CC No: 544/2014

 Filed on 20.03.2014

Disposed on 13.06.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027

DATED THIS THE 13^th DAY OF JUNE 2016

CONSUMER COMPLAINT NO.544/2014

PRESENT:

Sri. H.S.Ramakrishna,  B.Sc., LL.B.

                                    PRESIDENT

                        Smt. L. Mamatha, B.A., (Law), LL.B.

                        MEMBER

                                                        V/S

ORDER

BY SRI H.S. RAMAKRISHNA, PRESIDENT

1.         This is a complaint filed by the Complainant against the Opposite Party under Section-12 of the Consumer Protection Act, 1986, praying to pass an order directing the Opposite Parties 1 and 2 to settle the own damages claim of the Complainant on account of damages caused to its car bearing No.KA-04-MK-3506 in terms of the Insurance Policy as per the estimation of the Opposite Party No.3 dt.11.08.2013 in a sum of Rs.5,11,554/- together with interest at 2% per month and also award compensation of Rs.2,00,000/- for the mental agony, hardship and inconvenience, loss suffered by the Complainant.

2.         The brief facts of the Complaint can be stated as under:

In the complaint, the Complainant alleged that he is the registered owner of Renault Fluence Car bearing No.KA-04-MK-3506.  The Complainant has got insured the said car with the 1^st Opposite Party vide policy cover note No.MC1003782387, Policy No.G-13-1701-1801-00058019 for the period from 09.02.2013 to 08.02.2014, which is a comprehensive policy covering all risks including own damages.  The Complainant is a company incorporated under the Companies Act and being a business entity, making use of the said car for their travel necessities from one place to another place.  In the first week of August 2013, the Complainant Company Director Mr. George Joseph had been on business tour to Kerala State.  On 06.08.2013 Mr. George Joseph was driving the Renault car in the morning hours from Kakkanadu near NGO Quarters to Kalamassery in Kochi, Kerala State.  At that time, the area between Kakkanadu to Kalamassery in Kochi, Kerala State was covered with rain water.  Sri George Joseph noticed that other vehicles passing through the water logged area without any difficulty or any kind of trouble, he too moved the Renault car behind other vehicles to pass through the water logged area, but unfortunately the car stopped in the middle.  Inspite of repeated efforts, the car did not start.  The car was pushed out of the water logged area with the help of local persons.  Thereafter Mr. George Joseph tried his level best to start the car, but the car cranked and stopped.  Sri George Joseph contacted Renault Service Station at Kochi and as per their advice towed the car to the service station at Kalamassery.  On examining the condition of the car, the service engineer stated that water had rushed into the engine and the engine has to be replaced.  Since the Complainant has got insured the car with the 1^st Opposite Party having comprehensive insurance policy and the incident has taken place during the subsistence and validity of the insurance policy, the service station took the particulars of the insurance policy from the Complainant to get approval and claim insurance benefits and informed the Complainant that the whole process would be completed in a month.  The Complainant lodged a claim with the 1^st Opposite Party in respect of the damage caused to the car in terms of the insurance policy on 06.08.2013.  On receipt of the claim, the 1^st Opposite Party arranged for survey.  The vehicle had been left at TVS garage in Kalamassery, Kerala State i.e. the 3^rd Opposite Party for repairs.  The service centre has also intimated the Opposite Parties Insurance Company about the replacement of engine and was awaiting approval from the insurers for taking further action to replace the engine and to effect necessary repairs to the car.  Inspite of lapse of more than 4 months, the police station – insurers have not responded to the Complainant or the service centre request to instruct the replacement of the engine and to effect the necessary repairs to the car.  The 3^rd Opposite Party has given an estimation for replacement of engine and to effect necessary repairs to the car in a sum of Rs.3,74,125/- and the same is also submitted to the insurers.  But still the insurers have not given consent to effect necessary repairs to the car and instead sent a letter dt.13.01.2014 agreeing to settle only a part of the claim in a sum of Rs.1,44,317/- as per the assessment made by its Surveyor, which is far less than the estimated charges for repairs by the 3^rd Opposite Party.  Hence, the same is not accepted by the Complainant.  The Complainant being a business entity, the office bearers of the Complainant require to travel extensively and they have been put to great hardship and inconvenience for want of vehicle for their conveyance.  Presently the Complainant company is hiring vehicles for their business tours and paying considerable hire charges and thereby incurring huge expenses and loss.  The Complainant got issued legal notice on 27.01.2014 and called upon them to give instructions to the service centre forthwith to take up replacement of engine and repairs to the car for which payment has to be made by the Insurance Company as per the policy.  Inspite of service of notice, the Opposite Parties 1 & 2 insurers have neither replied nor complied with the demands made in the notice.  The damage caused to the car on 06.08.2013 during the subsistence of the insurance policy.  The insurance policy being a comprehensive policy, it covers all risks inclusive of own damages.  The Opposite Parties are legally liable to settle the claim as a result of damages caused to the Complainant’s car.  The failure of the insurers to instruct the service center to effect the necessary repairs to the car at the cost of the insurers and/or also failure to settle the claim in full as per the estimation submitted by the 3^rd Opposite Party by the insurers is illegal and amounts to deficiency in service and unfair trade practice.  The Opposite Parties 1 & 2 are liable to settle the claim towards the repair the car as per the estimation submitted by the 3^rd Opposite Party.  Hence, this complaint.

            3.         In response to the notice, the Opposite Parties 1 to 3 put their appearance through their counsel.  The Opposite Parties 1 & 2 filed their common version and the 3^rd Opposite Party filed their separate version.  In the version, the Opposite Parties 1 & 2 pleaded that the complaint is false and frivolous.  The Opposite Parties have issued a policy is subject to various terms and conditions, exceptions and limitations.  The complaint filed by the Director said to be representing by M/s Engineered Customised Control Panel Solutions Pvt. Ltd., is not maintainable and there is existed no privity of contract between the said Director and the Insurer/Opposite Parties 1 & 2 and as such, the above complaint is liable to be dismissed as not maintainable.  The owner of the insured vehicle Renault Fluence Car bearing Registration No.KA-04-MK-3506 was insured with the Opposite Party in favour of M/s Engineered Customised Control Panel Solutions Pvt. Ltd.  The Complainant being represented by Sri George Joseph who is neither the owner nor the insured in whose favour the policy of insurance being not issued, has no locus-standi to file the complaint and as such, the above complaint is liable to be dismissed.  The Complainant being a registered private limited company incorporated under Companies Act and being a business entity does not fall under the ambit of consumer under the Consumer Protection Act, 1986, hence, the complaint is not maintainable.  The Complainant is not a consumer within the deficiency in service of Consumer under the Consumer Protection Act, 1986.  There can be no manner of doubt that the entire contract of insurance is borne out of commercial business of the Complainant.

            4.         The Complainant does not so specify on which date the said insured vehicle had so stopped in the middle or that nor the 3^rd Opposite Party does so specify the date of the damages caused due to sudden stop of the car.  Muchless, the Complainant doe so specifies the date of loss/damages caused to the insured vehicle.  The claim of the Complainant on submission of the claim form along with the relevant vehicle documents and as well the repairer’s estimate including the IRDA licensed Surveyor’s Report and as well thus considering the claim of the Complainant so based on the policy terms and conditions would as well be considered accordingly.  On account of the said damages caused thereto, the owner has infact intimated the same only on 10.08.2013 along with the estimate dt.11.08.2013 of T.V. Sundaram Iyengar & Sons Ltd.  Wherein the insured having not submitted the claim form, the format of the same was so attached and forwarded vide letter dt. 23.08.2013 to the office of the Opposite Parties 1 & 2 at Cochin, being the nearest office, as also specifying and requesting to forward the documents as per Sl.No.2 to 5 of the said letter dt.23.08.2013.  As per the claim form, the date of loss being 06.08.2013 wherein the claim intimated about the damages caused to insured vehicle was intimated only on 10.08.2013.  The delay of nearly 4 days after the occurrence of the incident, wherein the Complainant’s car was said to be cranked and stopped on 06.08.2013, the Opposite Parties 1 & 2 at the first instance submits that the present policy of insurance so issued, clearly specifies under which circumstances, the insured is to be compensated and the process under which the claim of the Complainant is to be processed, in addition to upon an incident having occurred resulting in damage/loss to the insured subject, the Complainant had to immediately lodge a complaint to the jurisdiction police and immediately thereof had to intimate the same to the insurance company, which the Complainant had failed to do so.  However, for the period from 06.08.2013, the day of occurrence of crank and stop of the insured vehicle to 11.08.2013, for over a period of 5 days i.e. the date of estimate of T.V. Sundaram Iyengar & Sons Ltd., where exactly was the insured vehicle, stationed, is unaware.  Further, intimation about the damages to insured vehicle was intimated to the Opposite Parties 1 & 2 only on 10.08.2013, after 5 days after the occurrence of the incident.  The estimation of the repairer being dt.11.08.2013, it is not certain and that the Complainant had failed to intimate as to when the insured vehicle was towed to the garage, resultant the repairer having issued the estimate after nearly 6 days after the occurrence of the incident.  These facts create a grave doubt as to whether say of the Complainant.  The Opposite Parties 1 & 2 had not repudiated the claim of the Complainant, the IRDA Approved Surveyor, a letter dt.13.01.2014 was addressed to the Complainant bringing to the notice of the Complainant that the consequential damages are not covered under the policy.  The Complainant seeking advantage of the unfortunate incident, had infact after using the insured vehicle even after the insured car was completely inundated.  The insured car thus being driven through the water logged area, resultant water had so entered the engine, thereby the car had so stopped in the middle.  The car being stopped in the middle of the water logged area and that with the help of the local persons being pushed out of the water logged area.  Mr. George Joseph had so tried his level best to start the car, wherein, water had so entered the engine, resulting in crank and stop of the vehicle.  The act of Mr. George Joseph in repeatedly trying to start the vehicle, since water being entered into the engine, had so resultant in causing extensive damage to the engine of the insured vehicle.  The IRDA Approved Surveyor having inspected the insured vehicle, ascertained about the damage.  The IRDA Approved Surveyor had assessed the said damage and that the Opposite Parties 1 & 2 having considered the claim of the Complainant and infact had clearly stated the status of the claim of the Complainant.  Aswell it was indicated that the liability of the company was restricted to Rs.1,44,317/- as per Surveyor assessment based on the invoice as well, the IRDA approved licensed surveyor.  As such the claim of the Complainant for consequential damages was not payable as per Condition No.4 of the policy.  At no stretch of imagination there was delay, latches of deficiency in service or disservice on the part of the insurer, as could be seen from facts and circumstances of the case and the documents on hand.  The claim of the Complainant was duly considered, scrutinized and the same was considered as per Condition No.4 and Condition No.1 of the policy terms and conditions.  The insurer wishes to inform that the insurer and its official in respect of the claim of the Complainant have rendered prompt and timely service to the Complainant.  Thus there is no deficiency in service or negligence in service as alleged and no compensation be awarded even on this ground.

            5.         The consideration of the claim of the Complainant being as per the terms and conditions of the policy based on the documents and scrutiny of the same, the Opposite Party is liable to settle the claim towards repair of the car as per the estimation submitted by the 2^nd Opposite Party in a sum of Rs.3,74,125/- is far from truth.  The estimation is merely an estimation and such estimate cannot take the place of actual proof of alleged loss.  It is always  an expert duly licensed surveyors and loss assessors, who are authorized u/s 64 UM of the Insurance Act to make the assessment of losses after taking into consideration all the aspects with regard to class, model, market value of vehicle, depreciation of parts, cost of repairs and salvage value of the parts etc., thus relying entirely upon the estimate of repair is neither tenable nor proper and surveyors report is always an important piece of evidence and cannot be discarded or brushed aside.  The claim of the Complainant was considered accordingly based on the terms and conditions of the policy.  There is no external impact to the vehicle or to the engine from outside.  Engine cannot be impacted merely coming into contact with water and damage if any, can be attributed to either mechanical failure or trying to run the engine when it is still in contact with the water.  When the vehicle stops on the water logged road, efforts to start the vehicle is the well known source to cause the damages to engine.  The obvious course is known to be not to try to start the engine, without total cleaning the water from inside engine and inspection by an expert technician.  Therefore, as per surveyor assessment based on the invoice our liability is restricted to Rs.1,44,317/-.  In view of the above, kindly provide the duly filled and signed claim discharge voucher within 7 days from the receipt of this letter.  As per the policy terms, Sec.1(2), the company shall not be liable to make any payment in respect of consequential loss, depreciation, wear and tear, mechanical breakdown or breakages.  Hence, the Opposite Parties 1 & 2 liability are towards the damages externally caused to the vehicle and not to the engine internal parts as per the assessment of the IRDA approved licensed surveyor being  assessed at Rs.,163,884/- as per the report of IRDA licensed surveyor which is payable subject to fulfillment of terms and conditions of the policy.  Hence, prays to dismiss this complaint.

            6.         The 3^rd Opposite Party in their version pleaded that the Complainant is not a Consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.  There is no deficiency in service on the part of this Opposite Party.  This Opposite Party is unnecessarily made a party to the proceedings.  On 06.08.2013 the Complainant towed and brought the vehicle to the workshop of this Opposite Party.  On the service personnel of the 3^rd Opposite Party inspecting the vehicle, it was noticed that water had entered into the engine assembly and on dismantling the engine, it was noticed that all the spares had got damaged and that the total engine assembly would have to be replaced for getting better performance for the vehicle.  The representatives of the Complainant having been informed of this fact, he had also been informed that the work would have to be carried out on payment basis or under insurance coverage.  This Opposite Party had been thereupon informed that the necessary repair works be carried out under insurance coverage.  Accordingly this Opposite Party had prepared the necessary estimate with regard and made available the same to the Complainant so as to enable it to obtain the necessary approval from the insurance company with which the vehicle was insured.  The insurance company however for the reasons best known to them had refused to accord sanction for the entire works as stated in the estimate and accorded sanction only for part of the works.  This Opposite Party has no control whatsoever over the decision of the insurance company.  The Complainant having been informed of the decision of the insurance company had requested this Opposite Party to carry out the necessary repairs as per the original estimate prepared and that it would affect the necessary payment without prejudice to its right to claim from the insurance company.  Accordingly this Opposite Party had carried out the necessary repairs and the authorized representatives of the Complainant had taken the delivery of the vehicle after personally inspecting and expressing satisfaction over the work done and effecting the payments towards the repairs without any demur.  There has been no deficiency in service or unfair trade practice on the part of this Opposite Party.  Hence, the complaint is liable to be dismissed against this Opposite Party and prays to dismiss the complaint.

            7.         In support of the complaint, the Complainant Sri George Joseph has filed affidavit by way of evidence.  For the Opposite Parties 1 & 2 one Sri Krishna Sheemali, Authorized Signatory has filed his affidavit by way of evidence.  For the 3^rd Opposite Party, one Sri K.V. Manoj, Service Head has filed his affidavit by way of evidence.  Heard the arguments of both the parties.

8.         Now the points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Parties?
2. If so, to what relief the Complainant is entitled?

9.         Our findings on the above points are:-

                        POINT (1):-  Negative

                        POINT (2):-As per the final Order

REASONS

10.      POINT NO. 1:-         It is the case of the Complainant that Complainant is a registered owner of Renault Fluence Car bearing No.KA-04-MK-3506.  The Complainant has got insured the said car with the 1^st Opposite Party vide policy cover note No.MC1003782387, Policy No.)G-13-1701-1801-00058019 for the period from 09.02.2013 to 08.02.2014, which is a comprehensive policy covering all risks including own damages.  The Complainant Sri George Joseph has filed his affidavit evidence and in the sworn testimony has reiterated the same and produced the RC.  As looking into the RC of the car bearing No.KA-04-MK-3506 Renault Fluence LZBB06, bearing Chassis No.MEELZBB06CEA01279, Engine No.K9KG832D252430 stands in the name of M/s Engineered Customised Control Panel Solutions Pvt. Ltd., 74/2A, Krishnappa Industrial Estate, Hegganahalli.  So from this evidence, it is very clear that M/s Engineered Customised Control Panel Solutions Pvt. Ltd., Krishnappa Industrial Estate, Hegganahalli is the RC owner of the car bearing No.KA-04-MK-3506.  To disbelieve this evidence, there is no rebuttal evidence, therefore, it is proper to accept the contention of the Complainant that the Complainant is the RC owner of the car bearing No.KA-04-MK-3506.

            11.      Further the Complainant in his evidence reiterated the same and he has insured the car with the 1^st Opposite Party.  To substantiate this, he produced the Certificate cum Policy Schedule.  As looking into this M/s Engineered Customised Control Panel Solutions Pvt. Ltd., the insured the Renault Fluence Car bearing No.KA-04-MK-3506 with the 1^st Opposite Party i.e. M/s Bajaj Allianz General Insurance Company.  The policy bearing No.G-13-1701-1801-00058019 for the period from 09.02.2013 to 08.02.2014.  This evidence is also not challenged and to disbelieve this evidence, there is no rebuttal evidence, therefore, it is proper to accept the contention of the Complainant that the car bearing No.KA-04-MK-3506 was insured with the 1^st Opposite Party at M/s Bajaj Allianz General Insurance Company bearing with Policy No.G-13-1701-1801-00058019 for the period from 09.02.2013 to 08.02.2014.

            12.      It is the further case of the Complainant that in the first week of August 2013, the Complainant Company Director Sri George Joseph had a business tour to Kerala.  On 06.08.2013 Mr. George Joseph was driving the Renault car in the morning hours from Kakkanadu near NGO Quarters to Kalamassery in Kochi, Kerala State.  At that time, the area between Kakkanadu to Kalamassery in Kochi, Kerala State was covered with rain water.  Sri George Joseph noticed that other vehicles passing through the water logged area without any difficulty or any kind of trouble, he too moved the Renault car behind other vehicles to pass through the water logged area, but unfortunately the car stopped in the middle.  Inspite of repeated efforts, the car did not start.  The car was pushed out of the water logged area with the help of local persons.  Thereafter Mr. George Joseph tried his level best to start the car, but the car cranked and stopped.  Sri George Joseph contacted Renault Service Station at Kochi and as per their advice towed the car to the service station at Kalamassery.  On examining the condition of the car, the service engineer stated that water had rushed into the engine and the engine has to be replaced.  Since the Complainant has got insured the car with the 1^st Opposite Party having comprehensive insurance policy and the incident has taken place during the subsistence and validity of the insurance policy, the service station took the particulars of the insurance policy from the Complainant to get approval and claim insurance benefits and informed the Complainant that the whole process would be completed in a month.  The Complainant lodged a claim with the 1^st Opposite Party in respect of the damage caused to the car in terms of the insurance policy on 06.08.2013.  On receipt of the claim, the 1^st Opposite Party arranged for survey.  The vehicle had been left at TVS garage in Kalamassery, Kerala State i.e. the 3^rd Opposite Party for repairs.  The service centre has also intimated the Opposite Parties Insurance Company about the replacement of engine and was awaiting approval from the insurers for taking further action to replace the engine and to effect necessary repairs to the car.  Inspite of lapse of more than 4 months, the police station – insurers have not responded to the Complainant or the service centre request to instruct the replacement of the engine and to effect the necessary repairs to the car.  The 3^rd Opposite Party has given an estimation for replacement of engine and to effect necessary repairs to the car in a sum of Rs.3,74,125/- and the same is also submitted to the insurers.  But still the insurers have not given consent to effect necessary repairs to the car and instead sent a letter dt.13.01.2014 agreeing to settle only a part of the claim in a sum of Rs.1,44,317/- as per the assessment made by its Surveyor, which is far less than the estimated charges for repairs by the 3^rd Opposite Party.  To substantiate this contention, Sri George Joseph in his sworn testimony has reiterated the same and produced the estimation issued by the T.V. Sundaram Iyengar & Sons Ltd.  By looking into these documents, the estimation details is with respect to car bearing No.KA-04-MK-3506 in the name of M/s Engineered Customised Control Panel Solutions Pvt. Ltd., and issued an estimation for a sum of Rs.3,74,125.84.  Even by looking into this document itself, it is very clear that the above estimation is prepared based on the current price in a reservation in price will be notified.  Invoice will be based on the price prevailing in the date of invoice.  So even according to the estimation, it is not exactly the amount spent on the repair and also produced the email address to the Complainant by T.V. Sundaram Iyengar & Sons Ltd.  This mail is with respect to the repair work of car bearing No.KA-04-MK-3506 and this mail clearly mentioned that regarding the engine failure due to water entry in the engine based on the direction of the Complainant, they submitted the claim form along with estimation to the insurance company M/s Bajaj Allianz Cochin Insurance Co., Ltd., deputed a Surveyor Mr. Rajesh and inspect the vehicle at their premises.  As per the direction of the Surveyor, they dismantled the engine during the inspection, the engine parts were damaged due to water entry inside the engine and they have to replace the engine assembled to bring the car to optimum condition.  But they were not received any approval from the company for further execution.  But this mail does not bear the date when the T.V. Sundaram Iyengar & Sons Ltd. sent this mail to the Complainant and produced the RO Billing.  By looking into the RO Billing, it is dt.30.011.2013, Request Order No.ROAB 13003367, request order dt.06.08.2013 and it is in the name of the Complainant i.e. M/s Engineered Customised Control Panel Solutions Pvt. Ltd., regarding the vehicle Renault Fluence car bearing No.KA-04-MK-3506 and as per this Invoice Bill, the total cost of the repair is Rs.5,11,554/-.  The Complainant has paid the said amount to the T.V. Sundaram Iyengar & Sons Ltd., i.e. 3^rd Opposite Party through cheque bearing No.326073 dt.24.10.2013 for a sum of Rs.1,00,000/- and another cheque bearing No.326098 dt.26.12.2013 for a sum of Rs.4,11,554/-, thereby the Complainant has paid the entire amount of Rs.5,11,554/-.  So from this evidence, it is clear that even though during the policy is in force and when the Complainant’s car was out of order due to entry of rain water to the engine when the Complainant was driving the vehicle in a water logged area, the Opposite Parties 1 & 2have not honoured the claim of the Complainant.  For that reason, the Complainant himself paid the entire amount.

            13.      The defence of the Opposite Parties 1 & 2 is that there was no delay or alleged deficiency in service and disservice on the part of the Insurer.  The claim of the Complainant was duly considered, scrutinized and the same was considered as per Condition No.4 and Condition No.1 of the policy terms and conditions, the Insurer wishes to inform that the Insurer and his officials in respect of the claim have rendered prompt and timely service to the Complainant.  Thus there is no deficiency in service or negligence in the service as alleged by the Complainant.  The consideration of the claim of the Complainant being as per the terms and conditions of the policy based on the documents and scrutiny. The Opposite Party is liable to settle the claim towards the repair of the car as per the estimation submitted by the 2^nd Opposite Party in a sum of Rs.3,74,125/- is far from truth.  The estimation is merely an estimation and such estimation cannot be take place of actual proof of the alleged loss.  It is always expert duly licensed surveyor and loss assessor who are authorized u/s 64 UM of the Insurance Act to make the assessment of the loss after taking into consideration of the aspects with regard to the class, model, market value of vehicle, depreciation of parts, cost of repairs and salvage value of the parts etc., thus relying entirely upon the estimate of repair is neither tenable nor proper.  To substantiate this defence, Sri Krishna Sheemali, Authorized Signatory has filed his affidavit by way of evidence and in the sworn testimony has reiterated the same and also produced the estimation dt.11.08.2013 issued by the 3^rd Opposite Party T.V. Sundaram Iyengar & Sons Ltd.  As looking into this document, as stated earlier the 3^rd Opposite Party have estimated for the repair of the Complainant’s car for a sum of Rs.3,74,125/-.  In the estimation itself clearly mentioned that the above estimation is prior based on the current price in a revised in price will be modified and the invoice will be based on the price prevailing on the date of the invoice, therefore, it is only an estimation, but not an actual loss caused to the Complainant.  On the other hand, even as per the document produced by the Complainant, the Complainant has paid a sum of Rs.5,11,554/- as per the RO billing of the T.V. Sundaram Iyengar & Sons Ltd.  Even though the Complainant paid Rs.5,11,554/-, but he is claiming in the complaint only estimation amount of Rs.3,74,125/-, for that he has not give any reason.  But on the other hand, as stated earlier it is only an estimation, but not real loss incurred to the Complainant.  On the other hand, even as the document produced by the Complainant, the letter addressed by the 3^rd Opposite Party to the Complainant clears that the Complainant submitted a Claim Form along with estimation to the insurance company i.e. M/s Bajaj Allianz General Insurance Co., Ltd.   The insurance company had deputed the Surveyor Mr.Rajesh and inspected the vehicle in their premises.  In support of this also, the Opposite Party have produced the Survey Report dt.13.01.2014. As per the Survey Report, the actual damage caused to the Complainant’s car is for a sum of Rs.1,47,349/-.  As per the Survey Report, the Opposite Parties are ready to settle the issue for a sum of Rs.1,44,317/-.  This is clear as seen from the letter addressed by the Opposite Parties 1 & 2 to the Complainant vide letter dt.13.01.2014.  In that letter, they have clearly mentioned that there is no external impact either to the vehicle or to the engine from outside.  Engine cannot be impacted merely coming into contact with water and damage if any, can be attributed to either mechanical failure or trying to run the engine when it is still in contact with the water.  When the vehicle stops on the water logged road, efforts to start the vehicle is the well known source to cause damages to engine and thereby, as per the Surveyor assessment based on the invoice, their liability is restricted to Rs.1,44,317/- and requested to provide the duly filled signed discharge voucher within 7 days from the date of this letter.  Again the similar letter was addressed by the Opposite Parties 1 & 2 to the Complainant on 28.01.2014 and also produced the Claim Payment Approval Form.  As looking into this Claim Payment Approval Form, the Opposite Parties have approved to settle the claim of the Complainant for a sum of Rs.1,63,884/- in favour of the Complainant dt.24.02.2014.  But the Complainant has not accepted the same.  So by looking into this evidence produced by the Opposite Parties, it clearly shows that as per the claim made by the Complainant for the loss caused to the Complainant’s car while he was driving in Kerala in the month of August 2013 in a rain water logged area near Cochin, the rain water entered into the engine and as a result of this, the engine was cranked and stopped.  In that regard, he got it repaired through the 3^rd Opposite Party and lodged a claim form.  But the Opposite Parties 1 & 2 after appointing the Surveyor under due process of law, as soon as after the receipt of the Surveyor’s Report, considered the claim of the Complainant and issued a cheque for a sum of Rs.1,63,884/-, thereby there was no deficiency in service on the part of the Opposite Parties as alleged by the Complainant.  So, the Complainant fails to proved that there is a deficiency in service on the part of the Opposite Parties 1 & 2.

            14.      The learned counsel for the Opposite Parties argued before me that the insurance liability would be depends upon the terms of the policy.  Although recommendations were made by the Tariff Advisory Committee, which is a statutory in character and binding on the Insurer, but if it is in inconsistent with the terms of the policy and not included therein nor disclosed to the insured at the time of entering into the contract of insurance, insurer cannot be permitted to rely upon the recommendation to shirk from its liability under the policy.  Sec.64(U) overriding statutory exclusionary clause cannot be availed of if not disclosed to the other party.  In support of his argument, he relied upon a decision reported in United India Insurance Co., Ltd., v/s M.K.J. Corporation (1996) 6 SCC 428

            15.      Even as the evidence placed by the Complainant himself, when the car of the Complainant stopped in the middle of the road due to rain water entry into the engine, the Complainant towed the car to the garage of the 3^rd Opposite Party and immediately the 3^rd Opposite Party attended and rendered the service after repairing the car on payment basis, thereby there is no deficiency in service even on the part of the 3^rd Opposite Party also.  In the complaint, the Complainant has not claimed any relief against the 3^rd Opposite Party, but the 3^rd Opposite Party is only a formal party in this complaint, thereby the Complainant fails to prove that there is a deficiency in service on the part of the Opposite Parties 1 to 3.  Hence, this point is held in the negative.

16.      POINT NO.2:-          In view of the finding on Point No.2, we proceed to pass the following;

ORDER

The Complaint is dismissed.  No costs.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 13^th day of June 2016).

       MEMBER                                                                               PRESIDENT

CC. NO.544/2014

LIST OF WITNESSES AND DOCUMENTS

Witnesses not examined, but affidavit of the witnesses is filed, as follows;

1. Sri George Joseph has filed his affidavit for the Complainant.

2. Sri Krishna Sheemali, Authorized Signatory has filed his affidavit for the Opposite Parties 1 & 2.

3. Sri K.V. Manoj, Service Head has filed his affidavit for the Opposite Party No.3.

List of documents filed by the Complainant :

1. Copy of the Registration Certificate of Car bearing No.KA-04-MK-3506.
2. Copy of the Insurance Policy.
3. Copy of the Claim Form.
4. Copy of the estimate for repair of the car.
5. Copy of the letter dt.13.01.2014
6. Copy of the Legal Notice dt.27.01.2014.
7. Copy of the postal receipts.
8. Copy of the postal acknowledgements.

List of documents filed by the Opposite Parties 1 & 2 :

1.      Copy of the Claim Intimation dt.10.08.2013.

2.      Original Claim Form dt.02.09.2013.

3.      Copy of the estimate dt.11.08.2013 of T.V. Sundaram.

4.      Copy of the letter dt.23.08.2013 to the Complainant by the Opposite Parties 1 & 2.

5.      Copy of the letter dt.02.09.2013.

6.      Copy of the Policy No.OG-13-1701-1801-00058019 & DL

7.      Copy of the RO Billing of TV Sundaram Iyengar & Sons.

8.      Copy of the letter dt.12.12.2013.

9.      Copy of the Final Survey Report dt.13.01.2014.

10. Copy of the letter dt.13.01.2014 and postal receipt.

11. Copy of the letter dt.28.01.2014 and postal receipt.

12. Copy of the Claim Payment Approval Form.

13. Copy of the payment details and cheque.

14. Copy of the policy.

15. Copy of the private car package policy terms and conditions.

16. Copy of the citations.

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