| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
C.C. No. 585 of 07-12-2012 Decided on 17-04-2013
Neelam Khurana aged about 52 years W/o Jagdish Rai Khurana R/o # 57, Mukharjee Nagar, Shri Ganganagar. ........Complainant Versus
ICICI Lombard General Insurance Co. Ltd., Sharma Complex, Ist Floor, Power House Road, Bathinda through its Manager/Incharge. Krishna Auto Sales, Near Thermal Plant, Malout Road, Bathinda, through its Owner/Prop/Director Manager. .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President. Sh.Amarjeet Paul, Member. Smt.Sukhwinder Kaur, Member.
For the Complainant : Sh. Naresh Garg, counsel for the complainant. Counsel for opposite parties : Sh. Vinod Garg, counsel for opposite party No. 1. Sh. B S Dhalla, counsel for opposite party No. 2.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT
The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that her new car Skoda Laura CRDI FL/ABN MT. 20 bearing registration No. PB-30J-2745, Model 02/2012 purchased from opposite party No. 2 comprehensively insured with opposite party No. 1 vide cover note No. P09859605 for the period from 30-03-2012 to 29-03-2013, met with an an accident at 6.30 a.m. on 26-08-2012 when her son namely Gaurav Khurana was going to Kalian Road in Shriganga Nagar. One stray animal came in front of the car and the car suddenly struck with the stray animal and thereafter with the edge of the road beamer from the lower front side. In the said accident, the front portion of the car was extensively damaged Gaurav Khurana, son of the complainant got injured. After the accident, the engine of the vehicle was in start condition and indication of engine damage was shown in the meter. After the accident, Gaurav Khurana was unconscious, so he was taken to Shri Ram Hospital, Shriganga Nagar 4-5 Kms from the spot, in the same car. On 26-08-2012, Mohit Khurana another son of the complainant called at Toll Free number of the manufacturer of the car to intimate the loss and they provided mobile number of Mr. Rajesh, Manager of opposite party No. 2 and asked him to call him on 27-8-2012 and shifted the car being Sunday on 26-08-2012. On 27-8-2012, the son of the complainant called Mr. Rajesh, who assured that they will provide every service as the said car is insured under cashless insurance with opposite party No. 1 through them. The car was shifted with opposite party No. 2 on 28-8-2012 through Mohit Khurana as Gaurav Khurana was injured. When the car in question was being shifted to opposite party No. 2 for repair by towing the same, the vehicle with which it was being towed, started giving some trouble near Malout, so Mohit Khurana, son of the complainant called the said Manager of opposite party No. 2 and he sent recovery van for towing the car from Malout to Bathinda. Thereafter the opposite party No. 2 intimated to opposite party No. 2 under their corporate agency agreement, who appointed Mr. Dinesh Goyal, surveyor, for the assessment of the loss and opposite party No. 2 issued the estimates in the presence of said surveyor. The original papers i.e. registration certificate, driving licence and insurance certificate etc., of the car were duly verified by the Manager of opposite party No. 2 and the said surveyor. Thereafter the opposite party No. 2 started demanding repair charges against cashless insurance on the ground that engine is not covered in the insurance. The complainant alleged that she told the opposite party No. 2 and the surveyor that the car was shifted with the help of the vehicle and under directions of Manager of opposite party No. 2 and no light or indication was shown in the car regarding the defective engine and if loss occurred to the engine, the same is due to accident. The complainant alleged that the opposite parties did not start the repair of the vehicle and having no alternative, she paid Rs. 4,29,890/- to opposite party No. 2 in parts and only then, the opposite party Nos. 1& 2 delivered the car duly repaired to the complainant on 31-10-2012. The complainant further alleged that loss of the engine was not a consequential loss as the consequential loss is such which takes place without any accident. In the insurance cover note or the certificate there is nothing mentioned that the claim is not payable if the engine was seized in a accident and it was run by its driver. In support of his allegations, the complainant has mentioned various authorities in her complainant on different aspect of matters. The complainant further alleged that the car in question is a new one having run upto 9399 Kms and engine of car was damaged in the accident, so it was the duty of opposite parties to repair the same either under warranty or under cashless insurance scheme, but they did not do so and under compelling circumstances she paid Rs. 4,28,890/- to opposite party No. 2 and took the delivery of the car. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to pay loss amount of Rs. 4,29,890/- alongwith interest besides compensation and cost. The opposite party No. 1 filed separate written statement and pleaded that insurance was strictly subject to its terms and conditions and provisions of Indian Motor Tariff. The opposite party No. 1 denied that policy was a cashless insurance under tie up between opposite party Nos. 1 & 2 or Gaurav Khurana got injured in the accident. The opposite party No. 1 has pleaded that consequential loss occurred as the driver of the vehicle kept on using the same after hit resulting in further loss which could have been avoided if driver stopped using vehicle there only. The opposite party No. 1 has denied that Guarav Khurana was unconscious. The complainant has herself admitted that car was driven after the accident in accidental condition causing consequential loss of seizure of engine. It is the fundamental law of insurance that insured must take all steps for mitigation/minimization of loss. The complainant and her authorized representative violated this principle resulting in consequential loss which is not payable. The opposite party No. 1 had admitted that Mr. Dinesh Goyal, Surveyor was appointed who assessed the loss at Rs. 46,161/- after applying depreciation as per terms and conditions of the policy and IMT. As per survey report, the engine was not broken and the loss to it was not accidental in nature at all. The opposite party No. 1 has denied that the complainant paid Rs. 4,29,890/- under compulsion rather she paid the said amount knowing it fully well that the major loss caused to the car was due to her own/authorized representative's negligence. The opposite party No. 1 has already paid Rs. 46,106/- vide cheque No. 367627 dated 1-12-2012 as per loss assessed by the surveyor. The opposite party No. 2 filed its separate written statement and admitted the issuance of cover note and receipt of Rs. 28,400/- on account of premium. It has been pleaded that there is no dispute regarding the issuance of cover note. The claim which has arisen because of the accident dated 26-08-2012 is to be settled by the opposite party No. 1 and opposite party No. 2 has only issued the cover note after receiving the payment from the complainant for insuring his vehicle and the said payment has been handed over to opposite party No. 1. The opposite party No. 2 has pleaded that it has repaired the vehicle to the entire satisfaction of the complainant, as such, there is no deficiency in service on its part. The claim is to be allowed or not to be allowed is the prerogative of the Insurance Company i.e. opposite party No. 1 and it has no role to pay in allowing the claim. The opposite party No. 2 has stated regarding repair under warranty that it is only liable to repair any part of the car if it has some manufacturing defects and in the present case the damage to the engine is due to the accident. The claim if any is pending with opposite party No. 1 and it has no role either in its sanction or rejection. The opposite party No. 2 is not deficient in any manner as the payment of the repair claim is in the sole domain of the opposite party No. 1. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. These are admitted facts of the parties that the car in question of the complainant is comprehensively insured with opposite party No. 1 vide Ex. C-2. It met with an accident. The complainant intimated the loss to opposite party No. 1 and it deputed Sh. Dinesh K Goyal, Surveyor & Loss assessor to assess the loss. It was got repaired from opposite party No. 2. The complainant filed the claim with the opposite party No. 1. The opposite party No. 1 sent a cheque dated 1-12-2012 to the complainant being the claim amount as assessed by the surveyor which was not got encashed by her. The statement of the learned counsel for the complainant as well as opposite party No. 1 recorded separately on 17-4-2013 in this regard. The submission of the learned counsel for the complainant is that after the accident the engine of the vehicle was in start condition and indication of engine damage was shown in the meter , but since Gaurav Khurana, son the complainant who was driving the car in question was unconscious, he was immediately taken to Shriram Hospital, Shri Ganga Nagar 4-5 kms from the spot. He submitted that since Gaurav Khurana was injured in this accident, the complainant shifted the car with opposite party No. 2 on 28-08-2012. The car was being taken to opposite party No. 2 by towing the same with another vehicle but that vehicle started giving some trouble near Malout, so it was taken to opposite party No. 2 through recovery van which was arranged by Mr. Rajesh, Manager of opposite party No. 2 after receiving telephone call from Mr. Mohit, another son of the complainant. The learned counsel for the complainant further submitted that opposite party No. 1 illegally withheld the genuine claim to the tune of Rs. 4,29,890/- of the complainant on false plea that loss to the engine is a consequential whereas the loss is accidental and the said amount has been paid by the complainant to opposite party No. 2. In support of this submissions, he referred various authorities on different aspect of matters. On the other hand, the learned counsel for the opposite party No. 1 submitted that the driver Gaurav Khurana was aware of the fact that there was damage on the lower front side and there was an indication to this effect. The consequential loss is not payable as per terms and conditions of the policy. Sh. Dinesh K Goyal, Surveyor & Loss assessor has clearly mentioned in his report that engine was found seized but not broken. The loss to engine was not accidental but it was a consequential loss as the vehicle was driven in accidental condition. The complainant has stated that Gaurav Khurana, driver of the car in question got unconscious after the accident, but no proof to this effect has been placed on file. He further submitted that mitigation of loss is a basic principal of contract of insurance which means that the insured is duty bound to take all steps to minimize the loss and not to enhance the loss. The striking of animal and hitting of vehicle from lower front side clearly show that damage due to accident was very little but the major loss has occurred due to use of the vehicle in accidental condition i.e. consequential loss. The learned counsel for opposite party No. 2 submitted that complaint is not maintainable against opposite party No. 2 as there is no deficiency in service on its part because the car in question has been repaired to the entire satisfaction of the complainant and it has no connection with the insurance claim. The allegation of the complainant is that she has spent an amount of Rs. 4,29,890/- on the repair of the vehicle in question but the opposite party No. 1 is not paying the repair charges of engine on the ground that engine was seized as the accidental vehicle was driven further. The complainant has mentioned in para No. 7 of her complaint :- “That after the accident, the engine of the vehicle was in start condition and indication of engine damage was shown in the meter and after the accident Gaurav Khurana was unconscious as such he was immediately taken to Shri Ram Hospital, Shriganga Nagar 4-5 Kms from the spot in the same car.” The complainant has mentioned in para No. 16 of her complaint that :- “.....The complainant told the opposite party No. 2 and the surveyor that the car shifted with the help of the vehicle and under directions of the above said Manager of opposite party No. 2 and no light or indication was shown in the car regarding the defect of the engine and if loss occurred to the engine, the same is due to accident but the opposite party Nos. 1 and 2 did listen the same and did not ready to start the repair of the vehicle without charges” The version of the complainant in her complaint, as reproduced above is contradictory. On the one hand, she has stated that there was indication of engine damaged but since Gurav Kharana, driver of the car was unconscious, the car was driven for 4-5 Kms to reach the hospital and on the other hand her version is that there was no indication in the car regarding the defective engine. The complainant has placed on file a single prescription slip Ex. C-7 issued by Shriram Hospital, Shri Gaganagar, on the file on which basis the version of the complainant that Gaurav Khurana was conscious cannot be believed. Moreover, Sh. Dinesh K Goyal, surveyor has specifically mentioned the name of Gaurav to whom he met at the time of survey or thereafter and regarding minor injuries to driver Mr. Gaurav. The complainant has alleged that the vehicle was being taken to opposite party No. 2 for repair by towing it with some other vehicle which started giving trouble and thereafter it was towed with recovery van. Neither the registration number of the vehicle or recovery van has been mentioned in the complaint nor any receipt of payment of towing charges has been placed on file. Moreover, the complainant has admitted the fact that there was indication of engine damage but despite that the accidental vehicle was driven upto hospital. Hence, in such circumstances, the complainant is entitled to claim amount as assessed by the surveyor vide Ex. R-3 wherein he has assessed the amount after allowing the parts which were damaged due to accident and disallowed consequential loss mentioning therein that the engine was found seized but not broken. The loss to the engine was not accidental in nature but it was a consequential loss, so not considered for assessment. In the regard the support can be sought from the law laid down by the Hon'ble National Commission, New Delhi in the case titled United India Insurance Co. Ltd., Vs. Jadhav Kirana Stores 2005(3) CLT 644 wherein it has been held :- “Insurance Claim – Surveyor's Report – Held to be an important document – Backed by evidence, in absence of anything to the contrary, Surveyor's report to be accepted.” The complainant has stated in para No. 32 of his complaint that total claim is pending with the opposite parties, but during arguments, the learned counsel for the complainant admitted the receipt of claim cheque dated 1-12-2012 to the tune Rs. 46,106/- and got recorded statement to the effect that till date cheque was not got encashed. The loss in question took place on 26-08-2012 and claim cheque in question prepared by the opposite party No. 1 on 1-12-2012 in favour of the complainant whereas it was required to be paid to the opposite party No. 1 against repairs during repair of the car in question. Since no amount was paid by opposite party No. 1 to opposite party No. 2 as per cashless policy arrangement, the opposite party No. 2 charged the whole repair charges from the complainant and then delivered the car. With utmost regard and humility to the authorities cited by the learned counsel for the complainant, they are distinguishable on facts. In view of what has been discussed above, this complaint is accepted with cost of Rs. 2,000/- against opposite party No. 1 and dismissed qua opposite party No. 2. The opposite party No. 1 is directed to pay Rs. 46,106/- to the complainant being the claim amount as assessed by the surveyor alongwith cost of this complaint and at the same time, the complainant will return the previous cheque to opposite party No. 1. The compliance of this order be made within 45 days from the date of receipt of copy of this order failing the claim amount of Rs. 46,106/- will yield interest @ 9% P.A. from the date of this order till realization. Copy of this order be sent to the parties concerned free of cost and the file be consigned to record room.
Pronounced 17-04-2013 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member
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