FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

The instant petition of complaint has been filed by the complainant U/s 12 (1) (a) of CP Act 1986 as amendated updated.

The fact of the case as stated by the complainant in his petition of complaint  in a nutshell is that the complainant as per its resolution dated  28.11.2017 resolved that the complainant will buy a second hand motor car manufactured by Auddi bearing registration No. WB 02AD3033 for the exclusive personal use of director of the company LGW Ltd. and not for any commercial purpose. It is further  stated by the complainant that the said 2^nd hand car was purchased with financial assistance of Kothak  Mahindra Pvt. Ltd. for  a sum of Rs. 24,00,000/-  only. Board resolution of the complainant company dated 28.11.2017 has been marked as annexure “a” with the petition of complaint.

It is further stated by the complainant that prior receiving the car, it has been checked to it complete 300 check points, which is checked by Auddi Kolkata after receiving of dues fees for check up, certify the car as it is fit for use after performing necessary amendment/repairs.  The copies is marked as annexure “b”. Accordingly, the complainant purchased the motor car in reference for Rs. 32,00,000/-  only from M/s Dhanish Pharma Distribution Pvt. Ltd. being the first purchaser of the car the sale certificate dated 14.03.2018 issued by Dhanish Pharma as annexure “C”. The ownership of the vehicle was duly transferred in favour of the complainant LGW Ltd. and the complainant then acquired insurable interest over the said vehicle in reference of the concerned documents in this respect have annexed hereto as D1 and D2 respectively.

It is further case of the complainant that the vehicle in reference was already under the insurance coverage of the OP insurance company. The complainant vide letter dated  22.03.2018 requested the OP insurance company to cancel the insurance existing company standing in the name erstwhile vehicle owner and refund the balance premium if any and further transferee  the no claim bonus in their favour. The copy of letter dated  22.03.2018 is annexed as annexure “E”. So, the complainant obtained a fresh insurance policy from the OP insurance company for a period of 26.03.2018 to 25.03.2019 with various adds on coverage by paying additional premium. The necessary documents of such new insurance policy is annexed here to as annexure “f” and various terms and condition of such new insurance policy is annexed as annexure “g”. The vehicle in reference coverage was covered by the bumper to bumper insurance by OP insurance Company and along with various add on policies and such comprehensive car insurance policy has to be given a liberal interpretation.

It is alleged by the complainant that on or about 14.08.2018 the insured vehicle in question developed congestion causing loss and damages to the complainant insured. Such mechanical congestion/snag was duly reported to the customer care of HDFC Ergo through email which was duly received by such OP and the copy of such communication is annexed as annexure “h”.  Then the complainant took the car in question to the authorised repairer M/s Mohan Motor Distributors Pvt. Ltd. at Arupota, EM Bypass Opp. to Science City, kolkata-7000105 which is proforma OP. Such OP upon inspection of the vehicle assumed the repairing cost of Rs. 6,11,262.00/- only. The copy of such intimation is annexed as annexure “I” .

The complainant further stated that he paid initially Rs.  2,00,000/-  in advance towards the repairing cost of the vehicle to the M/s Mohan Motors Pvt. Ltd. and the relating documents are annexed as annexure “j” . After repairing the vehicle in question the complainant paid the balance amount of Rs. 4,11,262/- to the repairer  M/s Mohan Motors Distribution Pvt. Ltd. The documents has annexed as annexed “K” thereafter the complainant placed the insurance claim to the OP insurance company being claim No. C230018166765 and the OP insurance company has acknowledged  the receipt of the claim vide letter dated 31.07.2018 which is annexed as annexure “l”. The complainant submitted all the required document to the OP insurance company as asked by the insurance company but the insurance company vide its letter dated 31.08.2018 repudiated the bonafide claim of the complainant. The copy of such letter has annexed as annexure “M”.

 It is alleged by the complainant that due to such repudiation, the complainant suffered a loss and damage. Hence, the case is filed by the complainant with a prayer for a principal compensation of Rs.  6,11,262/- only and another compensation of Rs. 50,000/- for harassment,  mental pain and agony along with litigation cost of Rs.  25,000/-.

The OP HDFC Ergo general insurance company has contested the claim application by filing a WV denying all the material allegation levelled against it.

It is the case of the OP that the petition of complainant is not maintainable regarding law or on facts and liable to be dismissed in limini. 

It is further case of the OP that the petition of complaint is bad for non joinder of the necessary  party.

It is stated by the OP that OP insurance company in its WV that admittedly the complainant had taken insurance  policy  (Private Car Comprehensive Policy )  bearing No. 2311 2021 5573 2500 002 in the name LGW Ltd. in respect of the Auddi Car (Q7) bearing registration No. WB 02/AD3033 for the period from 26.03.2018 to 25.03.2019. This covering OP has provided cover subject to specific terms and conditions as peculated the policy, which governed the case. The OP has policy certificate and is termed as exhibit 1 and 2 in this case. It is also admitted fact that the said Auddi car has alleged to have developed congestion. On receipt of the intimation regarding the congestion the answering OP immediately appointed IRDA licence surveyor cum loss assessor to assess the quantum of loss. On scrutiny of available documents, the OP found that at the material item no accidental extreme impact was occurred of the insured car and the concerned document has been brought to as exhibit 3. As per the survey report, which  have been submitted by surveyor has come into the record as exhibit 4. On the basis of the survey report the OP repudiated the complainant vide letter dated  31.08.2018 which is brought in to evidence as exhibit 5 .

 The OP further stated that from the document as annexed by the complainant as annexure  “11”.  It is found that the insured vehicle have mechanical problems since 18.01.2018. It is said by the OP that the complainant without having any justified claim has come before this forum with baseless petition of complaint which is liable to be dismissed with cost.

In view of above facts and circumstances,  it has to be decided by the commission:-

1. Whether the case is maintainable as per law?

2. Is the complainant a consumer?

3 Is the OPs a service provider if so, is there any deficiency in service on the part of the OPs?

4. Is the complainant entitled to get relief as prayed for?

Decision with Reasons.

All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.

On a close scrutiny of the evidence and materials on record and also considering the argument as advanced by both the parties in writing as well as orally, it appears that it is no body’s case that this forum has no jurisdiction to try this case or the case is not maintainable in eye of law. In spite of the same to discharge statutory obligation the Commission/Forum considered the position of law on the basis of materials and evidence on record and held that this Commission/ Forum has got the pecuniary as well as territorial jurisdiction to try the case and the case is well maintainable in eye of law.

It is admitted fact that the complainant had taken an insurance policy in respect of his second hand Auddi Pvt. Car bearing No. 231120215573 2500002, bearing registration No. WB02/AD-3033 for the period from  26.03.2018 to 25.03.2019 from the OP insurance company i.e. HDFC Ergo General insurance Co. considering the annexure “A” to “G”  and exhibit 1 and 2.  It is crystal clear that the complainant LGW Ltd. had taken an insurance policy as mentioned above from the OP Insurance Co. from which it is held by this forum that the complainant is a consumer under the OP Insurance Co. and the OP Insurance Co. is a service provider.

            Now let us see whether there was/is any any sort of deficiency in service on the part of the OP Insurance Co. or not .

It is the case of the complainant that after purchasing the 2^nd hand Auddi car in question from M/s Dhanish Pharma Distribution Pvt.  Ltd .  The complainant insured the car with the OP Insurance Co. on payment of the required policy premium for a period from 26.03.2018 to 25.03.2019 with various add on coverage including engine and gear box protection by paying an additional premium of Rs.  1600/-. The said premium paid by the complainant has been evident from the certificate of insurance cum policy schedule issued by the insurance co./OP  annexed as annexure “A”.  So, from annexure “A”, it is revealed that the complainant paid Rs.  1600/- for engine and gear box protection.

Thereafter, on 14.08.2018 allegedly the insured vehicle had developed congestion causing loss and damages to the insured vehicle and such mechanical congestion/snag was duly reported to the customer care department of the OP by email and which was duly received by the OP/Insurance Co.  The OP /Insurance Co. has admitted the fact in the WV as well as in BNA that they got the intimation  from the complainant by mail in respect of mechanical congestion/snag of the insured vehicle.

It is the case of the complainant that thereafter, the complainant went for repairing the vehicle to the authorised repairer M/s Mohan Motor Distributors Pvt. Ltd.  and got the estimate the repairing of a sum of Rs. 6,11,262/- only. The complainant paid an advance of the sum of Rs. 2 ,00,000/-  to the repairer which was duly received by the repairer on the proper money receipt and after repairing of the 2^nd hand motor car the complainant paid the balance amount of Rs. 4,11,262/- to the repairer which was duly received by the repairer.  The problem arises when the complainant placed the claim with the Insurance Co. for reimbursement of the repairing cost of the insured vehicle in question of Rs. 6,11,262/-. The said claim was acknowledged by the Insurance Co.  and even after submission of all the required documents as asked by the Insurance Co. vide its letter dated 31.08.2018 repudiated the claim of the complainant on thimsy ground that there was no external impact of the insured vehicle. It is the fact that there is no external impact of the insured vehicle but at the time of getting the policy.  The complainant paid Rs.  1600/- for the coverage engine and gear box protection and the problem was found congestion in the engine which was repaired by the repairer.  So, after receiving the amount for Rs. 1600/-  for the purpose  of coverage of engine and gear box protection  be insured co. can not define the claim of the complainant.

In this contest, Ld. Advocate for the OP Co.  argued before this forum on receipt of the intimation of the OP Insurance co. appointed one IRDA licensee surveyor cum loss assessor namely Sashi Goutam Dhar to assess the quantum of loss as shown in annexure 4 in WV.  From the survey report,  it appears that the surveyor reported that most of the damages affected due to near & tear in clear and has some certain period of life for working and there is no relation in the insurance policy coverage because no accidental external damage observed during physical inspection but the vehicle in question was insured the Insurance Co. and handover the  policy to the complainant  after taking the required premium of the same and after  checking the vehicle’s condition.  It is admitted fact that the vehicle was 2^nd hand vehicle so, when the complainant  placed the claim for reimbursement of repairing cost amount to Rs. 6,11,262/- due to congestion of engine which was clearly coverage by the policy on payment of additional charge of Rs. 1600/- at the time of obtained the policy by the complainant.  The OP Insurance co. cannot evade from the responsibility of reimbursement of the repairing cost to the complainant.  But the Op did it and repudiated the legitimate claim of the complainant vide letter dated 31.08.2018 and caused for harassment  mental pain and agony to the complainant.  

            The OP insurance Co. has taken the plea for repudiation of the claim of the complainant as no accidental disorder was there in the vehicle in question but from the documents (annexure F) as shown by the complainant it is crystal clear that the second hand Auddi motor car was insured to the OP Insurance Co. on payment of the required premium along with the coverage of engine  and gear box protection  by paying additional premium of Rs. 1600/- in that case the OP Insurance Co. cannot deprived the complainant from getting reimbursement of the repairing cost amounting to Rs. 6,11,262/- in respect of engine and gear box protection.

Admittedly, the insured vehicle developed the congestion on  14.08.2018 and the OP Insurance Co. what the intimation from the end of the complainant  after the occurrence  and it was also well within the knowledge of OP Insurance Co. got  the congestion of engine caused loss and damage to the insured vehicle in that aspect it is held by this Forum that the complainant has taken every fruitful step as and when the insured vehicle in question developed congestion on 14.08.2018 and caused loss and damage including giving intimation to the Insurance Co. immediately after occurrence and took the vehicle to repair shop and then repair the vehicle the cost of which was of Rs. 6,11,262/-  and placed the claim before the OP insurance co. for reimbursement of the amount. Because the protection of the engine and gear box was also insured to the insurance co. at the time of taking insurance policy by the complainant in respect of the second hand Auddi motor car by paying additional charge of Rs.  1600/- .

Hence, considering all the aspect this commission/Forum is of view that the OP Insurance Co. arbiterally repudiated the claim of the complainant for reimbursement of the repairing cost of the insured vehicle amounting to Rs.  6,11,262/-. They also did it illegally and deliberately which caused deficiency in service and unfair trade practice on the part of the OP. Such conduct of the insurance co. should be not be adored by this commission/forum and the commission opined that the complainant is entitled to get the reimbursement of the repairing cost in respect of the insured 2^nd hand Auddi car amounting to Rs.  6,11,262/-.

            In view of the disunions made above, it is held that the complainant being the consumer could be able to prove his case against the OP service provider beyond all  reasonable doubt and is entitled to get the relief as prayed for.

All the points are thus, decided favourably to the complainant.

The case is properly stamped.  

Hence,

Ordered

That the case be and the same is decreed on contest against the OP HDFC Ergo General Insurance Co. Ltd.  with cost.

The complainant do get the decree as prayed for.

The OP insurance  Co. is directed to pay the principal claim of Rs.  6,11,262/- to the complainant within 45 days from the date of this order.

The OP Insurance co. is further directed to pay a compensation of Rs.  25,000/- for mental and physical harassment of the complainant with interest @ 9 % p.a. on Rs.25,000/- from the date of filing of this case till realisation  along with litigation cost of Rs. 10,000/-.

The OP Insurance Co. Is directed to comply the entire decree within 45 days from the date of this order Id, The complainant will be at liberty to execute the decree as per law.

            Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.