BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSALFORUM, FATEHABAD.
Complaint no.297/2018.
Date of Instt. 27.09.2018.
Date of Decision: 24.01.2020
Jasveer aged about 25 years son of Sh. Kuldeep, resident of village Jheel, Tehsil Narwana, District Jind.
..Complainant.
Versus
- Guru Kirpa Tractors (Authorized dealer: John Deere India Pvt. Ltd.), New Prabhakar colony, Chandigarh Road Tohana, District Fatehabad through its Proprietor/Authorized Signatory
- John Deere Pvt. Ltd. having its registered office: Tower 14, Cyber City, Magarpatta City, Hadaspsar, Pune through its M.D./Authorized Signatory.
- Royal Sundaram General Insurance Co. Ltd. (Formerly known as Royal Sundaram Alliance Insurance Company Ltd.) having its Regd. Office: 21, Patullos Road, Chennai through its M.D./Authorized Signatory.
Royal Sundaram IRDA Registration No.102/CIN-U67200TN2000PLC045611.
- Royal Sundaram General Insurance Company Ltd. (Formerly known as Royal Sundaram Alliance Insurance Company Ltd.) having its corporate office: Vishranti Melaram Towers, No.2/319 Rajiv Gandhi Salai (OMR) Karapakkam, Chennai.
Royal Sundaram IRDA Registration No.102/CIN-U67200TN2000PLC045611.
..Respondents/OPs.
Complaint under Section 12 of Consumer Protection Act, 1986.
Before: Sh.Raghbir Singh, President.
Sh. Jasvinder Singh, Member.
Argued by: Sh. Raj Kumar Godara, Advocate for complainant.
Sh. Naresh Sachdeva, Advocate for the OP no. 2.
Sh. U.K. Gera, Advocate for the OP no.3 & 4.
OP no. 1 already exparte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he purchased a tractor make John Deere 5050D bearing registration no.HR-32K-3449 from OP no. 1 on 21.9.2017. The abovesaid tractor was manufactured by OP no. 2 and the same was got insured by the complainant from OP no. 3 & 4 through OP no. 1 vide policy bearing no.VOC0435326000100, valid from 21.9.2017 to 20.9.2018 for a sum assured of Rs.6,17,500/- and a total premium of Rs.14,620/- was paid by the complainant. The abovesaid tractor was being used by the complainant for agricultural purposes in his fields.
2. It is further submitted that on 23.4.2018, driver of the complainant was working in the fields of the complainant with the tractor, but suddenly due to short circuit, the aforesaid insured tractor caught fire and was burnt completely. On the same day, the complainant informed OP no. 3 & 4 regarding the incident and on the very next day a DDR no.018 dated 24.4.2018 was got registered in Police Station Narwana regarding the occurrence. Thereafter, Investigation Officer of the police investigated the matter and he found the facts of occurrence as correct.
3. It is further submitted thereafter the complainant approached to all the OPs several times for getting the claim and submitted the relevant documents and it was assured by the OPs that within a few days the claim will be settled. However, till date the OPs have not released the claim amount to the complainant despite repeated requests made by the complainant. It is further submitted that the complainant had already spent an amount of Rs.1,25,000/- on arranging another tractors for cultivating his fields and for other agricultural works.
4. It is further submitted that OP no. 3 and 4 issued a letter dated 28.5.2018 to the complainant with intention to evade themselves from making the payment of the claim amount stating therein that the matter be taken up with the manufacturer for warranty claim. It is further submitted that the complainant had also approached to OP no. 1 and 2 several times with request to release the claim amount but all in vain. It is further submitted that the attitude of the OPs was not satisfactory and the same amounts to deficiency on their part in rendering service to the complainant. It is also submitted that the complainant got issued legal notice to the OPs. The OP no. 2 served reply dated 17.9.2018 of the legal notice to the counsel of the complainant stating therein that the OP no. 3 and 4 are liable for making payment of the claim if any.
5. It is further submitted that the abovesaid act on the part of OPs in not making payment of the claim to the complainant amounts to deficiency on their part in rendering service to the complainant. The complainant has further prayed that the present complaint may be allowed and the OPs may be directed for making a payment of Rs.6,17,500/- to the complainant as claim alongwith interest and compensation to the tune of Rs.2 lakh. Hence, the present complaint.
6. OP No.1 did not appear in the Forum and as such he was proceeded ex-parte on 10.12.2018.
7. On being served, OP no. 2 appeared through its counsel and resisted the complaint by filing a written statement wherein various preliminary objections with regard to maintainability, cause of action, jurisdiction, locus standi and concealment of true and correct facts etc. have been raised.
8. In reply on merits, it is submitted that the tractor in question sold to the complainant is of high quality and the complainant had taken delivery of the tractor after pre-delivery inspection and after entire satisfaction. It is further submitted that OP no. 2 cannot be held liable for any independent act or omission, if any, committed by OP no. 1, 3 and 4. It is further submitted that the complainant has alleged manufacturing defect in the tractor without having produced any expert opinion or any documentary proof to prove that the tractor in question suffered the problem as alleged. It is also submitted that as per the records of OP no. 1 the tractor owned by the complainant was never carried out as per the terms and conditions of the warranty policy and the tractor was not maintained properly and was used in a negligent manner. It is also submitted that perusal of the complaint does not indicate that the tractor was suffering from any manufacturing defect. The service history of the tractor as shared by the OP no. 1 does not indicate that the complainant had experienced electrical problems in the tractor. The complainant had obtained service of the tractor on 25.12.2017 and on 1.4.2018 and no such problem was pointed by the complainant in the tractor. Moreover, from perusal of the job card it is revealed the tractor was not suffering from any of the problems. The complainant neither approached to the answering OP regarding any manufacturing defect in the tractor in question nor there was any contract between the parties. In case OP no. 3 and 4 is not releasing the insurance amount in that eventuality the OP no. 2 cannot be held liable. It is further submitted that there is no deficiency on the part of OP no. 2 in rendering service to the complainant and as such the present complaint against OP no. 2 is liable to be dismissed being devoid of merits.
9. The OP no. 3 and 4 also resisted the complaint by filing a joint written statement wherein it is submitted that the present complaint is not maintainable against the OP no. 3 and 4 as the complainant had claimed for fire damage in the insured vehicle in question. However, it has not been clarified by the complainant that how the insured vehicle caught fire. Since the fire in the vehicle in question did not occur on account of any external accidental cause as such there is strong reason to believe that the vehicle in question was technically defective and the loss will be covered under manufacturing warranty. Therefore, the answering OPs had sought for technical report from the complainant provided by the manufacturer. However, the said report has not been provided by the complainant. In absence of technical report, it is not possible for the answering OPs to determine the claim admissibility since as per the policy, technical defect, electrical and mechanical failures arising out of accidental cause are excluded.
10. It is further submitted that the OPs duly appointed approved surveyor to assess the loss and the damages in the insured vehicle. The surveyor without prejudice as to the admissibility of the claim, duly assessed the loss to the tune of Rs.5,66,840/-. It is further submitted that the insurance claim of the complainant was duly scrutinized and finally that vehicle in question had caught fire without any external accidental impact as such the chances of technical defect cannot be ruled out and the same is covered under the warranty of manufacturer and for the same OP no. 3 and 4 cannot be held liable.
11. It is further submitted that as per policy terms and conditions, electrical or mechanical failures internal to the vehicle are excluded as provided under Section 1 Provision 2 of the policy. Since in the present case, the tractor caught fire without any external cause as such the loss is excluded from the insurance claim.
12. It is further submitted that there is no deficiency on the part of OP no. 3 and 4 in rendering service to the complainant and as such the present complaint is without any merits and liable to be dismissed.
13. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Exhibit CW1/A and the documents as Annexure C1 to Annexure C-23 and closed the evidence. On the other hand, the learned counsel for the OP no. 2 tendered in evidence affidavit of Surekha Arukar Senior General Manager as Annexure OP2/A and the documents Annexure OP2/1 to Annexure OP2/6. The learned counsel for OPs no. 3 & 4 tendered in evidence affidavit of Omkar S. Utture AR as Annexure R-1 and the documents as Annexure R-2 to Annexure R-8.
14. We have heard the learned counsel for the complainant and have also perused the documents placed on record.
15. It is the case of the complainant that the tractor in question was purchased by him from OP No. 1 on 21.09.2017. It is further the case of the complainant that the said tractor was manufactured by OP No. 2 and the same was got insured by the complainant from OP No. 3 & 4 for a sum assured of Rs.6,17,500/- for the period from 21.09.2017 to 20.09.2018 and a total premium of Rs.14,620/- was paid by the complainant to OP No. 3 & 4 for the above said insurance.
16. It is further the case of the complainant that on 23.04.2018 when his driver namely Kuldeep was working in the fields with the above said tractor then suddenly due to short circuit, the insured tractor caught fire and damaged completely. Regarding the occurrence the complainant informed OP No. 3 & 4 on the same day and on the very next day a DDR bearing no. 18 dated 24.04.2018 was got registered by him in Police Station Narwana regarding the occurrence. Thereafter the Investigation Officer of the concerned Police Station inspected the spot and found the facts of the occurrence is correct.
17. It is further the case of the complainant that he approached to Ops several times for getting the insurance claim and submitted all the relevant documents. However, till date the amount of insurance claim has not been paid to the complainant. Thereafter the OP No. 3 & 4 vide letter dated 28.05.2018 intimated the complainant that the matter be taken up with the manufacturer of the tractor for warranty claim. It is further the case of the complainant that he approached to OP No. 2 for making payment of the claim but all in vain. It is further the case of the complainant that the above said act on the part of Ops amounts to deficiency in rendering service to the complainant.
18. It is the case of the OP No. 2 that it cannot be held liable for any independent act or omission, if any, committed by the OP No. 1, 3 & 4. Moreover the complainant has not produced any opinion of expert or any documentary evidence to prove that the tractor in question was suffering from any problem or was having a manufacturing defect. It is further the case of the OP no. 2 that the tractor was not carried out as per terms and conditions of the warranty and the same was not maintained properly and was used in a negligent manner. The service history of the tractor in question does not indicate that the tractor in question was having electrical problems. From perusal of the job card issued to the complainant it is revealed that the tractor was not suffering from any problem.
19. It is the case of the OP No. 3 & 4 that it has not been clarified by the complainant as to how the insured vehicle caught fire. Since the fire in vehicle in question did not occur on account of any external accidental cause as such the vehicle in question was having a technical defect and the same is covered under the manufacturing warranty. It is further the case of the OP No. 3 & 4 that the complainant was sought for technical report provided by the manufacturer. However, the said report was never provided by the complainant. In absence of the technical report it is not possible to determine cause of fire.
20. In view of the aforesaid discussion, it is not disputed that the OP No. 3 & 4 had issued the insurance of the vehicle in question for a sum of Rs.6,17,500/- and the insurance was valid from 21.09.2017 to 20.09.2018. It is also not disputed that the insured vehicle caught fire on 23.04.2018 i.e. during the validity period of the insurance and on account of the fire the insured vehicle was badly damaged. The above said fact is also evident from DDR bearing no. 18 dated 24.04.2018 Annexure C-4 placed on record. It is also not disputed that the spot/tractor was surveyed by the surveyor appointed by OP No. 3 & 4 and the surveyor vide his survey report has assessed the loss to the tune of Rs.5,66,840/-. The OP No. 3 & 4 has declined the insurance claim to the complainant only on the ground that the fire in the insured vehicle did not occur on account of any external accidental cause and the insured vehicle caught fired on account of technical defect i.e. electrical failure and as such the insured tractor caught fire on account of a manufacturing defect. Therefore the cause of damage to the insured tractor does not fall within the purview of terms and conditions of the insurance policy. However after hearing the arguments advanced by learned counsel for the parties and examining the documents as well as the insurance policy issued to the complainant in the present case we are of the considered opinion that the ground taken by the OP No. 3 & 4 for declining the insurance claim in the present case is not as per the terms and conditions of the insurance policy and the same is not sustainable in the eyes of law. Copy of insurance policy is placed on record as Annexure R-2. As per Sub-section 1 of Section 1 of the insurance policy the company will indemnify the insured against loss or damage to the vehicle insured or its accessories by fire, explosion, self ignition or lightning.
21. In view of the above said provision, in case the insured vehicle is damaged by fire in that eventuality the same is to be indemnified by the insurance company. In the above said provision, it is no where been mentioned that the fire in the insured vehicle must be caused on account of external reasons. The damage in the insured vehicle in the present case is on account of fire and not on account of electrical failure. Therefore the repudiation of the insurance claim of the complainant by OP No. 3 &4 in the present case is not in accordance with the terms and conditions of the insurance policy and as such the same is not sustainable in the eyes of law.
22. In view of the aforesaid discussion, we are of the considered opinion that the complainant has been able to prove deficiency on the part of OP No. 3 & 4 in rendering service to him. The present complaint is accordingly allowed against OP No. 3 & 4. No deficiency has been proved against OP No. 1 & 2.
23. The OP No. 3 & 4 are directed for making a payment of Rs.5,66,840/-(Five Lakh Sixty Six Thousand Eight Hundred and Forty) to the complainant as insurance claim as assessed by the surveyor. The OP No. 3 & 4 are further directed for making a payment of Rs.10,000/- as compensation and litigation charges to the complainant. The present order be complied with within a period of 2 months from the date of receipt of the copy of this order otherwise the amount shall carry an interest at the rate of 8% per annum for the default period. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.24.01.2020
(Jasvinder Singh) (Raghbir Singh)
Member President DCDRF, Fatehabad.
