STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 114 of 2013 |
Date of Institution | : | 19.03.2013 |
Date of Decision | : | 09.07.2013 |
TATA AIG General Insurance Company Limited, through its General Manager, Policy Holder Services, P.O. No.9407, Chakala MIDC Post Office Mumbai – 160002.
…Appellant/Opposite Party No.3.
Versus
1. Dr. Navneet Agnihotri w/o Dr. Neeraj Sood, r/o E-1/71, Sector 14, Panjab University, Chandigarh.
2. Honda Siel Cars India Ltd., through its Managing Director and Chief Executive Officer, Plot No.A-1, Sector 40-41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar (U.P) – 201 306.
3. Harmony Honda Joshi Automotive Pvt. Limited, through its Managing Director and Chief Executive Officer, Plot No. 67, Industrial Area, Phase-II, Chandigarh – 160002.
4. M/s Protech Engineers and Loss Assessors, through its Partner, SCF No. 40, Phase-9, Mohali, near Chandigarh – 160062.
….Respondents.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Rajesh K. Sharma, Advocate for the appellant.
Sh. Sanjeev Sharma, Advocate for respondent No.1.
Sh. Karan Nehra, Advocate for respondent No.2.
Sh. Rajesh Verma, Advocate for respondent No.3.
Service of respondent No.4 already dispensed with vide order dated 03.06.2013.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 29.01.2013 of the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), passed in Consumer Complaint No.506 of 2011 vide which, it accepted the complaint of the complainant against the Opposite Party No.3 only (now appellant) and directed it, as under: -
“17. In the light of above observations, we are of the concerted view that the Opposite Party No.3 is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.3, and the same is Allowed. The Opposite Party No.3 is directed, to:-
[a] To refund the amount of Rs.2,07,182/- i.e. (Rs.2,05,947/- + Rs.1236/-) which the Complainant was forced to pay to Opposite Party No.2, after deducting applicable depreciation, as per the terms & conditions of the policy;
[b] To pay Rs.25,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant;
[C] To pay Rs.10,000/- as cost of litigation;
18. The above said order shall be complied within 45 days of its receipt by the Opposite Party No.3; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 17 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.”
However, the District Forum, dismissed the complaint, against Opposite Parties No.1, 2 and 4.
2. The facts, in brief, are that the complainant, comprehensively got insured his Honda City 1.5 EMT car, bearing Regn. No. CH-04-J-6450 (make 2009) from Opposite Party No.3 through Opposite Party No.2, in order to avail of easy & cashless service benefit and paid Rs.14,687/- towards premium, for the period from 22.06.2011 to 21.06.2012 and the cover note bearing No.015132383900 (Annexure C-1) was issued. It was further stated that the policy was never supplied to the complainant. It was further stated that on 26.6.2011, in furtherance of the policy decision taken by Opposite Party No.1, in respect of all the vehicles manufactured in the year 2009, some parts in the engine of the complainant’s vehicle were got replaced by Opposite Party No.2 at its workshop.
3. It was further stated that on 24.07.2011, the complainant noticed loud noise and smoke coming out of the engine, and apprehending that perhaps a stone or some solid object had hit the vehicle under carriage, she, immediately, turned off the engine and the vehicle was towed to the service centre of Opposite Party No.2 by 24 Hour Honda Assistance. It was further stated that initially an estimate of Rs.17,836/- was issued by Opposite Party No.2 towards the cost of its repair (Annexure C-2). It was further stated that the Surveyor (Opposite Party No.4) inspected the damaged vehicle at Opposite Party No.2 Service Centre and submitted report at the back of the complainant. It was further stated that after opening the engine, a fresh estimate of Rs.2,05,947/- was prepared by Opposite Party No.2 (Annexure C-3) and the vehicle was promised to be delivered on 30.07.2011. It was further stated that Opposite Party No.4 informed the complainant through e-mail as well as through letter dated 29.7.2011 (Annexure C-4) that the under body damage, as intimated by the complainant, did not co-relate with the cause of loss, to which, the complainant sent detailed reply to it through
e-mail (Annexure C-5) and on 30.07.2011, when she approached Opposite Party No.2, to take her car, it was informed that since, the engine of the car was damaged because of water/ hydrostatic lock, none of the Opposite Parties, were ready to make the payment towards repairs. Under compelling circumstances, the complainant gave an undertaking (Annexure C-6). It was further stated despite various communications to the Ops, neither the vehicle was being delivered after its repair nor opposite party No.1 & 2 and opposite party No.3 were ready to bear the expenses of accidental damage caused to the vehicle (Annexures C-7 to C-12). It was further stated that after paying the cost of repair of Rs.2,05,947.23P, under compelling circumstances, the complainant took the delivery of her car on 07.09.2011.
4. It was further stated that on 07.09.2011, while test driving the vehicle, the officials of Opposite Party No.2 were pointed out about the noise of enginee. When the complainant reached home, she noticed that the voice in the engine became prominent, upon which, she immediately made a call to Opposite Party No.2. It was verbally informed by an official of Opposite Party No.2, after getting feedback, that the tension bearing of the belt was not working properly, which could not be replaced due to its non-availability. It was further stated that the vehicle was called back on 8.9.2011, which was then delivered back to the complainant on 19.9.2011 after receiving Rs.1236/- more towards its repair (Annexure C-13).
5. It was further stated that the complainant served a legal notice dated 12.09.2011, upon the Opposite Parties (Annexure C-14). It was further stated that on 10.10.2011, Opposite Party No.3, repudiated the claim vide letter (Annexure C-15). It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directing the Opposite Parties to refund Rs.2,07,182/- i.e. (Rs.2,05,947 + Rs.1,236) alongwith interest @18% per annum, Rs.2,00,000/- as compensation for harassment and mental agony, Rs.33,000/- towards counsel fee and Rs.10,000/- as cost of litigation, was filed.
6. Opposite Party No.1, in its written version, took some preliminary objections to the effect that the complaint was not maintainable as the car was purchased for commercial purpose; the relationship between Opposite Party No.1 and Opposite Party No.2 was strictly on principal-to-principal basis, and, as such, each party was responsible for its own action; the allegations made in the complaint were false and frivolous with ulterior motive to harass & defame the answering Opposite Party; there is no manufacturing defect in the vehicle, the complaint was based on surmises & conjectures, the complaint involved several disputed questions of fact and law; and only the Civil Court has the jurisdiction to decide the same. On merits, it was denied that the vehicle of the complainant was got insured from Opposite Party No.3. It was admitted that on 26.6.2011, some parts of engine of the vehicle of the complainant were got replaced by Opposite Party No.2, as per the policy decision of Opposite Party No.1. It was denied that the complainant was assured by Opposite Parties No.2 & 3, that it would be a cashless repair. It was admitted that an estimate of Rs.2,05,947/- was prepared by Opposite Party No.2. It was stated that Opposite Party No.2 was legally right to collect the amount due against the complainant, after or before the repairs. It was further stated that Opposite Party No.1 had nothing to do with the repairs carried out by Opposite Party No.2,. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
7. Opposite Party No.2, in its written version, in preliminary objections stated that the complaint was not maintainable as the complainant did not fall within the definition of a consumer as defined by Section 2(1)(d) of the Act. It was further stated that the vehicle was sold to the complainant subject to the conditions of warranty, wherever applicable. It was further stated that taking of insurance policy by the complainant from Opposite Party No.3, was his choice. It was further stated that the service of cashless facility from the answering Opposite Party, was available as per the terms of the policy issued by Opposite Party No.3. It was admitted that the vehicle, in question, was reported to its workshop on 25.7.2011 and an estimate for Rs.17,836-00 (Annexure C-2) was issued to the complainant, with regard to the accidental repairs. It was further stated that Opposite Party No.2, did not commit anything about expenses towards repairs. It was admitted that re-estimate for Rs.2,05,947.00 (Annexure C-3) was issued after opening the engine. It was further stated that after opening the engine and its inspection, it was found that there was ingress of water into the same which contributed to the damage due to a phenomenon called hydrostatic lock. It was further stated that the complainant was duly informed that the vehicle was driven in a heavily water logged area/road resulting into hydrostatic lock. It was further stated that the damage was due to external reasons and the repair of the engine did not fall under the standard/extended warranty (Annexure C-8). It was further stated that the dispute, if any, was between the complainant and Opposite Parties No.3 and 4. It was further stated that the claim of the Complainant was not maintainable qua Opposite Parties No.1 & 2, as it was not payable under the terms of warranty. It was further stated that the vehicle was attended to most efficiently and effectively to the satisfaction of the complainant, and he had test driven the same before delivery and there was no engine noise, as alleged. It was further stated that the vehicle was reported to the workshop of Opposite Party No.2, on 8.9.2011 for the problem of noise from the engine compartment, bearings to be checked etc. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.2, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
8. Opposite Party No.3, in its written version, stated that the complainant took an insurance policy No.015132383900 valid from 22.6.2011 to 21.6.2012 for an IDV of Rs.6,43,000/- subject to the terms and conditions of the Insurance Policy. It was further stated that on receipt of claim intimation, Sh. Pukhraj Singh of Protech Engineers & Loss Assessors, was appointed to assess the claim and submit his report. It was further stated that the claim, if any, was payable only, as per the terms and conditions of the Insurance Policy, after the assessment was made by the surveyor. It was further stated that the surveyor visited the workshop for assessment and after inspecting the car, found that the underbody damage to the car for which the claim was initially lodged did not co-relate with the loss as intimated by the complainant. It was further stated that the surveyor immediately wrote letter dated 29.7.2011 (Annexure C-4) to the complainant to explain her version regarding the underbody damage. It was claimed that the damage to the engine could not occur mainly by ingress of water unless there was a mechanical breakdown or when trying to start/run engine when in contact with water which could lead to seizure of engine and thus, it was consequential loss and the same was not payable in view of the violation of Section No.1 (2) (a) of the Policy. It was further stated that the claim of the complainant was rightly repudiated vide letter dated 10.10.2011 (Annexure R-3/3). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.3, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
9. The parties led evidence, in support of their case.
10. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, against Opposite Party No.3 only, in the manner, referred to, in the opening para of the instant order.
11. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.3.
12. We have heard the Counsel for the parties, and, have carefully perused the record of District Forum.
13. The Counsel for the appellant/Opposite Party No.3, submitted that the District Forum erred in law and, on facts, in accepting the complaint vide the impugned order, which was based on surmises and conjectures. It was further submitted that the order of the District Forum ignored the report of the I.R.D.A licensed Independent Surveyor i.e. Protech Engineers & Loss Assessors and wrongly held that repudiation of the claim of the complainant amounted to deficiency in service. It was further submitted that the vehicle had problems on 22.7.2011 and respondent No.1/complainant, had reported the matter at the Call Centre of the appellant/Insurance Company on 25.7.2011. It was further submitted that thereafter, the complainant kept on driving the vehicle despite problem on 22.7.2011 and, ultimately, the vehicle broke down on 24/25.7.2011. It was further submitted that the policy did not cover consequential loss occurring mainly on account of ingress of water, as per Section 1, 2(a) of the policy. It was further submitted that the District Forum failed to appreciate the surveyor’s report dated 22.9.2011 wherein it was clearly stated that there was no external damage to the engine and oil chamber was found damaged from inside to outside. It was further submitted that the District Forum failed to appreciate that there was no other damage, reported to other parts of the car like electronic sensors if exposed to inundated water, damage to wiring, and car upholstery. It was further submitted that the District Forum went against the admission of respondent No.3 (workshop) that it had advised respondent No.1/complainant, to bring the vehicle to the workshop for carrying out repair in the engine. It was further submitted that the impugned order was passed without application of mind.
14. On the other hand, respondent No.1/complainant submitted that the car was purchased in the year 2009 and she opted for extended warranty and comprehensive policy on the asking of respondent No.3 and paid Rs.14687/- as policy premium and cover note (Annexure C-1 ) was issued but the policy and terms and conditions were never supplied. It was further submitted that respondent No.1/complainant was called by respondent No.2 to get the parts of engine replaced. It was further submitted that after damage on 24.07.2011, initially an estimate of Rs.17,836/- was issued by Opposite Party No.2 towards the cost of its repair (Annexure C-2) whereas the surveyor (Opposite Party No.4) deputed by Opposite Party No.3, at the back of respondent No.1/complainant submitted a fresh re-estimate of Rs.2,05,947/- and date of delivery was promised as 30.07.2011. Respondent No.1/complainant vide email dated 30.07.2011 (Annexure C-5) wrote to Opposite Party No.4 (Protech Engineers) and Loss Assessors stating that she was a nontechnical person and thought that something must have hit the vehicle from underneath the car. The matter was reported to the Opposite Parties. It was further submitted that the vehicle was earlier serviced on 26.6.2010 and was working fine till that time. It was further submitted that the delivery of vehicle was not being given and, respondent No.1/complainant, was coerced into submitting undertaking (Annexure C-6). It was further submitted that consequential loss had not been distinguished from the earlier loss. It was also argued that the service engineer of Opposite Parties No.1 and 2, was not an independent person, and the complainant was also not associated during the inspection.
15. It was admitted by Opposite Party No.1 in para 3 of the written statement that respondent No.1/complainant was called upon by Opposite Party No.2, to bring her vehicle at their service centre for replacement of some parts in the engine as per the policy decision taken by Opposite Party No.1, for replacement of the said parts in all the vehicles manufactured in the year 2009 and as such the said part was got replaced by Opposite Party No.1 at their work shop.
16. Admittedly, the warranty of the vehicle started w.e.f. 22.6.2009. Initially, Opposite Party No.2, vide invoice dated 25.07.2011 (18:30) gave an estimate of Rs.17,836.oo (Annexure C-2) with promise to deliver the vehicle on 30.07.2011. Invoice of estimate for an amount of Rs.2,05,947.23Ps (Annexure C-3) also contained the visit date, delivery date/time exactly the same as per Annexure C-2 except that mileage in Annexure C-2 was shown to be 22600 KMs and in Annexure C-3, it was 23411 KMs. The variation in mileage on the same date and repair estimate remained unexplained. No doubt, the complainant gave an undertaking dated 30.7.2011 for making the payment from her own sources, but, such an undertaking did not extinguish her right for a claim, which was admissible to her, as per the terms of the Policy. Even despite her undertaking, the vehicle was not delivered to her.
17. The first question, that arises for consideration, is, as to whether, the Policy document, alongwith the terms and conditions thereof, was supplied to the complainant, and, if so, on which date. It was the definite case of the complainant, that she was only supplied the cover note Annexure C-1 containing one page only. She also asserted that she was not supplied the policy document. Her assertion is supported by her duly sworn in affidavit. In para No.2 of her affidavit she submitted that the Policy was not sent/delivered to her. On the other hand, the appellant/Opposite Party No.3, in its written reply, denied that the Policy documents were not sent to the complainant/respondent No.1 by it. No doubt, in the written reply, it was in clear-cut terms stated by the appellant/Opposite Party No.3, that they supplied the Policy document alongwith the terms and conditions thereof, to the complainant. In case, the same had been supplied to the complainant, by the appellant/Opposite Party No.3, it could furnish the documentary evidence, with regard to the mode of dispatch. It could also produce the postal receipt/courier receipt. It, however, failed to furnish any documentary proof, with regard to the supply of Insurance Policy and terms & conditions of the same, to the complainant, at any point of time, after she got insured her vehicle from them. In the absence of production of any receipt showing, as to on which date, the policy and the terms and conditions of the same were delivered to the complainant, the version set up by the complainant, that she never received the same, duly supported by her affidavit can be said to be correct. It is, thus, held that the Policy alongwith the terms and conditions, was not supplied to the complainant, at any point of time. This, in itself amounts to deficiency, in rendering service, on the part of the appellant/Opposite Party No.3.
18. The next question, that arises for consideration, is, as to what was the duty of the Insurance Company, after receipt of the amount of premium. In our considered opinion, it was the bounden duty of the Insurance Company to supply the Policy, alongwith the terms and conditions thereof, to the complainant, as also make her understand of the main features thereof. The Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interests) Regulations,2002, framed by the Insurance Regulatory and Development Authority (IRDA) in exercise of the powers, vested in it, under Section 114(A) of the Insurance Act,1938, read with Sections 14 and 26 of the Insurance Regulatory and Development Authority Act,1999, came into effect from the year 2002. Therefore, the Policies which were issued after 2002, were covered under the said Regulations. The Insurance Companies are bound by the aforesaid Regulations, which are mandatory, in nature. These Regulations were framed by the IRDA to protect the interests of the policyholders. Regulation 3 is required to be followed by the Insurance Companies, so that the terms of the Insurance Policy do not operate harshly, against the insured, and in favour of the insurer. Regulation 3 reads as under ;
“3. Point of sale—(1) Notwithstanding anything mentioned in Regulation 2(e) above, a prospectus of any insurance product shall clearly state the scope of benefits, the extent of insurance cover and in an explicit manner explain the warranties; exceptions and conditions of the insurance cover and, in case of life insurance, whether the product is participating (with profits) or non-participating (without profits). The allowable rider or riders on the product shall be clearly spelt out with regard to their scope of benefits, and, in no case, the premium relatable to health related or critical illness riders in the case of term or group products shall exceed 100% of premium under the basic product. All other riders put together shall be subject to a ceiling of 30 per cent of the premium of the basic product. Any benefit arising under each of the rider shall not exceed the sum assured under the basic product.
Provided that the benefit amount under riders shall be subject to Section 2(11) of the Insurance Act, 1938.
Explanation -—the rider or riders attached to a life policy shall bear the nature and character of the main policy, viz. participating or non-participating and accordingly the life insurer shall make provisions, etc., in its books.
(2) An insurer or its agent or other intermediary shall provide all material information in respect of a proposed cover to the prospect to enable the prospect to decide on the best cover that would be in his or her interest.
(3) Where the prospect depends upon the advice of the insurer or his agent or an insurance intermediary, such a person must advise the prospect dispassionately.
(4) Where, for any reason, the proposal and other connected papers are not filled by the prospect, a certificate may be incorporated at the end of proposal form from the prospect that the contents of the form and documents have been fully explained to him and that he has fully understood the significance of the proposed contract.
(5) In the process of sale, the insurer or its agent or any intermediary shall act according to the code of conduct prescribed by—
(i) the Authority;
(ii) The Councils that have been established under Section 64C of the Act; and
(iii) The recognized professional body or association of which the agent or intermediary or insurance intermediary is a member”.
The aforesaid Regulation makes it clear that—
(i) the prospectus of insurance product is required to clearly state the scope of benefits, the extent of insurance cover and in explicit manner explain the warranties, exceptions and conditions of the insurance cover. The phraseology used is “mandatory” by providing that it shall be stated clearly;
(ii) Sub-Regulation (2) provides that an insurer or its agent or other intermediary shall provide all material information in respect of the proposed cover to the insured;
(iii) Sub-Regulation 4 also provides that if the proposal and other connected papers are not filled by the prospect, a certificate is required to be incorporated at the end of the Proposal Form from the prospect that the contents of the form and documents have been fully explained to him.
Regulation 3, which has been extracted above, clearly reveals that it is the duty of the insurer to supply the entire information by issuance of prospectus of any insurance product, stating therein, the scope of benefits, the extent of insurance cover, in an explicit manner, explaining the warranties, exceptions and conditions of the insurance cover. Not only this, in M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC), the principle of law, laid down, was to the effect, that it is the fundamental principle of Insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the Insurance Company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally. It was, thus, the duty of the Insurance Company to disclose all the facts and circumstances, relating to the insurance cover, to the complainant. It was also required of it, to apprise the complainant of the benefits of insurance, exclusion clauses, contained therein, and the warranties referred to, in the same. It was, under these circumstances, the utmost duty of the insurer to supply the Insurance Policy and the terms and conditions thereof, to the insured, so as to enable her to go through the same and understand the clauses contained therein. Not only this, it was also the duty of the Insurance Agent or Insurance Advisor to explain the terms and conditions of the Insurance Policy, including the exclusion clauses, contained therein. However, in the instant case, the Opposite Parties, as stated above, failed to prove that the Insurance Policy and the terms and conditions thereof were supplied to the complainant. In United India Insurance Co. Ltd. & Anr. Vs S.M.S. Tele Communications & Anr., III (2009) CPJ 246 (NC), it was observed that being aware of the existence of the policy, is one thing, and being aware of the contents and meaning of the clauses of the policy, is another. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the Policy and terms and conditions thereof were not supplied to the complainant, she was neither aware of the exclusions, nor was bound by the same.
19. The next question, which falls for consideration, is, as to whether the appellant/Opposite Party No.3, was right, in repudiating the claim, on the ground that it was a consequential loss. The complainant submitted that on 24.07.2011, she noticed loud noise and smoke coming out of the engine, and apprehending that perhaps a stone or some solid object had hit the vehicle under body, she immediately turned off the engine, and the vehicle was towed to the service centre of Opposite Party No.2, while OP No.4 informed the complainant/respondent No.1, that the damage did not correlate with the cause of loss. She was informed that the engine was damaged because of water/hydrostatic lock and none of the opposite parties, were ready to make the payment towards the repairs. The complainant/respondent No.1, categorically asserted that when the car stopped, she immediately informed OP No.2. It is not proved that the complainant made any ignition attempt. The car was towed to the workshop, which clearly indicated that she followed all the driving and handling guidelines and precautions. The complainant/respondent No.1; in her email dated 15.8.2011 Annexure C-9 clearly mentioned that there was no indication of water locked of engine in various parameters and the indicators of the car were running smoothly. She could not be blamed if while traveling, all of a sudden the rain starts, and water accumulates in the intersection and enters the engine. . The complainant filed an affidavit to this effect. The appellant/OP No.3 did not produce any evidence to prove if due to the negligence of the complainant, there was any ingress of water in the engine. It seems that presumption was drawn only because of the fact that water, was sucked without realizing that the engine could have sucked water, even when the car was in running condition through the water before it stopped midway. The District Forum therefore, rightly came to the conclusion that the damage to the engine was due to rains and not due to negligence of the complainant who was herself driving the same. There was, therefore, no negligence, on the part of the complainant/respondent No.1, and the damage to the engine could not be said to be consequential damage due to the negligent act of the complainant/respondent No.1. All the precautions required to be taken, appear to have been taken by the complainant while driving the vehicle and, therefore, the claim could not be denied by the appellant/OP No.3. Our view is supported by the order passed by this Commission in Kanta Dhir Vs. M/s The Manager, ICICI Lombard & Anr., Appeal Case No.830 of 2007 decided on 24.10.2008, wherein it was held that if a person is going in the car and all of a sudden, rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not the fault of the insured and the insurer is liable to reimburse the claim. This order was followed in another case titled as New India Assurance Co. Ltd. Vs. V.K. Bawa Appeal case No.428 of 2009 decided by this Commission on 11.11.2009. The appellant/Opposite Party No.3, also did not produce any evidence by way of expert opinion of a qualified engineer, attributing consequential loss, due to the negligence, on the part of the complainant/respondent No.1.
20. The argument that there was consequential loss, was also subjective and without any supportive evidence in terms of report/expert opinion of any independent expert/engineer of Opposite Party No.3, in the field. The policy taken by the complainant, was cashless policy, and if the claim was to be declined on technical or frivolous grounds, such a policy was of no use to the complainant. In fact, Opposite Party No.3, even did not supply the complete policy with terms and conditions and only a cover note was supplied. In absence of terms and conditions having been supplied to the complainant, the question of explaining the exclusions to the complainant did not at all arise.
21. To sum up, there was a wide variation in two repair estimates (Annexures C-2 and C-3). As per the contents of both the estimates, the vehicle was promised to be delivered to the respondent No.1/complainant on 30.7.2011 and despite her undertaking, which the complainant was coerced to give in, the vehicle was delivered on 30.9.2011. The deficiency was not only in repairing the vehicle timely but also wrongly repudiating the claim, which was admissible. The appellant/Opposite Party No.3, has failed to establish that repudiation of the claim was on just and logical grounds. The facts and circumstances clearly establish that the repudiation was illegal and invalid.
22. No other point, was urged, by the Counsel for the parties.
23. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal filed by the appellant/Opposite Party No.3, is dismissed, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.
Pronounced.
July, 9, 2013.
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[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
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[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.114 of 2013)
Argued by: Sh. Rajesh K. Sharma, Advocate for the appellant.
Sh. Sanjeev Sharma, Advocate for respondent No.1.
Sh. Karan Nehra, Advocate for respondent No.2.
Sh. Rajesh Verma, Advocate for respondent No.3.
Service of respondent No.4 already dispensed with vide order dated 03.06.2013.
Dated the 9th day of July, 2013.
ORDER
We have gone through the application, moved by the appellant, for placing, on record, a copy of report of Auto Claims Notification regarding the complaint made by respondent No.1/complainant (Annexure R-3/5), in order to prove that the vehicle, in question, was having problems on 22.07.2012, by way of additional evidence and have perused the record.
2. The document/report, aforesaid, was very much, in possession and knowledge of the appellant, when it was leading evidence, in the District Forum. No plausible reason has been assigned, as to what prevented the appellant, from producing this document/report, on record, in the District Forum. In case, at this stage, the application for placing, on record, a copy of report (Annexure R-3/5), is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 13(3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing, on record, copy of the report (Annexure R-3/5), at this stage. The application is accordingly dismissed.
3. Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/Opposite Party No.3, has also been dismissed, with no order as to costs.
4. Copy of this order be sent to the parties, free of charge.
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(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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