Haryana

Karnal

587/2012

M/s R.P. Basmati Rich Ltd - Complainant(s)

Versus

M/s Sidak Automobile Pv - Opp.Party(s)

Deepak Tuteja

03 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.587 of 2012

                                                             Date of instt.:12.12.2012

                                                              Date of decision:3.3.2017

 

M/s R.P. Basmati Rice Ltd. through its Chairman Shri Anuj Singal.

 

                                                                   ……..Complainant.

                                      Vs.

1. Sidak Automobiles Pvt. Ltd., 71/3, Mile Stone, G.T. Road, Karnal.

2. TATA AIG General Insurance Co. Ltd. through its authorized signatory situated at Sector-12, Karnal.

                                                                       ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Sh. Deepak Tuteja Advocate for the complainant.

                    Sh. Vinod Dogra Advocate for opposite party no.1

                    Sh.A.K.Vohra Advocate for opposite party no.2.

 

 ORDER:

 

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that he got insured his Skoda Fabia vehicle bearing registration no.HR05U-1234 from opposite party no.2 through opposite party no.1, vide cover note no.11198378, valid from 19.8.2011 to 18.8.2012, for Rs.3,81,000/-. The vehicle got damaged on 2.7.2012. Intimation was given to the company and the vehicle was handed over to opposite party no.1 for repair. Thereafter, he completed all the formalities required by opposite party no.1, who was authorized to issue the cover note of opposite party no.2, to get the claim settled. The opposite party no.1 handed over the retail invoice dated 29.8.2012, in which claim analysis was made showing the total value of the claim as Rs.17,463/- and after deducting the depreciation amount of Rs.6170/- the net payable amount by insurance company was mentioned Rs.11,293/-. The opposite party no.1 also gave bill of Rs.98,731/- alongwith job card dated 12.7.2012 and forced the him to pay the said amount. He approached the higher officials of the opposite parties, but he was told that without paying the said amount his vehicle would not be released despite his policy being cashless. Ultimately, he served legal notice dated 10.9.2012 upon the opposite parties, but the same also did not yield any result. Therefore, under protest he deposited Rs.95,000/- with the opposite party no.1. The acts of the opposite parties amounted to deficiency in service on their part which caused him mental agony and humiliation apart from financial loss.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that the complainant has no locus standi to file the complaint; that the complainant is estopped from filing the complaint by his own acts and conduct and that the complaint is an abuse of process of law.

                   On merits, it has been submitted that the vehicle in question was brought by the complainant at the workshop of opposite party no.1 in damaged condition. After thorough checking, the opposite party no.1 told him that repair and spare charges would be borne either by him or the opposite party no.2, the insurer of the vehicle. As per the assurance given by the complainant, the vehicle was repaired by opposite party no.1 in all respects and the bill of amount of Rs.98,731/- as repair and spare charges was prepared. At the time of delivery of the vehicle, the opposite party no.1 received Rs.95,000/- from the complainant. The vehicle was insured with opposite party no.2, therefore, the opposite party no.2 is liable to indemnify the claim of the complainant and the complaint is not maintainable against opposite party no.1. In this way, there was no deficiency in service on the part of the opposite party no.1.

3.                Opposite party no.2 filed separate written statement disputing the claim of the complainant. Objections have been raised that the complaint is barred under section 26 of the Consumer Protection Act; that the complaint is mis-conceived and misdirected; that the complaint is not maintainable and that complicated questions of law and facts are involved, which cannot be adjudicated by this forum under summary jurisdiction.

                   On merits, it has been pleaded that after getting intimation regarding damage to the vehicle of the complainant, Vikas Gupta was appointed as Surveyor to assess the loss. The surveyor inspected the vehicle , took photographs and prepared his report dated 3.9.2012 as per the terms and conditions of the policy. The liability of opposite party no.2 was to the tune of Rs.7691/-. It was observed by surveyor that the engine of the vehicle had seized as the vehicle was run/used after the engine oil chamber was broken and the engine oil had drained out. Had the vehicle not run after the engine oil had leaked out, then the engine would not have seized (Loss being the aggravation of the damage and consequential in nature). Therefore, the same was not allowed as per terms and conditions of the policy. The surveyor had duly informed the complainant, vide letters dated 31.07.2012 and 11.07.2012 that the seizure, of engine due to draining out of engine oil was not payable as the insured vehicle was driven for a considerable distance without carrying out necessary repairs resulting into its seizure which was violation of section 1(2)(A) and condition no.4 of the policy. In this way, there was no deficiency in service on the part of the opposite party no.2. The other allegations made in the complaint have also been denied.

4.                In evidence of the complainant, his affidavit Ex.CW1/A  and documents Ex.CW2 to Ex.CW11 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Sanjay Bhagat Senior Manager Ex.O1, affidavit of Vikas Gupta Surveyor Ex.O2, affidavit of Tarsem Lal Singla Ex.OP1/A and documents Annexure R2/1 to Anenxure R2/4 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The vehicle of the complainant bearing registration no.HR05U-1234 was insured with opposite party no.2 for the period of 19.8.2011 to 18.8.2012 and the same got damaged on 2.7.2012 during subsistence of the policy. Intimation was given to opposite party no.2, who appointed surveyor. The vehicle was inspected and the report was prepared by the surveyor. The vehicle was repaired by opposite party no.1. The surveyor assessed the payable claim as Rs.11,293/- after deducting depreciation amount of Rs.6170/-out of the total amount of Rs.17,463/-. The opposite party no.1 also claimed bill of Rs.98731/- apart from the said amount of Rs.11,293/- for repair of the vehicle, but the complainant paid an amount of Rs.95,000/-. The opposite party no.2 did not allow the claim of the complainant regarding the amount of Rs.95,000/- paid by him to opposite party no.2, on the ground that the engine of the vehicle had seized as the vehicle was run/used after engine oil chamber was broken and engine oil had drained out. Thus, the material question which arises for consideration is whether the opposite party no.2 is liable to indemnify the complainant for consequential damage to the engine of the vehicle on account of being used after damage to the chamber.

8.                Learned counsel for the complainant laid emphasis on the contention that the engine of the vehicle also damaged in the same accident in which the chamber had broken. It cannot be believed that the complainant used the vehicle even after damage to the chamber and leaking of the oil, negligently, because no prudent man would do so, as such act is against normal human behaviour.  Therefore, the opposite party no.2 is liable to indemnify the complainant for the entire amount spent by him for repair of his vehicle. In support of his contention he placed reliance upon United India Insurance Company Limited Versus Anil Modi Oil Industries Ltd.2011(2) CLT 669.

9.                There is no dispute regarding the proposition of law laid down in Anil Modi Oil Industries’s case (supra) , but the same does not cut any ice in favour of the complainant under the facts and circumstances of the present case. In the cited case, the insured genset was damaged during subsistence of the insurance policy. The insurance company repudiated the claim on the ground that damage to the genset had taken place due to negligence of the complainant, though no definite evidence was led in that regard. Under those circumstances it was held by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh that the allegation of the insurance company was against normal human behaviour because nobody is interested in damaging in his own machinery.

10.              In the instance case, it is not in dispute that the chamber of the vehicle had broken. Once the chamber was damaged, it was for the complainant not to use the vehicle further till this same was got repaired, because any person driving a vehicle is expected to know that if the chamber has broken the oil from the chamber would drain out and in case vehicle is driven further the engine would certainly seize. Moreover, as per section 2(1)(2) of the policy the insurance company shall not be liable to make any payment in respect of the consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages. As per condition no.4, the insured shall take all reasonable steps to safeguard the vehicle from loss or damage and maintain it in efficient condition. Seizure of the engine occurred due to draining out of oil from the chamber after the chamber had broken. Thus, the seizure of the engine was the consequential loss and cannot be termed as direct loss by any stretch of imagination. Driving the vehicle after damage of the chamber certainly amounted to negligence on the part of the complainant and he cannot be allowed to take advantage of his own wrong. Under such facts and circumstances, we have no hesitation in concluding that the opposite party no.2 is not liable to indemnify the complainant for the consequential loss of damage to the engine of the vehicle and as such opposite party no.2 was justified in declining the claim regarding the repair of the engine of the vehicle. Consequently, there was no deficiency in service on the part of the opposite parties.

11.              As a sequel to the foregoing reasons, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 3.3.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member