BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 22 of 2017
Date of Institution : 2.2.2017
Date of Decision : 29.11.2017.
Mahinder Pardeep son of Shri Kasturi Lal, resident of Singla House, Old Court Colony, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
The Divisional Manager, United India Insurance Company Limited, Divisional Office Sirsa.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. B.S. Gill, Advocate for the complainant.
Sh. A.S. Kalra, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that complainant is the registered owner of the vehicle Car make Volkeswagon Polo Tdi bearing registration No.HR-24R-5148. The complainant being the law abiding person in order to cover all types of damages and risks regarding newly purchased vehicle had purchased an insurance policy from the ops getting insured his said vehicle vide insurance policy no.1119853115P115287835 issued by ops in the name of complainant covering the full risk w.e.f. 13.3.2016 to 12.3.2007 midnight and also assured for the full insurance of the said vehicle against any kind of damage to the said vehicle including accidental damages. The ops at the time of getting the lumpsum premium from the complainant against the said policy also assured that in case of any damage/ loss to the said vehicle during the insurance period, the claim value would be disbursed to the complainant without any delay. It is further averred that the vehicle of the complainant suffered the accidental damages and the whole of the vehicle has been damaged. The complainant has complied with all the due formalities in this regard and due intimation was also conveyed to the ops regarding the accidental damage to his vehicle and some officials from the office of ops stated to be as authorized Surveyor of the ops paid visit at the premises of the complainant where the damaged car was lying parked and inspected the same and after thorough inspection, the Surveyor of the op company also assured for the payment of the damaged vehicle and also assured that as the damages to the vehicle is fully covered under the insurance period and plan, as such the op company is legally liable for payment of the compensation. That the complainant accordingly lodged his claim to the ops and supplied all the relevant papers to the ops and the officials of the ops also got signed the claim form from the complainant. It is further averred that only after the assurance by the op and also after the thorough inspection by the Surveyor of the company, the complainant got repaired the said vehicle from the authorized agency of the manufacturing company of the vehicle and out of the total repair value of Rs.2,20,000/-, the opposite party/ insurance company has paid Rs.70,945/- which amount has been directly transferred by the op company through NEFT into the account of the complainant. That on coming to know about the less payment by the op, the complainant raised objection for the same upon which the op has fully assured for the payment of total damaged value of the vehicle later on and only because of this assurance by the op, the complainant made payment of the repair value out of his own pocket by arranging the same from the relative but now the intention of the op has been turned hostile. The op has repudiated the genuine claim of the complainant qua the remaining amount of Rs.1,49,055/- which is now payable by the op alongwith interest thereon. The complainant has also got issued legal notice upon the op but to no effect. Hence, this complaint.
2. On notice, opposite party appeared and filed written statement raising certain preliminary objections. It is submitted that complainant has concealed true and material facts from this Forum as a perusal of intimation and surveyor report regarding internal damages to the engine parts i.e. crank shaft, crank shaft bearing shell, connection rod bearing shell, thrust washer, sealing flange with sealing, flange with sealing ring cannot be connected with the manner of accident due to which there can be only external damages and external damages has been paid by the company as assessed by the Surveyor which were connected with the manner, history, cause and nature of the accident and according to the law laid down by Hon’ble National Commission, Surveyor is the technical and best person to speak about the damages and there is no allegation against the Surveyor and Surveyor has assessed the loss/ damages in consultation with the complainant/ insured which has been paid by company on 8.9.2016. It is further submitted that now after taking the amount after two months, complainant got issued a legal notice seeking the claim for the internal damages to the engine, which are not payable as per policy terms and conditions as same keeps binding effects upon the contractual parties insured and insurer i.e. complainant and answering op. Such damages can be caused due to the reasons either due to wear and tear or due to non supply of oil in the engine or complainant/ insured plied the vehicle after damages/ leakage resulting effects upon the crank i.e. internal parts of engine and if these damages are considered to be occurred in the accident, the vehicle would not have started after the accident and he brought the vehicle by toeing the same next day to the workshop. If it would have been so, in that eventuality, there would have been an immediate intimation of damages to the company, whereas in the present case, intimation has been given to the company regarding accident on 29.3.2016. The gap and duration between accident and intimation to the company and other factor gives an indication that vehicle must have been plied in a damaged condition which is never permitted by contractual term and conditions agreed between the parties. It is further submitted that not only Mr. Harish Sethi Surveyor and Loss Assessor who conducted the survey to the damaged vehicle but Engineer Gain Jain and Ravi Aggarwal Surveyor also inspected the vehicle after repair and gave in writing that damages to the internal parts of engine were/ are not payable, supporting the contention of Mr. Harish Sethi. An amount of Rs.70,945/- has been transferred in the account of complainant on 8.9.2016 and present complaint is the result of an afterthought version and is the result of legal engineering, even notice was issued after two months of using the amount of Rs.70,945/- accepted by complainant, thus there was an implied consent and complainant accepted the amount knowingly very well his own liability, lapses, thus principle of waiver is also applicable here in this case. On merits, the pleas taken in the preliminary objections are reiterated, the contents of the complaint are denied and prayer for dismissal of complaint has been made.
3. The complainant produced his affidavit Ex.CW1/A, copy of policy schedule Ex.C1, copy of driving licence Ex.C2, copy of registration certificate Ex.C3, copy of invoice Ex.C4, copy of estimate Ex.C5, copy of legal notice Ex.C6 and postal receipt Ex.C7. On the other hand, op produced affidavit of Sh. K.R. Jain, Divisional Manager Ex.R1, affidavit of Sh. Harish Sethi, Surveyor Ex.R2, affidavit of Sh. Gyan Jain, Surveyor Ex.R3, copy of motor claim intimation letter Ex.R4, copy of motor survey report Ex.R5, copy of photographs Ex.R6, copy of re-inspection report Ex.R7, copy of photograph Ex.R8, copy of letter dated 5.9.2016 Ex.R9, copy of legal notice Ex.R19 and copy of insurance policy Ex.R11.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. It is an admitted fact between the parties that the complainant is the owner of vehicle bearing registration No.HR-24R/5148. The complainant had purchased insurance policy of this vehicle vide policy No.1119853115P115287835 by which the full risk of the vehicle was covered for the period from 13.3.2016 to 12.3.2017. It is proved fact on record that vehicle of the complainant met with an accident and due intimation was given to the opposite party and the complainant lodged a claim qua the accident damages of his vehicle with the op along with all the requisite documents. He submitted the estimate of the loss to the tune of Rs.3,01,655.04/-. The vehicle was got repaired from Surjeet Motors, Hisar on payment of Rs.2,20,000/- which is evident from the invoice Ex.C4.
6. The record further reveals that the claim was registered and processed by opposite party and Sh. Harish Sethi was appointed as a Surveyor and Loss Assessor who inspected the vehicle after the accident and submitted his report Ex.R5, on the basis of which the op settled the claim of the complainant to the tune of Rs.70,945/- which was transferred in the account of the complainant by way of NEFT.
7. The bone of contention between the parties is qua the remaining amount of Rs.1,49,055/- for which the complainant has filed the present complaint. It has been contended by learned counsel for complainant that though he made payment of Rs.2,20,000/- qua the repair of the vehicle to Surjeet Motors, Hisar which is evident from the copy of invoice Ex.C4 but, however, the op only transferred the amount of Rs.70,945/- in the account of the complainant and remaining amount of Rs.1,49,055/- was not paid by the op. On the other hand, there is specific contention of learned counsel for op that since this amount relates to the consequential loss of the vehicle as per the report of the expert Sh. Harish Sethi, Surveyor and Loss Assessor and same is not payable as per terms and conditions of the policy. The perusal of the evidence of the complainant reveals that complainant has furnished his affidavit Ex.CW1/A in which he has deposed in terms of the contents of the complaint and has also tendered copy of policy schedule Ex.C1, copy of driving licence Ex.C2, copy of registration certificate Ex.C3, copy of invoice Ex.C4, copy of estimate Ex.C5, copy of legal notice Ex.C6 and postal receipt Ex.C7.
8. On the other hand, op has furnished affidavit of Mr. K.R. Jain, Divisional Manager as Ex.R1 who has also deposed in terms of the pleadings in the written statement and op has further tendered affidavit of Sh. Harish Sethi, Surveyor who has proved his report Ex.R5. He has specifically deposed in his affidavit that as per instructions from United India Assurance Company, on 29.3.2016 he visited at workshop M/s Surjit Motors Pvt. Ltd., where vehicle No.HR24R/5148 was lying for repair. The deponent inspected the said vehicle minutely in view to conduct final survey in presence of insured. The vehicle mainly damaged from front bottom side i.e. its front bumper found broken/ cut, its engine oil pump also found pressed/ broken badly and all most all the engine oil leaked out due to broken oil pump, its exhaust manifold with turbo was also found damaged, its carrier front end module broken, some internal parts of engine assy. Such as crank shaft, crank shaft bearing, connecting rod bearing shell, sealing flange with sealing and ring etc. also found damaged/ crushed due to non supply of engine oil to the moving parts. He has further observed that loss to internal parts, engine assembly was due to oil starvation and were consequential losses and that damage to engine parts occurred because of normal wear and tear or driving the vehicle after accident by insured or his representative and that vehicle after accident should not have been plied/ driven as per term and conditions of the policy. The opposite party has also furnished affidavit of Sh. Gyan Jain another Surveyor as Ex.R3 who inspected the vehicle after repair and found vehicle fully serviceable. The opposite party has also furnished copy of motor claim intimation letter Ex.R4, copy of motor survey report Ex.R5, copy of photographs Ex.R6, copy of re-inspection report Ex.R7, copy of photograph Ex.R8, copy of letter dated 5.9.2016 Ex.R9, copy of legal notice Ex.R19 and copy of insurance policy Ex.R11.
9. The opposite party has fully relied upon the testimony of Harish Sethi, Surveyor and Loss Assessor who has submitted his report Ex.R5 on file and has furnished affidavit Ex.R2. The perusal of this affidavit of the Surveyor categorically reveal that in para no.5 he has mentioned that all most all the engine oil leaked out due to broken oil pump, its exhaust manifold with turbo was also found damaged, it carrier front end module broken, some internal parts of engine assembly such as crank shaft, crank shaft bearing, connecting rod bearing shell, sealing flange with sealing and ring etc. also found damaged/ crushed and further it was observed by him that loss to internal parts, engine assembly was due to oil starvation. He has not given his specific opinion that this loss was caused by complainant or his representative while driving the vehicle after the accident. Further more, it is evident from the report of the Surveyor that once it was found by him that the oil pump was broken, its exhaust manifold with turbo was also found damaged, it carrier front end module was broken, some internal parts of engine assembly such as crank shaft, crank shaft bearing, connecting rod bearing shell, sealing flange with sealing and ring etc. were also found damaged/ crushed, then how it is possible that loss is due to wear and tear of the vehicle or the same was caused due to driving of the vehicle after the accident when it was found that vehicle was accidentally damaged. Moreover, the surveyor has not given any opinion that the vehicle was drivable even after the accident. So, the report of the Surveyor does not appear to be reliable and trustworthy and the same does not inspire any confidence. So, it appears from the evidence of the opposite party that opposite party has arbitrarily denied the payment of other parts of the vehicle which were damaged during the accident though the same does not fall under the consequential loss which clearly amounts to deficiency in service on the part of the opposite party.
10. In view of the above discussion, we allow the present complaint and direct the opposite party to make payment of other parts after evaluating value of the same by getting supplementary report of another Surveyor within a period of 45 days from the date of passing of this order. We further direct the opposite party to pay a sum of Rs.10,000/- as compensation to the complainant and further to pay a sum of Rs.2000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:29.11.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
