BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY
C.C.No.112/2010
Dated this the 4th day of October 2017
(Date of Institution: 30.11.2010)
N. Balu, son of Narayanasamy,
No.4 & 5, 7th Cross, Kumaran Nagar,
Lawspet, Puducherry – 605 008.
…. Complainant
Vs
1. M/s International Cars & Motors Limited
Rep. by its Authorised Signatory
Pankaj Plaza-1, Plot No.2,
Karkardooma Community Centre
Commercial Complex, New Dehil – 110 092.
2. M/s Rajeswari International Cars rep. by its
Authorised Signatory
No.3, Ramakrishna Complex
Murungapakkam, Puducherry – 605 007
3. The Branch Manager
The New India Assurance Company Limited
No.30, Jawaharlal Nehru Street
Pondicherry – 605 001.
…. Opposite Parties
BEFORE:
THIRU.A.ASOKAN, B.A., B.L.,
PRESIDENT
Thiru V.V. STEEPHEN, B.A., LL.B.,
MEMBER
Tmt. D. KAVITHA, B.A., LL.B.,
MEMBER
FOR THE COMPLAINANT: M/s Law Solvers, Advocates
FOR THE OPPOSITE PARTIES: OP 1: Thiru M.V. Ramachandra Murthy,
Advocate
OP2: Thiru A. Karunamoorthy, Advocate
OP3: Thiru B. Mohandoss, Advocate
O R D E R
(by Thiru V.V. STEEPHEN, Member)
This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the third opposite party to sanction the Insurance Claim in respect of the vehicle PHINO RX SUPER DELUXE Sedan (Black Colour) insured with them under Policy No. 711002/31/08/01/00005763; directing all the opposite parties to pay a sum of Rs.3,00,000/- towards compensation and for mental agony and deficiency of service and to pay a sum of Rs.10,000/- being the cost of the complaint.
2. The case of the complainant is as follows:
The complainant purchased a RHINO RX SUPER DELUXE Sedan (Black Colour) with Chasis No. SARDPHXOO3597 and Engine No. G1408508G03142 manufactured by the first opposite party and marketed by second opposite vide invoice No. 39 dated 29.08.2008 for Rs.7,68,720/- and the vehicle was registered with Transport Department, Government of Puducherry with Registration No. PY 01 AS 9899 and the vehicle was insured with the third opposite party vide policy No. 711002/31/08/01/00005763. That on 12.03.2010 at about 11.30 a.m. while the complainant was driving the vehicle at Mammpakkam, Chennai, all of a sudden a fire broke out in the engine compartment. The vehicle was immediately brought to a halt and the fire was extinguished, however the engine was destroyed. The second opposite party notified the accident and the vehicle was towed to its service station on 14.03.2010. On assessment of the damages, the second opposite party had issued an Estimate dated 15.03.2010 quantifying the estimated cost of repairs at Rs.2,04,233/-. The complainant submitted Insurance Claim Application with the third opposite party on 16.03.2010 and has been informed that one S. Swaminathan, Surveyor had inspected the car and informed that reply was awaited from the second opposite party, as to the probable cause of the fire accident to process the claim application. The complainant stated that the second opposite party apart from informing the Surveyor that the fire might not be due to any manufacturing defect, had also ruled out electrical short circuit. Though the second opposite party had ruled out certain causes of the fire, they have failed to give the exact cause of the fire. The complainant also written to the concerned service station requiring similar clarifications but to no avail. The complainant's claim application has remained dead since then. Repeated requests and pleadings have not evoked any positive response from any of the opposite parties. The complainant further stated that he had taken the vehicle under Hire Purchase Contract, with M/s Sundaram Finance and is till date paying a sum of Rs.24,000/- as E.M.I. The complainant issued an Advocate Notice to the opposite parties dated 6.7.2010, though the same was acknowledged by the opposite parties, the first opposite party alone issued reply. The vehicle is till date standing in the shed of the Second Opposite Party and the complainant is being charged Rs.200/- per day towards demurrage due to the delay caused by the opposite parties. The vehicle is rendered useless and is depreciating in value day by day, causing huge monetary loss to him. The act of all the opposite parties, despite regular follow up by the complainant, amounts to nothing less than deficiency in service thus rendering each of them liable for action under the Consumer Protection Act. Hence, this complaint.
3. The reply version filed by the first opposite party briefly discloses the following:
The complaint is not maintainable either in law or on facts. This opposite party admitted that the complainant has purchased a RHINO RX SUPER DELUXE Sedan (Black Colour) on 29.08.2008 and the same was registered with Transport Department, Puducherry. This opposite party stated that the complainant avered in the complaint that the second opposite party apart from informing the Surveyor that the Fire might not be due to any manufacturing defect, had also ruled out electrical short circuit and hence, the relief claimed as against this opposite party has to be dismissed without any consideration. For the legal notice, this opposite party given detailed reply stating that "there was no manufacturing defect in the vehicle of the complaint and moreover the said vehicle is also out of warranty". Hence, this opposite party is not a necessary party to the above complaint. This opposite party further stated that the vehicle has no manufacturing defect and the vehicle is also out of warranty and as such, the first and second opposite party has no role to play in this complaint and even apart the 2nd opposite party has also given in detail the reason for the fire and also the estimate for repair and as such the claim as against the first and second opposite parties for deficiency in service is unsustainable. Hence, prayed for dismissal of the complaint.
4. The reply version filed by the second opposite party briefly discloses the following:
Apart from denying all the allegations, this opposite party stated that the complaint is neither maintainable in law nor on facts. This opposite party stated that the vehicle purchased on 29.08.2008 whereas, he has been filed the complaint on 29.09.2010 and hence, the complaint is liable to be dismissed on the ground of limitation. This opposite party has been wrongly impleaded in order to harass and spoil its reputation. Further stated that the alleged accident is under suspicious circumstances which already have been noted by the report of the Surveyor. The said Surveyor report has not been challenged by the complainant for the reason known to him and hence, the complaint liable to be dismissed for want of specific cause of action. Further stated that since the vehicle has been repaird for which the complainant approached this opposite party who made estimate for the said repair. Instead of repairing the said vehicle, the complainant has simply filed the above said complaint without any justification and thereby damaged the reputation of this opposite party. The repair of the vehicle might not due to manufacturing defect which was duly informed and issued estimate for the said repair. But the complainant for the reason best known to him had simply alleged that this opposite party failed to give exact cause of fire is nothing but vexatious and illegal. Already the first opposite party replied for the notice issued by the complainant suitably but the complainant in order to harass, damage and grab money from the opposite parties has filed the complainant vexatiously and illegally. Further the complainant has not used the said vehicle for his own use and he has been hired to third parties and therefore, he is not come under the purview of Consumer. This opposite party further stated that once he know the value of the repair and without rectifying the said repair by making payment the complainant filed this complaint. The opposite parties are not liable for his own act. Hence, prayed for dismissal of this complaint.
5. The Reply Version filed by the third opposite party briefly discloses the following:
The complaint is not maintainable either in law or on facts. This opposite party admitted that the motor vehicle bearing Reg.No.PY-01-AS-9899 was insured with the 3rd opposite party under policy No. 711002/31/08/01/00005763. allegation that on 12.03.2010 while the complainant was driving the vehicle at MammaPakkam, Chennai, all of a sudden a fire broke out in the engine compartment that the vehicle was immediately brought to a halt and the fire was extinguished and that by the time the fire was extinguished the entire engine compartment was destroyed has to be proved by the complainant. This opposite party admitted that complainant has submitted his Insurance claim application and that the Surveyor S. Swaminathan who had inspected the car was awaiting reply from the OP2 regardng the probable cause of the fire accident to process the complainant's claim application. The OP2 has informed that the fire might not be due to any manufacturing defect and has also ruled out electrical short circuit. The averments relating to Higher Purchase Contract with M/s Sundaram Finance has to be established by the complainant. This opposite party received advocate notice dated 06.07.2010 from the complainant, but, the complainant cannot find fault with the 3rd OP for not processing the claim of the complainant as like by the Complainant. The complainant’s own averments in paragraph No.5 discloses that the complainant has also written to the concerned service station requiring clarification regarding cause of fire in his vehicle on 12.03.2010. When the above material facts were within the knowledge of the complainant even prior to the sending of advocate notice dated 06.07.2010 thus disclosing the inability of the 3rd OP to accept the claim of the complainant the non-sending of the reply is not material. This opposite party is a public undertaking and it can not take arbitrary decision in settling claims of the insured persons. It has to apply its mind over the facts and circumstances attending to the claim of the insured in the light of the relevant terms and conditions of the Insurance Policy which is a contract binding on both the parties. This opposite party further stated that notice shall be given in writing to the company immediately upon the occurrence of any accident loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. In the case on hand the cause and nature of accident cited in the claim form submitted by complainant did not spell about origin of fire. As the complainant’s version is that while driving the vehicle fire broke out in the engine compartment all of a sudden, fire origination from external source is ruled out. Moreover the surveyor’s enquiry with repairer revealed that chances of wrong filling of fuel petrol instead of diesel on the way and inadvertent pumping of fuel using lift pump immediate on stopping was also ruled out after thorough check up by dealer as overflowed petrol on hot engine may result in fire. To add further the Service Engineer Rajkumar deputed by the manufacturer, the 1st opposite party has inspected the vehicle immediately on receipt at dealer point and mailed his observation to the manufacturer / company and on the request of surveyor during 3rd week of March 2010, verbally agreed to forward but did not forward till date in spite of reminders by email given by surveyor. Further stated that the complainant has not supported his claim with FIR/CSR to conclude that the vehicle caught fire during running/ moving. In fact the above points were brought to the attention of the complainant by surveyor Swaminathan through letter dated 10.11.2010 and copy of the same was sent to the 2nd opposite party but is has not evoked any response. It is strange that without discharging his contractual obligation towards this OP, the complainant finds fault with the OP No.3. There is no negligence committed by the OP No.3 in processing the claim of the complainant. Under such circumstances the OP No.3 is not at fault and the complainant cannot have any valid grievance in this regard. There is no cause of action for the complainant against the OP No.3 since there is no deficiency in service committed by him towards the complainant. The non-settlement of the claim of the complainant was for a bonafide cause and there is no malafide intention on the part of the OP No.3 in this regards. Hence, prayed for dismissal of the complaint.
6. The complainant was examined as CW1 and Exs.C1 to C10 were marked through him and OP2 was examined as RW1 through D. Selvam, the Authorised Signatory of OP2 and Exs.C11 to C13 were marked through cross examination of RW1, Mr. M. Ramesh Babu, Senior Branch Manager representing OP3 was examined as RW2 and Exs.R1 to R5 were marked and S. Swaminathan, Proprietor of Crystal Surveyor on behalf of OP3 was examined as RW3.
7. Both side records and evidences were carefully examined by this Forum and Observation follows:
8. Points for determination are:
- Whether the Complainant is a Consumer?
- Whether the opposite party attributed deficiency in service as alleged by the complainant?
- Whether the complainant is entitled for any relief?
9. Point No.1:
The complainant purchased Rhino RX Super Delux Sedan (black colour) manufactured by the OP1 from the OP2 vide Ex.C1 and insured with OP3 vide Ex.C3 and hence, the complainant is a Consumer as against the OPs as per Sec. 2 (1) (d) (ii) of C.P. Act. This point is answered accordingly.
10. Point No.2:
It is submitted by the complainant that on 12.03.2010 while the complainant was on his drive in the Car purchased from OP2 at Manapakkam Chennai, a fire broke out suddenly from the engine of the car and immediately, the Car was brought to a halt and extinguished the fire. On intimation of the Fire Accident of the Car to the OP2, the car was towed to the Service centre of OP2 wherein, it was informed to the complainant that the Fire Accident was not due to manufacturing defect, but failed to reveal the exact cause of fire and estimated the cost of repair at Rs.2,04,233/- and the same was informed to the OP3 who was the insurer of the vehicle and a claim application was submitted by the complainant for processing the same. It was further submitted by the complainant that the Surveyor of OP3 informed the complainant that reply was awaited from OP2 ascertaining the actual cause of fire for processing the claim application of the complainant and the complainant also sought for similar clarification from the OP2, but failed to respond and the OP3 also failed to act upon the claim application submitted by the complainant despite several requests / reminders sent to the OP3. Hence, this complainant.
11. The OP2 submitted that the complainant was duly informed that fire accident was not due to any manufacturing defect and it has given the estimated cost of repair for the car and submitted that the complainant was informed that the car is out of warranty period and only on payment of charges referred in the estimation bill, it can be repaired, but the complainant has not paid the same and submitted that for no fault of OP1 and OP2, they were impleaded as party to the present complaint vexatiously and hence, prayed for dismissal of the complainant
12. The OP3 submitted that the OP2 failed to clarify the exact cause of fire for the fire accident of the car of the complainant, which is a condition precedent for processing the claim application and hence, it was not able to process the same by the OP3 and submitted that there is no negligence or deficiency on the part of OP3 and hence, prayed for dismissal of the complainant.
13. The complainant purchased the car Rhino RX Super Delux Sedan (black colour) from OP2 manufactured by the OP1 and insured with the OP3 and these facts are admitted by respective OPs and it is also admitted by OP3 that the car of the complainant is under the coverage of fire policy (Ex.R1 – page 2) and the fact that the car of the complainant was damaged by fire is also not disputed by the OP3 but, closed the claim on the ground that the cause of fire was not made known to the OP3 either by the insured / complainant or the OP2 who is the authorised dealer of the car manufactured by the OP1. It is observed that the E-mails Exs.C12 and C13 and the letter Ex.C6 sent by OP3 and the complainant seeking clarification for the probable cause of fire were not answered by the OP1 and OP2 and further OP2 in his evidence admitted in the cross examination that they have not given any finding as to the probable cause of fire, thereby attributing negligent and deficient acts by OPs 1 and 2 leading to denial of insurance amount to the complainant by OP3.
14. It is observed by the Forum that even though OP1 and OP2 acted negligently in not providing the information sought by the OP3 for processing the claim application of the complainant, the Surveyor Report Ex.R2 is self-sufficient for processing the claim application by OP3. On perusal of Surveyor Report Ex.R2, it is observed that the Surveyor was given a report detailing the possible causes of fire which have been ruled out in this case except for the cause of fire origin and the Surveyor himself has opined in his report that it is difficult to find out the probable cause of fire origin. The Survey Report reads as follows:
"As per Insured's version / claim form, the fire originated during running of the car and so, external source of fire origin is eliminated.
On my enquiry with repairer, it was ascertained that chance of wrong filling of fuel (.i.e.) Petrol instead of Diesel on the way and inadvertent pumping of fuel using lift pump immediate on stopping was also ruled out after thorough checking by dealer as overflowed petrol on hot engine may result in fire.
Electrical fire origin was checked in detail and ruled out by dealer / manufacturer' service engineers……"
So, all the possible causes of fire were ruled out by the Surveyor in his report. Excepting for the reason of non-disclosure of origin of fire OP1 and OP2, denial of the claim of the complainant by OP3 is unjustifiable. If the OP3 finds it necessary that the origin of the fire has to be looked into for processing the claim application, then OP3 itself can depute an Expert to find out the same and act accordingly in processing the claim application in the interest of the complainant, but the OP3 has not chosen to do so instead of which OP3 simply closed the file by shifting the burden to OP1 and OP2. Hence, the contention of OP3 that since OP1 and OP2 has not given the cause of origin of fire, the claim application was not processed is not tenable and cannot be taken into consideration.
15. The OP3 cited list of authorities in support of their contention.
- Shiv Trading Company vs. New India Assurance Company Limited CDJ 1996 (Cons) Case No. 075 NC
On the perusal of this citation, it is observed that the Insurance Company has appointed an Investigator to find out the cause of fire and found out that it is not the case of accident but was arranged by the party himself to cover the loss through false claim, hence, on the report of the Investigator and Surveyor Report, the claim was repudiated by the Insurance company, but in the present case on hand, the OP3 / Insurance company has not taken any steps to appoint any Investigator or Expert to find out the origin of the Fire in the interest of the complainant for processing the claim application. Instead, OP3 closed the application for the reason that the cause of the fire was not made known to the OP3 by OP1 and OP2 despite a detailed undoubtful report of fire accident submitted by the Surveyor, hence, the case referred herein by OP3 does not support the contention of the OP3.
16. Similarly, all other cases referred by OP3 cited below differs from facts of the present case and does not support the contention of the OP3.
- Consumer United and Trust Society vs The Chairman & Managing Driector, Bank of Baroda, CDJ 1995 SC 188.
- Ravneet Singh Bagga vs M/s KLM Royal Dutch Airlines, CDJ 1999, SC 675
- National Insurance Company Ltd., vs. Rais Abbas Naqvi, CDJ 1996 (Cons.) Case No. 072 (NC)
It is further observed by the Forum that the vehicle of the complainant is not covered under the warranty as per the reply notice Ex.C8 given by OP1 and in that case, even assuming that the origin of fire was due to any manufacturing defect, replacement / repair could not be possible without payment of appropriate charges to the service centre concerned. Hence, despite the detailed report of Surveyor the act of OP3 clinging on to the trivial reason that since OP1 and OP2 has not provided the cause of origin of fire the claim was not processed cannot absolve OP3 from the liability towards the complainant. Further, the OP3 in his evidence has stated that the closing of claim form was not intimated to the complainant and the act of OP3 in not intimating the complainant that the claim of the complainant was closed also amounts to deficiency of service by OP3. For no fault of the complainant, the OPs have caused the complainant to undergo monetary loss, great hardship and mental agony. It is further observed by the Forum that the incident occurred in 2010 and the damaged car left in the office of OP2 almost for seven years unattended would have rendered worthless causing monetary loss to the complainant and it is just and fair that the complainant has to be compensated reasonably for the hardship undergone by the complainant due to the act of the OPs.
17. In view of the discussions held supra, it is held that the OPs are liable for monetary loss and mental agony due to the deficiency of service by the OPs and the complainant is entitled for the insurance claim of the car from the OP3 and for other reliefs.
18. POINT No.3:
In the result, this complaint is allowed.
- The OP3 is directed to pay a sum of Rs.1,15,490.45 towards the insurance claim of the vehicle of the complainant as per the Surveyor's Report.
- The OP3 is directed to pay a sum of Rs.50,000/- as compensation towards mental agony and deficiency of service and Rs.2,500/- towards the cost of the proceedings.
- The OPs 1 and 2 are directed to pay a sum of Rs.50,000/- as compensation towards mental agony and deficiency of service and Rs.2,500/- towards the cost of the proceedings.
Dated this the 4th day of October 2017.
- ASOKAN)
PRESIDENT
(V.V. STEEPHEN)
MEMBER
(D. KAVITHA)
MEMBER
COMPLAINANTS' WITNESS:
CW1 29.02.2012 N. Balu
OPPOSITE PARTY'S WITNESS:
RW1 04.02.2014 P. Damodara Counder
RW2 22.07.2014 M. Ramesh Babu, Sr. Branch Manager
RW3 17.09.2014 S. Saminathan, Proprietor Cystal Surveyor
COMPLAINANT'S SIDE DOCUMENTS:
Ex.C1 | 29.08.2008 | Photocopy of Tax Invoice of OP2 |
Ex.C2 | 29.08.2009 | Photocopy of RC Book of the car bearing Regn. No. PY 01 AS 9899 |
Ex.C3 | 28.08.2009 | Photocopy of Insurance Certificate issued by The New India Assurance Company Limited |
Ex.C4 | 13.01.2000 | Photocopy of Driving Licence of Complainant |
Ex.C5 | 15.03.2010 | Photocopy of Estimate given by OP2 |
Ex.C6 | 31.03.2010 | Photocopy of letter from complainant to OP1 requesting a certificate |
Ex.C7 | 06.07.2010 | Photocopy of legal notice issued by Counsel for complainant to Opposite Parties |
Ex.C8 | 27.07.2010 | Photocopy of reply notice by OP1 to Counsel for complainant |
Ex.C9 | 10.07.2010 | Photocopy of Acknowledgement card of OP2 |
Ex.C10 | 09.07.2010 | Photocopy of Acknowledgement card of OP3 |
Ex.C11 | 24.04.2010 | Photocopy of Inspection Report issued by Crystal Surveyors marked through RW1 |
Ex.C12 | 06.07.2010 | Photocopy of Email sent by Crystal Surveyors marked through RW1 |
Ex.C13 | 30.05.2010 | Photocopy of Email sent by Crystal Surveyors marked through RW1 |
OPPOSITE PARTY'S EXHIBITS:
Ex.R1 | 28.08.2009 | Photocopy of Insurance Certificate issued by The New India Assurance Company Limited |
Ex.R2 | 24.08.2010 | Motor Survey Report issued by Crystal Surveyors |
Ex.R3 | 15.03.2010 | Photocopy of Claim Intimation Letter issued by OP3 |
Ex.R4 | 15.03.2010 | Photocopy of Motor Own Damage Claim Form |
Ex.R5 | 10.11.2010 | Photocopy of clarifications given by Crystal Surveyors to OP3 |
LIST OF MATERIAL OBJECTS: NIL
- ASOKAN)
PRESIDENT
(V.V. STEEPHEN)
MEMBER
(D. KAVITHA)
MEMBER
