This case coming on 23.01.2015 for final hearing before this Forum in the presence of Sri Appana Venkateswara Rao, Advocate for the complainant and  Sri S. Kumar, Advocate for the opposite party Nos.1 & 5; Sri S.V. Kanaka Raju, Advocate for the opposite parties 2 to 4; Sri B. Srinivasa Rao, Advocate for the opposite party Nos.6 & 7 and the opposite party No.8 having been set exparte, and having stood over till this date for consideration, this Forum has pronounced the following: 

O R D E R

(Per Sri B. Vinay Kumar, President) 

          This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay the insurance amount of Rs.6,21,168/- with interest at 18% p.a. from the date of complaint till payment after deducting the depreciation; pay Rs.2,00,000/- towards damages for mental agony; pay Rs.2,000/- towards fees and charges of legal notice and pay Rs.50,000/- towards complaint expenses and fees.

2.         The case of the complainant is that he purchased one car on 3.4.2008 for Rs.5,62,320/- as per the invoice including VAT tax from the 1^st opposite party for which the 2^nd, 3^rd and 4^th opposite parties are manufacturers of the car and the 5^th opposite party is the dealer.  He insured the card with the 6^th and 7^th opposite parties bearing certificate-cum-policy No.3001/53817195/03/000 and the same was done through the 8^th opposite party and the vehicle is duly financed with the 8^th opposite party.  On 8.4.2011, the 6^th opposite party issued policy which covers the insurance period from 5.4.2011 to 4.4.2012 and they collected premium of Rs.8073/- and he also paid life tax of Rs.50,775/- dt.3.4.2008.  During the tenure of the insurance coverage, the car was surrounded by the rain water because of the same, the car damaged in an accident.  Immediately, he informed the same to the 5^th opposite party and they took the vehicle and gave admission slip dt.22.10.2011 in favour of the complainant and took away the defective vehicle for repair. The complainant got issued legal notice to the opposite parties on 14.12.2011.  The opposite parties 1 to 3, 5, 6 and 7 received the notices.  It is further submitted that he sustained huge mental agony for unfair trade practice adopted by the opposite parties.  Hence, the complaint. 

3.         The opposite parties 2, 3 & 4 filed written version and contended that all the allegations made by the complainant in the complaint are not true and correct. It is submitted that the complainant has not made any specific mention of any manufacturing defect except a general statement that the vehicle has been inundated with rain water up to seat level due to heavy rain while proceeding and travelling in Tummalava road, Rajahmundry.  In the words of the complainant, the incident of his car being filled with water happened due to accidental sudden rain and due to which the engine of the car was damaged and the complainant himself termed the incident as an accident for which the complainant sustained huge damage.  The manufacturer of the car is in no way responsible for the loss suffered by the complainant.  Also it is to be considered that the complainant, vide the present complaint, is unlawfully trying to avail two remedies from different parties for the same cause of action, namely warranty and insurance claim. This is untenable in law and shows the malafide intention of the complainant.  The contract of insurance is a transaction purely between the complainant and the insurance company i.e., opposite parties No.6, 7 and 8 and opposite parties No.2, 3 and 4 has nothing to do with the contract of insurance.  Under a contract of insurance, the privity of contract is between the insured (complainant) and the insurer (insurance company).  That is in case of an insurance claim, the insured has to approach the insurer for the loss caused.  The complainant having purchased the vehicle from the dealer, on being financed by the bank and on insuring his vehicle with the insurance company, it is surprising that the complainant is trying to shift the burden of meeting his insurance claim on all the opposite parties (namely dealers and the manufacturer) knowing fully well that the said opposite parties other than the insurance company have nothing to do with the insurance claim.  The efforts of opposite party No.5 in towing the vehicle damaged due to rain water and placing before the insurance authorities for inspection does not amount to deficiency of service nor a manufacturing defect as alleged by the complainant.  Moreover the vehicle has been used by the complainant for 4 years and was in proper working condition with the complainant, but was left with the opposite party No.5 in a badly damaged condition on being inundated with rain water for the reasons best known to the complainant. It is submitted that the replacement of vehicle which is not defective nor the pendency of issue of insurance claim for which neither the manufacturer not the dealer(s) is responsible.  Hence, there is no deficiency of service on the part of these opposite party and the complaint is liable to be dismissed with costs.

4.         The 5^th opposite party filed written version, which was adopted by the 1^st opposite party and contended that all the allegations made by the complainant in the complaint are not true and correct.  It is submitted that the complainant is not entitled any reliefs against this opposite party.  The complainant knowing full well that the warranty given by the manufacturer was only for two years from the date of purchase is apparently making false claims to make unjust enrichment.  Further, the warranty given by the manufacturer which already expired by 3.4.2010 will not cover accidents or other damage.  The warranty covers only manufacturing defects if any during the first 24 months or 50,000 kms whichever is earlier.  Admittedly, the vehicle has put in 1,56,000 kms and it is more than 2 years old.  Further, the so called damage to engine is not due to manufacturing defect on the own admission of complainant, but due to inundation in rain water and this opposite party has no responsibility whatsoever.  Except to the extent of attending to the repairs on payment of repair charges on 24.10.2011, the complainant called this opposite party and informed him in water.  This opposite party towed the vehicle and brought it to its workshop. The son of the complainant signed on the job card.  The complainant asked this opposite party not to open the engine as he will be claiming insurance and brought a surveyor on 10.11.2011 and in his presence the engine was opened and surveyor took photos and asked this opposite party to give an certificate.  Accordingly, this opposite party gave an estimate for Rs.1,80,000/-.  This opposite party has been ever since waiting for approval from the complainant, but it did not receive the approval.  The complainant is liable to pay Rs.250/- per day for parking in the workshop of this opposite party besides payment of towing charges.  Hence, there is no deficiency of service on the part of this opposite party and the complaint is liable to be dismissed.

 5.        The opposite parties 6 & 7 filed written version and contended that all the allegations made by the complainant in the complaint are not true and correct and the complaint is not maintainable either in law or on facts.  This opposite parties issued policy No.3001/53817195/03/000 valid from 5.4.2011 to 4.4.2012 on the basis of the proposal submitted by the complainant wherein the vehicle IDV (insured declared value) mentioned as Rs.3,43,710/- only.  This opposite party collected premium on the basis of the insured declared value of the vehicle only, but not on invoice price. This opposite parties submit that the surveyor appointed by the opposite party inspected the vehicle on 23.10.2011 in the workshop and wherein he observed the following points: (A) there was no external impact to the vehicle or the engine from outside and (B) the engine cannot be impacted by merely coming to contact with water and damages to engine can only be attributed to mechanical failure or trying to start/run the engine when it is still in contact with water.  The company assessed the claim Rs.20,619/- towards labour charges and cleaning and cleaning due to driving the vehicle under heavy flood water and the liability of the company is limited to only cleaning and flushing of the engine charges. The report of the surveyor estimates Rs.20,619/- was informed to the complainant and directed him to commence repair work vide letter dt.30.11.2011. This opposite parties invite the attention of the policy conditions under the exceptional and conditions of the policy under section 1, paragraph 2.  The company shall not be liable to make any payment in respect of “consequential loss, depreciation, wear and tear, mechanical brake down or breakage.  Hence, their liability in this case limited only replacement of engine oil, oil filter & flushing of engine as condition section 12(a) of the insurance policy.  According to survey report, the vehicle registered in the year 2008 and the vehicle was travelled more  than 1,50,000/- K.M. on the date of alleged accident.  The complainant has not filed the registration certificate of the vehicle and the depreciation value of the vehicle.  The opposite parties assessed the damages as per the survey report dt.27.1.2012 for Rs.20,619/- only and that the claim of the complainant was not repudiated till today.  The claim of the complainant was closed due to non-cooperation in commencing repairs vide letter dt.27.12.2011.  This opposite parties submits that the complainant is not entitled any reliefs.  Hence, there is no deficiency of service on the part of these opposite parties and the complaint is liable to be dismissed with costs.      

6.         Proof affidavits filed by both parties. Exs.A1 to A11 has been marked on behalf of the complainant. Exs.B1 to B12 marked on behalf of the opposite parties. Written arguments filed by both parties.

7.         Heard both sides.

8.         Points raised for consideration are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief? 

9. Point No.1 & 2:-  As seen from the record, the complainant herein obtained Private Car Package Policy vide No.3001/53817195/03/000 on 8.4.2011 from the 6^th and 7^th opposite parties for his car Mahindra Logan bearing No.AP05BC 6255 of 1.5 DLE model for an amount of Rs.3,43,710/- and paid an amount of Rs.8,073/- towards premium.  The said policy was in force from 5.4.2011 to 4.4.2012 as per Ex.A2 = Ex.B8. The said car was purchased on 3.4.2008 from the 1^st opposite party dealer of 2^nd and 3^rd opposite parties for which car, the 4^th opposite party is the manufacturer, the 5^th opposite party is the dealer at Rajahmundry and 8^th opposite party is the financier of the purchased car.  The complainant purchased the said car for an amount of Rs.5,62,320/- as per Ex.A1.  During the currency of the said policy, while proceeding and travelling in Tummalava Road, Rajahmundry, the said car was inundated on 22.10.2011 due to the sudden and heavy rain as the car was surrounded by the rain water, the engine of the car stood damaged. The complainant informed the same to the 5^th opposite party, who took the car to their garage on 22.10.2011 and gave Ex.A3 = Ex.B1 admission slip.  Ex.A4 is the newspaper cutting dt.23.10.2011 reported about the flooding due to sudden rain.  Ex.A5 = Ex.B3 is the service quotation for Rs.1,70,846-81ps issued by the 5^th opposite party towards repairs for the damaged car. The complainant got issued notice dt.14.12.2011 vide Ex.A7 and the same were served on the opposite parties 1 to 3 and 5, 6, 7 as per Ex.A8 acknowledgements.  Ex.A6 = Ex.B10 is the letter addressed to the complainant from the 6^th opposite party dt.30.11.2011 stating that as per their surveyor, there was no external impact to the insured vehicle or the engine from outside and engine cannot be impacted merely coming in contact with water and damages to the engine can only be attributed to the mechanical failure or trying to start/run the engine when it is still in the water.  Ex.A9 = Ex.B11 is the letter addressed to the complainant by the 6^th opposite party dt.21.12.2011 stating that they are unable to process the claim.  Ex.A10 is the reply dt.28.12.2011 from the 7^th opposite party to the complainant.  Ex.A11 is the legal notice dt.9.5.2012 during the pendency of this complaint in the Forum and received reply dt.15.6.2012 under Ex.B5.  Ex.A12 is a tax invoice issued by the 5^th opposite party for an amount of Rs.2,84,450-83ps.

            During the pendency of this complaint, the complainant amended his prayer and restricted his claim only against the 6^th and 7^th opposite parties for an amount of Rs.6,21,168/- with interest at 18% p.a. from the date of complaint till payment after deducting the depreciation vide I.A.No.49/2014 dt.25.7.2014.  So, now the claim is only against the 6^th and 7^th opposite parties insurance company. 

            It is observed that the insured vehicle was handed over to the 5^th opposite party dealer’s garage at Rajahmundry on 22.10.2011 as per Ex.B1 and repair order dt.10.11.2011 vide Ex.B2 and the demanded repairs as per repair order were brake down of the vehicle and engine starting to be checked up. We further observed that as per Ex.B9 is the Surveyor and loss assessor report dt.27.1.2012 along with photographs. The surveyor in his report noted that due to flood water entered into engine, engine need to be cleaned, flush and to be overhauled and assessed the amount for the said repairs of the insured vehicle is at Rs.20,619/- only along with assessment sheet. But, as per the service quotation dt.15.11.2011 under Ex.A5, the total amount for replacement of parts in the engine was estimated at Rs.1,70,846-81ps. The inundation of the engine due to rain water was occurred on 22.10.2011 and the surveyor of the opposite party insurance company estimated the repair to set right the engine of the insured car into motion on 23.10.2011 was at Rs.20,619/- for cleaning the engine, flush and to be overhauled, as the said car was not sustained any external visible damages as per photographs filed under Ex.B9.

            We further observed that the complainant made initial service estimation for the inundated car only on 15.11.2011 whereas the engine was water logged on 22.10.2011 for replacement of important parts in the engine, but there was no evidence filed by the complainant that the entire parts in the engine has to be replaced. Further, we observed that the complainant got repaired is inundated car for an amount of Rs.2,84,450-83ps as per Ex.A12 bill dt.31.12.2012. The repair order vide Ex.B2 dt.10.11.2011 clearly shows that the amount for labour charges was Rs.1,000/- and part amount for repair was Rs.5,000/-, so, the repair of the inundated car engine of the complainant is only limited to small extent that too running of the engine only. So, the service quotation of     Rs.1,70,846-81ps and the final bill of Rs.2,84,450-83ps paid by the complainant is at his own interest.

            It is further observed that as per the exhibit vide B10 letter dt.30.10.2011, the opposite party insurance company informed the complainant that they have communicated to the garage authorities on 28.10.2011 about the precautionary measures/ repairs to be carried out for all hydrostatic loss vehicles and reminder dt.30.10.2011, but as per the surveyor, the inundated car lying in the same condition in the workshop without any repairs carried out and further, telephonic reminders dt.15.11.2011 and 28.11.2011, no action was taken by the repairer and advised the complainant to carry out the repairs. Further, as per Ex.B11 dt.21.12.2011, the opposite party insurance company informed the complainant that as the repairs were pending for more than 50 days, they are unable to process the claim of the complainant.

            The complainant relied on the decisions reported in (1) Punjab State Electricity Board Vs. M/s. United India Insurance Co. Ltd.: 2011(4) CPR 357 (NC) in which it was held that “the insurance company cannot repudiate claim against peril which had taken place well within period of insurance”; (2) Hindustan Motors Limited Vs. Smt. Lalitha Tewari & Anr. : 2012(1) CPR 408 (NC) in which it was held that “accident relatable to manufacturing defect must be properly indemnified.” And (3) New India Assurance Co. Ltd., Chandigarh Vs. V.K. Bawa son of late Shri D.D. Bawa: Appeal case No.428/2009 of SCDRC, Chandigarh. However, all the said decisions were not applicable to the facts and circumstances of the present case.     

            The opposite party insurance company relied on the decisions reported in (1) National Insurance Co. Ltd. and others Vs. Mrs. Aleyamma Verghese and others: 2006(3) ALT 21 (NC) (CPA); (2) the New India Assurance Co. Ltd., Vs. New Good Luck Retrading Works: 2009(3) CPR 354 (NC) and (3) Ind Swift Limited Vs. New India Assurance Co. Ltd.: First Appeal No.157 of 2006 of NCDRC. In all the above decisions, it was held that the surveyors report cannot be brushed aside unless it is specifically rebutted – un-scrutinized repairable cannot be given weight as against report of the surveyor. The same is applicable to the facts and circumstances of the present case.

            With the discussion held supra, we are in the considered opinion that the complainant is entitled for only Rs.20,619/- as per the surveyors estimation report, however, as there was much late indisbursing the above amount with a lame excuse that the claim was time barred, the complainant is entitled for the interest on the above said amount of Rs.20,619/-.  The complainant is not entitled for any compensation from the opposite party insurance company in the given circumstances.     

10.  Point No.3:-  In the result, this complaint is partly allowed, directing the 6^th & 7th opposite parties insurance company to pay the amount of Rs.20,619/- with interest          @ 9% p.a. to the complainant from the date of filing this complaint i.e. 24.02.2012 till realization. We further direct the 6^th & 7^th opposite parties to pay Rs.1,000/- towards costs of this complaint. The claim against the remaining 1 to 5^th & 8^th opposite parties is dismissed. The above direction shall be complied within a period of two months from the date of this order.  

Dictated to the Stenographer, typed to my dictation, corrected and pronounced by us in open Forum, on this the 12^th day of February, 2015.

         Sd                                                                                                    Sd

       MMEMBER                                                                                      PRESIDENT

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR COMPLAINANT:  None.                                                        FOR OPPOSITE PARTIES:  None.

DOCUMENTS MARKED

FOR COMPLAINANT:

Ex.A1    Invoice showing the purchase of car from the company dt.3.4.2008.

Ex.A2    Certificate cum Policy bearing No.3001/53817195/03/000 issued by ICICI

  Lombard showing the period of insurance from 5.4.2011 to 4.4.2012 midnight.

Ex.A3    Vehicle admission slip given by the opposite party No.5 dt.22.10.2011, for repair

  or for replacement.

Ex.A4    Paper publication news reported in eenadu dt.23.10.2011 reporting the particular

  area of accident to the car was inundated in floods.

Ex.A5    Service quotation given by opposite party No.5 to the complainant calling for

  Rs.1,70,846-81ps.

Ex.A6    Reply dt.30.1.2011 by opposite party No.6 to the complainant, repudiating the

  claim of the complainant.

Ex.A7    Legal notice dt.14.12.2011 by complainant to all the opposite parties with

  original postal receipts.

Ex.A8    Served ack dues from the opposite parties 1,2,3,5,6,7 only.

Ex.A9    Reply dt.21.12.2011 from the opposite party No.6.

Ex.A10  Reply dt.28.12.2011 from the opposite party No.2.

Ex.A11  Notice dt.9.5.2012 by complainant to opposite parties.

Ex.A12  Photocopy of Tax Invoice (duplicate copy) dt.31.12.2012.           

FOR OPPOSTIE PARTIES 1 & 5:-

Ex.B1    Copy of job card dt.22.10.2011.

Ex.B2    Copy of Repair order dt.10.11.2011.

Ex.B3    copy of Service quotation dt.15.11.2011.

FOR OPPOSTIE PARTIES 6 & 7:-

Ex.B4    Attested copy of insurance policy.

Ex.B5    Attested copy of Survey report dt.27.1.2012.

Ex.B6    Letter dt.30.11.2011 addressed to complainant.

Ex.B7    Letter dt.27.12.2011 addressed to complainant.

Ex.B8    Attested copy of claim form.

Ex.B9    Reply notice dt.15.6.2012 sent to the complainant’s advocate.

Ex.B10  Postal acknowledgement dt.18.6.2012.

Ex.B11  Photocopy of Authorization.

      Sd                                                                                            Sd

  MEMBER                                                                                  PRESIDENT