Punjab

StateCommission

A/209/2017

M/s Puja Apparel - Complainant(s)

Versus

HDFC Ergo General Insurance Company Ltd. - Opp.Party(s)

Rahul Rampul

04 Sep 2017

ORDER

FIRST ADDITIONAL BENCH

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

First Appeal No.209 of 2017

                                                          Date of Institution : 24.03.2017

                                                          Order reserved on: 31.08.2017

                                                          Date of Decision  :  04.09.2017

M/s Puja Apparel, 651/4, Kundanpuri, Civil Lines, Ludhiana through its Partner Sh. Davinder Kumar. 

..…Appellant/complainant

Versus

1. HDFC ERGO General Insurance Company Limited, Surya Tower, 5^th Floor, The Mall, Ludhiana, through its Branch Manager. 
2. M/s India Motors, GT Road, Opposite Military Camp, Ludhiana, through its Manager/authorized officer.    

......Respondents/Opposite parties

 

Appeal against order dated 07.02.2017 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

           Smt. Surinder Pal Kaur, Member

Present:-

          For the appellant              : Sh. Rahul Rampal, Advocate

For respondent No.1      : Sh. Sandeep Suri, Advocate

For respondent No.2      : Ex-parte. 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SURINDER PAL KAUR, MEMBER :-

          Challenge in this appeal by appellant is to order dated 07.02.2017 of District Consumer Disputes Redressal Forum Ludhiana, partly allowing the complaint of appellant of this appeal by directing respondent No.1 herein to get the external damage amount assessed from the surveyor and to pay the same to the appellant within 30 days from the date of receipt of copy of the order.  The District Forum further, awarded Rs.10,000/- as compensation for mental harassment and Rs.5,000/- for litigation expenses to the appellant.  Appellant of this appeal is complainant in the complaint and respondents of this appeal are opposite parties therein and they be referred, as such, hereinafter for the sake of convenience. 

2.                Complainant instituted complaint under Section 12 of Consumer Protection Act 1986 (in short 'Act') against OPs on the averments that his car “Skoda Octavia Rider” bearing registration No.PB-10-BQ-9003 was insured with OP No.1, vide policy No.2311 2000 1300 2004 000, which was operative from 16.06.2014 to 15.06.2015. The insured declared value of the vehicle was Rs.3,06,110/-.  The said vehicle was in private use of the complainant and its partners. On intervening night of 18/19.03.2015, the above-said car, while driven by Shalinder met with an accident and intimation of this accident regarding damage to the vehicle was given to OP No.1 on 19.03.2015. Surveyor was appointed by the OP No.1, who took the photographs of the damaged vehicle and sent them to OP No.1.  The aforesaid damaged car of complainant was dismantled by OP No.2 at the instructions of OP No.1 and surveyor did the survey of the said damaged car and submitted that Motor Survey Report to OP No.1.  Complainant did all the required formalities for taking the car from OP No.2, as OP No.2 was supposed to provide cashless facilities.  Complainant was only to pay depreciation charges, which were worked out at Rs.50,000/-.  Vide letter dated 02.06.2015, his claim was repudiated on flimsy ground that he mis-represented the material facts, but it was pleaded that he had not manipulated any facts. The spot survey was conducted as per instructions of OPs and damaged vehicle of complainant was also dismantled by OP No.2, as per instructions of OP No.1.  So there was no occasion for complainant to misrepresent any material fact.  OP No.1 has illegally repudiated the claim of complainant on false and flimsy grounds only with the intention to avoid its liability.  Complainant approached OPs number of time to consider his genuine claim and to release the claim and also requested the OP No.1 to instruct the OP No.2 to release the car of the complainant on receipt of Rs.50,000/-, the depreciation charges, which were assessed by OP No.2. The Car of the complainant was also lying with the OPs since the date of its accident.  This act of OPs amounted to deficiency in service. Hence, complaint was filed before the District Forum seeking fowling directions:

i) to release the car on receipt of Rs.50,000/-i.e. depreciation charges as  assessed by OPs;

ii) to payRs.1 lac as compensation for mental harassment;

iii) to pay  Rs.33000/- as litigation charges.

3.                Upon notice, OP No.1 appeared and filed its written reply by raising the preliminary objections that complaint of the complainant is not covered under the definition of Consumer Protection Act, as the policy was purchased under the name of company for business purposes exclusively. District Forum has no territorial jurisdiction to try the complaint, as no cause of action has arisen in the jurisdiction of the District Forum.  Complaint filed a frivolous complaint, which deserves to be dismissed with cost.  Complicated question of law and facts have been involved in the present case, which requires voluminous evidence and the same is not possible in summary procedure, therefore, the matter be relegated to Civil Court for its adjudication.  On merits, it was admitted that the car was insured with this OP for a period from 16.06.2014 to 15.06.2015.  The insuranceclaim of the complainant was received and duly registered, vide claim No.C230014137513, and Rahul Sethi Surveyor and Loss Assessor was deputed to assess the loss, who personally inspected the vehicle and took the photographs and submitted his report dated 06.06.2015.  It was observed that accidental   claim was   unrelated to cause of accident.  The claim was repudiated by competent authority, vide letter dated 02.06.2015.  Liability of OPs were limited to the insured perils only.  All other averments made in the complaint were denied.  It prayed for dismissal of the complaint with cost. 

4.                OP No.2 had not appeared before the District Forum, inspite of due service, therefore, was proceeded against ex-parte, vide order dated 23.10.2015. 

5.                The complainant tendered in evidence the affidavit of Sh. Davinder Kumar aged about 52 years s/o Sh. Tilak Raj Partner of complaiant Ex. C-A along with documents Ex.C-1 to C-26 and closed the evidence.  As against it, OP tendered in evidence affidavit of Sh. Pankaj Kumar, Manager Legal-Claims of OP Ex.R-A, along with documents Ex.R-1 to Ex.R-5 and closed the evidence.  On conclusion of evidence and arguments, District Forum Ludhiana, directed OP No.1 to get the external damage amount assessed from the surveyor and pay the same to the complainant within 30 days from the date of receipt of copy of the order.  Further, it awarded Rs.10,000/- as compensation for mental harassment and Rs.5,000/- for litigation expenses to complainant.  Aggrieved by above order of the District Forum Ludhiana, complainant now appellant filed this appeal before this Commission.

6.       From hearing submissions of counsel of  parties and from perusal of record, we find that there is dispute of this point as to whether complainant is entitled to whole amount of damages or not, as prayed for.  It is specific plea of the complainant that internal damage/seizer of the engine was due to accident, but on the other hand, the plea of the OPs is that it was consequential loss, which was not covered under the policy Ex.R-1.  Complainant filed the claim form Ex.R-2,   which reads as under:-

“Near Canal, a truck which was running behind my car wrongly overtook from left side and hit the car from rear left side, in the meantime to save the vehicle, hit into a stone and accident occurred.”

          To prove this fact, complainant placed on record the photographs Ex.C-22 to Ex.C-26, which have depicted that front side of the car struck against stone.  Factum of accident was not denied by the OPs, and only plea is that accidental claim was   unrelated to cause of accident.  Accident means an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury.  We cannot presume that the engine of the vehicle was seized due to negligence of complainant, as the accident happened unintentionally.  It was not the intention of the complainant to strike the car with stone.  Moreover, to run the vehicle, all of the components in the engine need to operate simultaneously. If even one small component is not working properly or is out of sync with the rest, the engine can become damaged and seized.  OPs cannot take the advantage that they are only liable to external damage of the vehicle.  They are liable for both internal and external damage, as it was the direct cause of accident.  In view of our above discussion, we accept the appeal by holding that complainant is entitled to internal damage of the vehicle, as well.  Perusal of surveyor & loss assessor's report Ex.R-3 observed under the head of the Assessment Table  and claimed amount of Rs.45,000/-, which was mentioned as Engine Block, but column of assessed amount was not filled by the surveyor.  But we cannot grant claimed amount in toto, as the car was of 2005 model and some deprecation had already set in it.  Therefore, OPs are directed to pay the amount of Rs.25,000/- in lump sum for seizure of the engine of the insured vehicle. The order of the District Forum stands modified to this effect as District Forum has already directed OP to pay the amount of external damage after assessment by the surveyor.  The appeal of the appellants stands accepted pro tanto.

7.                  Arguments in this appeal were heard on 31.08.2017 and the order was reserve­d. Certified copies of order be communicated to the parties under rules.

8.                The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                 (J.S. KLAR)

                                                    PRESIDING JUDICIAL MEMBER

                                                                                                         

                                                                                                         

September 04, 2017                           (Surinder Pal Kaur)

DB                                                                     MEMBER