Chandigarh

StateCommission

A/99/2015

Bharti Axa General Insurance Company Ltd. - Complainant(s)

Versus

Haryana Tourism Corporatin Ltd. - Opp.Party(s)

Gaurav Bhardwaj,Adv.

08 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	99 of 2015
Date of Institution	:	05.05.2015
Date of Decision	:	08.05.2015

 

1. Bharti AXA General Insurance Company Limited, having its Registered Office at 1^st  Floor, The Ferns Icon, Survey No.28, Daddanekundi, Off Outer Ring Road, Bangalore-560037.
2. Bharti Axa General Insurance Company Limited, JMD, Regent Arcade, Shop No.13-14-15, 2^nd  Floor, MG Road, Gurgaon-122001.
3. Bharti Axa General Insurance Company Limited, SCO 350-352, 1st Floor, Sector 34-A, Chandigarh.

All through their Authorized Signatory Tusharanshu Walia available at Regional Office Chandigrh.

……Appellants/Opposite Parties No.4 to 6.

V e r s u s

1. Haryana Tourism Corporation Limited, S.C.O. No.17-18-19, Sector 17-B, Chandigarh through Sh. Ramesh Chander Sharma, Assistant Technical Officer.

              ....Respondent No.1/Complainant.

2. M/s Hyundai Motor India Limited, 5th  and 6th Floor, Corporate One-Baani Building, Plot No.5, Commercial Centre, Jasola, New Delhi-110076.
3. M/s Berkeley Hyundai, Plot No.87, Industrial Area, Phase-I, Panchkula.
4. M/s Deep Hyundai, K-1, Udyog Nagar, Industrial Area, Peeragarhi Crossing, Rohtak Road, New Delhi.

....Respondents No.2 to 4/Opposite Parties No.1 to 3

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh. Gaurav Bhardwaj, Advocate for the appellants.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 24.03.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly accepted the complaint, filed by the complainant (now respondent No.1) and directed Opposite Parties No.4 to 6 (now appellants), jointly and severally, as under:-

“i)    OPs 4 to 6 shall reconsider the claim of the complainant (for an amount of Rs.3,81,165/-) and shall make the necessary deductions in respect of the depreciation amount of the various items, in accordance with law, and to make the payment of the balance amount to the complainant. It is made clear that the amount of Rs.50,592/- shall be adjusted in that payment. 

ii)    OPs 4 to 6 shall pay an amount of     Rs.20,000/- to the complainant on     account of deficiency in service.

3. OPs 4 to 6 shall pay an amount of Rs.10,000/- to the complainant towards costs of litigation.

This order shall be complied with by OPs 4 to 6 within two months from the date of receipt of its certified copy; failing which OPs 4 to 6 shall pay the amounts at Sr.No.(i) & (ii) above with interest @ 12% per annum from the date of filing of the present complaint, till realization by the complainant, besides payment of litigation costs.”

2.        However, the complaint against Opposite Parties No.1 to 3 (now respondents No.2 to 4), was dismissed, with no order as to costs, by the District Forum.
3.        The facts, in brief, are that, on 24.5.2013, the complainant purchased one Sonata GDi (MT) 6-Air Bags vehicle, from Opposite Party No.2, for a sum of Rs.18,04,047/-, for the use of its Chairman. The said vehicle was got insured, under a comprehensive Policy, with Opposite Parties No. 4 to 6, for the period from 24.05.2013 to 23.05.2014, for the Insured Declared Value to the tune of Rs.17,13,845/-, on payment of premium of Rs.42,541/-.  It was stated that, on 18.08.2013, the said vehicle was parked, in the parking area of Tilyar Lake Complex, Rohtak and there was heavy rain.  On 19.08.2013, when Sh. Anil Kumar, driver of the vehicle, went near the same, he found it (vehicle) in the water upto engine level, due to heavy rain. As the water drained out after some time, the driver tried to start the vehicle. The vehicle started once but stopped within a few seconds and thereafter never started. It was further stated that, as such, the vehicle, in question, was towed by Opposite Party No.3  to the workshop, for repairs, as per the terms and conditions of the Insurance Policy.  The estimate of repairs of the vehicle to the tune of Rs.3,74,680/- and suspected parts (elect.) after engine assembling, in the sum of Rs.1,09,353/- was prepared.
4.        It was further stated that since the vehicle,  in question, was comprehensively insured, as such, the complainant submitted the claim form to Opposite Party No.4.  It was further stated that, an e-mail was sent by the Surveyor and Loss Assessor of the Insurance Company, to the effect that the vehicle, in question was  a case of “hydrostatic lock”. However, the complainant was shocked to receive an email dated 01.9.2013 from the Works Manager of Opposite Party No.3, that the representatives of Opposite Parties No. 4 to 6, had sent an e-mail  informing it (Opposite Party No.3) that its (complainant) case was of “no claim” because the vehicle, in question, was not got insured for hydrostatic locking.  It was further stated that the Survey was got done on 26.08.2013, after about 7 days, in the absence of the complainant. 
5.        It was further stated that, on 19.09.2013,
   Opposite Party No.3, communicated to the complainant that the vehicle had been repaired and was ready for delivery, on payment of Rs.3,81,165/-.  It was further stated that on 21.09.2013, Opposite Party No.3 informed the complainant that the Insurance Company had finalized the claim for Rs.50,592/-, as full and final settlement of loss. It was further stated that on 24.09.2013, an email was sent by the complainant, to Opposite Parties No.3 & 4, that it was not satisfied with the claim settled by them, in the sum of Rs.50,592/- and that it (complainant) had taken the delivery of the vehicle, in question, under protest. It was further stated that, as per the letter dated 30.10.2013 Annexure C-22, received from the Senior Mechanical Engineer, Govt. Central Workshop, Haryana, water had gone into the engine of the vehicle, due to the fact that its seal was not water proof.  It was further stated that the vehicle had been driven only for 13046 kms., at the time, when the defect occurred and was also covered under 3 years warranty.  It was further stated that Opposite Parties No.4 to 6 could not escape their liability by simply stating that damage due to hydrostatic lock was not covered under the Insurance Policy. It was further stated that the complainant approached the Opposite Parties, through every possible means, for redressal of its grievance, by paying the remaining claim amount, but to no avail.
6.        It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to  reimburse the claim amount of Rs.3,81,165/-, spent by it, on the repair of the vehicle, in question, alongwith interest @12% p.a.; pay compensation, to the tune of Rs.5 lacs, for causing inconvenience and harassment; and cost of litigation.
7.        Opposite Party No.1, in its written version, pleaded that the complainant did not fall within the definition of a consumer. It was stated that the vehicle, in question, was taken to Opposite Party No.3, on 24.08.2013, for accidental repair work, when it had covered 11810 Kms. It was further stated that since the accidental repair work was not covered under the warranty, as such, the same (work) was to be done on chargeable basis. It was further stated that the complainant was facing problem due to its own negligence, and not due to any defect, in the vehicle. It was denied that Opposite Party No.1 ever claimed that the car manufactured by it was water proof. It was further stated that the driver of the complainant, at the relevant time, started the vehicle, in question, without properly draining out water, resulting in hydrostatic lock, which defect was not covered under the warranty Policy.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8.        Opposite Party No.2, in its written version, pleaded that the complainant did not fall within the definition of a consumer. It was admitted that on 24.5.2013, the complainant purchased one Sonata GDi (MT) 6-Air Bags vehicle, from Opposite Party No.2, for a sum of Rs.18,04,047/-. It was stated that the damage due to hydrostatic lock was not covered under the Insurance Policy. It was denied that Opposite Party No.2 ever projected or assured that the Insurance Policy of Opposite Parties No.4 to 6, being comprehensive, covered all the risks, including the damage due to hydrostatic lock. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2 nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9.        Opposite Party No.3, in its written version, stated that the repair work of the vehicle, in question, was started, after taking consent of the complainant. It was further stated that the complainant was updated with regard to the repair works, on regular basis.  It was further stated that Opposite Party No.3, had already given the estimated cost of repairs, to be borne by the complainant, whereafter the repair work was carried out, in the said vehicle.  It was further stated that the repair work of the engine of the vehicle, in question, was done at odometer reading 11810 Kms., which was completed on 19.09.2013.  It was further stated that it was evident from the vehicle repair history, that the same had reported six times, thereafter, at N2225 & N-7201, and had never reported any problem, in the performance of its engine. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
10.         Opposite Parties No.4 to 6, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer. It was admitted that the vehicle, in question, was got insured from them, by the complainant, for the period from 24.05.2013 to 23.05.2014, on payment of premium, as mentioned in the complaint. It was stated that, in case, the engine of vehicle, hydrolocked while idling or under low pressure conditions, the same (engine) would stop suddenly with no immediate damage. It was further stated that hydrostatic lock occurred, on various conditions of liquid introduced to the engine of the vehicle, which could possibly could be restarted and dried out, with normal combustion heat, or flushing out corrupted operating fluids and replacing damaged gaskets. It was further stated that, in the present case, the driver of the complainant repeatedly tried to start the vehicle, in question, knowing the fact that the water had reached upto engine level, which extended the loss of the engine. It was further stated that, as such, there was violation of condition No.4 of the Policy, on the part of the complainant. It was further stated that Opposite Parties No.4 to 6, had allowed the claim of the complainant, to the tune of Rs.50,591.50Ps., in accordance with the terms and conditions of the Insurance Policy. It was further stated that, such amount of loss was assessed by the Surveyor and Loss Assessor. It was further stated that the complainant was requested to submit the requisite documents, vide letters dated 31.08.2013, 26.09.2013, 07.10.2013 and 21.01.2013 for processing the claim.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.4 to 6, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11.        In the rejoinder, filed by the complainant, it reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
12.        The Parties led evidence, in support of their case.
13.        After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order. 
14.        Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.4 to 6.
15.        We have heard the Counsel for the appellants, and, have gone through the evidence, and record of the case, carefully. 
16.        The Counsel for the appellants, submitted that, no doubt, the vehicle, in question was got insured by the complainant from Opposite Parties No.4 to 6, under a comprehensive Policy, for the period from 24.05.2013 to 23.05.2014, for the Insured Declared Value to the tune of Rs.17,13,845/-, on payment of premium of Rs.42,541/-. He further submitted that the District Forum failed to appreciate the fact that according to the complainant, on 19.08.2013, when Sh. Anil Kumar, driver of the vehicle, went near the vehicle, he found the same in the water, upto engine level due to heavy rain. He further submitted that, as per the admission of the driver of the complainant, when the water drained out after sometime, he (driver) tried to start the vehicle, which started once but stopped within a few seconds, and thereafter the same (vehicle) never started. He further submitted that the driver of the vehicle of the complainant tried again and again to start the vehicle, which further caused loss to its engine. He further submitted that, as per the terms and conditions of the Insurance Policy, damage to the engine and any other parts was an extension of loss and it was not covered under the same (Policy), as hydrostatic locking cover was provided by the appellants, as an add-on cover, for which extra premium was payable, which was not availed of by the insured.  He further submitted that the driver of the vehicle, in question, did not take the reasonable precautions, as per the terms and conditions of the Policy, and, as such, full claim was not payable. He further submitted that the report of the Surveyor, who inspected the vehicle, came to the conclusion that loss to the engine, occurred on account of cranking the same, again and again, and, as such, the insured was entitled to the partial claim. He further submitted that the District Forum was wrong, in not accepting the report of the Surveyor. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
17.        After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Admittedly, the vehicle, in question, was got insured by the complainant, under a comprehensive Policy, from Opposite Parties No. 4 to 6, for the period from 24.05.2013 to 23.05.2014, for the Insured Declared Value to the tune of Rs.17,13,845/-, on payment of premium of Rs.42,541/-. According to the complainant, on 18.08.2013, there was heavy rain, when the vehicle, in question, was parked in the parking area of Tilyar Lake Complex, Rohtak. On 19.08.2013, when Sh. Anil Kumar, driver of the vehicle, went near it (vehicle), he found the same in the water, upto engine level due to heavy rain, and when the water drained out after sometime, he (driver) tried to start the same (vehicle), which started once but stopped within a few seconds. Thereafter, the vehicle never started, as a result whereof, it was towed by Opposite Party No.3, for repairs, as per the terms and conditions of the Insurance Policy.  The complainant had to incur expenditure of Rs.3,81,165/-, for getting the vehicle repaired. The complainant specifically stated in the rejoinder that due precautions were taken and the vehicle was not started again and again after the rain water drained out. Opposite Parties No.4 to 6, then sent an email dated 01.09.2013 Annexure C-9, to the complainant that it was a case of no claim, as the vehicle was not insured for hydrostatic locking. The claim of Rs.50,592/- was only passed and the remaining claim was rejected.
18.        No doubt, Opposite Parties No.4 to 6, in their joint written version, in clear-cut terms, stated that no reasonable precautions were taken by the driver of the complainant, as per the terms and conditions of the Insurance Policy. However, this version of Opposite Parties No.4 to 6, is not supported by any cogent and convincing evidence. Opposite Parties No.4 to 6, submitted the affidavit of Ms. Akansha Kapoor, their Law Officer, in support of their version, who did not have any technical knowledge with regard to the vehicles. Her evidence, therefore, could not be said to be the evidence of an expert. The version of the complainant, right from the very beginning was that the driver only started the vehicle once, but it did not start, and, thereafter, he did not start the same, again and again. Under these circumstances, by no stretch of imagination, it could be said that the driver of the vehicle, in question, started the vehicle, again and again, as a result whereof, the water entered into it, causing further loss to the engine. Hydrostatic locking, if any took place due to ingestion of water, through intake system, due to heavy rain water, which had collected. There was, therefore, no negligence, on the part of the driver of the vehicle, in question. Had any cogent and convincing evidence, been produced by Opposite Parties No.4 to 6, that the driver of the vehicle, tried to start the vehicle, again and again, as a result whereof, there was hydrostatic locking, the matter would have been different. Thus, the District Forum was right, in holding that hydrostatic locking did not occur, on account of the alleged cranking of the engine again and again, by the driver of the vehicle. Under these circumstances, the claim of Opposite Parties No.4 to 6, that no reasonable precautions were taken by the driver of the complainant, is without any basis. The District Forum was also right, in holding that the complainant was entitled to the entire claim and not partial one. The District Forum was also right, in holding that Opposite Parties No.4 to 6, were deficient, in declining the claim of the complainant partially.
19.        No doubt, the report Annexure OP-4/4 of the Surveyor, namely Mr. Mukesh Setia, was produced by Opposite Parties No.4 to 6. It may be stated here, that this report was not supported by the affidavit of the said Surveyor. There is nothing, in the report of the Surveyor, as to which scientific method he applied for coming to the conclusion that the driver of the vehicle tried to start the vehicle, again and again, resulting into cranking of the engine, which extended the loss. Mere observations made by the Surveyor, in his report, without concrete evidence to support the same, cannot be taken into consideration. The report of the Surveyor is merely based on presumptions and assumptions. Since the vehicle, in question, was comprehensively got insured by the complainant, any loss suffered in the normal course was claimable by it. Opposite Parties No.4 to 6, therefore could not escape their liability by merely saying that damage to the vehicle was caused due to hydrostatic locking  and was not covered under the Insurance Policy. It is settled principle of law that the report of the Surveyor is not the last and final word. In New India Assurance Company Limited  Vs. Pradeep Kumar, Civil Appeal No. 3253 of 2002, decided on April 9, 2009, the provisions of Section 64 UM (2) in the Insurance Act, 1938, were considered by the Hon'ble Supreme Court of India, wherein, it was ultimately held as under:-

 “The object of the aforesaid provision is that where the claim in respect of loss required to be paid by the insurer is Rs.20,000/- or more, the loss must first be assessed by an approved surveyor ( or loss assessor) before it is admitted for payment or settlement by the insurer. Proviso appended thereto, however, makes it clear that insurer may settle the claim for the loss suffered by insured at any amount or pay to the insured any amount different from the amount assessed by the approved surveyor (or loss assessor). In other words although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of twenty thousand rupees or more by insurer, but surveyor's report is not the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyor's report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured”.

20.        From the principle of law, laid down, in the aforesaid case, it is evident that the report of the Surveyor is not the last and final word. It is not that sacrosanct that it cannot be departed from. It is not conclusive. The approved Surveyor's report may be the basis or foundation for settlement of a claim, by the insurer, in respect of the loss suffered by the insured, but surely such report is neither binding upon the insurer nor insured. In the instant case, the report of the Surveyor, being based on presumptions and assumptions, and even not supported by his own affidavit, was rightly not relied upon by the District Forum. The District Forum was right in holding that Opposite Parties No.4 to 6, were liable to indemnify the complainant for the entire loss. The District Forum was also right, in holding that by making hefty deductions from the amount of Rs.3,81,165/-, spent by the complainant, on the repair of the vehicle, on the basis of the report of the Surveyor, which is based on presumptions and assumptions, and not supported by his affidavit, Opposite Parties No.4 to 6, were not only deficient, in rendering service, but also indulged into unfair trade practice.
21.        No other point, was urged, by the Counsel for the appellants.
22.        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.
23.        For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
24.        Certified copies of this order, be sent to the parties, free of charge.
25.        The file be consigned to Record Room, after completion.

Pronounced.

08.05.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg