BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 21/12/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 707/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

On 15-06-2011, the complainant purchased a Verna car from the 2^nd opposite party at a price of Rs. 8,75,472/-. The 1^st opposite party is the insurer of the vehicle and the 3^rd opposite party is the manufacturer of the vehicle. On 15-08-2011, during a journey pulling problem was felt and the complainant stopped the vehicle. On inspection, the engine oil leakage was found and no attempt was made to restart the car. The matter was intimated to the 2^nd opposite party. Their technician came and started the vehicle after filling oil and it was taken to their service centre. At the time of the break down, the vehicle had covered only 1850 Kms. No indicator lamp was indicated at that date. The surveyor of the 1^st opposite party inspected the vehicle, and thereafter, the 1^st opposite party rejected the insurance claim of the complainant stating that oil leakage was occurred due to the negligence on the part of the complainant. The complainant had to spend Rs. 1,97,000/- towards repairing charges. There was also a delay of 4 months to redeliver the vehicle on the part of the 2^nd opposite party. The complainant is entitled to get Rs. 1,97,000/- from the 1^st opposite party towards insurance claim and also entitled to get a compensation of Rs. 20,000/- from the 2^nd and 3^rd opposite parties for the unexplained delay in repairing the vehicle together with costs of the proceedings. This complaint hence.

2. The version of the 1^st opposite party is as follows :-

The complainant had insured his car bearing registration No. KL 37/A-5678 with the 1^st opposite party. The complainant has no right to get any insurance amount under the policy, since it is alleged that the engine oil had drained out and the engine damages are due to running of the vehicle without engine oil. The loss alleged to the vehicle has been assessed through a licensed surveyor and he assessed the loss at Rs. 8,006/- which amount has already been paid by the 1^st opposite party to the 2^nd opposite party. As per the survey report, the labour charges for the oil sump removing and fixing new one and the cost of pan assembly engine oil are payable by the 1^st opposite party. The insurance claim for Rs. 1,97,000/- is for the damages to the engine due to driving of the car without engine oil, which the policy does not cover. There is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. The version of the 2^nd opposite party is as follows :-

The vehicle was towed to the service center of the 2^nd opposite party. The vehicle could not be plied since the vehicle was stopped due to seizure of the engine consequent to drainage of engine oil due to the impact of the hit on the oil sump. The 2^nd opposite party received the vehicle on 18-08-2011. At the instance of the 2^nd opposite party, the 1^st opposite party deputed an insurance surveyor and as per the permission on the part of the complainant, the 2^nd opposite party started the repair work on 15-10-2011. Thereafter, the 2^nd opposite party immediately commenced the repair work and completed the work on 01-12-2011. There was absolutely no delay in the accident repairs of the vehicle. The claim for compensation is without any basis and liable to be rejected.

4. The defense of the 3^rd opposite party is as follows :-

The responsibility of the 3^rd opposite party is restricted and limited to its warranty obligations alone. There is not even a whisper in the entire complaint of any allegation whatsoever against the 3^rd opposite party. As per the warranty terms and conditions, the damages or repairs due to accident, fire, tampering or improper repair, negligence of proper maintenance of the vehicle are not covered under the warranty. The warranty is not applicable in case of any damages in the vehicle caused due to accident or any external factor. There is no deficiency in service on the part of the 3^rd opposite party and the complaint deserves dismissal.

5. The complainant was examined as PW1 and Exts. A1 to A4 were marked on his side. The witness for the 1^st opposite party was examined as DW1. The witness for the 2^nd opposite party was examined as DW2. Exts. B1 to B4 were marked on the side of the 1^st opposite party and Ext. B5 was marked on the side of the 2^nd opposite party and Ext. B6 and B7 were marked on the side of the 3^rd opposite party. The surveyor's report was marked as Ext. X1. Heard the counsel for the parties.

6. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get insurance claim of Rs. 1,97,000/- from the 1^st opposite party?

2. Whether the 2^nd and 3^rd opposite parties are liable to pay compensation to the complainant?

3. Whether the opposite parties are liable to pay costs of the proceedings to the complainant?

7. Point No. i. :- It is not in dispute that on 15-06-2011, the complainant purchased the vehicle from the 2^nd opposite party which was manufactured by the 3^rd opposite party, the 1^st opposite party is the insurer of the vehicle. It is also not in dispute that during the currency of the insurance policy issued by the 1^st opposite party on 15-08-2011, the vehicle sustained damages. According to the complainant, he is entitled to get a sum of Rs. 1,97,000/- from the 1^st opposite party which he had expended to repair the vehicle in connection with the accident occurred on 15-08-2011. The 1^st opposite party contended that the damages were sustained due to running of the vehicle without engine oil which is not covered under the insurance policy and the same cannot be termed as accidental damages.

8. The 2^nd opposite party maintains that as and when the 2^nd opposite party obtained sanction from the complainant and the 1^st opposite party to repair the vehicle immediately they have carried out the repairs and handed over the vehicle to the complainant and the complainant had recorded full satisfaction towards repairs of the 2^nd opposite party. The 3^rd opposite party is of the firm view that the claim of the complainant is not covered under the warranty provided by them and the complainant has no cause of action against them.

9. Ext. X1 survey report prepared by the surveyor, who was examined as DW1. He deposed before the Forum that he had prepared Ext. X1 after cross checking the final bill issued by the 2^nd opposite party. However, the said final bill does not find a place in Ext. X1 survey report. Further, DW1 deposed that Ext. B4 is the final bill he had received from the 2^nd opposite party. It is pertinent to not that Ext. B4 is a bill issued by the 2^nd opposite party towards pan assembly engine oil, towing charges and charges for oil sump removing and refitting. Evidently, Ext. B4 is not the final bill issued by the 2^nd opposite party. So, it cannot be adjudged that while preparing Ext. X1, DW1 had not considered it was not the final bill issued by the 2^nd opposite party in connection with the repairing of the vehicle. The definite case of the complainant is that DW1 has not considered Ext. A2 series bills for preparing the survey report. The contention raised by the complainant is sustainable in law, since Ext. X1 is not exhaustive and conclusive. Moreover, the surveyor has deducted depreciation for the parts though the vehicle was aged below 6 months which is not as per the terms and conditions of the policy. In the above circumstances, a direction to the 1^st opposite party to reconsider the insurance claim application of the complainant on the basis of Ext. A2 series final bill is adequate enough to abate the agony of the complainant.

10. Point No. ii. :- DW2, the witness for the 2^nd opposite party deposed that they received consent from the complainant to start the work after the inspection of the surveyor on 11-10-2011 and they have delivered the vehicle on 01-12-2011 and at that time the complainant executed Ext. B2 satisfaction note. The damages sustained by the vehicle is a serious damage and a workshop cannot undertake the work within a short span of time, we cannot find any unusual delay in repairing the vehicle and redelivering the same to the complainant. The complainant did not have a case that the damages caused to the vehicle is covered under the warranty conditions. If so, we are at a loss to find any deficiency in service on the part of the 2^nd and 3^rd opposite parties.

11. Point No. iii. :- We have duly considered the grievances of the complainant and directed the 1^st opposite party to reconsider the decision for partly repudiating the insurance claim of the complainant. Since the relief of the complainant has adequately been met, we refrain from ordering costs of the proceedings to the complainant.

12. In the result, we partly allow the complaint and direct that the 1^st opposite party shall reconsider the insurance claim of the complainant in line with the above observations and based on Ext. A2 final repair bills issued by the 2^nd opposite party, within a period of 60 days from the date of receipt of a copy of this order. The complainant is also directed to co-operate with the 1^st opposite party to process the insurance claim application.

Pronounced in the open Forum on this the 21^st day of December 2013.

Forwarded/By order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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