Punjab

Ludhiana

CC/14/568

M/s KIsco Forgings - Complainant(s)

Versus

Iffco-Tokio General Ins.Co.Ltd - Opp.Party(s)

Munish Kumar

30 Mar 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                    Complaint No: 568 of 19.08.2014

                                                                   Date of Decision: 30.03.2015

M/s Kisco Forgings, Guru Ki Nagri, Bhadla Road, Mandi Gobindgarh, District Fatehgarh Sahib, through its Partner Sh.Anil Goel.

.….Complainant

Versus 

1. Iffco-Tokio General Insurance Co. Ltd., Corporate Office, 4^th and 5^th Floor, Iffco Tower, Plot no.3, Sector 29, Gurgaon, Haryana-120001, through its Branch Manager.

2. Iffco-Tokio General Insurance Co. Ltd., 1^st and 2^nd floor, Shohan Singh Complex, Shastri Nagar, Near Railway Crossing, Ludhiana (Punjab), through its Branch Manager.

3. Iffco-Tokio General Insurance Co. Ltd., Iffco House, 34, Nehru Place, Delhi, through its Branch Manager.

4. Krishna Auto Sales (Authorized Dealers of Skoda Company), Dhandari Kalan, G.T.Road, Ludhiana (Punjab), through its Partner.

5. Krishna Auto Sales, Plot no.177-E, Industrial Area, Phase-I, Chandigarh, through its Partner.

6. Skoda Auto India Pvt. Ltd., Plot No.A-1/1, Shendra, Five Star Industrial Area, MIDC, Aurangabad, Maharashtra-431201, through its Director.

…..Opposite parties 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh.R.L.Ahuja, President

                    Sh.Sat Paul Garg, Member

                    Smt.Babita, Member

 

Present:       Sh.Mukesh Khanna, Advocate for complainant.

                   Sh.Vyom Bansal, Advocate for Op1 to OP3.

                   OP4 exparte.

                   Sh.Chander Kalia, Advocate for OP5 and OP6.

                   

ORDER

 (R.L.AHUJA, PRESIDENT)

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by M/s Kisco Forgings, Guru Ki Nagri, Bhadla Road, Mandi Gobindgarh, District Fatehgarh Sahib, through its Partner Sh.Anil Goel (herein-after in short to be referred as ‘complainant’) against Iffco-Tokio General Insurance Co. Ltd., Corporate Office, 4^th and 5^th Floor, Iffco Tower, Plot no.3, Sector 29, Gurgaon, Haryana-120001, through its Branch Manager and others (herein-after in short to be referred as ‘OPs’)- directing them to pay Rs.5,25,830/- paid by the complainant to Krishna Auto Sales towards repair of the car, to pay Rs.22,000/- as legal expenses, to pay Rs.1.00 lac as mental harassment caused by the OPs, to Rs.10,000/- as Miscellaneous expenses, to Rs.2.00 lacs to the complainant.

2.                Brief facts of the complaint are that the complainant is the registered owner of one Skoda (Rapid AMB-MT) car bearing registration no.PB-23P-4939, which was purchased by the complainant from Krishna Auto Sales, Ludhiana through invoice no.LDH-2013-14/000031 dated 22.7.13 and a cover note no.93944435 was issued to the complainant, as the complainant made payment of Rs.34,985/-. The said cover note was valid from 22.7.13 to 21.7.14. On 27.2.14 Sh.Amot Goel son of complainant was going in the car from Chandigarh Railway Station to Zirakpur between 12.30 am to 1.00am and the car was being driven by Gurmeet Singh driver of the complainant. All of sudden car jumped over the speed breaker and thereafter stopped after covering a distance of about 500 meters. The car was immediately towed by Krishna Auto Sales, Chandigarh and was taken to their workshop in Chandigarh. Intimation regarding the above said accident was immediately given to the local representative of OPs and the head office of the OPs, through E-mail and claim was lodged with the OPs. Krishna Auto Sales, Chandigarh given the estimate cost of Rs.5,23,491/- for repair. The OPs appointed B&S surveyors and Loss Assessors, Mohali regarding claim no.1-2 MBI ST5 got lodged by the complainant. Earlier the officials of the Ops have been assuring the complainant regarding the approval of the claim, as the complainant was not at any fault of any kind, but later on, the complainant was surprised and shocked to receive a letter dated 13.3.14 from the assessors that the claim put forward by the complainant was rejected on the grounds that liability on insurer due to external impact and extension of damage to engine internal parts could not be considered. The said report of the surveyors and assessors is against fact apart from being vague and illogical. Complainant also served a legal notice under registered post upon the OPs, through his counsel on 25.3.14, which was received by them, but the OPs did not even care to reply the said notice. In the meantime, in order to take back the car from Krishna Auto Sales, the complainant paid an amount of Rs.5,25,830/-, vide invoice dated 12.4.14 and the delivery of the car was taken on 12.4.14. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 to OP3 appeared through their counsel and filed written statement, wherein at the factual submission, it has been submitted that the vehicle of the complainant i.e. Skoda Rapid Ambition was insured, vide policy no.84652472 valid for 22.7.13 till 21.7.14 by the answering OPs. Upon receipt of the information from the complainant, an independent surveyor namely B&S Insurance Surveyors and Loss Assessors were appointed by the answering OPs to conduct the survey of the damaged vehicle. The vehicle in question was inspected by the surveyor of answering OPs and assessed the loss to the tune of Rs.19,722/-. The report dated 18.4.14 was received from the surveyor.

After the inspection, oil sump of the engine was found damaged due to external impact and the same was approved accordingly by the answering OPs alongwith other damage due to external impact and the answering OPs have already paid a sum of Rs.19,722/- towards the claim of complainant. Moreover present case is a clear cut case of extensionof loss as during the inspection, it was found that there was not external impact on engine and internal parts of the engine was affected/damaged due to scarcity of proper lubrication. Merely hitting of oil sump with the external object cannot result in severe damage and seizure of engine parts, until and unless, it is kept running after the impact leading to seizure of engine due to loss of proper lubrication. The vehicle is equipped with oil pressure warning indicator and ignoring it is a know reason of such engine damage. The survey report, claim form and the repair documents revealed that the driver of the Insured Vehicle at the time of damage did not take the necessary steps to avoid any exentions of the damage to the vehicle and as envisaged in condition 4 of the policy and continued to run the vehicle even after impact and thus the engine of the vehicle was seized due to oil starvation. Hence, after application of mind by the officials of the answering Ops and as per the terms of the contract the claim for repair of damages due to said seizure was rejected vide letter dated 13.3.14m and the admissible claim for repair of vehicle due to external damage of Rs.19,722/- was allowed and paid to the complainant by the answering OPs and further taken the preliminary objections that the present complaint is not maintainable since immediately on the receipt of the claim, it was duly registered, entertained and processed; the complainant is stopped by his own acts and conducts from filing the present complaint; no cause of action arose within the territorial jurisdiction of this Forum; complaint is frivolous and not tenable at law and hence deserve to be dismissed with costs; the complainant is not a consumer within the meaning of the Consumer Protect Act and is thus not entitled to any relief from this Forum; complainant is trying to mislead this Forum by twisting the true facts and for giving end to its dishonest intentions of extorting illegal money under the beneficial legislation meant for innocent consumers; complicated questions of law and facts are involved in the present complaint, which cannot be tried and decided in the summary jurisdiction of this Forum. On merits, denying the contents of all other paras, answering Ops prayed for the dismissal of the complaint.

4.                Notice of the complaint sent to OP4 was served, but despite service of the notice none had come present on behalf of OP4. As such, OP4 is proceeded exparte, vide order dated 29.09.2014.

5.                On notice of the complaint OP5 and OP6 appeared through their counsel and filed written statement taking preliminary objections that the present complaint is liable to be dismissed against the OP4 and OP6 as neither any deficiency has been attributed to the services rendered or to be rendered by OP4 to OP6 nor there exists any deficiency on the part of answering OP4 to OP6 and as such no relief whatsoever can be sought and granted against the OP4 to OP6. The claim as explained and mentioned in the complaint, has arisen because of the non settlement and payment of the claim to the complainant on account of damage caused to the car in question in accident dated 27.2.14 by the insurance Co. i.e. OP1 to OP3 and the OP4 to OP6 are not necessary parties for the adjudication of the dispute arisen between the complainant and OP1 to OP3 because of the non-payment of the claim to the complainant by OP1 to OP3. In view of the facts mentioned above the complaint is not maintainable against the OP4 to OP6. There is no allegation against the OP4 to Op6 with regard to the repairs of the car in question and the deficiency if any is only against OP1 to OP3 who have failed to allow the claim of the complainant arising out of the damage caused to the car in question on account of accident dated 27.2.14. On merits, denying the contents of all other paras, Ops prayed for the dismissal of the complaint.

6.                We have gone through the written arguments submitted on behalf of complainant as well as OP1 to OP3 and heard the Ld. counsel for OP5 & OP6 and have also gone through the record placed on file.

7.                Ld. counsel for complainant has filed written arguments, wherein has reiterating the same facts as mentioned in the complaint. Further submitted that OP1 to OP3 as well as OP5 and OP6 filed their respective written statements. The entire facts regarding damage to the car have been admitted and the OP1 to OP3 state to have paid a sum  of Rs.19,722/- towards the claim of complainant, which was not accepted by the complainant as the complainant had paid firstly Rs.34,985/- as premium for Dep Cap Insurance of the car in question and Cover note has been produced as Ex.C5. The value of the car at the time of purchase by the complainant was Rs.8,84,369/- as mentioned in the Cover note Ex.C5 and policy as Ex.C6 and further receipts have been produced as Ex.C7 to Ex.C9. That after accident, the complainant paid an amount of Rs.5,25,830/- to OP5 and OP6, through invoice dated 12.4.14, which has been place on record as Ex.C25. The OP1 to OP3 have wrongly rejected the claim and without any basis settled the claim as Rs.19,722/- which is against facts and terms of facts. That no owner would like to drive the car in negligence manner so as to cause loss that too the new brand car as the car was purchased on 22.7.13 and accident occurred on 27.2.14 and further given the detail of their documents, which were tendered by him into evidence.

8.                Ld. counsel for OP1 to OP3 also filed written arguments, whereby, it has been submitted that the present complaint in any form is not maintainable before this Forum as no cause of action arose within the territorial jurisdiction of this Forum. The complainant has miserably failed to establish the territorial jurisdiction of this Forum and thus the complaint deserves to be dismissed and as such no cause of action has accrued to the complainant to claim any relief before this Forum. Neither the damage to the vehicle was within the jurisdiction of this Forum nor any repairs to the vehicle have been done within the jurisdiction of this Forum nor the policy was issued from the office within the Jurisdiction of this Forum and nor the complainant resides within the Jurisdiction of this Forum and as such, the present complaint deserves a dismissal on this ground itself. Further submitted that upon receipt of the information from the complainant, an independent surveyor namely B&S Insurance Surveyors & Loss Assessors were appointed by the answering Ops to conduct the survey of the damaged vehicle. The vehicle in question was inspected by the surveyor of answering OP and assessed the loss to the tune of Rs.19,722/-. The report dated 18.4.14 was received from the surveyor. Moreover present case is a clear cut case of extension of loss as during the inspection, it was found that there was no external impact on engine and internal parts of the engine was affected/damaged due to scarcity of proper lubrication. Merely hitting of oil sump with the external object cannot result in severe damage and seizure of engine parts, until and unless, it is kept running after the impact leading to seizure of engine due to loss of proper lubrication. The vehicle is equipped with oil pressure warning indicator and ignoring it is a known reason of such engine damage. That the survey report, claim form and the repair documents reveals that the driver of the Insured vehicle at the time of damage did not take the necessary steps to avoid any extension of the damage to the vehicle and as envisaged in condition no.4 of the policy and continued to run the vehicle even after impact and thus the engine of the vehicle was seized due to oil starvation. Hence, after application of mind by the officials of the answering OPs and as per the terms of the contract, the claim for repair of damages due to said seizure was rejected, vide letter dated 13.3.14 and the admissible claim for repair of vehicle due to external damage of Rs.19,722/- and an amount of Rs.8152/- towards the depreciation as the present policy was ‘DEPCAP’ policy was approved to be paid to the complainant by answering OPs. The letter dated 13.3.14 is marked as Annexure-4;

            Condition no.4 of the policy runs as under:-

            Condition no.4:

            “The insured shall take all reasonable steps to safeguard the vehicle from loss of damage and to maintain it in efficient condition and the company shall have at all times free and full access to examined the vehicle or any part thereof or any driver or employee of the insured. In the event of any accident or breakdown, the vehicle shall not be left unattended without proper precausions being taken to prevent further damage or loss and if the vehicle be driven before the necessary repairs are affected any extension of the damage or any further damage to the vehicle shall be entirely at the insured’s own risk.”

 

                   It is submitted that damage to the internal components are solely attributable to the failure on the part of the driver to exercise ordinary prudence as expected from every insured. Affidavit of  B&S Insurance Surveyors & Loss Assessors is filed as Ex.RB alongwith photographs of the damaged parts as Ex.R6 to Ex.R16. The photographs of the backward splashes of engine oil over the underneath portion of the vehicle were taken which clearly indicates that after hit with stone the vehicle was run further and due to air pressure, engine oil splashed towards rear underneath portion, which clearly indicates that the vehicle kept running even after the accident resulting into oil starvation and subsequently seizure.

9.                Ld. counsel for OP5 and OP6 argued that no relief whatsoever is sought and granted against OP5 and OP6 and they are not necessary parties for the adjudication of the dispute arisen between the complainant and OP1 to OP3, because of the non-payment of the claim to the complainant by OP1 to OP3.

10.              We have considered the rival contentions of Ld. counsel for the parties and have gone through the written arguments submitted on behalf of complainant as well as OP1 to OP3 and the entire record placed on file.           

11.              The perusal of the record reveals that it is undisputed facts between the parties that complainant is the owner of the one Skoda (Rapid AMB-MT) car bearing registration no.PB-23P-4939, which was purchased by the complainant from Krishna Auto Sales, Ludhiana, same was insured with OP1 to OP3 for the period 22.7.13 to 21.7.14. It is proved fact on record that son of the complainant was going in the car from Chandigarh Railway Sation to Zirakpur between 12.30 am to 1.00 am and the car was being driven by Gurmeet Singh driver of the complainant and the car jumped over a sudden speed breaker and thereafter stopped after covering a distance of about 500 meters. The car was towed to the workshop of Krishna Auto Sales, Chandigarh and due intimation about the accident was given to OP1 to OP3 and claim was lodged with OP1 to OP3. Thereafter OP1 to OP3 appointed B&S Insurance Surveyors and Loss Assessors, Mohali to assess the loss of the vehicle. On the basis of the report of the surveyor, the claim of the complainant was only approved to Rs.19,722/-. Though the estimate of the loss was given by the Krishna Auto Sales, Chandigarh for Rs.5,23,491/-.

11.              The perusal of the written statement of OP1 to OP3 reveals that it has been pleaded that after the inspection, oil sump of the engine was found damaged due to external impact and the same was approved accordingly by the answering OPs alongwith other damage due to external impact and the answering OPs have already paid a sum of Rs.19,722/- towards the claim of complainant. Further submitted that the survey report, claim form and the repair documents revealed that the driver of the Insured vehicle at the time of damage did not take the necessary steps to avoid any extension of the damage to the vehicle and as envisaged in condition no.4 of the policy and continued to run the vehicle even after impact and thus the engine of the vehicle was seized due to oil starvation. The claim for repair of damages due to said seizure was rejected vide letter dated 13.3.14 and the admissible claim for repair of vehicle due to external damage of Rs.19,722/- was allowed and paid to the complainant by the answering OPs.

12.              The bone of contentions between the parties is qua the consequential damage, which was caused to the vehicle due to sudden jumping over a speed breaker. It is proved fact on record that when the accident occurred, the loss/damage was caused to the vehicle, while due to jumping over a speed breaker. However, it is undisputed facts that the external damaged was caused to the vehicle due to sudden jumping over a speed breaker, which resulted in the damage to the oil pump of the engine, as a result of which engine of the vehicle was seized due to oil starvation. We can consider this loss to be a consequential loss, which resulted after the external damage of the vehicle. So, there does not appear to be any negligence on the part of the driver of the vehicle and it appears that OP1 to OP3 have arbitrary and illegally rejected the whole claim of the complainant qua this fact. It is also evident from the report of the surveyor Ex.R3 that the surveyor had only consider the damage to the Bumper/Intercooler/Carrier and Oil Sump, which was caused due to external accidental means. Furthermore OP1 to OP3 has submitted that claim has been paid to the complainant, but has not placed on record any such proof regarding the payment of the claim to the complainant.

13.              In view of the above discussion, the present complaint is partly allowed and OP1 to OP3 are directed to reopen the claim file of the complainant and depute another surveyor to assess the loss of the vehicle and thereafter settle and pay the claim of the complainant on the basis of the report of the surveyor, so submitted by the surveyor. Further OP1 to OP3 are directed to pay Rs.10,000/-(Ten thousand only) as compensation and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President Announced in Open Forum.

Dated:30.03.2015 

Hardeep Singh