DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 300/2011
Sh. Rajender Kumar
S/o Raghubeer
12- ASalatpur Village,
New Delhi- 110043
….Complainant
Versus
ICICI Lombard
(Insurance Comapany)
S-13, 1st and 2nd Floor,
Green Park Ext., Near Uphar
Cinema, New Delhi
Also at:
Chief General Manager
ICICI Lombard
Zenth House Keshav Rao,
Khade Marg, Mahalaxmi
Mumbai
….Opposite Party
Date of Institution : 26.08.2011
Date of Order : 05.09.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
Complainant has requested to pass an award directing the ICICI Lombard (hereinafter referred to as OP) (i) to pay the insured amount i.e. Rs.1,97,000/-; (ii) to pay Rs.31,000/- as litigation charges alongwith Rs.5,500/- as cost for Legal Notice (iii) to pay a sum of Rs.50,000/- as compensation on account of mental agony etc; (iv) to pay interest @ 18% per annum on the claim amount etc.
Brief facts of the case are as under:-
The Complainant purchased the Vehicle Polo Volkswagon on 23.08.2010 from M/s World Class Automobile. The said vehicle was insured by the OP vide Policy Cover Note No. PL8966243 dated 14.09.2010 and premium of Rs.16,117/- was paid to OP for the period 30.08.2010 to 29.08.2011. The copy of which is annexed as Annexure P-2. On 05.01.2011, the Complainant was driving the said vehicle, the indicator of engine oil started glowing. He made a call to Volkswagon Service Centre - World Class Automobiles. The recovery vehicle towed away the said vehicle to their Service Centre. On inspection, it was informed that engine chamber has developed a crack and resultant to it, the engine oil got drained out and due to same reason and the engine got seized. Copy of said report is annexed as Annexure – P/3.
The estimate for the repair was made to the tune of Rs.2,00,000/- approx. When he went to take delivery of his vehicle on 07.02.2011, then, a bill of Rs.2,10,343/- was raised. The Complainant was asked to pay Rs.1,97,000/-. The Complainant contested the payment on the ground that the defect in question is a material failure/manufacturing defect. Since, the service centre refused to deliver the vehicle, then, he had no option but to make payment under protest. The Complainant contacted the branch office of OP but they did not pay any heed to his request. As such, finding no solution, legal notice was got served upon the OP.
OP, on the other hand, filed written statement inter-alia raising preliminary objections. It is a settled law that the liability of the insurance company is as per Survey Report prepared by IRDA licensed independent Surveyor. In the instant case, the OP appointed Sh. Ravi Kumar Ajmera to assess the loss. The said Surveyor assessed the loss to the tune of Rs.13,488/- as per terms & conditions of the policy. It was also stated that OP had already paid the assessed amount and discharged its liability directly to the World Class Automobiles Pvt. Ltd. vide NEFT mode on 12.02.2011. The amount paid to the Service Centre was towards full and final settlement of present claim. The said amount was accepted by the Complainant in its complaint where it is admitted that the balance amount was already paid by the Complainant himself. Hence, no cause of action subsists as far as OP is concerned. The Complaint is bad due to non-joinder of parties. The Complainant had not made the World Class Automobile as necessary party intentionally and deliberately. It is also contended by OP that payment of the other amount as mentioned by Complainant might have been paid to get the insured vehicle repaired as same is not covered under policy’s term & conditions. Hence, same is outside the purview of insurance contract. The other fault occurred due to self-negligence of the Complainant and is consequential loss. The Survey observed the same in its report and relevant Para is reproduced here for ready reference:-
“Remarks: As oil sump was damaged by hit of stone under-body of the insured vehicle & the insured run the vehicle in damage condition resulting engine of the insured vehicle became seized.”
“As per terms & conditions, the seizure of Engine comes under consequential loss, as insured run the vehicle in damaged condition. Hence, the liability of insurer is limited oil Pan & Carrier Assy .”
Both the parties filed written submissions as well as evidence-in-affidavit. Written Statement is on record so is rejoinder. Oral Arguments were heard and concluded.
This Commission has looked into the entire gamut of issues and material placed on record. Due consideration is given to arguments. As contended by the Complainant that he had to pay Rs.1,97,000/- to the Service Centre i.e World Class Automobile as the OP did not make the entire payment and could disburse the amount of Rs.13,489/-. The same amount was based on the Survey report of independent Surveyor i.e. Ravi Kant Ajmera. The relevant portion of the said report is produced above. Direct loss was assessed by him to extent of “Oil Pan & Carrier Assay” only. He had also based his decision on the terms & conditions of the Policy:-
“The company shall not be liable to make any payment in respect of:
- Consequential losses, depreciation, wear and tear, mechanical or electrical breakdown, failure or breakage………” The copy of the report is annexed at RW-1/2
Further, the OP also mentioned the case of Balendra Gautam Vs Oriental Insurance Co. Ltd. (Revision Petition No.1282 of 2000 decided on 28.02.2002), where the National Commission held that:
“Consequential loss could be said to be the loss occasioned, in this case by the recklessness on the part of driver, to keep driving after the collision resulting in an avoidable mishap to the vehicle. Seizure of the engine is not the direct result of the accident but only an avoidable off short of the collision. This is not covered by the terms of the policy. Both the lower forums have examined this point at length and we find no merit in the arguments advanced before us by the Petitioner. We find no ground to interfere with the well-reasoned order of the both the lower forums.”
However, the Complainant has rebutted the consequential losses theory but no such ratios of Hon’ble Commission/Court were provided.
After considering the facts and narrations mentioned above, this Commission has arrived at this decision that the OP could prove its case with help of ratio of above-mentioned case effectively and on the strength of terms & conditions mentioned above to the extent that no liability arises in its favour.
Hence, the request of the Complainant fails and rejected as he could not lead any credible material to prove its case.
No order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
