DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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M/s Popular Chemists, SCO No. 35, Sector 16-D, Chandigarh, through its Partner Sh. Amit Bansal S/o Jagjiwan Kumar Bansal, R/o House No. 3364, Sector 15-D, Chandigarh.

                             ---Complainant

Vs

[1]     ICICI Lombard General Insurance Company Limited, through its Manager, SCO No. 24-25, 1^st Floor, Sector 9, Madhya Marg, Chandigarh.

[2]     ICICI Lombard General Insurance Company Limited, through its Manager, Regd. Office ICICI Bank Towers, Bandra Kurla Complex, Mumbaxi – 400051.

---- Opposite Parties

[3]     Krishna Auto Sales, through its Deputy General Manager, 177-E, Industrial Area-I, Chandigarh – 160002 [Deleted vide order dated 05.06.2012]

---- Proforma Opposite Party

BEFORE:         SH. LAKSHMAN SHARMA                              PRESIDENT

MRS.MADHU MUTNEJA                                 MEMBER

                        SH.JASWINDER SINGH SIDHU                      MEMBER

Argued By:             Sh. Karan Singla, Counsel for Complainant.

Sh. Sandeep Suri, Counsel for Opposite Parties No. 1 & 2.

Opposite Party No.3 deleted

PER JASWINDER SINGH SIDHU, MEMBER

1.                Briefly stated, the Complainant bought a white colour Skoda Superb Elegance Car bearing Regn. No. CH-01-AB-0015 from Opposite Party No.3, under the name of its Partnership Firm M/s Popular Chemists, and got it insured from OP's under the ICICI Lombard Zero Depreciation Copper Plan bearing Policy No. 3001/ 63414278/00/000, valid from 17.02.2011 to 16.02.2012.

                   It is averred that on 12.8.2011 the Petitioner went to Ludhiana on a private visit, but due to heavy rain stayed back in Ludhiana. On the next day, when he was coming back from Ludhiana to Chandigarh, and reached near Dholewala roundabout, Ludhiana, the car stopped all of a sudden and was towed to the authorized Skoda agency in Ludhiana i.e. Krishna Auto Sales, Ludhiana and got the job card opened (Annexure C-3). Taking into consideration the difficulty of pursuing the repairs of the car at Ludhiana, the Complainant got the car towed down to Chandigarh to Opposite Party No.3, and got a fresh job card opened on 16.8.2011, assessing a severe engine breakdown due to water logging (Annexure C-4). On getting an assessment of the cost of repairs, the Complainant filled up the claim form on 16.8.2011 under Claim No. MOTO2150124 (Annexure C-5), wherein upon Opposite Parties appointed a Surveyor namely Mr. Ranu Ekhlakh, who informed that hydro loss is not covered in the policy, hence, claim is not payable.

                   Feeling aggrieved, the Complainant wrote number of e-mails to the Opposite Parties, but to no avail. Finally, after repeated exchange of mails the Complainant got a letter dated 14.9.2011 (Annexure C-7), wherein it was informed that damages due to consequential loss will not be paid, and the rest of the damages will be paid after the completion of repair and the submission of bills. Besides this, it was also informed that OPs would cover the parts affected if any, due to water entry in the engine/ passenger compartment/ cleaning/ flushing charges of the engine/ transmission/ interior.

                   The Complainant claims that as per the invoice dated 22.09.2011, issued by Opposite Party No.3, total cost of repair of the complete car was Rs.1,48,039/-, out of which Rs.88,762/- were to be paid as per the Surveyor report. Finally, vide letter dated 26.9.2011, the Opposite Parties sanctioned a claim of Rs.88,760/- as assessed as per the policy terms & conditions (Annexure C-11), which amount was accepted by the Complainant under protest vide e-mail dated 26.9.2011 (Annexure C-12).  As per the Complainant, the deductions done by the Opposite Parties is totally unreasonable and patently illegal in nature, which caused great hardship, mental harassment and monetary loss to him, hence this complaint.

                   The complaint of the Complainant is duly verified and is supported by a detailed affidavit of Complainant.

2.                Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.                Opposite Parties, in their joint reply, have contested the claim of the Complainant by raising preliminary objections to the effect that the Complainant having received the full amount as allowed by the Surveyor in full and final settlement of the claim, cannot be allowed to raise the dispute that the amount was in any manner deficient. It is submitted that the consequential losses are not covered under the policy of insurance. The report of the surveyor was followed/ accepted by the company and the amount as payable thereon was paid; hence, there is no deficiency in service on the part of the answering Opposite Parties. As per the report of the surveyor who has duly considered the final bill raised by the workshop, the other parts have been found to be not payable under the policy of insurance.

                   On merits, the Opposite Parties have repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. It is pleaded that the engine has been started/ cranked after water entered into the other engine compartments. The water entered into only one compartment which was allowed and paid. It is further pleaded that the answering Opposite Parties are not liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. No further amount is payable as the same was a consequential loss. While admitting the e-mails exchanged, all other allegations of the Complainants were denied and a prayer has been made for the dismissal of the complaint.  

                   The reply of the Opposite Parties is not verified, but is supported by a detailed affidavit of Ms. Gurpreet Bhullar, Manager, ICICI Lombard General Insurance Co. Ltd.

4.                Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions.

5.                The present complaint filed by the Complainant on the ground that while assessing the claim of loss suffered by his vehicle, the Opposite Parties failed to pay the entire claim as lodged by him. The Complainant claims that the amount of money paid by him on account of the replacement of one set of piston rings as well as other spares along with labour charges, to the Opposite Party No.3, was not considered by Opposite Parties No.1 & 2, and the same amounts to deficiency in service on their part.

6.                We have gone through the job card raised by the Opposite Party No.3 before the repairs were conducted. The very contents of the job card (Annexure C-4) clearly mention the reason which necessitated the repairs of the car in question. It is found mentioned that the car had waded through rain water, the air filter was found totally wet and the estimate of the loss would be given after opening the engine. Furthermore, the surveyor Mr. Manoj Kukreja, who was appointed by the Opposite Parties No.1 & 2, to assess the loss suffered by the vehicle of the Complainant, has categorically mentioned in the job card itself that hydro-static loss is not payable. The surveyor has also appended his signatures below his opinion, along with his mobile number. However, while going through the final estimate, submitted by the Surveyor to the Opposite Parties No.1 & 2, the surveyor has allowed a claim of Rs.88,762/-, while ignoring the three claims with regard to one set of piston ring and filter element with air filter, along with its labour charges, amounting to Rs.59,277/-; claiming these to be the consequential losses. However, at the same time, the Complainant has claimed that he was entitled to entire claim, as he had subscribed for a Depreciation (Copper-Only Zero Depreciation) Policy. The surveyor in para 9 of his report under the heading observation/comments has opined that “there was starting problem in the said vehicle as water has entered into the engine, so he allowed engine flushing, but still engine was not cranking, which shows over driven of car after loss and caused consequential damages. He has further opined that as per policy terms consequential losses are not covered”. However, the surveyor has not differentiated between the original loss and the subsequent loss, which he has termed to be a consequential loss. It is very much clear that the loss to the piston rings can only be observed after dismantling of the engine part; whereas, the filter element with air filter, which is an outside component, and was subsequently replaced by Opposite Party No.3, having found it to be wet, means that this component, along with other parts too had got damaged, due to having come into contact with the rain water. There was also no need to open the engine to assess the damage to air filter element and the loss of the same cannot be termed as a consequential loss.

7.                It is also important to quote here that the Complainant had moved an application dated 13.8.2012, seeking presence of the Service Manager of Opposite Party No.3, to clarify few facts relating to the incidental and consequential damages, suffered by the vehicle of the Complainant.  The said Dy. General Manager (Service) of Opposite Party No.3 came present on 6.11.2012, and replied to the queries of the counsel for the Complainant. Thereafter, at the request of the counsel for Opposite Parties No.1 and 2, he was examined and his statement was recorded. The Complainant was successful in bringing out the truth about the incidental and consequential loss suffered by the vehicle from the opinion of the Dy. General Manager (Service) of Opposite Party No.3, who has clearly opined that in order to check the damage to the engine, the engine oil needs to be flushed in the first step and thereafter, the engine head is to be removed, so as to assess any loss suffered by the engine or its parts inside it. However, in the present case, as no such loss was noticed, the only two parts which in the normal process of opening and closing of the head of an engine, need replacement, are the head gasket and the piston rings. Hence, it is very much clear that no consequential loss to the engine was found after opening its head, but the head gasket and the piston rings were replaced, as it was necessary in the normal process of opening and closing of the engine head; these needed to be changed. In the given situation, the Complainant was successful in adducing evidence in its favour, which the Opposite Parties have failed to rebut in any manner.

8.                It is necessary to mention here that the Opposite Parties No.1 and 2 while tendering the survey report of the surveyor appointed by them have not brought on record his affidavit in support of his survey report, in which he has opined the loss of piston rings as consequential loss, as the surveyor has claimed that the Complainant had driven the vehicle after the same had stopped by cranking the engine further though he was not a witness to this event.  However, on the other, the opinion expressed by the Service Manager of Opposite Party No.3 before this Forum carries much weight, as he is more qualified & competent to comment about this issue. Hence, we have no other choice, but to believe the opinion of the Service Manager of Opposite Party No.3.

9.                Hence, in the given situation, the claim of the Complainant with regard to the piston rings too deserves to be allowed. At the same time, the loss suffered on account of the filter element, along with air filer, having gone wet due to rain water, was very much a first hand loss, and not a consequential loss, the same, therefore, also deserves to be honoured by the Opposite Parties No.1 and 2. As such, Opposite Parties No.1 and 2 are found deficient in rendering proper service to the Complainant for not having assessed the genuine loss suffered by him. The Opposite Parties have also not objected to the value of parts replaced, as the vehicle was got repaired from the authorized agent of the parent company of the vehicle. Therefore, there is no dispute even about the value of the spare parts, which were replaced by Opposite Party No.3.   

10.              The Complainant had vigorously pursued his case with the Opposite Parties, through different communications, but at the same time, the Opposite Parties, without looking into his genuine claim, did not think it worthwhile to look into their records, before denying him his rightful claim        . The Complainant while  receiving the amount of Rs.88,706/- had registered his deficiency in service-satisfaction with the assessment of the claim, through his communication placed on record as Annexure C-12. Meaning thereby, that Complainant while receiving this amount, has reserved its right to contest it an appropriate manner. Hence, it is established that the Complainant had registered his grievance with the Opposite Parties and failure to address the same, amounts to deficiency in service.

11.              As Opposite Party No.3 was only a proforma Opposite Party and was subsequently deleted by the Complainant by making a statement.  The Opposite Party No.3 was deleted from the array of parties vide order dated 5.6.2012. Even otherwise also, no relief was sought against it, we deem it appropriate to dismiss the present complaint qua it.

12               In the light of above observations, we are of the concerted view that the Opposite Parties No.1 & 2 are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties No.1 & 2, and the same is Allowed. The Opposite Parties No.1 & 2 are, jointly and severally, directed, to:-

[a]      To pay the amount of Rs.59,277/- (remaining amount as per invoice Annexure C-10) to the Complainant.

[b]      To pay Rs.15,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[C]    To pay Rs.7,000/- as cost of litigation;

13.              The above said order shall be complied within 45 days of its receipt by the Opposite Parties No.1 & 2; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 12 above, apart from cost of litigation of Rs.7,000/-, from the date of institution of this complaint, till it is paid.  

14.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

10^th January, 2013.                                                                

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER