KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 172/2021

JUDGMENT DATED: 20.07.2023

(Against the Order in C.C. 166/2014 of CDRC, Kasaragod)

PRESENT:

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

APPELLANT:

Future Generali India Insurance Company Limited, Unit No. 801 & 802, Tower C, 247, Embassy Park, LBS Marg, Vikhroli (West), Mumbai-400 083, Maharashtra.

            (By Advs. KS and K & Narayan R.)

                                                Vs.

RESPONDENTS:

1. Ibrahim C.A., S/o Ayisha, House No. 275, Ward No. 3, Bismillah Manzil, Kandalayam Road, Maniyampara, Post Badoor, Kasaragod-671 231.

2. The Phonenix Cars India Pvt. Ltd., Adkathbail, Post. Adkathbail, Kasaragod-671 121.

3. The Phoenix Cars India Pvt. Ltd., Chala-Ndal Bypass Kannur-691 004.

(By Adv. Threya J. Pillai for R2 & R3)

4. Bharath Vehicle Works Pvt. Ltd., NH-48, Mangalore-Bangalore Highway, Padil, Mangalore-575 007, Karnataka.

5. Volkswagon India Ltd., 3, North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra East, Mumbai-400 051, Maharashtra.

JUDGMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

Appellant was the 5^th opposite party in C.C. No. 166/ 2014 on the file of the District Consumer Disputes Redressal Commission, Kasaragod (will be referred as District Commission in short).  On 26.02.2021 the District Commission had passed an order directing the 5^th opposite party, in the capacity as the Insurance Company with whom the said vehicle was insured, to pay a sum of Rs. 5,53,777/- to the complainant as the value  of the motor car bearing Reg. No.KL-14 N-9003.  Opposite parties 1 to 4 were found jointly and severally liable to pay Rs. 25,000/- as compensation to the complainant.  5^th opposite party was also directed to pay costs of Rs. 5000/- to the complainant.

2.  The case in the complaint is that on 19.09.2013 he had purchased a Polo Diesel Trendlium Car through the first opposite party and took delivery of the car from the show room of the second opposite party.  On 11.06.2014 the engine of the car went off while the complainant was on his way to visit a relative.  The vehicle was taken to the work shop of the second opposite party and got it back on 13.06.2014 after repairs.  On 14.06.2014 while the complainant was passing through the road at Panajee the car hit on a hump on the road and caused oil leakage.  The complainant did not drive the car ahead and the vehicle was taken to the workshop of the third opposite party through the second opposite party.  The surveyor of the insurance company examined the vehicle and reported that the cost of service would be Rs. 20,000/- and the said service is covered by insurance.  But the third opposite party informed the complainant that the engine of the car is damaged and it has to be replaced for which a sum of Rs. 3,00,000/- will be required.  Complainant again contacted the surveyor and conveyed about the need for the proposed replacement of the engine.  But the surveyor had taken a stand that the engine has no defects and the damage if any caused to the vehicle was not due to the accident and hence it will not be covered by the insurance policy.  From 17.06.2014 onwards the car is lying unattended in the workshop of the third opposite party.  The car has got inherent manufacturing defects.  Therefore the complainant would attribute deficiency of service on the part of opposite parties 1 to 4 in supplying him a car having manufacturing defects.

3.  Originally the complaint was filed against opposite parties 1 to 4 with a request for replacement of the engine of the car.  But later the complaint was amended impleading the fifth opposite party, the insurance company alleging deficiency of service in settling the grievance of the complainant.  The prayer for realization of Rs. 5,88,837/- was incorporated as the value of the car.

4.  Opposite parties 1 to 3 remained exparte.  The fourth opposite party filed a version with the following pleadings:

Fourth opposite party is a company dealing in the marketing, sale and servicing of Volkswagen Group Vehicles, through its dealers across India. When sale is effected, a warranty would be issued with specific terms and conditions.  There is no cause of action against the fourth opposite party as there is no deficiency of service attributed against the fourth opposite party.  The District Commission has no territorial jurisdiction as the fourth opposite party situates beyond the limits of the Commission. There are no manufacturing defects to the vehicle.  On 14.06.2014 the car got damaged on account of an accident and since the insurance company had refused to honour the claim to bear the complete costs of the repairs on account of the terms of the insurance policy, the complainant made an attempt to fix the liability on the opposite parties.  The attempt of the complainant is to enrich himself at the cost of these opposite parties for his own wrongs on account of the accidental damages.  The 1^st opposite party is the authorized dealer and the second opposite party is the workshop.  The complainant had reported his car to the workshop on two occasions ie on 29.11.2013 & 03.01.2014 for maintenance.  On 11.06.2014 the complainant had reportedly contacted the second opposite party for breakdown assistance.  The second opposite party provided assistance to the nearest dealer through the towing agency to third opposite party.  On 13.06.2014 when the car was reported to the third opposite party's workshop the meter reading was 40,603 Kilometres.  On 13.06.2014 the job was attended free of cost being covered under warranty.  On 16.06.2014 the car was brought with chassis damage due to an external impact and a job card was opened.  Upon inspection the third opposite party observed that the oil sump located under the body of the car got damaged and metal parts were found inside the oil sump.  So the complainant was apprised for the replacement of oil sump and engine of the car.

Since the car was reported to the third opposite party for accidental damages the warranty policy does not cover such repairs.  It was informed to the complainant that the damage to the underbody and oil sump was caused due to the accident which leads to oil starvation thereby resulting in damage of the engine.  The complainant was also requested to contact the Insurance Company as the damages were caused in an accident.

5.  It was also clarified that when external damage occurs to the oil sump it will cause oil leakage and when the oil level declines the engine oil pressure comes down and a red warning light comes on.  In such situations the driver of the car is bound to stop the car and seek assistance from the service centre.  The complainant had utilized the service of the third opposite party after misusing the car consequent to the accident.  Thus the damage is called as consequential damages which could have been avoided and that is why the insurance Company had rejected the claim. If the vehicle is run even after the red warning light on for few kilometres without engine oil it may damage the engine which is also a clear violation of the warranty conditions.  The entire pleading in the complaint were refuted by the opposite party and sought for dismissal of the complaint. 

6.  Initially the fifth opposite party entered appearance and filed a version that the vehicle in question was not insured at the time of accident and also expressed the inability to identify the vehicle for want of the details of insurance policy.  The complainant did not furnish the Registration Number of the vehicle which according to this respondent was a suspicious circumstance in respect of the genuineness of the allegation narrated in the complaint.

7.  After filing this version the complainant filed I.A. No 24/2017 before the District Commission and obtained a direction to the fifth opposite party to cause production of the Insurance Policy.  In this petition there is a specific direction for the fifth opposite party to cause production of the insurance policy and the entire office file in respect of survey report prepared which bears estimation of the loss of the car in question.  When the complainant filed the cover note of the policy, wisdom arose to the fifth opposite party and thereafter the fifth opposite party filed an additional version by admitting the insurance coverage of the vehicle.  In the additional version it is conceded by the fifth opposite party that the complainant had claimed own damages of this car in respect of an accident on 26.09.2013 and the said claim was settled by the Company.  Thereafter the complainant never informed the fifth opposite party in respect of the alleged incidents on 11.06.2014 and 14.06.2014 and that the opposite party never deputed any surveyor to inspect the vehicle.  It is also denied that the surveyor had assessed the cost of repair as Rs. 20,000/-.  It is again denied that the complainant sent legal notice on 21.06.2014.  The complainant never preferred any claim so far.  It is also pleaded that the allegations in the complaint reveals that the vehicle hit on a hump and the oil sump got cracked.  In such situation the driver of the car has a responsibility to stop the car.  If without resorting to such a step he proceeds ahead with the vehicle it may cause damage to the engine.  In the event of any accident, the vehicle shall not be left unattended without any precautions being taken to prevent further damage and if the vehicle is driven before effecting necessary repairs any extension of damages or any further damage to the vehicle shall be entirely on the risk of the insured.

8.  The evidence consists of the testimony of the complainant as PW1.  Exts, A1 to A3 were marked on the side of the complainant.  Ext. B1 was marked on the side of the fourth opposite party.  The report of the commissioner is marked as Ext. C1.

          9.  The appellant had assailed the order of the District Commission on the following reasons:

The complainant did not raise any claim before the fifth opposite party.  Since no claim has been filed no deficiency of service could be attributed to the appellant.  The District Commission went wrong in reaching a conclusion that the appellant shall pay the amount assessed only on the reason that the vehicle was insured.  The expert Commissioner went wrong in making an observation that the appellant is bound to pay the net loss caused to the vehicle as the same was insured with the appellant.  The appellant placed reliance upon the ruling reported in SCC Online NDRC 493 in “National Consumer Disputes Redressal Commission in Wilson Home Appliances Vs New India Assurance” and argued that the investigation and survey by an insurance company are fundamental in determining the amount payable to the insured.  An insurance company is duty bound to appoint its surveyor in accordance with the provisions of the Insurance Act.  Section 12(a) of the Policy stipulates that “The company shall not be liable to make any payment in respect of the consequential loss, depreciation, wear and tear, mechanical and electrical break down failures and breakages” which fact was not considered by the District Commission.  Appellant would seek for setting aside the order of the District Commission.

10.  Heard the counsel for the appellant and the first respondent/Complainant who appeared in person and the counsel for the second and third respondent. We have perused the records received from the District Commission.

11.  The appellant would contend that the complainant is not entitled to get any relief on the sole reason that he never initiated any steps to get the vehicle inspected by an Insurance Surveyor for assessing the damages so as to enable the Insurance Company to process the claim.  It is also contended that there are no materials to hold that the complainant had raised any claim to the Insurance Company.

12.  The complainant, on the other hand, contended that immediately after the accident the vehicle was taken to the workshop of the third opposite party from where the Insurance Surveyor after inspecting the vehicle had reported that the cost of the service is only Rs. 20,000/- but the third opposite party would charge Rs. 3,00,000/- as the repair charges.  On account of the stand taken by the Insurance Surveyor the complainant was constrained to proceed against the dealer and the Manufacturer of the car for manufacturing defects.  The complainant had tendered evidence and withstood the cross examination of the lawyer for the appellant. In cross examination the counsel for the appellant was attributing negligence on the part of the complainant as the cause of the accident.

13.  Now the appellant would attribute failure on the part of the appellant in not preferring the claim at the appropriate stage.  The stand taken by the appellant before the District Commission is significant.  The appellant was impleaded on the basis of the contention raised by the third opposite party that the insurance Company rejected the claim and hence the complainant had initiated proceedings against other opposite parties.  So from the materials on record it could be seen that the Insurance Surveyor had inspected the vehicle and limited the liability of insurance as Rs. 20,000/-.

14.  If this be the actual state of affairs what prevented the appellant from causing production of the same to the expert commissioner who was deputed by the District Commission is not known.  The appellant took a stand that the expert commissioner did not inform him about the inspection.  On perusal of the records received from the District Commission it could be seen that the expert commissioner had issued notice to the appellant by Registered post and the postal receipts does find a place in page number 308 (seen indexed and serially numbered in the records from the District Commission).  When a postal intimation is issued in the correct address it is presumed that the addressee has promptly received the same.  So the stand taken by the appellant that no notice was issued by the expert commissioner does not appear to be correct.  From the beginning of the proceedings the appellant was evading from responsibility.  On appearance on 16.02.2016 the appellant had filed version that the vehicle involved in this case was not insured with the appellant. Thereafter the fifth opposite party on 17.10.2019 filed additional version before the District Commission by admitting the insurance Policy.  In this version also it was conceded by the appellant that another claim in respect of the very same vehicle was honoured by the appellant.  Even then at the initial stage the appellant had deliberately denied the eligible insurance coverage of the vehicle.  This conduct indicates the malafides of the appellant in depriving the complainant from realizing the eligible amount in view of the insurance policy of the vehicle.  By taking in to account these circumstances it appears that the facts narrated by the complainant in the complaint as well as in the evidence that the insurance surveyor has limited Rs. 20,000/- as the amount eligible as repair charges is true.  Though such a stand was taken at the initial stage, when the matter reached before the District Commission the appellant took a dishonest stand by denying the insurance coverage and after elapsing a period of three years it is strange to see that the appellant filed additional version by admitting the insurance coverage and thereafter at the appellate stage the complainant is being blamed for the alleged delay in making a claim.  The appellant had withheld the insurance surveyor’s report with a view to deprive the complainant from collecting evidence at the time of inspection by the expert commissioner.  The complainant had filed an application before the District Commission for causing production of the surveyor’s report to which a reply is seen filed to the effect that the vehicle was not inspected by the insurance surveyor.  An ordinary litigant may not be able to conceive the cunningness on the part of the insurance company and hence he was constrained to file a complaint against the manufacturer and dealer of the car by claiming replacement of the engine.  Admittedly the vehicle got involved in an accident and the evidence on record would show that the complainant had promptly reported that fact to the Insurance Company whose surveyor had arbitrarily fixed the amount eligible to the complainant as Rs. 20,000/- and now they are withholding those records and raising false contention that this vehicle was not insured with the appellant.  After withholding the surveyor’s report, raising a contention that the complainant is not entitled to get any amount for want of a report by the surveyor is a classic example of deceiving the consumer who had availed an insurance policy to cover his loss, if any damage is caused to the vehicle. Deficiency of service on the side of the appellant stands established.  The company had adopted a cunning method with a view to deprive its consumer from availing the eligible amount covered by the insurance policy.

15.  On consideration of the above discussed facts and circumstances we have no hesitation to reach at a conclusion that there is gross deficiency of service on the part of the appellant and hence the appeal fails and it is only to be dismissed.

In the result, the appeal is dismissed.  The appellant shall pay Rs. 10,000/- as costs to the first respondent/complainant.  The complainant is also allowed to receive the statutory deposit made by the appellant and the amount of Rs. 2,50,000/- deposited at the District Commission, on proper acknowledgement.  The appellant shall pay the balance amount covered by the order of the District Commission within thirty days from today.

AJITH KUMAR D. : JUDICIAL MEMBER

jb                                                                     BEENA KUMARY. A         : MEMBER