CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/57/11

          Date of Institution:-    21.02.2011

          Order Reserved on:- 17.05.2024

                            Date of Decision:-      22.07.2024

IN THE MATTER OF:

Mr.Anand Prasad,

S/o Late Brig M.A.K. Prasad,

R/o Flat No.G-11, S-565, Greater Kailash-II,

New Delhi - 110048

.….. Complainant

VERSUS

1. ICICI Lombard General Insurance Co. Ltd.

B.O.: S-13, 2^nd Floor, Green Park Extension,

Uphar Cinema Complex,

New Delhi

2. M/s Deutsche MotorenPvt. Ltd.

H5/B-1, Mohan Co-Opetative Industrial Estate,

Mathura Road,

New Delhi – 110044.

.…..Opposite Parties

Suresh Kumar Gupta, President

1. The complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter referred to as Act) with the allegations thatOP-1 is an insurance company whereas OP-2 is an authorised dealer for sale and service of BMW cars in Delhi. OP-2 is a Performa OP against which no relief has been claimed.
2. He is owner BMW 52 Series A T Car bearing Registration No.DL3CAY5381 which was purchased from OP-2. The car was insured by OP-1 vide policy no.3001/56533404/00/000 valid from 09.04.2009-08.04.2010. On 27.07.2009, the vehicle was driven by duly qualified and experienced driver Sh. Subodh Kumar Singh. He was returning home from his office and reached at around 8.00PM  at Greater Kailash-II, Alaknanda area where car got stranded in the heavily flooded road. On 28.07.2009,the car was taken to the workshop of OP-2. The necessary insurance claim form was filled to cover the cost of repairs of the car. The OP-1 appointed Sh. G.S. Nayer as surveyor who inspected the car at the workshop of OP-2 though he is not aware of this fact as copy of report was never provided to him. The surveyor must provide the reasons for the assessment as report cannot be arbitrary. OP-1 has intentionally repudiated the part claim by keeping him in dark and disallowed the claim of Rs.3,36,561/-. OP-2 has taken more than two months to repair the car though he has written a letter to expedite the repairs of the car. This has caused physical discomfort and inconvenience to him. OP-2 has raised a bill dated 20.10.2009 of Rs.5,93,622/-. OP-1 has paid only Rs.2,24,270/- against the said invoice though OP-1 was under an obligation to pay the full amount of repair of the car. OP-1 has not only failed to provide the surveyor report but also did not provide reasons in support of its decisions to repudiate the claim to the extent of Rs.3,36,561/-. A discount of Rs.32,791/- on the total invoice was given by OP-2. He has made the balance payment of Rs.3,36,561/- under protest. The claim has been repudiated in an arbitrary and non-justifiable manner. A legal notice dated 19.04.2010 was issued to the OP-1 for the deficiency of service on repudiating the claim to the extent of Rs.3,36,561/-, Hence, this complaint.
3. The OP-1 has filed the reply to the effect that the complaint is bad for non-joinder of Sh. G. S. Nayer, Surveyor. The complaint involves complicated question of facts which cannot decided by this Commission.The complainant be put to strict proof about the heavy rains on 27.07.2009. The water inundation is not covered under the policy but same is allowed by the surveyor. The OP has allowed the claim only for the parts damaged by water inundation. The surveyor has not allowed the claim of any part which got damaged due to the negligence and wrong driving of the complainant and his driver. The surveyor is appointed by IRDA and claim is allowed on the basis of IMT norms and IRDA. The report of surveyor cannot be questioned. The report is provided to party only on demand. The complainant has never demanded the report. The claim is paid as per the report of surveyor. There is no deficiency of service on the part of OP-1.

4. OP-2 has filed the reply to the fact that complainant has no grievance against OP-2 so there is no deficiency on his part as dispute is in between complainant and OP-1.

5. Thecomplainant has filed the rejoinderwherein he has denied the averments made in the written statement and reiterated the stand taken in the complaint.

6. The parties were directed to lead the evidence.

7. The complainant has filed his own affidavit in evidence wherein he has corroborated the version of the compliant and placed reliance on the documents Ex.C1 to C11.

8. The OP-1 has filed the affidavit of Sh.Pankaj Kumar, Manager Legal,in evidence wherein he has corroborated the version of written statement and placed reliance on the documents Ex.R1W1/A i.e. insurance policy, Ex.R1W1/B i.e. surveyor report and Ex.R1W1/C i.e. report of Deutsche MotorenPvt. Ltd.

9. OP-2 has filed the affidavit of Sh. J.S.Hari, Assistant Legal Manager, in evidence wherein he has corroborated the version of written statement.

10. We have heard Ld. Counsel for OP as no one has turned for complainant to address the arguments after giving sufficient time and perused the entire evidence including written submissions on record.

11. The perusal of the file shows that complainant is owner of the car in question which was duly insured with OP-1. On 27.09.09 the complainant was coming back his house from his office and reached at 8.00 pm at GK-2/ Alaknanda area where car got stranded due to heavy rain fall.  The report of heavy rain fall was taken out by the complainant from the website which exhibit C-3. There is no evidence from the side of the OP that there was not heavy down pour on 27.09.2019. 

12. The complainant in the Chauffer driven car got stranded. The engine of the vehicle was affected due to water logged road.

13. The vehicle was taken to workshop of OP-2 for repairs and thereafter intimation was given to OP-1 by filling the claim form exhibit C-5. The OP-1 has appointed the surveyor Mr.G.S. Nair who inspected the vehicle and gave his report dated 25.10.09 to OP-1. 

14. The OP-2 has raised a bill of Rs.5,93,622/- out of which a sum of Rs.2,24,270/- was paid by OP-1. The balance amount under protest was paid by the complainant as apparent from receipt of exhibit C-8.

15. The case is based on report of the surveyor. Ld. Counsel for the OP submitted that report of the surveyor is binding and claim was passed on the basis of surveyor report.

16. Although the assessment of loss by the surveyor is the pre-requisite for the settlement of the claim yet the surveyor report is not the final word and it is not binding upon the insured or insurer.  The reference is taken from New India Assurance Company Ltd. Vs. Pradeep Kumar (2009) 07 SCC 787.

17. In CC No. 359/2013 titled as M/s. Flotex Products Vs. M/s United India Ins. Co. decided by Hon’ble National Consumer Disputes Redressal Commission on 01.05.2023, it was held by the Hon Members that surveyor report is an insurance claim is inconclusive and not binding on the insured or insurer.

18. The argument of the Ld. Counsel that the report of surveyor is conclusive or binding does not hold water in view of the case law referred to above.

19. Car insurance inspection is a process which is carried out to determine the current condition of the car. The primary function of the surveyor to carry out the physical inspection of the damage car. The surveyor report shows that fresh damage was found in the engine which cannot be attributed to the said cause and nature of accident. There is no external impact to the vehicle or the engine from the outside. The damage is due to hydrostatic locking of engine. The effort to start the vehicle in a water logged road is well known source to cause the damage. The liability of the insurer is restrictive upto flushing of the engine and cleaning of vehicle. The obvious course is known to be not to try to start the engine without total cleaning the water from inside the engine and the inspection by an expert technician, thus the extension of the damage of the engine cannot be considered as per condition no. 4 of the policy contract.

20. Condition no. 4 of the policy shows that in the event of any accident or breakdown, the vehicle shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are effected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s work.

21. We have gone through the report of surveyor as well as condition no. 4 of the policy contract. The OP cannot take shelter under condition no.4 once part claim has been allowed on the basis of report of the surveyor.

22. The report of the surveyor is inconclusive. The report does not show that which part of the vehicle has sustained fresh damage. Mere writing the word fresh damage will not serve the purpose.

23. There was heavy rain. The complainant got stranded in the water logged road. One should not expect that the owner of the car should leave the vehicle on the water logged road if the engine has suddenly stopped working. The driver will try to start the vehicle which is a normal course with which no fault can be find on the part of the owner/driver.

24. The surveyor is not a mechanical expert. The surveyor should have taken opinion from the mechanical expert whether the defect in engine was due to water logging on the road or due to any other reason as water in engine can be due to other reason also.

25. The report of surveyor does not show the claim of the repair of the car of particular part is disallowed. The report does not show which part has sustained fresh damage or which part of the car was damaged earlier. The report is silent about the detail reasons of the rejection of full claim and allowing the claim in part.

26. In view of these facts, the report of the surveyor can be said to inconclusive and cannot be relied upon.

27. There is no evidence from the side of the OP, that there was any negligence on the part of the complainant. The report of the surveyor is inconclusive. There is no exact reason for allowing claim in part. The part allowing of the claim without any cogent and convincing reason is nothing but deficiency in service on the part of OP-1.

28. In view of our aforesaid discussion, the complaint of the complainant is allowed to the effect that OP-1 shall pay a sum of Rs.3,36,561/- as a balance amount of the cost of the repairs of the car in question with interest @8% p.a. from the date of filing of the complaint till its realization. The complainant is also entitled for compensation on account of mental harassment and litigation expenses to the tune of Rs.1.5 Lakh.The OP-1 is directed to comply with the order within 45 days from the receipt of the order failing which complainant will be entitled for interest @8% p.a. on the amount of mental harassment and litigation charges i.e. from the date of order till its realization.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 22.07.2024.