Punjab

Hoshiarpur

CC/14/168

Dr. Sarita Gulati - Complainant(s)

Versus

IFFCO TOKYO General Insurance Co. Ltd. - Opp.Party(s)

Sh. Deepak Marwaha

25 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM HOSHIARPUR
(3RD FLOOR, DISTRICT ADMINISTRATIVE COMPLEX, HOSHIARPUR)
       
             Complaint No. 168 of 2014.
             Date of Institution: 05.08.2014.
              Date of order: 25.03.2015.

Dr. Sarita Gulati, aged 60 years, W/o Dr.Naresh Gulati, Gulati Hospital and Maternity Home, Hira Colony, Hoshiarpur. 

        Complainant.

           VERSUS

1.IFFCO TOKYO General Insurance Co. Ltd. IFFCO Towers, 4th & 5th Floor, Plot No.3, Sector-29, Gurgaon 122001 (Haryana) through its Managing Director. 

2.Lally Motors Pvt. Ltd. G.T. Road, Pragpur Distt. Jalandhar through its Managing Director. 
       Opposite parties. 

Complaint U/S 12 of the Consumer Protection Act 1986.

Quorum:    Sh. Naveen Puri, President.
    Mrs.Vandna Chowdhary, Member.
    Mrs. Sushma Handoo,Member. 

Present:     Sh.C.S.Marwaha, Advocate, counsel for the complainant.
      Sh.Varun Gupta, Advocate, counsel for the Ops No.1.
            OP No.2 exparte.

ORDER:

Naveen Puri, President.
                
1.     Complainant Dr.Sarita Gulati has filed the present complaint U/s 12 of the Consumer Protection Act, 1986 (for short the C.P. Act) through which she has prayed that the opposite parties be directed to pay Rs.2,63,650/- alongwith interest @ 24% per annum from 10.7.2013 till its realization. She has further claimed Rs.25,000/- for the mental agony, harassment and inconvenience suffered by her from the opposite parties. She has also claimed Rs.10,000/- as litigation expenses.
2.      The case of the complainant in brief is that she owned a “Honda Civic/1.8V MT” Car bearing registration No.PB-07-T-4600 which was insured by her with the opposite party no.1 through opposite party no.2 by paying Rs.8530/- as premium. It was stated that opposite party no.1 has professional dealings with opposite party no.2. Opposite party no.1 has issued a policy bearing No.ITG/82037800 for the period 19.9.2012 to 18.9.2013 as such complainant is the consumer of the opposite parties. It was stated that on 15.6.2013 at about 11.30 A.M. complainant went to Scan Centre situated at Jalandhar Road, Hoshiarpur from her residence situated at Hira Colony Hoshiarpur. Suddenly rain  started and there was small amount of rain water on the road. Complainant was driving the car at a very low speed of 15-20 K.M. per hour. It is pertinent to mention here that the car was going to the current of rain water and not against the current of rain water. It was further stated that there was very small amount of water on the road as there was no heavy rain in the City Hoshiarpur on 15.6.2013. It was also stated that complainant was shocked because the car was suddenly stopped and she gave the intimation to the opposite party no.2. They deputed the employee at the site who towed the car at the workshop of opposite party no.2. Claim was also lodged by the complainant with the opposite party no.1 who assured the complainant the payment of claim will be early made. All the documents which were required by the opposite parties have been supplied by the complainant. Opposite party no.1 has also deputed a Surveyor to investigate the matter who also assured the complainant for early payment. It was further stated that complainant was very much surprised when she received a letter dated 19.6.2013 from Mr.Khanna Sanjeev Surveyor alleging therein that the rain water entered into the engine of the vehicle and the engine was found jammed. It was further alleged by him that the engine can only be damaged due to mechanical defect or trying to run the vehicle when the same in the contact of water. It was informed by him that the liability of opposite party no.1 is limited only to clean the part of the vehicle and the question of loss is out of scope of the standard coverage under the policy. It was also stated that complainant informed the Surveyor and also the opposite parties that there was no type of negligence in driving the vehicle, nor there was any mechanical defect as alleged by the Surveyor, nor there was any condition in the policy to exclude the claim in question. She has further alleged that letter dated 19.6.2014 is illegal, wrong and not based on the actual facts. Complainant was also surprised when she received a demand draft of Rs.9765/- from the opposite party no.1 through opposite party no.2 as full and final settlement of the claim in question. It was further stated that complainant has suffered a loss of Rs.2,63,650/- which was paid by her to the opposite party no.2 as there was no option with the complainant except to pay the same. Complainant informed the opposite parties that this amount was not acceptable to her and she returned the original draft to opposite party no.1. Complainant requested the opposite parties to pay the actual amount spent by her but after delaying the mater with one pretext or the other they refused to accept her genuine request, hence this complaint.
3.      Upon notice, the OP no.1 appeared and filed the written reply by taking the preliminary objections that the present complaint is not maintainable, complainant is not a consumer as such Hon’ble Forum has no jurisdiction to try and entertain the present complaint, complainant is estopped from filing the present complaint by his own act and conduct and present complaint is false, frivolous and vexatious and is liable to be dismissed. Remaining preliminary objections are taken in routine. On merits it was admitted that complainant insured the said vehicle with the opposite party after going through all the terms and conditions of the policy and paid the premium against the said policy. It was submitted that complainant purchased the above said policy from the opposite party which was a accidental policy but no damage was caused to the vehicle of the complainant. It was further submitted that the above said vehicle stopped working as the complainant negligently crossed from the water due to which engine of the vehicle stopped working.  It was denied that opposite party assured the complainant that they will pay the claim amount early to her. It was further submitted that after receiving the claim from the complainant opposite party deputed Khanna Sanjeev Surveyor who assessed the loss after checking the vehicle of the complainant and found that complainant run the vehicle in rainy water due to which engine of the vehicle was jammed and in this situation opposite party having limited liability to the extent of cleaning the parts and further the opposite party has no liability as per the provisions of Insurance Law. It was also submitted that a letter dated 19.6.2013 was issued by the Surveyor with the remarks that the company shall not be liable to pay in respect of; Consequential Loss, depreciation, wear and tear, mechanical breakdown, failure or breakages. Such losses to parts due to water ingressions are clearly out of the scope of standard coverage under Section 1 of policy. It was submitted that after receiving the report from the Surveyor and as per the same the opposite party paid the entire claim to the complainant as per the terms and conditions of the policy. It is further stated that the letter issued by the Surveyor is legal and valid. It was further submitted that opposite party is a General Insurance Company registered under the provisions of the Insurance Act, 1938, IRDA Act, 1999 and they do their work under the guidelines issued by the IRDA so the question of unfair trade practice as alleged by the complainant does not arise and there is no deficiency in service on the part of the opposite party. Remaining averments made in the complainant have been denied. Lastly, the complaint has been prayed to be dismissed with costs.
4.       Notice was issued to opposite party no.2 but the same had not been received back so the opposite party no.2 was proceeded against exparte vide order dated 9.9.2014.
5.       Parties have led their evidence supported by the duly produced documents and their learned counsels have put forth their respective arguments that have been duly considered and evaluated along with all other material available on record.
6.       From the pleadings and evidence on record it is clear that the complainant got her Honda Civic Car bearing no.PB-07-T-4600 comprehensively insured from the OP No.1 vide policy No.ITG/82037800 for the period 19.09.2012 to 18.09.2013 as such is a consumer of the OP. It is the case of the complainant that on 15.6.2013  at about 11.30 am while going to scan centre  situated at Jalandhar Road, Hoshiarpur from her residence situated at Hira colony, Hoshiarpur, all of a sudden rain started and there was small amount of rain water  on the road. The car suddenly  stopped and intimation was given to the OP No.2 who deputed  the employee at the site and the car was towed by him at the workshop of OP No.2. The complainant suffered a  loss of Rs.2,63,650/- on account of this occurrence, which amount was paid by her to OP No.2.  It is further submitted  that there was no negligence on the part of the complainant nor there was any mechanical failure as alleged by the surveyor in his letter dated 19.6.2013 and as such she is entitled for the insurance claim. On the otherhand the counsel for the OP has argued that after receiving  intimation  of the claim, OP deputed Sh.Sanjeev Khanna, Surveyor  to assess the loss. The said surveyor found that the complainant has run the vehicle in rainy water and as such the engine was jammed. So, the OP has submitted that they have limited liability to the extent of cleaning  of the parts only  and have no liability as per the provisions of Insurance law. It is further submitted that the company is not liable to pay in respect of consequential loss, depreciation, wear and tear, mechanical breakdown, failure or breakages.  The losses to parts due to water ingression are out of the scope of standard coverage.
7.    From the entire above discussion, we find that there is no evidence, on record, to  the effect that when the car stuck in the mid of water, the complainant  continued to start the same, as a result whereof, damage was caused to the engine.  Hydraulic locking took place due to ingestion of water through intake system and due to  rain water on the road. There was no negligence on the part of the complainant, while driving the vehicle. Since the vehicle stopped, in the mid of water on the road and there was ingression of water through the air intake system, resulting  into the damage to the engine, which according to our opinion is covered within the accident clause of the Insurance policy issued by the OP No.1. From the evidence on record it is proved that all the necessary precautions were taken by  the complainant while driving the vehicle. Moreover, no evidence was produced by the OP to the contrary.  In Kanta Dhir Vs. M/s The Manager ICICi Lombard & Anr. , Appeal case No.830 of 2007 decided on 24.10.2008 by Hon'ble Chandigarh  State  Commission held that if a person is going, in the car, and all of a sudden rain starts and the water accumulates in the intersection and enters the engine or engine is seized then it is not the fault of the insured and the Insurer is liable to reimburse the claim. In TATA AIG General Insurance Company Limited V/s M/s Ayushveda Informatics (India) Pvt. & Ohters First Appeal No. 34 of 2012 decided on 9.2.2012 by Hon'ble Chandigarh State Commission, it was held that  if the engine is seized all of a sudden in the mid of the road, in the water, while it is raining and there is no attempt, on the part of the driver to start the vehicle, the damage to the engine cannot be said to be a consequential  damage, due to the negligence of the driver, and, as such the claim could not be denied by the Insurance Company. Similar observations were made in New India Assurance Co. Ltd. Vs. V.K. Bawa, Appeal case No. 428 of 2009 decided on 11.11.2009 by    Hon'ble Chandigarh State Commission.  Lastly, we find that all the citations referred above were relied upon by the Hon'ble Chandigarh State Commission in a recently decided similar circumstanced case titled as Bajaj Allianz General Insurance Co. Ltd.,  Vs. M/s.Pioneer Electronics & others reported in  2014(3)CLT at page 415. 
8.    In view of the above discussion and law laid down by the Hon'ble Chandigarh State Commission,U.T, Chandigarh,  we are of the view that the damage to the engine cannot be said to be a consequential damage due to the negligence of the driver and as such we find that such a loss is covered within the accidental clause of the insurance company. Hence, we direct the OP No.1  to pay the insurance claim i.e., Rs.2,63,650/-, to the complainant besides payment of Rs.10,000/- as compensation and Rs.2,000/- as litigation expenses within a period of 30 days from the date of receipt of copy of order failing which the aggregate amount will attract interest @ 9% from the date  of order till its realization and  proceedings u/s 27 CPA shall be initiated against the OP. Copy of the order be sent to the parties free of cost. After compliance, the file be consigned to the records. 
Announced.
25.03.2015

                      (Naveen Puri )
                                                         President 

        (Mrs.Vandna Chowdhary)    (Mrs. Sushma Handoo) 
                Member                             Member 
MK