood typhoon etc appearing in Section 1(Item) of the policy are hereby deleted and the company shall not be liable for accidental loss or damage caused by or liability directly arising out of the above perils. Commission is wondered about the contradictory statements submitted by opposite parties in the same document. Moreover the poor consumer is not even get a copy of this documents.
18. As per documents and complaint, it is seen that there is coverage even if damage caused by flood fire or any natural calamities. The averment of opposite parties are that the vehicle stopped abruptly shows that the damage caused was not due to any accident or any mechanical defect. In Ext.B4 document regarding the loss or damage to the vehicle insured and the company will indemnify the insured against loss of damage to the Motor Car and its accessories whiles thereon (a) By fire, Explosion, Self ignition or lightening etc and (e) By flood, Typhoon, Hurricane , etc. The root cause for flood is the sudden over flow of water likewise hydrostatic lock is also defined as phenomenon that occurs in a vehicle engine comes in contact with water and water prevents the engine from starting and thereby rendering the vehicle in a static position. So it is not good to content that the damage caused to the vehicle due to hydrostatic lock are not covered under the policy. The denial of the insurance claim after receipt of sufficient premium definitely amounts gross deficiency in service and liable to be considered seriously.
19. The Hon’ble National Commission held in Bharati Axa General Insurance company Limited Vs Chandramohan Goyal Proprietor M/s. Triveni Chemical and Industries that a policy covering damage due to flood, cyclone, hail storm etc does not exclude loss to the vehicle due to hydrostatic lock. In absence of such an exclusion, insurance company will have to reimburse cost of repair of vehicle on account of damage by heavy rains and flooding irrespective of whether loss occurred due to hydrostatic lock or for some other reasons. In another decision reported in 2017 2 CPJ (NC) 553 TATA AIG Insurance Company Limited Vs Sandesh J Chouda also the National Commission expressed the same view. Decisions reported in 2017 (1) CPR (NC) 373 TATA AIG General Insurance Company Limited Vs Ambience Leasing Private Limited & another also covers the same position. So we are of the opinion that the National Commission already covered issues raised in this complaint several times. So we find that the act of the opposite parties repudiating the claim without sufficient reasons are deficiency in service.
20. The insurer is liable to reimburse the expenses incurred to the complainant as per the documents. There is no document to show the violation of policy condition by the complainant. So we are of the view that the policy issued by the opposite parties are covered the damage caused to the vehicle of the complainant and repudiation of the claim amounts to deficiency in service on the part of opposite parties. The complainant is entitled for repairing cost as well as cost and compensation. Complainant is entitled to get the amount he had given to Continental Cars Private Limited for repair. As per documents there is no total loss caused to the vehicle of complainant. Opposite parties only paid Rs.83,000/- as repairing cost to the complainant. Hence as per the policy, complainant is entitled for the repairing cost of the damaged vehicle, we find points accordingly. Hence the Commission finds the claim of the complainant is reasonable and we allow the complaint as follows:-
- The opposite parties are directed to pay Rs. 1,12,327/-(Rupees One lakh Twelve thousand three hundred and twenty seven only) to the complainantas the balance amountas perExt.A5 document with interestat the rate of 12% from 09/08/2018 to till date of payment.
- The opposite parties are directed to pay Rs. 50,000/-(Rupees Fifty thousand only) as compensation on account of deficiency in service and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs. 15,000/-(Rupees Fifteen thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 26th day of May, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A5
Ext.A1 : Copy of Registration Certificate
Ext.A2 : Certificate of Insurance Policy Schedule (Original).
Ext.A3 : Copy of estimate issued by ALY Ford, the service centre dated 23/08/2018. Ext.A4 : Copy of estimate issued by ALY Ford, the service centre dated 23/08/2018. Ext. A5 : Cash receipt – service voucher given by continental Cars Private Limited to
complainant dated 31/10/2018.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B5
Ext. B1 : True copy of the intimation given by complainant regarding the incident
dated 23/08/2018.
Ext. B2 : True copy of Motor Insurance Claim Form.
Ext.B3 : Certified copy of policy schedule- Motor-Private Car- Package and tax invoice
dated 15/09/2017.
Ext. B4 : Certified true copy of the Private Car Insurance B Policy conditions and
policy copy.
Ext. B5 : True copy of the Engine Protect (add on to Private Car package Policy –
National Insurance Company Limited).
Ext. B6 : True copy of the Motor Survey Report dated 13/11/2018.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
