BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 22/09/2010

Date of Order : 27/08/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 512/2010

Between

And

O R D E R

A. Rajesh, President.

1. To put it shortly, the case of the complainant is as follows :-

The complainant purchased a Skoda Laura car and the servicing of the vehicle was periodically done with the authorised service centers of Skoda Motors. The vehicle was insured with the 1^st opposite party. During the currency of the insurance policy on 20-11-2009, when the complainant was in Chennai the car had broken down. Due to heavy rain in the area where the car was parked, the complainant was unable to start the car. The complainant immediately informed the matter to the 2^nd opposite party. The 2^nd opposite party picked the car up to their workshop. Though the driver of the complainant approached the office of the 1^st opposite party in Chennai, for initiating the necessary procedures for claiming the insurance, they did not take any action on the same. The 1^st opposite party was not at all seemingly keen in processing the claim application of the complainant for their own reasons. The 2^nd opposite party started demanding storage charges of the car from the complainant. On 29-06-2010, a lawyer notice was issued to the 1^st opposite party to pay Rs. 5 lakhs. However, no reply was sent by the 1^st opposite party. Thus, the complainant is before us seeking direction against the opposite parties to pay a compensation Rs. 3.5 lakhs.

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

The vehicle was insured with the 1^st opposite party for the period from 15-06-2009 to 14-06-2010. As per the complaint, it can be seen that the mechanical break down of the car was due to depreciation and improper maintenance. The Regional office of the 1^st opposite party received the written intimation stating the insurance claim of the car only on 30-12-2009 allegedly damaged on 15-12-2009. On the same day, the Chennai office of the 1^st opposite party issued a claim form to the complainant and an independent insurance surveyor was appointed to assess the actual loss. The filled up claim application submitted by the complainant goes to show that the date of accident was on 16-11-2009. There are discrepancies in the complaint as well as in the claim application regarding the cause of incident. Since the complainant had removed the seats and floor mats from the vehicle, the surveyor could not complete the survey. However, he opined that the damage was caused not due to flood/water entry and comes under maintenance. On the basis of the survey report only, the claim of the complainant was rejected. The complaint is devoid of any merit and is liable to be dismissed.

3. The defense of the 2^nd opposite party :-

The vehicle was towed to the workshop of the 2^nd opposite party on 11-11-2009. The vehicle was affected by the flood in Chennai. It was damaged and was not in starting condition. On receipt of the vehicle, the 2^nd opposite party had removed the seats, floor mats and other water-soaked parts of the car, so as to preserve the vehicle and prevent any further damage. The complainant wanted the work to be carried out only after the approval of the insurance company. The complainant was given an estimate to the complainant on 23-11-2009. Neither the complainant nor the 1^st opposite party approved to carry out the repair work. As per the estimate of the 2^nd opposite party, an amount of Rs. 2,08,578.97 is required for the repairs of the vehicle. The 2^nd opposite party is entitled to get parking charges from the complainant. There is no deficiency in service on the part of the 2^nd opposite party.

4. In spite of service of notice from this Forum, the 3^rd opposite party opted not to contest the matter for reasons of their own admittedly agreeing to the consequences thereof legitimately. The complainant was examined as PW1 and Exts. A1 to A8 were marked on his side. Exts. B1 to B8 were marked on the side of the 1^st opposite party. Neither oral nor documentary evidence was adduced by the 2^nd opposite party. Heard the counsel for the parties.

5. The only question that arises for consideration is whether the complainant is entitled to get compensation from the opposite parties or not?

6. The following facts are not disputed by the parties :

1. The complainant purchased a brand new Skoda Laura vehicle in 2006, evidenced by Ext. A1 (copy of registration certificate).

2. The vehicle was insured with the 1^st opposite party for th period from 15-06-2009 to 14-06-2010 evident from Ext. A2 insurance certificate.

7. According to the complainant, on 20-11-2009 the vehicle had broken down due to flood. It is stated that in spite of repeated requests, the 1^st opposite party did not disburse the insurance claim which the complainant is legally entitled to. On the contrary, the 1^st opposite party vehemently contended that there is clear irregularity and infirmity with regard to the cause of accident and date of accident. According to them, there is no evidence on record to prove that the vehicle suffers from the purported defects due to flood. It is further stated that there is no negligence or deficiency in service on the part of the 1^st opposite party in processing the claim application of the complainant and so they have repudiated the claim only on the basis of the report of the surveyor appointed by them.

8. Ext. A3 is the survey report prepared by the insurance surveyor on 20-01-2010. The report of the insurance surveyor reads as follows :-

“As instructed by you I have inspected the above said vehicle at workshop premise of M/s. Gurudev Motors Pvt. Ltd., Chennai 93 on 30/12/2009.

On going through the documents I found the date of accident mentioned in the claim form as 16-11-2009 and the estimate was dated 23-11-2009. But in the intimation letter the date of accident was mentioned as 15-12-2009.

The vehicle was left with the repairs about 45 days before and the claim was reported only on 30-12-2009. Prior to my inspection and survey the repairers have removed the seats and floor mats from the vehicle. In my opinion the damage was not due to flood/water entry and comes under maintenance.

In view of the above I am not in a position to assess the loss and returning the papers pertaining to the above claim.”

9. At the instance of the complainant, an expert commission was deputed by this Forum vide order in I.A. No. 130/'2011 dated 28-07-2011. The report of the expert commissioner reads as follows :

“The vehicle was inspected on 19-09-2011 at 2 PM and observed that the vehicle was not dismantled except for the front seats and accelerator pedal. Mr. D. Kuppuswamy informed that no parts were removed from the vehicle earlier also.

 

1. Steering gear box was inspected and observed moisture in the control unit coupler. Dust due to water entry was also observed. Steering gear box was removed and inspected. The Tie rods, Tie rod ends, Steering rack were without any damage. Steering pinion top portion was completely rusted due to water entry.

    

2. Alternator was inspected, externally no damage was observed. Alternator was removed and observed that the pulley was completely rusted and abnormal sound noted. The sound was from the alternator bearing due to water entry. The representative of M/s. Gurudev Motors & M/s. Skoda Motors informed that alternator bearing was not serviced separately and so the complete Alternator is to be replaced for the proper functioning of the Alternator.

    

3. Accelerator pedal was in removed condition. The coupler of the accelerator pedal was with dust.

    

4. Duel Mass fly wheel was removed and found that the fly wheel ring & fly wheel rusted due to water entry through the air gap between the engine and gear box. The representative of M/s. Gurudev Motors informed that sound was observed from the fly wheel even before the flood damage. The representative M/s. Skoda Motors informed that even if the fly wheel was replaced at that time again the fly wheel is to be replaced for the damage due to water entry.

Checking of the electronic control units were carried out on 20-09-2011 with diagnostic tool and observed that the following electronic units were malfunctioning. Rusting was also observed on the pins and the body of the electronic units.

1. Body control module

2. Seat control module

3. ABS control module

4. Amplifier

Further checking is required after the repair work to find out the extend of damage to these modules.

It was also noted that the radiator fan motor was short circuited and is running continuously.

Conclusion

1. Damage to steering gear box, alternator, accelerator pedal duel mass fly wheel and radiator fan motor were due to water entry to these parts.

    

2. Damages if any to the body control module, seat control module, ABS control module and amplifier is due to water entry.

    

3. It was observed that no parts were removed from the vehicle except the seat and accelerator pedal. The works Manager confirmed that no parts were removed from the vehicle earlier.

    

4. The works Manager and the Surveyor Mr. P. Chandra Sekar confirmed that no parts were removed from the vehicle at the time of survey.”

10. It is pertinent to note that the report of the expert commissioner was not admitted in evidence by either of the parties. The learned counsel for the 1^st opposite party vigorously contended that the expert commissioner's report cannot be relied upon since the complainant failed to tender the same in evidence. The learned counsel for the complainant is of the view that since the expert commissioner was appointed by this Forum, the marking of the report is only a formality and the Forum can very well rely on the same.

11. We are not to rely on Ext. A3 survey report simply for the reason that the surveyor has straight away come to a conclusion that the damage was not due to flood/water entry and the same comes under maintenance. His observations and findings are not supported by any substantial reasons. The surveyor ought to have assessed the damages alone sustained by the vehicle, eventhough according to him the claim is not payable. It seems that the surveyor has stepped into the shoes of the insurance company, though he was appointed only under the Insurance Act. As per the Insurance Act, the surveyor is an independent person, but in this case he acted beyond that too without any convincing or cogent reasons. Surveyors are appointed by the Insurance Companies and they are supposed to report the loss suffered by the insured based on cogent material. Their reports no doubt play a vital role in the settlement of insurance claims.

12. The Hon'ble Supreme Court in New India Assurance Co. Ltd. Vs. Pradeep Kumar 2009 CTJ 599 (SC) (CP), observed that, “although the assessment of loss by the approved surveyor is a pre-requisite for payment or settlement of claim of Rs. 20,000/- or more by insurer, but is not that sacrosanct that it cannot be departed from, it is not conclusive. The approved surveyor's report may be the basis or foundation for settlement of a claim by the insurer in respect of loss suffered by the insured but surely such report is neither binding upon the insurer nor insured.” According to the Hon'ble National Consumer Disputes Redressal Commission a perfunctory report of insurance surveyor cannot be accepted (Veena Devi Vs. National Insurance Co. Ltd. 2012 (3) PR 219). Hence no recluse.

13. Now the question arises, whether the damages of the vehicle were caused due to flood as claimed by the complainant or due to the improper maintenance of the vehicle as claimed by the 1^st opposite party. Since the expert commissioner was appointed by the Forum, we affirm that the reliance on the same is not illegal. The 1^st opposite party had got ample opportunity to substantiate their contentions in the objection filed in this Forum against the expert commissioner's report wherein they failed. In short, there is no reasons before us to discard or disapprove the expert commissioner's report. The expert commissioner in his report categorically came to a conclusion that the vehicle was damaged due to water entry. The above findings of the expert commissioner are supported by the contentions of the 2^nd opposite party in their version that they had removed the seats, floor mats and other water soaked parts of the car to preserve the vehicle and prevent any further damage to the car, especially the electronics parts of the vehicle. The 1^st opposite party had highlighted certain anomalies regarding the date of accident and cause of accident in the complaint and in the other documents which however they have not been conclusive. So, since we are relying on the expert commissioner's report, we are not to further delve into those issues.

14. In view of the above, to set things right, we pass the following order :

1. The 2^nd opposite party shall prepare an estimate to repair the vehicle in tune with the defects noted by the expert commissioner and the same shall be forwarded to the 1^st opposite party within 15 days from the date of receipt of a copy of this order.

2. The 1^st opposite party shall pay the insurance claim of the complainant to the 2^nd opposite party on the basis of the estimate prepared and forwarded by the 2^nd opposite party and as per the terms and conditions of Ext. B5 insurance policy within 15 days from the date of receipt of the estimate.

3. The 2^nd opposite party shall repair and redeliver the vehicle to the complainant on receipt of the insurance amount from the 1^st opposite party and the balance amount if any from the complainant.

4. The complainant shall pay the balance amount to the 2^nd opposite party which may necessarily be in excess of the insurance claim at the time of delivery of the vehicle.

5. The complainant claims a compensation of Rs. 3.5 lakhs against the opposite parties. In this case, as stated above, the grievances have been redressed and concluded to further crave on something already forgiven cannot reasonably be countenanced.

The order shall be complied with as above.

Pronounced in the open Forum on this the 27^th day of August 2012.

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

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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