BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 5^th day of April 2017

Filed on : 04-12-2013

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.842/2013

Between

Dr. Manzoor M.A., : Complainant

S/o. Abdhul Kareem, (By Adv. Paul Jacob

Opp. Margin Free Shop, Adv. And Notary, Chmkm

CC61/719, KK Road, Market road, Ernakulam-18)

Kaloor, Ernakulam-682 017.

And

1. HDFC Ergo General Insurance : Opposite parties

Company Ltd., 6^th floor, (1^st O.P. By Adv. R. Ajit Kumar

Leela Business Park, Varma)

Andheri Kurla road, Andheri (East),

Mumbai -400 059,

Rep. by its Managing Director.

2. HDFC Ergo General Insurance

Company Ltd., Regional Office,

2^nd floor, Chichago plaza,

Rajaji road, Ernakulam,

Kochi-682 011,

rep. by its Regional Manager

O R D E R

Cherian K. Kuriakose, President.

The complainant is a registered owner of 2010 model Chevorlet Captiva car with Reg. No. KL-07BP6633. The car was insured with the opposite party M/s. HDFC General Insurance Company a period 21-03-2013 to 20-03-2014 on payment of a premium amount of Rs. 29,668/- . The policy assured indemnification for any damage to the above referred vehicle, up to a maximum amount of Rs. 14,00,000/-. On 18-04-2013 at about 3.30 p.m. the car fell into a gutter on Maradu- Kundannur Bridge and on hearing the loud noise the complainant stopped the vehicle and found that there was leakage of oil from beneath the vehicle. The vehicle was towed down to the authorized service centre for repairs. It was found that the under body parts of the vehicle had collided with some boulders lying on the road which caused the breakage of oil zeal resulting drainage of oil. The accident was reported to the Kochi office of the opposite party on 19-04-2013 and a surveyor was deputed to examine the vehicle and to assess the damage. The service centre estimated value of the cost of repairs of the vehicle at Rs. 3,43,652/-. The complainant requested the opposite parties to pay the amount, but the opposite parties refused to indemnify the complainant for the actual loss suffered by him for reason not revealed to the complainant. Despite contacting the opposite parties frequently, the opposite parties evaded the complainant from paying the amount. The complainant thereafter paid the repair costs of Rs. 3,43,762/- to the service centre on 31-05-2013 and got the vehicle released from the service centre. On 15-07-2013 the complainant issued a lawyer notice to the 1^st opposite party demanding reimbursement of the amount with cost of the notice. The opposite party refused the payment and issued a reply notice raising untenable contentions. The insurance policy in respect of the car was current and the driver of the vehicle at the time of accident was having a valid driving license and the vehicle was validly registered. In the above circumstances, the complainant is entitled to get a direction from this Forum against the opposite parties to pay the amounts spent by the complainant to repair the car with costs and compensations. Hence the complaint.

2. Notices were issued to the opposite parties who appeared and contested the matter by filing a version contending inter-alia as follows.

3. The policy of insurance is valid and admitted. However, the policy did not assure indemnification for any damage to the vehicle as alleged. The liability of the opposite parties are limited to the terms and condition subject to exclusions, deductions, depreciation and avoidance of liability etc. stated in the terms and conditions. The car in question had a breakdown on 18-04-2013 and minor damages have been sustained to the vehicle. The oil sump of the car got damaged and cracked due to the hitting of the bottom portion of the car to some harsh substance on the road. The vehicle was driven even after drainage of oil and the damage was caused due to the running of the car after draining out the entire oil from the engine. The damage would be limited only to the oil sump, the damage caused to the engine cannot be said to be due to any accident as such, and such extension of damage or consequential damage are not covered by the policy. The claim was intimated and the surveyor was appointed. The surveyor after inspection had contacted by the complainant and the service centre had assessed the damages which were payable in terms of the policy. The amount recommended by the surveyor was paid. As there was damage to the turbo charger and engine an amount of Rs. 3,00,000/- has been estimated as repair charges. However, these damages were not caused due to the accident as such. The actual loss suffered by the complainant is not automatically reimbursed . The opposite party did not evaded any payment. The complainant did not suffer from any mental agony. Collection of premium automatically fasten the insurer with whatever liability that the insured wants to thrust. The opposite parties have not violated any policy terms and conditions. The damage to the turbo charger and engine had happened to the vehicle due to the driving of the vehicle without engine oil. The vehicle had been given after the damage and before the repair. Therefore condition No. 4 of the policy is applicable and the claim was not payable. There was no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

4. The evidence in this case consists of the oral evidence of PW1 and Exbts. A1 to A6 on the side of the complainant and the opposite parties examined DWs 1 and 2 and marked Exbts. B1 to B4 documents on their behalf.

4. The following issues were settled for consideration

i. Whether the complainant had proved any deficiency in service on the part of the opposite parties?

ii. Is the complainant entitled to compensation as prayed for?

iii. Reliefs and costs.

5. Issue No. i. The complainant Dr. Manzoor was examined as PW1 . He gave evidence that immediately after the vehicle had collided with some object in the gutter, he stopped the vehicle and Exbt. A2 bills were the bills issued from the garage for repairing the engine and turbo charger. He gave evidence that a vehicle could not be driven without oil and if it is done otherwise, that would damage the vehicle. PW1 was aware that the indicator light would blink on the dash board, if the oil in the sump is less than the prescribed limit. According to the opposite party they were liable only to pay Rs. 6,212/- which was the damage caused to the sump only. As per Exbt. A2 bills the complainant had spent Rs. 6,42,762/- on 31-05-2013. On going through the details of Exbt. A2 it is seen that the said bills were pertaining to the damage caused to the engine as a consequence to the hitting of the lower part of the car in a gutter. Obviously it is an accident caused to the car and the damage caused to the car was self damage and not 3^rd party damage. The opposite party has no case that the vehicle was suffering from any other shortcomings. Exbt. A2 bills came out only for the repairs of the car, consequently accident caused by hitting on a hard object in the gutter. The opposite parties did not adduce any evidence to show that they are not liable to make any payment to the complainant other than the external damage caused to the sump. Nothing was brought to our notice as a condition in Exbt. B4 policy to evade the payment on the ground that the opposite parties were not liable to indemnify the damage caused to the engine parts as a consequence to the impact caused on the vehicle due to the accident. Damage to the engine of the vehicle is certainly covered by the insurance policy even without the complainant having taken an additional cover for damage due to hydro-static lock and the insurer, opposite party is liable to reimburse the complainant the loss suffered by him. The issue is found in favour of the complainant.

6. Issue No. ii. It is the case of the complainant that the opposite party had committed deficiency in service by making the complainant to pay the amount on untenable grounds and keeping the claim of the complainant unnecessarily delayed . The accident happened on 18-04-2013 and the accident was reported on the next day itself to the opposite parties. The vehicle was towed down to the authorized workshop immediately after the accident. The claim was made by the complainant before the opposite parties immediately after the incident. The claim was registered on 19-04-2013 . An IRDA approved independent surveyor was appointed to assess the damage. The contention of the opposite parties were that the complainant had driven the vehicle even after the oil sump was empty which had caused damage to the engine. However, the opposite parties` did not prove any such contentions by adducing evidence of experts to that effect. The claim of the complainant was denied on insufficient grounds and that is to be deemed as deficiency in service warranting payment of compensation to the complainant. We quantify the compensation to be awarded to the complainant on considering all the relevant and materials aspects in this case, at Rs. 25,000/-.

7. iii. In the result, we allow the complaint as follows

1. directing the opposite parties to indemnify the complainant with regard to all damages caused to the car in question by reprocessing Exbt. A2 (invoice ) of M/s. G.M. Motors Pvt. Ltd. dated 31-05-2013 and to pay the admissible amount after deducting the depreciation.

2. To pay the complainant a compensation of Rs. 25,000/- within a period of one month from the date of receipt of a copy of this order.

3. To pay costs of this proceedings which we estimate at Rs. 5,000/-

The above said payments shall be made within a period of one month from the date of receipt of a copy of this order and belated payment will entail payment of interest @ 12% p.a.

Pronounced in the open Forum on this the 5^th day of April 2017

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : True copy of Private Car package policy

A2 : Credit Invoice (RWS)

A3 : True copy of lawyer notice

dt. 15-07-2013

A4 : True copy of reply to legal notice

dt. 05-08-2013

A5 : True copy of certificate of registration

A6 : True copy of driving lisence

Opposite party's exhibits:

Exbt. B1 : Motaor (Final) Survey Report

dt. 22-07-2013

B2 : Satisfaction voucher

B3 : Motor Insurance Claim form

B4 : Private Car package policy

Depositions

PW1 : Dr. M.A. Manzoor

PW2 : Austin

DW1 : Balamurali

Copy of order despatched on:

By Post: By Hand: