BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 161/2009 Filed on 01/07/2009

ORDER DATED:  03/03/2023

ORDER

SRI. VIJU V.R : MEMBER

           The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986.  The brief facts of the case is that the complainant purchased a Ford Fiesta Car bearing Registration No. KL-01-AS-8280 manufactured by the 1^st opposite party on 19/04/2008 for an amount of Rs.7,80,000/- from the 2^nd opposite party.  The said vehicle was insured with the 4^th opposite party vide policy No.760700/31/08/01/0000356 for a period from the 18/04/2008 TO 17/04/2009.  The said car hit on a stone while the complainant was travelling from Pathanamthitta to Thiruvananthapuram on 04/09/2008 at 2 am after his participation in a programme conducted in Pathanamthitta.  After the incident the car suddenly stuck and the complainant was not able to drive the car.  The complainant informed the matter to the 3^rd opposite party and they have taken away the car for repair.  The total expenses for the repair of the car amounted to Rs.2,25,566/- out of which the 4^th opposite party paid only Rs.32,000/-.  As the repair of the car occurred within the warranty period, the 1^st opposite party is liable to met out expenses for the repairment.  The 4^th opposite party being the insurer of the car is also liable to indemnify the complainant for the expenses met out by him in repairing the car.  The opposite parties 1 to 4 didn’t heed to the request made by the complainant.  The complainant sent an advocate notice on 13/02/2009 and though the opposite parties 1 to 4 received it they have not made any effort to solve the grievances of the complainant.  The complainant couldn’t drive the care for a period of more than 2 months due to the repairment and also he was subjected to great mental agony due to irresponsible acts of the opposite parties 1to 4.  The act of the opposite parties 1 to 4 amounts to deficiency in service and unfair trade practice, hence this complaint.    

The opposite parties 1 to 4 entered appearance and filed version.  The 1^st opposite party has averred that the complaint is not maintainable either in law or on facts.  The accident was admitted by the 1^st opposite party.  The complainant continued to drive the vehicle after the accident which caused engine to seize.  The seizure of the engine was caused by driving the vehicle despite the accident causing damages to the sump assembly, oil strainer, cross member assembly and RH lower arm when the under body was hit by the rock.  The vehicle ought have stopped immediately after the accident and reported for repairs.  The complainant continued to drive the vehicle without oil inspite of warning light.  As per the warranty conditions in the owner’s manual damage due to impact or road accident is not covered and the 1^st opposite party is not under any obligation to repair under warranty.  The complainant has been informed about the same.  The insurance company has found that engine failure is consequent to the complainant’s driving of the vehicle after accident.  The 1^st opposite party has sent replay notice dated 06/04/2009 to the advocate notice sent by the complainant denying the condition raised in the notice.  There is no deficiency in service or unfair trade practice from the side of the 1^st opposite party, hence the complainant may be dismissed with cost.              

The 2^nd & 3^rd opposite parties has averred that the complaint is not maintainable either in law or on facts.  The accident was admitted by the 2^nd & 3^rd opposite parties.  After the accident the complainant continued to drive the vehicle without oil inspite of warning indicator light glowing showing the oil dip in the system whereby the engine seized.  The vehicle ought to have stopped immediately after the accident and reported for repairers.  As per the warranty conditions in the owner’s manual damage due to impact or road accident is not covered under warranty and the 2^nd & 3^rd opposite party are not under any obligation to repair the vehicle under warranty.  The complainant has been informed about this warranty exclusion and was further informed that the repairs are not covered under the insurance policy which will done by the 2^nd & 3^rd opposite parties only at the cost of the complainant.  Since the complainant not stopped the vehicle after the accident without caring the warning indications in the vehicle regarding oil dip and hence caused damages to the internal parts of the engine resulted in seizure of engine, hence the engine failure is consequential loss and the insurance company is liable only for Rs.32,000/- for spear parts for which the damage caused at the time of accident and labour charge of Rs.2000/-.  The complainant accepted Rs.32,300/- towards full and final discharge of his claim.  The 2^nd & 3^rd opposite parties towed the complainant’s vehicle to their service centre and the surveyor of the New India Assurance Company Ltd., has conducted the survey on 06/09/2008.  The 2^nd & 3^rd opposite parties completed the repair works on 17/11/2008.  The 2^nd & 3^rd opposite parties received Rs.2,25,566/- towards the repair charges after giving 25% discount and 5% discount on labour charges.  After deducting the amount received from the insurance company complainant was asked to pay Rs.1,93,566/- only.  The 2^nd & 3^rd opposite parties had issued reply notice denying all the allegation in the lawyer’s notice sent by the complainant.  There is no deficiency in service and unfair trade practice from the part of 2^nd & 3^rd opposite parties, hence complaint may be dismissed with compensatory cost to 2^nd & 3^rd opposite parties. 

The 4^th opposite party has averred that the complaint is not maintainable either in law or on facts.    It is admitted that the vehicle was insured with the 4^th opposite party.  On receipt of the claim submitted by the complainant the 4^th opposite party immediately deputed independent licensed surveyor and loss assessor to conduct the survey and assess loss caused to the insured vehicle.  The claim was submitted by the complainant on 05/09/2008.  The surveyor was deputed on 06/09/2008 and he conducted survey of the insured vehicle on the same day.  The surveyor has submitted his report and he has stated in the report that the insured vehicle ran over a huge rock on the road and damages were caused to underneath parts like cross members assembly, lower arm RH, oil sump and oil strainer which were consistent with the nature of accident as narrated in the claim form.  The surveyor further reported that the insured drove the vehicle after the accident without caring the warning indications in the vehicle and hence the piston, crankshaft, bearings etc were seized and engine stopped on the way and the damages caused to the internal parts of the engine occurred due to consequential loss only and hence the same were not payable.    The 4^th opposite party is only liable to indemnify the insured only as per the terms and conditions of the policy issued to him and the 4^th opposite party is not liable to indemnify the insured in respect of consequential loss.  Based on the said surveyor’s report and the final bills the 4^th opposite party had settled the claim for Rs.32,000/- which was accepted by the complainant as full and final discharge of all his claims.  The 4^th opposite party is not liable to pay any amount to the complainant other than the amount of Rs.32,300/-.  There is no deficiency in service and unfair trade practice from the part of the 4^th opposite party, hence complaint may be dismissed with compensatory costs 4^th opposite party. 

    Issues to be ascertained:

(i). Whether there is any unfair trade practice or deficiency in service from

     the side of opposite parties 1 to 4?

(ii). Whether the complainant is entitled to get the reliefs?

Issues No.(i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed affidavit in-lieu of chief examination and has produced 7 documents which were marked as Exts. P1 to P7 series and was cross examined by the 1^st to 4^th opposite parties.  The 1^st opposite party has filed proof affidavit in lieu of chief examination and has produced 3 documents which were marked as Ext.D1 to D3.  The 2^nd & 3^rd opposite parties filed proof affidavit in lieu of chief examination and has produced 3 documents which were marked as D4 to D6.  The 4^th opposite party has filed proof affidavit in lieu of chief examination and has produced 5 documents which were marked as D7 to D11.  All the parties filed argument note.  The accident was admitted by all the opposite parties.    The allegation raised by the complainant is that the 4^th opposite party has paid only Rs 32,000/- out of Rs 2,25,566/-  (Rupees Two Lakhs Twenty Five Thousand Five Hundred and Sixty Six Only) which he has paid as the repair charges.  The 4^th opposite party has paid the amount as per the survey report. On going through Ext.D8 it can be seen that damages to the internal parts of engine were occurred due to consequential loss only.  The consequential loss has happened due to the non stoppage of the vehicle after the accident.               

The Hon'ble Supreme Court in Sri Venkateswara Syndicate vs Oriental Insurance Company limited & Anr., (2009) 8 SCC 507, has observed that:-

“The assessment of loss, claim settlement and relevance of survey report depends on various factors. Whenever a loss is reported by insured, a loss adjuster, popularly known as loss surveyor, is deputed who assesses the loss and issues report known as surveyor report which forms the basis for consideration or otherwise of the claim. Surveyors are appointed under the statutory provisions and they are the link between the insurer and the insured when the question of settlement of loss or damage arises. The report of the surveyor could become the basis for settlement of a claim by the insurer in respect of the loss suffered by the insured”.

The National consumer commission in Mohan Lal Meena vs United India Insurance Company and Anr, 2021(1)CPR 366(NC) has held that:-

       “Report of the surveyor, who was entrusted the task of assessing the damage and arriving at an estimate of cost of repairs, is an important document and cannot be simply brushed aside, without cogent reasons.”

The National consumer commission in Sanjay Jain vs Reliance General Insurance Company Ltd &Anr,2021(1) CPR 405(NC) has held that:-

    “Surveyors are appointed under the provisions of the Insurance Act 1938 and their report cannot be brushed aside without any cogent reason.”

     The National consumer commission in Navdeep Agro Board vs National Insurance Co.Ltd, 2021(4) CPR 465(NC) has also held that:-

  “ Survey and investigation are one of the fundamentals in settling a claim, and cannot and should not be disregarded or dismissed without cogent reasons, though it also goes concomitantly that the surveyor or investigation should be convincing and pass credence in scrutiny.”

Even though the complainant had alleged that he had not drove the vehicle after the accident cannot be relied on as he has not produced any evidence to prove the same.Correct assessment of loss was made by the Surveyor.  There is no discrepancy in the survey report so as to make a ground for the same to be unreliable.  So the relief for total repair cost cannot be allowed as claimed by the complainant.

     In the result the complaint stands dismissed. Parties shall bear their own cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 3^rd  day of March,  2023.

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P.V.JAYARAJAN                 : PRESIDENT 

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PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

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C.C. No. 161/2009

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

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PRESIDENT

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