Haryana

Bhiwani

CC/90/2021

Sunil - Complainant(s)

Versus

Iffco tokio - Opp.Party(s)

A.K Vashisth

01 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSASL COMMISSION, BHIWANI.

                                                                Complaint Case No. : 90 of 2021

                                                                Date of Institution    : 23.04.2021

                                                                Date of decision:      : 01.03.2024

 

Sunil son of Sh. Rameshwar R/o village Bhangarh, Tehsil and District Bhiwani.

                                                            ...Complainant. 

 

                                                    Versus.

1. Branch Manager, IFFCO TOKIO, General Insurance Company Limited, 1^st Floor, Minerva Complex Rai Market, Ambala Cantt, Ambala-133001.

 

2. SPL Motors Private Limited, Opp. LPS Ltd. Hisar Road W: Plot No.161, HSIIDC, New Industrial Area, Hisar Road, Rohtak, Haryana-124001 through its Authorized Signatory/Agent.

 

...Opposite parties.

 

COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT, 2019.

Before: -       Mrs. Saroj Bala Bohra, Presiding Member.

                    Ms. Shashi Kiran Panwar, Member.

Present:        Sh. A.K. Vashisth, Advocate for complainant.

Sh. Rajbir Singh, Advocate for OP No.1.

OP No.2 exparte.

  

                                                  ORDER

 

SAROJ BALA BOHRA, PRESIDING MEMBER:

1.                 Brief facts of this case are that complainant is registered owner of a car Honda Siel bearing registration no. HR-16P-0142 which was insured with OP No.1 vide policy No.ITG/82808731 valid from 21.09.2020 to 20.09.2021 for which he paid premium 19,245/-.  OP No.2 is authorized workshop of Honda Company.  On 15.11.2020, complainant was coming from Hisar to his village Bhangarh.  In the way, engine of the car stopped working due to heavy rain. On 16.11.2020, at about 11: 00 AM, complainant called crane service and got parked the car at Marit Honda Agency, Rohtak for its repairs and after three months, car was handed over to complainant and complainant was forced by OP No.2 to pay Rs.89,549/- as repair charges of the car despite the fact that car was insured comprehensively for zero depreciation.  As per complainant, he lodged claim for the said amount with OP insurance company submitting all necessary documents/bills but OP No.1 only released Rs.32,373/-. So, legal notice dated 18.03.2021 was served upon the OP to pay remaining amount of Rs.57,156/- but of no avail. Hence, the present complaint has been preferred by complainant alleging deficiency in service on the part of OPs resulting into monetary loss as well as harassment, as such, sought directions against the OPs to pay Rs.57,156/- to the complainant alongwith interest @18% per annum from the date of accident till payment, further to pay Rs.20,000/- on account of delayed delivery of the vehicle by OP No.1 due to which complainant had to hired another vehicle for a period of two months as rent Rs.10,000/- per month, further to pay Rs.20,000/- towards compensation for harassment and Rs.22,000/- as litigation expenses. Any other relief to which this Commission deems fit has also been sought.

2.                 Upon notice, OP No.2 did not bother to appear, as such, it was proceeded against as exparte vide order dated 30.07.2021.

3.                 OP No.1 appeared through counsel and tendered reply raising preliminary objections qua maintainability, locus standi and suppression of material facts by complainant.  On merits, it is admitted that the vehicle was insured for the alleged period but the loss caused to the vehicle was due to sole negligence of complainant as he tried to start engine of the vehicle when vehicle was stopped in water logged area which is against terms and conditions of insurance policy. It is urged that zero depreciation policy does not mean to cover entire repair cost without any assessment or conditions.  On receiving intimation of loss to vehicle, surveyor was appointed who submitted his report dated 09.02.2021, who observed that complainant has breached the policy conditions since as per statement of complainant, he tried to start the engine of the car while it was stopped in water logged area resulting damage to the engine due to water ingression. As such, 45% amount of assessed loss was deducted and Rs.32,373/- was directly paid to OP No.2 as a cashless settlement. Further, an amount of Rs.1500/- as maximum covered towing charges direction paid to insured’s bank account through NEFT on 20.02.2021. Thus the OP has denied any deficiency in service and prayed for dismissal of the complaint with costs.

4.                 Learned counsel for complainant tendered in evidence affidavit of complainant as Annexure CW1/A alongwith documents Annexure C-1 to Annexure C-8 and closed the evidence.

5.                 On the other side, affidavits Ex.RW1/A & Ex.RW2/A of Sh. Hardeep Singh, authorized signatory and Sh. Aman Behal, Surveyor, respectively and documents Ex. R1/1 to Ex. R1/4 were produced on behalf of OP No.1 and closed the evidence.

6.                 We have heard learned counsel for the contesting parties and perused the record carefully.

7.                 Admittedly, the OP insurance company has released Rs.32,373/- against the claimed amount of Rs.89,549/-.  Surveyor’s report (Annexure R1/3) mentions that ‘insured cranked the engine as per his statement, case was discussed with concerned authority and we are paying 55% of the liability amount.’ So, 45% is deducted.’  Learned counsel for complainant to rebut such contentions of OP insurance company has placed reliance on case law delivered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi titled as Branch Manager, OSL Hyundai Vs.Ruparanjan Das & 3 Ors. Revision Pettion 598 of 2021 decided on 25.10.2021 wherein it is observed that ‘…….It is proved that water entered in engine of car which has damaged engine piston etc. According to OP, water entered in the engine through air filters as complainant has run the car in flooded area- But OP failed to prove that car was run in flooded area-Thus only dispute between patties is as to whether rain water entered the engine, which is normally not possible except for manufacturing defect in car-Complaint allowed-Direction issued to OP to repair the vehicle as per repair estimate, free of cost and deliver vehicle in perfect running condition to complainant. We have gone carefully through the citation.

8.                 In view of the above discussion, we are of considered view that the engine may have stopped working due to some manufacturing defect or otherwise. In this regard, case law (supra) relied upon by counsel for complainant is much relevant. Thus OP No.1 insurance company has wrongly denied the genuine claim of complainant in an arbitrary and negligent manner for which he has to knock doors of this Commission.  From bill Annexure C-5, it is clear that a sum of Rs.85,349/- were incurred for repairs of the vehicle but only a sum of Rs.32,373/- paid by OP insurance company.  As such, the complainant is entitled to a sum of Rs.52,976 from OP No.1.  Further, this litigation must have caused monetary loss as well as mental and physical harassment to the complainant.  Accordingly the complaint is allowed and OP No.1 is directed to comply with the following directions within forty days from the communication of this order:-

1. To pay a sum of Rs.52,976/- (Rs. Fifty two thousand nine hundred seventy six) to the complainant alongwith simple interest @ 9% per annum from the date of institution of complaint to till its realization.
2. Also to pay a sum of Rs.5000/- (Rs. Five thousand) on account of harassment  caused to the complainant.

(iii)     And to pay a sum of Rs.5500/- (Rs. Five thousand five hundred) on account of litigation expenses.

                    In case of default, all the awarded amounts shall further attract simple interest @ 12% per annum for the period of default. 

                    If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both.  Copies of this order be sent to the parties concerned, free of costs.  File be consigned to the record room after due compliance. 

Announced.

Dated: 01.03.2024.