OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.86/2009
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri Upendra Nath Deka - Member
Shri Bishnu Mour -Complainant
S/o. Sri Bajranglal Mour
R/o-Kayal Market, T.R.P Road
Guwahati-781001, Dist-Kamrup(Metro), Assam
-VS-
ICICI Lombard Motor Insurance -Opp. party
ICICI Lombard General Insurance Co Ltd.
Mayur Garden,4th Floor, A.B.C Bus Stop,
G.S.Road, Guwahati-781005, Assam
Appearance-
Learned advocate Mr. Rakesh Kr. Mour for the complainant.
Learned advocate Mr Raju Goswami and Mr Indrajeet Barooah.
Date of argument- 29.6.2016
Date of judgment- 29.7.2016
Judgment
1) The complaint filed by Sri Bishnu Mour against ICICI Lombard Motor Insurance Company Ltd. was admitted on 29.8.09 and notices were properly served upon them and they have also filed their written statement on 22.6.2010. Thereafter, the complainant filed his evidence in affidavit on 5.1.2011 and he was also cross examined by the counsel of Opp.Party No.1. The opp.party side filed evidence of one Sri Dibyendu Ghosh, but his affidavit was expunged by this forum vide its order dtd.22.7.14. Thereafter, the opp.party side filed affidavit of Sri Klish Mazumder as their evidence and he was cross examined by ld counsel of the complainant. Thereafter, ld advocate Mr.Rakesh Kumar Mour filed written argument for the complainant and ld counsel Mr.Raju Goswami for the opp.party. After filing of the written argument , the day of 7.6.16 was fixed for forwarding oral argument of the parties ,but opp. party sides’ counsel was not ready for argument. On that day , the opp. party is however allowed a last chance to forward their argument on 29.6.16, and on that day we have heard oral argument of both sides’ ld counsel and fixed the day of 14.7.16 for delivery of judgment but on that day we failed to deliver the judgment owing to fixation of a good number of cases fixed for hearing, and finally today we deliver the judgment, which is below-
2) The gist of the complaint is that, the complainant, Sri Bishnu Mour, who is a businessman, purchased a Fiesta 1.6 Dura Sxi (Make- Ford) Vehicle bearing Registration No. AS-01-Y-8888, having Engine No. MAJBXXMRTB0135, Chassis No. MAJBXXMRTB0135 by taking financed from ICICI Ltd. for his personal use, but it was insured with ICICI Lombard General Insurance Co.Ltd. vide insurance policy being No. 3001/53561529/00/B00 which was effective from 12.2.2008 to 11.2.2009 with value of the vehicle at Rs.5,90,000/- and the policy was issued by Guwahati Branch of the said company having its branch office at G.S.Road, Guwahati. On 4.10.2008 when the complainant was travelling in the said vehicle it met with an accident at Jorabat due to heavy water logging by which the vehicle got struck water there and suddenly some complicacies arises in the engine requiring repairment of same and he immediately informed the opp.party about the said accident and also lodged one claim before them for reimbursing of repairing cost of the said vehicle and his claim was registered by opp.parties as Claim Case No.MOTOO 944823. He brought his vehicle to authorized work shop of TI Ford situated at Industrial area, Bamunimaidan, Guwahati for repairing the same informing the opp.party about the matter and requesting them to depute one surveyor for assessment of loss and the repairing cost of the said vehicle and opp.party also appointed Mr.Apurba Kalita as surveyor to survey the said vehicle on their behalf and he vide his letter dtd.22.10.2008, asked the opp.party to inform him about the status of survey work to start the repairing work of the vehicle, but the opp.party did not give any reply to his request and he being compelled allowed the vehicle to be repaired and after repairing the vehicle he vide letter dtd. 14.11.2008 informed the opp.party that on the failure on their part to respond to his letter dtd.22.10.2008, the said vehicle was repaired at TI Ford work-shop and requested them to settle down the claims as quantum of loss was already assessed by the surveyor, but the opp.party did not respond to his said letter and then he, vide letter 18.11.2008 informed the opp.party that he is going to take delivery of the vehicle by making payment of repairing bill to TI Ford work shop as they are supposed his claim and make the payment, but they did not responds to the said letter and by that letter he also informed the opp.party that the bills of repairing charge will be submitted to them for settlement of the claim and after receipt of the said letter they did not take any action and then he vide letter dtd. 21.11.2008 showed his dis-satisfaction towards the attitude of the opp-.party and informed them that vehicle was ready for delivery since 14.11.2008, but till date no reply was received by him from them towards settlement of the claim and as such he has made payment of repairing charge to the tune of Rs.1,08,030/- to the TI Ford work-shop directly vide invoice No. CRIA 80294300 dtd. 18.11.2008 to the TI Ford and asked the opp.party for making the payment of the said amount directly to him. He also vide his letter dtd. 21.11.2008 submittied the original repairing bills to the opp.party for settlement of his claim and then op.party vide letter dtd. 21.11.2008 informed him that since work shop is a cashless basis and that is why they have not replied his first letter . The opp.party fails to show why the work-shop is a cashless one and what are the company’s norms for settlement of the claim. The opp.party sent one cheque bearing No.327421 dtd. 24.11.2008 amounting to Rs. 8,506/- only along with one payment voucher, he vide his letter dtd.4.12.08 returning the said cheque to the opp.parties informing that the said settlement is a quite unjustified settlement having the repairing bills amounting to Rs.1,08,030/- was paid byhim to the sork-shop, and he also asked the opp.party to consider the matter once again by that letter and he received no reply from the opp.party for about one month thereafter and then he vide his letter dtd. 6.1.2009 asked the opp.parties to settle his claim within five days, but opp.party another vide letter 6.1.2009 asked him to take the aforesaid cheque as per terms and conditions of the policy stating that consequential loss are not covered under the policy. Thereafter, he vide letter 17.1.2009 asked the opp.party to furnish him one copy of surveyor report, but they replied vide letter dtd. 19.1.2009 that no copy of surveyor report can be given to him, but he can be shown the said report at their office and then he visited their office and he was provided one copy of assessment sheet, but the surveyor report was not shown to him and then he vide letter dtd. 9.4.2009 asked the opp.party to supply him a copy of surveyor report and the relevant documents within three days, failing which they have to face legal action. Thereafter, he served legal notice through his advocate Dilip Kumar Kothari on 15.5.2009 through which he demanded payment of repairing bill to the tune of Rs.1,08,030/- along with interest @ 18% per annum from 18.11.2008 till full payment and to pay him said amount within 15 (fifteen days) from the date of notice dtd.6.5.2009; and they received the said notice, but did not take any steps for payment of the demand amount. The opp.party did not settled his claim and pay him the demand amount and therefore, such activities of the opp.parties amounts to unfair trade practice. Due to such activities of the opp.parties of the opp.parties he had to suffer financially as well as physically and also from mental harassment and tortured . The complainant prays for directing the opp.party to pat him Rs.1,08,030/- against the repairing bill with interest @ 18% per anum from the date of 18.11.2008 till full payment and to pay compensation to the tune of Rs.3,50,000/- along with cost of the proceeding.
3) The gist of the pleading of the opp.party is that the dispute raised by the complainant is of nature to be referred to the arbitrator for settlement. The complaint is bad for non-joinder of financer ICICI bank as the vehicle was under hire purchase to the said ban. As per IMT clauses mentioned in the policy and the guidelines issued by Insurance Regulatory Development Authority (IRDA)in the case of theft/total loss the claim is only payable to the financer and therefore, the financer is a necessary party in the case in hand ; and for that count , the complaint is liable to be dismissed and if any amount is liable to be paid by the opp.party, then, that to be paid to the financer only. The vehicle was insured with them for an amount of Rs.5,90,000/- and the policy is a private car also and the complainant is to comply with the Conditions No. of the policy which is quoted below-
“ The due observance and fulfillment of the terms, conditions and endorosements of this policy in so far as they relate to anything to be done or complied with by the insured and the truth of the statements and answers in the said proposal shall be condition precedent to any liability of the company to make any payment under this policy.”
The policy subject to a table of depreciation of parts replaced as a printed in the policy and the policy excludes all kinds of consequential losses arising after the accident. The real fact is that the complainant rashly and negligently drove his vehicle into a area where due to heavy rainfall water had accumulated to alarming height and the complainant could have like a prudent person avoided driving into said inundated a waterlogged area and he acted even more imprudently by trying to start by engine without getting it thoroughly cleaned and inspected by an expert. The vehicle had no external damage or the damage in the engine. The engine cannot be impacted by merely coming in contact with water and damages to engine can only be attributed to mechanical failure or try to start/running the engine while it was still in contact with water. From the claim petition it is clear that the case of damage of to the engine components was due to trying to start the engine without total cleaning the engine and got it inspected through expert technician and in such situation their liability restricted as per assessment of their surveyor. The manufacturer gives certain guidelines for driving and handling the vehicle in water logging area and advised as the motorist to exercise certain precautions in such cases. The policy wording clearly mentioned that any consequential loss is covered and therefore, they are not liable to pay any amount for consequential loss being included by terms and conditions of the policy and in such situation Rs.8,506/- is a justified settlement of the claim of the complainant. The vehicle obviously has not been damaged to the extend of damage Rs.1,08,030/- , but to contact with water and therefore it can be logically presumed that the damage beyond what has been assessed and offered to the complainant is a consequential loss which is excluded under the policy. The claim was settled as per assessment by their surveyor excluding by the consequential loss. The claim was settled according to the terms and conditions to the insurance policy and therefore no deficiency of service rendered by them towards the complainant; and therefore the complaint is liable to be dismissed.
4) We have perused the pleading as well as evidence of the parties. We have also perused submission of both side ld counsels.
After perusing the evidence as well as submission of both sides, we have found that it is both sides admitted fact that the complainant Sri Bishnu Mour had purchased one Fiesta 1.6 Dura Sxi (Make- Ford) Vehicle bearing Registration No. AS-01-Y-8888, having Engine No. MAJBXXMRTB0135, Chassis No. MAJBXXMRTB0135 on being financed by ICICI Bank Ltd. for his personal use and said vehicle was insured with ICICI Lumbard Motor Insurance Co,Ltd.,Guwahati Branch vide policy No. 3001/53561529/00/B00 which was effective from 12.2.2008 to the mid night of 11.2.2009 which is a private car package policy and vehicle was valued at Rs. 5,90,000/-. It is also both sides’ admitted fact that on 4.3.2008 when the complainant was travelling the said vehicle, the vehicle met with an accident due to heavy water logging at Jorabat and it got struck water there and suddenly some complicacies arose in the engine making it to be repaired and then he took the said vehicle to the authorized work-shop of T.I.Ford, situated at Industrial area, Bamunimaidan,Guwahati-21 and also informed the opp.party about the accident and after getting information from him, the opp.party appointed Mr.Apurba Kalita as surveyor on their behalf. From above admission, it is crystal clear that on 4.10.08 while the complainant was travelling in his vehicle bearing Registration No. AS-01-Y-8888, Fiesta 1.6 Dura Sxi (Make- Ford) , the said vehicle met with an accidient at Jorabat due to heavy water logging and the vehicle got struck water there and some complicacies arose in the said vehicle; and the complainant informed the opp.parties about the accident and also took the vehicle to the authorized work shop of T.I.Ford, situated at Industrial area, Bamunimaidan,Guwahati for repairing all the defects that have been caused in the said accident; and the opp.party appointed Mr.Apurba Kalita as surveyor on their behalf.
5) It is also seen from the advance admission that the concerned vehicle met with an accident within the validity of insurance policy vide policy No. 3001/53561529/00/B00 which was done with the opp.party.
6) The complainant states that he vide letter dtd, 22.10.2008 (Ext.3) requested the opp.party to inform him the status of survey, but the opp.party had not made any reply and for not receiving any reply he asked T.I.Ford workshop to repair his vehicle and also requested them to settle down his claim as the quantum of loss has already assessed by the surveyor, but opp.party did not respond to the said letter. Again he vide letter dtd. 18.11.2008 (Ex.5) informed the opp.party that he is going to take delivery of vehicle after making payment of repairing charge to the T.I.Ford workshop and accordingly opp.party has to settle the claim, but the opp.pary did not respond to the said letter and then he vide letter dtd. 21.11.2008 (Ex-6) showed his deep dissatisfaction towards the attitude of the opp.party and also informed them that vehicle is ready for delivery since 14.11.2008, but no reply was received from them and being compelled he paid Rs. 1,08,030/- to the said workshop as repairing charge vide invoice No.CRIA 80294300 dtd. 18.11.08 and requested them to reimbursing the said payment . Thereafter, the opp.party vide letter dtd. 21.11.08 (Ext.8) informed him that since the workshop is a cashless one, there on the process of settlement is claim on cashless basis and that is why they did not reply his letter. Thereafter the opp.party vide letter 24.11.08 (Ex 9) informed him that they had sent a letter to him and that was delivered to him on 22.11.2008 by “Over Nite” Courier. But they did not settle his claim rather they sent a cheque bearing No. 327421 dtd. 24.11.2008 for Rs. 8,506/- only that one voucher (Ex 10 is the said cheque and Ex 11 is the payment voucher ) to him. But he being dissatisfied by such settlement returned the cheque vide his letter dtd. 4.12.2008 ( Ex 12) to the opp.party informing them that such settlement is quite unjustified settlement owing to fact that he had paid Rs.1,08,030/- to the workshop as repairing charge, but the opp.party did not reply to that letter and then he vide letter dtd. 6.1.2009 (Ext.13) asked the opp.party to settle the claim within five days, failing which, he has to take legal action against them. The opp.party vide letter dtd. 6.1.2009 (Ex 14) informed him that the aforesaid cheque was issued as per terms and conditions of the policy, under which consequential loss are not covered . He also vide letter 15.1.2009 (Ex.5) asked the opp.party to provide him a copy of the survey report , but the opp.party vide letter dtd. 19.1.09 (Ext.16) informed him that they cannot show the survey assessment at their office and asked him to see the said report in their office ; and then he visited the office of the opp.party on several occasions, but they only furnished him a copy of assessment sheet, but had not shown him the surveyor report and then he vide letter 9.4.2009 (Ext.18) asked the opp.party to supply him a copy of the surveyor report and all the relevant documents , but they did not reply back, nor settle his claim on the basis of repairing bills he paid to the workshop. Thus, from evidence of complainant it is seen that he after informing the opp.party brought the vehicle from the site of the accident to authorized garage of T.I.Ford , Bamunimaidam, Guwahati for repairing of the damage caused in the said accident and he allowed the said workshop torepair the said vehicle after informing the opp.party. The second thing seen from the evidence of the complainant is that, while the vehicle was not repairment in the said workshop, he repeatedly asked the opp.party to make the payment of the bill of the repairing charge, but the opp.party neither replied to his letter, nor took step for payment of the said bill and then he being compelled, paid the bill of repairing charge to the tune of Rs.1,08,030/- to T.I.Ford workshop at Bamunimaidan and took delivery at the said vehicle. In this case, the opp.party side witness, Sri Klish Majumdar, in the cross-examination states that he is no knowledge regarding what letter submitted by the complainant. These version of the D.W.1 infers that whatever the complainant states in evidence regarding making correspondence with the opp.party are all true statements. Thus, it is crystal clear that although the repairing charge is cashless one, the complainant being compelled paid the repairing charge to the tune of Rs.1,08,030/- to the said workshop and took delivery of the vehicle on the ground that the opp.party did not take any step to pay the saidrepairing charge to the said workshop. Therefore, we hold that, the act of making payment of repairing charge by the complainant to the concerned workshop directly is a justified act and therefore, if it is found get reimbursement of such payment from the opp.party.
7) The plea of the opp.party is that the vehicle could not have faced water logging on the alleged day, if the complainant would had taken prudent decision not to drive into water logging at Jorabat and the damage in the engine would also not have been caused, if the complainant would had started the vehicle after cleaning the water from the engine and getting the engine check up through technician. The complainant side plea is that he suddenly while he was coming from Jorabat in the said vehicle his vehicle suddenly struck to water logging and the engine showed certain discrepencies after cessation of water and then he took the vehicle to the workshop. In this case the opp.party adduces no evidence to prove their plea and in such situation, we must presume that whatever the complainant states in evidence is true. Thus, it is established that while the complainant was travelling in the said vehicle from Jorabat on 4.10.2008 his vehicle met with an accident at Jorabat due to heavy water logging and the vehicle got struck to water, all of a sudden and complicacies arose in the engine due to said accident.
8) The opp.party sides’ another plea is that, as per policy, the complainant is not entitled to any amount on consequential damages of the vehicle in the said accident and that is why they settled the claim of the complainant at Rs.8,506/- only. In the cross examination of D.W., it is found that D.W states that he does not know about consequential loss of the complainant and mechanism to assertion consequential loss. This version of opp.party witness infers that the opp.party side without asserting the actual damage of the said vehicle settle the claim of the complainant at an amount of Rs.8,506/-. The survey report of the surveyor of the opp.party was not delivered to the complainant after his repeated request, nor shown to him while he visited the office of the opp.party on several occasions and it is also found that the surveyor had done the survey without informing the complainant and in the absence of the complainant. For that ground the alleged surveyor cannot be accepted and but the damaged deducted by the T.I.Ford workshop at Bamunimaidan must be presumed to be actual damages caused to the said vehicle in the said accident. It is already found that the said workshop prepared the bill of repairing charge to the tune of of Rs.1,08,030/- to the complainant and also made payment of such amount to the said workshop. The opp.party side in their pleading states that the insurance policy excludes all kind of consequential loss arising after the accident and that is why they are not liable to reimbursed the amount that had been paid to the workshop by the complainant and that the settlement made by them to the tune of Rs.8,506/- as a justified settlement. But D.W (O.P.W) is found to have admitted in his cross examination that he does not know about the consequential loss is and the mechanism to assess the consequential loss. We have already found that by this version of D.W. clearly shows that the opp.party had not actually assessed the consequential loss or damage the said vehicle faced after the said accident. Hence , for that reason the settlement of the claim of the complainant at Rs.8,506/- as done by the opp.party must be hold to be a whimsical settlement, but the loss to the tune of Rs.1,08,030/- faced by the complainant is the actual loss which is liable to be reimbursed as per terms of the concerned insurance policy , and the opp. party is liable to pay such amount to the complainant under the said policy.
9) Summing up our decision as above , we hold that the opp.party side is liable to pay Rs.1,08,030/- with a interest @ 12% per annum from the date of filing of the complaint (29.8.2009) . The complainant has reimbursement of the repairing charge he paid to the T.I. Ford workshop .Secondly, they are also liable to pay compensation at least Rs.10,000/- for causing harassment the complainant and another amount of Rs.10,000/- as cost of the proceeding.
10) Because of what has been discussed as above, the complaint against the opp.party, namely, ICICI Lombard General Insurance Co.Ltd., Guwahati Branch , G. S. Road is allowed on contest and the opp.party is directed to pay Rs.1,08,030/- (Rupees one lakh eight thousand thirty)only to the complainant as reimbursement of repairing charge he paid to T.I.Ford workshop alongwith interest @ 12% per annum from date of filing of the complaint (29.8.09)only and also to pay him Rs.10,000/- (Rupees twenty thousand) only as compensation for causing harassment to him and Rs.10,000/- (Rupees ten thousand) as cost of proceeding. They are directed to pay amounts within three months, in default of which, the other two amounts was also carry interest at the same rate.
Given under our hands and seal of this forum on this day 29th July,2016.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Mr.U.N.Deka)
Member
